Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Poole (No2) [2014] NSWCATOD 67 Decision date: 20 June 2014 Jurisdiction: Occupational Division Before: O Shub (Principal member) Dr R Hochstadt (Dentist member) Dr A Lang (Dentist member) Dr C Berglund PhD (Lay member) Decision: The Tribunal orders that the Respondent be de-registered and that he not be entitled to apply for re-registration for at least 12 months. The Tribunal orders the Respondent to pay the costs of the Complainant 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: Childs v Walton NSW Court of Appeal. Unreported 13 November 1990; Buttsworth v Walton. NSW Court of Appeal. Unreported 19 December 1991; Law Society of New South Wales v Bannister (1993) 4 LPDR 24; Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; HCCC v Litchfield (1997) 41 NSWLR 630 and Law Society of New South Wales v Walsh NSW Court of Appeal. Unreported 15 December 1997; Law Society of New South Wales v Bannister and Ex parte Tziniolis Re Medical Practitioners Act; Health Care Complaints Commission v Dr Perroux (No. 2) [2011] NSWMT 15; Barratt v Medical Board of Australia [2012] NSWMT 22. Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Stephen Poole (Respondent) Representation: Counsel P Griffin, (Complainant) Health Care Complaints Commission (Complainant) No appearance (Respondent) File Number(s): 1420011 reasons for decision Background 1On the 27th of March 2014, following the first stage hearing of this complaint the Tribunal delivered a decision in this matter pursuant to which it found the Respondent guilty of unsatisfactory professional conduct and professional misconduct. It is not necessary by way of background to deal with the evidence led at the hearing of stage one but we deal in this decision only with the hearing of stage two in respect of orders to be made. This hearing took place on the 21st of May 2014. 2Stage two was originally scheduled to be heard on 7 May 2014, but on that day was adjourned at the request of the Respondent to allow him further time to respond to the submissions made by the Complainant and to provide references. 3The Tribunal had available to it, prior to the hearing, submissions made by the Complainant, submissions made by the Respondent and submissions in reply by the Complainant. Complainants Submissions 4 The submissions of the Complainant put considerable weight on the attitude of the Respondent and, in particular, stated that while there is no statutory obligation upon a Respondent to participate in a disciplinary hearing, the failure to attend, give evidence, and be available for cross-examination permits the Tribunal to draw appropriate adverse inferences against a Respondent, due to the absence of relevant oral or documentary evidence that can only come from him. The Complainant submitted that from 2007 until the present, the Respondent has failed to comply with orders of the Dental Board (now the Dental Council) ("the Council") including failing to: (1)Repay $32,400 in professional fees to a patient; (2)Provide certain information regarding his payment arrangement with Dr Lui; (3)Provide six sets of patient notes; (4)Attend scheduled meetings and hearing. (5)Co-operate with requests from the Council for responses to letters. 5In addition, the Complainant submitted that the Respondent contravened an order of the Council in relation to the provision of fixed crown and/or bridge work. The Complainant submitted that the Respondent failed to respond to correspondence from the Complainant, to file evidence, and to attend a hearing, claiming he had to work, but that there was evidence that he had known about the hearing for months. His employer, Dr Lui, gave sworn evidence that he offered to change the Respondent's patient schedule a week prior to the hearing once he became aware that he was intending not to attend the hearing. This offer was refused by the Respondent. In addition the Complainant submitted that the Respondent attempted to evade service of all documents sent to him by the Complainant such that they had to rely on a process server every time it was necessary to send him documents. The Complainant submitted that the Respondent had a disregard for authority and an unwillingness to comply with requirements or requests relating to his professional life. 6In regard to protective orders, the Complainant submitted that once the Tribunal has made a determination that a Respondent has engaged in professional misconduct, it has the discretion to impose protective orders of the nature outlined in sections 149A to 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law"). These orders can range in seriousness from a caution or reprimand at the lower end to suspension or cancellation of registration at the upper end. 7The Complainant referred the Tribunal to numerous decisions of the New South Wales Court of Appeal, for example Childs v Walton NSW Court of Appeal. Unreported 13 November 1990; Buttsworth v Walton. NSW Court of Appeal. Unreported 19 December 1991; Law Society of New South Wales v Bannister (1993) 4 LPDR 24; Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; HCCC v Litchfield (1997) 41 NSWLR 630 and Law Society of New South Wales v Walsh NSW Court of Appeal. Unreported 15 December 1997. Particularly in the judgment of Beazley JA]. 8The Complainant submitted that one of the principal functions of the Tribunal is to promote and maintain the highest standards of professional conduct and ethics in the dental profession. The ultimate role of the Tribunal is to protect the public. This requirement to protect the public may require that a dental practitioner be removed from and subsequently denied reinstatement to the Register in order to protect the public. In particular, the Complainant submitted that the public needs to be assured that; (1)It will be protected from the risk of a practitioner in question repeating the misconduct; (2)The decision will have a deterrent effect on others that might be tempted to fall short of the high standards required of them; (3)The decision will have the effect of encouraging the maintenance of high standards in the profession; (4)The decision will have the effect of maintaining public confidence in the profession; and (5)The decision will not unnecessarily deprive the public of the services of the practitioner. 