Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Eftimoski [2015] NSWCATOD 51 Hearing dates: 18 and 19 May 2015 Decision date: 01 June 2015 Jurisdiction: Occupational Division Before: O Shub (Principal Member) Dr R Hochstadt (Professional Member) Dr F Wright (Professional Member) C Berglund (Lay Member) Decision: The outcomes of this decision are listed under Orders, paragraphs 86 and 87. Catchwords: Dentist, Sexual Relationship, Code of Conduct, Boundaries Policy Statement, Code of Ethics for Dentists National Law, Section 139B and E Legislation Cited: Health Practitioner Regulation National Law Civil and Administrative Tribunal NSW (the National Law) Act 2013 Cases Cited: HCCC v Dr Bartaloza [2013] NSWDT 4 (9 August 2013) at [62] NSW Bar Association v Cummins [2001] NSWCA 284 Jacobson v Nurses Tribunal and Anor BC9705032 Supreme Court of NSW Administrative Law Division, 3 October 1997 Kalil v Bray [1977] 1 NSWLR 256 [261 – 262] Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 Health Care Complaints Commission v Gordon Howe [2010] Medical Tribunal of NSW at [54]-[56] HCCC v Litchfield (1997) 41 NSWLR 630 at 637 Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 at 336 at 362-3 Gianoutsos v Glykis (2006) NSWLR 539 at 547-9 In re Dr Suman Sood [2006] NSW MT 1 at 10 Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31] Sabag v HCCC [2001] NSWCA 411 at [82] Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202 Gayed v Walton [1997] NSWSC 279 at p6 Prakash v HCCC [2006] NSWCA 153 at [91] HCCC v Howe [2010] NSWMT 12 at [113] HCCC v Abraham [2013] NSWDT 2 Skinner v Beaumont (1974) 2 NSWLR 106 at 109 Re Dr Parajuli [2010] NSWMT 3 at [32] HCCC v Roopra (No 1) [2012] NSWDT 5 HCCC v Dr Cheng NSWMT [2005] 25 McKeehan [2013] NSWPST 2 (23 August 2013) HCCC v Mead [2007] NSWPST 3 (23 May 2007) HCCC v Karja [2012] NSWMNMT 11 (25 September 2012) HCCC v Sunjic [2008] NSWNMT 12 (26 June 2008) New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B Saville v HCCC [2006] NSWCA 298 at [45] Lee v HCCC [2012] NSWCA 80 at [20]-[21] HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175] HCCC v King [2013] NSWMT 9 at [27] Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 at [83] HCCC v Platt [2013] NSWMT 14 at [55] and [71] Sudath v HCCC [2012] NSWCA 171 at [75] Lindsay v HCCC [2010] NSWCA at [34]-[35] Bannister v Walton (1993) 30 NSWLR 699 at 711-712 Gianoutsos v Glykis (2006) 65 NSWLR 539 at 548-9 Dr Suman Sood [2006] NSWMT 1 at [10] Sophie [2008] NSWCA 250 at [68] Health Care Complaints Commission v McKenzie [2011] NSWMT 6 at [26] R. v Byrne (1995) 193 CLR 501 at 514-515 HCCC v Phung (No. 1) [2012] 1 NSWDT at [68] Slezak, Dr Peter [2011] NSWMPSC 10 at [80] Pillai v Messiter [No 2] (1989) 16 NSWLR 197 HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50] HCCC v Mehta (Medical Tribunal of New South Wales, 29 November 2002, unreported) HCCC v Waddell No. 1 [2012] NSWNMT 17 at [235] HCCC v Scully [2001] NSWNMT 28 at [91] HCCC v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Holmes [2010] NSWMT 19 Health Care Complaints Commission v Dr Anne Amigo [2012] NSW MT 13 Health Care Complaints Commission v Dr Small [2012] NSWMT 18 HCCC v Twomey [2013] NSWNMT 6 HCCC v Karjs [2012] NSWNMT 11 HCCC v Ford [2012] NSWOPT 1 HCCC v Schubert [2009] NSWPST 6 HCCC v Kreft (No.2) [2012] NSWPST 1 A Solicitor v Council of the NSW Law Society [2004] HCA 1 at [21] Health Care Complaints Commission v Gordondy-Novak [2011] NSWMT 3 HCCC v Jamieson [2014] NSWCATOD 56 at [101]-[102] HCCC v Della-Bruna [2014] NSWCATOD 31 at [90]-[91] HCCC v Dinakar [2009] NSWMT HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67] Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10] NSW v Stanley [2007] NSWCA 330 at [24] Arian v Nguyen [2001] NSWCA 5 at [36] HCCC v Philipiah [2013] NSWCA 342 at [42]-[46] Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Z Eftimoski (Respondent) Representation: Counsel: S Beckett (Applicant) A Britt (Respondent) Solicitors: B Butt, Health Care Complaints Commission (Applicant) D Stanefska & Associates (Respondent) File Number(s): 1420357 Publication restriction: Non-publication order pursuant to Schedule 5D Clause 7(1)(a) of the National Law: to apply to the names of patient A and patient A's husband. reasons for decision Background 1. The hearing arises from a complaint lodged by the Health Care Complaints Commission ("the Complainant") against Doctor Zlatko Eftimoski ("the Respondent"). 2. Complaint 1 is that the Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law, in that the practitioner has; 1. engaged in conduct that demonstrates the knowledge or judgment possessed or care exercised by the practitioner in the practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. 1. The circumstances of Complaint 1 are that the Respondent knew Patient A as a family friend, having first met her husband approximately twelve years earlier. Patient A and her family used the Respondent as their regular dentist. 2. On 18 November 2011 at 7.30pm the Respondent treated Patient A for toothache at his dental surgery in Hurstville. The consultation had been arranged the day before and Patient A chose the evening appointment as she stated that she was not able to make it at any earlier time offered to her. The particulars of complaint 1 are that the Respondent failed to maintain proper professional boundaries in that; 1. After the professional consultation the Respondent accompanied Patient A to a bar across the road from the surgery where they shared a bottle of wine; 2. After leaving the hotel the Respondent drove himself and Patient A to an unnamed carpark at Allawah in his car and whilst in his car in the carpark at Allawah the Respondent engaged in improper physical and sexual contact with Patient A in that; 1. The Respondent touched and kissed Patient A; 2. The Respondent received oral sex from Patient A; 3. The Respondent had sexual intercourse with Patient A. 1. Complaint 2 is that the Respondent is guilty of professional misconduct under section 139E of the National Law in that the Respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. 2. The particulars of complaint 2 are repeated as they were in complaint 1. 3. On the 26th of April 2013 conditions were imposed on the Respondent as follows; 1. The Dentist is not to practise dentistry on female patients unless there is present at all times a female adult member of the practice staff. That member (or members) of staff must be approved by the Dental Council as satisfactory "chaperones". To satisfy that requirement; 2. The dentist to undertake a health assessment (at the dentist's expense) by a medical practitioner appointed by the Dental Council within 60 days. 1. That staff member will be required to complete a statutory declaration that she is fully aware of the complaint against the dentist and the conditions placed upon his practice, and that she has not been the subject of any prior criminal charges; and 2. The staff member will be required to log all appointments of female patients in a log form approved by the Dental Council. 