Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 Hearing dates: 23 May 2016 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Occupational Division Before: J Millbank, Senior Member D Cockrell, Professional Member M Sinclair, Professional Member J Floyd, General Member Decision: (1) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as a Dentist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; (2) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 1 year from the date of this order; (3) A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the name of Patient A in the schedule to the complaint; (4) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Dentistry; sexual relationship with patient; boundary violation; inappropriate clinical notes; pressure on patient to withdraw complaint; termination of incomplete treatment without referral to another practitioner Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64; Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 139B; s 139E; s 149C(1),(7); cl 13(1) Sch 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336; HCCC v Della Bruna [2014] NSWCATOD 31; HCCC v Eftimoski [2015] NSWCATOD 51 HCCC v Fraser [2014] NSWCATOD 29 HCCC v Jamieson [2014] NSWCATOD 56 HCCC v Litchfield (1997) 41 NSWLR 630, [1997] NSWSC 297; HCCC v Lau [2011] NSWPHT 2 HCCC v Perroux [2011] NSWDC 99 In re Sood [2006] NSWMT 1; Prakash v HCCC [2006] NSWCA 153 Sabag v HCCC [2001] NSWCA 411 Texts Cited: Dental Board of Australia, Code of Conduct (undated, in force 2013); Australian Dental Association, Policy Statement 6.5.2 "Professional Boundaries" Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Reza Jangodaz (Respondent) Representation: Counsel: Ms Hartstein (Applicant) Ms Richardson (Respondent) Solicitors: Health Care Complaint Commission (Applicant in Person) Sparke Helmore Lawyers (Respondent) File Number(s): 1520247 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of Patients A in the schedule to the complaint. REASONS FOR DECISION Background 1. The practitioner is a dentist in private practice in Sydney. At the time of the matters complained of he had been practising dentistry in Australia for five years, having qualified in Iran, and practiced in Iran and Dubai for a number of years previously. 2. Patient A first consulted with the practitioner on 13 July 2013 in relation to a treatment plan under an authority voucher provided by the New South Wales Oral Health Fee for Service Scheme (OHFSS). The plan specified dental treatment including removal of teeth 16 and 17 and restoration of other specified teeth. Patient A attended five further appointments with the practitioner for dental treatment in July and early August 2013. 3. Teeth 16 and 17 were not removed and the practitioner instead commenced root canal therapy on those teeth. This course of treatment was not completed by August and there was no further treatment. The practitioner did not refer Patient A to another dentist for completion of the treatment. 4. A sexual relationship commenced between the practitioner and Patient A in late July 2013, which included her visiting him repeatedly at the practice with food, and an incident of sexual contact at the practice rooms, in addition to times that she attended the practice for treatment. A relationship continued through phone and text contact, and on one occasion in October 2013 they met at a hotel for sex. Contact ceased in January 2014. 5. In May 2014 Patient A made a complaint to the Dental Council and the HCCC. 6. The practitioner telephoned and emailed Patient A in May 2014 asking her to withdraw her complaint. Among other things, the practitioner said that it would ruin his life if she did not withdraw her complaint, that he would finish Patient A's dental work for free, that he was unable to sleep, having suicidal thoughts and suffering from a disease in his eye that may kill him or make him blind. The Complaint 1. The Tribunal has before it five complaints against the practitioner. Complaints 1-4 are of unsatisfactory professional conduct, while complaint 5 is that the matters in 1-4 both individually and cumulatively amount to professional misconduct. Complaint 1 concerns the sexual and personal relationship. Complaint 2 relates to the practitioner's attempt to influence Patient A to withdraw her complaint. Complaint 3 is that the practitioner failed to refer Patient A to another dental practitioner for the work that he had commenced but not completed. Complaint 4 relates to inappropriate and personal comments in the clinical records the practitioner made about Patient A, including a series of derogatory remarks about her being "crazy" and "mad". 2. Although he originally denied the improper relationship in correspondence with the Dental Council, by the time of the hearing the practitioner had conceded all of the complaints and every particular. The Tribunal accepted an agreed statement of facts drawn up by the practitioner's legal representatives and the HCCC. This decision is based upon those agreed facts. 3. The practitioner sought to have the matter heard only upon the papers but at directions the Senior Member determined that a Stage Two hearing was required in order to determine the appropriate protective orders. The practitioner gave evidence. No other oral evidence was called for. Relevant Law 1. The Tribunal was not required to make findings for each particular because they were conceded in writing: s 165H National Law. The disciplinary powers under the National Law were enlivened because the complaints were admitted: s 149(b). The Tribunal was independently satisfied that the complaints were made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders. 2. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 3. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. 'Professional misconduct' is defined in section 139E of the National Law as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. 2. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91], and applied by the then Pharmacy Tribunal in HCCC v Lau [2011] NSWPHT 2: The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards...of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. 1. Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 2. Demonstrated current unfitness, not a determination of probable permanent unfitness, is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31. Findings and Reasons 1. The Tribunal is independently satisfied that Complaints Two, Three and Four are established and considered alone each one reaches the standard of unprofessional conduct. We find that the sexual relationship particularised in Complaint One if taken alone is of such a serious nature that it would be sufficient to establish professional misconduct, but that in any case the complaints taken together are of such severity as to cumulatively amount to professional misconduct. 2. All of the matters complained of flowed from, or were directly related to, the improper sexual relationship. 3. Dr Jangodaz's evidence was that at the time the relationship commenced he did not appreciate that this was a breach of his professional obligations and that, by ceasing treatment, he did not view Patient A as his patient any longer during the majority of the time the personal relationship was occurring. 4. Counsel for the practitioner submitted that the therapeutic relationship was brief, most of the relationship occurred after treatment had ended, the patient was not especially vulnerable, and the practitioner did not seek to exploit her. Thus Counsel for the practitioner argued that although unprofessional conduct and misconduct were conceded, this matter should be viewed at the lower end of the scale of seriousness compared to other cases involving a sexual relationship. 5. Given that the patient in question was plainly socio-economically disadvantaged, that the practitioner's own evidence was that the patient disclosed to him in their second treatment session that she had been subject to domestic violence, and his notes reveal that he thought she was "crazy", the Tribunal rejects the submission that the patient was not especially vulnerable. 6. Counsel drew attention to the case of HCCC v Eftimoski [2015] NSWCATOD 51 where the HCCC peer expert gave the opinion that "there was nothing in the [dental] code of conduct preventing a sexual relationship with a client" (at [23]), and in which the Tribunal held that the sexual relationship between the dental practitioner and patient, in the circumstances of that case, was unprofessional conduct but not misconduct. 7. The Dental Board of Australia Code of Conduct ("DBA Code of Conduct" as it was in force in 2013) provides at 3.2 that a good partnership between a practitioner and the person he or she is caring for requires high standards of personal conduct which 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. 1. The DBA Code of Conduct further provides at 8.2 under "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 involves: (a) maintaining professional boundaries; (b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care… (c) recognising that sexual relationships with people who have previously been a practitioner's patient or client are often inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client. 1. Professional boundaries are not further defined in the Dental Code, but at 1.1 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. Policy Statement 6.5.2 of the Australian Dental Association, "Professional Boundaries" says in its "definition" section (emphasis added): 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… And further, in the "Principles" section (emphasis added): 2.1 Professional boundaries are integral to the practitioner-patient relationship. They promote quality care for patients and protect both parties. 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. And under "Policy": 3.1 Dentists must be aware of their responsibilities regarding professional boundaries and ensure that those boundaries are maintained. 1. The Tribunal rejects the view that dentists are under any lesser obligation than other health professionals concerning sexual boundary violations with patients. We reject any interpretation based upon isolated wording in the Code (such as "pursue" or "exploit") that suggests "something more" is required of unprofessional conduct through boundary violation in dentistry than the abuse of power which inheres in the professional relationship. 2. A sexual relationship between practitioner and patient that arises through the therapeutic or clinical relationship is in and of itself inappropriate and a breach of professional boundaries. This is by virtue of the power imbalance which exists between the parties, and the trust that the public must be able to have that their treating health practitioner is motivated by concern for, and attention to, their health care, rather than by another factor, such as sexual or personal gratification. 3. For the avoidance of doubt the Tribunal emphasises here that our reading of the Code, and of health practitioner standards of professionalism more broadly, is that a sexual relationship between practitioner and patient is prima facie exploitative conduct on the part of the practitioner. And indeed that was the specific finding of the HCCC peer expert in this case, whose evidence was not contradicted, and was also the view of the panel based on the specific agreed facts of this case. 4. Evidence of a patient's additional vulnerabilities is not required to establish a breach of the professional code or to transform unprofessional conduct into misconduct. Nor is the claim that a patient sought out, initiated, or consented to such an improper relationship germane to the question of whether the standard has been breached. It is the health professional's duty to ensure that such relationships do not occur. 