9The Complainant submitted that there was no evidence that the Respondent has any special or unique skills that his current patient load could not be dealt with by Dr Lui or other dentists in the area. 10The Complainant submitted that the Tribunal must assess the gravity of the misconduct of the Respondent. It was submitted that when the totality of the conduct is assessed it can be fairly categorised as "most serious". It was submitted that he has breached explicit conditions imposed upon his practice for reasons which are unclear. The Complainant submitted that this might be perhaps greed or pride and a contempt for the regulatory system. 11The Complainant submitted that the misconduct engaged in by the Respondent demonstrates that he does not possess the character and attitude appropriate for the privileges and opportunities which are afforded to dental practitioners and that due to his non-participation, the Tribunal has insufficient evidence to properly assess how the Respondent might act in the future. Consequently, it is open to the Tribunal to draw an inference adverse to him that he will engage in similar conduct in the future. 12Insofar as risk of repetition of further misconduct is concerned, the Complainant referred to the case of Law Society of New South Wales v Bannister and Ex parte Tziniolis Re Medical Practitioners Act and submitted that there is insufficient evidence before the Tribunal capable of satisfying it that there was little or no risk of recurrence of further professional misconduct by the Respondent. The Complainant submitted that whether a dental practitioner fully appreciates and understands that the conduct complained about is wrong is of vital importance in determining whether there is a risk of reoccurrence of further misconduct. In the case of Walsh (Supra), Beazley JA stated relevantly at page 6 "another relevant factor will be whether the practitioner truly understands the error of his or her ways. Whilst a practitioner's expressed intention not to reoffend is relevant to mitigation, it will have little weight unless accompanied by an understanding of the wrongfulness of the conduct which was the subject of the disciplinary charge." 13It was submitted that the Tribunal has little evidence that the Respondent has sufficient awareness of his underlying motivations. He has not acknowledged his professional deficiencies. The Complainant submitted that in respect of contrition, the Respondent had not expressed contrition in respect of misconduct in this case. 14Insofar as harm caused by the misconduct, the Complainant submitted that the Respondent's refusal to refund the professional fees of $32,400 paid by Mrs Foote has caused her substantial financial harm and he pays scant regard to her welfare, concentrating only on the fact that he received only a portion of these fees pursuant to the fee sharing agreement with Dr Lui. 15In regard to the maintenance of professional standards, the Complainant submitted that the need to maintain professional standards supports an order to cancel the registration of the Respondent. It is in the public interest that the order of the Tribunal demonstrates to the profession that such gross breaches of trust by its members will not be tolerated, and that basic dental standards must be maintained. The Complainant submitted that such an order would be the appropriate deterrent to the Respondent from repeating this conduct and will deter other practitioners who might be tempted to fall short of the high standards required of them. The Complainant submitted that any lesser order will send an inadequate message to other members of the profession in respect of standards expected of them, both in respect of trustworthiness and awareness of the professional obligations. 16In regard to public confidence, the Complainant submitted that it is important that members of the public have confidence in both the dental profession generally and individual dentists. It is submitted that the confidence and respect which the community has for dentists will be seriously eroded if any order less than cancellation of his registration is made in respect of the Respondent's grossly inadequate and unethical conduct. Submissions by the Respondent 17The Respondent provided submissions to the effect that; (1)His non-attendance at the hearing on February 19 and 20 was because of financial pressure, not an unwillingness to cancel patients. (2)He made no submissions in writing for the stage 2 hearing on the 7th of May as he had, in error, misinterpreted the dates as applied to him. Upon receiving submissions from the Complainant with little notice, he felt that he should be entitled to make statements regarding the matters raised. 18In relation to repayment of the fees to Mrs Foote, he submitted that there had never been expressed any unwillingness to make arrangements to do so. His financial position and payment arrangements in the Penrith practice were made known to the Council and that he had received no advice of any "conference" to discuss a payment arrangement. He submitted that there had been no opportunity to make any arrangement for this and submitted that there needed to be some understanding of the financial position. He submitted that of the $32,400, after deduction of laboratory and associated costs and payment to him of 40% of the balance, he would have received approximately $10,000 in respect of the course of treatment. He submitted that he was somewhat perplexed by Dr Lui's seeming unwillingness to make any refund to Mrs Foote, and that his ability to repay any of this is very much linked to his arrangements and what he actually earns. 