Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Hearing dates: 29 April 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr G Labour, Senior Member Dr P Lim, Senior Member M Maher, General Member Decision: (1) The registration of the respondent as a dental practitioner is cancelled. (2) We fix a non-review period under section 163A(3)(a) of the Health Practitioner Regulation National Law (NSW) of 4 years. (3) The review body under section 163A is this Tribunal. (4) The respondent is to pay the costs of the applicant in the sum of $12,000. Catchwords: HEALTH — professional registration and discipline — complaints — dental practitioner failed to notify regulatory bodies that he had been charged with or found guilty of criminal offences — held failure constituted professional misconduct — registration cancelled — costs order made CIVIL PROCEDURE — hearings — procedural fairness — complaint alleged practitioner had been convicted of or made the subject of a criminal finding for offences but failed to allege that the circumstances of the offences render the practitioner unfit in the public interest to practise the practitioner's profession — held Health Care Complaints Commission not entitled to rely on section 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) to justify cancellation of registration because failure to allege these matters constituted procedural unfairness. Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 5, 109, 130, 139B, 139E, 144, 149C, 163A Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 King v Health Care Complaints Commission [2011] NSWCA 353 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Angelo Drakopoulos (Respondent) Representation: Counsel: R Donnelly (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2020/00073321 Publication restriction: Nil Reasons for Decision Background 1. In these proceedings the applicant Health Care Complaints Commission complains that the respondent Angelo Drakopoulos is guilty of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law") in his former practice as a dentist. 2. The complaints and the particulars thereof are set out in a Further Amended Notice of Complaint, the relevant portions of which are as follows The Health Care Complaints Commission… HEREBY COMPLAINS THAT Dr Angelo Drakopoulos ("the practitioner") of [address suppressed] being a dental practitioner registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a Dental Practitioner on 20 January 1989. The practitioner started a private practice in Belmore, New South Wales, shortly after graduating where he worked as a dentist until his registration was suspended on 2 March 2017. COMPLAINT ONE Pursuant to section 144(a) of the National Law the practitioner has been made the subject of a criminal finding for an offence in New South Wales. PARTICULARS OF COMPLAINT ONE 1. On 15 December 2016, in the Downing Centre Local Court, was found guilty of the offence of Common Assault, contrary to section 61 of the Crimes Act 1900 (NSW). The offence was found proven, and without proceeding to conviction, the practitioner was directed to enter into a good behaviour bond for 12 months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). COMPLAINT TWO Pursuant to section 144(a) of the National Law the practitioner has been convicted of criminal offences in New South Wales. PARTICULARS OF COMPLAINT TWO 1. On 29 August 2017, in the District Court of NSW, Sydney, was found guilty by His Honour Judge Lakatos SC after a Judge Alone trial of the offence of Supply of Prohibited Drugs, namely 12.21 grams of 3, 4-methylenedioxyamphetamine, contrary to sections 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). 2. On 29 August 2017, in the District Court of NSW, Sydney, was found guilty by His Honour Judge Lakatos SC after a Judge Alone trial of the offence of Supply of Prohibited Drugs, namely 29.20 grams of amphetamine, contrary to sections 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). 3. On 24 November 2017, the practitioner was formally convicted and sentenced to a concurrent term of imprisonment of 2 years with respect to both offences. The term of imprisonment was suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on condition that the practitioner enter into a good behaviour bond for a term not exceeding 2 years. 4. On 8 October 2018, at the Downing Centre Local Court, Sydney, was found guilty after a defended hearing of Contravention of an Order (Domestic Violence) contrary to section 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). He was convicted with no other penalty pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened section 130(1) of the National Law and engaged in improper or unethical conduct relating to the practice or purported practice of dentistry, by: PARTICULARS OF COMPLAINT THREE 1. The practitioner failed to notify the National Board that he had been charged before a NSW Court with offences punishable by 12 months imprisonment or more, within seven days of becoming aware of the fact: a. On 21 April 2016, the practitioner had been charged with the offence in Schedule A, 4. b. On 21 April 2016, the practitioner had been charged with the offence in Schedule A, 5. c. On 23 May 2016, the practitioner had been charged with the offence in Schedule A, 1. d. On 19 February 2017, the practitioner had been charged with the offence in Schedule A, 4. e. On 16 May 2018, the practitioner had been charged with the offence in Schedule A, 6. 