Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jan v Health Care Complaints Commission [2021] NSWCATOD 141 Hearing dates: 16 July 2021 Date of orders: 8 September 2021 Decision date: 08 September 2021 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr M Stimpson, Senior Member Dr B White, Senior Member C Berglund, General Member Decision: (1) Pursuant to s 163B(1) of the National Law, the applicant may be registered as a dentist in accordance with Part 7 if the conditions for the making of a reinstatement order as defined in s 163B(3) are satisfied; (2) Pursuant to s 163B(4) of the National Law, the following conditions are imposed on the applicant's registration in the event that a reinstatement order is made: (a) the applicant is to practise only in a group practice that is not owned by the applicant; (b) the applicant is to practise under Category A supervision in accordance with the Dental Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body as follows: (i) the applicant is not to practise until a supervisor has been approved by the Dental Council of NSW; (ii) supervision is to occur for a period of 2 years, and for any further period determined by the Dental Council of NSW; (iii) the Dental Council of NSW is authorised to provide proposed and approved supervisors with a copy of the full conditions, and any relevant decision or report; (c) the applicant is to submit to an audit of his practice, by a random selection of his records by a person or persons nominated by the Dental Council of NSW as follows: (i) the audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council; (ii) the auditor(s) is to assess his compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct; (iii) the audit(s) is to confirm compliance with his conditions of practice and any relevant standards, codes and guidelines; (d) The appropriate review body for the purpose of a review under sections 163 to 163C of the National Law is the Dental Council of NSW when the respondent has a principal place of practice in New South Wales. (e) sections 125 to 127 of the National Law are to apply should the applicant's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board; (f) the applicant is to continue to attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The applicant: (i) is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change); (ii) must provide the Council with the professional details of the treating psychologist; (iii) must provide evidence to the Council of his attendance with the treating psychologist within 1 month from recommencement of practice; (3) the applicant is to pay the costs of the respondent as agreed or assessed. Catchwords: TRADES AND PROFESSIONS –– reinstatement of health practitioner under Health Practitioner Regulation National Law COSTS — application of compensatory principle where applicant practitioner is successful in application for review of cancellation order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3, 3A, 55, 116, 163, 163A, 163B, 163C, Sch 5D, cl 13 Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 Jan v Health Care Complaints Commission [2020] NSWCATOD 75 Jan v Health Care Complaints Commission [2021] NSWSC 350 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Texts Cited: None cited Category: Principal judgment Parties: Rey Jan (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: A Hourigan (Applicant) A Britt (Respondent) Solicitors: Hall & Wilcox (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2019/00333341 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of the Patient A is prohibited. REASONS FOR DECISION Overview 1. In these proceedings the applicant, Rey Jan (Mr Jan) (who was formerly known as Reza Jangodaz) (Mr Jan or Mr Jangodaz), is seeking against the respondent, the Health Care Complaints Commission (the HCCC or the Commission), an order that he be reinstated as a registered dentist under s 163B of the Health Practitioner Regulation National Law (NSW) (National Law) and a consequential order. 2. We have decided to make a reinstatement order in favour of the applicant, to impose conditions on his registration, and to require the applicant to pay the respondent's costs of the proceedings. The background and history of the proceedings 1. The applicant is a dental practitioner who was formerly registered under the National Law. 2. On 3 June 2016, the Tribunal made its decision in proceedings between the Commission as the applicant and Mr Jangodaz as the respondent: Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71. The Tribunal made: 1. findings that the following five complaints recorded at [7] had been established against Mr Jangodaz: "[7] … Complaints 1-4 are of unsatisfactory professional conduct, while complaint 5 is that the matters in 1-4 both individually and cumulatively amount to professional misconduct. Complaint 1 concerns the sexual and personal relationship. Complaint 2 relates to the practitioner's attempt to influence Patient A to withdraw her complaint. Complaint 3 is that the practitioner failed to refer Patient A to another dental practitioner for the work that he had commenced but not completed. Complaint 4 relates to inappropriate and personal comments in the clinical records the practitioner made about Patient A, including a series of derogatory remarks about her being "crazy" and "mad"." 1. the following orders: "(1) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as a Dentist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; (2) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 1 year from the date of this order; (3) A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the name of Patient A in the schedule to the complaint; (4) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW)." 1. On 11 September 2017, in proceedings 2017/00149291 in the Local Court at Sydney commenced by the Australian Health Practitioner Regulation Agency as the informant against Mr Jangodaz as the accused (the Local Court proceedings) Mr Jangodaz pleaded guilty to two offences, one that occurred on or about 17 November 2016, and the other that occurred between 2 and 31 January 2017, under s 116(1)(c) of the National Law that he, not being a registered health practitioner, knowingly or recklessly held himself out as being registered as a dentist under the National Law, was fined $4,750.00 and ordered to pay $4,000.00 for the informant's costs. 2. On 10 October 2019, the applicant commenced these proceedings by filing an application in which he: 1. seeks the following orders: "1. That the Applicant be reinstated as a registered Dentist under section 163B(c) of the National Law. 2. That the Applicant be registered as a Dentist on the National Register of Health Practitioners as maintained by the Australian Health Practitioner Regulation Agency." 1. sets out the following grounds: "1. The Applicant has complied with Order 2 in Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 (2015/00383928) to not make an Application for re-registration until at least 1 year from the Order. 2. The severity of the sanction imposed upon the Applicant by the cancellation of his registration ought appropriately be revisited having regard to all the circumstances, including, but not limited to, the steps that the Applicant has taken post cancellation of his registration. 3. The severity of the Applicant's sanction is able to be appropriately further managed so that the Applicant is able to resume provision of financial support and stability for his family. 4. The Applicant shows insight and understanding as well as deep remorse for his actions which led to de-registration. 5. The Applicant has shown commitment to his continuing professional and ethical development through completing multiple online and in person courses which aim to develop his professional ethics. 6. The Applicant has shown commitment to his continuing personal, professional and ethical development through undertaking psychological (previously counselling) and psychiatrist (previously medico legal) counselling. 7. The Applicant continues his personal as well as professional and ethical development through undertaking continuous semi-regular psychological counselling. 8. The Applicant has arranged, insofar as the Tribunal concludes it appropriate, to engage with Dr Ralph Kelsey as a mentor upon his return to practice for a period of, say, 12 months. 9. There are no other issues to indicate that the Applicant would not be able to practice dentistry competently and safely." 