19In regard to approved courses to be undertaken by him, the Respondent submitted that he asked the Council to advise what constituted approved courses as many of these were very costly and had limited attendance. He submitted that the response was hardly helpful in his circumstances. 20In regard to breach of the order not to carry out crown and bridge work, the Respondent submitted that for some time now he has not included crown and bridge work in his practice. In respect of the patients on whom crown and bridge work was done, the Respondent submitted that many of the patients classified as having been provided with crowns and/or bridges had in fact been provided with posts in endodontically-treated teeth or with removable prosthetics (and in many of these it would have been considered negligent not to provide such treatment). 21In regard to the Complainant's submissions, the Respondent expressed opposition to the Complainant's view that a person's prior history is not relevant in making an assessment or decision about the future. The Respondent submitted that the whole matter had been a great burden and certainly affected his ability and preparedness to deal with it. It also occurred at a time in his life where he had experienced a downward trend in health status and problems of application coming with it. The Respondent submitted that his history had been sound and that this was the first and only occasion in nearly 40 years of dental practice that a problem had arisen in this regard. The Respondent submitted that the complaint in itself was a shock as the family concerned had been long-term patients of his within the practice. The Respondent submitted that reading through the various statements from patients that were available to the Tribunal at the hearing of phase 1, their view of him and his conduct, care and professionalism and the confidence that they retain in him was clear. The Respondent submitted that Dr Lui's statements also confirm this. 22The Respondent attached to his submissions a letter from the director of Oral Health (Nepean Blue Mountains Local Health District) and submitted that this confirms the quality and need for his services in the Nepean Blue Mountains Local Health District. 23In relation to the test for depriving the public of services, the Respondent submitted that while there are many private practitioners in the Penrith area and that they are able to practise in crown and bridge work, he is the only practitioner who holds an appointment as a visiting dental officer in the Nepean Blue Mountains LHD and has done so without issue since August 1984. The Respondent submitted that he provides a service in minor oral surgery and special care and advising junior staff in these areas. He submitted that he is the only practitioner providing these services under general anaesthesia and does so with an extensive waiting list on referral. This encompasses care for the disabled and institution-bound individuals. The Respondent submitted that deregistration of him would have a significant impact on this area of service provision. 24The Respondent submitted that he no longer includes crown and bridge work in his practice and has no intention of getting involved in it again. 25On a personal level the Respondent submitted that the loss of registration would be disastrous. He is nearly 62 years old, living alone in a rented home with no other source of income. The loss of his employment (particularly with a poor superannuation prospect after the GFC) would very likely lead to loss of his home and little ability to cover any costs of living. Submissions in reply by the Complainant to the submissions of the Respondent 26The submissions in reply by the Complainant largely address each of the submissions made by the Respondent. 27In respect of the failure to appear at the hearing on the 19th and 20th of February, the evidence of Dr Lui indicates that arrangements could have been made for the Respondent to appear. There is no evidence to suggest that the Respondent approached Dr Yaacoub in the Blue Mountains Local Health District to arrange to be available to attend the hearing. 28In respect of the repayment of fees to Mrs Foote, the Complainant submitted that there is no evidence that the Respondent has taken any steps to make any payment to Mrs Foote, that there is no evidence that independently verifies his calculation that he benefited to the extent of $10,000 and the Respondent has not attempted to repay what he submits is his share of the fees ordered to be refunded. 29In respect of courses to be undertaken the Complainant submitted that it is the Respondents responsibility to find a course, and that he failed to do so. 30In respect of the health status of the Respondent, the Complainant submitted that if the Respondent contends that his health is a factor that the Tribunal should take into account he should file reports from treating medical practitioners outlining the condition, his prognosis and indicating whether such conditions have any relevant effect on his capacity to practise. 31The Complainant conceded that the Respondent is entitled to ask the Tribunal to take into account whether he has been the subject of previous complaints and it is for the Tribunal to determine how much weight should be attributed to this consideration. 