Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FCE [2021] NSWCATOD 202 Hearing dates: 24 and 25 November 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr K Campbell, Senior Member Dr A Kingon, Senior Member J Houen, General Member Decision: Consequent upon the findings which we have made we make the following orders Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. Suspension 2. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 6 months from the date of this decision. Practice conditions 3. Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration: (1) Not to undertake solo dental practice. (2) To forward evidence to the Dental Council of NSW within fourteen (14) days of returning to practice that she has provided a copy of her full conditions to the Principal of any practice in which she is practicing. (3) To obtain Dental Council of NSW approval before changing the nature or place of her practice. (4) Within fourteen (14) days of a change in the nature or place of her practice, she is to forward evidence to the Dental Council of NSW that she has provided a copy of her practice conditions to the Principal of the practice/s in which she works. (5) To only be employed as a dental practitioner in circumstances where the employer has agreed to notify the Dental Council of NSW of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. (6) To practise under Category B 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) At each meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on workload management. (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. (7) To abstain completely from the consumption of alcohol. (8) To comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: breath testing for alcohol (as varied from time to time) and undergo regular breath testing. (9) Upon commencement of practising as a Dental Practitioner, to comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: EtG screening (as varied from time to time) and attend for random EtG screening (urine). (10) To authorise the testing facility to forward all the results of EtG to: (a) the treating practitioners; and (b) the Council. (11) To attend for treatment by a Psychologist of her choosing. 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 practitioner; and (c) must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice. (12) To attend for treatment by a qualified drug and alcohol specialist (Psychiatrist or Physician) of her choosing. 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 practitioner; and (c) must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice (13) The practitioner is to expressly authorise the treating practitioners referred to in Conditions 11 and 12 to communicate with each other about her treatment and condition. (14) To attend for review by a Council-directed health assessor (Psychiatrist) on a three (3) monthly basis or as otherwise directed by the Dental Council of NSW. The professional costs of the reviews undertaken pursuant to this condition will be met by the Council. (15) To authorise the Dental Council of NSW to forward copies of this decision and any subsequent reports and any other information relevant to her health and treatment to the Council-appointed practitioners, supervisor and to her treating practitioners. (16) To nominate a senior dental practitioner at all locations where the practitioner practises for approval by the Dental Council of NSW. The practitioner is to: (a) provide the approved practitioner with a copy of her health conditions; (b) authorise the approved practitioner to notify the Council immediately if there are any concerns in relation to her health or if the practitioner's health is adversely affecting her capacity to practise; and (c) the nomination must be made within fourteen (14) days of commencing practice as a Dental practitioner, or commencing at a new practice location (17) To authorise and consent to any exchange of information between the Dental Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Review 4. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Dental Council of NSW when the respondent has a principal place of practice in NSW. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Dental Board of Australia. Costs 6. The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: OCCUPATIONS – dental practitioner had impairment of Alcohol Abuse Disorder – failure to comply with practice conditions concerning alcohol testing regime – held constituted professional misconduct – finding of continued impairment – registration suspended and practice conditions imposed upon resumption of practice – costs order made. Legislation Cited: Health Practitioner Regulation National Law NSW ss 3A, 5, 139B, 139E, 144(c), 149A, 149C Cases Cited: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Sun [2016] NSWCATOD 80. Texts Cited: Code of Conduct published by the Dental Board of Australia Category: Principal judgment Parties: Health Care Complaints Commission (applicant) FCE (respondent) Representation: Counsel: Dr P Dwyer (respondent) Solicitors: Health Care Complaints Commission (applicant) Meridian Lawyers (respondent) File Number(s): 2021/00025050 Publication restriction: The publication of the name of the respondent and the publication of any information, picture or other material that identifies the respondent or is likely to lead to her identification other than to the Australian Health Practitioner Regulation Agency and to the Dental Council of NSW is prohibited. REASONS FOR DECISION Background 1. These proceedings are constituted by an Amended Application filed in the Tribunal by the applicant Health Care Complaints Commission. In that Application the applicant makes a complaint that the respondent named therein is guilty of certain misconduct and has an impairment under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") arising out of her practice as a dental practitioner. In essence, the complaints are that the respondent breached undertakings which she had given to the Dental Council of NSW with respect to the submission of the results of drug and alcohol screening which she had been required to carry out, that she had failed to respond to requests from that Council for the submission of that information and that she has an impairment as defined in the National Law being Alcohol Use Disorder. The Application seeks the making of consequential protective orders. 2. For reasons which shall be shortly referred to, this Tribunal has directed that the name of the respondent be suppressed. As a consequence, the respondent is referred to as FCE, and the provisions of certain documents have been anonymized, including some of the material contained in the Application. 3. The respondent admitted many of the allegations made against her in the Application. In order to facilitate an understanding of the issues in the proceedings, we have set out in the Application extracts from a Reply filed by the respondent where appropriate The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Dental Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT FCE ("the practitioner"), being a dentist registered under the National Law, BACKGROUND TO COMPLAINT ONE The practitioner received her Bachelor of Dental Surgery from Sydney University in 2004. The practitioner was first registered as a dentist on 1 January 2009. From 1 February 2017, the practitioner's registration was subject to an undertaking ('the Undertaking') to the National Board, which included an undertaking (Undertaking 1) in the following terms: "I must undertake breath alcohol testing (breath testing) in accordance with AHPRA's protocol for Drug and Alcohol Screening (the protocol) in force at the date this undertaking is accepted and then as amended from time to time. Breath testing is to occur as follows: a. No more than 30 minutes prior to the commencement of each and every period of practice, and b. No more than 30 minutes after the completion of each and every period of practice, and c. At any time within the practice period as directed by the case officer or breath test supervisor. The word "practice" was defined for the purposes of