1. On 26 March 2020, the hearing of the applicant's application for reinstatement took place by telephone (the 26 March 2020 hearing) in which the applicant tendered a bundle of documents which were admitted into evidence without objection and included the following evidence: 1. the report of Dr Lisa Brown (Dr Brown), a consultant and forensic psychiatrist, dated 21 March 2018 (the 21 March 2018 Brown report); 2. the report of Dr Brown dated 7 August 2019 (the 7 August 2019 Brown report); 3. the report of Dr Ralph Kelsey (Dr Kelsey) dated 16 March 2019 (the 16 March 2019 Kelsey report); 4. the statement of the applicant dated 14 October 2019 (the 14 October 2019 Jan statement). 1. During the 26 March 2020 hearing Dr Kelsey, Dr Brown and the applicant gave evidence. In his oral evidence the applicant admitted to treating family members on two occasions while deregistered, specifically filling a tooth of his then eleven-year-old son in June 2016, and performing a scale and clean on his sister-in-law in December 2016. 2. On 2 July 2020, the Tribunal dismissed the applicant's application for reinstatement and ordered the applicant to pay the Commission's costs of the proceedings (the 2 July 2020 orders): Jan v Health Care Complaints Commission [2020] NSWCATOD 75. The Tribunal at [59] referred to the absence of material from Mr Andrew Fordyce (Mr Fordyce) from whom the applicant had received 19 months of counselling, and at [63] found that absent reliable supporting material, it was unable to accept the applicant's claim of being "completely transparent" with the Canadian Dental Board to which he recently had applied to be registered as a dentist. The Tribunal at [64]-[68] expressed the following reasons for dismissing the applicant's application for reinstatement: "[64] Determining whether a practitioner found guilty of professional misconduct and found to have committed offences under the National Law is likely to reoffend and can be trusted to act in an ethical manner in the future is no easy task. This case is no exception. It requires a risk assessment, informed by conscientious consideration of the relevant facts, but ultimately involves an impression of the significance of those facts. [65] We accept that Mr Jan has made significant efforts to seek guidance and to undertake training in ethical and professional conduct. We also accept that the loss of Mr Jan's registration, the 2017 conviction, and the devastating impact on his finances and self-esteem, in combination, are likely to have a deterrent effect. [66] Nonetheless, on the available material we are unpersuaded that Mr Jan poses no material risk of reoffending. Central to that conclusion is the fact that, despite mentoring and training, and the deterrent effect of deregistration, he went on to knowingly breach the National Law. Drs Brown and Kelsey, both of whom are respected practitioners with significant experience in making risk assessments of the type the subject of these proceedings, were persuaded over time Mr Jan had become appropriately insightful and had reformed. They qualified their opinions, however, by noting that they were reliant on the history provided to them by Mr Jan. [67] We are not, however, persuaded that Mr Jan is a fit and proper person to practise as a dentist. As we have noted, Mr Jan's misconduct and suspension was then followed by mentoring and undertaking studies in ethical practice. It appears to us that at least initially he took a cynical approach towards those rehabilitative processes, apparently regarding them merely as a sort of obstacle course he had to negotiate. That he developed little insight or resolve to reform as a result of those 'tick-a-box' exercises is demonstrated by his offences under the National Law. Once an impression of cynicism in relation to rehabilitation is created it is difficult to dispel. Notwithstanding the favourable (but qualified) opinions of Drs Brown and Kelsey, we are not persuaded that his rehabilitation is as profound as Mr Jan has asserted to us. The safety of members of the public is paramount and must be protected. In our view, although the risk to the public has probably been diminished considerably as a result of the advice and support given to him by Drs Brown, Kelsey and others, we are not satisfied on the balance of probabilities that he does not still pose a real and material risk of reoffending. [68] For these reasons, we are not persuaded that Mr Jan is a fit and proper person to practise as a dentist and we are not satisfied on the balance of probabilities that he does not pose a real and material risk of reoffending. Mr Jan's application for reinstatement is dismissed." 1. On 28 July 2020, the applicant commenced proceedings 2020/220265 against the Commission in the Supreme Court in which he appealed against the 2 July 2020 orders (the Supreme Court proceedings). 2. On 8 April 2021, Leeming JA in the Supreme Court proceedings relevantly allowed the appeal, set aside the 2 July 2020 orders, and remitted the proceedings to the Tribunal for determination in accordance with law: Jan v Health Care Complaints Commission [2021] NSWSC 350. Leeming JA at [72]-[73] and [77] concluded that the Tribunal had made an error of law for the following reasons: "[72] … But in the present case, the application was to reinstate the plaintiff to practise, either unconditionally or subject to conditions. While the fallback submission could have been more prominently advanced than it was, it was sufficiently significant to require being addressed in terms. [73] Given the way in which the Tribunal approached its task, acceptance of the HCCC's submission that it was sufficient for the Tribunal to form the view that the plaintiff was not a fit and proper person without considering whether the risk of reoffending which was central to its reasoning could be addressed by conditions would be contrary to the principles in the previous paragraph. [77] It follows that NCAT's dismissal of the plaintiff's application was affected by error of law, and that it cannot be said that the error was immaterial." The hearing 1. On 16 July 2021, the hearing took place by audio visual link. Mr A Hourigan of counsel represented the applicant. Mr A Britt of counsel represented the respondent. 2. At the commencement of the hearing the applicant indicated that if he was reinstated he would consent to the imposition of reasonable conditions upon his registration. 3. The applicant relied on a bundle of documents (Ex A1) which were admitted into evidence without objection and included the following evidence: 1. the 21 March 2018 Brown report; 2. the 7 August 2019 Brown report; 3. the 16 March 2019 Kelsey report; 4. the 14 October 2019 Jan statement; 5. the affidavit of Mr Jan affirmed on 24 August 2020 (the 24 August 2020 Jan affidavit); 6. the affidavit of Mr Jan affirmed on 14 September 2020 (the 14 September 2020 Jan affidavit); 7. the affidavit of Mr Jan affirmed on 22 March 2021 (the 22 March 2021 Jan affidavit); 8. the statement of Mr Jan dated 1 June 2021 (the 1 June 2021 Jan statement); 9. the statement of Mr Jan dated 9 July 2021 (the 9 July 2021 Jan statement); 10. the statement of Mr Jan dated 15 July 2021 (the 15 July 2021 Jan statement); 1. The respondent relied on the following documents which were admitted into evidence without objection: 1. a bundle of documents (Ex R1); 2. the transcript of the hearing on 26 March 2020 (Ex R2). 1. The applicant, Dr Brown and Dr Kelsey gave oral evidence. 2. The respondent relied on its written submissions dated 16 July 2021 (the respondent's 16 July 2021 submissions). Each of the applicant and the respondent made oral submissions. 3. At the conclusion of the hearing we reserved our decision and directed the parties to provide agreed conditions, or in the absence of agreement their version of conditions, that might be imposed in the event we granted the applicant's application for reinstatement. 4. On 30 July 2021, the parties provided to the Tribunal proposed agreed conditions in the event we decided to grant the applicant's application for reinstatement, and to impose conditions on the applicant's registration. The issues 1. The applicant accepted that if he is reinstated, then his registration should be subject to conditions. The respondent opposed the reinstatement of the applicant even if he were to be subject to conditions. 2. The following issues arise for determination: 1. whether the applicant should be reinstated; 2. what conditions should be imposed on the applicant's registration if he is reinstated; 3. the costs of the proceedings. 