32In respect of the letter from the Nepean and Blue Mountains Local Health District the Complainant submitted that the Respondent is referring to an undated letter from Dr Albert Yaacoub and notes the contents of it. 33In respect of the letter the Complainant submits that the Respondent has misquoted a section of the Complainant's original submissions dated 1 May 2014. At (22)(V) the Complainant stated that one factor the Tribunal should consider when determining appropriate protective orders is to ensure "the decision will not unnecessarily deprive the public of the services of the practitioner". The Complainant submitted that this factor needs to be balanced and weighed along with other numerous factors when determining appropriate protective orders. The word "unnecessarily" is significant as it indicates that there are many other factors for the Tribunal to consider, as well as deprivation of the public of a service. The Complainant submitted that the Respondent has not provided any evidence that if his registration were cancelled, the Nepean Blue Mountains Local Health District would not be able to appoint another visiting dental officer, nor has he provided any objective evidence that he possesses any unique skills not possessed by other dental practitioners in the area. 34In respect of the personal sense of loss of registration being disastrous, the Complainant submitted that in Health Care Complaints Commission v Dr Perroux (No. 2) [2011] NSWMT 15, the Tribunal Held that the "impecuniosity of a respondent is generally no reason to deny a successful complainant a favourable costs order". In addition, the Complainant submitted that Barratt v Medical Board of Australia [2012] NSWMT 22 is to similar effect. 35Finally, the Complainant submitted that the Respondent has not provided any documentation that independently verifies his financial position, and that if the Respondent considers that his current financial position is a relevant factor that the Tribunal should consider in relation to its stage two deliberations he should tender a statutory declaration outlining his financial position with supporting documentation verifying it being annexed. Evidence at the hearing of stage TWO on 21 May 2014 36The Respondent was not represented. The Tribunal explained to the Respondent the difference between making statements from the bar or giving evidence under oath and making himself available for cross-examination. 37The Respondent chose to give evidence under oath and made himself available for cross-examination. Respondent's Evidence 38The evidence given by the Respondent related in part to his medical condition. In summary, the health problems from which the Respondent suffered included a knee injury which required a partial reconstruction which necessitated his being off work from May to September 2009. He was diagnosed with severe hypertension and also with polymyalgia. He indicated that he might need a total reconstruction of his knee in the future. He is on medication for hypertension and being treated by Dr Anthony Bowden who has treated him for 15 years. He indicated that polymyalgia is an auto-immune disease which causes pain aggravated by sitting still. 39In evidence he indicated that the symptoms do not affect him in his practice of dentistry but there are times when he has difficulty getting out of bed and some occasions when he couldn't drive. Generally in relation to treating patients he would not treat them when in an acute phase. He also indicated that as he stands during operations he is better able to cope. Finally, in relation to his health he stated that he has had some DVT incidents in his left leg, thought to be possibly related to the polymyalgia. He is on warfarin for that. 40The Respondent gave evidence of his professional background, indicating that he graduated in 1976 and worked in various places, including Parramatta, Wollongong, Penrith and the Blue Mountains between 1976 and the current date. 41He has always been a general dentist with an interest in oral surgery, and has no post-graduate qualifications. He has done some courses in oral surgery. 42He does not regard himself as professionally isolated. His interaction with private practitioners is limited to quarterly meetings of various dental groups, and in the hospital setting the interaction is mostly with junior dentists. He is well acquainted with a few of the orthodontists in the area, has common patients with some of them and they get together to discuss cases and issues from time to time. 43In relation to Dr Lui, he hardly sees Dr Lui as they work on separate days. 44On average, over the last 12 months he has earned approximately $700 per week in his work at the clinic owned by Dr Lui. 45In the health service he is contracted for 550 hours per annum maximum and on average could do between 40 and 50 hours per month. There are some months where there is no work, and others where there is more. He earns $86 per hour in the health service. 46His average taxable income over the past 5 years was between $85,000 and $105,000. 47He lives in rental accommodation at a cost of $390 per week. 48His assets include a library, cricket memorabilia, a car which is 15 years old, furniture, books etc and two superannuation policies, one from the Penrith practice and one from the hospital policy, but he did not know the value of those policies. The last statement that he had in respect of the hospital policy was somewhere between $25,000 and $26,000. He has no significant debts. 49The Respondent was cross-examined on the letter of Dr Yaacoub. 