Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Caruana [2024] NSWCATOD 13 Hearing dates: 5 December 2023 Date of orders: 5 December 2023 Decision date: 29 January 2024 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Dr E Peel, Senior Member Dr M Jonas, Senior Member J Houen General Member Decision: 1. Complaint One is established. 2. Complaint Two is established. 3. The respondent's registration as a dentist is cancelled. 4. The respondent may not apply for review of the cancellation order for a period of 3 years. 5. If the respondent opposes the Tribunal's proposal that he pay the applicant's costs as agreed or as assessed: (a) the respondent must file submissions on or before 12 February 2024; (b) the applicant may reply on or before 26 February 2024. Catchwords: PROFESSIONS AND TRADES – dentistry – complaints of impairment and competence – appropriate protective order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 5, 139, 144, 145E, 149C, 150 Cases Cited: Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Clarke [2022] NSWCATOD 146 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Qasim [2014] NSWCATOD 42 Health Care Complaints Commission v Richardson [2022] NSWCATOD 148 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Richard Caruana (Respondent) Representation: Counsel: A B Petrie (Applicant) Solicitors: Health Care Complaints Commission (Applicant) The respondent did not appear in the proceedings. File Number(s): 2022/00299075 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 Richard Caruana (practitioner). 2. By Application for Disciplinary Findings and Orders filed 7 October 2022, the Commission seeks cancellation of the registration of the practitioner as a dentist under s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law). 3. A combined "Stage 1" and "Stage 2" hearing was held on 5 December 2023. 4. In summary, we find the two complaints made by the Commission proved. 5. The Commission sought an order that the practitioner's registration be cancelled, with a non-review period of 3 years. 6. We agree that the practitioner's registration be cancelled and that the non-review period should be 3 years. The Complaints 1. There were two complaints made by the Commission in its Complaint filed 7 October 2022. Complaint One 1. Complaint One is that pursuant to s 144(d) of the National Law, the practitioner has an impairment within the meaning of s 5 of the National Law being a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the Respondent's capacity to practise the profession of dentistry. 2. The background to the Complaint One is: The practitioner was first registered as a dental practitioner in New South Wales on 22 December 1988. On 1 December 2020, the practitioner emailed the Honourable Greg Hunt MP, and copied the AHPRA National Information Release Unit into the email. The subject line of the email was "Query assurance that by Re-registering as a Dentist in NSW that Dentists will no[t] be co-conspirators to Acts of Terrorism and/or Treason". AHPRA referred the email to the Health Care Complaints Commission on 3 December 2020 stating that "the email raised concern that the practitioner may be experiencing a health condition or disability that may negatively impact on his practise of dentistry". On 3 May 2021, the practitioner was referred to attend a health assessment with a psychiatrist. The practitioner did not attend this appointment. On 15 June 2021, the practitioner's registration was suspended following s 150 proceedings. The practitioner appealed the suspension to the NSW Civil and Administrative Tribunal. The practitioner was again referred to attend a health assessment with a psychiatrist on 21 October 2021. The practitioner did not attend. 1. The sole Particular of Complaint One is that the practitioner suffers from a psychotic illness, most likely schizophrenia. Complaint Two 1. Complaint Two is that the practitioner is not competent within the meaning of s 139(a) of the National Law in that he lacks the mental capacity to practise as a dentist. 2. There are three Particulars of Complaint Two: 1. Particular 1 of Complaint One; 2. the practitioner failed to comply, without reasonable excuse, with a direction under s 145E of the National Law to attend for an examination with a Dental Council of NSW (Council) appointed practitioner, Dr Mary-Anne Friend, scheduled for 9 June 2021; 3. the practitioner failed to comply, without reasonable excuse, with a direction under s 145E of the National Law to attend for an examination with a Council appointed practitioner, Dr Antonella Ventura, on 21 October 2021. The Commission's evidence 1. The Commission relied two bundles of materials respectively filed on 5 November 2023 and 16 November 2023. 2. The first bundle of materials included but was not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; correspondence between the Council and the practitioner; correspondence between the Council and the Commission, correspondence between the practitioner and the Australian Dental Association; Dental Board of Australia Guidelines and the practitioner's curriculum vitae; the Council's reasons for decision under s 150 of the National Law dated 2 July 2021 suspending the practitioner's registration; the email of Dr Mary-Anne Friend to the Council dated 9 June 2021, and the expert report of Dr Antonella Ventura dated 24 October 2021. 