Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wang v Dental Council of NSW [2016] NSWCATOD 90 Hearing dates: 1 July 2016 Date of orders: 12 July 2016 Decision date: 12 July 2016 Jurisdiction: Occupational Division Before: R C Titterton, Senior Member Decision: (1) The order of the Council that the practitioner be reprimanded be stayed until further order. (2) Costs are reserved. Catchwords: Stay - relevant principles – no question of principle Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Bova v Pharmacy Council of NSW [2014] NSWCATOD 40 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77 Kirbach v Health Care Complaints Commission [2015] NSWCADAD 195 NSW Bar Association v Stevens [2003] NSWCA 95 Category: Principal judgment Parties: Dr Di (Wendy) Wang (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: Esplin Solicitors (Applicant) Dental Council of NSW (Respondent) File Number(s): 1620115 Publication restriction: The Tribunal made a non-publication order, pending the hearing of the appeal, prohibiting the disclosure of the name of the author of the complaint dated 10 March 2015 to the Health Care Complaints Commission REASONS FOR DECISION The application 1. This an application by Dr Di Wendy Wang (the practitioner) for a stay of a decision of the Dental Council of NSW (the Council) made on 10 March 2016 under s148E of the Health Practitioner Regulation National Law (the National Law). 2. The Council found that the dental treatment provided by the practitioner and her patient records demonstrated that her skill, knowledge and judgment and care was significantly below the standard reasonably expected of a practitioner with her level of training and experience. The Council found her guilty of unsatisfactory professional conduct within the meaning of s 139B of the National Law. 3. Consequent on its decision, the Council ordered that the Australian Health Practitioner Regulation Authority (AHPRA) Public National Register record that the practitioner had been reprimanded by the Council for her conduct. The Council also made orders that, for the purpose of a Dental Council of NSW review of the practitioner's understanding and application of the Dental Board of Australia's "Guidelines on dental records" (the Guidelines) and Code of Conduct (the Code), the practitioner provide the Council, within three months, with (a) an overview of the steps she had taken to ensure that her patient records accord with the Guidelines and the Code and (b) a copy of de-identified records, including treatment plans and medical histories for six patients who have attended for consultation and treatment, which demonstrate compliance with the Guidelines and the Code. 4. The applicant subsequently filed an external appeal on 6 May 2016. She submits that the Council's decision of 10 March 2016, and its subsequent reasons of 6 April 2016, were incorrect in some 11 areas, and that the Tribunal should not have imposed the sanctions that it did. 5. For the reasons that follow, I have decided to grant the practitioner's application and to stay the Council's order of 10 March 2016, in so far as it relates to the imposition of a reprimand. It follows that the record of that reprimand on the AHPRA Public National Register record must be removed. Evidence 1. The practitioner relied on two statements at the hearing of the stay application, namely her two statements respectively dated 20 June 2016 and 1 July 2016. No objection was taken to the tender of these statements for the purposes of the application. 2. The statement of 20 June 2016 relevantly provides details of the practitioner's practice. She describes a conversation she had on 4 April 2016 with a representative of Bupa Australia Pty Ltd (Bupa). She attaches a letter from Bupa dated 6 April 2016 terminating its Members First Agreement with the practitioner. She explains that the consequences of this are "very serious" to her, her practices and the dentists with whom she practises. She states that: 10. I believe that if my practices and the other dentists lose their preferred provider status and are removed from the Bupa network then new and existing patients will go to other practices where they can receive higher rebates from Bupa. 11. I estimate that approximately 40% of my practice income is from Bupa patients. . . . 1. She states that since the Council decision she has attended a continuing professional development course with the Australian Dental Association (ADA) regarding the giving of informed consent; reviewed the ADA's Guidelines on Dental Record Keeping and Modern Clinical Records Requirement (the Guidelines) to make sure that she was updated on the latest requirements on dental record keeping; systematically selected multiple patient dental records and performed "self-auditing" to determine if she could improve her record keeping; utilised the consent form endorsed by the ADA prior to commencement of treatment to ensure adequate communication with patients; utilised the treatment plan quotation function of her software to give patients printouts of the approximate cost of treatment; and selected six recent cases, de-identified the patients, and worked with an ADA peer group advisor to ensure that all record keeping was compliant with the Guidelines. 