2. The practitioner failed to notify the National Board that he had been convicted before a NSW Court with offences punishable by 12 months imprisonment or more, within seven days of becoming aware of the fact: a. On 24 November 2017, the practitioner had been convicted of the offence in Schedule A, 1. b. On 24 November 2017, the practitioner had been convicted of the offence in Schedule A, 2. c. On 8 October 2018, the practitioner had been convicted with the offence in Schedule A, 6. COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened section 109(1)(b) of the National Law, by: PARTICULARS OF COMPLAINT FOUR 1. The practitioner made a false declaration in his Annual Renewal Application completed on 7 December 2016, in that he failed, when asked, to provide details of any change in his criminal history that occurred during the preceding period of registration: a. On 21 April 2016, the practitioner had been charged with the offence in Schedule A, 4. b. On 21 April 2016, the practitioner had been charged with the offence in Schedule A, 5. c. On 23 May 2016, the practitioner had been charged with the offence in Schedule A, 1. d. On 23 May 2016, the practitioner had been charged with the offence in Schedule A, 3. COMPLAINT FIVE The combination of the particulars of unsatisfactory professional conduct, Complaints Three and Four, amounts to professional misconduct as it is conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration, pursuant to ss 139E(b) and 144(b) of the National Law. … Schedule A to the complaint of the Health Care Complaints Commission concerning Dr Angelo Drakopoulos: 1. Supply of prohibited drugs, namely 12.21 grams of 3, 4-methylenedioxyamphetamine, contrary to sections 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). 2. Supply of prohibited drugs, namely 29.20 grams of amphetamine, contrary to sections 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). 3. Attempt to Possess a prescribed restricted substance, contrary to section 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). 4. Common Assault, contrary to section 61 of the Crimes Act 1900 (NSW). 5. Assault Occasioning Actual Bodily Harm, contrary to section 59(1) of the Crimes Act 1900 (NSW) 6. Contravening apprehended violence order, contrary to section 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) 1. We conducted an audio-visual hearing on 29 April 2021. Mr R Donnelly of counsel appeared for the applicant and the respondent appeared in person. Without being critical of the respondent we note that his appearance in these proceedings was the first occasion on which he had actively participated apart from sending a brief email to the Tribunal on 6 November 2020. We shall refer to this document later in these reasons for decision. The respondent has not filed a Reply to the Application, nor has he provided any evidence in the proceedings save for the information which he conveyed to us during the course of the hearing. 2. We add for completeness that we proceed on the basis that the applicant must establish each of the Particulars of each of the Complaints on the balance of probabilities. However, given the seriousness of these matters and that the applicant has sought orders that the respondent's registration be cancelled, we will, in conformity with the protocols adopted by this Tribunal in dealing with proceedings of this kind apply the well-known Briginshaw standard, which in general terms we describe as requiring that we be "comfortably satisfied" on the balance of probabilities that these matters have been established. The evidentiary material 1. The applicant filed voluminous documentary material. It included a large bundle of comprehensive documents provided by the NSW Police Force with respect to each of the criminal proceedings which are the subject of these proceedings and relevant court documents including transcripts of proceedings in the District Court of NSW and certificates of convictions. We were also provided with transcripts of proceedings before delegates of the Dental Council of New South Wales ("the Dental Council") in proceedings brought under section 150 of the National Law. We shall refer to such parts of it as are material to our consideration of these proceedings. The only evidentiary material that was provided orally was given by the respondent during the hearing. 2. The evidentiary material establishes that the respondent was first registered as a Dental Practitioner on 20 January 1989. His registration was suspended on 2 March 2017 and he has not since practised as a dentist. The respondent was born on 21 June 1965. The Particulars of the Complaints Complaint One 1. Complaint One alleges that the respondent has been made the subject of a criminal finding for an offence in NSW. It is based upon section 144(a) of the National Law which is in the following terms 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. It follows that the fact that a criminal conviction or a criminal finding has been made with respect to a health practitioner is sufficient to constitute a complaint that may be made against that person. In determining the ramifications applying to such a complaint it is necessary to turn to the circumstances of the criminal conviction or criminal finding. The Particular of this Complaint makes it clear that its basis is a criminal finding and that it relates to the offence of common assault. 2. A police facts sheet describes the respondent as having engaged in an altercation with another person and having pushed that person a number of times. 3. A transcript of evidence of proceedings in the Local Court on 15 December 2016 indicates that a charge of assault occasioning actual bodily harm was withdrawn and the respondent pleaded guilty to common assault. Having regard to his lack of prior convictions and his age, the respondent was placed on a good behaviour bond without conviction. 