3. The second bundle of materials included materials relating to and the supplementary report of Dr Antonella Ventura dated 10 November 2021. The practitioner's evidence 1. No materials were filed by the practitioner. Findings 1. On 22 December 1988, the practitioner was first registered as a dentist in NSW. 2. On 12 July 2018, the practitioner sent a 6 page email to the Australian Dental Association, copied to three others, including retired Supreme Court judge the Hon Greg James AM KC, relevantly stating: … I have information of a criminal nature that would suggest that there is collusion between the Australian Government and Insurance Companies and Vaccine Companies to the effect that this would effectively mean a loss of Rights to coerced INFORMED CONSENT, intimidating Dentists who are would-be whistle-blowers to CAPITAL CRIMES such as myself and I believe a growing number may feel the same way once educated. A conflict of interest matter for REGULATORS should also be investigated. When I tried this once before, to inform of safer alternatives to vaccines, The Federal Member for Health, Mrs S. Faye ended up resigning, as did the Premier for NSW, and the State Member for Health, Mrs Skinner. Something big is going on and the PUBLIC needs to know. That the associated fees with Practice ACCREDITATION and PRACTICE UPGRADES is prohibitive for some Dentists such as myself. I foresee changes coming which would effectively STRIP DENTISTS AND DOCTORS of the Right to refuse any mandatory vaccination. I also foresee that Health Practitioners would be led to interrogate patients for VACCINE REGISTER STATUS and make judgements on whether to treat them. Health is the LAST ESTATE and if the piece of Australia that we are allowed to stand on, or sit, or work at, or learn in, is dictated to us by draconian LAWS and SCIENTIFIC FRAUD then GOD HELP US ALL. I have been practicing for some 25 years without problems in INFECTION CONTROL. It seems that as vaccination rates rise so does the number of super-bugs and there is a rise in disease and poor health. I wonder if the BOY-IN-THE-PLASTIC-BUBBLE trend in health and perceived need for better INFECTION CONTROL is PROOF enough that VACCINES ARE IN FACT PART OF THAT PROBLEM and these CAPITAL INVESTMENTS which seem to change every three years is PART OF a CORRUPT COLLUSION STRATEGY favoring INSURANCE COMPANIES AND VACCINE COMPANIES. I also feel that the CPD scheme as it currently stands prevents "thinking outside the square" that this may also be used as a political weapon to intimidate Dentists and Doctors alike. There is much more that I would like to say but as the end of the year where Practice Accreditation implementation is fast approaching I would like to investigate the possibility of being exempt from Practice Accreditation and associated fees and to invite any upgrades that are deemed as required [ even though the Dental Board said everything was OK in my surgery after an inspection a few years ago] to be done FREE OF CHARGE by whoever is most QUALIFIED TO MAKE THIS DECISION. I WOULD ALSO LIKE TO BE EXEMPT FROM ANY AND ALL CPD REQUIREMENTS UNDER THE LAW UNTIL SUCH EVENTS AS 9/11 TRAGEDY …, THE BALIBO-FIVE MURDERS, THE LAS VEGAS MASSACRE FALSE FLAG OPERATION Oct 2017 where I sent the FBI and the Australian Federal Police information that an ACTIVE SHOOTER was filmed at /near the 12th Floor of the Mandalay Bay Hotel on the night in question by a passer-by TAXI DRIVER, AND THE PORT ARTHUR MASSACRE [where witnesses say the shooter was not Martin Bryant] CAN BE PROPERLY INVESTIGATED. I am also a witness to the alleged Barbara Ramjan-Tony Abbott incident of bullying and intimidation at Sydney University 7th Sept 1977 when I was 13 years old near the Main Quadrangle at Sydney University after Mr Abbott lost the SRC Election to Miss Ramjan. … Do I need some sort of witness protection? … I believe my phone is bugged and interfered with … (Emphasis added, capitalisation as in original) 1. On 1 December 2020, the practitioner emailed the then Federal Minister for Health the Hon Greg Hunt MP, and copied the AHPRA National Information Release Unit into the email. The subject line of the email was "Query assurance that by Re-registering as a Dentist in NSW the Dentist will not be co-conspirators to Acts of Terrorism and/or Treason". 