50It emerged from that cross-examination that he usually does one and a half to two days per week, normally from 8am - 1pm or 2pm. Once in 4 weeks he has a morning list and a clinic in the afternoon. On a Monday and a Friday he does not work at all. He does oral surgery at Katoomba and Lithgow and supervises doctors at Katoomba, Lithgow and Nepean. At Katoomba and Lithgow there are approximately 4 dentists supervised and about 20 dentists at Nepean. He has no specific sessions with them but they do come to him for advice. They range from newly qualified to dentists of around 6 or 7 years' experience, going up to 20 years. They seek him out and sometimes come into surgery with him. 51The Respondent was cross-examined on his failure to attend the hearing and advised that he was intimidated by the matter and perhaps poorly advised. He indicated that he was advised by the Dental Board that he could not be represented and he assumed that that would apply to subsequent hearings. He was asked why he did not discuss with the doctors who he knew and worked with the fact of the complaint and to seek advice from them on how he should handle the matter to which he replied that he was embarrassed. 52Insofar as the costs of appearance are concerned, his evidence was to the effect that it was financial, not in respect of travel expenses but in respect of loss of income. He was asked why he could not change his hospital list to appear at the hearing and he indicated that it was difficult to cancel at short notice. He also did not ask Dr Lui if he could see the Wednesday patients on another day. 53He rejected any inference by the Tribunal that he was not taking the matter seriously, but that he was shocked at the complaint. 54In response to a question of whether he would advise young practitioners that he supervises and mentors to act in the way that he did, he responded that he is a person who tends to internalise. 55Turning then to cross-examination on the financial order, he indicated that the amount of $10,000 is an estimate and not an exact figure. He stated that he wrote to Mrs Cameron of the Council and told her that there would be difficulty. He did not speak to Dr Lui and he denied that he had received any correspondence from the Council seeking to hold a discussion. He did not however follow up with the Council and did nothing to speak to Dr Lui about the repayment of the money. He has not done so even to the present time. 56He was asked whether he had considered making a partial payment to Mrs Foote but indicated that he did not believe it was appropriate for him to write to Mrs Foote either directly or through the ADA. He believed that it was appropriate for the Dental Board to have done something about the payment arrangement. Insofar as PI insurance is concerned, he, having been told that he could not be represented, thereafter ignored the PI insurance and thought subsequently that it was too late to advise them. 57In regard to courses in fixed crown and bridge work were concerned, he stated that he did ask the question as to what courses were acceptable, but found their response unhelpful. He failed to identify a course himself and then ask the Dental Board if it was approved. 58In his evidence he submitted that his registration should not be cancelled because the Tribunal should understand where he is in this situation, a long history of good practice and the contribution that he makes. His hospital work is very crucial to him. He does not want to and cannot afford to retire. He makes a significant contribution to the health system and also referred to the statements made by various patients before the Tribunal which show their appreciation. He would be looking to retire at around 70 years if his health permitted. His interest in private practice has waned and he is really only interested in the public sector. 59He stated that there is probably no one who could take up his appointment in the hospital environment. Nobody has shown any interest in taking up these positions. 60He stated that Dr Yaacoub is aware of the fact that he may lose his registration and he has discussed with Dr Yaacoub what the service may do. They have looked at some juniors and they are not very experienced or have not shown an interest in oral surgery. He stated that if he were to be deregistered the community in that area would certainly suffer detriment. Dr Yaacoub's Evidence 61The Tribunal then required that Dr Yaacoub should be called to give evidence. TheTribunal determined that it could not rely solely on the letter provided by Dr Yaacoub. Arrangements were made to take Dr Yaacoub's evidence by telephone. 62Dr Yaacoub was sworn in and stated that the Respondent had been providing services for many years which had previously been broader but now were limited to minor oral surgery. 63They do have practitioners who can do these services under local anaesthetic but no one else currently who can provide these services under general anaesthetic. If the Respondent were not available patients would have to be referred to Westmead where delays would be much longer. Dr Yaacoub stated that there had been inconvenience when the Respondent had been unavailable on other occasions. He also stated that the Respondent provides a mentoring role and that currently they have no other clinician to provide minor surgery under general aesthetic at Nepean or Katoomba hospital. 64Dr Yaacoub was cross-examined by the Complainant and his evidence under cross-examination was to the following effect: 65Dr Yaacoub's position was established in 2010. Prior thereto he was based at Westmead and Nepean, Katoomba and Blackheath. His work is of a general dentistry nature. He is not credentialed to carry out dental surgery under general anaesthetic. 