4. We find that this Complaint has been established to the requisite standard. Complaint Two 1. This Complaint was also based on section 144(a) of the National Law. 2. Particulars 1, 2 and 3 all concern findings of guilt and conviction with respect to offences relating to the supply of prohibited drugs, those offences occurring on 23 May 2016. A police facts sheet states that on that day NSW Fire Brigade attended the respondent's apartment in response to a fire alarm and notified police after observing certain items in the apartment. Police officers attended and located the drugs which are set out in Particulars 1 and 2 in the glove box of the respondent's motor vehicle. The respondent told the police officers that his vehicle was used from time to time by others, and that the drugs did not belong to him. 3. The respondent was found guilty of the offences on 29 August 2017 after a trial. A copy of the sentencing reasons in the District Court of NSW indicates that both offences were treated "as different facets of the same supply enterprise although I acknowledge that there were different drugs and that fact as well as the number of bags and the like inform the extent of that enterprise but, in fact, in my view it is not unrealistic to view these as two facets of a singular offence." On this basis the imposition of concurrent terms of imprisonment was said to be justified. On 24 November 2017 the respondent was formally convicted of both offences. Concurrent sentences of imprisonment were imposed, but having regard to the respondent's antecedents, his age, certain medical conditions and other matters the sentences were suspended on condition that he enter into good behaviour bonds. 4. Particular 4 involved a breach by the respondent of an apprehended domestic violence order protective of his former wife. He was found guilty at the conclusion of a contested hearing in the Local Court. The respondent asserted that he had entered a shop not knowing that his wife was present, and had made polite conversation with her. The presiding Magistrate found the offence to be at the lowest level of seriousness and imposed a conviction with no further penalty. 5. We find that this Complaint has been established to the requisite standard. Complaint Three 1. The Particulars of this Complaint are based upon non-compliance with the requirements of section 130(1) of the National Law the relevant parts of which are in the following terms 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 established for the practitioner's or student's health profession 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. In the course of the hearing the respondent informed us that he had not notified the National Board of the fact that he had been charged with the drug offences and domestic violence offence because he was told by a police officer, Detective Senior Constable Agostino that he would be notifying the Dental Council about these matters. Indeed, there is in the documentation provided to us a copy of an email from Detective Senior Constable Agostino to the Dental Council dated 27 February 2017 attaching facts sheets with respect to these offences. When it was pointed out to him that the Dental Council was a different body to the National Board, the respondent informed us that he was not aware that these two different bodies existed. 2. The respondent participated in an interview with delegates of the Dental Council on 2 March 2017. During the course of discussion with the delegates he was taken to the provisions of section 130 of the National Law, and to his failure to have made disclosures as required. He said that he did not understand that the reference to "criminal history" in section 130 included the fact that a criminal charge has been laid against him. He said that he would notify "AHPRA" that an additional charge had been made against him. 3. An email communication from AHPRA (the Australian Health Practitioner Regulation Agency) to the applicant dated 4 March 2019 is to the effect that the respondent has never disclosed any change to his criminal history. We have also been provided with an extract of the respondent's registration renewal applications for the period 1 December 2016 to 13 November 2017 which indicate that no such notifications were made by the respondent. 4. We conclude that each of the Particulars of this Complaint has been proven to the requisite standard. Complaint Four 1. The Particulars of this Complaint are based on a contravention of section 109 of the National Law, the relevant portion of which is in the following terms 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; Note— See the definition of criminal history which applies to offences in participating jurisdictions and elsewhere, including outside Australia. … 1. Criminal history is defined in section 5 of the National Law in the following terms 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. The factual material in [18] above demonstrates that the respondent failed to provide details of each of the matters set out in Particular 1 of this Complaint. 2. During the course of the hearing the respondent informed us that he did not believe that the mere fact that he had been charged with an offence represented a change in his criminal history such that it was required to be notified on renewal of registration. We observe that the respondent was informed of this requirement during the course of his interview with the delegates of the Dental Council as referred to in [19] above yet he failed even at that late stage to take any relevant action. 3. We conclude that each of the Particulars of this Complaint has been proven to the requisite standard. Is the respondent guilty of unsatisfactory professional conduct? 