Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Stephen Poole [2014] NSWCATOD 20 Hearing dates: 19, 20 February 2014, Sydney Decision date: 26 March 2014 Jurisdiction: Occupational Division Before: Mr Oscar Shub (Principal member) Dr Robert Hochstadt (Dentist member) Dr Angie Lang (Dentist member) Dr Catherine Berglund PhD (Lay member) Decision: The Tribunal finds Complaint One (as amended) and its particulars and Complaint Two as amended and all its particulars established. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct and professional misconduct. Catchwords: Dentist - Unsatisfactory Professional Conduct, Professional misconduct, failed implants, crowns, bridges, failure to respond to complaint in reasonable time, order to repay fees, conditions placed on registration, breach of conditions. Legislation Cited: Dental Practice Act 2001 Health Practitioner Regulation National Law (NSW) (the National Law) Cases Cited: Briginshaw vs Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Stephen Poole (Respondent) Representation: Counsel Mr Griffin, (Complainant) Health Care Complaints Commission (Complainant) No appearance (Respondent) File Number(s): 1420011 reasons for decision Background Complaint One 1Doctor Stephen Poole (The Practitioner) is guilty of unsatisfactory professional conduct pursuant to S139 B (i)(c) of the National Law in that the Practitioner contravened a condition on his registration. 2At a meeting that the Board held under division 4 of the Dental Practice Act (Repealed) 2001 (the DP Act) on the 4th of September 2009, the former Dental Board of New South Wales (Board) then determined that the practitioner's treatment of Patient A amounts to unsatisfactory professional conduct. The Board ordered that the practitioner must: (1) Compensate Patient A in the amount of $32,400; (2) Provide the Board within 6 months time, treatment plans and records for six patients so that the Board can be satisfied that his record-keeping is at the required standard. 3In addition, a practice condition was placed on the practitioner's registration as follows: "he is not to provide fixed crown and bridgework until it can be demonstrated to the Board that he has undertaken courses (approved by the Board) in treatment planning, crown and bridgework, implants and periodontal therapy to the satisfaction of the Board. Particulars of Complaint One (as amended) 4The practitioner provided fixed crown and/or bridgework after 4 September 2009, without enrolling in or completing any courses to the satisfaction of the Board on the following patients in contravention of a condition that was imposed on his registration on 4 September 2009. I.Patient B on 29 September 2010; II. Patient B on 25 October 2010; III.Patient C on 7 April 2011; IV.Patient C on 2 May 2011; V. Patient D on 20 October 2010; VI. Patient D on 6 Nobermber 2011; VII. Patient E on 31 March 2010; VIII. Patient F on 6 December 2011; IX. Patient F on 20 February 2010; X. Patient G on 27 January XI. Patient H on 11 January 2010; XII. Patient I on 2 March 2011; XIII. Patient I 14 March 2011; XIV. Patient on 15 December 2011; XV. Patient P on 14 September 2011. Complaint Two 5Is guilty of professional misconduct within the meaning of section 139E of the National law in that the practitioner has; (i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (ii) Has engaged in unsatisfactory professional conduct on a number of occasions, which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Background 6On 6 August 2010 the Dental Council of New South Wales (Council) held an enquiry under section 53 of the DP Act. 7The written decision of the Council dated 10 December records the following findings and actions: "... The Dental Council of New South Wales found the dentist guilty of unsatisfactory professional conduct. Council was satisfied that the dentist had contravened a provision of the Act or the regulations or a condition of the dentist's registration, failed without reasonable excuse to comply with a direction by the Board to provide information with respect to a complaint against the dentist, and failed to comply with an order made or a direction given by the Board". Particulars of Complaint Two (1) On 4 September 2009, the Board found the practitioner guilty of unsatisfactory professional conduct. (2) On 10 September 2010, the Council found the practitioner guilty of unsatisfactory professional conduct (3) The particulars of Complaint One, and particulars one and two of Complaint Two are repeated and relied upon both individually and cumulatively. BOARD AND COUNCIL HEARINGS 8A complaint was made following treatment by the Respondent on Patient A in May of 2007. A letter of complaint was sent by Patient A to the Respondent in which complaints were made about the outcome of treatment which she had undergone by the Respondent and complaining about the costs that she had incurred to reach an unsatisfactory result. The date of that