Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Son [2014] NSWCATOD 145 Hearing dates: 3, 4, 5 November 2014 Decision date: 04 December 2014 Jurisdiction: Occupational Division Before: N O'Neill, Principal Member Dr R Hochstadt, Dentist Member Dr A Lang, Dentist Member S Edmonds, Lay Member Decision: The tribunal: 1. Found the complaint of unsatisfactory professional conduct against Dr Son proved. 2. Found the complaint of professional misconduct against Dr Son not proved. 3. Reprimanded Dr Son. 4. Ordered that the conditions imposed on Dr Son prior to the inquiry be revoked and replaced by the conditions set out in paragraph 65 of these reasons for decision. 5 Ordered that, unless one or both parties request, within 21 days of the publication of these reasons for decision, a directions hearing to set up arrangements for further submissions in relation to costs, there will be no order for costs in this matter. 6 Ordered that the name of Patient A set out in the Schedule to the Complaint and any reference to any member of Patient A's family shall not be published to any person except the parties to these proceedings Catchwords: ADMINISTRATIVE LAW - NCAT's jurisdiction in relation to health practitioners - dentists, unsatisfactory professional conduct, treating with a restricted substance for an inappropriately long period and failure to refer a patient on treatment when treatment not working - conditions - costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Medical Tribunal in Health Care Complaints Commission v King [2012] NSWMT 9 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Ilyong Son (Respondent) Representation: Health Care Complaints Commission (Complainant) Meridian Lawyers (Respondent) File Number(s): 1420198 Publication restriction: The name of Patient A set out in the Schedule to the Complaint and any reference to any member of Patient A's family shall not be published to any person except the parties to these proceedings reasons for decision Introduction 1This matter, before the Occupational Division, is an inquiry into a Complaint lodged with NCAT by the Health Care Complaints Commission (HCCC) against Dr Ilyong Son, a dentist. The panel of NCAT conducting the inquiry comprised a presiding member who is an Australian lawyer, two dentist members and a lay member who is not a dentist. Below we set out the decisions of the tribunal, our reasons for those decisions and the orders made by the tribunal. What the tribunal decided 2The tribunal found the complaint of unsatisfactory professional conduct against Dr Son proved. 3The Tribunal found the complaint of professional misconduct against Dr Son not proved. 4The Tribunal reprimanded Dr Son. 5The tribunal ordered that the conditions imposed on Dr Son prior to the inquiry be revoked and replaced by the conditions set out in paragraph 65 of these reasons for decision. 6The tribunal ordered that, unless one or both parties request, within 21 days of the publication of these reasons for decision, a directions hearing to set up arrangements for further submissions in relation to costs, there will be no order for costs in this matter. 7The tribunal ordered that the name of Patient A set out in the Schedule to the Complaint and any reference to any member of Patient A's family shall not be published to any person except the parties to these proceedings. Background to this Complaint 8Dr Son was born in 1965. After graduating as a Bachelor of Dental Surgery, he was first registered as a dentist in December 1988. Between February and May 1994 he was not registered, but has been registered continuously since May 1994. At the commencement of the hearing, his registration was current until 30 November 2014. 9The (Medicare) Chronic Diseases Dental Scheme (MCDDS) taskforce identified Dr Son for consideration under the Practitioner Review Program intervention. An analysis of his practice profile for the year 2011-2012 identified concerns and, by a letter dated 22 January 2013, to the Australian Health Practitioner Regulation Agency (AHPRA), the Commonwealth Department of Human Services provided information to AHPRA relating to Dr Son's prescribing medication described as, "either not therapeutically necessary, or outside the requirements outlined in the Schedule of Pharmaceutical Benefits". AHPRA passed this notification/complaint to the Dental Council of New South Wales (Council). By a letter dated 14 February 2013, the Council asked Dr Son for his response. Dr Son responded immediately. The Council conducted proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law) to determine whether it was satisfied that it was appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest to take action under the section. We note that if the Council is satisfied that it is appropriate to take action, then it must take the action or actions that it considers appropriate that are available to it under s 150(1)(a) or (b) of the National Law. The Council conducted its proceedings on 18 March 2013. It made findings that satisfied it that it was appropriate to impose certain conditions on Dr Son's registration as a dentist. These included precluding him from possessing, using, supplying or prescribing s 8 drugs or s 4 drugs, with certain exceptions in relation to s 4 drugs. (That is any poison or substance listed in Schedule 8 or Schedule 4 of the Poisons List as proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW).) 10The Council then referred the matter to the Health Care Complaints Commission (HCCC) as required by s 150D of the National Law. The HCCC investigated the matter and lodged its Complaint together with an application for disciplinary findings and orders in the Occupational Division of NCAT on 23 May 2014. After the appropriate exchanges of documents between the parties, the matter came on for hearing on 3 November 2014. The Complaint and what has to be proved 11The HCCC's Complaint in this matter, which was amended in a minor way and without objection during the course of the hearing, contained 2 complaints. Complaint one alleged that Dr Son was guilty of unsatisfactory professional conduct and complaint two alleged that the instances of unsatisfactory professional conduct alleged and particularised in complaint one were either separately or together of a sufficiently serious nature as to justify suspension or cancellation of Dr Son's registration and so professional misconduct. 