Undertaking 1 as meaning, among other things, any role whether remunerated or not in which the practitioner used her skills and knowledge as a dentist. This was not restricted to direct clinical care but also extended to the use of a dentist's knowledge and skills in a direct non-clinical relationship with a client. This included such things as management, administration, research and any other roles that impact on the safe effective delivery of services of the profession. The word "period of practice" was also broadly defined for the purposes of Undertaking 1 to commence when the practitioner began any of the activities within the meaning of the word "practice" and ended with any break from these activities of 30 minutes or longer regardless of whether the practitioner was remunerated or not. There could be several such periods during any working day. The AHPRA Drug and Alcohol Screening Protocol (the "DA Protocol") at all material times required that registered practitioners undergoing alcohol breath testing ('ABT') maintain a log book of their tests. Practitioners were required to submit the log book 'at specific intervals, as indicated on the registrant's registration'. The relevant intervals at which the practitioner was required to submit the log book are not set out in Undertaking 1. However, the Undertaking also included a further undertaking ('Undertaking 4') as follows: "Within one (1) month of the notice of this undertaking being accepted, the Practitioner must provide to AHPRA: a. Confirmation, on the approved form (HP5), that they understand the protocol and the monitoring requirements of breath alcohol analysis, b. Confirmation, on the approved form (HPS5), from the Senior Practice Manager/owner (the senior person) at each place of practice that they are aware AHPRA may contact them for the purposes of monitoring the Practitioner's compliance with this condition" The approved HP5 form contained a declaration from the practitioner that included the following: "4. In relation to breath alcohol testing and recording of results, I understand: a. when a breath alcohol test is required b. that every breath alcohol test must be administered by an approved breath alcohol test supervisor c. I am required to keep a breath analysis logbook on the form provided d. I am required to return the logbook as requested by my case officer, and e. I am required to provide evidence of my actual work hours for a specified period as required by my case officer" From July 2017 to January 2019, the practitioner submitted monthly log books to the National Board at the end of calendar month in which she practised as a dentist. From 27 September 2018, the practitioner began working as a dentist at Sydney Dental Health ("SDH"), Sydney, on a contract basis. On 21 January 2019, the Council advised the practitioner by telephone that monitoring of the Undertaking had now been transferred to the Council. On 23 January 2019, the Council formally notified the practitioner by letter of the transfer of monitoring. The practitioner was asked to confirm her awareness of the Undertaking by signing and returning 'Notification of Conditions' form, and was advised that she must provide her ABT log book to the Council at the end of each month. On 6 February 2019, the practitioner submitted the signed 'Notification of Conditions' form to the Council. On 13 February 2019, the practitioner submitted to the Council a copy of her alcohol breath testing ('ABT') log for the month of January 2019. COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c)(ii), of the National Law in that the practitioner contravened an undertaking given to the National Board. (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) PARTICULARS OF COMPLAINT ONE 1. The practitioner breached Undertaking 1 in that she failed to submit to the Dental Council of NSW a copy of her ABT log for the month of February 2019, as required by the National Board's 'Drug and Alcohol Screening Protocol', having practised as a dentist on the following dates: a. 4 February 2019; b. 6 February 2019; c. 11 February 2019; d. 13 February 2019; e. 14 February 2019; f. 18 February 2019; g. 20 February 2019; h. 21 February 2019; and i. 25 February 2019. (This is admitted by the respondent with the exception that she states that she did not practice as a dentist on 25 February 2019) COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. Between 8 May 2019 and 13 June 2019, the practitioner failed to respond to correspondence from the Council requesting a copy of her ABT log. (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) PARTICULARS OF COMPLAINT TWO 1. Between 8 May 2019 and 13 June 2019, the practitioner contravened conduct statements 8.10(a) and/or(b) of the National Board's 'Code of Conduct for registered health practitioners' dated 17 March 2014, in that she failed to respond to emails from the Council requesting a copy of her ABT log on the following dates: a. 8 May 2019; b. 21 May 2019; and c. 24 May 2019. (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied in cumulation. (This is admitted by the respondent, but by way of explanation she says that she was suffering from an impairment at the time of this conduct) COMPLAINT FOUR Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of dentistry. (This is admitted) BACKGROUND TO COMPLAINT FOUR On 13 December 2016, the practitioner attended a health assessment with a psychiatrist appointed by the National Board, Dr John Sabiosky. Dr Sabiosky's opinion was that the practitioner had chronic alcoholism. On 16 August 2018, the practitioner attended a further health assessment with a psychiatrist appointed by the National Board, Dr Robert Fisher. Dr Fisher's opinion was that the practitioner suffered from an impairment as defined by the National Law, namely Alcohol Use Disorder. The practitioner was absent sick from SDH on 7, 8, (the morning of) 11 and 27 February 2019. The practitioner failed to attend for work at SDH on 28 February 2019 and 1 March 2019. (All of the above matters are admitted say that the respondent stated that she was absent from work on the morning of 11 February 2021 because she was sick but did attend work that afternoon) PARTICULARS OF COMPLAINT FOUR 1. The practitioner suffers from an impairment, namely Alcohol Use Disorder. (This is admitted by the respondent who relies on the expert opinion of Dr Murray Wright dated 1 July 2021 that this condition is in remission) The factual background 1. As is made clear from the response of the respondent to the allegations contained in the Application, the area of factual controversy in these proceedings is within a small compass. The parties prepared a Statement of Agreed Facts which helpfully summarises the factual background to the proceedings which we set out 1. FCE ("the respondent") received her Bachelor of Dental Surgery from Sydney University in 2014 2. The respondent was first registered to practice on 23 February 2015 3. On 1 August 2016, the respondent treated two patients whilst affected by alcohol and subsequently fell over at work 4. The respondent ceased working from that date 5 . On 16 August 2016, the respondent made a self-notification to the Dental Board of Australia ('the National Board') advising that she was undergoing treatment for excessive alcohol consumption, which had affected her practice of dentistry 6. On 2 September 2016, the National Board accepted the respondent's offer to enter into an undertaking pursuant to section 178(2) of the Health Practitioner Regulation National Law (ACT) ("the ACT National Law"), not to practise as a dentist 6. On 3 February 2017, the respondent signed a new undertaking with the National Board ('the Undertaking') which included Undertaking 1, namely "I must undertake breath alcohol testing (breath testing) in accordance with AHPRA's protocol for Drug and Alcohol Screening (the protocol) in force at the date this undertaking is accepted and then as amended from time to time. Breath testing is to occur as follows: a. No more than 30 minutes prior to the commencement of each and every period of practice, and b. No more than 30 minutes after the completion of each