Health Care Complaints Commission v Somaey (No 2) [2021] NSWCATOD 190

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Somaey (No 2) [2021] NSWCATOD 190 Hearing dates: On the papers Date of orders: 25 November 2021 Decision date: 25 November 2021 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr A Lang, Senior Member Dr E Peel, Senior Member S Lovrovich, General Member Decision: We make the following orders: (1) the respondent is reprimanded; (2) the respondent is suspended for a period of three months; (3) the following conditions are imposed on the respondent's registration on the expiry of the suspension referred to in order (2) above: (a) the respondent is not to undertake solo dental practice; (b) the respondent is not to undertake locum positions; (c) the respondent is to practise only in a practice approved by the Dental Council of New South Wales (the Dental Council) where there is at least one dental practitioner excluding herself as follows: (i) where the patients and patient records are shared between the dental practitioners; (ii) where there is always one other registered dental practitioner on site; (iii) which is an accredited practice; (d) the respondent is to practise under category B supervision in accordance with the Dental Council's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body, and is to: (i) nominate the supervisor to the Dental Council within three months of the date of this decision; (ii) at each meeting review and discuss her practice with her approved supervisor with particular focus on hygiene and infection control, record keeping practices and patient communication; (iii) authorise the supervisor to provide a record of contact with her summarising the matters discussed and an assessment of her professional knowledge of prescribing, sedation and record keeping; (iv) ensure that the supervisor provides a report, co-signed by her, to the Dental Council at least every month; (v) authorise the supervisor to inform the Dental Council if the supervisor has any concern about her professional conduct or personal wellbeing; (vi) be responsible for any costs associated with the supervision process; (vii) authorise the Dental Council to provide proposed and approved supervisors with a copy of the stage 1 decision and this decision; (viii) in the event that the approved supervisor is no longer willing or able to continue as a supervisor, nominate another supervisor for approval by the Dental Council within 14 days of cessation of the previous relationship or cease practise until such time as a new supervisor has been nominated and approved; (e) the respondent is to submit to an audit of her practice, by a random selection of records, by a person or persons approved by the Dental Council as follows: (i) the audit is to be held within three months from the resumption of dental practice and subsequently as required by the Dental Council; (ii) the auditor(s) is to assess her compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct and compliance with these conditions; (iii) the auditor(s) should pay particular attention when reviewing a selection of the clinical notes of the respondent to the medical history of the patient including any update on current medications, any overall treatment plan of the patient including alternatives and potential complications, the signed consent of the patient to any procedure, details of the sterilisation of any instruments (batch numbers) used in any procedure, and if medications are prescribed, the name, dosage and administration of the medications; (iv) she is to ensure the auditor(s) provides a report to the Dental Council in the form required by the Dental Council; (v) she is to be responsible for all costs associated with this condition; (f) the respondent is to complete within 12 months of the date of this decision courses on dental hygiene and infection control, dental record keeping, and ethics, approved by the Dental Council as follows: (i) within three months of the date of this decision she is to provide evidence to the Dental Council of her enrolment in each of the abovementioned courses; (ii) within one month of completing each of the abovementioned courses, she is to provide documentary evidence to the Dental Council that she has satisfactorily completed the courses; (iii) she is to bear responsibility for any costs incurred in satisfying this condition; (g) within seven days of commencing any other employment, the respondent is to forward evidence to the Dental Council that she has provided a copy of the conditions to the principal of that place of practice; (h) the respondent is to authorise the Dental Council to exchange information with current and future persons or organisations at places where she works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions; (i) whilst the respondent's principal place of practice is in New South Wales, the Dental Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW); (j) whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, ss 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Dental Board of Australia; (4) the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — dentist — where dentist is guilty of professional misconduct — what protective orders should be made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 64 Health Practitioner Regulation National Law (NSW), Pt 7 Div 11 Subdiv 2, ss 5, 139B, 139E, 149, 149A, 149C, Sch 5D, cl 13 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Dental Board of Australia, "Code of Conduct for Registered Health Practitioners" (March 2014) Dental Board of Australia, "Guidelines on Dental Records" (2010) (retired) Dental Council of New South Wales, "Compliance Policy – Supervision" (April 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Sahar Somaey (Respondent) Representation: Counsel: C Mitchell (Applicant) J R Young (Respondent)