66A person to be credentialed would need to be familiar and competent to work in an operating theatre. There is no examination for that credentialing. The people responsible for the theatre would need to be satisfied that the person is competent and familiar to operate in a theatre. On being asked what the health service would do if the Respondent left the State, he indicated that they would; * Advertise; Offer a position to some of the senior staff who would need to be credentialed to operate in a theatre; Identify the few people on the staff that come close to the Respondent's level of competencies to do some of the minor surgery, but indicated that the Respondent has particular skills in some areas for example extraction of wisdom teeth. He was asked whether it was correct that the position is moulded to the particular skills that the Respondent has, to which he replied that it was possibly so. He indicated other doctors may have other skills and therefore conceded that they may gain and lose some things if the Respondent was not available. 67He indicated that the Respondent is the only member of the staff that does surgery under general anaesthetic and that there are some dentists who could not do some of the procedures that the Respondent is doing. He is not exactly aware of how long it would take for a dentist to be credentialed because he has not done that for some time, but it could take some time depending on the urgency, the competency etc. He did state that the process of credentialing was not a particularly onerous one. If the Respondent was not available and there was nobody else that was credentialed, patients would initially be referred to Westmead until they could recruit or have someone credentialed. Insofar as waiting times were concerned in the Nepean area including Katoomba etc, it would be approximately 3-4 months to see the Respondent and then several months thereafter to be treated. The approximate waiting time at Westmead was not known to Dr Yaacoub but he recalled that approximately 3 years ago for similar procedures the waiting time was approximately 12 months. 68He advised that if there is an urgent need they can fast-track treatment but they need to be equitable to all patients. He also stated that the Respondent does not do emergency procedures. There is no trauma or emergency in that situation. 69That concluded the evidence of Dr Yaacoub. Closing submissions by the Complainant 70The Complainant submitted that the matter crystalizes down to insight. The Complainant submitted that if the proceedings had been brought in 2011 then in his view there would have been no doubt that the Tribunal would have deregistered the Respondent. The Complainant recognised that we are looking at the position in 2014 and questioned whether there has been any change in the position of the Respondent. The Complainant submitted that they had engaged in a very light cross-examination and had given every opportunity to the Respondent to put his then behaviour in the best possible light. He submitted that the Tribunal should not have confidence going forward that the Respondent would have insight to deal with matters any better. He submitted that the Respondent had conceded that he had relationships with senior dental practitioners and yet to this date has failed to talk to them. The Respondent has not taken time to reflect on how he has behaved and has not taken steps to pay money which he was ordered to do some 4 to 5 years ago. 71Their conclusion is that as a professional person he has preferred his own interests over that of the patients. 72The protection of the dental profession and the protection of the public is paramount, and the public is entitled to expect that the professional person would comply with the orders of the Council. His conduct shows a disrespect for orders of the Council and the interests of Mrs Foote and her right to be compensated. 73The Complainant conceded that there are multiple options available to the Tribunal, but that the Complainant wants deregistration because; * If the Tribunal were to suspend the Respondent, he would be automatically reinstated in say 12 months. If deregistered for the same time he would have to apply and to demonstrate and persuade the registering authority that they could be confident to reregister him. 74The Complainant seeks deregistration and they submit that it should be for 2 years to give the Respondent time to reflect on what he did and what he did not do. The Complainant submitted that if the Tribunal were not minded to cancel his registration it is difficult to frame appropriate conditions. It can sometimes be appropriate to impose a suspension even if there is demonstrated some movement towards changing the position. In any event the Respondent has a history of breaking conditions and is unable to give a proper explanation for why he failed to comply with the conditions. 75On the question of special skills, the Complainant submitted that it is evident from the evidence, that the Respondent does not have real special skills in the sense that we should take that into account. There are alternatives available at Westmead or Sydney Dental Hospital and the credentialing of other dentists does not appear to be a particularly onerous task. Reasons for Decision 76In determining whether the Respondent should be allowed to continue practising the Tribunal had regard to a number of factors including the orders made by the Dental Council, the conduct of the Respondent in respect of those orders and the conduct of the Respondent in general terms in his handling of the complaint made against him. 77The Tribunal found in phase one that the Respondent was guilty of unsatisfactory professional conduct and professional misconduct and based on that decision the Tribunal believed that it had various options available to it including deregistration, suspension for a period of time, conditions placed on the Respondent's practice and reprimand. 78In deciding on appropriate orders, the Tribunal has a duty to protect members of the public and to protect the dental profession and the reception of the dental profession in the minds of the public. 79The Tribunal considered the orders made by the Council and the manner in which those orders were dealt with by the Respondent and deals with each of those below. 