1. Before considering these issues it is appropriate to set out the applicable provisions of the National Law and legal principles, and summarise the evidence for the applicant and the submissions of the parties including the proposed agreed conditions in the event we decided to grant the applicant's application for reinstatement, and to impose conditions on the applicant's registration. It is unnecessary to summarise the evidence for the respondent because it is substantially directed to the facts of the offending behaviour which are undisputed and referred to at [4] and [5] above. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and 1. Section 3A specifies the particular objective and guiding principle of the National Law in New South Wales, and provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Part 7 Division 1 (ss 52-56) contains provisions dealing with the general registration of health practitioners. Section 55 deals with the circumstances of unsuitability for an individual to hold general registration, and relevantly provides: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if— … (h) in the Board's opinion, the individual is for any other reason— (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. Part 8 Division 8 (ss 163-163C) contains provisions dealing with reviews. Section 163(1)(c) specifies the Tribunal is the appropriate review body except where specific circumstances are present. 2. Section 163A provides for a right of review, and relevantly provides: 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. … (4) In this section— decision-making entity means the following— … (d) the Tribunal ….; … 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. Section 163B deals with the powers of an appropriate review body on a review, and relevantly provides: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; … (c) make a reinstatement order; … (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. … (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. 1. Section 163C deals with the inquiry to be made in a review application, and relevantly provides: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. … 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. The applicable legal principles Whether a pracitioner should be reinstated 1. In Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17]-[19] Brereton JA made the following observations (Bell P at [1] and Emmett AJA at [78] agreeing): "[17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public. [18] The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. [19] Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. …" (footnotes omitted) 1. In Ake v Health Care Complaints Commission [2019] NSWCATOD 165 (Ake) at [31]-[33] the Tribunal set out the following principles to be applied to determine whether a practitioner should be reinstated: "[31] In the exercise of the power to conduct an inquiry under s 163B of the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A. The objectives of the National Law include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). To practise as a health practitioner a person must, be a "fit and proper person for general registration" and be able to practise his or her profession competently and safely: s 55(1)(h). [32] The principles relating to the reinstatement of deregistered health practitioners under the National Law are settled and have been considered in recent Tribunal decisions including, Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116; Scully v HCCC [2013] NSWNMT 7 (Scully) and Shah v Health Care Complaints Commission [2014] NSWCATOD 94 (Shah). Those principles were succinctly stated in Shah at [34]: (1) the applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the profession … (see Scully v HCCC [2013] NSWNMT 7 (Scully) [41] and the authorities there referred to); (2) the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (see Scully [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13); (3) the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction that is exercised is for the protection of the public (see Scully [47] and the authority there referred to); (4) the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see Scully [48] and the authority there referred to); (5) there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see Scully [49] and the authority there referred to); (6) in making an assessment of the applicant's worthiness and reliability for the future, the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. In Scully, the Tribunal referred at [50] to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [or her] worthiness and his [or her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". [33] In Scully, the Nurses and Midwives Tribunal also considered the relevant principles relating to applications for reinstatement. It applied the principles outlined above in an unexceptional way, but it is noteworthy for a reference to a dissenting judgment of Kirby P in Dawson v Law Society of NSW [1989] NSWCA 58 at [17] in which His Honour remarked: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance ..." The costs of proceedings for the reinstatement of a practitioner 1. In Ake at [46]-[51] the Tribunal set out the following principles to be applied to determine the costs of proceedings for the reinstatement of a practitioner: "[46] In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. [47] Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle — that without some disentitling conduct a successful party is generally entitled to recover their costs — can and should be applied where the Tribunal makes a reinstatement order under s 163B of the National Law. [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102) [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)." The evidence for the applicant The applicant The 14 October 2019 Jan statement 1. In the 14 October 2019 Jan statement the applicant relevantly: 1. sets out information about his background; 2. expresses remorse for his offending behaviour; 3. sets out details of all treatment following his offending behaviour, including from 1 February 2018 engaging in regular monthly sessions with clinical psychologist Mr Andrew Fordyce (Mr Fordyce), 16 hours of private sessions with Dr Philip Wright at the Ethics Centre, Sydney through their Ethics Counsel Program which he completed in December 2018, completing courses with Ethics Education Online, and being mentored by Dr John Dale; 4. sets out details of the continuing professional development and further training completed following his offending behaviour; 5. states that he changed his name from Reza Jangadoz to Rey Jan. He believed that this was a necessary step to enable him to "move on" from his past for two reasons. First, given his concern that patients might discover the details of his deregistration, to re-build his professional reputation. Second, his concern that in the future his children might discover his past indiscretions and lose respect for him; 6. states that if reinstated he intends to work in his own dental practice, Glenhaven Dental, and hire other dentists to work alongside himself. Moving forward, he will be arranging mentoring sessions with Dr Kelsey on a monthly basis for 12 months; 7. states that he recently had applied to the Canadian Dental Board to be registered as a dentist. He claimed that he had been "completely transparent" about his deregistration in Australia; 8. states by way of reflection: "On reflection, I have made an incredible mistake in my life which has caused professional and private embarrassment to myself and my family. … I feel incredibly guilty about how I have acted and understand that the consequences I have faced were appropriate for my actions. … I also feel incredibly apologetic towards the patients who were involved both directly and indirectly in my offending behaviour. I now understand how much harm exploiting the doctor-patient relationship can cause patients. Not only does it compromise their ongoing medical care, but it also undermines the trust that patients and the wider community have in their doctors and can cause them profound psychological harm. … … I now want to prove to my family and community that I accept I have made mistakes in my conduct and that I want to have a second chance to prove that I have changed. I am determined to be able to once again support my family and my children's education as well as being able to give back to my community through my