2. The email relevantly stated: … I have serious concerns as a concerned citizen who is of sound mind, that the Australian Government is making many changes to the Law. In respect of the seemingly perpetual COVID-19 Pandemic declared in March 2020 by Prime Minister Scott Morrison, and a recent poll by Australian Dentists via the Australian Dental Association of which I am a member, and, that the Poll found that Australian Dentists have lost faith in the Australian Government. The further RoboDebt scandal was an attempt by the Australian Government to defraud Australian Tax Payers and more recently the SAS soldiers who killed innocent civilians in Afghanistan overseas are causes for a concerned citizen to have doubts about health policy which a competent Barrister could argue that the COVID PCR-test FRAUD PANDEMIC is just that, if it can be proven in a Court of Law that the COVID PCR-TEST, currently used in Australia, is run at 35 cycles or Higher then it is arguably scientifically meaningless. … Can you please verify that by signing/renewing my AHPRA Dental Board registration for 2020 which I have currently deferred for legal reasons, that I am not going to be found to be a legally definable accessory and/or co-conspirator to Acts of Terrorism and/or Treason? Your failure to answer this question in the negative will be implied to mean that if I do sign to renew the abovementioned Dental Board Registration that I will be a citizen who is coerced into legally definable criminal Acts. Your Prompt answer to this question is required as soon as possible. Legal Action is being contemplated. (emphasis added) 1. On 8 December 2020, AHPRA referred the email to the Commission (the complaint), relevantly stating that: … the structure and content of Dr Caruana's email may indicate that he is experiencing a health condition or disability that may negatively impact on his practise of dentistry. 1. On 11 December 2020, the Commission wrote to the practitioner, notifying him and requesting a written response to the complaint by 24 December 2020. 2. On 22 December 2020, the Commission wrote to the practitioner asking for a response to its letter of 11 December 2020. 3. On 22 December 2020, the Commission wrote to the practitioner asking if a new date of 14 January 2021 would suit him. 4. On 24 December 2020, the practitioner responded stating: SORRY, OCT 31ST 2021 GIVES ME MORE TIME IF THAT IT SPOSSIBLE. OTHERWISE 60 DAYS FROM DEADLINE ABOVE IS NOT POSSIBLE AS THIS HAS NEVER HAPPENED BEFORE. (Capitalisation as in original) 1. On 10 January 2021, the Commission wrote to the practitioner, exercising its powers under s 21A(1)(b) of the Health Care Complaints Act 1993 (NSW) requiring him to produce a response to the complaint. 2. On 25 January 2021, the practitioner sent a 4 page email to the Commission relevantly stating: … I have many concerns which have been ignored over the years by Health Authorities. My frustration at what a competent litigator … would class as fraud regarding the handling of the COVID-19 (Wuhan VIRUS) Pandemic has some main features that need to be addressed. … 4) A growing number of Doctors around the world are becoming concerned that FORCED VACCINATION or COERCED VACCINATION is tantamount to attempted MURDER see Dr Simone GOLD of USA. Many cases of people dying recently after COVID-19 vaccination are causing concerns and the VACCINATION using COVID -19 is being stopped in Norway Jan 2021. 5 Finland TGA approval that scares many people FORCED VACCINATION is a violation of my Human Rights under the Nuremberg CODE and I and many other health professional and a growing number of Governments say it is not a vaccine in the true sense of the word due to the presence of many new technologies one of which is mRNA. The vaccine has been given emergency or provisional approval in many countries worldwide, but Australia's TGA said its analysis was "rigorous and of the highest standard". The TGA has granted provisional approval to Pfizer Australia Pty Ltd for its COVID-19 vaccine, COMIRNATY, making it the first COVID-19 vaccine to receive regulatory approval in Australia. … MP Craig Kelly has supported Former President Trump in using Hydroxychloroquine and ZINC to treat COVID infections like COVID-19 and COVID 21. Italian Court recently supports use of Hydroxychloroquine and ZINC. … I have concerns that legal cases for attempted murder with be made by a growing number of competent litigators on behalf of Health Care Professionals both here in Australia and abroad. I would be happy to volunteer to be part of an EMERGENCY COVID RECOVERY TEAM with Doctors at Westmead or Penrith Hospitals under the tutelage of someone like Prof. Rinaldo Bellomo of Victoria in using MEGA-DOSE I.V. Vitamin-C 1.0 gram/kg/day to treat critically ill COVID or SEPSIS patients so long as I was able to work without having any vaccinations, just daily Vitamin-C and Zinc and PPE as required. I believe that if allowed, I could end the PANDEMIC in about 6-8 weeks if everyone did the following :- 1) Ban all Flu shots to remove vector of spread 2) 2 grams /day Lypospheric Vitamin-C for all Hospital inpatients. 3) For critically ill COVID and SEPSIS Patients 1.0 gram/kg/day under Specially Trained Doctor. 4) Distribution of necessary medicaments was not blocked or impeded. I gave two treatment protocols to Fed. Health Minister. Greg Hunt for infections like COVID in November 2019 one month before the WUHAN VIRUS PANDEMIC started in China 8 December 2020. Namely, the MEGA-DOSE Vit-C and Ozone Hemotherapy so I am wondering if a case exists for manslaughter if a competent litigator takes on such a legal case. If the abovementioned protocol can save up to 95% of seriously ill COVID patients if caught early enough. Let's be honest COVID-19 and COVID-21 are variants of the COMMON COLD or COMMON FLU. I oppose any and all forms of FORCED/ COERCED VACCINATION. … Vitamin-C? Is it possible that therapeutic treatment of SERIOUS infections could out mode the eventual use of vaccines altogether? I do believe that with this properly calibrated treatment the PANDEMIC would never have happened. I could go on and on. I would have needed much more time to say more. I hope you have enough information to make a decision. (emphasis added, Capitalisation as in original) 1. On 3 May 2021, the practitioner was referred to attend a health assessment with a psychiatrist. He did not attend this appointment. 