complaint is unknown, as the letter is undated. However, a date stamp of the 29th of October 2007, indicates that the Board received a complaint from Patient A. The complaint and the letter written to the Respondent is to be found in Volume 1, Tab 3 of Exhibit A. 9The complaint was investigated by the Board, and on the 4th of September 2009, at a meeting of the Board, held under division 4 of the Dental Practice Act (Repealed) 2001 (the DP Act) the Board determined that the Respondent's treatment of Patient A amounted to unsatisfactory professional conduct. The Board ordered that the practitioner must: (1) Compensate Patient A in the amount of $32,400; (2) Provide the Board, within 6 months time, treatment plans and records for six patients, so that the Board can be satisfied that his record-keeping is at the required standard. 10The Board also placed a condition on the practitioner's registration that he is not to provide fixed crown and bridgework, until it can be demonstrated to the Board that he has undertaken courses (approved by the Board) in treatment planning, crown and bridgework, implants and periodontal therapy to the satisfaction of the Board. 11The Board resolved that the dentist's failure to comply with the Decision of 4 September 2009, failure to respond to correspondence from the Board in relation to the refund to a patient, failure to provide details of his intention to enrol in courses as outlined in the Decision be dealt with as a further complaint of unsatisfactory professional conduct in accordance with the Dental Practice Act 2001. 12The HCCC alleges in the complaint before this Tribunal that such treatment was undertaken at least between 11 January 2010 and 15 December 2011, such that the practitioner provided fixed crown and bridgework without demonstrating to the Board that he had undertaken courses (approved by the Board) in treatment planning, crown and bridgework, implants and periodontal therapy to the satisfaction of the Board. 13As a result of the aforesaid failures, on the 6th of August 2010, the Dental Council of New South Wales (Council) held an enquiry under section 53 of the DP Act, and provided a written decision of the Council dated 10 September 2010, which recorded the following findings and actions: "The Dental Council of New South Wales found the dentist guilty of unsatisfactory professional conduct. The Council was satisfied that the dentist had contravened a provision of the Act or the regulations or a condition of the dentist's registration, failed without reasonable excuse to comply with the direction by the Board to provide information with respect to a complaint against the dentist and failed to comply with an order made or a direction given by the Board". 14The Respondent is currently subject to a condition and orders made by the Council, effective 4 September 2009, in terms of which: Current Condition (1) The dentist is not to provide fixed crown and bridgework until it can be demonstrated to the Board that he has undertaken courses (approved by the Board) in treatment planning, crown and bridgework, implants and periodontal therapy to the satisfaction of the Board. Current Orders (1) The dentist is to provide the Board, in six months time, treatment plans and records of six patients so that the Board can be satisfied that record-keeping is at the required standard; (2) When the dentist has completed the required courses, the Board will review the conditions of practice. The Board may require the dentist to undertake a skills test at the time to demonstrate his fitness to practice; (3) The dentist repay the patient $32,400 within 14 days. 15The current conditions for Doctor Stephen Poole listed by the Australian Health Practitioner Regulation Agency and on record with the Dental Council of New South Wales as at 17 February 2014 were provided by the HCCC at the commencement of the hearing. The documents are at Exhibit 1 Volume 1 Tab 2. Evidence of the Complainant 16The Complainant relied on the complaint documentation from Patient A, a number of statements from patients of the Respondent, the evidence of Dr Lui, the employer of the Respondent, Medicare and private health insurance records and Dr Tseng, an expert witness, all of which documents are contained in Exhibit One. 17Of relevance to the Tribunal's deliberations are the complaints, statements and reports which are summarised below. Complaint by Patient A 18Patient A made complaints to the Board, received at the Board on the 29th of October 2007, in respect of the treatment provided to her by the Respondent in May of 2007 and the deficiency of that treatment. That complaint was investigated by the Board and, as a result of that investigation, the Respondent was found guilty of unsatisfactory professional conduct. Orders were made against the Respondent. The complaint made by Patient A appears at Volume 1, Tab 3, page 3. 