profession." The 24 August 2020 Jan affidavit 1. In the 24 August 2020 Jan affidavit which was filed in the Supreme Court proceedings the applicant relevantly: 1. sets out information about the 26 March 2020 hearing including that he found it very difficult to understand, comprehend and properly respond to questions; 2. explains that he did not retain a copy of the documents he submitted to the Canadian Dental Board; 3. annexes the clinical notes of Mr Fordyce for his 13 appointments, and explained why he did not provide these clinical notes at the 26 March 2020 hearing. The 14 September 2020 Jan affidavit 1. In the 14 September 2020 Jan affidavit which was filed in the Supreme Court proceedings the applicant in substance summarises and updates the 14 October 2019 Jan statement, and sets out similar information about the 26 March 2020 hearing as he had expressed in the 24 August 2020 Jan affidavit. The 22 March 2021 Jan affidavit 1. In the 22 March 2021 Jan affidavit which was filed in the Supreme Court proceedings the applicant relevantly: 1. sets out information about the continuing professional development he undertook from 30 November 2020 to 17 February 2021; 2. sets out information about the session on 17 February 2021 he had with Mr James Duguid (Mr Duguid), a psychologist, and states he intends to continue to consult with Mr Duguid regularly on a monthly or bimonthly basis; 3. annexes the report of Dr Kelsey dated 5 March 2021 (the 5 March 2021 Kelsey report), and confirms that, insofar as it might be a condition of his reinstatement that one or more of Dr Brown, the Supreme Court and the Tribunal are to be engaged in concert with Dr Kelsey for a mentoring plan, he is willing to engage in that plan to the best of his endeavours. The 1 June 2021 Jan statement 1. In the 1 June 2021 Jan statement the applicant relevantly: 1. sets out information about the continuing professional development he undertook on 14 and 15 May 2021; 2. states that he continues to attend Mr Duguid for treatment with the most recent session on 21 May 2021, and if he is reinstated he intends on continuing his attendances to Mr Duguid into the foreseeable future; 3. states that if he is reinstated he is willing to engage in mentoring with Dr Kelsey; 4. states by way of reflection: "15 The past five years have been very challenging for me. I have learnt a lot about myself. Most importantly, I have sought to improve my shortcomings as a professional and as a person. 16 For a period of time following my deregistration, I found it difficult to accept my shortcomings and did not appreciate the work involved in addressing the problems I faced. 17 Over the past two years, I can confidently say that I have placed a real focus on engaging in the process to better myself as a person and as a professional. In particular, the treatment I have received from LSC Psychology and Bluebird Psychology has been of immeasurably importance. 18 With the benefit of hindsight, and in light of the treatment I have received, I can now appreciate, and accept, that the decision making which led to my deregistration was unacceptable and a cause for concern for the public. 19 Over the past two years I have applied a clear focus toward improving my shortcomings in ethical decision making. With the treatment and guidance I have received, I am confident that, if I were given an opportunity to return to practice, that I would appropriately uphold professional boundaries in my practice as a dental practitioner. 20 I am very remorseful for the actions which led to my deregistration. 21 I never want to be in this situation ever again." The 9 July 2021 Jan statement 1. In the 9 July 2021 Jan statement the applicant relevantly: 1. sets out information about the continuing professional development he undertook on 31 May 2021, 1 and 18 June 2021, and 7 July 2021; 2. states that he continues to attend Mr Duguid for treatment with the most recent session on 7 July 2021, and annexes a report of Mr Duguid dated 7 July 2021. The 15 July 2021 Jan statement 1. In the 15 July 2021 Jan statement the applicant relevantly: 1. states that he is presently a dental manager at Glenhaven Dental Practice, and in this role is responsible for all marketing, social media, payroll, inventory, administrative matters and general business operations; 2. annexes a heads of agreement between Mr Afshin Alizadeh (Mr Alizadeh) and himself which provides for the registration of a company called Dental Pioneer Services Pty Limited (Pioneer) in which entities controlled by Mr Alizadeh and himself will have a 51% and 49% share respectively, and a business plan whereby: 1. Pioneer is to lease premises at Castle Hill to operate the dental practice; 2. Mr Alizadeh is to be employed as the dental manager. Mr Alizadeh is an overseas qualified dental practitioner who does not wish to practise in Australia and is presently on a conditional business visa which requires him to invest in an Australian company in order to maintain his visa status; 3. three dental chairs will be operated at the premises; 4. two to three dental practitioners on a fulltime basis along with two dental technicians will be employed; 1. confirms that he is willing to abide by any condition, in the short term, that he will not work as a dental practitioner in a sole practice and will be willing to work with other dental practitioners, a practice manager, such as Mr Alizadeh, and a number of dental technicians, as contemplated by the business plan for Pioneer. The oral evidence of the applicant Examination in chief 1. In his examination in chief the applicant: 1. as to the conduct that brought him before the Tribunal in 2016 and the Local Court in 2017 said (Tcpt, 16 July 2021, pp 7(49)-8(5)): "A. Yes. I accept my mistake and I feel terrible about what I did and I feel responsible for all my mistake. I'm completely sorry for everything I've done. 1. provided the following explanation as what it would mean for him in a professional sense to be reinstated and be able to resume practice as a dentist (Tcpt, 16 July 2021, p 8(8)-(14)): "A. I think the main priority for me to be honest, to be honest duty and responsible to all my patient and to my professional colleagues and all the society. I tried to be - I try to back to the society humble, be a better person. I would try my hardest to act, think and behave ethically." 1. provided the following explanation as what it would mean for him personally and to his family if he were able to resume practice as a dentist (Tcpt, 16 July 2021, p 8(16)-(21)): "A. Of course not only is very important to actually support my family as a family man also my priority is I try to restore trust that I lost it between me and my society and my patient and is very hard to say sorry, apology, but I do my best way to restore this trust back again hopefully." Cross-examination 1. The applicant gave extensive oral evidence in cross-examination in relation to conditions that might be imposed on his registration in the event we decided to grant his application for reinstatement. In view of the agreement of the parties as to proposed conditions in this eventuality we have not summarised this part of the applicant's cross-examination. 2. In cross-examination the applicant: 1. admitted that In 2013 he understood that he could not have a relationship with a patient (Tcpt, 16 July 2021, p 10(8)-(10)); 2. admitted that he knew following the decision of the Tribunal in June 2016 he was not to practise as a dentist (Tcpt, 16 July 2021, p 10(48)-(50)); 3. gave the following evidence in relation to supervision of him by a dentist to be employed at Pioneer (Tcpt, 16 July 2021, p 16(20)-(40)): "Q. Sir you would agree with me when someone is employed by an entity associated with you or contracted to an entity associated with you then it wouldn't be appropriate for such a person to supervise you? A. Why not? …. Q. You don't see any possible conflict of interest there sir? A. No. That's the reason why you pass the ethical okay. One of the part of ethic is don't conflict of interest. Q. Notwithstanding all of the sessions and training you've done in ethics, you don't see any potential conflict of interest in having a subordinate supervise you? A. No if I follow the dental ethic protocol and responsibility about what we do either he or she also do the same thing I don't think so." 1. attributed his offending behaviour after his deregistration to embarrassment at telling the truth, his initial lying about having sexual intercourse with Patient A to embarrassment, and