12The particulars to both complaints were as follows: (1)Between approximately November 2010 and August 2012, the practitioner failed to provide adequate care and treatment to Patient A in that he prescribed Tramadol Hydrochloride 50mg as listed in Schedule A to this complaint, in circumstances where: (a)prescribing the medication for that duration of time was not an appropriate treatment for the clinical condition for which the practitioner prescribed the medication namely, muscle related disorder resulting in severe pain; (b)it was contraindicated for a recovering alcoholic. (2)Between 1 July 2011 and 30 June 2012, the practitioner issued 18 prescriptions for a restricted substance, namely Tramadol Hydrochloride, to Patient A, otherwise than for dental treatment contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008. (3)After 19 November 2010, the practitioner failed to appropriately manage Patient A's chronic pain in that he did not consider and/or recommend other treatment options including referral to a neurologist or other specialist. (4)The practitioner failed to comply with the requirements of the Medicare Chronic Diseases Dental Scheme ("MCDDS") by: (a)providing treatment to Patient A under the MCDDS, namely treatment for facial pain by prescribing Tramadol Hydrochloride, which was not a treatment for the dental condition in respect of which the patient was referred under the MCDDS; (b)failing to prepare a treatment plan and/or forward a copy or summary of the treatment plan for Patient A by the practitioner to the patient's general medical practitioner prior to the commencement of any treatment by the practitioner. 13Even as in this case, where the respondent, Dr Son, has admitted to some matters, we must still be satisfied on the balance of probabilities by the evidence that the subject-matter of each of the complaints against him has been proved. Only after we find the subject-matter of a complaint has been proved may we take action in relation to it. The responsibility for proving the subject-matter of a complaint lies with the party alleging it - in this case the HCCC. However where relevant facts and allegations are admitted to, as in this case, proof of those matters that are admitted to and an understanding of their seriousness is more easily achieved. 14At the commencement of the hearing, Mr Griffin raised the issue of whether this matter should proceed through from the hearing of the evidence in relation to proof of the complaints through to evidence about the appropriate protective orders and on to submissions on both proof of the complaints and the protective orders, if any, that should be made in the light of the findings that are predictable in the light of the evidence, or whether another approach should be taken. Mr Griffin requested that he be allowed sufficient time when the taking of evidence had been completed to obtain instructions from the HCCC as to the submissions he should make in relation to the findings available to us on the basis of the evidence and the protective orders we should make in the light of our findings. Mr Gregg opposed this request on the grounds that Mr Griffin and the HCCC had had all evidence proposed to be given in plenty of time to have dealt already with the question of appropriate submissions and that his request would add to the costs of the hearing unnecessarily. We decided to proceed with the matter and to deal with Mr Griffin's request at the end of the evidence. As it turned out, the time needed for the evidence to be presented provided the time for the appropriate preparation of submissions by both parties without the need for an adjournment specifically to meet that request. The sources of the evidence 15At the commencement of the hearing, Mr Griffin tendered a volume of documents, without objection. These documents were marked Complainant's Exhibits (CE) 1-44. At the same time, Mr Gregg tendered 2 volumes of documents. The first was marked Respondent's Exhibits (RE) 1-8. The second, together with exhibits tendered during the hearing, were marked Respondent's Supplementary Exhibits (RSE) 1-18. During the course of the hearing 2 dentists Dr Carter and Dr Selby gave expert evidence orally to us. Dr Son also gave oral evidence to us. The evidence 16It was common ground between the parties that, at all relevant times, Dr Son was a dentist at a particular dental clinic and that from about 17 June 2009, Patient A consulted him as his (Patient A's) regular dental practitioner and Patient A presented with a history of migraine and neuralgic pain that was not relieved by the use of Panadol. Further that, over a course of consultations from 17 June 2009, Dr Son treated Patient A with Transcutaneous Electrical Nerve Stimulation (TENS) therapy to relieve pain from muscle mastication. He also performed splint therapy on Patient A by making a night guard to relieve pain from teeth grinding and performed implant replacement to stabilise the function of Patient A's temporomandibular joint (TMJ). 17The evidence before us shows that Patient A attended Dr Son who conducted a dental examination and gave him a quotation for the dental treatment he proposed on 17 June 2009. Records from Dr Son's clinic show that Patient A was satisfied with the quotation. He returned for treatment 2 days later, on 19 June 2009. Patient A either received treatment or underwent dental examinations, or both, on 7 occasions after that date and before 7 December 2009 on which he attended the clinic stating that he had severe pain on the right side of his face. The notes of the visit show that Dr Son prescribed Tramal (which is tramadol hydrochloride and which is also sold as Tramadol Sandoz), 20 tablets of 50mg per dose to be used as and when necessary (p.r.n.) in doses of 1 or 2 tablets "when required". The notes stated that Tramal's side effects and drug interactions were explained, including no alcohol. The notes also recorded a 2 week recall. 