19In Patient A's complaint, she stated that "my teeth have been pushed forward at the front, and the top teeth stick out a lot, it does not give me a nice smile, and because of this my cheeks have sunk in". Patient A indicated that she "would like some compensation as it is going to cost me $42,000 to fix, and I have already paid $5,000 for the operation to get rid of the infection". Anonymous Complaint by Dental Patient 20The Director of Assessment and Resolution of AHPRA, received an anonymous letter, the subject line of which read "Doctor Stephen Poole's Malpractice", in regard to the Respondent's malpractice as follows: "A friend of mine, recently had a dental implant crown done with discomfort by Dr Stephen Poole at Penrith. As I am interested in having implants myself I searched the internet about dental implants and Dr Poole. To my surprise I found conditions imposed on Dr Poole; "must not undertake crown and bridgework until he has successfully completed courses to the satisfaction of the Board in crown and bridgework implants, periodontics and treatment planning." 21The letter sought an answer to whether the Respondent had breached the conditions, and, if so, whether it was malpractice. That letter was dated the 30th of October 2011 and appears at Volume 1 Tab 5. Dental Work Performed 22The evidence of dental work performed was contained in the patient statements, item numbers billed and Dr Lui's evidence. Patient B In summary, Patient B confirmed that on the 29th of September 2010, Dr Poole performed a crown preparation and impression on Patient B's upper left second pre-molar tooth (indicated by item number 615 in the medical records). This crown appears to have been cemented on the 25th of October 2010. Patient C In summary, the evidence in respect of Patient C is to the effect that on the 7th of April 2011, the Respondent performed a crown preparation and impression on Patient C's upper right first pre-molar tooth. The crown was then cemented on the 2nd of May 2011 (indicated by item number 85615 in the records). Patient D In summary, the evidence of Patient D was to the effect that on the 20th of October 2010, the Respondent performed a crown preparation and impression on Patient D's lower right first molar tooth (indicated by item number 85615 in the records). The crown appears to have been cemented on the 6th of November 2010. Patient E In summary, it appears that this patient received a crown on their upper left incisor on 31 March 2010 (as indicated by item number 615). Patient F In summary, on the 6th of December 2010, the Respondent performed a crown preparation and impression on Patient F's lower left first molar tooth (indicated by item number 85615 in the records). The crown appears to have been cemented on the 20th of December 2010 [the Tribunal noted that in the amended complaint at particular IX, the Applicant referred to treatment on 20 February 2010. It is clear from the clinical records and Dr Tseng's report that this treatment took place on 20 December 2010]. Patient G In summary, a claim for a direct restoration of the remaining part of the tooth was made on the 27th of January 2010 (as indicated by item number 627 in the records). The crown preparation also took place on the 27th of January 2010 (as indicated by item number 615 in the records). Patient L This patient received a bridge pontic-direct (as evidenced by item 85642 in the records). Patient P In summary, Patient P received a provisional bridge (per pontic number 85632 in the records). Doctor Lui 23The Applicant called Doctor Moses Lui to give evidence. Dr Lui was asked to peruse a statement made by him dated 21st of April 2011 which was to be found in Volume 1, tab 7, and was asked to confirm the correctness of the statement made. 24Dr Lui was questioned about the employment of the Respondent and confirmed that the Respondent works each Wednesday in the Penrith clinic owned by Dr Lui. He indicated that the Respondent would normally see between 10 and 15 patients on a Wednesday, and that he would earn between $800 and $2,000 per day. On average, he could be expected to earn approximately $900. 25Dr Lui was asked when he became aware that the Respondent would not be appearing at the hearing. He advised that he had been told approximately one week before that the Respondent would not be appearing at the hearing, and was told that the Respondent could not miss work which he was due to do on Wednesday the 19th of February in the Penrith clinic, and work in the public hospital on the 20th and 21st of February. Doctor Lui said he told the Respondent that he (Doctor Lui) had been called to the Inquiry and would be attending. Doctor Lui offered to cancel Doctor Poole's patients booked in for the Wednesday so that Doctor Poole could attend. This was declined by the Respondent. Doctor Lui gave evidence that Doctor Poole had in the past cancelled patients on the morning. Dr Lui indicated that the Respondent had previously been missing work because of illness. This had caused frustration for patients and his refusal to attend the Tribunal may have reflected the Respondent's recognition that he needed to be working on a regular basis and not cancelling appointments. 