his change of name in part to embarrassment (Tcpt, 16 July 2021, p 31(5)-(27)). He contended that this behaviour was in the past (Tcpt, 16 July 2021, p 32(36)-(44)): "Q. Sir I want to suggest to you that when it comes to a choice between avoiding embarrassment and telling the truth, your history shows that you've chosen to avoid embarrassment, that's true isn't it? A. Yes sir but I believe past is past. What I done after that I agree completely with you, I've done a terrible mistake. What I did is okay I done mistake and I will try my hardest that you can imagine to actually learn, educate, have a mentor and also how I can deal that's I guarantee you sir is not going to happen again. There is zero chance okay. I understand what you say yes it was embarrassment. It's nothing that I could proud sir." 1. gave the following evidence about his shortcomings (Tcpt, 16 July 2021, p 35(7)-(8), (32)-(38)): "Q. And what were those shortcomings and ethical decision making? A. Because of the lack of knowledge that I had. … Q. Sir other than a lack of knowledge you can't identify any other aspects of a shortcoming in your ethical decision making, is that right? A. Lack of knowledge and also how you deal that's why I say one of my issue it was I couldn't say no to people. That after all education, that after all the mentoring, after all the psychologist treatment that I still need I can't be a big no to anyone okay. I don't let people to pass the border, I don't let anyone to pass this boundary around me okay." Tribunal questions 1. In answer to questions by the Tribunal the applicant: 1. gave the following evidence about his past mistakes (Tcpt, 16 July 2021, pp 36(48)-37(29)): "Q. Mr Jan, you've spoken about your past mistakes, would you be able to just list the mistakes that you've made as you see them? A. Yes. The first mistake regarding the Patient A is of course having personal relationship with the patient and passing personal information, pass the ethical boundaries and having sexual relationship with the Patient A. And regarding the mistake that I done second time for Patient B is I wasn't honest to Patient B, I've done a dental treatment at the time that I didn't have a licence or my licence was suspend - or the registration. But that's why I accept to do a treatment for the Patient B. Q. How do you view your contact with Patient A and asking her to withdraw her complaint? A. Regarding Patient A is - when I actually - as I said when I saw actually she lodge the complaint and I was - I was in shock and also I was sad also to someone lodge a complaint against you regarding this type of manner. And to be honest that's why I said I tried to send her maybe a few email about please you know forgive me, apology and just as like you know begging someone. Until her friend and also she contact me and without my permission actually they record my voice, and they ask for like - if you pay me $35,000 and I withdraw my complaint. And I have all the evidence actually, she got paid by personal cheque, the name is under - her name is actually on the cheque. But still after that she continued to complain and that's everything what happened before. Q. In light of your ethical education or education around ethics and professionalism, how do you view asking the patient to withdraw her complaint? A. Of course it's not acceptable, member, it's not acceptable. First of all I shouldn't contact because if someone lodge a complaint there's no way you can contact them because sort of look like you try to influence someone to mask your mistake, okay, or to cover your mistake. It wasn't acceptable and apology and I did mistake, I shouldn't." 1. said in relation to his practice in Glenhaven that the fees are paid into his bank account, he owns the equipment, and he holds the lease on the premises (Tcpt, 16 July 2021, pp 37(44)-38(8)). He then provided the following reflection on power in the practice (Tcpt, 16 July 2021, p 38(9)-(22)): "Q. In light of that, and subsequent to your education about ethics, how do you view the power relationship in that practice? A. That's also how we operate here is I don't dictate, technically I'm a provider. For example if a dentist needs some specific matter, just pass it to me and I provide it. But as an influencer or say do this or don't do it, I don't do it at all. To be honest he has a kit(?), and he comes any time wants and he leave any time he wants, okay? He organise, he contact with the patient data kit(?), and I'm not involved with that. I have like a small table at the back in different room. And I just - that's why I said my main job here is the social media marketing and also just receive the invoices and - I actually look like a bookkeeper also too, I put everything in the software that we have. But as to who has the power, I'm not involved with that. He works completely independent." Dr Brown The 21 March 2018 Brown report 1. In the 21 March 2018 Brown report Dr Brown expresses the following opinions: "3. Does Mr Jangodaz have reasonable insight into his past professional conduct issues as follows? a) The professional boundary violation and matters concerning it identified by NCAT in its decision dated 3 June 2016; Mr Jangodaz currently expressed the view that he had come to a full understanding of the inappropriate nature of the contact with his former patient during 2013. Based on him having undertaken training in various ethics courses Mr Jangodaz described having developed an awareness of boundary violations in professional practice and the reasons why inappropriate contact between practitioners and patients cannot be allowed. However, some concerns are outlined by Ms Sannibale, who assessed Mr Jangodaz in both November and December of 2017. In relation to comments that Mr Jangodaz was attending for the "purpose of being seen to do the right thing" that his attendance would "look good" and "tick off one of the requirements it is possible that Mr Jangodaz is reporting, because of an awareness of the purpose of the current assessment, what he understands he would be expected to say to be granted re-registration. Moreover, Mr Jangodaz's comments to Ms Sannibale that the issues which had affected him were a matter of "bad luck" are also of concern, in relation to whether he has fully taken responsibility for his actions. Although it is possible that he has thought more carefully about the "right things" to say in the current assessment Mr Jangodaz nonetheless provided comments which are more reassuring. Mr Jangodaz indicated that because of a lack of awareness of training and boundary violations in his country of origin, but also because of his newfound understanding of the damage caused both to his patient and to his own reputation and livelihood, he does not believe he would re-offend in a similar fashion. Moreover, Mr Jangodaz spoke in some detail about how he plans to behave so as to prevent any similar issues arising again in his contact with patients. In the NCAT decision of 3 June 2016 concerns were raised that whilst Mr Jangodaz expressed himself as willing to commit to professional mentoring undertaking training in ethics and boundaries and pursuing psychological counselling he had not done any of those things by the time of the hearing, two years after the complaint. Mr Jangodaz's report of not having been informed by his previous legal counsel of the importance and relevance of pursuing options of this type cannot be determined as truthful on the basis of a psychiatric examination. However, Mr Jangodaz has very recently made efforts to establish counselling sessions with a treating psychologist,with whom he believes he would feel comfortable to discuss any potential boundary violations. It will probably not be possible to know whether Mr Jangodaz's currently expressed newfound awareness and determination not to offend in the same fashion will be borne out in clinical practice until he returns to his profession. However, he did not offer any comments which currently raise concern about a lack of awareness of his wrong-doing or that he has any misunderstandings about the importance of maintaining professional boundaries. b) the holding out as to registration offences under Section 116(l)(c) of the National Law Mr Jangodaz currently explained that feelings of shame and embarrassment about his deregistration had led to him not informing staff about his outcome, subsequent to which he provided treatment to a patient on a single occasion. Mr Jangodaz impressed as having "reasonable insight" into this