1. This term is defined in section 139B of the National Law. We set out relevant portions of that section 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. There are two bases in the Application upon which it is asserted that the respondent is guilty of unsatisfactory professional conduct. The allegations that the respondent is guilty of unsatisfactory professional conduct rely on his breaches of sections 130 and 109 of the National Law as falling within section 139B(1)(b). That is, his failures, as we have found, to give the National Board written notice of the fact that he was charged with the criminal offences punishable by 12 months imprisonment or more and the fact that he was convicted of or made the subject of a finding of guilt for an offence punishable by imprisonment, all as particularised in the several Complaints, are sufficient to constitute unsatisfactory professional conduct. In the same way his failure to disclose these matters which constituted a false declaration in his Annual Renewal Application contained within Complaint Four, which we have found proven, are also indicative of unsatisfactory professional conduct. 2. The second basis is that the same conduct falls within section 139B(1)(l). Complaint Three alleges that the contravention of section 130 constitutes unsatisfactory professional conduct in that the respondent engaged in improper or unethical conduct relating to the practice of his dental profession. 3. In that this second basis subsumes within it the same conduct as is contained within the first basis it is repetitive, and we shall regard it as constituting an additional consequence associated with the same conduct. 4. The dental profession is a regulated profession, designed to ensure inter alia the health and safety of the public and to enhance the confidence of the public in the integrity and competence of the profession. A requirement that dentists are compelled to inform the regulatory authority of any criminal charges and convictions for criminal offences, in each case of a serious nature, is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to the proper and ethical conduct of dentists. Not only is there a requirement to provide this information as and when it occurs, but also on renewal of registration. A failure to comply with these requirements as and when compelled to do so is potentially a matter of some seriousness. 5. We agree with the submissions of the applicant that the contravention of section 130 is capable of constituting, in all the circumstances, unsatisfactory professional conduct. The respondent sought to argue before us that his conduct was due in part to the fact that he thought that NSW Police would have made notifications on his behalf, that he was unaware that there was more than one regulatory body, and that he thought that he was not obliged to report these matters after he had been suspended. We reject these submissions. It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance. The practice of the respondent's profession included compliance with the matters which are the subject of Complaints Three and Four which, as we have earlier observed play an integral part in the regulation of the profession of dentistry. The offences which are particularised are serious offences, especially those involving prohibited drugs. We find that the respondent is guilty of unsatisfactory professional conduct. What part do the criminal convictions per se play in these proceedings? 1. Before determining whether the respondent is guilty of professional misconduct as alleged in Complaint Five it is also necessary that we consider whether the fact that the respondent has been convicted of the offences particularised in the Application constitutes conduct which can be taken into account in determining these proceedings. 2. In his written submissions counsel for the applicant alleged in connection with Complaints One and Two that the fact of those convictions rendered the respondent unfit to practise dentistry in the public interest. This is a reference to the provisions of section 149C(1)(c) of the National Law 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or … 1. In order to justify suspension or cancellation of registration under this provision, not only must there be the fact of a conviction or being made the subject of a criminal finding for an offence, but also there must be a finding concerning the circumstances of the offences and as to whether they render the respondent unfit in the public interest to practise his profession. 2. There is a reference to the fact of these matters contained within Complaints One and Two. But neither Complaint contains any allegation that the circumstances of the offences rendered the respondent unfit in the public interest to practise dentistry. Accordingly, it cannot be said that the respondent has ever been apprised of the assertions made by the applicant that the circumstances of those offences render him unfit in the public interest to practise as a dentist. To our knowledge, the first occasion on which such an allegation was made was when the respondent received the written submissions of counsel for the applicant, which are dated 29 April 2021 and were made available on the morning of the hearing. 3. We raised this question with counsel for the applicant after perusing his written submissions. We indicated that we were concerned that no allegation of unfitness to practice by reason of the offences was contained within the Application. We apprehend that no particular submissions were made to resist our concerns. 