Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 Hearing dates: 8 August 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Dr M Stimpson, Senior Member Dr A Kingon, Senior Member M Christensen, General Member Decision: (1) The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Health Practitioner Regulation Law (NSW). (2) The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Health Practitioner Regulation Law (NSW). (3) The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW). (4) The respondent is guilty of professional misconduct under s 139E of the National Health Practitioner Regulation Law (NSW). (5) The respondent's registration as a dentist is cancelled. (6) The respondent may not apply for review of the cancellation order for a period of two years. (7) The Tribunal proposes to order the respondent to pay the applicant's costs as agreed or as assessed. If either party seeks some other order, they should provide submissions to the Registry and the other party within two weeks of the date of publication of these reasons, and that party should reply within a further two weeks. Catchwords: PROFESSIONS AND TRADES – health care professional – dentistry – where practitioner admits he is guilty of unsatisfactory professional conduct and professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) – ss 5, 139B(1)(a), 139B(1)(c), 139B(1)(l), 139E Cases Cited: Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Dr Than Le [2001] NSWMT, 20 September 2001 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sidharath Kumar Gupta (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self - represented) File Number(s): 2021/00221418 Publication restriction: A non-publication order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is made in respect of the person identified as Dentist A in the Schedule attached to the Complaint and the person identified in the proceedings as the practitioner's mentor. REASONS FOR DECISION Introduction 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Dr Sidharath Kumar Gupta (practitioner). The Commission seeks protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law). 2. The matter conducted as a combined Stage 1 and 2 proceeding on 8 August 2022. 3. The practitioner is a registered dentist. On 23 July 2019, his registration as a dentist was suspended by the Dental Council of New South Wales (Council). 4. By an Application for Disciplinary Findings and Orders filed 2 August 2021, the Commission seeks orders that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. 5. The subject matter of the Complaint consisted of four complaints based on the following acts of the practitioner: 1. acting in breach of conditions placed on his registration; 2. providing false and/or misleading information to regulatory authorities; 3. engaging in conduct that demonstrated that his knowledge, skill or judgment possessed, or care exercised in the practise of dentistry was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. The Commission submits that the practitioner's conduct amounted to both unsatisfactory professional conduct and professional misconduct. 2. We agree. 3. For the following reasons we find: 1. All complaints are established; 2. the practitioner's registration as a dentist should be cancelled; and 3. the practitioner should not be permitted to seek a review of the order of cancellation for a period of two years. The Amended Complaint 1. By Amended Complaint filed 8 August 2021 the Commission makes the following complaints. Complaint One 1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that the practitioner has contravened conditions to which the practitioner's registration is subject. Background to Complaint One 1. The background to Complaint One is that: 1. On 22 November 2018, conditions were imposed on the practitioner's registration including: Condition 5: "Within 21 days notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that … b. The Practitioner will be required to provide the same form: i. within seven days of the commencement of practice at each and every subsequent place of practice …" Condition 6: "The Practitioner must be mentored by another registered health practitioner in relation to the expected standard of clinical records ..." Condition 7: The mentoring must comprise a minimum of six sessions with each session being of one hour duration occurring over a six month period. 1. from about 27 February 2019, the practitioner was working at My Auburn Dentist (Practice). 2. on 16 May 2019, some conditions on the practitioner's registration were amended but conditions 5, 6 and 7 were unchanged. Particulars of Complaint One 1. There are two particulars to Complaint One being: 1. between 22 November 2018 and 22 May 2019, the practitioner breached condition 7 in that he failed to attend six mentoring sessions over a six month period; 2. between about 27 February 2019 to 21 May 2019, the practitioner breached condition 5 in that he failed to notify the Australian Health Practitioner Regulation Authority (AHPRA) within seven days of commencing work at the practice. Complaint Two 1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. Background to Complaint Two 1. The background to Complaint Two is that: 1. from about 27 February 2019, the practitioner was working at the Practice; 2. between 2 and 24 March 2019, Dentist A was overseas; 3. on 3 and 10 May 2019, AHPRA reminded the practitioner of his obligation under condition 5 to provide information within seven days of commencing practice; 4. on 7 June 2019, AHPRA sent the practitioner a notice under s 132 of the National Law seeking practice information by 14 June 2019; 5. between 5 and 27 July 2019, Dentist A was overseas. Particulars of Complaint Two 1. The particulars of Complaint Two are that as follows: 1. on dates between about 5 March 2019 and 23 March 2019, the practitioner inappropriately billed for dental services in circumstances where: 1. Dentist A was overseas; 2. the practitioner provided dental services to patients at the practice; 3. the practitioner used Dentist A's provider number. 1. on 7 March 2019, the practitioner provided false and/or misleading information to AHPRA by email that he was "not working at the moment", in circumstances where he was working at the Practice from about 27 February 2019; 2. on 21 May 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he had not returned to practice, in circumstances where he was working at the Practice from about 27 February 2019; 3. on 23 May 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he was not practising, in circumstances where he was working at the Practice from about 27 February 2019; 4. on 17 June 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he was practising occasionally at the practice, in circumstances where he was working at the Practice from about 27 February 2019; 5. on 1 July 2019, the practitioner provided false and/or misleading information to AHPRA in a practice information form to the effect that he commenced working at the practice in approximately mid-April 2019 and Dentist A was the owner of the Practice, in circumstances where the practitioner was working at the Practice from about 27 February 2019 and Dentist A sold the Practice in early 2019 to a family trust in which the practitioner was involved; 6. on 1 July 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he commenced working at the practice in mid-April 2019, in circumstances where the practitioner was working at the Practice from about 27 February 2019; 7. on dates between about 5 July 2019 and 12 July 2019, the practitioner inappropriately billed for dental services in circumstances where: 1. Dentist A was overseas; 2. the practitioner provided dental services to patients at the practice; 3. the practitioner used Dentist A's provider number. 