particular past conduct issue, if the history he provided is accepted as being a genuine representation of his remorse and acceptance of this particular offence. c) the provision of dental treatment to family members whilst deregistered Mr Jangodaz did not specifically provide history about this issue. However, your Letter of Instruction indicates that in June 2016 he filled his 11 year old son's baby tooth and he provided a scale and clean for his sister-in-law in December 2016. These particular two incidents suggest that during 2016 Mr Jangodaz had still not come to a better understanding of the broader implications of his deregistration. The Schedule of Continuing Professional Education indicates that much of the training undertaken by Mr Jangodaz occurred during 2016 but had seemingly, at that stage, not been taken on board by him. If Mr Jangodaz's statements at the current time are accepted he has since acted only in a Practice Manager role. 4. Would Mr Jangodaz benefit from any psychiatric or psychological treatment in response to any knowledge/understanding deficiency or impairment you have identified? Although Mr Jangodaz is not formally mentally unwell or impaired he could nonetheless benefit from attending psychological counselling to discuss professional boundary issues, particularly as they arise in any return to practice. He would be advised to attend up to eight sessions of counselling. If Mr Jangodaz attends only for the purpose of regaining registration treatment of this type is unlikely to be helpful. However, if his current comments are accepted as being genuinely offered Mr Jangodaz could make good use of sessions of counselling to discuss any potential issues which arise in his dealing with patients. He would not warrant psychiatric counselling or be recommended to trial psychotropic medications. 5. Would Mr Jangodaz benefit from any further education in response to any knowledge/understanding deficiency or impairment you have identified? Mr Jangodaz has undertaken broad-based training in ethics and professional boundary issues. He did not impress as now lacking knowledge in relation to boundary violations and rather, support from a counsellor as he negotiates any return to practice would probably be more beneficial than gaining more intellectual insight from further educational efforts. 6. Whether from a psychiatric perspective Mr Jangodaz would be unable to practice the profession of Dentistry competently and safely and, if not, the reason for that inability and how it may be addressed? No psychiatric issues have been identified on the basis of the current assessment or a review of the documents which indicate that Mr Jangodaz would not be able to practice dentistry competently and safely. It would be appropriate that he remain under professional supervision from a senior colleague during at least the first year of any return to practice, so as to monitor his capacity to translate an intellectual understanding and knowledge of boundary violation issues into safe and appropriate practice in a clinical setting. However, no current issues of concern have been raised from a psychiatric perspective." The 7 August 2019 Brown report 1. In the 7 August 2019 Brown report Dr Brown expresses the following opinions: "1. Whether, upon examination, you consider there to be any difference in the presentation of Mr Jangodaz from your previous examination especially in relation, but not limited to, any "impairment" as defined by the National Law, that Mr Jangodaz may have? If so, please detail any changes Mr Jangodaz impressed as having gained further insight into aspects of his behaviour which contributed to his de-registration. In addition to him accepting that his behaviour was inappropriate and unprofessional, Mr Jangodaz believes that he has personally matured and is now highly aware of the potential risks of boundary violations in dental practice. At the time he was assessed in March 2018 Mr Jangodaz was not considered to be suffering from a psychiatric or substance abuse disorder and nor was he detected as having an impairment as defined by the National Law. As he currently presents, Mr Jangodaz does not have any significant psychological disturbance and expressed only an expected level of anxiety about whether he will be able to return to work as a dentist. He has maintained an active daily lifestyle and has recognised the importance of keeping balance in various parts of his life. He has paid good attention to his health and is actively involved with friends and family. He has undertaken extensive training in ethical issues and has also made use of psychological counselling sessions to discuss the boundary violations, healthy coping mechanisms and strategies to deal with any further issues which might arise in dental practice. 2. In the event that Mr Jangodaz has any "impairment" as defined by the National Law (assuming he is granted registration as a dental practitioner) any conditions which would be appropriate to place on his registration in response to that impairment Mr Jangodaz has not been considered to have any current impairment. If he is granted reregistration as a dental practitioner, recommendations to assist his return to work would include attendance to four times yearly sessions with his treating psychologist over the next two years and monthly supervision by a senior colleague. Whether Mr Jangodaz is correct in assuming that he would not be able to gain employment in a group practice has not been tested. Ideally, it is preferable for any de-registered professional to at least initially return to work with other colleagues, both for their provision of support but also to detect any concerns about their practice or behaviour. However, Mr Jangodaz is firmly of the view that he would prefer to work with one other colleague in a practice he is fitting out currently. Because he would be working different times to any other dentist in the same practice, he would be advised to attend supervision with a senior colleague on a monthly basis for a year and then second monthly during a second year of practice. 3. Upon examination, do the opinions expressed in your previous report accord with your present opinion/s especially in relation, but not limited to, Mr Jangodaz's insight into his past professional conduct issues? Some comments in relation to this issue have already been outlined. Mr Jangodaz has reportedly developed a higher level of insight into the professional conduct issues which contributed to his de-registration. He has made strenuous efforts to undertake appropriate training and education in ethical issues. He has also sought out mentoring in various settings, including having attended a number of sessions with an Ethics Centre consultant. This training would have dealt with any lack of knowledge or awareness about how to manage potential boundary violations in dental practice. Mr Jangodaz also impressed as being now very aware of the risks to his reputation and earning capacity in the future should conduct issues arise in the future. 4. Do you consider Mr Jangodaz requires any psychiatric or psychological treatment in response to any knowledge/understanding deficiency or impairment you have identified during your examination? Although Mr Jangodaz does not suffer from a psychological disorder, any return to dental practice is likely to be a stressful time for him. Because he recognises the benefits from talking to a counsellor the aforementioned sessions with his treating psychologist would be recommended as part of a transition process in returning to work. However, further treatment would be more based on providing him with support rather than being required in response to any lack of knowledge, understanding deficiency or impairment. 5. Would Mr Jangodaz benefit from any further education in response to any additional knowledge/understanding deficiency or impairment you have identified? Mr Jangodaz has undertaken very extensive training in ethical and boundary violation issues and would not be expected to gain any additional benefit from attending further education of this type. Rather, discussion of any potential boundary violations could be undertaken in the recommended psychological counselling and supervision sessions. 