18However, the notes in relation to Patient A provided to us by Dr Son do not have him returning to the clinic for nearly a year, on 19 November 2010. Nevertheless, the evidence shows that Dr Son issued scripts to Patient A for Tramal on 6 different occasions during that period 7 December 2009 to 19 November 2010 with no notes of any visits by Patient A and no reasons for why Dr Son prescribed Tramal for Patient A on those occasions. However, Dr Son did tell us that Patient A would arrive at his clinic without an appointment and wait in the clinic's waiting room sometimes coming in and going out. He also said that Patient A told him he was in pain on these visits and that he gave him scripts for Tramal. 19As already noted, the first of the particulars that apply to both complaints alleges that between approximately November 2010 and August 2012, Dr Son failed to provide adequate care and treatment to Patient A in that he prescribed Patient A Tramal, an s 4 drug, in circumstances in which prescribing Tramal for that duration of time was not an appropriate treatment for the clinical condition for which he had prescribed it namely for muscle related disorder resulting in severe pain. Further that Tramal was contraindicated for a recovering alcoholic. 20Dr Son admitted that he prescribed the Tramal during the period alleged and it was stated on his behalf in the reply to the HCCC's Complaint against him that he failed to provide adequate care and treatment to Patient A in that he continued to prescribe Tramal when he ought to have questioned both the efficiency of the treatment and Patient A's dependence on Tramal. Dr Son admits that his conduct in this regard amounts to unsatisfactory professional conduct. 21We note that Dr Son did not admit particular 1(b), relating to Tramal being contraindicated for recovering alcoholics. It was Dr Son's position that he was unaware that Patient A had a history of alcoholism prior to 8 June 2011 which was when he received the referral from Patient A's general practitioner in which Patient A is recorded as an alcoholic, abstinent since 2007. We also note that the clinic's records dated 7 December 2009 allows for the statement in the reply on behalf of Dr Son that he told Patient A that he should not consume alcohol when taking Tramal. 22In his report dated 30 October 2013, Dr Carter, the expert witness called by the HCCC, stated that he; "would advocate that specialist opinion ought to have been sought after the review on [19 November 2010]". Dr Selby, the expert witness called by Dr Son, in his supplementary report dated 24 September 2014, noted that in his original report he expressed the opinion that Dr Son ought to have realised the need to refer Patient A for reassessment of his condition on 29 September 2011. However he went on to state that: "In view of the numerous additional visits to the dentist (albeit unscheduled) I believe Dr Son ought to have considered referral of the patient, at the very latest, upon completion of the bridgework in June 2011 or upon assessment of [Patient A's] pain condition when reviewed on [1 November 2011]". 23Given Dr Son's admission and the evidence, particularly of the 2 expert witnesses, we were satisfied that the subject-matter of particular 1(a) was proved; but that the subject-matter of 1(b) was not. 24Particular 2 states that between 1 July 2011 and 30 June 2012, Dr Son issued 13 [as amended] prescriptions for a restricted substance, namely tramadol hydrochloride, to Patient A, otherwise than for dental treatment contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008 (Regulation). Clause 33(4) of the Regulation provides that: "A dentist must not issue a prescription for a restricted substance otherwise than for dental treatment and must endorse any such prescription with the words "FOR DENTAL TREATMENT ONLY"." 25Dr Son admitted that he had prescribed Tramal for Patient A on 13 occasions during that time, but that was as far as his admission went. It was his position that he had diagnosed Patient A with TMD, described by Dr Carter as a disorder of the muscles of mastication and that Patient A's reported pain was an associated symptom. Dr Selby also noted that temporomandibular disorders (TMD) and temporomandibular joint disorders (TMJD) were terms, often used interchangeably, to refer to the same thing. Dr Son also noted that he complied with the endorsement of his prescriptions required by clause 33(4) of the Regulation. That was not an issue in this case. 26The key issue in relation to this particular was whether we could be satisfied that when Dr Son was issuing the 13 prescriptions for Tramal for Patient A between 1 July 2011 and 30 June 2012, he was doing so otherwise than for dental treatment. It was Dr Son's position that TMD was a condition commonly treated by dentists, hence it could be considered dental treatment. In his report dated 19 September 2014, Dr Selby stated that treatment for TMD was aimed at alleviating pain and, "decreasing adverse joint loading". He also stated that while the treatment of some patients could present a challenge, it was widely accepted that general dental practitioners had a role in the management and continuing care of patients with TMD. Dr Carter's evidence did not challenge Dr Selby's view on this matter. His stated in his oral evidence to us that he was not critical of Dr Son's "general treatment" of Patient A, in fact he described it as a, "very good method of treatment". He was not critical of the initial use or Tramal, but was critical of the duration of the use of the drug. It was Dr Carter's opinion that by the end of 2011, Dr Son's dental intervention was not working and that Patient A should have been referred to his general practitioner (medical doctor). While this was what he said in his oral evidence to us, as already noted, he was more specific in his report dated 30 October 2013 when he nominated 19 November 2010 as the time after which Dr Son ought to have sought a specialist's opinion. 27In Dr Carter's opinion, Tramal was an "adjunct" to dental treatment to be given while treatment was being carried out and that once the treatment was completed prescribing it was no longer part of dental treatment. His opinion in his report dated 30 October 2013 was more direct. His view was that, relating to the time period 1 July 2011 to 30 June 2012, that Dr Son recognised that there was a pain problem that was not solved by any of his interventions. In those circumstances consultation and or referral were indicated and, "the continued prescribing of palliative analgesia was incorrect". In his view, Dr Son's treatment rationale was significantly below the standard reasonably expected and he was strongly critical of Dr Son's conduct. 