1. on 17 July 2019, the practitioner provided false and/or misleading information to the Council by telephone to the effect that Dentist A was still the practice principal at the Practice and that the practitioner does not have any ownership stake in the Practice, in circumstances where Dentist A sold the Practice in early 2019 to a family trust in which the practitioner was involved. Complaint Three 1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Background 1. The background to Complaint Three is that on 9 July 2019: 1. the practitioner was working at the Practice; 2. inspectors appointed by the Council conducted an inspection at the Practice. Particulars 1. The particulars of Complaint Three are that on 9 July 2019 the practitioner failed to: 1. ensure the availability of the following documents at the Practice: 1. Australian Guidelines for the Prevention and Control of Infection in Healthcare; 2. AS/NZS 4815, Office-based health care facilities – Reprocessing of reusable medical and surgical instruments and equipment, and maintenance of the associated environment; 3. Australian Dental Association Guidelines for Infection Control; 1. maintain a workplace incident and accident register; 2. ensure appropriate management of used sharps; 3. ensure the availability of appropriate Personal Protective Equipment (PPE); 4. ensure the availability of the operating manual, performance qualification report and log book for the "Mocom B+" steam steriliser and the "Stericlave" steam steriliser; 5. retrieve his clinical records promptly when required, contrary to clause 2.5 of the Dental Board of Australia "Guidelines on dental records" 1. Particular (7) is that the conduct in any of the particulars of Complaint Three is repeated and relied upon in combination as a course of conduct involving poor infection control and record keeping amounting to unsatisfactory professional conduct. Complaint Four 1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. 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. Particular 1. The sole particular of Complaint Four is that the particulars of Complaint One, Two and Three are repeated and relied on both individually and cumulatively. In the alternative, the Commission submits that, when two or more of the particulars are taken together, a finding of professional misconduct is justified. Evidence The Commission's evidence 1. The Commission's documents included but were not limited to correspondence between the Commission and the practitioner, correspondence between the Dental Council of NSW (Council) and the practitioner, witness statements of Dentist A, statements of Council inspectors, decisions and transcripts of s 150 and 150A proceedings, movement records of the practitioner, ASIC business name information, various codes of conduct guidelines and policies of the Board and an expert report of Dr Gautam Sridhar dated 30 July 2020. 2. The practitioner did not require any Commission witness to attend the hearing for cross-examination. The practitioner's evidence 1. The practitioner filed no documentation whatsoever. He was offered a number of opportunities to provide evidence after the hearing, in particular going to Stage 2 considerations. He did not take up this opportunity. 2. The practitioner was required for cross-examination by the Commission. 3. Given the practitioner had filed no witness statement or any other document the Tribunal usually sees in a Stage 2 hearing, we allowed the practitioner the opportunity to give oral evidence, after which he was cross-examined by the Commission's counsel. 4. Where relevant we will refer to his oral evidence below. Amended Agreed Statement of Facts 1. Importantly, the documents before the Tribunal included an Amended Agreed Statement of Facts (AASF), the substance of which is set out below. To aid understanding, we have from time to time supplemented the AASF by reference to the supporting documents which are footnoted in the AASF. 2. In 2011, the practitioner graduated with a Bachelor of Dental Surgery from the University of Adelaide. 3. On 5 December 2011, the practitioner was first registered as a dentist. 4. On 4 September 2014, conditions were imposed on the practitioner's registration requiring him to complete an education program. 5. On 7 May 2015, the Dental Board of Australia (Board) formed a reasonable belief that the way the practitioner practiced was unsatisfactory. This belief was formed in response to a notification received 10 November 2014 which included an allegation that the practitioner was operating in a manner that was placing the public at risk of infection. Conditions were imposed on the practitioner's registration requiring him to submit an infection control manual and a report. 6. We pause to note that the report referred to is a reference in the conditions to the practitioner providing a written report by an independent assessor confirming review and approval of the infection control manual to the Board. 7. On 18 February 2016, the Board formed a reasonable belief that the way the practitioner practices in relation to treatment planning, informed consent, clinical care and documentation was unsatisfactory in response to two notifications received 23 September 2015. Conditions were imposed on the practitioner's registration requiring him to complete an education program and submit to a practice audit. 8. On 27 August 2017, the auditor prepared a report regarding the practitioner's practice at Gympie Family Dental which included concerns regarding safe sharps disposal, significant concerns about the practitioner's clinical record keeping and the Infection Control Management Plan could not be located. 9. On 24 August 2018, a performance assessment report was submitted and the findings including a deficiency in the practitioner's application of knowledge around record keeping and note taking and the practitioner's lack of knowledge on the process and the responsibility around the critical instrument care. 10. On 18 September 2018, the company SGMED Pty Ltd was registered. 11. On 19 September 2018, the business name The Trustee for The SGMED Family Trust was activated and the SGMED Family Trust Deed was executed with SGMED Pty Ltd as trustee, Mr Parveen Gupta as appointer and the practitioner as one of two named beneficiaries. Conditions imposed on 22 November 2018 1. On 22 November 2018, the Board noted that despite the practitioner's completion of education, there was clear evidence identifying significant deficiencies in the practitioner's skills and knowledge which posed a real and ongoing risk to the public. Conditions were imposed on the practitioner's registration including: Condition 5: Within 21 days notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i. within seven days of the commencement of practice at each and every subsequent place of practice, and ii. within seven days of each and every notice of any subsequent alteration of these conditions. Condition 6: The Practitioner must be mentored by another registered health practitioner in relation to the expected standard of clinical records. For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner. Condition 7: The mentoring must comprise a minimum of six sessions with each session being of one hour duration occurring over a six month period. 