2. On 15 June 2021, the practitioner's registration was suspended following s 150 proceedings. In its reasons for decision the Council relevantly stated: … The delegates noted that Dr Caruana has strong views, which are contrary to current scientific and medical evidence, regarding the efficacy of vaccination regimes for influenza and COVID-19. It was further noted that the views and opinions expressed by Dr Caruana exhibit signs of grandiosity, paranoid thoughts, a belief in conspiracy theories and disordered thinking. Based on the information available, the delegates concluded that Dr Caruana is likely to be impaired due to a mental health condition. The delegates are also concerned that given some of the documents provided by Dr Caruana which exhibit issues of concern date back to 2018, his health may have been impaired for some time. The delegates concurred with the opinion expressed by Dr Friend in that we are concerned that Dr Caruana is likely to be viewed as a trusted and knowledgeable health professional by his patients, and if he were to express his views to his patients, they may in turn act on these views and or advice to their detriment. It is also possible that his apparent attraction to non-evidence based beliefs may spill over into his dental practice. Does any impairment raise concerns for the health or safety of the public? The delegates are concerned that, until a full health assessment is conducted, Dr Caruana has the potential to influence patient decisions regarding their own health needs or otherwise pose a risk to patient safety. Does the practitioner's practice pose a risk to the health or safety of the public? The delegates concluded that Dr Caruana does pose a risk to the health or safety of the public. Are the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice? The delegates considered it necessary to take action to protect the health and safety of the public. As we conclude that it is appropriate to take action under s. 150 of the National Law (NSW) in respect of Dr Richard Caruana for the protection of the health or safety of the public or otherwise in the public interest, it is necessary to consider the following questions: Are there conditions that could be imposed on the practitioner's registration that would (a) sufficiently mitigate any identified risks to the health or safety of the public or (b) would mitigate concerns regarding the public interest? The delegates considered whether any condition could be imposed on Dr Caruana's registration to protect the public's health and safety. The delegates believe that no conditions could be imposed to adequately protect the public. 1. The practitioner appealed the suspension to the Tribunal. While the Commission submitted that the appeal was unsuccessful, we are not satisfied that that is the case. We understand that no decision has yet been given in that matter. Be that as it may, we find that, as of the time of that these reasons have been prepared, an appeal has not been successful. 2. On 21 October 2021, the practitioner was again referred to attend a health assessment with a psychiatrist. Again, he did not attend. Expert evidence 1. The Commission relies on the expert evidence of Dr Friend and Dr Ventura referred to above. 2. In her email of 9 June 2021, Dr Friend states: I would like to confirm that yesterday Dr Richard Caruana called my reception and advised that he would not be attending the Council directed appointment with me today. He indicated that he did not believe he had a mental health problem and that he would not see a psychiatrist. I have read the documents that you provided and I have some serious concerns about his mental state, and the content of his emails leads me to believe that he is potentially capable of causing significant harm to the public. I note he believes that vaccinations, including the fluvax and COVID vaccination, are spreading the COVID 19 infection. He refers to them as a "vector of spread" (see email dated 25January 2021). His emails are difficult to follow and there are loose associations between the ideas that he presents, with the point of the email being lost. The content includes beliefs that appear paranoid and conspiratorial, and some are quite bizarre. In addition, he seems somewhat grandiose in his belief that he could "end the pandemic in 6-8 weeks" if people followed a number of steps that make little sense and are not evidence based. His recommendations are not realistic and he is making recommendations well beyond his scope of practice. If he were to give advice to vulnerable patients, they could be seriously harmed by following his advice. I have reason to believe, based on the material provided, that he could be suffering from a serious mental health problem that could result in an impairment of his capacity to practise. He should not be practising until his mental health issues are assessed and treated. 