28When specifically asked, in an email to him dated 31 October 2013, his opinion as to whether Dr Son was in breach of clause 33 of the Regulation, Dr Carter was of the opinion that Dr Son's prescription (of Tramal) was for the relief of migraine and facial pain and not dental pain. He stated that Dr Son's, "broad restorative treatment" of Patient A's dentition failed to relieve chronic pain and, "as such" the prescription was not for dental treatment only. Consequently it was a significant departure from practice and was significantly below the standard reasonably expected and he was strongly critical of Dr Son's behaviour. 29We consider that Dr Carter's opinions in this regard go more to the questions raised by particular 1, which Dr Son has already admitted to as unsatisfactory professional misconduct. Both Dr Carter and Dr Selby were of the opinion that Dr Son's prescribing Tramal for Patient A, for the period he did so because of the pain that Patient A said was related to his dental problems and Dr Son stated often that he believed to be the case, was conduct that was significantly below the standard of care reasonably expected of a dentist of an equivalent level of training and experience to that of Dr Son. In relation to particular 2 however, we are asked to determine whether or not the Tramal prescribed was otherwise than for dental treatment. As already noted, the onus of proving that Dr Son prescribed Tramal otherwise than for dental treatment lies with the HCCC. 30The evidence before us shows that, during the 12 months in question, when Dr Son was attending to Patient A, he did so in a manner that could be described as dental treatment. On 1 July 2011, for example, Dr Son examined the upper and lower human bridge and found it stabilised. He prescribed Tramal p.r.n. and advised Patient A to return for review and reassessment of facial/TMJ pain. He gave TENS therapy as an adjunct to relieve pain and to relax the muscles of mastication. On 23 September 2011, Patient A returned complaining of constant right facial and TMJ pain. Tramal p.r.n. was again prescribed. On 29 September another visit involving an examination, muscle palpation, a review of the splint and oral hygiene instruction. On 10 November, Patient A returned reporting pain of a lesser severity while on 24 November Patient A was given TENS therapy. On all 3 of these occasions, Patient A was given Tramal p.r.n. 31His next visit to Dr Son was on 17 February 2012 when he returned with "on and off ongoing pain" described as being right facial/TMJ. This time however he was advised by Dr Son to see his general practitioner, "regarding medication and pain". Dr Son prescribed Tramal again, noting that Patient A did not take any other medication to relieve pain. He returned 3 weeks later on 8 March when he was treated with scaling and prophy and his occlusal splint was checked. Eight days later he returned, on 16 March 2012, complaining of difficulty with chewing and other severe pain. He was given TENS treatment. On both visits in March 2012, Patient A was prescribed Tramal. 32He visited Dr Son on 3 different occasions in April 2012; on 10, 20 and 26 and Tramal is prescribed for him on each occasion. Pain and/or stress were the reasons for each visit, but some examination or dental advice was recorded for each visit. Dr Son also prescribed Tramal on the last 2 visits during the relevant period. These were on 18 May and 12 June 2012. Persistent pain or similar remarks are recorded as the reasons for the visits and some form of examination took place. An examination based on a request for pain relief was the reason for the next visit on 9 August 2012 (outside the relevant period). He was again prescribed Tramal p.r.n.; but he was, "required to consult his general practitioner". 33We note that dental treatment is not defined in the legislation relevant to the Complaint before us. We note also that it would be unwise for us to seek to describe the parameters of what is dental treatment. This is because dental practice is a dynamic thing that continues to develop and change as new treatments, new instruments and machines as well as new medications and other materials are developed and adopted into dental practice for the benefit of all of us. Mr Griffin submitted to us, noting the expertise in the tribunal's membership conducting this inquiry, that if we found that the treatment given by Dr Son was always dental treatment then there was no breach of clause 33 of the Regulation, but if we found that, during the relevant period, Dr Son should have stopped the treatment, then there was a breach of the clause. We are not sure that that is the correct way to look at the matter when considering a situation in which a dentist is carrying on a form of dental treatment in circumstances in which pain is claimed by the patient, and accepted by the dentist, as being associated with the diagnosed dental problem. 34We accept that the evidence is clear, and both expert witnesses agree, that Dr Son should have either sought specialist opinion after 19 November 2010 (Dr Carter) or considered referral of Patient A no later than 1 July 2011 (Dr Selby), the day the period covered by particular 2 began. But does that mean that by continuing to treat Patient A through examinations of him, by applying TENS treatment, by scaling and cleaning his teeth and by prescribing Tramal p.r.n. for him for the pain he claimed persisted in the areas being treated Dr Son was doing these things otherwise than for dental treatment? Is it legitimate to provide the other examinations and services as dental treatment in these circumstances, but not legitimate to prescribe pain relieving medication in the same context when the experts accepted its use as an "adjunct" to the other treatment up to 19 November 2010 in the case of Dr Carter and apparently as a part of the treatment to no later than 1 July 2011 in the case of Dr Selby? 