26Dr Lui was questioned about the lack of documentation and documentation which had gone missing. In response he advised that on the 1st of May 2011 he received an SMS message from the Respondent that there had been an armed robbery at approximately 9.10 on the morning of the 1st of May 2011. Dr Lui went to the clinic and found that a computer which was very old was stolen, the accounts books were taken, a portable CD player was taken, a keyboard was taken, and approximately $20 was taken from the purse of the nurse who was present at the time of the armed robbery. In addition, floppy disks to back up data had also been taken, the patients' booking information and a fax machine had also been taken. The police were called but no one has been arrested and nothing stolen has been recovered. 27Dr Lui advised that the Respondent had been working for a number of years on a gentleman's agreement with no written contract. He was paid on a weekly basis, and Dr Lui confirmed that payment was made to him of 40% of the fees charged by the clinic to the patient less laboratory bills. 28Dr Lui was questioned as to whether he had had discussions with the Respondent in regard to a refund ordered to be made by the Board in the sum of $32,400, to which Dr Lui replied that he had not, prior to April 2011, been made aware of that order or the requirements that the Respondent refund that sum of money. He had attempted to discuss the order with the Respondent after that date but had not succeeded 29Dr Lui was asked whether he accepted that the amount of $32,400 was paid to the practice, and that Dr Lui would have received 60% of that amount. Dr Lui agreed that that was the position. Dr Lui was asked whether he ever discussed with the Respondent what he was doing about repaying the money to which he indicated that he did not. 30Dr Lui was asked whether the records of Patient A were among the stolen records, to which he replied yes. In response to a question as to why he permitted the Respondent to continue working in his surgery after he had gained the knowledge of the breaches of the conditions placed on his registration, he indicated that he felt that he was a dentist that was liked by his patients, he was, in his opinion, a good dentist, and he therefore had mixed feelings. 31Dr Lui also indicated that he does not like confrontation and despite offering to assist the Respondent if the Respondent wished to talk or needed any assistance, he did not feel comfortable to insist on the discussion with the Respondent. 32Dr Lui was asked to provide information in respect of his letter dated 6th of June 2012 addressed to the complainant contained at Volume 1 Tab 62 in which he confirmed that six patients from his surgery had been found to have received crown treatment by the Respondent, namely Patient F, Patient D, Patient I, Patient C, Patient B and Patient E. He was asked what information he had available to him in order to write that letter. He indicated that he traced that information by commencing to obtain information from Race Dental, the manufacturers of crowns, identified the patients who had had crowns produced for them by Race Dental, and then worked backwards to find records in respect of those patients. He was asked to express a view on which of the multiple number of patients had received crown or bridgework. 33Following the numbering system contained in a letter by Dr Lui to the complainant, found at Volume 1 Tab 66, Dr Lui expressed his view on each item referred to in that letter as identifying whether the work performed by Doctor Poole constituted fixed crown or bridgework and responded as follows: "Patient C - Yes", "Patient B - Yes". 34He then proceeded to look at twenty patients mentioned in his letter which are to be found at C on page 1, Volume 1 Tab 66. Following that numbering system, he determined the following: (1) Undecided (Patient P) (2) Not (3) Not (4) Not (5) Not (6) Treatment on 31st of March yes, 26th of May no, 13th of October (7) yes, 13th of December ambiguous (Patient O) (Deleted from Amended Complaint) (8) Not (9) Not (10) Not (11) Fixed but not a standard bridge but believes that it does fall in the category of a fixed bridge. (Patient L) (12) Not (13) Not (14) Not (15) Not clear, as he would classify that as a filling. (16) Not a crown in his view, it is fixed but dentists could come to a different view in his opinion. (Patient K) (Deleted from Amended (18) Complaint) (19) Could be. (20) Not (21) Ambiguous (Patient J) (Deleted from Amended Complaint) (22) Not part of complaint (23) Not part of complaint 35Dr Lui was asked questions by the Tribunal as follows: Did Dr Lui know or have an impression of when bookings for Penrith for the 19th of February 2014 would have been made, and was asked whether those bookings would be likely to have been made before November 2013, to which Dr Lui indicated that he did not believe that bookings would be made prior to November 2013. He expressed the view that they would probably have been made approximately a month ago. 36Dr Lui was asked whether in a normal practice a dentist would do more fixed crown and bridgework than 6 or 7 in the time frame under investigation, to which he replied that he would have expected more bridge and crown work to be done by an unrestricted dentist in that time frame. 