1. Available to the Tribunal were various statements and transcripts of evidence relating to the incident and the circumstances of the complaint. In the statement of Patient A, Patient A confirmed the circumstances of the sexual activity and stated that she had not consented to any such activity and that she alleged that she was raped by the Respondent. 2. Some days after the incident Patient A attended a medical practitioner and then reported the matter to the police. The plaintiff was examined and a statement taken by the police. Following the report to the police and the investigation by the police, a charge was brought against the Respondent and the Respondent faced a criminal trial in which the State alleged that the Respondent had forced himself upon Patient A and committed a forced sexual act upon her. An initial trial was held in February of 2013 at the end of which the jury was discharged due to a lack of unanimity being reached by the jury. A further trial was held in August of 2013 at which the Respondent was found not guilty and discharged. In evidence the Respondent confirmed that he had had sexual intercourse with Patient A but that the intercourse was by consent. 3. Following the conditions imposed on the Respondent, the Dental Council of NSW instructed an independent expert to provide a Psychiatric Health Assessment report which the expert did provide. 4. At a Case Conference held prior to the hearing, the Respondent conceded that he is guilty of unsatisfactory professional conduct but denied that he is guilty of professional misconduct. Opening Submissions Complainant 1. The Complainant made very limited opening submissions. The Complainant tendered into evidence as Exhibit 1 the bundle of documents with tabs 1-42, subject to various objections by the Respondent to parts of the bundle. 2. The objections which were agreed upon were as follows; 1. Tab 3 from paragraph 18 to the end – deleted; 2. Tab 4 from paragraph 18 to the end – deleted; 3. Tab 5, paragraphs 14 to 28 – deleted, in paragraph 29, the words in the first line from the word "Once" to the top of page 9 to the words "Botany Police station" are deleted, paragraphs 30, 31 and 32 are deleted; 4. In respect of tabs 6, 7, 8 and 9 there were submissions made by the Respondent and ultimately it was agreed that tab 6 would remain, tabs 7, 8 and 9 are deleted on the basis that tab 16, paragraph 5 on page 2 is accepted by the Respondent as a statement of fact and true and that Patient A alleges that the sexual conduct on 18 November 2011 by the Respondent was not consensual. 1. The Complainant further tendered an exchange of emails between the Complainant and the expert witness to be called by the Complainant, which constituted an amendment to the plaintiff's expert evidence. 2. It was agreed that this would form part of Exhibit 1, and be placed at tab 17. Complainant's Evidence 1. The Complainant called the Expert Witness. 2. In dealing with the evidence of the expert, the expert qualified himself as an expert and was accepted by the Tribunal as such. 3. The Complainant sought confirmation from the expert as to the documents on which he had relied in forming his opinion and he confirmed that he relied on the code of conduct (Dental Board of Australia), the code of ethics for dentists (Australian Dental Association Inc) and the professional boundaries policy statement contained at tabs 40, 41 and 42 of Exhibit 1. The witness also confirmed that he referred to those in forming his original views and referred again to the same documents in providing his later change of view. 4. The witness was asked to deal with the views he had adopted in respect of the complaint and what information he had relied on in coming to the original views and the views in respect of which he changed his opinion. 5. In summary, the witness indicated that he came to his amended conclusions based on the fact that a dentist has a special position in relation to a patient and that he/she needs to keep the respect of the patient, keep their distance and not behave in a manner which would be a danger to the public or threaten the good name of the dental profession. He took into account the fact that a complaint of this nature had been made and considered whether that behaviour crossed acceptable boundaries in terms of the code of conduct, code of ethics and boundaries documents. He indicated that he did not take account of the age difference between the parties as, in his view that was not relevant. While the code of conduct does not make it mandatory for a dentist to have with him a member of staff whenever treating a patient, the witness indicated that he regarded that as good practice. He advised the Tribunal that in some instances it can be mandatory. 6. The witness was asked why he had changed his mind, reducing his view of the behaviour of the Respondent from significantly below the standard expected of a practitioner of an equivalent level of training or experience inviting his strong criticism. He indicated in amending his view, he came to the conclusion that it could not be argued that the Respondent used his position as a professional to influence the patient, and he doubted that the behaviour would affect his ability as a dentist. The witness was asked whether his criticism would change if the incident was an isolated incident or if there was forewarning of the incident to which the witness replied that his view would be different if there was forewarning rather than if it was simply an error of judgment. The witness was asked to assume as a fact that there was forewarning in which event the witness indicated that he would have to be severely critical. The witness was also questioned on what view he would adopt in relation to post-event contact, to which the witness replied that he thought that that would be part of the on-going relationship and would not affect his view. However, in respect of whether his view would be critical if the Respondent sought to continue a sexual relationship with Patient A while still treating Patient A, he indicated that one or other would have to go. Either the dentist would be entitled to continue the dental relationship or would have to terminate the dental relationship in order to continue with a sexual relationship. 7. On cross-examination the witness confirmed that he had been asked to assume certain facts in arriving at his original conclusion and that in amending his original views, he still had criticism but he withdrew the strong criticism. 