1. On 10 December 2018, the practitioner signed Common Restrictions form (HPC): Place of practice details: "N/A". The Practice 1. In 2018, the dental practice named My Auburn Dentist at 28 Queen Street Auburn (Practice) was owned by Dentist A. In early 2019, Dentist A planned to sell the practice to the practitioner. 2. On 18 December 2018, the business name "My Auburn Dentist" ABN 23 309 028 482 became held by The Trustee for The SGMED Family Trust. 3. On 30 January 2019, the practitioner's father, Mr Parveen Gupta, became the director of SGMED Pty Ltd. 4. On 1 February 2019, the practitioner attended the first mentoring session. 5. On 6 February 2019, Dentist A completed a HICAPS change of ownership form stating that the new owner of the practice is SGMED Pty Ltd as Trustee for the SGMED Family Trust. 6. On 8 February 2019, Parveen Gupta completed a HICAPS direct debit form for the account named SGMED Pty Ltd ATF SGMED Family Trust and equipment agreement with the practitioner's mobile number and email address. Mr Parveen Gupta also completed a HICAPS site survey listing all providers as Dentist A and another dentist then an access request was later completed to create "Mr Sid Gupta Manager" as a user with the practitioner's email address and terminal number SDPY1A. 7. On 26 February 2019, Dentist A sold the practice to SGMED Pty Ltd as Trustee for the SGMED Family Trust. On 26 February 2019, the practitioner transferred the purchase price (minus deposit and agent's fees) into Dentist A's business bank account. 8. In late February 2019 or early March 2019, shortly after the sale of the Practice was finalised, the practitioner told Dentist A words to the effect: I am having trouble getting my provider number set up to use with the health funds. 1. Dentist A loosely gave the practitioner permission to use his provider number for a short period of time only — from a few days to a week while the practitioner got himself set up - only for as long as required for him to resolve the issues he was experiencing in getting established with his own provider number at the Practice. 2. On 27 February 2019, the practitioner saw patients at the Practice, typed clinical notes, issued an invoice with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 3. On 28 February 2019, the practitioner issued an invoice with Dentist A's provider number, and used Dentist A's provider number at the HICAPS terminal at the Practice. 4. On 1 March 2019, the practitioner saw patients at the Practice, typed clinical notes, issued an invoice with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 5. On 2 March 2019, the practitioner saw patients at the Practice. Dentist A travels overseas 2 to 24 March 2019 1. Between 2 and 24 March 2019, Dentist A was overseas undertaking voluntary work. During that time, Dentist A did not provide dental services to any patients of the Practice, create any clinical records for any patients of the Practice or issue any invoices for dental treatment provided to patients of the Practice. There was no agreement between Dentist A and the practitioner for the practitioner to continue using Dentist A provider number. 2. On 4 March 2019, the practitioner's new provider number was generated at My Auburn Dentist with the banking details for SGMED Family Trust and the practitioner's mobile number. 3. On dates between about 5 March 2019 and 23 March 2019, the practitioner inappropriately billed for dental services in circumstances where: * Dentist A was overseas; * the practitioner provided dental services to patients at the practice; * the practitioner used Dentist A's provider number. 1. On 5 March 2019, the practitioner saw patients at the Practice, issued invoices and typed clinical notes. 2. On 6 March 2019, the practitioner saw patients at the Practice, typed clinical notes, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 3. On 6 March 2019, AHPRA reminded the practitioner to submit evidence of completion of his education and his auditor nomination then the practitioner submitted his auditor nomination. 4. On 7 March 2019, the practitioner provided false and/or misleading information to AHPRA by email that he was "not working at the moment", in circumstances where he was working at the practice from about 27 February 2019. 5. The practitioner confirmed he was not currently practising: Not working at the moment, hoping to start soon. 1. On 7 March 2019, the practitioner issued invoices at the Practice and used Dentist A's provider number at the HICAPS terminal at the practice. 2. On 8 March 2019, the practitioner saw patients at the Practice, issued invoices, typed clinical notes and used Dentist A's provider number at the HICAPS terminal at the Practice. 3. On 8 March 2019, the practitioner attended the second mentoring session. 4. On 9 March 2019, the practitioner saw patients at the Practice. 5. On 11 March 2019, the practitioner issued invoices. 6. On 12 March 2019, the practitioner saw patients at the Practice, typed clinical notes issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 7. On 13 March 2019, the practitioner saw patients at the Practice, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 8. On 14 March 2019, the practitioner saw patients at the Practice and issued invoices with Dentist A's provider number. 9. On 15 March 2019, the practitioner saw patients at the Practice, typed clinical notes, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 10. On 17 March 2019, the practitioner saw patients at the Practice. 11. On 19 March 2019, the practitioner saw patients at the Practice, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the practice. 12. On 20 March 2019, the practitioner saw patients at the practice, typed clinical notes, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 13. On 21 March 2019, the practitioner saw patients at the Practice. 14. On 21 March 2019, cautions were proposed regarding the practitioner's late inadequate reflective report and required him to provide a revised reflective report. 15. On 22 March 2019, the practitioner saw patients at the Practice, typed clinical notes, issued invoices with Dentist A's provider number and used Dentist A's provider number at the HICAPS terminal at the Practice. 16. On 23 March 2019, the practitioner saw patients at the Practice. 17. On 24 March 2019, the practitioner saw a patient at the Practice. 18. On 24 March 2019, Dentist A arrived in Australia. 19. On 24 March 2019, the practitioner's provider number was generated at Sydney Road Dental Centre with the practitioner's mobile number. 20. Between 26 to 31 March 2019, the practitioner continued to see patients at the Practice. 21. On 27 March 2019, the practitioner was reminded to submit the auditor nomination. 22. During April 2019, the practitioner continued to see patients at the Practice. 23. On 8 April 2019, the practitioner attended the third mentoring session. 24. On 8 April 2019, the practitioner was issued a further reminder regarding the outstanding auditor nomination. 25. On 11 April 2019, the practitioner submitted an incomplete auditor nomination. 26. On 13 April 2019, the practitioner submitted a complete auditor nomination. 27. On 23 April 2019, the practitioner submitted a revised reflective report. 28. During May 2019, the practitioner continued to see patients at the Practice. 29. On 3 May 2019, the practitioner informed the Board "I have stated doing some part time work". 