37Dr Lui was asked whether the Respondent ever referred crown work to him, to which he replied no. 38The Respondent, in a letter dated 4th of April 2012 found at Volume 1 Tab 54 states that in each case involving treatment programs that had commenced, he felt obligated to complete. He stated that all other crown and bridgework in the practice had been carried out by Dr Moses Lui, and that a large number of his regular patients, some of whom he had treated for years, have transferred to Dr Lui for this purpose. (This is in conflict with the evidence given by Dr Lui). Doctor Tseng 39Doctor Tseng gave evidence as an expert, having qualified himself as an expert. He dealt with his report dated 27 May 2013 (found at Volume 2 Tab 89). He advised the Tribunal that it was necessary for him to change several of his conclusions in that report due to the proposed amendment to the complaint by the insertion of the word "fixed" before crown and bridgework. That would have the effect of narrowing the scope of the prohibition and meant that a number of the patients' treatment no longer constituted breaches of the registration His views based on an amended complaint were: Patient M Doctor Tseng did not have available any clinical notes and does not therefore know whether it was the original bridge which was removed and refitted, or whether a new bridge was fitted. In his view this would fall outside of a breach Patient N In Doctor Tseng's view this was not a breach Patient O This would not in his view be a breach Patient P He thought that this would be a breach as it was replacing a missing tooth. 40Doctor Tseng was referred to page 6 of his report and asked to comment on each of a number of patients. He confirmed that in his opinion the following patients' treatment was in breach of the order: B, C, D, E, F, G, H, I, L and P. Doctor Tseng was asked whether the proposed amendment to alter the word "undertake" in the complaint to the word "provide" in the order made by the Board and contained in the registration certificate contained anything different. Doctor Tseng expressed the view that he sees no difference between those two words. He did however confirm that the introduction of the word "fixed" narrows the scope of the complaint and it was for this reason that he changed a number of his views to remove them as breaches whereas before he regarded them as breaches or was uncertain. Evidence of Respondent 41The Respondent did not appear at the hearing and accordingly no evidence was lead by the Respondent. The Tribunal did however have access to correspondence from and to the Respondent, which correspondence is contained in Volume 1, 2 and 3 and in Exhibit 2. Closing Submissions 42Counsel for the Applicant recognized that he was not addressing issues of orders as the question of orders had been separated from the question of unsatisfactory professional conduct or professional misconduct. He however referred the Tribunal to volume 1 Tab 1 being the complaint made in this matter and to Volume 1 Tab 41, being the Determination of the Complaint before the Board on the 4th of September 2009. 43He referred to the complaint in respect of "failed implants, crowns and of unsatisfactory treatment, failure to respond to complaint in reasonable time, treatment demonstrating unsatisfactory professional conduct, order to repay fees and conditions placed on the practice". The findings of the Board were that the treatment provided was provided without appropriate planning and preparation, there had been an obvious failure to recognize failed implants and periodontal deterioration, the standard of the crowns provided was poor and was the cause of periodontal irritation and breakdown. The treatment demonstrated a significant lack of skill, knowledge and care to satisfy the test of unsatisfactory professional conduct and the Respondent was ordered to repay the fees charged. Certain conditions were placed on the Respondent's practice. The Applicant referred to the fact that the Respondent did not respond to the Dental Care Assessment Committee request for records and information and therefore based an initial report to the Board on reports from dentists who were retreating the patient. It was only when the report with its recommendation that the complaint raised issues of unsatisfactory professional conduct did the Respondent reply to the Board's correspondence and request. 