8. The witness confirmed on cross-examination that: * there was nothing in the code of conduct preventing a sexual relationship with a client; * there was nothing in the code of conduct at paragraph 3.14 that prevents a practitioner having a relationship with a client; * in order to be a breach of professional boundaries the use of a professional position is integral to a breach of the code; * he would doubt that there was a power imbalance necessary to trigger paragraph 3.2g in circumstances where there was a strong outside relationship; * paragraph 2.6 of the boundaries document contained at tab 40 doesn't prevent a sexual relationship between a patient and a practitioner unless it arises out of the use of the professional relationship; and * the issue contemplated in paragraph 1.8 envisages a situation where the therapeutic relationship moves to a personal relationship but not the other way around. 1. The witness was questioned by the Tribunal as to whether he had been used in previous hearings to interpret the code of conduct to which he replied that he had only done so in a clinical situation. 2. On re-examination the witness confirmed that he is critical of the fact that the Respondent continued to have or sought to have an ongoing relationship with the patient after the event. To a question as to whether he would be less critical of a situation where a practitioner met a patient away from the surgery and in a random environment and a sexual incident occurred, he responded that he would have been less critical and if the activity took place in the surgery he would be more critical. He confirmed that the proximity of time and context to the surgery could affect his view of the level of criticism. The evidence of the witness was concluded and the witness was excused. 3. Before closing the Complainant's case the Complainant tendered a copy of the confirmation of registration status of the Respondent which it was agreed would form part of tab 1 of Exhibit 1. 4. The Complainant closed the case for the Complainant. Respondent's evidence 1. The Respondent opened its defence and in light of the fact that minimal opening submissions had been made by the Complainant the Respondent indicated that formal opening submissions would not be made by the Respondent. 2. The Respondent formally tendered two documents, a statement by the Respondent which was accepted and marked Exhibit 2 and a report of Dr Levine, a consulting psychiatrist which was accepted and marked Exhibit 3. 3. In evidence in chief the Respondent was asked to confirm his personal details and to confirm the truth of the statement, Exhibit 2 in the proceedings. It was agreed that the matter would be adjourned to the 19th of May 2015 for cross-examination. 4. The Respondent had been requested to provide copies of his Mastercard account to prove payment of a Monash University course in which the Respondent had indicated that he had enrolled and confirmation regarding the course content. The Respondent tendered as Exhibit 4 a copy of the Respondent's Mastercard account and as Exhibit 5 a copy of the course outline for the enrolment in a course with Monash University titled "Online Ethics Training Course 2.0". These exhibits were accepted into evidence, having been agreed by the Complainant. 5. The Complainant commenced its cross-examination of the Respondent and dealt initially with the course which he stated he would be commencing during the following week. It is an online course but involves more than just listening. On questioning he indicated that he did not know whether the course includes professional boundaries. The Respondent was asked what enquiries he had made regarding other courses, to which the Respondent replied that he had made enquiries about other courses and did do another course about 2 years ago, which had some ethics in it. That was a course done in the Hunter Valley relating to aged care. It was a one day course. The Respondent was asked whether he had done any courses dealing with ethical boundaries, to which he advised that he had not. In response to a question as to why he had not done a course dealing with ethical boundaries, he indicated that he had read literature on this and had been following procedures to prevent any future breaches of his ethical standards. He did however confirm that he understands that the complaint against him is about a lack of professional boundaries. He was asked whether as stated in paragraph 29 of his statement, Exhibit 2, as at the 18th of November he was aware that it was inappropriate to have a sexual relationship with a person who was only a patient, to which he replied that he had thought so. He knew that it was wrong to have a sexual relationship with a person who was "only a patient" but he has since come to know that it was wrong for him to have had a relationship with any patient and indicated that he accepted that it was not okay to have had the relationship with Patient A who was both a patient and a family friend for himself, for his family or for his profession. 6. The Respondent was cross-examined on a letter written by his solicitors to the council, tab 22 of Exhibit 1 and was asked whether the contents of the letter reflected his instructions to his solicitors. After reading the letter carefully, the Respondent indicated that the letter does reflect his instructions to his solicitors. The Respondent was specifically taken to three parts of the letter, namely, and we quote: "It is submitted that the acts constituting the basis of the complaint are in no way associated with or connected to Dr Eftimofski's practice as a dentist. The events did not take place in the rooms from which he practised. There is a significant time difference between the dental work he performed and the acts complained of." 1. The Complainant referred in addition to the following words: "It is submitted the nexus between dentist/patient cannot be established in this case. Surely going to a social meeting breaks the professional relationship." 1. Finally the Complainant referred to the words: "As already submitted, the patient/dentist relationship had well and truly ended by the time of the consensual sexual acts." 1. In respect of those comments in a letter sent on his instructions, the Respondent was asked whether he now says that the nexus had been broken by the fact that he had gone to have a drink before a consensual act to which the Respondent replied that it was still his view that the connection was broken. The Respondent was asked, in light of that view, to explain the basis upon which he admitted complaint 1. The Respondent stated that he accepts that it was wrong because the rules of his profession were broken and that the contact did damage to him, his family and to the profession. The damage to his profession arises because the rules of ethics were broken, but because of the long-standing relationship with Patient A, he made a mistake. The Respondent was asked why, when he first spoke to the police, he did not say that he had had sex with Patient A and that it was okay, he indicated that he failed to do so because he was shocked that she would actually allege against him what she alleged. 