and every period of practice, and c. At any time within the practice period as directed by the case officer or breath test supervisor. For the purposes of this undertaking, 'practice' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a dentist in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a dentist in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession. For the purposes of this undertaking a 'period of practice' commences when the Practitioner begins to conduct any of the activities as defined in the meaning of practice and ceases with any break from carrying out these activities of 30 minutes or longer, regardless of whether the respondent is being remunerated for the break or not. There may be several practice periods within any working day." 7. The Undertaking also included a further undertaking ("Undertaking 4") as follows: "Within one (1) month of the notice of this undertaking being accepted, I must provide to AHPRA: a) Confirmation, on the approved form (HP5), that they understand the protocol and the monitoring requirements of breath alcohol analysis, b) Confirmation, on the approved form (HPS5), from the Senior Practice Manager/owner (the senior person) at each place of practice that they are aware AHPRA may contact them for the purposes of monitoring my compliance with this undertaking" 8. By the operation of Undertaking 1 and 4, and the National Board's Drug and Alcohol Screening Protocol, the respondent was required to submit her logbook to the National Board monthly. 9. By July 2017, the respondent had commenced working at (a regional NSW Aboriginal Medical Service) 10. On 28 November 2017, the respondent applied to the National Board to revoke the Undertaking 11. The National Board advised the respondent on 4 April 2018 that she would be required to undertake a further health assessment before her application was considered Complaints One / Three 12. In around August or September 2018, the respondent relocated to Sydney. 13. From 27 September 2018, the respondent began working at Sydney Dental Health, Sydney ('SDH') 14. On 18 December 2018, the respondent's application to revoke the Undertaking was refused by the National Board 15. Throughout January 2019, the respondent remained working as a dentist at SDH 16. On 21 January 2019, the respondent was advised by the Council by telephone that monitoring of the Undertaking had now been transferred to the Council 17. On 23 January 2019, the Council sent the respondent a letter providing further notice of the transfer 18. On 5 February 2019, the respondent signed a 'Notification of Conditions' form, which was sent to the Council 19. On 13 February 2019, the Respondent submitted a copy of her Alcohol Breath Testing Log ('ABT Log') for the period of January 2019 to the Council 20. The respondent practised as a dentist at (a suburban dental clinic) on 1, 4, 6, (the afternoon of) 11, 13, 14, 18, 20, and 21 February 2019 21. The respondent did not submit her ABT log for the month of February to the Council Complaints Two / Three 22. On 8 May 2019, the Council sent an email to the respondent requesting a copy of her ABT logs since her last submission on 13 February 2019 23. On 15 May 2019, Council advised the respondent by letter of her requirement to attend a further health assessment with Dr Fisher on 1 July 2019 24. On 21 May 2019, the Council sent an email to the respondent requesting her ABT log for the period 21 to 25 February 2019 and advising that she was currently non-compliant with the Undertaking 25. On 24 May 2019, the Council sent an email to the respondent requesting her ABT logs for February 2019 and advising that she must attend the health assessment on 1 July 2019 26. On 12 June 2019, the Council sent a text message to the respondent requesting that she contact the Council as soon as possible 27. On 13 June 2019, the Council sent a letter to the respondent advising that the Council had resolved to convene s150 proceedings on 20 June 2019 28. On 17 June 2019, the Council sent a text message to the respondent requesting that she contact the Council as soon as possible 29. On 20 June 2019, s 150 proceedings were conducted. The respondent's registration was suspended Complaint Four 30. From 12 June 2016 to 4 July 2016, the respondent voluntarily admitted herself to (a private hospital, the name of which is omitted by the Tribunal) for treatment for alcohol misuse. 31. On 9 August 2016, the respondent commenced treatment with psychologist Dr Robin Wood 32. On 13 December 2016, the respondent attended a health assessment with a psychiatrist appointed by the National Board, Dr John Saboisky. Dr Saboisky's opinion was that the respondent 'has suffered from alcohol abuse' which had an impact on her work. Dr Saboisky recommended that the respondent be permitted to practice with conditions on her registration 33. On 3 January 2017, after reviewing the respondent's blood test results of 9 December 2017, Dr Saboisky confirmed that 'the tests support the diagnosis of chronic alcoholism.' 34. Between 29 May 2018 and 18 June 2018, the respondent consulted with addiction medicine specialist Dr Mark Hardy 35. On 16 August 2018, the respondent attended a health assessment with psychiatrist Dr Robert Fisher. Dr Fisher's opinion was that the respondent suffered from an impairment as defined by the National Law, namely Alcohol Use Disorder. However, Dr Fisher advised that the respondent was not currently impaired due to her abstinence from alcohol 36. The respondent continued consulting with Ms Wood until 5 February 2019. The respondent did not attend her scheduled appointment with Ms Wood on 9 March 2019 37. The respondent was absent sick from PDH on 7, 8, (the morning of) 11 and 27 February 2019 38. From 15 June 2020, the respondent commenced treatment with psychologist Ms Brooke Naylor 39. The respondent subsequently consulted with Ms Naylor on 23 June, 7 July, 14 July, 10 August, 24 August, 7 September, 29 September, 13 October, 27 October, and 21 December 2020 and 9 February 2021 40. The respondent was formally referred to Ms Naylor under a GP Mental Health Care Plan on 7 August 2020 and 4 February 2021 41. The respondent attended a health assessment with psychiatrist Dr Murray Wright on 28 June 2021. Dr Wright provided a written opinion on 1 July 2021. 42. The respondent attended a further health assessment with Dr Robert Fisher on 29 June 2021. Dr Fisher provided a written opinion on 15 July 2021. 43. On 27 July 2021, Dr Fisher provided a further written opinion having reviewed additional documentary material. 1. In determining whether a factual finding adverse to the interests of the respondent may appropriately be made we apply what is known as the civil standard of proof, namely that we must be satisfied that it has been established on the balance of probabilities. However, because of the seriousness of the nature of the allegations brought against the respondent in the context of proceedings dealing with allegations of misconduct in the practice of a profession, in accordance with the established jurisprudence of this Tribunal in matters of this kind we apply what is known as the Briginshaw standard which we express in an accepted form namely, that we must be "comfortably satisfied" on the balance of probabilities that such a matter has been established. 2. There is only one discrete factual controversy in the proceedings, and that is whether or not the respondent performed work in a dental surgery on 25 February 2019 as alleged in the Particulars of Complaint One. The respondent gave evidence that she was unwell that day and did not attend for work. The applicant relied upon documentary material provided by the dental practice for which the respondent worked. One document is indicative that the respondent did not work that day, but another is capable of being read to the effect that the respondent did work that day. Resolution of this factual issue does not advance our consideration of these proceedings, because the day in issue is one of nine days in February 2019, and the respondent concedes that she failed to submit a copy of her ABT log on eight of those days. Whether or not the respondent so failed on an additional day does not affect our consideration of this conduct in all the circumstances of these proceedings. 