44The Respondent cancelled several of the meetings the Board had scheduled to deal with the complaints. When he did appear, he was not well prepared. The Board was not satisfied that the transcribed notes truly represented the treatment. The Board expressed the view that the Respondent had provided the patient with treatment which was significantly deficient in many aspects so as to satisfy the test for unsatisfactory conduct. The Board therefore resolved that the Respondent repay the fees calculated at $32,400 dollars within 14 days of that decision. 45The Applicant therefore highlighted the fact that there had been a failure to comply with the Council's orders. There had been a failure to attend hearings or to cooperate with the Council and there had been treatment of patients between 2010 and 2011 in contravention of the order of the Board. In respect of Complaint Two the Applicant made closing submissions in similar vein to those made in respect of Complaint One. The Applicant then referred the Tribunal to the determination of the complaint before the Dental Council of New South Wales found at Volume 1 Tab 42 and drew the attention of the Tribunal to the following: 46At an inquiry into a complaint pursuant to section 53 of The Dental Practice Act 2001 held on the 4th September 2009 the Board determined that the Respondent had provided a patient with treatment that was significantly deficient in many aspects so as to satisfy the test for unsatisfactory professional conduct. The Board also determined that the dentist repay fees to the patient within 14 days and placed conditions on the practice of the Respondent that he is not to provide fixed crown and bridgework until it can be demonstrated to the Board that he has undertaken courses approved by the board in treatment planning, crown and bridgework, implants and periodontal therapy to the satisfaction of the Board. In addition, the dentist was to provide within 6 months of the date of the decision treatment plans and records of 6 patients to satisfy the Board that his record keeping was at a required standard. The Board resolved that the Respondent's failure to comply with the decision 4 September 2009, his failure to respond to correspondence from the Board in relation to the refund to a patient and his failure to provide details of his intention to enrol in courses outlined in the decision be dealt with as a further complaint of unsatisfactory professional conduct in accordance with the Dental Practice Act 2011. 47Counsel for the Applicant highlighted the fact that the complaint was dealt with in the absence of the Respondent who failed to attend the inquiry pursuant to Schedule 5a of the Health Practitioner Regulation National Law and found that the Respondent was guilty of unsatisfactory professional conduct. The Council was satisfied that the Respondent had contravened a provision of the Act or the regulations or of a condition of the Respondent's registration, failed without reasonable excuse to comply with the direction by the Board to provide information with respect to a complaint against him and failed to comply with an order made or directions given by the Board. 48Counsel for the Applicant referred the Tribunal to Tabs 28-40 of Volume 1 and asked the Tribunal to recognize a pattern of behavior. He expressed the view that the Respondent is contemptuous of the Board and the Council. He does not believe it necessary to respond to requests from his Council. 49Counsel for the Applicant pointed out that the evidence clearly indicated that the Respondent was in breach of the orders and failed to comply with restrictions placed on his registration. 50Counsel for the Applicant submitted that the Respondent's level of cooperation is very poor. 51Counsel finally submitted that the history of failing to participate in an investigation into his behaviour with the Board and the Council is repeated in his failure to attend the hearing of the Tribunal in order to be able to be asked questions. Counsel for the Applicant submitted that whatever information has been provided by the Respondent to the Tribunal must be seen by the Tribunal against the background of the Respondent failing to participate in the process and submitted that the Tribunal is entitled to draw inferences against the Respondent. 52Counsel for the Applicant submitted that if we look at the matter as a whole we will decide that the Respondent is guilty of sufficiently serious complaints of unsatisfactory professional conduct which when taken together are sufficient for the Respondent to be found guilty of professional misconduct. 