30. On 3 May 2019, the practitioner transferred $260.80 to Dentist A's bank account as payment for Dentist A working at the Practice as a locum. 31. On 10 May 2019, the practitioner informed the Board "I was only helping out, doing some locum work and that am no longer doing this." 32. On 16 May 2019, the practitioner attended the fourth mentoring session. 33. On 16 May 2019,104 the Board amended the conditions. The completed education conditions were removed. Conditions 5, 6 and 7 were unchanged. The Board also referred a voluntary notification to the Office of the Health Ombudsman (OHO) regarding the practitioner's conduct, relating to inconsistencies identified in the audit nomination provided by the practitioner on 6 March 2019. 34. On about 21 May 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he had not returned to practice, in circumstances where he was working at the practice from about 27 February 2019. Telephone call with practitioner I have not returned to practise I was simply helping out with management and administration of practice. 1. On about 23 May 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he was not practising, in circumstances where he was working at the practice from about 27 February 2019. 2. The practitioner informed the Board that he had: * provided "a couple of treatments" to patients at his mentor's practice on occasions when attending for mentoring and his mentor was running late; * attended his sister's practice and provided education to her staff and attended the clinic in Auburn for management of infection control but did not consider either of these to be practice; * attended his sister's practice and was working in the lunch room (real estate property development) and happened to speak with some staff members about their way of practice. 1. On 21 May 2019, the practitioner signed and submitted the HPC listing one place of practice "28 Queen Street, Auburn" and the Name of Senior Person as "Fatat Sardah". 2. On 28 May 2019, the practitioner transferred $332.40 to Dentist A's bank account as payment for Dentist A working at the practice as a locum. 3. On 31 May 2019, the practitioner was reminded about the outstanding audit plan. 4. During 3 to 12 June 2019, the practitioner continued to see patients. 5. On 4 June 2019, the practitioner transferred $669.00 to Dentist A's bank account as payment for Dentist A working at the practice as a locum. 6. On 5 June 2019, SGMED Pty Ltd applied for voluntary deregistration of the company. 7. On 7 June 2019, AHPRA sent the practitioner a notice to provide information. 8. On 10 June 2019, the OHO referred the notification to AHPRA for management. 9. Between 14 and 25 June 2019, the practitioner travelled overseas. 10. On 17 June 2019,120 the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he was practising occasionally at the practice, in circumstances where he was working at the practice from about 27 February 2019. 11. The practitioner was advised that AHPRA had received information indicating he is practising at My Auburn Dentist. The practitioner conceded that he was practising at this location but stated this was 'only occasional'. Upon further questioning, the practitioner stated he was working approximately 10 hours per week from the clinic. 12. On 20 June 2019, cautions were imposed relating to the practitioner's education and audit conditions. 13. On 25 June 2019, the practitioner was reminded about his revised audit plan. 14. During 25 to 27 June 2019, the practitioner continued to see patients. 15. On 27 June 2019, the practitioner transferred $1,220.00 to Dentist A's bank account as payment for Dentist A working at the practice as a locum. 16. On 29 June 2019, AHPRA received a notification. 17. On 1 July 2019, the practitioner provided false and/or misleading information to AHPRA in a practice information form to the effect that he commenced working at the practice in approximately mid-April 2019 and Dentist A was the owner of the practice, in circumstances where the practitioner was working at the practice from about 27 February 2019 and Dentist A sold the practice in early 2019 to a family trust in which the practitioner was involved. 18. The practitioner completed and submitted the notice to provide practice information. 19. In response to the question, "Are you are self employed or do you otherwise derive a living from your own profession or business as an owner or manager of your own business?" the practitioner circled the word "YES". 20. In the box for "Business/clinic name", the practitioner wrote "[the name of Dentist A]". 21. In the box for "Commencement date", the practitioner wrote "Approx MID Apr 2019". 22. On 1 July 2019, the practitioner provided false and/or misleading information to AHPRA by telephone to the effect that he commenced working at the practice in mid-April 2019, in circumstances where the practitioner was working at the practice from about 27 February 2019. 23. The practitioner confirmed he practices with two other dentists at the clinic, Dentist A and another dentist who only practice sporadically. The practitioner advised it is not a very busy clinic; he only works a few hours per week. Further questioning regarding the practitioner's return to practice date, the practitioner confirmed, mid-April, later conceding he may have started in March 2019. 24. On 2 July 2019, the practitioner attended the fifth (and last) mentoring session. The respondent did not attend six sessions within the six month period required by condition 7 imposed on 22 November 2018. 25. During 3 to 20 July 2019, the practitioner continued to see patients. Dentist A's travels overseas 5-27 July 2019 1. Between 5 and 27 July 2019, Dentist A was overseas on holiday and did not provide any dental services to any patients of the Practice, create any clinical records for any patients of the Practice or issue any invoices for dental treatment provided to patients of the Practice. Dentist A did not agree to the practitioner using Dentist A's provider number in July 2019. 2. On dates between about 5 July 2019 and 12 July 2019, the practitioner inappropriately billed for dental services in circumstances where: * Dentist A was overseas; * the practitioner provided dental services to patients at the Practice; * the practitioner used Dentist A's provider number. 1. On 5 July 2019, the practitioner saw patients at the Practice, and issued invoices with Dentist A's provider number. 2. On 9 July 2019, the practitioner saw patients at the Practice. Inspection on 9 July 2019 1. On 9 July 2019, the Council conducted an infection control inspection. The inspectors took photos and typed an infection control checklist. 2. On 9 July 2019, the practitioner failed to ensure the availability of the following documents at the practice: * Australian Guidelines for the Prevention and Control of Infection in Healthcare; * AS/NZS 4815, Office-based health care facilities – Reprocessing of reusable medical and surgical instruments and equipment, and maintenance of the associated environment; * Australian Dental Association Guidelines for Infection Control. 1. On 9 July 2019, the practitioner failed to maintain a workplace incident and accident register. 2. On 9 July 2019, the practitioner failed to ensure appropriate management of used sharps. 3. On 9 July 2019, the practitioner failed to ensure the availability of appropriate PPE. 4. On 9 July 2019, the practitioner failed to ensure the availability of the operating manual, performance qualification report and logbook for the "Mocom B+" steam steriliser and the "Stericlave" steam steriliser. 