2. The cross-examination turned to the personal relationship existing between the Respondent and Patient A's husband which, on the evidence provided, went back about 12 years. The Respondent confirmed that he met Patient A and their children and that he treated them. He also conceded that at the time of the incident he was treating Patient A for root canal treatment which had already taken place once or twice, but it was normal to have further treatments. 3. The Respondent was asked why, in the knowledge that Patient A wanted to have a personal relationship with him, he then proceeded to make a late appointment to see her when there was nobody in the rooms with him. The Respondent advised that he offered to see her on the same day as her call or the next day and proffered several times during the next day but Patient A insisted on seeing him at the last appointment on the next day. In response to a question as to why, knowing her interest in him, he did that, he indicated that he had not thought about it at the relevant time. The Respondent was asked whether looking with the benefit of hindsight, did he think that it was a good idea to see her on her own. The Respondent said that he wanted to help and that when she arrived and suggested going for a drink he did not see that as unusual because they had been on numerous occasions for a drink. In dealing with the fact that she was however, on this occasion, on her own, he stated that they were very close friends. After the therapy was completed, she suggested that they could go for coffee or a drink, and they then went to the bar across the road where he asked her what she wanted to drink. He did concede that the CCTV footage shows that she stood behind him while he was at the bar ordering wine and stroked his back. He was asked whether he should not have warned Patient A of the boundaries of the professional relationship, but he didn't think about that at the time. 4. The Respondent was asked questions about the discussions on their return to the carpark after the sexual encounter and discussions relating to ongoing treatment and ongoing meetings between the parties. He was asked questions about continuing a sexual relationship in those discussions and indicated that discussion did take place but that happened on the night and he does not know whether he would in fact have gone to meet her. In regard to the follow up messages which were the subject of cross-examination, he indicated that those were calls made out of interest for a close friend and not to further the sexual relationship which had commenced. The Respondent was challenged on that evidence and when denying that it was for purposes of continuing a sexual relationship, he was asked whether he was phoning to tell her that the sexual relationship would not continue. He stated that he was phoning purely as a friend and that he had not thought to raise a question of terminating the relationship in those conversations, although he did indicate that he intended at some stage to terminate the relationship. 5. The Respondent was then asked questions about his wife and daughter, both of whom work in his surgery. His wife works full-time and his daughter part-time. 6. The Respondent was asked questions regarding course attendance for purposes of maintaining his registration as a dentist, to which he replied that he had been attending whatever courses were necessary, and that he had always had sufficient points to retain his registration. He stated that the only ethics course he had attended was the one referred to earlier, and the course he would be attending commenced the following week. He was asked questions about friends and colleagues with whom he might be able to discuss issues and in respect of those relationships he indicated that there were orthodontists and other dental specialists to whom he could speak, but he would generally only speak to them in respect of technical matters. 7. The Respondent's evidence was concluded and the Respondent was excused. Complainant's submissions 1. The Complainant handed up written submissions and spoke orally to those submissions. The Complainant's counsel, in her submissions pointed out the position of the Respondent in regard to complaint 2 and the position in regard to the particulars to complaint 1 in respect of paragraphs 1a and b. The Complainant proceeded to refer the Tribunal to relevant sections of the written submissions and drew the attention of the Tribunal to pages 3, 4 and 5 at paragraph 9, sub-paragraphs a to w, which set out the circumstances of the matter. For ease of reference these are included below: "… a. The respondent, as at 2011 had been a dentist since around 1993. From 1994 he and his wife, also a dentist, commenced a dental practice together in Hurstville. b. The respondent knew Patient A from a long standing friendship with Patient A's ex-husband (estimated to be 10-12 years prior to the incident the subject of the complaint). c. The respondent enjoyed a prominent position within the Macedonian community, sponsoring charities as well as cultural and arts events, and was involved in sporting events and recreational groups and attended community functions. d. A large proportion of the respondent's client base was from the Macedonian community and people with whom the respondent socialised e. The respondent had assisted Patient A's ex-husband in respect of his work as a XXXX [De-identified to protect suppression order]. f.The respondent treated Patient A, and her ex-husband, and her two children for a period of about 6 years prior to the incident the subject of the complaint. g. The respondent was about 20 years older than Patient A. h. As at November 2011, the respondent "suspected" Patient A had a sexual and/or romantic interest in him by virtue of Patient A's communications with him by text, and other means, inviting him to dinner, to discos, to go on runs and to go on a trip with him to Bali. Some of these texts had been sent to him late at night and when Patient A knew that the respondent's wife was overseas. i. In around November 2011, the respondent was treating Patient A for a series of root canal treatments. J. On 17 November 2011 Patient A rang the respondent to make an appointment to see him for root canal treatment. Patient A was offered several sessions, including a morning, afternoon or evening appointment. Patient A requested the respondent give her a later appointment, insisting that she come later and "be the last patient". K. The respondent's wife had left the surgery and Patient A arrived as the patient before her left. l. On arrival