5. The practitioner's failure to ensure the completion of Patient A's dental work, or continuity of care with another dentist following termination of the treating relationship, is a direct result of his focus upon the personal relationship rather than upon the patient's health care. The practitioner's inappropriate record keeping can also be characterised in this way. The practitioner's attempt to influence the patient to withdraw her claim also demonstrated the blurring of the personal and professional boundaries: although it was clear that Mr Jangodaz was concerned about his livelihood, he was also concerned about his family relationships and personal standing rather than considering the importance of behaving as a professional and upholding the standards required of a health professional – including for example duties of fidelity to one's professional association and candour in legal processes. 6. The practitioner's failure to take any real responsibility for his professional misconduct was a clear theme that emerged from his evidence. 7. The practitioner did not express concern about the impact of what had occurred upon Patient A. When outlining his understanding of how to address boundary issues in the future, Dr Jangodaz repeatedly focused only upon protecting his own professional position, not upon ensuring that the patient's care was prioritised. 8. While the practitioner expressed himself as willing to commit to a course of professional mentoring, undertake training in ethics and boundaries, or pursue psychological counselling, he had not actually done any of these things by the time of the hearing, some two years after the complaint. A single session with a communication coach and speech therapist, undertaken shortly before the hearing, and a commitment to professional development courses more generally, does not address the issues raised. 9. Dr Jangodaz nominated a named dental practitioner as a mentor whom he consulted, and who would support and assist him, but when questioned acknowledged that this practitioner knew nothing of the complaint or the subject proceedings. 10. Counsel for the practitioner was at pains to point out that he no longer worked in isolation, as he had at the time of the relevant events, but now had peer support and supervision available to him as part of his practice. However all of these practitioners in his current practice work for Dr Jangodaz, and none are in a supervisory capacity. Moreover none of them are aware of what occurred, or of these proceedings. Indeed Dr Jangodaz's evidence was that he had told no one at all about what had occurred, nor did he plan to do so. 11. In these circumstances, although the practitioner expressed himself as willing to continue practice under conditions, the Tribunal could have no confidence that such conditions would be met. 12. While he claimed that his "stupidity" and lack of judgment in entering into the relationship with Patient A arose because he was stressed and over-worked, Dr Jangodaz had not put in place any personal or professional support measures to address his stress or work hours. 13. In these circumstances the Tribunal was unable to find that the practitioner had taken responsibility for what occurred, or taken steps to ensure that it would not reoccur. 14. The severity of the misconduct means that deregistration of the practitioner is the only appropriate order to protect the public. Deregistration is required both because of the need to set a clear standard for the profession and clear message to the public about the seriousness of the past conduct, and because the practitioner's inability to demonstrate any real insight or remedial action by the time of hearing, over two years later, gives rise to concern about the practitioner's future conduct. 15. A period of one year before the practitioner can re-apply for registration is required because anything less would not enable the Tribunal to be satisfied that the practitioner had addressed the issues as identified in this decision. Costs 1. While the practitioner requested a hearing on the papers, the Tribunal determined that a brief hearing was required to address Stage Two considerations. This was both in the public interest, and in fairness to the practitioner so that his current state of appreciation of his conduct could be assessed. 2. The HCCC undertook these proceedings with efficiency, working with the practitioner's legal representative to settle agreed facts, and amending particulars in order to avoid factual dispute about peripheral matters that could have little bearing on the ultimate determination of significant issues concerning the professionalism of the practitioner. 3. The HCCC case is wholly proved, they have acted in the public interest, and they are entitled to their costs in these proceedings. Orders: 1. Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as a Dentist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; 2. Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 1 year from the date of this order; 3. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the name of Patient A in the schedule to the complaint; 4. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 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: 03 June 2016