3. We indicated during the course of the hearing that we were of the opinion that in view of the unclear picture painted by the employer's documents that we "were not comfortably satisfied on the balance of probabilities" that the applicant had made out a failure to submit a copy of the log for 25 February 2019, and we shall proceed to deal with these proceedings on that basis. 4. There are some additional factual matters which postdate the Statement of Agreed Facts. These proceedings had originally been set down for hearing before the Tribunal on 18 and 19 August 2021. When they came on for hearing on 18 August 2021 we were informed by Dr Dwyer, the respondent's counsel that neither she nor her instructing solicitor had had any contact with the respondent for about two weeks. During this period the respondent's solicitor had made a number of attempts to make contact with her, but with no success. On the application of the respondent's legal representatives and with no objection being raised by the applicant, we stood the proceedings over for further hearing. 5. In a statement dated 10 November 2021 the respondent explained that on 2 August 2021 she had received an email from her solicitor containing a detailed report from her treating psychologist. She said that that report had "listed all my past traumatic events. I found it difficult to read and I became very depressed, and I lost motivation to continue with the process of detailing these events with other people. I withdrew from social contact as much as I could." The respondent said that she saw avoidance of any contact, including with her own legal representatives as a means of avoiding coping with the need to discuss her problems. She also commenced drinking alcohol again at about this time, even though she had not consumed alcohol since February 2020. 6. Later, the respondent attended upon her general practitioner and was referred to a psychologist specialising in managing clients with complex trauma. A report from that psychologist dated 11 November 2021 states that the respondent has engaged in an initial treatment plan to enable her to manage her distress before embarking upon any "trauma focused work." Significantly, the psychologist dated that "The risk of re-traumatisation leading to heightened levels of stress could be detrimental to (the respondent's) short-term and long-term recovery." 7. The respondent attended during the course of the audiovisual hearing of these proceedings and gave oral evidence including cross examination. She expressed insight into her medical conditions and a desire to continue treatment. The respondent said that she wished to continue to practice dentistry but on a part-time basis, and in an area where she thought she could "make a difference" to her patients. The respondent also wished to continue with university legal studies which she had commenced. 8. The remainder of the relevant factual matrix which we need to consider in these proceedings relates to an assessment of the respondent's conduct, her underlying admitted condition of Alcohol Use Disorder, contributing factors to that condition, and her prognosis which is relevant to the protective orders which we have been asked to make. 9. We have available to us a number of reports of treating general and specialist medical practitioners including psychiatrists, and of psychologists. We shall refer to these reports where necessary for the purpose of these reasons for decision. We summarise hereunder some of the underlying factual history pertaining to the respondent contained in these reports which is relevant to her diagnosis, her conduct which is the subject of these proceedings, and her prognosis. Some of this factual history is very personal to the respondent, and, as will be seen, exposure to it has had a deleterious effect on the respondent's well-being and has exacerbated difficulties encountered in her rehabilitation. We are able to deal with this history by making generalised reference to it, without descending into such detail that we apprehend would adversely impact upon the respondent's well-being. 10. The respondent was exposed to physical violence as a child and was later exposed to domestic violence during 2014/2015 whilst in a former domestic relationship. She commenced drinking alcohol heavily during that relationship and at about that time was observed to be suffering from a number of psychological symptoms "which included some recurrent and intrusive distressing memories of the traumatic events, distressing dreams, intense psychological distress, social withdrawal and disengagement, sleep disturbance, problems with concentration, and impaired self-esteem." (Per Dr Murray Wright report 1 July 2021). All of the medical evidence is to the effect that as a result of physical violence suffered in her childhood and the domestic violence in an earlier relationship, the respondent developed Posttraumatic Stress Disorder (PTSD) and Alcohol Use Disorder. 11. Dr Robert Fisher, a consultant psychiatrist with many years' experience in dealing with health practitioners suffering from impairment conducted an assessment of the respondent and provided a report dated 26 August, 2018. He diagnosed the respondent as suffering from an impairment in the nature of an Alcohol Use Disorder. The respondent did not provide Dr Fisher with any of her personal history involving childhood trauma and later trauma in a former relationship. It was not until that additional information was provided to him by the applicant's solicitor in July 2021 that Dr Fisher was in a position to agree with the opinion of Dr Murray Wright that the respondent most probably developed PTSD and that the persisting symptoms of this disorder contributed to the exacerbation of her Alcohol Use Disorder. 12. Dr Fisher gave oral evidence in these proceedings. He was referred to the statement of the respondent of 10 November 2021 and said that he was very concerned about the respondent's most recent relapse, and that any of a number of multiple triggers might again lead to a relapse. He thought that the respondent would need some initial treatment by way of desensitisation and reprogramming or other similar treatment before returning to practice and thought that six months would be an appropriate period to enable this to occur. In stating this Dr Fisher said that the respondent had not yet had appropriate treatment for her PTSD. 13. In cross examination Dr Fisher agreed that because the respondent was currently motivated to maintain treatment and was in a stable relationship that she "could work tomorrow" but qualified this by saying that a period of six months would give her time to see if she was obtaining benefit from her treatment. 14. Dr Wright gave oral evidence. He also has had many years' experience in treating health practitioners suffering from impairment. Dr Wright had met with the respondent once only, on 28 June 2021 but he had been provided with more recent documentation including her statement of 10 November 2021. Dr Wright said that there was a strong correlation between the respondent's PTSD and her Alcohol Use Disorder, and that the consumption of alcohol could constitute an attempt to self-medicate in order to deal with the PTSD. He thought that until recently the respondent had not addressed the consequences of her underlying traumatic experiences and she required the creation of an individualised management plan for this purpose. He agreed that there was some risk of relapse from both of the respondent's conditions. However, he thought that there were a number of positive factors which would assist her including the fact that she had abstained from alcohol and was compliant with practice conditions for a period of two years before her recent relapse, was in a stable relationship with a partner who was not drinking alcohol, and that she has reengaged in treatment. 