5. On 9 July 2019, the practitioner failed to retrieve his clinical records promptly when required, contrary to cl 2.5 of the Dental Board of Australia Guidelines on Dental Records. 6. On 10 July 2019, the practitioner saw patients at the Practice, issued an invoice and used Dentist's A provider number at the HICAPS terminal at the Practice. 7. On 10 July 2019, the practitioner emailed AHPRA: a. "In terms of the AUDIT PLAN, I have discussed with [my mentor] and am happy as outlined: For [my mentor] to run an audit of my practice at quarterly intervals, once the 6th mentorship session is done in late July/Early August. [My mentor] will come into my place of work and focus on the expected standard of clinical records and randomly select records from the previous quarter. I currently work on a sporadic and limited basis @ Auburn and am being treated for a medical condition so I am unable to work full time. On the advice of my doctors, I was advised in early feb/march to consider trying to do some part time work to try and see if I can redeploy myself as a practitioner after having taken around 11 months off work." 1. On 11 July 2019, the practitioner issued invoices with Dentist A's provider number. 2. On 11 July 2019, the practitioner advised the Board: Discussion re: current practising status. The practitioner stated Dr Dentist A was the owner of the practice in Auburn, he was the manager of the Practice. The practitioner was questioned regarding the Family Trust – SGMED – listed as the owner of the practice. The practitioner denied having any involvement in that trust. 3. On 12 July 2019, the practitioner saw patients at the Practice. 4. On 15 July 2019, the practitioner saw patients at the Practice and issued an invoice with Dentist A's provider number. 5. On 15 July 2019, the practitioner emailed AHPRA: "i. I was doing some part time work in Sydney but am overseas from tomorrow until end of July. At the moment, i am not practicing. I was doing some part time work in Auburn but am planning to cease that." 1. On 15 July 2019, the practitioner removed his provider numbers at My Auburn Dentist and at Sydney Road Dental Centre. 2. On 16 July 2019, the practitioner departed Australia. 3. On 17 July 2019, the practitioner provided false and/or misleading information to the Council by telephone to the effect that Dentist A is still the practice principal at the Practice and that the practitioner does not have any ownership stake in the Practice, in circumstances where Dentist A sold the Practice in early 2019 to a family trust in which the practitioner was involved. 4. The practitioner said words to the effect that: He is on holidays overseas so is not currently practising. He was practising and doing consulting work at the practice in Auburn owned by [Dentist A]. His dental practise at Auburn was just to help out [Dentist A] while he was also doing consulting work there. He is not a director, shareholder, practice principal etc – he was one of three dentists working at the Auburn practice at the time. [Dentist A] is still the Practice Principal at Auburn. When providing treatments at Auburn, the practice billed all work with [Dentist A] as the Practice Principal. He didn't have a provider number there as he was just 'helping out'. He does not have any ownership stake in the Auburn practice. 1. On 17 July 2019, the Council emailed the practitioner, providing him with documents for the s 150 hearing, requiring him to submit an employment declaration and inviting him to provide submissions. 2. On 19 July 2019, the practitioner emailed the Council attaching his employment declaration dated 18 July 2019. His email stated: "I was helping out in a part time capacity @ My Auburn Dentist and the practice is currently unattended by a senior dentist. [Dentist A] is overseas as well" His employment declaration stated, in the box labelled "Name and address of workplace (list all current workplaces whether paid or voluntary)" the practitioner typed "N/A NOT WORKING CURRENTLY". 1. On 19 July 2019, the Council emailed the practitioner, inviting him to make submissions. 2. On 19 July 2019, the practitioner emailed the Council: There is no practical need for such a rushed hearing as the clinic is not operational and no staff or dentist is there. 1. On 19 July 2019, the practitioner again emailed the Council: I am under treatment for medical condition relation I gotta to stress, burnout, anxiety and have taken a lot of time off in last 24 months - this was a mere attempt to try and get back part time practice on my doctors [sic – doctor's] advice. 1. On 22 July 2019, the Council telephoned the practitioner: "I clarified with Dr Gupta the following: - Dr Gupta cancelled his provider number 1-2 weeks ago. - He does not plan to return to dental work when he returns from his holiday… My Auburn Dentist is currently unattended by any dental staff: [Dentist A] is away; Dr El-Saedy has not worked for around three months; the Practice Manager left a few weeks ago. The practice has outsourced appointment bookings to an independent call centre. Dr Gupta did a very small amount of dental work at his mentor's] practice in Manly for the purposes of fulfilling his mentoring requirements for his AHPRA QLD conditions." Section 150 hearing and suspension on 23 July 2019 1. On 23 July 2019, s 150 proceedings were conducted. The practitioner attended the hearing remotely via teleconference, was not assisted by a legal adviser and gave evidence. 2. On 23 July 2019, the practitioner's registration was suspended. 3. On 23 July 2019, the Council referred the matter to the Commission. 4. On 30 July 2019, the practitioner arrived in Australia. 5. On 15 and 16 August 2019, the practitioner transferred $1,100.00 and $683.20 to Dentist A's bank account as payment for Dentist A working at the practice as a locum. 6. On 20 August 2019, the s 150 decision was delivered. 7. On 18 September 2019, Solstice Dental Pty Ltd (with Huy Nguyen as the director) became the holder of the business name "My Auburn Dentist". 8. On 18 October 2019, the business Name My Auburn Dentist ABN 23 309 028 482 was no longer held by The Trustee for The SGMED Family Trust. 9. On 30 October 2019, the Commission emailed the practitioner requesting "the name and full contact details of your employer when you were working as a dentist at My Auburn Dentist". 10. On 16 April 2020, the practitioner made an application to review the suspension. 19 June 2020 s 150A hearing 1. On 19 June 2020, the Council conducted a s 150A review hearing to review the practitioner's suspension. 