1. In her report of 24 October 2021, Dr Ventura states: 44. Based on a thorough review of the documentation available to me it is more likely than not that Mr Caruana suffers from a psychotic illness, most likely schizophrenia. I base my opinion on the following observation: 45. Mr Caruana appears to have at least a 10-year history of bizarre and persecutory beliefs which are consistent with delusional ideas. 46. There is looseness of association in his writings. This is a form of Thought Disorder. 47. There is evidence of grandiosity, as highlighted by Dr Friend, as he clearly states that he could "end the pandemic in 6 or 8 weeks". 48. His judgement appears to be impaired as illustrated in his correspondence with the Medical Board. He has now missed two appointments with independent psychiatrists as directed by the Board, despite knowledge of the consequences in doing so. He has shared his bizarre beliefs with at least one patient. 49. He lacks judgement and insight in his need for continuing professional education as he considers the educational program as being part of a conspiracy. The mental illness is therefore having a negative impact on his ability to safely practise dentistry. 50. In order to confirm the diagnosis, an in person psychiatric assessment is recommended. 51. In my opinion, the condition is detrimental to his capacity to practise as a dentist. 52. Mr Caruana does not wish to engage in continual professional education because of his persecutory beliefs. Additionally, as a dentist, he is in a position of authority about medical knowledge. His bizarre and non-scientific views could be detrimental to vulnerable patients and have a negative impact on their health outcomes. 53. I there conclude that Dr Caruana meets the definition of impairment within the Health Practitioner Regulation National Law (NSW) at the current time. 1. For the purposes of her supplementary report, Dr Ventura was provided with an email of the practitioner to the Tribunal dated 27 September 2023, copied to the Commission and the Council. In that email, the practitioner relevantly states: I believe that while I still have human rights, this case should be dismissed. There is no evidence that I have harmed anyone. There is no proof that by banning the mRNA technologies that any harm will be done. In fact, evidence is coming out to the contrary. There is no evidence that investigating alternative therapies is a crime. There is no consent by myself to obtain or use a Psychiatric Assessment. In short, there is no evidence against me. There is only the political embarrassment of being in a situation of whether to follow Morals and Ethics, something which I am bound to do, even if, some in Government are not prepared to do so for whatever reason they may have. I have no mental health problem other than the fear propaganda being brandished by some unscrupulous individuals in Government. … The effect of making a finding against me, whether right or wrong, without investigating the veracity of my alleged claims constitutes a crime of omission. … To reiterate, as this case/finding against me, whether right or wrong, makes no effort to investigate the veracity of my alleged claims would constitute an omission under the law, which I believe, a competent litigator would find this warrants a case for corruption which needs to be investigated by those with the legal responsibility to do so. I believe I am of sound body and mind. I do not have schizophrenia but I have been called a genius or a miracle-worker on the odd occasion, for those that would care to I forgive those that trespass against me, but, they too must face their judgment under God. In Love and Light in the pursuit of Truth (emphasis added) 1. In her report of 10 November 2023, prepared for the Tribunal hearing, Dr Ventura states (footnote added): 5. The email [of 27 September 2023] demonstrates examples of delusional persecutory and bizarre ideation in Dr Caruana's thinking. … 6. The email contains examples of thought disorder with disorganised sentences and disordered syntax. … 8. The email shows clear evidence of grandiose thinking. … In answer to your questions: 1. What is the current mental health status of Dr Caruana? The attached emails confirms my original opinion; Dr Caruana continues to suffer from an untreated psychotic illness. His latest written communication to NCAT and the Dental Council confirms presence of thought disorder, bizarre persecutory delusional thinking grandiose delusions and lack of insight into his mental illness. 