15. Dr Wright said with that with appropriate practice conditions and support the respondent could return to work "in the very near future," although he could not quantify that period of time. 16. Both Drs Fisher and Wright were of the opinion that extensive and comprehensive practice conditions were necessary to enable the respondent to safely return to work and that they would assist in her rehabilitation program by reinforcing the need for compliance with an alcohol-free regime. Complaint One 1. We now come to consider whether the respondent is guilty of unsatisfactory professional conduct as defined in section 139B(1)(c)(ii) of the National Law which is the subject of this Complaint. 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— … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— … (ii) an undertaking given to a National Board. 1. The respondent has conceded, and we have found, that she failed to submit the relevant copies of her ABT log on eight of the nine occasions alleged in this Complaint. We are comfortably satisfied to the relevant standard that this failure constituted a breach of the Undertaking which she had given, and that this Complaint has been made out. 2. In so finding we are conscious that there is evidence of some confusion about the location of her logs in the practice of her then employer, and we are also conscious that at the time when the location of her logs became a critical issue, namely in the circumstances where her employment ceased, the respondent was suffering from an impairment consisting of the combined effects of Alcohol Use Disorder and PTSD. These are matters which are relevant to our consideration of appropriate protective orders consequent upon our finding of unsatisfactory professional conduct. Complaint Two 1. In this Complaint the applicant alleges that the respondent is guilty of unsatisfactory professional conduct as provided for in section 139B(1)(l) of the National Law. 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— … (l) Other improper or unethical conduct 1. The respondent conceded that she had failed to respond to the emails referred to in the Particulars of this Complaint, and there is evidence provided by the applicant which, in any event, is sufficient to prove that no response had been received by the Council to them. We are comfortably satisfied to the requisite standard that the factual basis for this Complaint has been established. 2. Before considering whether the conduct of the respondent which we have found to have occurred constitutes unsatisfactory professional conduct we first refer to the Code of Conduct published by the Dental Board of Australia published in March 2014, which we are entitled to take into account by reason of section 41 of the National Law. 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. The Code of Conduct is intended to establish standards for practitioner behaviour in relation to a number of matters including "professional behaviour and ethical conduct." The Complaint refers to a contravention of Clause 8.10 (a) "and/or (b). In our opinion subclause (b) only is relevant. The subclause, provides that 8.10 Practitioners have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. In meeting these responsibilities it is advisable to seek legal advice or advice from a professional indemnity insurer. Good practice involves: …………………………………………. b) disclosing to anyone entitled to ask for it information relevant to an investigation into the conduct, performance or health of a practitioner…. 1. We are comfortably satisfied to the relevant standard that the respondent was in breach of the Cl 8.10(b) of the Code. 2. For completeness, we observe that the "improper" and "unethical conduct" of the respondent asserted by the applicant to have occurred in the context of these proceedings is not of a kind which is referred to in any of the previous provisions of section 139B(1). 3. The characterisation of conduct which may be described as improper or unethical for the purpose of this provision was considered by this Tribunal in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [86] and following in terms which we adopt for the purpose of these proceedings 86 The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." 87 Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 88 In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. 1. At the least, we regard the failure to respond to the emails in the context of the Code of Conduct which apply to the respondent as being improper because it is not in conformity with standards of professional conduct. To this extent we are comfortably satisfied that this Complaint has been made out. However, in so finding we are conscious that the failure of the respondent to have replied to these emails was, on the medical evidence, part of her withdrawal associated with her combined conditions of Alcohol Use Disorder and PTSD. This is also a matter which will be relevant in determining what are appropriate protective orders in all the circumstances. Complaint Three 1. This Complaint alleges that the respondent is guilty of professional misconduct as defined in section 139E of the National Law 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. The discriminating factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious 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 New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. 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 judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment 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 proceed on the basis that it is appropriate to consider all of the findings that we have made in the aggregate. The respondent submitted that we should consider the conduct complained of as particularised in Complaints One and Two in the context of her dual conditions of Alcohol Abuse Disorder and PTSD, as explaining her failures to submit her logs and to respond to the emails from the Council. We accept that these may be seen on the evidence as constituting the reasons why the respondent failed to do these things. However, as the applicant submitted, these failures need to be considered in the context of the risk to the safety of the patients and prospective patients of the respondent created by the fact of these conditions. 2. Indeed, the health and safety of patients and potential patients of the respondent are integral to our consideration of these proceedings as is clear from the provisions of section 3A of the National Law 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. It is true, as the respondent submitted that there is no evidence of any actual harm being suffered by any patient. But the safety of patients and prospective patients incorporates not only actual harm which may be sustained but also the risk of harm which may be present. In a statement dated 7 July 2021 prepared for these proceedings the respondent referred to a period after she had been sexually assaulted by her former partner in 2016 when she had commenced to drink heavily. She said "I would not attend work intoxicated but in retrospect I definitely attended work hung over and therefore impaired." Later in that statement the respondent referred to an incident on 1 August 2016 when "I fell over in a back room after attending two patients while intoxicated." These incidents are salient reminders of the thin line between actual harm and a tangible risk of harm. 2. It is notorious that persons suffering from Alcohol Abuse Disorder are susceptible to relapse at any time. Abstinence from alcohol remains a constant, and often a lifetime challenge. Inappropriate consumption of alcohol is anathema to the safe and competent practice of dentistry. As every patient who has experienced the dentist's drill knows, dentists require fine motor skills and an alert mind to carry out their profession skilfully and without risk to the safety of patients. 