2. On 19 June 2020, the s 150A delegates decided not to lift the suspension. The delegates concluded that: OUTCOME … Dr Gupta has not demonstrated at the s150 proceedings that he has an adequate level of knowledge in infection control, therefore he is a risk to the public and staff. Dr Gupta indicated he is unaware of previous complaints relating to infection control and demonstrated a lack of insight into the importance of good infection control practices. Dr Gupta demonstrated a lack of understanding of responsibilities as a registered dental practitioner asserting a good practice manager would ensure compliance with infection control requirements. Dr Gupta was provided a copy of the inspection report dated 9 July 2019 detailing the areas of non-compliance. Dr Gupta attended an infection control course in December 2018. Dr Gupta has four previous complaints with APHRA involving infection control. Dr Gupta's level of knowledge related to infection control remains at an unacceptable standard. Dr Gupta has demonstrated that he is unable to remediate his practice. We conclude that Dr Sidharath Kumar Gupta does pose a risk to the safety or health of the public that warrants action being taken. Therefore, we must consider the following questions: i. Are there conditions that could be imposed to adequately protect the public? i. Is it appropriate to suspend Dr Gupta's registration? Are there conditions that could be imposed to adequately protect the public? We considered the AHPRA's decision in November 2018 to place conditions on Dr Gupta's registration to protect the public from the real and on-going risk represented by the deficiencies in the practitioner's skill and knowledge. Dr Gupta's non-compliance with these conditions demonstrate that action other than suspension will be inadequate to protect the public. Further, we cannot be satisfied that Dr Gupta's skill and knowledge could be adequately improved by further education and training. His knowledge and practice of infection control remains poor, notwithstanding completion of a course in December 2018. Is it appropriate to suspend Dr Gupta's registration? Dr Gupta has a history of complaints and conditions that are relevant to the matters explored at the s150 Proceedings. Dr Gupta has been non-compliant with the conditions on his registration imposed by AHPRA Queensland. Dr Gupta revealed that he practiced in multiple locations without notifying the Board of these places of practice. Dr Gupta also revealed he was practising independently at his mentor's practice. Despite recent education in infection control, a history of past complaints related to infection control and having received a copy of the 9 July 2019 infection control inspection report, Dr Gupta continues to demonstrate significant deficiencies in his skill and knowledge which pose a real and ongoing risk to the public and staff employed at his practices. Dr Gupta did not demonstrate that he understands his responsibilities as a dental practitioner or that he can remediate non-compliant practice. On this basis, our view is that the only way to ensure the health and safety of the public is to suspend Dr Gupta's registration. Relevant Law 1. It is appropriate to set out the relevant provisions of the National Law. These are as follows. 2. Section 3, which 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 (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (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 (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 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. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note — This definition is an additional New South Wales provision. 1. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. .. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law (again, an additional provision for NSW), provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Relevant principles to be applied Unethical conduct 1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. 1. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60]. Determining a protective order 1. As the Tribunal recently stated in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [58], paraphrasing Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 at [101], the relevant principles in determining a protective order have been stated on many occasions and include the following: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 4. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 7. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; 8. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 1. In addition, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to). 2. In Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] that the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely: * the gravity of the misconduct; * how long ago the misconduct occurred; * what has occurred in relation to the practitioner since the misconduct; * the practitioner's level of remorse and degree of insight, if any into his or her misconduct; * what if any steps have been taken by the practitioner by way of rehabilitation; * general encouragement of high standards; and * specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future. Stage One Consideration Complaint One 1. The practitioner has admitted the two particulars of Complaint One. 2. Regardless of the admissions, we would have found the two particulars established, that conclusion being readily available on the basis of the AASF and supported by the copious evidentiary references in the Commission's submissions. 3. Complaint 1 is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law because he contravened conditions to which his registration was subject. 4. The practitioner submitted that he was so guilty. 5. We think he was right to do so. It is well established that conditions of registration for health practitioners must be "scrupulously observed" and it is "essential" to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95] followed in many subsequent cases including Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at [45]; Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23 at [31]; Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [74]; Prakash at [74]. Complaint Two 1. The practitioner has admitted the nine particulars of Complaint Two. 2. Regardless of the admissions, we would have found the nine particulars established, that conclusion being readily available on the basis of the AASF and supported by the copious evidentiary references in the Commission's submissions. 3. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law (because he engaged in improper and/or unethical conduct relating to the practice or purported practice of dentistry). 4. The practitioner admitted that he was so guilty. 5. We think he was right to do so. Whether conduct is improper or unethical is an objective test. Registration standards and codes/guidelines approved by a National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the health profession and may be relevant to whether conduct is improper or unethical. The conduct the subject of Complaint Two included inappropriately billing for dental services and providing false and/or misleading information to AHPRA on a number of occasions. 6. In our view, the practitioner's conduct was both improper and unethical conduct relating to the practice of dentistry. Complaint Three 1. The practitioner has admitted the seven particulars of Complaint Two. 2. Regardless of the admissions, we would have found the seven particulars established, that conclusion being readily available on the basis of the AASF and supported by the copious evidentiary references in the Commission's submissions, and the expert opinion of Dr Gautam Sridhar. 3. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 4. The practitioner admitted that he was so guilty. 5. We think he was right to do so. The conduct the subject of Complaint Three included failing to ensure the availability of various guidelines and protocol documents at his practice, failing to maintain a workplace incident and accident register, failed to ensure appropriate management of used sharps, failing to ensure the availability of appropriate Personal Protective Equipment, failing to ensure the availability of the operating manual, performance qualification report and log book for the "Mocom B+" steam steriliser and the Stericlave steam sterilizer, failing to retrieve his clinical records promptly when required, contrary to cl 2.5 of the Dental Board of Australia "Guidelines on Dental Records". 