2. Does Dr Caruana currently suffer from an impairment in the meaning of section 5 of the Health Practitioner Regulation National Law ("National Law")? … Dr Caruana suffers from a mental illness. He has no insight into his illness and no desire to seek psychiatric assessment or treatment. Dr Caruana's delusions [and] beliefs interfere with his capacity to make evidence based informed clinical decisions. Although a person having concerns about mRNA vaccines is not necessarily psychotic, Dr Caruana's beliefs about mRNA vaccines is bizarre based on his beliefs of being a "genius or a miracle worker". [1] I therefore conclude that Dr Caruana currently suffers from an impairment in the meaning of the Section 5 of the Health Practitioner Regulation National Law. 3. If Dr Caruana does suffer from an impairment, is that impairment likely to detrimentally affect his capacity to practice as a dentist? Dr Caruana's impairment is likely to be detrimental to his capacity to practice as a dentist. His thinking is clearly disorganised. His decisions are not based on scientific evidence, but on his own bizarre beliefs. These puts his patients at risk of harm. 4. Do you think Dr Caruana is competent to practice the profession of dentistry and has the sufficient mental capacity to practice the profession? In my opinion Dr Caruana does not have the mental capacity to practice in the profession. 5. What is Dr Caruana's prognosis? The prognosis is poor. It appears as if he has suffered from psychotic symptoms over 10 years and he has no insight into his need for treatment. His psychotic illness is highly unlikely to go into spontaneous remission. 6. What ongoing treatment, if any, would you recommend for Dr Caruana? Treatment will depend on the outcome of a thorough psychiatric assessment. He will most likely require treatment with an antipsychotic medication and potentially with a mood stabilising medication. 7. What is your opinion of the likelihood of Dr Caruana's compliance with any future treatment? Dr Caruana has clearly stated that he does not want to obtain a psychiatric assessment. He has no insight into his mental illness. The likelihood of Dr Caruana's compliance with future treatment is minimal. 8. If Dr Caruana is permitted to return to practice, what restrictions, if any, should be placed on his registration, for example supervision etc? I am unable to comment on any restrictions to be placed on Dr Caruana's registration. In my opinion, he should not currently return to practice. Before Dr Caruana is allowed to return to practice and in order to assess potential restrictions on his practice, he should undergo a psychiatric assessment. Consideration Complaint One 1. As the Tribunal stated in Health Care Complaints Commission v Clarke [2022] NSWCATOD 146 at [96]: In determining whether a person is suffering from an impairment, the Tribunal must be satisfied to a high degree that the evidence establishes that the person is so afflicted. It has been accepted that the appropriate test is that contained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also the observations of the Court of Appeal of New South Wales in BronzeWing International Pty Ltd v Safework NSW [2017] NSWCA 41. The Commission submits that based on the expert evidence before us, we should find Complaint One established. 1. The Commission submits that based on the expert evidence before us, we should find Complaint One established. 2. We agree. The expert evidence is persuasive and uncontradicted. 3. We find Complaint One established. Complaint Two Particular 1 1. Section 139(a) of the National Law provides as follows: A person is competent to practice the health profession only if the person: (a) has sufficient physical capacity, mental capacity, knowledge and skill to practice the profession; 1. A finding of impairment can support a finding that the Respondent is not competent to practice; Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] to [169]. 2. The Commission submits that based on the expert evidence before us, we should find Particular 1 of Complaint Two established. 3. We agree. The expert evidence is persuasive and uncontradicted. 4. We find Particular 1 of Complaint Two established. Particular 2 1. The Commission relies on the email of Dr Friend of 9 June 2021 in which she states that the practitioner did not attend the assessment which had been scheduled that day. 2. Based on that unchallenged and uncontradicted evidence Particular 2 of Complaint Two is established. Particular 3 1. The Commission relies on the report of Dr Ventura of 24 October 2021. 2. In that report, she states that the practitioner did not attend the assessment which had been scheduled for 21 October 2021. 3. Based on that unchallenged and uncontradicted evidence Particular 3 of Complaint Two is established. Conclusion 1. Clearly both Complaints are established. Appropriate Protective Order Submissions 1. The Commission seeks the cancellation of the practitioner's registration pursuant to s149C(1)(a) of the National Law with a non-review period of three years. 2. The Commission makes the following submissions. 3. Since 15 June 2021, the practitioner has not worked as a dentist. 4. The practitioner is aged 59 and has a working career ahead of him. 5. The protection of the health and safety of the public requires the cancellation of the practitioner's registration as a dentist. 