35We note that Dr Son gave Patient A TENS treatment 3 times between 1July 2011 and 16 March 2012. While TENS treatment for TMJ pain is a not universally accepted as a treatment proven to be effective for the treatment of TMJ pain, it is a treatment that is used for that purpose by some dentists. We appreciate that the scaling and cleaning of Patient A's teeth on 8 March 2012 was not dental treatment that was aimed at overcoming pain of the kind Patient A complained of. We note that, on 17 February 2012, Dr Son advised Patient A to see his general practitioner regarding medication and pain. However, we also note that after 17 February 2012 until the end of the relevant period on 30 June 2012, while Dr Son examined Patient A on the occasions he saw him and gave some counselling about pain management on at least 1 occasion, the only active treatment he gave Patient A in relation to his complaints about facial, neck and ear pain was to prescribe Tramal for him. While we accept that, for the rest of the relevant period after 17 February 2012, Dr Son was only treating symptoms and not the causes of the pain he stated that Patient A was complaining of, we do not see that this is proof to the required standard that Dr Son was prescribing Tramal for Patient A otherwise than for dental treatment contrary to cl 33 of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 36Without more evidence about the matter from the HCCC, we were not satisfied that it has proved that when Dr Son issued prescriptions for Tramal during the relevant period as part of what had been accepted as dental treatment prior to the relevant period, he began to issue those prescriptions otherwise than for dental treatment. We note Dr Son's admission in relation to particular 1(a) and our finding that that particular was proved. That particular relates to prescribing Tramal for an inappropriately long time. We also note that Dr Son admitted that he failed to manage Patient A's chronic pain appropriately in that he did not consider or recommend other treatment options including referring Patient A to a neurologist or other specialist and our finding that those allegations were proved. While we accept, and indeed have found, that Dr Son treated Dr Son for an inappropriately long time and that he failed to manage Patient A's chronic pain appropriately, as set out above, we do not consider that those findings provide an evidential basis for inferring that Dr Son had been issuing prescriptions of Tramal to Patient A otherwise than for dental treatment during the period 1 July 2001 and 30 June 2012. 37As a consequence, we do not find the subject-matter of particular 2 proved. 38Without more evidence about the matter from the HCCC, we were not satisfied that it has proved that when Dr Son issued prescriptions for Tramal during the relevant period as part of what had been accepted as dental treatment prior to the relevant period, he began to issue those prescriptions otherwise than for dental treatment. As a consequence, we do not find the subject-matter of particular 2 proved. 39Particular 3 states that after 19 November 2010, Dr Son failed to appropriately manage Patient A's chronic pain in that he did not consider and/or recommend other treatment options including referral to a neurologist or other specialist. During the course of his oral evidence to us, Dr Son admitted to this particular back to the date 19 November 2010, having initially admitted it from July 2011 onwards. He also admitted this particular as amounting only to unsatisfactory professional conduct and not professional misconduct. 40Given Dr Son's admission and the evidence of Drs Carter and Selby on this matter set out above, we were satisfied that the subject-matter of this particular was proved. 41Particular 4 is as follows: The practitioner failed to comply with the requirements of the Medicare Chronic Diseases Dental Scheme ("MCDDS") by: (a)providing treatment to Patient A under the MCDDS, namely treatment for facial pain by prescribing Tramadol Hydrochloride, which was not a treatment for the dental condition in respect of which the patient was referred under the MCDDS; (b)failing to prepare a treatment plan and/or forward a copy or summary of the treatment plan for Patient A by the practitioner to the patient's general medical practitioner prior to the commencement of any treatment by the practitioner. 42It was also common ground between the parties that on 8 June 2011, nearly 2 years after Patient A became Dr Son's patient, Patient A's general medical practitioner referred him to Dr Son under the Medicare Chronic Diseases Dental Scheme (MCDDS). 43In his written reply, dated 26 September 2014, to the HCCC's Complaint, it was stated that Dr Son admitted that he unintentionally failed to forward a copy of the treatment plan prepared by him for Patient A prior to commencing treatment on him. This was part of the allegation against him set out in paragraph (b) of particular 4. However, Dr Son did not admit to the other part of the allegation against him in that paragraph, namely that he failed to prepare treatment plan as was required under the MCDDS. In fact he claimed that he had complied with that requirement in that he had provided Patient A with a handwritten treatment plan prior to the referral. 44The handwritten document that he claimed was the relevant treatment plan was a quotation dated 17 June 2009 relating to treatment possibilities, drawn up for Patient A nearly 2 years before his general practitioner referred him to Dr Son for dental services under the MCDDS. We did not accept that it could be described as a treatment plan for the purposes of the MCDDS. It had been drawn up as a quotation and for different treatment from that provided to Patient A under the MCDDS. While the treatment given was referred to in the 2009 quotation, it was crossed out in that document. We consider that it would be stretching the meaning of the words to call it a treatment plan. In any event it was not drawn up with a referral from Patient A's general practitioner to Dr Son in mind. Consequently, we found the subject-matter of particular 4(b) proved. This finding included that part of the particular admitted to and that part of it denied. 