6. In our view, this conduct cumulatively amounted to unsatisfactory professional conduct. Complaint Four 1. Complaint Four is that the practitioner is guilty of professional misconduct under section 139E because he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 2. The practitioner admits professional misconduct. 3. The Commission submits that Complaint One is of such a sufficiently serious nature as to justify suspension or cancellation. 4. We agree, because, as submitted by the Commission: 1. the practical effect of breaching condition 5 was that AHPRA was unaware that the practitioner was seeing patients at the practice between 27 February 2019 and May 2019 and AHPRA could not take steps to minimise risk; 2. the practical effect of breaching condition 7 was that the practitioner continued to see patients on various dates from 27 February 2019 through March, April and May 2019, even though he only attended 4 mentoring sessions during the 6 month period stipulated; 1. A failure to comply with conditions can amount to professional misconduct. In Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 the Tribunal stated at [56] … it is a fact that the practice conditions were lawfully imposed on his registration and there can be no doubt that they were so imposed for the protection and safety of the public. Practice conditions are an integral and important part of the regulation of health practitioners in New South Wales. The Practitioner was obliged to conform to them, and his failure to do so not only arguably jeopardised the safety of the public, but also manifested a disregard by the Practitioner of his lawful obligations. ... Rules and regulations which are part and parcel of the important practice of dental surgery are imposed for a purpose, namely the protection of the safety of the public, and any dentist who conducts himself or herself in a manner which is inconsistent with these rules and regulations is thereby exposed to a finding of professional misconduct and the consequent protective orders which may follow. 1. The Commission also submits that Complaint Two is of such a sufficiently serious nature as to justify suspension or cancellation. 2. We agree, because, as submitted by the Commission: 1. the practitioner knew that Dentist A was no longer the owner because he was directly involved in the sale of the practice from Dentist A to the family trust (the practitioner was one of two named beneficiaries of the and transferred the purchase price into Dentist A's bank); 2. the practitioner knew that AHPRA was interested in where he was working; 3. the practitioner deliberately did not tell AHPRA that he had started working because he wanted to avoid scrutiny; 4. the practical effect of the practitioner providing false/misleading information to AHPRA was that AHPRA could not contact a senior person at the practice to ensure they were aware of the conditions to ensure patient safety; 5. the practitioner compounded his conduct by naming his receptionist and his (who were neither dentists nor senior persons); 6. the practical effect of the practitioner providing false/misleading information to the Council was that the practitioner minimised the duration/nature of his work at the practice; 7. the practitioner was familiar with generating and ending his own provider numbers via Health Professional Online Services because he ended his previous provider numbers (after selling his Queensland clinics), generated his own provider number at Auburn (on 4 March 2019), generated his own provider number at Manly (so he could do some work with his mentor) and later ended his provider numbers (when he decided to cease practice); 8. the practical effect of the practitioner inappropriately using Dentist A's provider number was that patients' health funds were billed for dental services rendered by the practitioner (rather than Dentist A, who was their fund's preferred provider). 1. The Commission also submits that Complaint Three is of such a sufficiently serious nature as to justify suspension or cancellation. 2. We agree, because, as submitted by the Commission: 1. the practitioner's failure to ensure the availability of the infection control guidelines meant that he and his staff were unable to refer to the guidelines to ensure patient safety; 2. the practitioner's failure to maintain a workplace incident and accident register meant that he and his staff were unable to log adverse events and take steps to avoid similar events in future; 3. the practitioner's failure to ensure appropriate management of used sharps placed staff at greater risk of penetrating injury during transportation and disposal; 4. the practitioner's failure to ensure the availability of appropriate PPE posed a risk of transmission of infectious agents; 5. the practitioner's failure to ensure the availability of the records for the sterilisers meant that the practitioner could not be satisfied that the two machines were operating correctly to sterilise reprocessed instruments which posed a serious risk to patient safety; 6. the practitioner's failure to retrieve his clinical records meant that the inspectors could not assess whether they were sufficient to ensure continuity of care. Stage Two Consideration The Commissions submissions 1. The relevant principles relating to the imposition of a protective order are set out above. 2. The Commission submits that cancellation with a one to two year non-review period is appropriate because, in summary: 1. Complaint One involved the practitioner breaching two conditions imposed on his registration to protect the public; 2. Complaint Two included dishonesty to the regulator, on several occasions, to avoid scrutiny at the practice; 3. Complaint Three involved unsafe clinical practices, in several fundamental aspects of dentistry. 1. The Commission further submits that a one to two year period of cancellation is appropriate because the practitioner lacks insight, by: 1. minimising his practice ("a little bit of part time work"; "There's not a lot of patients"); 2. minimising his involvement in the family trust ("the director of the family trust is not me ... I don't have shareholder interests" ... "I wasn't the owner"); 3. minimising the occasions when he used Dentist A's provider number ("It may have happened in one or two instances where the first week or two"); 4. minimising his responsibility for infection control ("Can I just say with infection control, the whole idea was to have a good practice manager"); 5. minimising his responsibility for sterilisation maintenance/recording (he relied on the technician doing the six monthly service, relied on staff for daily maintenance, he relied on staff for the log book "they record everything" and relied on staff for the "back end" tasks); 6. deflecting his responsibility for the sharps container ("they store it in the sterilisation room. ... I don't know why the nurses do that"); 7. being unaware of his clinical deficiencies ("I have to say I'm perfectly competent and it's just something that, it's a weak point in my knowledge base. ... I don't understand how infection control has continued to be an issue" ... "there's probably several hundred practices across metropolitan Sydney that would be inferior to mine"); 8. being unaware about the risk to the public during the section 150A hearing, and not having completed any further education about infection control since his suspension. The practitioner's submissions 1. The only document received from the practitioner was an email to the Commission dated 15 August 2022 in which he stated: Thank you for your submission and I appreciate having the time last Monday to openly discuss my situation. I would like to respond with the following which is a basic summation of what we already discussed: 1. I have already been unable to work fully as a dentist for 3 years due to the suspension. 