6. The Tribunal can have no confidence from the practitioner's emails that he will engage in any form of mental health treatment going forward, notwithstanding the concerns raised by Dr Friend and Dr Ventura. The Tribunal should find that the practitioner lacks insight and is not competent to practice dentistry, requiring the cancellation of his registration. 7. The Tribunal should be satisfied that the practitioner has an impairment and that he cannot competently practice dentistry, even were stringent conditions to be imposed. At the time of hearing the practitioner had not consulted with a psychiatrist at all. 8. No insight is shown in his most recent email. 9. The Commission submits that the Tribunal should accept both Dr Friend and Dr Ventura's opinions. 10. The Tribunal should find a non-review period of 3 years appropriate in the circumstances. Consideration 1. We have no difficulty in accepting that the practitioner's registration should be cancelled. Indeed, we made that order at the conclusion of the hearing. 2. We indicated however that we needed to consider what should be the non-review period. As noted, the Commission seeks a period of 3 years. 3. One of the authorities we were referred to by the Commission was Health Care Complaints Commission v Clarke [2022] NSWCATOD 146. In that case, the Commission had sought a non-review period of 6 years, and a prohibition order. As with this decision, there were two complaints against the respondent, a nurse, being impairment and lack of competence. At [107], the Tribunal concluded: The applicant seeks a non-review period of 6 years. The Tribunal notes the reasons, namely that the respondent has refused treatment. However, the Tribunal considers that an internal review period of three years is sufficient to enable the respondent to seek appropriate treatment with a view to her possible reinstatement as a practising registered nurse. 1. The Commission also referred us to Health Care Complaints Commission v Qasim [2014] NSWCATOD 42. In that case, there were 5 complaints, being unsatisfactory professional conduct (two complaints), professional misconduct, impairment and lack of competence. The Tribunal stated at [178] that it formed the view that it was unlikely, at least for a significant period of time, that Dr Qasim, a medical practitioner, would change her conduct or get to the position where she is competent to practise. The Tribunal concluded that the appropriate non-review period was four years. 2. We note that while there was an appeal to the Court of Appeal, the appeal was dismissed: Qasim v Health Care Complaints Commission [2015] NSWCA 282. 3. We were referred to various other authorities by the Commission. However, it is trite to observe that each matter must be determined on the basis of its own facts, matters and circumstances: Gayed v Walton [1997] NSWCA 121. 4. Nevertheless, as the Tribunal observed in Health Care Complaints Commission v Richardson [2022] NSWCATOD 148: All that said, each case turns on its own facts, matters and circumstances. We consider that a period of cancellation is appropriate. We suspect that had the practitioner appeared, exhibited remorse and demonstrated some insight into his conduct it is possible that we may have imposed a lesser protective order, such as suspension or a reprimand. However, the practitioner did not appear and the Commission correctly submits that there is no evidence before the Tribunal to assess the practitioner's current fitness to practice, including his current level of insight (if any) into his conduct and his degree of remorse. (Emphasis added) 1. In the circumstances of this case, where the practitioner did not appear, has not co-operated with the Council in terms of attending medical assessments and appears to have had at least a 10-year history of bizarre and persecutory beliefs which are consistent with delusional ideation, we think it appropriate to make the non-review period 3 years as sought by the Commission. Costs 1. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. The Commission has been successful. The practitioner should pay the Commission's costs, as agreed or assessed. 3. Unless the practitioner files submissions setting out persuasive reasons why he should not be ordered to pay the Commission's costs, we will make that order in 14 days. 4. If the practitioner does file submissions, the Commission may reply within a further 14 days. 5. We propose to determine costs "on the papers" and without a hearing. If either party opposes that course they must address that issue in their submissions. 6. Submissions are to be limited to 5 pages. Orders 1. The Tribunal orders: 1. Complaint One is established. 2. Complaint Two is established. 3. The respondent's registration as a dentist is cancelled. 4. The respondent may not apply for review of the cancellation order for a period of 3 years. 5. If the respondent opposes the Tribunal's proposal that he pay the Commissions costs as agreed or as assessed: 1. the respondent must file submissions on or before 12 February 2024; 2. the Commission may reply on or before 26 February 2024. ********** Endnote 1. Messenger RNA (abbreviated mRNA) is a type of single-stranded ribonucleic acid (abbreviated RNA) involved in protein synthesis. 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: 29 January 2024