45We consider that the conduct alleged in particular 4(b) and found proven by us showed that at least the judgment exercised by Dr Son in relation to this matter was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of Dr Son and so unsatisfactory professional conduct. 46Dr Son denied the subject-matter of particular 4(a). It was his position that the only treatment that he provided to Patient A under the MCDDS were procedures set out in his reply to the HCCC's Complaint and paid for by Medicare. This treatment did not include the prescribing of Tramal. His position was that he did not charge Patient A for prescribing Tramal, he did not bulk bill Medicare under the MCDDS for prescribing Tramal, nor were MCDDS benefits paid to him for prescribing Tramal to Patient A. He noted that the prescribing of Tramal was not provided for under MCDDS. 47While the HCCC, through Mr Griffin, was able to direct us to Dr Carter's comments in relation to the MCDDS, it was not able to provide us with the evidential basis for its allegation that Dr Son prescribed Tramal for Patient A under the MDCCS. In these circumstances we were not satisfied that the subject-matter of particular 4(a) was proved. 48In complaint two, the HCCC alleged that Dr Son was guilty of professional misconduct under section 139E of the National Law in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or in that he had engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Consequently, the question for us was, were some or all of the instances unsatisfactory professional conduct admitted and/or proved against Dr Son either standing alone or when considered together sufficiently serious to meet the test for professional misconduct? 49Not all of the 4 particulars to both complaints were either admitted or proved. Particular 1(a) was both admitted and proved while particular 1(b) was neither admitted nor proved. Particular 2 was admitted to only to the number of instances in which Dr Son prescribed Tramal between 1 July 2011 and 30 June 2012 and not to the conduct alleged namely that the prescribing of Tramal during that period was otherwise than for dental treatment. Particular 2 was not proved. However, particular 3 was both admitted and proved. Particular 4(a) was neither admitted nor proved. Particular 4(b) was admitted in part only, but all elements of it were proved. 50Dr Son's admissions were to the effect that the conduct he admitted to was no more than unsatisfactory professional conduct. Mr Griffin submitted that, considering the particulars in aggregate, we would find Dr Son guilty of professional misconduct. However, as Dr Son's conduct was not "widespread", protection of the public did not require suspension or cancellation of Dr Son's registration. Mr Griffin submitted that Dr Son's treatment of Patient A involved the improper use of Tramal. He also submitted that he had not maintained proper boundaries in relation to Patient A and had allowed Patient A to control the dentist-patient relationship and that these matters made Dr Son's conduct more serious particularly since he was an experienced dentist. 51Mr Gregg seized on Mr Griffin's submission that neither suspension nor cancellation of Dr Son's registration was required in the circumstances of this case to submit that this demonstrated that the conduct alleged (and proved) was not serious enough to warrant any finding or findings of professional misconduct. Such a submission shows a misunderstanding of the definition of professional misconduct in the National Law and the fact that while we must give paramount consideration to the protection of the health and safety of the public when exercising our functions under s 3a of the National Law, we may be able to discharge those functions after a finding of professional misconduct or some other complaint that would normally lead to suspension or cancellation of the health practitioner's registration by making protective orders that have less impact on the practitioner's professional career. In any event the discretion of NCAT to impose conditions on a practitioner's registration after a finding of professional misconduct is well established. 52In this case however, the issue of exercising the discretion did not arise. It is our view that conduct of most concern in this case, namely Dr Son's failure to appreciate that the duration of time in which Patient A continued to be prescribed Tramal for his presenting condition was inappropriate and Dr Son's failure to consider or recommend other treatment options including referral to a specialist, while serious, were not serious enough either separately or together to constitute professional misconduct in the circumstances of this case. While we did not get the opportunity to obtain evidence from Patient A, there was no evidence before us indicating that he was harmed in any significant way by Dr Son's unsatisfactory handling of his dental condition, assuming that his presentation to Dr Son was honest. If his presentation was for other purposes, Dr Son may have caused some harm by prescribing Tramal, but there is no evidence of that. Nor was there any evidence of anyone else being harmed or put at risk as a result of Dr Son's unsatisfactory pursuit of his profession in regard to Patient A. In these circumstances, we found Dr Son's professional conduct that was significantly below the standard to be expected of a dentist of an equivalent level of training or experience as him to be unsatisfactory professional conduct. 