3. Those responsible for the regulation of the dental profession have developed protocols to assist dentists to continue to practice their profession even though they may be suffering from conditions which potentially, when they manifest themselves, could adversely impact upon their ability to do so safely. In the case of dentists suffering from Alcohol Abuse Disorder this assistance includes constant and comprehensive measures to test whether they have succumbed to the consumption of alcohol and are therefore not able to practice safely. The requirement to undertake testing and to provide evidence of that testing, and the requirement to be in constant communication about that testing are all fundamental to the regulation of the practice of dentistry by the respondent who was clearly impaired by reason of her conditions. 4. It follows that any breach of any of these conditions must be regarded in a most serious light, and a consideration of the breach itself must overshadow the reasons therefor. The overriding requirement is for strict compliance. Anything of an exculpatory nature should be confined to a consideration of the formulation of protective orders. Whilst we acknowledge the reasons why the respondent asserts that she was unable to provide the relevant log records, her failure to respond to the emails from the Council stems from the fact that she succumbed to her withdrawal state. 5. The circumstances of a medical practitioner who breached practice conditions imposed in circumstances where he had been found to be impaired by reason of drug dependency were considered by this Tribunal in Health Care Complaints Commission v Sun [2016] NSWCATOD 80. The Tribunal considered whether a finding of professional misconduct could appropriately be made where the breach was caused by the practitioner's drug dependency. We adopt the analysis and consideration of this aspect which we consider to have been made persuasively within the following extract from that decision 29 We commence our consideration of whether the respondent is guilty of professional misconduct by observing that, at all relevant times, he had been placed on the Impaired Registrants Panel. The National Law has been formulated to allow health practitioners who are impaired to continue to practise under conditions which are designed to protect the safety of the public. The respondent was so placed because of his drug dependency. It is hopefully not necessary for us to discuss in any detail the dangers posed to the public by exposure to a surgeon who is drug dependent and whose surgical and other professional work may be unduly affected by drugs. The respondent was permitted to continue to practise medicine with conditions imposed which would have the effect of protecting the public and also enhancing his ability to undertake rehabilitation. To some extent, therefore, the respondent was in a privileged position of being permitted to continue to practise medicine even though he was the subject of an impairment. 30 It is a trite observation that practice conditions imposed in these circumstances must be strictly observed. It follows that a failure to comply with them is a serious matter, and especially so in the circumstances of these proceedings because the failures were achieved through conduct involving dishonesty and deceit. 31 Of course, the respondent was driven by his need to consume drugs which, as he conceded, destroyed his sense of morality and ethics and his judgement. Although the respondent's dependency explains his misconduct, it does not excuse such misconduct. So much is clear from the judgment of Basten JA (Campbell and Hoeben JJA agreeing) in the New South Wales Court of Appeal in Reimers v Health Care Complaints Commission [2012] NSWCA 317. His Honour said at [12]-[14]: 12. So understood, the first proposition is untenable. Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences. That he continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, could reasonably be found to constitute professional misconduct. The conclusion of the Tribunal that there was professional misconduct was, at least, unsurprising. 13. The second proposition is also untenable. There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. The degree to which a criminal offence is caused by a mental illness, including addiction, may properly be reflected in the sentence imposed. Nevertheless, "protection of the community" is a relevant sentencing principle and may, within limits of proportionality identified by reference to the seriousness of the offence, extend rather than restrict the sentence: The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465. But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was "to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine": s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration. 14. In short, the applicant's submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole. There is no substance in the complaint that the decisions of the Tribunal on the various complaints were manifestly unreasonable. That being so, the challenges to the deregistration order must also fail. 32 We also adopt as being relevant to our determination of these proceedings the following observations by the Tribunal in Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151. At [67]: 67. Mr Mitchell's conduct in breaching the Practice Conditions and his dishonesty in attempting to conceal, deny and mislead as to his breaches, when taken together, are of a very serious nature. They demonstrate a lack of insight into the need to act scrupulously with regard to his professional obligations and to show proper respect to the requirements of the Council imposed upon him. In the Tribunal's view it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. The Tribunal is satisfied that Mr Mitchell is guilty of professional misconduct under section 139E of the National Law. 33 We are unable to divorce our consideration of the circumstances in which the respondent breached the practice conditions from the fact that they were imposed because he was drug dependent. Accordingly, the fact of his drug dependency is part and parcel of the circumstances which are relevant to the disposition of these proceedings. This places our consideration of this matter in a different category to one where, for example, the practice conditions were imposed solely by reference to the keeping of appropriate clinical records in the context of a health practitioner who was otherwise competent and fit to practise. The protection of the public assumes greater significance in evaluating the seriousness of the misconduct of the respondent in breaching the practice conditions involving, as we have said, dishonesty and deceitfulness, in addition to continuing to take methamphetamines. 34 We are of the opinion that the misconduct of the respondent, as found by us to have been proven, is of such a serious nature that it is unbecoming of a medical practitioner and is of such gravity that the respondent's registration should be cancelled. It follows that we are entitled to conclude that the respondent is guilty of professional misconduct, and we so find. 1. We agree with the observations made by the Tribunal in Sun that the fact of the respondent's alcohol dependency may explain her conduct, but it does not excuse it. It follows that the unsatisfactory professional conduct of the respondent which we have found to have been established is sufficiently serious to justify cancellation or suspension of her registration. In all the circumstances we conclude that this Complaint has been made out and that the respondent is guilty of professional misconduct as alleged. Indeed, she did not submit to the contrary. Complaint Four 1. This Complaint alleges that the respondent has an impairment as defined within section 5 of the National Law Section 5 impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 1. The relevance for our purposes is that by reason of section 144(d) of the National Law, a complaint may be made about a registered health practitioner on the grounds that he or she has an impairment 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (d) Impairment A complaint the practitioner has an impairment. 1. It is uncontroversial on the basis of the totality of the evidence before us that the respondent suffers from an impairment as defined in the National Law, constituted by her Alcohol Use Disorder. We have referred generally to the evidence of Drs Fisher and Wright. The respondent readily conceded this and did not contend otherwise. 