80In respect of the order made to refund the amount of $32,400 to Mrs Foote the Tribunal noted that no payment had been made to Mrs Foote either in whole or in part in respect of the fees charged to Mrs Foote by the Respondent. 81The Respondent sought to explain that he had not made any payment to Mrs Foote as he was unable to make a payment in the sum of $32,400. In addition he stated that the benefit to him had only been approximately $10,000, with the balance going to Dr Lui or to external service providers. He stated that he had contacted the Council and indicated that he was unable to make a payment of $32,400 and expected the Council to make arrangements to discuss a method of settling the fee payment. He indicated that he thought it would be inappropriate for him to contact Mrs Foote either directly or through the Council, and that he had therefore done nothing about arranging for a payment either in part or in full. He was asked whether he had discussed repayment of the fees with Dr Lui to which he replied that he had not done so at any time. 82The Tribunal rejects the explanation given by the Respondent and believes that over a period of almost 5 years since the order was made the Respondent could and should have done something to make an arrangement with Mrs Foote and talked with Dr Lui about the repayment to Mrs Foote of her fees. 83The Tribunal believes that it has a duty to protect members of the public and that Mrs Foote, as a member of the public, has suffered damage in having paid the Respondent $32,400 for treatment and having had to subsequently incur additional costs of repairing the work that was done by the Respondent. 84In respect of the order by the Council to undertake courses in bridge and crown work, approved by the Council, the Respondent sought to explain his failure to do so by indicating that he had contacted the Council to enquire as to what courses would be acceptable to them and that he found their position unhelpful. The Tribunal rejects this explanation and believes that the order having been made, it was up to the Respondent to seek out appropriate courses and if necessary to approach the Council to ascertain whether those courses would be acceptable courses for the Council. 85The most significant aspect of the Respondent's behaviour in respect of the orders made relates to bridge and crown work. The Respondent was well aware of the fact that he had an order against him not to undertake bridge or crown work until such time as he had completed appropriate approved courses. Despite this fact, the evidence given at stage one of the hearing and accepted by the Tribunal was to the effect that from the period after the order was made in 2009 until at least the first half of 2011, the Respondent carried out bridge and crown work on a number of patients. The Respondent explained in correspondence and communications prior to the hearing that in respect of some of the patients he did not regard the work as bridge or crown work despite the fact that it had a similar health care number as bridge or crown work, and that in respect of others of the patients he only did bridge or crown work where he believed that he had commenced work towards bridge and crown work prior to the order and that he felt obliged to complete that work. Despite the fact that at the hearing of the matter, evidence was given, both by Dr Lui and by the peer review expert, that in respect of a large number of patients, bridge and crown work had been done, the Respondent continued to maintain the same position. On questioning by the Tribunal he maintained in the position that he had thought that he was only completing work that had already been commenced despite the fact that it was made obvious to him that bridge or crown work was done 3, 6, 12 or even up to 18 months after the order was made, and that therefore he had not only completed work that had been done prior to the order. The Respondent had great difficulty accepting the inappropriateness of his carrying out bridge or crown work after an order was made ordering him not to do so and seeking to explain it away on some lack of understanding. 86Turning then to the behaviour of the Respondent after the complaint was made, it is clear from the correspondence and the evidence led in this matter that the Respondent was not co-operative with the Council during the conduct of its enquiries, attendance at meetings set by the Council and in the conduct of its investigations. 87The Respondent is subject to the authority of the Dental Board which has a role of ensuring that dentists abide by standards set for the dental profession. When a complaint is made by a member of the public and investigated by the Council the dentist has a duty to the Council to cooperate with the Council in its investigation and to ensure that the good name of the profession is protected. The Tribunal is satisfied that the Respondent failed to do so and regards this as a serious flaw in the behaviour of the Respondent. 88In respect of the Tribunal hearing, the Tribunal notes that the Respondent failed to cooperate with the Tribunal or to enable the Tribunal to conduct the hearings in an efficient, speedy and fair manner. The Respondent was notified at all times of all hearings scheduled to take place. These included directions hearings to set a timetable for the hearing of the matter, the Stage One Hearing in the matter and steps towards the hearing to determine appropriate orders. 