53We found his conduct to be unsatisfactory professional conduct for a number of reasons, including the reasons set out in the particulars that were proved. The extra reasons included the fact that he allowed Patient A to take control of at least part of his treatment by accepting Patient A's advice that Panadol was ineffective for his pain and that his general practitioner prescribed Tramal that relieved his right-sided facial pain. Also, it was clear from his evidence that, although he had not prescribed Tramal before, he did not put much effort into researching this drug of addiction before prescribing it for Patient A. 54As a consequence, our formal findings were, in relation to complaint one, that sufficient of the subject-matter of the particulars were proved for us to be satisfied that that complaint was proved and Dr Son found guilty of unsatisfactory professional conduct. In relation to complaint two, we were not satisfied that the unsatisfactory professional conduct we found proved against Dr Son was either separately or in aggregate of a sufficiently serious nature to amount to professional misconduct. Consequently we dismissed that complaint. Protective orders 55As to protective orders, Mr Griffin submitted that we should first reprimand Dr Son and then impose conditions on his registration replacing those imposed by the Council as a result of its s 150 proceedings in relation to him. In support of administering a reprimand, Mr Griffin submitted that a reprimand was a measure of the degree of concern that the tribunal had for what Dr Son had done, that it would be relevant if there were future proceedings in relation to Dr Son and that it would send a message to the profession and the public about the level of seriousness of the conduct proved. 56As noted by the then Medical Tribunal in Health Care Complaints Commission v King [2012] NSWMT 9 at [27]: The jurisdiction of [now NCAT] is protective rather than punitive. The protection of the public is associated with the protection of the profession. The protection of the health and safety of the public encompasses a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require [NCAT] to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public. 57These considerations can be given effect to in terms of the protective orders, including imposing conditions on a practitioner's registration, that are directed to overcoming the defects in a practitioner's conduct, competence, impairment or even suitability to hold registration. But in this case, we saw some utility in issuing a reprimand to Dr Son. However, the main way to help overcome the defects in Dr Son's conduct in the way he practised dentistry demonstrated by the evidence in this inquiry, we considered, was to replace the conditions currently on his registration with the conditions set out below. We note Mr Gregg's submission that Dr Son consents to the imposition of these conditions on his registration as a dentist because he wants to be a better dentist. 58Nevertheless, because of Dr Son's significant breaches of professional standards we accept Mr Griffin's submission that Dr Son should be publicly reprimanded in these reasons for decision. 59Dr Son's practice was reviewed under the Practitioner Review Program in relation to the year 1 July 2011 to 30 June 2012. This review was completed before 26 March 2013. It showed that for the review period at least, the majority of Dr Son's patients were referred under the MCDDS and that his practice concentrated on crown and bridge work and in dental implants. The evidence before us was that up until very recently, Dr Son practised as a sole practitioner in a very busy practice. His appointment book indicated that he saw a large number of patients and must have worked very long hours despite the contrary impression he tried to give us during his evidence. During the period under review, his total rendered benefits ranked him higher than at least 99% of dentists providing services under the MDCCS. 60In this context, it is understandable that he had no regular contact with colleagues and that he did not discuss with colleagues why Patient A was regularly consulting him and wanting scripts for Tramal. It is only since very recent times that he works with a colleague, who is a very recent graduate, who was once his dental technician and who remains his employee. Nevertheless, Dr Son believes he is challenged to think about his practise of dentistry by his colleague who is much more up to date than he, Dr Son, in relation to recent developments in dental practice. 61Dr Son's evidence was that he did not learn much about addictive drugs when he was at university and did not give evidence of any attempts to improve his knowledge prior to his intensive attendance at continuing professional development courses in 2014. We note however that he did attend a 6 session "Comprehensive Implant Course" between February and July 2012. But, as already noted, his practice concentrated on crown and bridge work and dental implants. His evidence, supported by material in the Practitioner Review Program report, left us with the impression that he practised dentistry with very little input from anyone outside his practice prior to the time his practice was reviewed under that program. 62It was also clear from the evidence that Dr Son did not always keep notes of attendances in which he issued scripts contrary to the established practice of noting all prescriptions issued and the reasons for issuing them. 63His evidence before us showed that he lacked the ability to deal with a patient like Patient A who he let take control of the dentist-patient relationship and who, because family based connections with his family, he was embarrassed in dealing with and was unable to approach the matter in a manner required of an experienced dental practitioner. 64Having considered these matters and all the evidence, we are of the opinion that for the protection of the health and safety of the public, and particularly those who are or who become Dr Son's patients, he needs to develop his knowledge and understanding of the attributes of drugs of addiction and other restricted substances that are appropriate to use in the practice of dentistry before he is authorised to have or prescribe these drugs again (with the exception of the restricted substances that he is allowed to have and prescribe under the conditions currently on his registration). He also needs to develop his knowledge of the skills and expertise of other members of his profession who have specialised knowledge or practise as specialists in areas of dentistry or related health professions so that he can make appropriate referrals rather than continue to manage in an unsatisfactory situation himself as his evidence to us showed. He also needs to develop his ability to seek advice from colleague practitioners outside his own practice. 