2. We are satisfied to the requisite standard that this Complaint has been made out. Protective orders 1. We now come to consider what protective orders should appropriately be made consequent upon the findings that we have made that each of the Complaints has been made out. In general terms, there are a number of powers available to us pursuant to the provisions of section 149A of the National Law 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. In addition, having found the respondent guilty of professional misconduct there is also available to us a power to suspend or cancel the respondent's registration as a dental practitioner by reason of section 149C 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— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or … 1. The applicant proposed for our consideration a suggested set of protective orders which we set out hereunder COMMISSION'S PROPOSED PROTECTIVE ORDERS Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. Suspension 2. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of [3 to 6 months] from the date of this decision. Practice conditions 3. Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration: 1. Not to undertake solo dental practice. 2. To forward evidence to the Dental Council of NSW within fourteen (14) days of returning to practice that she has provided a copy of her full conditions to the Principal of any practice in which she is practicing. 3. To obtain Dental Council of NSW approval before changing the nature or place of her practice. 4. Within fourteen (14) days of a change in the nature or place of her practice, she is to forward evidence to the Dental Council of NSW that she has provided a copy of her practice conditions to the Principal of the practice/s in which she works. 5. To only be employed as a dental practitioner in circumstances where the employer has agreed to notify the Dental Council of NSW of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. 6. To practise under Category B 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. At each meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on workload management. 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. 7. To abstain completely from the consumption of alcohol. 8. To comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: breath testing for alcohol (as varied from time to time) and undergo regular breath testing. 9. Upon commencement of practising as a Dental Practitioner, to comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: EtG screening (as varied from time to time) and attend for random EtG screening (urine). 10. To authorise the testing facility to forward all the results of EtG to: a. the treating practitioners; and b. the Council. 11. To attend for treatment by a Psychologist of her choosing. 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 practitioner; and c. must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice. 12. To attend for treatment by a qualified drug and alcohol specialist (Psychiatrist or Physician) of her choosing. 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 practitioner; and c. must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice 13. The practitioner is to expressly authorise the treating practitioners referred to in Conditions 11 and 12 to communicate with each other about her treatment and condition. 14. To attend for review by a Council-directed health assessor (Psychiatrist) on a three (3) monthly basis or as otherwise directed by the Dental Council of NSW. The professional costs of the reviews undertaken pursuant to this condition will be met by the Council. 15. To authorise the Dental Council of NSW to forward copies of this decision and any subsequent reports and any other information relevant to her health and treatment to the Council-appointed practitioners, supervisor and to her treating practitioners. 16. To nominate a senior dental practitioner at all locations where the practitioner practises for approval by the Dental Council of NSW. The practitioner is to: a. provide the approved practitioner with a copy of her health conditions; b. authorise the approved practitioner to notify the Council immediately if there are any concerns in relation to her health or if the practitioner's health is adversely affecting her capacity to practise; and c. the nomination must be made within fourteen (14) days of commencing practice as a Dental practitioner, or commencing at a new practice location 17. To authorise and consent to any exchange of information between the Dental Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Review 4. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Dental Council of NSW when the respondent has a principal place of practice in NSW. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Dental Board of Australia. 1. The respondent did not oppose the making of the protective orders set out above save that it was submitted on her behalf that the appropriate period of suspension should be three months. The applicant submitted that the appropriate period should be six months. This is the only area of controversy which we need to consider, because in general terms we conclude that it is otherwise appropriate to make protective orders in the form suggested by the applicant. 2. We now come to consider whether the respondent's registration should be suspended (as the respondent concedes) and if so, the period of suspension. In considering this issue, and indeed in our approach to the totality of the protective orders which we conclude should be made, we have regard to the principles which must be applied in this context. We have referred to them earlier because they are also relevant to a consideration of whether or not suspension or cancellation of registration is appropriate, albeit that no such protective order is ultimately made. These principles are referred to and set out at [33] and [34] above. On this basis we take into account the respondent's capacity to practice dentistry safely, the deterrent effect that any order will have on the respondent with respect to her future conduct, the deterrent effect that such order will have on other members of the dental profession who may be tempted to succumb to the same problems encountered by the respondent, and the necessity to uphold the integrity of the dental profession in the eyes of the public. 3. All of the evidence before us is to the effect that the respondent needs to address her PTSD and the traumatic events which caused or contributed to that disorder to enable her to embark upon corrective measures to ensure complete alcohol abstinence. The recent relapse suffered by the respondent in August 2021 demonstrates her continuing vulnerability. Neither of Drs Fisher nor Wright has examined the respondent recently. Dr Wright thought that she would be able to resume practice "in the near future". We prefer the opinion of Dr Fisher that it is better that the respondent have an opportunity of dealing with her PTSD so as to enhance her prospects of recovery from the alcohol disorder. 4. The respondent is now engaged in treatment by a psychologist specialising in managing clients with complex trauma, but she only commenced that treatment on 25 October 2021, had a second session on 1 November 2021, and as at the date of the report of the psychologist Sue Maloney of 11 November 2021 was scheduled to have a third session on 15 November 2021. There is no indication in this brief report as to how long the proposed treatment regime is scheduled to last and the likely prognosis. Indeed, to expect any more precision may seem unrealistic in that the report states that the first session included development of rapport and assessment and the second session included a discussion on "goals of treatment and treatment pathways." The report noted that the "Priorities of treatment" included "distress tolerance, mindfulness and relapse prevention." 