6. Whether from a psychiatric perspective Mr Jangodaz is fit to return to dental practice? In my opinion, Mr Jangodaz is fit to return to dental practice. He has made effective use of the de-registration period to undertake further education in both technical and ethical issues. Accepting his history as being an accurate reflection of his beliefs Mr Jangodaz has developed maturity and insight into the reasons for his de-registration and has also developed a number of coping strategies which are likely to be protective against any further conduct issues." The oral evidence of Dr Brown Examination in chief 1. In her examination in chief Dr Brown: 1. noted that she had not seen the applicant since July 2019, and she is unaware of his situation since that time (Tcpt, 16 July 2021, p 24(16)-(20)); 2. stated, on the assumption that the applicant has undertaken a number of professional development courses and is undertaking counselling on an ongoing basis with a psychologist, that these assumptions would not cause her to change her opinions in the 21 March 2018 Brown report and the 7 August 2019 Brown report (Tcpt, 16 July 2021, p 24(22)-(36)). Cross-examination, re-examination and Tribunal questions 1. Dr Brown gave evidence in cross-examination, re-examination and in answer to questions of members of the Tribunal in relation to conditions that might be imposed on the registration of the applicant in the event we decided to grant his application for reinstatement. In view of the agreement of the parties as to proposed conditions in this eventuality we have not summarised this part of Dr Brown's evidence. Dr Kelsey 1. In each of the 16 March 2019 Kelsey report and the 5 March 2021 Kelsey report Dr Kelsey states that he is willing to mentor the applicant should he be reregistered as a dentist. In his oral evidence Dr Kelsey substantially expanded on his qualifications and experience to mentor the applicant in the event we decided to grant his application for reinstatement. In view of the agreement of the parties as to proposed conditions in this eventuality we have not summarised the written or oral evidence of Dr Kelsey. The submissions of the parties The submissions of the applicant in chief 1. Mr Hourigan made the following oral submissions in chief on behalf of the applicant: 1. the application for reinstatement of the applicant is not premature. He has taken appropriate time to fully and thoroughly address the issues that gave rise to firstly his deregistration in June 2016, and then the further issues that arose and gave rise to the Local Court proceedings in mid-2017; 2. the applicant's approach both to his psychological development, therapy and insights, linked with the extensive continual training both of technical but also ethical matters, as have been referred to and commented on by Dr Brown and Dr Kelsey, would put him in a position to undertake reregistration; 3. Dr Brown in both her reports does not identify any psychiatric or psychological issues that would inhibit the applicant's reregistration and in the 7 August 2019 Brown report she clearly expressed and in her oral evidence affirmed that the applicant is fit to return to dental practice albeit with the supervision provisions, and has made effective use of the period to undertake further technical and ethical education; 4. the applicant is not to be further punished for his previous indiscretions. The Tribunal can be satisfied that any residual risk can be managed, that risk never being able to be completely addressed by reason of the scepticism that arises inherently because of his previous conduct, as suggested by Dr Brown, by a period of supervision; 5. the applicant has provided further evidence to address the absence of material from Mr Fordyce and reliable supporting material in relation to the application of the applicant to Canadian Dental Board to be registered as a dentist which was referred to by the Tribunal in Jan v Health Care Complaints Commission [2020] NSWCATOD 75 at [59] and [63]; 6. as egregious as the applicant's offending conduct was that saw him deregistered in mid-2016, as problematic as his further conduct was in not admitting to a number of people that he had been deregistered, and undertaking treatments that gave rise to the Local Court proceedings in mid-2017, the steps he has since then taken over a lengthy period of time and the commitment that he has shown to ethical and professional and continuing education ought see him given the opportunity to be reregistered having regard to the very severe nature of the penalty that he has faced, that is now effectively a five year suspension from practice. Through the opportunity to re-engage as a dentist, the applicant can contribute materially both to the community in that regard, to his family, but to his own self-worth and benefit as a dentist. It is not suggested that he be permitted to do so without some sort of supervision and fall back provisions that the Tribunal may consider appropriate; 7. the costs of the proceedings should follow the event. At all times the applicant's readmission has been opposed without suggestion of appropriate conditions on being reregistered. It is not appropriate to distinguish between the costs before and after the Supreme Court proceedings. The submissions of the respondent The respondent's 16 July 2021 submissions 1. In the respondent's 16 July 2021 submissions the respondent drew attention to the following observations of Leeming JA in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [44]-[46], [74]: "[44] Even so, the plaintiff deceived his staff and patients about being deregistered for at least seven months from 2016. In late 2017, Ms Sannibale made notes which are difficult to reconcile with an acknowledgement of his wrongdoing. The plaintiff accepted that his change of name in January 2018 was to conceal the truth from his patients and his children. [45] There is thus a period of some 3½ years from the making of the complaint in May 2014, to his deregistration in June 2016, his convictions in September 2017, his consultation with Ms Sannibale in late 2017 and his change of name in January 2018 when the plaintiff was concealing the truth. [46] It is obvious that a barrier to rehabilitation and insight will occur when a deregistered dentist takes active sustained steps to deceive his staff and patients of that fact over a period of months. That sustained deception is hard to reconcile with an acknowledgement of wrongdoing and a sincere and genuine attempt to reform. [74] The plaintiff's historical misconduct is very serious. In my view, the circumstances surrounding the sexual relationship with a patient, and his attempts (which at one stage succeeded) to have her withdraw her complaint, are far removed from the bottom end of the range. The ongoing deception of staff and patients after his deregistration is in some ways even more concerning, insofar as it suggests at best a failure to acknowledge and have insight into his obligations and responsibilities." The oral submissions of the respondent 1. Mr Britt made the following oral submissions on behalf of the respondent: 1. the respondent continues to oppose the reregistration of the applicant; 2. despite five years to ponder his conduct, the applicant showed a lack of understanding of his mistakes in answer to questions from the Tribunal; 3. despite having undertaken numerous courses in ethics, the applicant did not see a conflict of interest if those people who in essence depend upon him to pay their remuneration supervised him; 4. when it comes to a choice between avoiding embarrassment and doing the right thing the applicant choses to avoid embarrassment rather than do the right thing; 5. the applicant has a defect of character. Where one has a defect of character, where one is seeking to avoid embarrassment it is hard to tailor a condition to avoid that occurring so as to ensure the protection of the health and safety of the public; 6. the applicant has not provided the clear proof that is necessary to establish a reformation of character. It is simply not there. On that basis the application of the applicant should be dismissed and the applicant ordered to pay the respondent's costs of the proceedings; 7. if the Tribunal decides to reinstate the applicant, then conditions should be imposed; 8. if the Tribunal decides to reinstate the applicant and imposes conditions, then the applicant should pay the respondent's costs of the proceedings and relies on Ake at [45]-[53]. The submissions of the applicant in reply 1. Mr Hourigan made the following oral submissions in reply on behalf of the applicant: 1. where does the displacement of the past lie if it is always to be held against the applicant; 2. while acknowledging that the applicant is prone to give answers that seek