2. the reasons for my suspension are multifaceted and I don't seek to dismiss or diminish the mistakes I made. 3. I feel my indiscretions were mainly due to immaturity and a desire for outsized financial gain. My emotional and life situation is now very different and I would be grateful to be able to practice in a part time capacity for reasons that have nothing to do with financial gain. 4. I believe I would be an asset to a private practice and my clinical work will be of a high standard if I can work in a supportive environment alongside experienced colleagues. 5. My work hours are predominately spent in a non dental investment business [SAP Capital - alongside family members] and this would continue to be the case even if I was to re-enter dentistry in some capacity. 6. I served as a dental volunteer in Vanuatu, Cambodia and Nepal. I went to many CPD events both in Australia and overseas. I do miss the professional camradie and the intellectual stimulation of practicing dentistry. 7. I would be committed to doing CPD courses to plug gaps in my knowledge base relating to infection control in the interim period before my cancellation would lapse. 8. I would request the process to reapply for registration is not overly onerous and that my registration would be free of conditions [provided the necessary CPD courses can be done in the interim period]. 9. I would seek a 6 month suspension which I think i fair. This would align to around a March 2023 reentry into the workforce and I wish to settle back in Sydney permanently due to my partner moving there for work too. 1. These matters were addressed in supplementary submissions filed by the Commission on 29 August 2022. Relevantly, the Commission submitted (footnotes omitted): a. the practitioner's registration was suspended on 23 July 2019; b. the section 150 delegates reviewed the limited material available at that time, conducted a hearing3 and exercised their power to impose a suspension under section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law"); c. the Tribunal now has considerably more material and admissions available, conducted its own hearing and has its own power to suspend or cancel the practitioner's registration under section 149C(1)(b) of the National Law; d. the protection of public safety and health is paramount; e. the fact of a previous suspension is not a mandatory consideration for this Tribunal when now considering the appropriate orders to protect the public; f. in criminal proceedings, which are punitive, it is understandable for the court to take into account time previously served when fixing a term of imprisonment; g. however, in disciplinary proceedings, which are protective, the Court of Appeal has held that fact of a previous suspension period is not a mandatory consideration; h. it may be appropriate to take into account a previous suspension period, albeit in limited circumstances; i. for example, if, during the suspension period, a practitioner has engaged in substantial rehabilitation, undertaken appropriate treatment, accepted full responsibility, completed relevant further education, taken meaningful steps to improve their practice and demonstrated genuine insight, those factors may be relevant; j. however, if, during the suspension period, a practitioner has not engaged in any rehabilitation, has not completed any further education and has not demonstrated any insight, the suspension period would not lessen the appropriate protective orders; k. the Commission submits that it is the practitioner's conduct during any suspension period, rather than the mere fact of the suspension period, which is most relevant when this Tribunal considers appropriate orders to protect the public; l. in this matter, there is no evidence that the practitioner engaged in any rehabilitation or education during his suspension period and there is evidence that the practitioner still lacks insight so the Commission maintains that cancellation is appropriate for the reasons expressed in the Commission's submissions. Consideration 1. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include: * the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; * the unacceptability of certain kinds of conduct; and * the maintenance of confidence in the high standards of the profession. 96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 1. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct. 2. We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession. 3. We agree with the Commission's submissions that the practitioner lacked insight for the reasons set out above. We also consider that he lacked insight by a failure to take the Tribunal proceedings and his own conduct seriously. In answer to a question from a Tribunal member, he agreed that he was cynical about AHPRA. He also exhibited flippant attitude to his mentoring sessions, "Manly [being] a good place to hang out in the afternoon". He also agreed that he did not take the mentoring seriously. 4. In addition to these matters, we were also disturbed that at the time of the hearing he did not understand the difference between "gloves" and "sterile gloves", or the "five moments of hand hygiene". We were further troubled that having told the delegates at the s 150A hearing in June 2020 that he would attend an infection control course, he did not do so. 5. Balancing all the evidence before us, we consider that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of two years from the date of these reasons. Costs 1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. As the Commission has been successful, we propose to order the practitioner to pay the Commission's costs as agreed or as assessed. 3. If either party wishes seeks some other order, they should provide submissions to the Tribunal and the other party within two weeks, and that party should reply within a further two weeks. 4. If it becomes necessary for the Tribunal to determine this issue, we propose to decide the matter "on the papers", and without a hearing. If either party opposes that course they should address that matter in their submissions Conclusion 1. The Tribunal orders: 1. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Health Practitioner Regulation Law (NSW). 2. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Health Practitioner Regulation Law (NSW). 3. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Health Practitioner Regulation Law (NSW). 4. The respondent is guilty of professional misconduct under s 139E of the National Health Practitioner Regulation Law (NSW). 5. The respondent's registration as a dentist is cancelled. 6. The respondent may not apply for review of the cancellation order for a period of two years. 7. The Tribunal proposes to order the respondent to pay the applicant's costs as agreed or as assessed. If either party wishes seeks some other order, they should provide submissions to the Registry and the other party within two weeks of the date of publication of these reasons, and that party should reply within a further two weeks. ********** 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: 11 November 2022