Patient A suggested to the respondent that they go for coffee but the respondent insisted they finish the dental work. m. Whilst at the dental surgery Patient A and the respondent agreed to attend the Meridian Hotel across the road from the surgery for a drink. n. The respondent purchased a bottle of wine. At the time of the respondent purchasing the wine Patient A stroked the respondent's back. o. Patient A and the Respondent consumed almost a bottle of wine together at the Hotel over about a 2 hour period. p. Patient A and the Respondent agreed that the Respondent would drive to another location for coffee as Patient A felt too intoxicated to drive. q. On the way to the location the respondent pulled into a car park and the respondent and Patient A engaged in penile/oral and penile/vaginal intercourse. r. After the sexual intercourse they returned to the car park near the dental surgery where Patient A had parked her car. s. After the intercourse the respondent was attracted to Patient A and was interested in seeing Patient A again. The respondent and Patient A discussed meeting again on the following Sunday, two days later. The respondent texted Patient A the next day (19 November 20 II) in order to enquire about her tooth. t. The respondent rang Patient A on one or two occasions on 23 November 2011, but did not speak to her. u. Patient A complained to police on 24 November 2011 that the intercourse with the Respondent was not consensual. The Respondent was charged with two counts of sexual intercourse without consent. v. The Respondent pleaded not guilty and went to trial and was acquitted of the charges against him. w. The Respondent says that he was not aware in November of 2011 that it was professionally inappropriate for him to have a sexual relationship with a female patient who was only a patient. He said that at the time he "wrongly, considered her as a friend first rather than a patient". The Respondent says that "at no stage" did he use his position "as a dentist to have sexual intercourse with Patient A. The contact arose out of friendship, social relationship and her earlier discussions about going out and overseas together"." 1. The Complainant conceded that there were certain errors and was happy to allow for amendments to be made in that respect. The amendments were in sub-paragraph "s" where it appeared to be understood from the oral submissions that the Respondent had agreed to meet with Patient A on the Sunday, but in fact while the Respondent had suggested a meeting on the Sunday after, he had rejected a suggestion by Patient A to meet on the Saturday, Patient A was not available for the Sunday. The Complainant indicated that this was important. Despite the fact that the expert witness was not critical of the social arrangement and therefore not critical of the behaviour referred to in Particulars 1a and b of complaint 1, the Complainant contended that seen in the overall context of the Respondent's knowledge of the sexual interest which Patient A had in the Respondent and the circumstances surrounding their discussions it should be seen as unsatisfactory professional conduct. The Complainant submitted that paragraphs 1a and b were therefore made out by virtue of the surrounding circumstances of knowledge of her affections et cetera. The Complainant then referred the Respondent to the relevant codes of conduct and other ethics guides which were the subject of discussion and evidence in the Tribunal, which are repeated below from the submissions: 2. The Dental Board of Australia ("DBA" Code of Conduct"). Relevantly, the DBA Code of Conduct provides as follows: * 3; Working with Patients or clients: (3.2; Partnership) A good partnership between a practitioner and the person he or she is caring for requires high standards of personal conduct. This involves.. .. (g) recognising there is a power imbalance in the practitioner-patient/client relationship and not exploiting patients or clients physically, emotionally, sexually or financially. * 3.14; Personal relationships: Good practice recognises that providing care to those in a close relationship, for example close friends, work colleagues and family members, can be inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the practitioner or patient. When a practitioner chooses to provide care to those in a close relationship, good practice requires that… adequate records are kept confidentiality is maintained adequate assessment occurs appropriate consent is obtained for the circumstances which is acknowledged by both the practitioner and patient or client at all times an option to discontinue care is maintained * 8.2; Professional boundaries: Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice includes: 1. Maintaining professional boundaries; 2. Never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care 3. … 4. … 1. Professional boundaries are not further defined in the Code but at 1.1 thereof it is noted that: This code is not an exhaustive study of professional ethics or an ethics guide. It does not address the standards of practice within individual health professions or disciplines. These standards of practice are found in documents issued by the relevant boards and/or professional bodies. 1. Professional boundaries are further defined however in the Policy Statements of the Australian Dental Association, which states, inter alia: * 1.6; Professional Boundary is implicit or explicit demarcation separating the professional relationship with a patient from other personal or business dealings; * 1.7; Boundary Crossing occurs when a dentist initiates a behaviour or allows a behaviour to persist in a relationship that compromises or sets a future course that compromises the dentist's relationship with his or her patient. * 1.8; Boundary Violation occurs when the nature of the therapeutic relationship moves from a professional relationship to a damaging personal interaction or behaviour, including sexual and non-sexual misconduct… 2.2 Boundary violations do not always occur at a single point in time. They can be the cumulative outcome of boundary crossings over a period of time… 2.5 A boundary crossing may be a subtle event in which the professional either initiates or allows conduct in which there may be a temporary excursion across appropriate professional lines… 2.8 The consent of the patient is never a defence of a violated boundary. 3.1 Dentists must be aware of their responsibilities regarding professional boundaries and ensure that those boundaries are maintained. 1. The Complainant did however concede that in dealing with these ethical obligations there was no certainty that the solicitors letter was understood by the Respondent, and that his answers in cross-examination relative to that letter were completely understood by the Respondent. 