to explain his position and explain what happened, when put squarely to him he said "100%, I acknowledge I did the wrong thing", both in relation to the conduct that led to his deregistration and the following issues that led to the Local Court proceedings; 3. In relation to saying no to people, the applicant's evidence was not that he cannot say no to people; it was that he could not say no to people in seeking to explain how some of the circumstances that saw him deregistered and then also before the Local Court proceedings came to pass. The corollary was that he now has learnt and been armed with the tools by way of his education, ethical training and steps that he has taken to actually say no and control those things. The proposed agreed conditions in the event the applicant's application for reinstatement is granted 1. The proposed agreed conditions in the event the applicant's application for reinstatement is granted are in the following terms: "Public Conditions 1 To practise only in a group practice that is not owned by the Applicant 2 To practise under Category A supervision in accordance with the Dental Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body a. Not to practise until a supervisor has been approved by the Dental Council of NSW. b. Supervision is to occur for a period of 12 months, and at any further period determined by the Dental Council of NSW c. To authorise the Dental Council of NSW to provide proposed and approved supervisors with a copy of full conditions, and any relevant decision or report 3 The Applicant is to submit to an audit of his practice, by a random selection of his records by a person or persons nominated by the Dental Council of NSW and: a. the audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council. b. The auditor(s) is to assess his compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct c. The audit(s) is to confirm compliance with his conditions and any relevant standards, codes and guidelines. 4 Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. Private Conditions 1 The Applicant is to continue to attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; or iii. a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating psychologist; c. must provide evidence to the Council of his attendance with the treating psychologist within 1 month from recommencement of practice." Consideration Whether the applicant should be reinstated 1. We agree with the assessment of Leeming JA in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [74] that the historical misconduct of the applicant is very serious, and the circumstances surrounding his sexual relationship with a patient, and his attempts (which at one stage succeeded) to have her withdraw her complaint, are far removed from the bottom end of the range. Further, we agree with the assessment that the ongoing deception of staff and patients after his deregistration is in some ways even more concerning, insofar as it suggested at best a failure to acknowledge and have insight into his obligations and responsibilities. 2. We do not accept the respondent's submission that the applicant is presently unfit given a defect in character. While the applicant was previously too embarrassed to disclose his deregistration to his family, staff and patients, we are satisfied that the applicant has taken sufficient and appropriate steps to develop insight into his previous motivations and misconduct, and that he recognises his responsibility to actively safeguard against future misconduct. 3. Having considered all the evidence, we are satisfied that the risk of the applicant reoffending is low for the following reasons: 1. we accept that the applicant has insight as the circumstances of his offending. While the respondent drew attention to the failure of the applicant to be able to list his past mistakes without prompting in answer to a question from the Tribunal, it is inappropriate to view this evidence in isolation. Throughout his oral evidence the applicant accepted without reservation his various mistakes; 2. we also accept that the applicant is remorseful for the distress he caused his patient and other people including his family. The focus of the applicant in his evidence on re-establishing his damaged financial position does not indicate he lacks genuine remorse as to the harm he has caused to others by his conduct; 3. the experience of having been deregistered and having been barred from practice is likely to have a strong deterrent effect on the applicant. 1. We are satisfied that, in the light of our finding the risk of the applicant reoffending is low, that the applicant is a fit and proper person to be registered, and that it is appropriate to order that he may be registered as a dentist in accordance with Part 7 of the National Law if the conditions for the making of a reinstatement order as defined in s 163B(3) are satisfied. What conditions should be imposed on the applicant's registration if he is reinstated 1. Given the very serious nature of his historical misconduct, and his subsequent deception of staff and patients after his deregistration, we are also satisfied that it is appropriate that conditions be placed on his registration. 2. We regard the nature of the proposed conditions by the parties as being appropriate. However, we have been concerned by the failure of the applicant to recognise the clear conflict of interest if he were to be supervised by a dentist working for him or an entity in which he had an interest. Notwithstanding the various courses in ethics he has undertaken, we are satisfied that it will be necessary for the applicant to practise under Category A supervision for a minimum period of 2 years rather than 12 months as proposed by the parties. The costs of the proceedings 1. Having regard to the principles in Ake at [46]-[51] we are satisfied that the applicant should pay the respondent's costs of the proceedings. There are no exceptional features that would warrant a departure from the principle that the applicant should pay the costs of the respondent in reinstatement proceedings. The respondent properly drew to the attention of the Tribunal all material relevant to the proper consideration of the applicant's application. Orders 1. We make the following orders: 1. Pursuant to s 163B(1) of the National Law, the applicant may be registered as a dentist in accordance with Part 7 if the conditions for the making of a reinstatement order as defined in s 163B(3) are satisfied; 2. Pursuant to s 163B(4) of the National Law, the following conditions are imposed on the applicant's registration in the event that a reinstatement order is made: 1. the applicant is to practise only in a group practice that is not owned by the applicant; 2. the applicant is to practise under Category A supervision in accordance with the Dental Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body as follows: 1. the applicant is not to practise until a supervisor has been approved by the Dental Council of NSW; 2. supervision is to occur for a period of 2 years, and for any further period determined by the Dental Council of NSW; 3. the Dental Council of NSW is authorised to provide proposed and approved supervisors with a copy of the full conditions, and any relevant decision or report; 1. the applicant is to submit to an audit of his practice, by a random selection of his records by a person or persons nominated by the Dental Council of NSW as follows: 1. the audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council; 2. the auditor(s) is to assess his compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct; 3. the audit(s) is to confirm compliance with his conditions of practice and any relevant standards, codes and guidelines; 1. sections 125 to 127 of the National Law are to apply should the applicant's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board; 2. the applicant is to continue to attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The applicant: 1. is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating psychologist; 2. must provide evidence to the Council of his attendance with the treating psychologist within 1 month from recommencement of practice; 1. the applicant is to pay the costs of the respondent as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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 Amendments 28 September 2021 - Order (2)(d) amended on coversheet and [62] pursuant to s 63 of NCAT Act. 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 September 2021