4. The necessity for particularity in the formulation of complaints in the Occupational Division of this Tribunal has been aptly summarised, with appropriate citations to other authorities, in King v Health Care Complaints Commission [2011] NSWCA 353 ("King") by Handley AJA (McColl JA agreeing) in the following manner (at [173]-[185]): [173] Since there was no statutory or equivalent duty to formulate and particularise charges the Tribunal was bound to see that this was done as part of its common law duty of procedural fairness. [174] Thus decisions on statutory and equivalent provisions, including rules of court, which require the formulation and particularisation of criminal and like charges are not relevant. [175] A person facing disciplinary action is entitled, at common law, to reasonable notice of the charges against him and an opportunity to answer them. In The Queen v MacKellar ex parte Ratu [1977] HCA 35, 137 CLR 461, 476 Mason J said: "... in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right or interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him." [176] In Kioa v West [1985] HCA 81, 159 CLR 550, 582 Mason J said that a person in such a position: "is entitled to know the case sought to be made against him and to be given an opportunity of replying to it". [177] In Smith v NSW Bar Association [1992] HCA 36, 176 CLR 256, 269 Brennan, Dawson, Toohey & Gaudron JJ said: "... procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made." [178] In Sabag v HCCC [2001] NSWCA 411; Gad v HCCC [2002] NSWCA 111, and Daskalopoulos v HCCC [2002] NSWCA 200 this Court held that the Tribunal's findings of professional misconduct involved a denial of procedural fairness. [179] In Sabag Sperling J, giving the principal judgment for the majority, referred [83] to the requirement in s 43 that any complaint must contain particulars of the allegations on which it is founded. He continued: "The primary function of particulars is to apprise the opposite party of the case to be met. There is a special need for particulars in disciplinary proceedings ... because of the elements of degree and judgement involved in a finding of professional offence ... The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgment which are involved." [180] Sperling J, who with Beazley JA, held that there had been a denial of procedural fairness did not base his decision on the formal complaint alone. He said [106]-[107]: 106. There was nothing in the complaint giving notice ... of either of these two matters ... as conduct to be relied upon as constituting or contributing to the professional offences charged. There was no such notice in the opening address by counsel for the complainant ... It was not put to the appellant in cross-examination by the Tribunal ... Neither of the ... matters was put to the Tribunal in the closing address by counsel for the complainant, as elements of the complainant's case ... The Tribunal itself did not raise these matters for consideration before giving its decision. 107. In short, the appellant had no notice that these matters would be or might be relied upon by the Tribunal as constituting or contributing to its ultimate findings. The appellant did not have an opportunity to be heard in relation to those matters." [181] In his dissenting judgment Davies AJA found otherwise because the issue had "emerged at the trial and ... been litigated". The majority found [116] that the issue had not been litigated. [182] In Gad (above) Stein JA, who gave the principal judgment, said [44] that "it was necessary to bring home to the appellant that it was the respondent's case that his records were not simply inadequate, but falsified so as to mislead". He relied [47] among other things on the failure to cross-examine the practitioner on the issue. [183] In Daskalopoulos (above) Hodgson JA, who gave the principal judgment, referred [50] to "the requirement of clarity in allegations made against persons charged with professional misconduct and/or unsatisfactory professional conduct." He found a denial of procedural fairness because of [53] "the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular." [184] In HCCC v Karalasingham [2007] NSWCA 267 at [27]-[31], and Lucire v HCCC [2011] NSWCA 99 at [42]-[45] Basten JA criticised "pleadings", i.e. Notices of Complaint, in the present form, and pointed to the difficulties they created. However, the Court did not decide that the "pleadings" had caused a denial of procedural fairness. [185] In my judgment there was no breach of the common law duty of procedural fairness in this case. The appellant and his advisers could not have been in any doubt that the Commission, and the two patients, were alleging professional misconduct based on his intimate examinations, including what had happened during the "extended periods" when his finger(s) were inside their vaginas. 1. Applying the approach adopted by the Court of Appeal in King, the ultimate test is whether the respondent has been afforded procedural fairness in the conduct of these proceedings. On the one hand he has not participated in any way in the conduct of the proceedings until his appearance on a self-represented basis at the hearing. On the other hand, having participated in the hearing he is, at the least, entitled to be afforded procedural fairness for the purpose of the hearing itself. We do not know whether the respondent would have been able to contribute to a discussion about whether or not the fact of the offences rendered him unfit to practise as a dentist, but he certainly could not have been prepared for such a discussion until receipt of the submissions on the morning of the hearing. We are of the view that there is nothing contained in any of the Complaints One or Two which would inform a reader that such an allegation was part and parcel of those Complaints. In circumstances where this was the first occasion of which we are aware that this allegation was made, we conclude that it would have been unfair to the respondent to allow the applicant to rely upon it. Accordingly, we reject the entitlement of the applicant to proceed on the basis that the registration of the respondent might be suspended or cancelled by reason of section 149C(1)(c) of the National Law. These are matters which should have been included within the Complaints and particularised as such. Is the respondent guilty of professional misconduct as alleged? 