Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Meara v The Dental Council of New South Wales [2014] NSWCATOD 19 Hearing dates: On the papers Decision date: 26 March 2014 Jurisdiction: Occupational Division Before: O Shub, Principal Member F A Clive Wright, Occasional Member Dr Frederick Shane Fryer, Occasional Member Emeritus Professor Derek Anderson (lay member) Decision: The Tribunal finds particular one of the complaint proven but finds particulars 2 and 3 not proven. The Tribunal finds that Dr O'Meara is not guilty of unsatisfactory professional conduct and sets aside the decision of the respondent in that regard. The Tribunal accordingly sets aside the caution of Dr O'Meara, the order that Dr O'Meara repay the complainant all fees received and the order requiring Dr O'Meara to enrol in an education course. Catchwords: Dentist - Unsatisfactory Professional Conduct, inadequate diagnosis, records and treatment planning for a specialist practitioner, failure to recognise and manage centreline discrepancy, incorrect classification on molar malocclusion. Legislation Cited: Health Practitioners Regulation National Law of NSW ("National Law") sections 144, 145B, 147D(3)(a), 146, 146B, 148, 148E, 148F, 159(3), 161(b) (1) and 159C Cases Cited: Briginshaw v Briginshaw [1938] HCA34 (1938) 60 CLR 336 Category: Principal judgment Parties: Dr Antony O'Meara (Appellant) Dental Council of New South Wales (Respondent) Representation: Pain Ross & Co (Appellant) HPCA Christine Campbell (Respondent) File Number(s): 1420036 Publication restriction: No reasons for decision Background 1On 18 November 2011 the Dental Council of New South Wales (the Council) received a complaint from a patient of Dr Antony O'Meara. The main issue of concern to the Complainant was "after having braces on for over 2 years, my teeth are not centred and there are two gaps in my lower teeth where teeth have been removed and the gap will not close, also bottom teeth that are still crooked". The complaint was referred to the Council for management which resolved to refer the matter to the Assessment Committee for investigation. Following the Assessment Committee's investigation it was recommended that the Council hold an enquiry as a complaint of unsatisfactory professional conduct. 2The Council considered the Assessment Committee's recommendation, and pursuant to Section 147D3A of the National Law resolved that the complaint be dealt with by an enquiry at a meeting of the Council (the Enquiry) as a complaint of unsatisfactory professional conduct. The enquiry into the complaint of unsatisfactory professional conduct was held on 1 March 2013. The particulars of the complaint were: * inadequate diagnosis, records and treatment planning for a specialist practitioner; * failure to recognise and manage centreline discrepancy; * incorrect classification of molar malocclusion. 3The Council provided its decision and reasons for decision (the Decision) dated 12 October 2013. The Council was satisfied that particular 1 was proved and found Dr O'Meara guilty of unsatisfactory professional conduct. Particulars 2 and 3 were not proved. The following orders were made as a consequence: * Dr O'Meara was cautioned; * Ordered Dr O'Meara to repay to the Complainant all fees received from her and/or any health fund of which she may have been a member within 28 days and to produce to the Council evidence of such refund by proof of cheque clearance; and * Required him to enrol in the course to obtain Australasian Orthodontic Board Certification, and to provide the Council with evidence of enrolment within 6 months. 4Dr O'Meara provided a notice of appeal in a letter dated 5 July 2013. The executive officer of the council had in accordance with section 161 B extended the time period in which the appeal could be made. 5On 22 August 2013 the Tribunal made a Directions Order providing for the exchange of documents and filing of agreed documents at the registry. 6Subsequently, the Tribunal was approached by the parties to allow for the parties to make a joint submission and such joint submission was made on the 27th of November 2013. 7In the joint submission the Appellant and Respondent set out the background to the complaint and advised the Tribunal that the parties had reached a settlement agreement regarding the appropriate position of the matter and sought appropriate orders from the Dental Tribunal giving effect to it. 8The parties jointly submitted that having considered the evidence that would be tendered at the formal hearing, it was appropriate for the Tribunal to make orders in the following terms: 1. In relation to the decision of the Dental Council of New South Wales dated 12 April 2013 in the matter of the complaint made against Dr Antony John O'Meara, the Dental Tribunal orders that: (a)the finding that particular 1 of the complaint is proven, be set aside; (b)the finding that Dr O'Meara is guilty of unsatisfactory professional conduct be set aside; (c)the caution of Dr O'Meara be set aside; (d)the order that Dr O'Meara repay the Complainant all fees received be set aside; and (e)the order requiring Dr O'Meara enroll in an education course be set aside. 2. The Dental Tribunal notes the undertaking made by Dr O'Meara to repay the Complainant $3,000 of the fees received in relation to any treatment provided by him to her. 3. The Dental Tribunal makes no order as to costs and notes the agreement of the parties that each party is to bear their own costs incurred to date in these proceedings. 9In the joint submission, the submission dealt with the legislative scheme and the powers of the Tribunal and the Council which does not need to be repeated in this decision. The Tribunal, however, notes and accepts the submission that the Tribunal has the power to hear the appeal and to make findings in accordance with the evidence before it, and to make such orders as may be sought or as it may think appropriate. EVIDENCE OF THE COMPLAINANT 10The Tribunal had available to it the evidence of the Complainant, the evidence of Dr B and the evidence of a peer reviewer. 