2. The Complainant referred the Tribunal to various decisions and that the conduct was of a serious nature as follows: 1. The Respondent had treated the patient for a significant period of time (6 years). 2. The Respondent by virtue of his professional position, together with his seniority in age, and prominence in the community in which both he and Patient A socialised, was in a position of power over Patient A. 3. The Respondent was on notice that Patient A had developed a sexual interest in him. 4. The Respondent allowed for them to be alone in the practice, at the end of the day. 5. Prior to the treatment the Patient suggested that they go out for a coffee together. 6. After the treatment, but before they left the surgery, they agreed that they would have a drink together. 7. At the time they had a drink the Patient touched the Respondent on the back as he ordered a bottle of wine. 8. The Respondent and Patient A consumed most of a bottle of alcohol together. 9. The Respondent engaged in intercourse with Patient A. 10. The Respondent sought to make arrangements to meet again with Patient A in a romantic sense after the events of 18 November 2011. 11. That it was Patient A, and not the Respondent, that severed both the personal and professional relationship between them. 1. The Complainant submitted that the Tribunal is in a position where a finding of professional misconduct is open to it, but they do not seek deregistration. The Complainant submitted that the Tribunal is not limited by the view of the expert evidence given by the Complainant's witness in forming its own view as to the seriousness of the conduct, and that it is entitled to draw on its own expertise in determining if the conduct comprised in particulars 1 and 2 of the complaints are significant enough to constitute unsatisfactory professional conduct under section 139B or professional misconduct under section 139E of the National Law. The Complainant cited the case of Jacobson v Nurses Tribunal & anor and Kalil v Bray as authority for that proposition. Of particular relevance is the judgment of Street CJ (Moffit P and Glass JA agreeing) in Kalil v Bray and we quote: "The purpose of setting up the Tribunal with its membership drawn from the ranks of veterinary surgeons is to enable it to do the very thing that either a bench of justices or a jury may not do, that is to say to draw up on its own expert resources to resolve such questions of expert science as might emerge from the objective or lay facts provided in evidence before it. In doing so, it will no doubt give due weight to such expert evidence if any as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers whose exercise are withheld is with the Tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science." 1. In respect of general principles, the Complainant provided a list of cases which the Complainant regarded as comparable cases including ACCC v Rupera, Re Dr Parajuli, HCCC v Abraham and HCCC v Dr Gow and various others but conceded that in respect of various of those decisions there were special circumstances of control and special circumstances relating to the victims. The Complainant conceded that these are towards the more serious end of misconduct than the events the subject of these proceedings, but that the events in these proceedings are nonetheless sufficiently serious as to constitute professional misconduct. 2. In regard to insight, the Complainant in its written submissions at paragraph 50 stated: "At the time of the incident the Respondent says that he was not aware that it was professionally inappropriate to have a sexual relationship with a person 'who was only a patient'. At this time the practitioner had been a practising dentist for about 17 years, and a member of the ADA since his registration". 1. The Complainant, however, agreed to amend that to remove the word 'not' in the first line of paragraph 50 as it was clear from the evidence that he was aware that it was professionally inappropriate to have a sexual relationship with a person "who was only a patient". 2. The Complainant then reflected on a lack of insight by the Respondent in instructing his solicitor to draft the response to the HCCC which is referred to earlier in this decision. The Complainant submitted that the evidence indicated that the Respondent was by no means clear as to what his professional obligations were in respect of the boundaries in socialising with his patient or the treatment of his friends. 3. The Complainant submitted that despite the events arising in 2011 and the referral to the HCCC in April of 2013, there was no evidence to indicate that the Respondent had done anything to improve his understanding as to professional boundaries, and that it is not at all clear that the course offered at Monash University into which the Respondent enrolled on the 20th of April will provide him with any guidance as to professional boundaries. The course description is that it focuses on human research ethics matters. 4. The Complainant submitted that protective measures were necessary and provided a list of proposed protective orders, and the Complainant finally submitted that the Dental Council of NSW is the appropriate body to conduct a review of any orders made. Respondent's Submissions 1. The Respondent's counsel then sought to deal orally with the Complainant's submissions prior to handing up written submissions. 2. In respect of the Complainant's submission at paragraph 9a, the date 1993 should be 1995 and this was accepted. In respect of paragraph 9, m, the Respondent submitted that this took place after the surgery and not during the surgery. 3. The Respondent addressed the question of the power imbalance and in particular submitted that it was not relevant because of the long-standing relationship which gives a contrary view of a power imbalance and there is no evidence that the power imbalance led to his exploiting Patient A. 4. The Respondent's counsel addressed the proposed orders and confirmed that the Respondent would consent to an order for a reprimand but not to a fine. In respect of other orders being made, the Respondent accepted that the Dental Council of NSW would be the appropriate review body. 5. The Respondent then proceeded to challenge various submissions made by the Complainant or referred to in the code of conduct. The Respondent stated that paragraph 3.14 of the code of conduct does not prevent treating of a close friend. In respect of paragraph 8.2 of the code of conduct the Respondent submitted that this has to be read in conjunction with an entitlement to treat a close friend or relative and that sub paragraph b is not a prohibition. It is only a prohibition where the practitioner uses his professional position in order to have a sexual relationship and the expert did not see an offence in relation to this in the circumstances of this matter. 