1. This is the subject of Complaint Five. It is alleged that the matters found to be proven with respect to Complaints Three and Four constitute in the aggregate professional misconduct. This term is defined in section 139E of the National Law in the following terms 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. It is necessary to determine whether the unsatisfactory professional conduct which we have found amounts, in the aggregate, to conduct of a sufficiently serious nature to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"). Meagher JA (Basten and Emmett JJA agreeing) said [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Some assistance in exercising the value judgement which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgement of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …" 1. We have already traversed the elements of Complaints Three and Four in determining that the conduct which is the subject of these complaints constitutes unsatisfactory professional conduct. His failure to notify the National Board extended to charges which had been laid on 21 April 2016, 23 May 2016, 19 February 2017 and 16 May 2018. His failure to notify the same entity extended to convictions with offences punishable by 12 months imprisonment or more recorded on 24 November 2017 and 8 October 2018. His false declaration on renewal was completed on 7 December 2016. These matters cover a substantial period. The offences with which he had been charged were serious, especially those concerning the supply of prohibited drugs and attempting to possess a prescribed restricted substance. The convictions were for offences of a serious nature. These serious matters inform and exacerbate the misconduct of the respondent in failing to make disclosure to the regulatory bodies as required by the National Law which occurred on multiple occasions over a lengthy period of time. They are incompatible with the public expectations as to the integrity and character of a dental practitioner. As such, they are sufficient to warrant cancellation or suspension of registration. 2. It follows that these matters when considered in the aggregate constitute professional misconduct, and we so find. What protective orders should be made? 1. It is now necessary to determine what protective orders should be made consequent upon the finding of professional misconduct which we have made. We have previously set out the principles which are to be applied in framing appropriate protective orders. Most significantly, it is necessary to protect the interests of the public and in the case of a dentist the interests of current and potential patients. In addition, protective orders are appropriate to deter the respondent and other dentists from engaging in the same or similar conduct. Finally, it is necessary to uphold public confidence in the high standards and integrity of the dental profession. 2. The applicant submitted that the appropriate protective order in all the circumstances was cancellation of the respondent's registration. We are empowered to make such an order by reason of section 149C of the National Law which we have previously set out. 3. The respondent's registration is currently suspended from 2 March 2017, and he has not sought to renew it. During the course of the hearing he informed us that he had no future intention of practising as a dentist and did not resist cancellation of his registration. 4. This is consistent with the only email communication from the respondent to the Tribunal dated 6 November 2020. In that email the respondent apologised for having forgotten to participate when the matter had previously been mentioned. He was involved in coping with the recent death of his mother and a number of serious personal illnesses. Specifically, the respondent said … I find this action by the HCCC to be futile and unnecessary. I have not applied for reregistration and have made no indication to do so or intend to. HCCC could simply have rejected my application had it chosen to do so. I also note… that the HCCC has applied for costs. As I am in financial hardship and a bankrupt due to my previous dental board suspension I would ask that you give me consideration in this matter. 1. Indeed, it became apparent during the course of the hearing before us that the respondent's main concern was a potential liability to pay the costs of the applicant, rather than resist the application to cancel his registration. 2. The applicant tendered a report of Dr Anthony Samuels, a consultant psychiatrist, dated 4 June 2019 referable to a consultation conducted that day. Dr Samuels had been provided with extensive documentation concerning the respondent's criminal convictions and the criminal proceedings instituted against him. Dr Samuels concluded that "Although I find no clear evidence of a psychiatric impairment, Dr Drakopoulos' history from 2013 is very concerning and raises concerns about his character, possibility of substance misuse, mental health issues and his physical health. There may be some physical issues that require ongoing monitoring through the Impairment Program. His history of having been convicted of two criminal offences (which he denies and justifies) is concerning. If he is to continue practising as a dentist, I do think some oversight and monitoring is required and if the impairment pathway is not considered to be appropriate for him consideration could be given to maintaining such oversight through disciplinary mechanisms." 