53Accordingly the Applicant requested the Tribunal to find in respect of Complaint One that the Respondent is guilty of unsatisfactory professional conduct and in respect of Complaint Two is guilty of professional misconduct. The role of the Tribunal 54The Tribunal accepts that its role is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered to do so. The standard of proof and the onus of proof 55The standard of proof required is the civil standard namely on the balance of probabilities. Before the Tribunal may make an order it has to be satisfied on the balance of probabilities by the evidence before it that the onus of proof has been discharged by the Applicant. However, having regard to the decision in Briginshaw vs Briginshaw (1938) 60 CLR 336, the Tribunal must be comfortably satisfied that the Particulars of the Complaint have been established. Reasons for the decision 56In determining whether the Applicant had discharged its onus of proof in respect of the Particulars of Complaint One and the Particulars of Complaint Two the Tribunal considered the evidence of the patients (referred to above), the evidence of Doctor Lui and the evidence of Doctor Tseng. 57Although, the Tribunal did not have the benefit of evidence from or on behalf of the Respondent, the Tribunal did have regard to the documents contained in Volumes 1, 2 and 3, including documents and correspondence provided by the Respondent. 58The Tribunal examined the statements and information provided by each of the patients alleged to have had fixed crown or bridgework carried out by the Respondent and was comfortably satisfied that from their lay point of view they understood that they had had crown or bridgework. 59The Tribunal had regard to the evidence provided by Doctor Lui and in particular his personal view in regard to the various patients who in his view had received fixed crown or bridgework. 60The Tribunal had regard to the evidence given by the expert witness, Dr Tseng who in his oral evidence before the Tribunal, withdrew his earlier view of some of the crown or bridgework when notified of a proposed amendment which was being considered by the Tribunal to Complaints One and Two to include the word "fixed". Nevertheless, despite his retracting crown or bridgework in respect of certain patients, he confirmed that in his view fixed crown or bridgework was performed on the following patients on the dates referred to in Particulars of Complaint One: * Patient B * Patient C * Patient D * Patient E * Patient G * Patient H * Patient I 61Finally in its deliberations the Board had regard to the evidence in respect of Patient F, Patient L and Patient P and was satisfied that: * Patient F had a crown prepared and then cemented by Dr Poole. This was in breach of the orders. * Patient L had a false tooth bonded to the adjacent teeth by Dr Poole. Dr Tseng stated that he regarded this as the provision of a fixed bridge and that this constituted a breach of the orders. * Patient P had a provisional bridge placed and Dr Tseng also regarded this as a breach of the orders. 62Taking all of the evidence referred to in this decision, the Tribunal has formed the views expressed in the paragraphs relating to its findings below: Considering the current Registration and Conditions placed on the Respondent's Registration, the Tribunal accepts that the practitioner has not as yet made arrangements to repay Patient A $32,400, nor has he provided the Dental Board, now Dental Council, with an intention to enrol in courses as outlined in his conditions. The Tribunal accepts the Registration Status evidence as showing that these conditions have not yet been met. If the money had been paid to the Board, as required, or the course details made known, these conditions would have been removed from the Dentist's Registration Status. Findings 63The Tribunal finds each of the particulars of Complaint One and Two (save for Particular IX in respect of alleged treatment of Patient F on 20 February 2010) in the amended Complaint proven and: In respect of Complaint One, that the Respondent is guilty of unsatisfactory professional conduct under Section 139B of the National Law. In that he has: * engaged in conduct that demonstrates the knowledge, skill, or judgement 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 and; * In respect of Complaint Two is guilty of professional misconduct under section 139E of the National Law in that he has: * engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or * 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. Orders 64A request was made by the Respondent for the Tribunal not to make orders in the event of a finding of unsatisfactory professional conduct or professional misconduct and accordingly no orders have been made at this time pending a date being set for a hearing and argument in respect of orders which should be made. The Tribunal however, notes the orders made by the Board and Council and the conditions placed on the registration of the Respondent and confirms that those orders remain current and in full force and effect. Costs 65The Tribunal's hearing in respect of this complaint has not been concluded and accordingly no order has been made in respect of costs at this time. ********** 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