6. In respect of crossing of boundaries under the professional boundaries policy statement, the Respondent submitted that: 1. there is no evidence that the Respondent's conduct meets the whole of the policy statement in paragraph 1.7; 2. in respect of paragraph 1.8 of the policy statement, the Respondent submitted that the situation in this matter is the opposite of what is provided for in the policy statement in that this was not a move from a therapeutic relationship to a social relationship but that the opposite was the case; 3. in respect of the submission by the Complainant that the particulars in paragraph 1a and b were proven the Respondent submitted that there is no evidence that paragraphs 1(a) and (b) were a factor; 4. in fact the expert in evidence and cross-examination did not see those as breaches and in respect of a suggestion that there was a power imbalance between the Respondent and Patient A, the expert gave evidence that the position did not at all constitute a power imbalance, Patient A was not a 12 year old girl. She was a mature married woman with whom he had been in a social and friendly relationship for a very long period of time. The Respondent relied on the fact that the expert did not have regard at all to the difference in age in coming to his conclusions; 5. in respect of sub paragraph c of paragraph 21 relating to the serious nature of the conduct referred to above, the Respondent submitted that the development of a sexual interest by one party in another does not mean that that person would in fact have sex with the other. The Respondent questioned what the Respondent was supposed to do when he was advised that the patient was in pain and that she required a late appointment; 6. the Respondent disagreed with the statements of the Complainant in their submissions that the Respondent sought to make arrangements to meet again with Patient A in a romantic sense after the events of 18 November 2011 and stated that there was no evidence to that effect. The Respondent submitted that Patient A suggested a meeting on the Saturday following, that the Respondent couldn't do so and suggested Sunday but that never happened; 7. in respect of sub paragraph l, the Respondent submitted that that was not entirely correct in that the Respondent tried to contact Patient A twice and then stopped and had no further contact with her. 1. The Respondent accepted the submissions made by the Complainant that the Tribunal is entitled to form its own view, but pointed out that the expert was the Complainant's witness and that the Tribunal would be persuaded to rely on the evidence of their own witness. The Respondent submitted that were the Tribunal to simply form its own view, ignoring the evidence of the Complainant's own witness, it would be a denial of natural justice if, without being advised of the Tribunal's intention to do so, the Tribunal simply relied on its own expertise. 2. The Respondent submitted that in seeking to persuade the Tribunal to find professional misconduct, the fact that the expert was soft in his criticism should be taken into account in that consideration and also that in comparing other cases, one is obliged to look at the particular body's wording and the facts in each of those cases. In particular the Respondent submitted that in the case of Parajuli, the Respondent in that case did not have a social relationship with the patient going back 10 or 12 years. 3. The Respondent handed up written submissions and supplemented those submissions with oral submissions. 4. In dealing with the first particular of complaint 1 and whether that amounts to unsatisfactory professional conduct, the Respondent submitted that the determination of whether a practitioner has been guilty of unsatisfactory professional conduct pursuant to section 139B(1)(a) of the National Law involves an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner. As such, the Respondent submitted that the expert witness's evidence in that regard is important. 5. The Respondent submitted that the payment or lack thereof was an irrelevant issue in that it did not relate only to Patient A but related to the entire family. 6. The Respondent submitted that any suggestion that the sexual incident between the Respondent and Patient A was a pre-meditated event must be discounted as there was no evidence that when he was invited for a drink, he thought it meant more than a drink. 7. Finally, the Respondent conceded that in normal circumstances, costs follow the result, and while the Respondent accepted that it should be the case in this instance, the fact that the Complainant persisted in its complaint based on particulars 1a and b and that these should not be found to have been made out, that the Respondent should have some discount in respect of any costs order. Complainant's Reply 1. The Complainant responded to the Respondent's submissions, submitting that the Respondent's approach was to compartmentalise the various code conditions but that this was not an available method of dealing with the complaint. In respect of particulars 1a and b, the Complainant submitted that it is for the Tribunal to decide whether there was a position of power and not for the Respondent to express a view in that regard. 2. The Complainant responded to the question of natural justice raised by the Respondent and provided the Tribunal with a copy of the judgment in Jacobson v Nurses Tribunal and pointed out that to say that a Tribunal cannot form its own view, particularly when in fact the expert witness was not even required by the Respondent to be present was an inappropriate submission. In addition, the case of Kalil v Bray supports the view that there was no breach of natural justice. 3. The Respondent was asked by the Tribunal to comment on the suggestion that there should be a discount and to indicate to the Tribunal the basis of such discount. The Respondent's counsel did not submit that it should be temporally based and indicated that it would have only been a minor part of the overall running of the case. The Respondent suggested that a 20% discount might be an appropriate level. Reasons for Decision 1. The Tribunal was faced with limited questions in that Complaint 1 was a complaint involving unsatisfactory professional conduct which, save for Particulars 1a and b, was admitted by the Respondent and the Tribunal therefore found Complaint 1 proven in respect of Particulars 2a, b and c. It therefore became necessary for the Tribunal to decide two issues, namely was the Respondent guilty of unsatisfactory professional conduct in respect of Particulars 1a and b or only in respect of Particulars 2a, b and c, and further whether complaint 2, namely that the Respondent was guilty of professional misconduct was proven and if so, in respect of which Particulars. 