11The evidence of the Complainant was to the effect that after having braces for over two years, her teeth were not centred and there are two gaps in her lower teeth where teeth had been removed and the gap would not close. In addition, the bottom teeth are still crooked. She stated that she went to see the Appellant as her two upper teeth were overlapping her other teeth and also one tooth at the bottom was overlapping. Her mouth was overcrowded. On his recommendation she had four back teeth removed, all her second pre-molars, and she then had braces fitted and was told treatment would take approximately 18 to 24 months. Her upper teeth started moving into place but the centreline was also moving to the right. The gaps where her bottom teeth were removed did not start closing and her bottom teeth remained crooked. Nearly two years into the treatment, she asked about her teeth not being centred anymore, and the Appellant replied that "there is nothing he can do about that, I will need surgery to fix it". The Complainant indicated that she was quite unhappy about this, and wanted a second opinion as to whether surgery was the only option. When she spoke with Dr B he informed her that he could fix her teeth, but he was only 98% sure that they would be perfect. He informed her that the teeth had been removed unnecessarily and these gaps would not close and that it had made her undershot. He indicated that he would need to open the gaps and put false teeth back in. She could use a plate with false teeth or have implants, but the cost would be up to $5,000 each which she could not afford. 12Dr B gave evidence that there were several aspects identified from his orthodontic consultation, which included: * the upper dental centreline is uncoordinated with the facial centreline; * there are extraction spaces in the lower arch that are not closing (or cannot be closed); * several teeth are still not fully aligned; * present treatment seems to be stalling and not progressing; * proposed surgical solutions which the Complainant did not wish to complete. 13He recommended that the appropriate method to continue with the orthodontic treatment was to initially remove the existing braces that are in place and replace those braces with braces which he would be happier to use. He confirmed the various options available to the Complainant to deal with the spaces as recorded in the plaintiff's complaint. 14The Tribunal also had available to it the report of a peer reviewer. The peer reviewer recorded the information which was made available to him to provide this review and based on that information commented on the appropriateness of the treatment planning and execution. The peer reviewer regarded the confidence of treatment planning and execution as the most manifest failure. The patient was assessed as having a class 1 malocclusion (that is crowding of the upper and lower article) and the addition of an antero-posterior dental discrepancy which would significantly add to the complication for the treatment. Additionally, the lack of cephalometric head film resulted in a failure to recognise that the patient also had a skeletal discrepancy which appears to be due to a retrusive mandible. He pointed out that treating a malocclusion such as this in a non-growing patient is quite challenging. He expressed concern about the choice of extraction in the upper arch and stated that had the study models been taken and inspected closely, it would appear manifest that upper first pre-molar extractions would have significantly reduced the treatment time as it would have allowed the maxillary canines to move distally to a relatively small extent and then drop into the first pre-molar extraction space. This would have resulted in minimal if any change to the profile and it would have given the Appellant a chance to address the upper centreline discrepancy which as mentioned before, he failed to recognise. He stated that he was uncertain as to how all of these matters were handled, but it would appear from the notes that there was a considerable degree of energy expended in alignment of the upper anterior teeth with other aspects either not being taken into consideration or given little emphasis, for example he refers to the fact that on the 16th of August 2010 there was a handwritten note (not in the typed transcription) "plan to fix lower ants soon, leave 3.3 bracket off". Taking into account the issues of the lower centreline discrepancy the distal information of the 33, and the fact that the patient had now been under treatment for 11 months, this was, in his view, hardly an ideal, responsible treatment. In the peer reviewers view it would have been essential to re-bracket that 33 as soon as possible to continue improvement to the anterior alignment and upright the 33. This would also have assisted in addressing the issue of the lower centreline discrepancy. He also notes that at the time that the Complainant left the Appellant's practice she was still in light cross-section arch-wires. This treatment should have progressed further during that time with larger section arch-wires to control the molars during any space closure. The peer reviewer does record the fact that the compliance by the Complainant with the treatment regime required was less than ideal and has had some bearing on the progress of treatment. The main issue is regarding her compliance in elastic wearing and the peer reviewer emphasised that in this particular treatment management, elastic band wearing would be an essential component in the progress and eventual success of the treatment. This failure would not have assisted correction of the class 2 posterior malocclusion and also the maintenance of the pre-treatment antero-position of the lower anterior teeth. In addition, the peer reviewer noted that the Complainant's dental management was very poor and records the fact that at the time her original appliances were removed, there was indication of low-grade chronic marginal gingivitis, calculus accumulation and a considerable degree of staining in the gingival areas of the upper and lower teeth. This would not have had a detrimental effect on treatment progress but does indicate a lack of compliance. 