5. Both Drs Fisher and Wright said that in addition to receiving treatment from a psychologist or psychiatrist to deal with her PTSD, the respondent should be treated concurrently by a qualified drug and alcohol specialist, whether a psychiatrist or physician. Indeed, there is a requirement that the respondent undertake this treatment included in the proposed protective orders, to which the respondent has agreed. On the evidence, we apprehend that the respondent has not yet commenced this treatment, and arrangements will need to be put in place for this to occur. 6. Because we intend making protective orders which reflect those which are the subject of agreement between the parties (save for the period of suspension), it follows that we have concluded that it is not necessary or appropriate that the respondent's registration be cancelled. There will be a regime in place to allow her to practice dentistry safely. This leaves for consideration whether suspension is appropriate, and if so, the period of suspension. 7. It is obvious that unless and until a strict and comprehensive regime is put in place to ensure, to the extent appropriate, that the respondent is able to practice dentistry safely, her registration should be suspended until this occurs. As we have already observed, the respondent has not yet retained a psychiatrist or physician specialising in the treatment of her Alcohol Use Disorder, and it will also be necessary for this to occur. In addition, we are concerned that this treatment will only be facilitated if the respondent is allowed to participate for an appropriate period in her trauma treatment. There is no clear indication that this is likely to occur imminently. 8. Overall, we prefer what we understand to be the more conservative approach of Dr Fisher to that of Dr Wright in fixing an appropriate period before which the respondent will be exposed to the rigours of dental practice, albeit under strict practice conditions. We regard a period of six months as being more appropriate than the period of three months advocated on behalf of the respondent. In addition, a period of six months will allow the respondent an opportunity of making enquiries about suitable employment having regard to all of the provisions concerning that employment which are included in the proposed protective orders, in circumstances where the respondent has said she only wishes to work on one or two days a week. 9. Finally, a period of six months is more appropriate to reflect the deterrent effect of breach of these practice conditions, and the previous breaches by the respondent, both on her and on other practitioners, and will also enhance confidence in the safe practice of dentistry in the eyes of the public. Our orders will reflect this conclusion. Costs 1. This is a costs jurisdiction. The applicant sought an order for costs in its favour which was not opposed by the respondent. The applicant has not engaged in any conduct which would disentitle it to a favourable costs order and we propose to accede to its application. Non-publication order 1. The respondent had previously sought the making of an interim non-publication order which was granted by the presiding Member, ex tempore reasons therefor having been given in an unpublished interlocutory decision. The respondent sought the making of a permanent non-publication order during the course of the hearing of these proceedings. The Tribunal constituted by the presiding Member indicated that it would make such an order, and that order, accompanied by reasons will be published shortly. 2. Pending publication of the non-publication order the Tribunal requests that AHPRA not provide any link to these reasons for decision on that part of its website which deals with the current registration circumstances of the respondent, because such a link would, as is obvious, thwart the purpose and effect of the non-publication order. We ask the respondent to draw the attention of AHPRA to this request. Orders 1. Consequent upon the findings which we have made we make the following orders Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. Suspension 2. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 6 months from the date of this decision. Practice conditions 3. Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration: 1. Not to undertake solo dental practice. 2. To forward evidence to the Dental Council of NSW within fourteen (14) days of returning to practice that she has provided a copy of her full conditions to the Principal of any practice in which she is practicing. 3. To obtain Dental Council of NSW approval before changing the nature or place of her practice. 4. Within fourteen (14) days of a change in the nature or place of her practice, she is to forward evidence to the Dental Council of NSW that she has provided a copy of her practice conditions to the Principal of the practice/s in which she works. 5. To only be employed as a dental practitioner in circumstances where the employer has agreed to notify the Dental Council of NSW of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. 6. To practise under Category B 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. 1. Not to practise until a supervisor has been approved by the Dental Council of NSW. 2. At each meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on workload management. 3. 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. 1. To abstain completely from the consumption of alcohol. 2. To comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: breath testing for alcohol (as varied from time to time) and undergo regular breath testing. 3. Upon commencement of practising as a Dental Practitioner, to comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: EtG screening (as varied from time to time) and attend for random EtG screening (urine). 4. To authorise the testing facility to forward all the results of EtG to: 1. the treating practitioners; and 2. the Council. 1. To attend for treatment by a Psychologist of her choosing. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 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 practitioner; and 2. must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice. 1. To attend for treatment by a qualified drug and alcohol specialist (Psychiatrist or Physician) of her choosing. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 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 practitioner; and 2. must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice 1. The practitioner is to expressly authorise the treating practitioners referred to in Conditions 11 and 12 to communicate with each other about her treatment and condition. 2. To attend for review by a Council-directed health assessor (Psychiatrist) on a three (3) monthly basis or as otherwise directed by the Dental Council of NSW. The professional costs of the reviews undertaken pursuant to this condition will be met by the Council. 3. To authorise the Dental Council of NSW to forward copies of this decision and any subsequent reports and any other information relevant to her health and treatment to the Council-appointed practitioners, supervisor and to her treating practitioners. 4. To nominate a senior dental practitioner at all locations where the practitioner practises for approval by the Dental Council of NSW. The practitioner is to: 1. provide the approved practitioner with a copy of her health conditions; 2. authorise the approved practitioner to notify the Council immediately if there are any concerns in relation to her health or if the practitioner's health is adversely affecting her capacity to practise; and 3. the nomination must be made within fourteen (14) days of commencing practice as a Dental practitioner, or commencing at a new practice location 1. To authorise and consent to any exchange of information between the Dental Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Review 4. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Dental Council of NSW when the respondent has a principal place of practice in NSW. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Dental Board of Australia. Costs 6. The respondent is to pay the costs of the applicant assessed in default of agreement. ********** 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: 08 December 2021