2. The Tribunal had regard to the expert evidence produced by the Complainant together with the various documents contained in the bundle of documents marked "Exhibit 1", the evidence of the Respondent given by the Respondent at the hearing together with the statement tendered by the Respondent marked "Exhibit 2" and the report of Doctor Anthony Levine marked "Exhibit 3". 3. Having regard to the evidence set out in those documents and summarised in this decision and having regard to the submissions made by the Complainant and the Respondent, the Tribunal found that there was insufficient evidence to show that the Respondent was guilty of unsatisfactory professional conduct in respect of Particulars 1a and b. 4. The Tribunal took note of the arguments put forward by the Complainant to the effect that the Respondent was fully aware of the sexual interest which Patient A had in him and that in light of that knowledge the Respondent should not have made an appointment to see Patient A as a last patient when nobody was in the rooms, should not have gone for a drink with Patient A alone and should not have driven Patient A to a park where he parked his vehicle and the incident occurred. In essence, the Complainant's argument amounts to and relies upon the Tribunal finding that the incident, even if initiated by Patient A, was premeditated and amounts to unsatisfactory professional conduct separate from the incident itself. 5. While the expert did indicate that if it was a premeditated encounter rather than an isolated lapse of judgement, his criticism would be heightened. 6. In addition, the Complainant sought to argue that after the incident the Respondent cooperated in seeking to continue the sexual relationship which also would have invited stronger criticism from the expert. 7. The Tribunal was not comfortably satisfied that either paragraph 77 or 78 had been proven. 8. In all the circumstances, it was clear that the expert was not severely critical of the Respondent, based largely on the fact that it happened in circumstances of a very longstanding relationship. 9. The Complainant sought to rely on the cases of Jacobsen v Nurses Tribunal and Kalil v Bray where it was made clear that the Tribunal is not bound to follow the evidence of expert witnesses as it is itself an expert panel and therefore sought to have the Tribunal find that Particulars 1a and b had been found. 10. In the reply submissions by the Respondent the Respondent sought to convince the Tribunal that forming its own decision and rejecting the views of the expert would constitute a failure of natural justice as the Tribunal would not have warned the Respondent that their views might differ. 11. It is not necessary for the Tribunal to make a finding on this submission, as the Tribunal does not reject the views expressed by the expert. 12. In the circumstances the Tribunal finds the Respondent guilty of unsatisfactory professional conduct based on Particulars 2 of Complaint 1 and not guilty of professional misconduct. 13. The Complainant sought to have the Complainant's costs paid by the Respondent and while the Respondent largely conceded that that would be an appropriate order, the Respondent suggested that a discount of 20% should be allowed for the fact that Particulars 1a and b were not established by the Complainant and that the Complainant should not have sought to prove those Particulars. While the Tribunal believes that the Respondents argument has some merit, the Tribunal is of the view that the additional costs incurred in respect of those Particulars were minimal and believes that a discount of 10% off the Complainants costs would be appropriate. Orders 1. Proposed protective orders were provided by the Complainant which were largely acceptable to the Respondent and largely acceptable to the Tribunal. However, the Tribunal did hold a view that the orders should be amended slightly. 2. The Tribunal made the following orders: 1. that the Respondent be reprimanded for his behaviour which was unsatisfactory professional conduct; 2. that the Respondent be required to complete a professional ethics course offered by Monash University or such other institution (where the course deals specifically with questions of professional ethics, boundaries and dentist/patient conduct), approved by the Dental Council of NSW; 3. that the Respondent enter into a mentoring program for a period of 12 months or longer if required by the Dental Council of NSW; 4. that the Council be the review body for the compliance by the Respondent with the Protective Orders; 5. The practitioner must engage in a mentoring relationship for a period of at least 12 months, or longer if required by the Dental Council of NSW ("Council"), with a registered health practitioner who does not have conditions on his/her practice. The mentor must be approved by the Council; 6. The practitioner must: 1. Provide the Council with the name, contact details and resume of the registered health practitioner who has agreed to act: As mentor; and As specified in the conditions. 1. Authorise the mentor: To notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings; and To exchange information with the Council in relation to the practitioner's compliance with the conditions. Provide to the Council a copy of the conditions signed by the practitioner and by the mentor indicating awareness of the conditions and authorisation. 1. The practitioner must submit a mentoring plan developed in consultation with the mentor within 2 weeks of the mentor being approved by the Dental Council of NSW. The plan must be approved by the Council and must detail: 1. Specific objectives/outcomes of the mentoring relationship. The objectives/outcomes must relate to, but are not limited to, the following areas: dual relationships with patients; maintaining professional boundaries; 2. Specific education, professional development and learning activities planned to achieve the specified objectives I outcomes; 3. Frequency of meetings with the mentor 1. The practitioner must arrange for reports to be submitted by the approved Mentor. The mentoring report must be provided to the Dental Council of NSW every 3 months for a period of at least 12 months or longer if required by the Council. 2. The practitioner must provide to the Dental Council of NSW a self-reflection report addressing: 1. Progress towards or achievement of specified objectives I outcomes; 2. Any challenges I issues affecting progress and a plan to deal with these; and 3. Any changes to practice resulting from mentoring I associated learning. 1. The self-reflection report must be provided to the Dental Council of NSW every 3 months for a period of at least 12 months or longer if required by the Council." 2. that the Respondent pay 90% of the costs of the Complainant. 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: 01 June 2015