15In commenting on the treatment, the peer reviewer stated that although a general treatment plan concept of four pre-molar extractions and upper and lower fixed appliances was deemed by both Dr B and the peer reviewer to be appropriate, the treatment planning exercise in itself was flawed. The clinical notes by the Appellant are manifestly inadequate, there was no cephalometric head film taken, nor were there pre-clinical photographs. He believes that this resulted in flawed treatment planning by the Appellant, in that he failed to recognise that the patient was a dental class 2, he had no concept of the underlying skeletal discrepancy, no written plan on how he was going to manage the centreline discrepancy, and whether it would have been more appropriate to have removed upper first pre-molars rather than second pre-molars. On the evidence of the size of arch-wires that were still in position over two years from treatment initiation, the biomechanical concepts of his treatment were also flawed. Heavier wires would have been appropriate by this time to support the class 2 elastics, manage the extraction spaces and control the lingual collapse of the lower labial segment. In particular, the peer reviewer expressed concerns in regard to the inadequacy of records. He stated that it is axiomatic (and this has been mentioned in multiple textbooks and recommendations) that the minimum records for treatment planning, other than the most simple malocclusions are study models, clinical photographs or orthopantomotramme and cephelometric lead film, of these the only diagnostic record was an orthopantomotramme. The study models were taken at the time of appliance placement and would not constitute adequate records for the treatment planning process. He also pointed out that there are sparse clinical notes which could hardly be described as diagnostically useful. He does not believe that the treatment progressed as well as it should have, despite the lack of compliance by the patient. 16There are also suggestions that the Appellant failed to correctly diagnose the Complainant as a class 1 malocclusion, instead of a class 2 malocclusion. This appears to be based on the initial consultation notes contained at tab 9 of the documents provided to the Tribunal. It is however not entirely clear whether the circle which appears to be around a class 1 malocclusion (number 2) but it could also be around a class 2, division 1 malocclusion (number 3). REASONS FOR DECISION 17The complaint made against the Respondent is essentially one complaint, namely that the Appellant was guilty of unsatisfactory professional conduct based on the three particulars, namely: * inadequate diagnosis, records and treatment planning for a specialist practitioner; * failure to recognise centreline discrepancy; * incorrect classification of malocclusion. 18Section 139B of the National Law defines unsatisfactory professional conduct of a registered health practitioner as relevantly "conduct that demonstrates the knowledge, skill or judgement 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". 19The Tribunal in making its decision was required to consider each of the particulars of the complaint made against the Appellant. In that regard, the Tribunal found; The particulars of the complaint contained in particular 1 were found to be proven in that the Tribunal believed that the diagnosis, records and the treatment planning were inadequate or below the standard expected of a practitioner of an equivalent level of training or experience. 20In regard to particular 2, the Tribunal found the particular not proven in that it did not believe that the Appellant failed to recognise and manage the centreline discrepancy. 21In regard to particular 3, the Tribunal found the particular not proven as the Appellant treated the Complainant on the basis of a class 2 malocclusion, and that if the form reflects a class 1 malocclusion that was simply an error on the document. 22Having found particular 1 proven and particulars 2 and 3 not proven, the Tribunal had to consider whether the conduct of the Appellant was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In this regard, the Tribunal was comfortably satisfied that the conduct of the Appellant did not fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and in the circumstances. FINDINGS 23The Tribunal finds that the Appellant is not guilty of unsatisfactory professional conduct under Section 139 of the National Law. ORDERS 24The Tribunal makes the following orders: 1. The finding that particular 1 of a complaint is proven, as proven. 2. The finding the Appellant is guilty of unsatisfactory professional conduct be set aside; 3. The caution of the Appellant be set aside; 4. The order that the Appellant repay the Complainant all fees received be set aside; and 5. The order requiring the Appellant to enroll in an education course be set aside. COSTS 25The Tribunal makes no order as to costs, and notes the agreement of the parties that each party is to bear their own costs incurred to date in these proceedings. 26Additional comment - while the Tribunal is comfortably satisfied that the Appellant is not guilty of unsatisfactory professional conduct, the Tribunal feels that the record keeping and treatment planning by the Appellant was inadequate, and that it would be in the interests of the Appellant to undertake training in regard to the most up-to-date methods of diagnosis, record keeping and treatment planning. In that regard the Tribunal strongly recommends that the Appellant attend the Australasian Orthodontic Board Training session as referred to at page 43 of tab 10 of the documents provided to the Tribunal. 27In addition, the Tribunal notes that the Appellant has agreed to refund to the Complainant an amount of $3,000 of the fees received in relation to the treatment provided by him to her. ********** 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: 26 March 2014