89The Tribunal notified the Respondent of the first directions hearing which was scheduled for the 11th of November 2013. The Respondent failed to appear at that hearing and directions orders were made in his absence. Those directions included that the Complainant was to serve the Respondent with documents they intended to rely upon by the 2nd of December 2013, the Respondent was to serve the Complainant with the documents he intended to rely upon by the 23rd of December 2013, the Complainant was to serve any documents in reply on the Respondent by the 17th of January 2014 and a hearing was set for the 19th, 20th and 21st of February. As a precaution, because the Respondent had not appeared at the directions hearing and that the order was made in his absence, the Chairman who made the order insisted that the directions should be served personally on the Respondent. Personal service of the directions was effected on the Respondent by a process server at a cost which should not have been incurred if the Respondent had been at the hearing. 90The Respondent failed to comply with any of the directions made at that directions hearing in November and then failed to appear at the hearing on the 19th of February with no explanation to the Tribunal other than an email sent to the Complainant the day before the hearing indicating that he was unable to attend the hearing due to work obligations. 91This despite the fact that the Respondent had notice in November 2013 of the dates for the hearing, that he failed to comply with any of the orders made for document exchange in the interim period and the fact that evidence was led to the effect that his bookings for February in Dr Lui's clinic would not have been made as early as November 2013. 92It appeared clear to the Tribunal that the Respondent was not prepared to cooperate with the Tribunal in respect of the complaint against him. 93In the Respondent's approach to the Complainant the day before the hearing, the Respondent sought an indulgence from the Tribunal to the effect that if the Tribunal determined that the Respondent was guilty of unsatisfactory professional conduct or professional misconduct, that the Tribunal should give the Respondent an opportunity to be heard on orders to be made. It is not automatic that Tribunal hearings are split into two stages but despite the past behaviour of the Respondent and despite the additional costs associated with a split hearing, the Tribunal, in seeking to accommodate the Respondent, agreed to split the hearing and to determine only the question of the unsatisfactory professional conduct or professional misconduct of the Respondent in stage one. 94Having determined that the Respondent was guilty of unsatisfactory professional conduct and professional misconduct, the Tribunal set a directions hearing to take place on the 24th of March 2014. Despite the fact that the Respondent claims not to have received notice of that directions hearing, the Tribunal is satisfied that he did receive notice of the hearing and again failed to attend. At the directions hearing orders were made for additional evidence to be provided, for submissions to be made on particular dates and the hearing was set down for the 7th of May 2014. The day before the hearing the Respondent asked for an adjournment as the Respondent claimed not to have had time to prepare his submissions or to arrange for references to be provided in respect of him as a practising dentist. 95The Tribunal indicated to him that an adjournment could not be granted automatically, and that he should appear on the 7th of May to seek an adjournment which the Tribunal would consider. The 7th of May was the first occasion on which the Respondent appeared and gave an explanation for why he needed time further to prepare submissions and to be in a position to deal with a hearing in respect of orders. He also indicated that he needed time to provide references that would support his position as a practising dentist. 96Again, in consideration of the fact that the Respondent was unrepresented and that he was having difficulty dealing with the matter, the adjournment was granted and a further hearing was set down for the 21st of May 2014. The orders made on the 7th of May included that the Respondent was obliged to serve submissions and any additional evidence that he wished to put before the Tribunal by the 14th of May. The Respondent provided submissions including a letter from Dr Yaacoub on the 16th of May, two days after the date set by the Tribunal, despite the fact that the Tribunal had indicated that the dates had to be complied with strictly. The Tribunal notes that the only additional information that the Respondent provided during the extended period was the letter from Dr Yaacoub and that no additional evidence or references were provided, which the Tribunal expected by virtue of the fact that it was the gathering of evidence and references that caused the Tribunal to allow the adjournment on the 7th of May. 97The community is entitled to expect that professionals will abide by directions and orders made by their professional Council, so that proper standards are maintained. Dr Poole has failed to comply with the Dental Board, now Dental Council orders. 98The Tribunal is satisfied that the Respondent has behaved unprofessionally in respect of his dealings with the entire complaint including with a member of the public, his professional body and the Tribunal. The Tribunal is also satisfied from the evidence given by various parties, including the evidence of the Respondent himself, that the Respondent lacks insight into his conduct and the damage which he has caused, not only to a member of the public but to the dental profession as a whole, and that it is appropriate that the Respondent be deregistered as a dentist. Orders 99The Tribunal makes the following orders that: (1)The Respondent be deregistered with immediate effect. (2)The Respondent not be entitled to apply for reregistration for a period of at least 1 year. (3)The costs of the Complainant be paid by the Respondent. ********** Back to top 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: 20 June 2014