2. In the practitioner's statement of 1 July 2016, in summary, she states that: 1. She had complied with the orders of the Council by: 1. preparing an overview of the steps she had taken to ensure that her patient records accorded with the Dental Board of Australia's Dental Guidelines on Dental Records and its Code of Conduct; 2. providing a copy of de-identified patient records, including treatment plans and medical histories for six patients who had attended for consultation and treatment, which records demonstrated compliance with the Guidelines and the Code. 1. Mr Martin, for the Council, accepted that the practitioner had supplied the records referred to, but could not agree that she had complied with Dental Board's Dental Guidelines on Dental Records and its Code of Conduct. He said that this would be a matter for expert evidence at the appeal. Applicant's submissions Written submissions of 20 June 2016 1. The practitioner's written submissions are set out in her "Application for Stay or Interim Order" filed 20 June 2016. The practitioner practices at Oralux Dental in Crows Nest and iSmile Dental in Bella Vista. Both of these practices operate as preferred providers as authorised by Bupa and Medibank Private. The practitioner works with two other dentists at Oralux, and five other dentists at iSmile Dental. In summary, the practitioner submits that: 1. On 4 April 2016, a representative of Bupa informed her that her preferred provider status would be removed if she did not have the reprimand removed from AHPRA's Register of Practitioners by 1 June 2016. In addition, Bupa informed her that they would remove both practices, and the dentists who practice there, from their preferred provider network. 2. On 6 April 2016 Bupa terminated its Members First Agreement with the applicant. 3. If the reprimand remains in the Register there are "severe consequences" for the applicant, the practices, and for the seven other dentists with whom she works. She submits that "it is likely that patients who are members of Bupa will no longer attend Oralux Dental or iSmile Dental if the patients are unable to receive the full rebate will be referred to those practices in Bupa's website. These consequences may be irreversible even the event of her being successful in her appeal. 1. The Application also states that Medibank Private has requested that the applicant provide further details of the Council's Decision. The practitioner states that she does not know whether Medibank Private will take action similar to that of BUPA. Written submissions of 20 June 2016 1. Further submissions were received at the hearing. The practitioner "broadly" agreed with the Council's written submissions and its statement of the relevant principles. In summary, the practitioner relevantly submitted that: 1. The hearing of the appeal is set down for 12 September 2016, approximately 10 weeks after the stay applicant. Until that time, the practitioner, her practices and the other dentists within her practices may suffer irreparable loss and damage to their business relationships with Bupa, Medibank Private and patients who are members of those health insurers. Moreover, the practitioner and the other dentists will not be eligible for any compensation. The practitioner submits that this was a significant factor in the Tribunal granting a stay in Kirbach v Health Care Complaints Commission [2015] NSWCADAD 195. 2. The applicant's grounds of appeal are strong as: 1. the Council's decision involved a "gross" denial of procedural fairness; 2. the penalty of a reprimand is too harsh a penalty having regard to the Council's findings relating to consent record keeping. 1. The balance of convenience favours the granting of a stay: the practitioner's reputation and business have suffered and continue to suffer because of the Council's findings and penalties. Given that the Council's findings relate to an alleged failure to obtain informed consent and the quality of record keeping, there is no danger to the public if a stay is granted. 2. The interests of justice also favour the practitioner. The practitioner submits that the Council's findings of 10 March 2016 do not refer to any inappropriate conduct as was alleged in Kasserwani. It is submitted that in Kirbach the Tribunal held that in a stay application "the public interest is not so significant in the short term that should override the applicant's interests. Oral Submissions 1. The written submissions were amplified by Mr Esplin at the hearing. 2. Mr Esplin informed the Tribunal that: 1. Bupa had removed the practitioner's preferred prescriber status. 2. Bupa had not removed the preferred prescriber status of her colleagues. 3. Medibank Private taken no steps to remove the practitioner's preferred prescriber status, or the preferred prescriber status of her colleagues. 4. The practitioner was presently only working about half a day a week. She would not be working at all, given current health issues, but there are some patients that require her ongoing supervision. 