1. We note that Dr Samuels has expressed concern about the reasons for the respondent's conduct and his prognosis. Dr Samuels was not required by the respondent for cross-examination on his report. 2. In considering what protective orders are appropriate to be made following our finding that the respondent is guilty of professional misconduct we are also entitled to take into account what is known of his character. In considering this matter we take into account that he was convicted of two serious offences of supplying prohibited drugs, the quantities of which were high enough to meet the definition of trafficable quantity and the offence of deemed supply. These drugs, MDMA and amphetamine are well-known to have the potential to cause significant harm to persons who use them, and to the wider community who come into contact with such persons. This is even more significant in the context of a dental practitioner who has the right to prescribe a wide range of medications, including restricted substances. The remaining convictions and offences are also serious, but to a lesser degree. 3. We note also the applicant's submission that the offences dated between 2016 and May 2018 and continued to have been committed after suspension of the respondent's registration on 2 March 2017. 4. Furthermore, as the applicant submitted, the fact of the criminal convictions recorded against the respondent "creates a potential risk with respect to providing confidence that he will respect and comply with the laws and regulations regarding prescription and supply of restricted medications if he is allowed to resume practice as a dentist. The denial of his guilt and lack of insight regarding his crimes provide no reassurance that his future conduct will not put patients at risk." We make the same observations with respect to the failure of the respondent to notify the regulatory authorities of the fact of his convictions and that he was charged with criminal offences. 5. Overall, having regard to the above matters we conclude that an appropriate protective order is that the respondent's registration be cancelled. In so concluding we take into account all of the matters to be considered in formulating protective orders as referred to in the extract from Do at [41] above. 6. The respondent will have an opportunity of seeking a review of the order of cancellation pursuant to section 163A of the National Law. By section 163A(3) we are empowered to make an order setting a minimum period during which an application for review may not be made. The relevant provisions of section 163A are in the following terms 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— … (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or … (4) In this section— decision-making entity means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision-making entity— … (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or … 1. The applicant submitted that an appropriate non-review period would be four years. This period is habitually fixed by reference to the minimum time assessed to be appropriate to enable a practitioner to undertake some form of rehabilitation or re-education process, to undergo treatment if relevant, and the like. In circumstances where we cannot conclude with any certainty why the respondent engaged in the conduct which he did and whether he has any propensity to engage in similar conduct again, it is difficult to assess an appropriate non-review period. In all the circumstances we will adopt the assessment of the applicant as being reasonable. The review body should be this Tribunal. Costs 1. This is a costs jurisdiction, and costs normally follow the event unless there is some conduct on the part of the applicant which would disentitle it to a favourable costs order. There are no circumstances which would disentitle the applicant to a favourable costs order. 2. The applicant sought a costs order in its favour in the sum of $12,000. Because the hearing finished within one day instead of the two allotted days it was suggested that the applicant's costs might ultimately be less than the sum of $12,000. Leave was granted to the applicant to file a schedule of costs after the conclusion of the hearing. That schedule was filed on 30 April 2021 in the sum of $12,371.59. Notwithstanding this, the applicant has indicated that it will accept the sum of $12,000. 3. We have perused the details of the schedule of costs. We are satisfied that the time charged for the work performed by the solicitor who undertook that work is reasonable and appropriate and that her hourly rate of $334.20 is appropriate. We are also satisfied that the disbursements, consisting substantially of counsel's fees are also reasonable. 4. The respondent initially resisted the making of a costs order, but once he appreciated that a costs order was appropriate, he agreed that the schedule of costs would be reviewed by us and a determination would be made as to whether the costs claimed were reasonable. We have so found and will make a costs order accordingly. Orders 1. We make the following orders consequent upon the finding of professional misconduct which we have made: 1. The registration of the respondent as a dental practitioner is cancelled. 2. We fix a non-review period under section 163A(3)(a) of the Health Practitioner Regulation National Law (NSW) of 4 years. 3. The review body under section 163A is this Tribunal. 4. The respondent is to pay the costs of the applicant in the sum of $12,000. ********** 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: 28 May 2021