65We consider that the conditions set out below are appropriate to deal with the problems in Dr Son's practice as a dentist related to our findings concerning Patient A and that they should replace the conditions currently on Dr Son's registration as a dentist. Consequently, we revoked those current conditions and imposed the following new conditions on his registration: (1)The practitioner may not possess, use, supply or prescribe any poison or therapeutic substance listed in Schedule 8 of the Poisons and Therapeutic Goods Act 1966 (NSW). (2)The practitioner may not possess, use, supply or prescribe any poison or therapeutic listed in Schedule 4 of the Poisons and Therapeutic Goods Act 1966 (NSW) with the exception of: (i)Articaine (ii)Bupivacaine (iii)Lignocaine (iv)Mepivacaine (v)Prilocaine (vi)Antibiotics appropriate for dental treatment. (3)The practitioner consents to an exchange of information between the Council and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions. (4)To nominate a supervisor within the next 21 days of the decision to be approved by the Dental Council of NSW, to monitor and review his clinical practice and compliance with conditions. The supervision must occur for a minimum of 12 months from the date of the first meeting with the supervisor or for such longer period determined by the Council to be necessary. The supervisor must not practice at the same location as the practitioner and is to be provided with a copy the decision outlining why this condition has been imposed and any other reports the Dental Council deems appropriate. The practitioner is to ensure that: (a)He and the supervisor meet on a monthly basis or otherwise at a frequency to be approved by the Dental Council. The first meeting to occur within one month of being advised by the Dental Council that his nominated supervisor has been approved. (b)His supervisor is provided with a copy of the Tribunal's judgment. (c)The supervisor must forward to the Dental Council, initially on a monthly basis, a supervision report in a format prescribed or approved by the Dental Council. (d)The supervisor is authorised to inform the Dental Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. (e)In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval to the Dental Council within 21 days of the cessation of the original supervisory relationship. (5)The practitioner is to complete within 12 months of the Tribunal's decision the 'Issues in general practice prescribing' course organised by Monash University, or an equivalent course approved by the Dental Council of NSW, and: (a)Within 2 months of the Tribunal's decision, he must provide evidence to the Dental Council of NSW of his enrolment in the abovementioned course. (b)Within 2 months of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c)The practitioner is to bear responsibility for any costs incurred in meeting this condition. (6)The Dental Council of NSW is the appropriate review body for these conditions. 66Our orders in this matter also include that Dr Son is reprimanded. Costs 67In this matter, we found complaint one proved but not complaint two. 68In relation to complaint one only, and as already noted, we found particular 1(a) proved, but not particular 1(b). However we do not consider the failure to prove particular 1(b) relevant to the issue of costs. While particulars 3 and 4(b) were proved, particulars 2 and 4(a) were neither admitted nor proved. We considered that sufficient of the subject-matter of complaint one was proved to be satisfied that the complaint itself was proved. We accepted that protective orders were required in this case. Consequently, we reprimanded Dr Son and, after revoking the current conditions on his registration, imposed the new conditions on his registration that are set out above. 69Even though there were admissions in this case, as noted during the course of the hearing, we still had to be satisfied as to particulars that were admitted and this required that the evidence in relation to all the particulars had to be canvassed before us before we could make findings in relation to them. 70As only some of the findings and orders we have made could have readily been anticipated at the time submissions about costs were made at the hearing, we consider that procedural fairness requires that the parties be given an opportunity to make further submissions as to costs if they wish to do so. A directions hearing may need to be arranged to deal with this matter. 71While we do not wish to cause the parties more expenditure in this matter than is necessary, in order to achieve procedural fairness in relation to determining the appropriate costs order in this matter, we raise the following options for consideration. The order in which they are set out does not represent any order of preference on our part nor do the necessarily represent a completed list. They are: (1)Noting that the parties have reached an agreement in this matter, the tribunal makes no order as to costs. (2)We order each party bears their own costs. (3)Bearing in mind the HCCC's obligations under s 150D(4) of the National Law once the Council had imposed conditions on the registration of a practitioner under s 150 on the National Law and the fact that, in the circumstances of this case, the Complaint had to be brought to NCAT and one or more complaints proved before continuing protective orders could be made, orders in favour of the HCCC. (4)Given that Dr Son had to challenge at an inquiry hearing before NCAT the allegations made against him that he did not admit to, and succeeded in relation to most of those he did not agree to, orders in his favour. 72As a consequence of these considerations we order that, unless one or both parties request, within 21 days of the publication of these reasons for decision, a directions hearing to set up arrangements for further submissions in relation to costs, there will be no order for costs in this matter. As a result the parties will bear their own costs. Non-publication order 73At the commencement of the inquiry in this matter, we ordered that the name of Patient A set out in the Schedule to the Complaint and any reference to any member of Patient A's family shall not be published to any person except the parties to these proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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 Amendments 23 December 2014 - Typographical error Amended paragraphs: 65 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: 23 December 2014