1. Mr Esplin submitted the practitioner had complied with the orders and directions of the Council, namely providing an overview of steps she had taken to ensure her dental records accorded with regulatory requirements, and to de-identify patient records. Mr Esplin submitted that the practitioner's positive steps in this regard suggested that the balance of convenience favoured the granting of a stay. 2. Mr Esplin submitted that the reprimand causes injustice to the practitioner in circumstances where she wanted to ally fears about her past conduct. He said the fact that the Council's decision was not public underscored the harshness of the reprimand; a reprimand can be imposed for a variety of conduct, from sexual misconduct (as in Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77) or for poor record keeping; the findings that underpin a reprimand can be diverse. He submitted that the public would not be at risk (if the reprimand was stayed) given that the Council, while finding unsatisfactory professional conduct, made no orders save for the practitioner providing the Council with an overview of the steps she had taken to ensure that her patient records accorded with the Guidelines and the Code, together copy of de-identified records to demonstrate compliance with the Guidelines and the Code. He further submitted the practitioner had no criminal past, and that the complaint did not involve sexual misconduct. He submitted that the status quo favoured the granting of a stay. Respondent's submissions 1. The application for a stay was opposed by the Council. Submissions were received dated 23 June 2016 and filed 24 June 2016. In summary, the Council submits: 1. The Council's principal submission was that the practitioner has not made out a case for an order staying the effect of the Council's decision or the reprimand. The Council submits that the practitioner's position was based entirely on the business and financial consequences that flowed from the reprimand. It is the Council's position that, in light of the paramount consideration set out in s 3A of the National Law, those business and financial consequences are not matters that the Council can or should take into account. 2. The practitioner has not provided any other evidence of impacts flowing from the Council's decision. 3. There are no ongoing conditions in the practitioner's registration as a dentist or restrictions on the type of services or treatment that she is able to provide. Therefore, the practitioner remains able to practice her profession and to provide comprehensive dental care to her patients. 4. While reference is made to adverse consequences for other practitioners with whom the practitioner practices, the practitioner's statement of 15 June 2016 indicates that those other dentists remain listed on the Bupa website as preferred providers. 1. In conclusion, the Council submits the practitioner remains able to practice her profession without limitation or restriction, that there is no evidence of adverse consequences for other practitioners. The Council therefore submits that that as the paramount consideration is the protection of the health and safety of the public, the Tribunal's discretion should be exercised in favour refusing the stay application. 2. These submissions were amplified by Mr Martin in his oral submissions. He noted that while a stay was granted in Kirbach, there was no appeal by the practitioner and therefore there was no risk to the public. On the other hand, here Dr Wang had appealed, and he submitted that the Tribunal would not be confident that she would comply with the record keeping and other requirements the subject of the complaint. Principles relevant to this application 1. As was noted in Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77 at [9], the NCAT Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision under appeal should be exercised. However, in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, after examining the authorities, the President of Tribunal (Wright J) summarised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal (see par [9]). In summary, those principles included the following: 1. The onus is on an applicant for a stay to make out a case that it is appropriate for the court or Tribunal to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. This is similar to, if not the same as, the considerations applied by the Courts where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 3. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion, the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. 1. As was also noted in Kesserwani, Bentran was a decision concerning a claim in the Consumer and Commercial Division of the Tribunal. Here, as in Kasserwani, the appeal the subject of the present stay application is brought in the Occupational Division of the Tribunal. In considering a practitioner's application for a stay, the Tribunal must consider the protection of the health and safety of the public, which is the paramount consideration of the Tribunal: Kasserwani at [16]. The protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree: NSW Bar Association v Stevens [2003] NSWCA 95. 2. The decision in Stevens was applied recently in this Tribunal in Kirbach v Health Care Complaints Commission [2015] NSWCADAD 195. In that case, the Health Care Complaints Commission determined that the applicant, a social worker, had engaged in an inappropriate relationship with a patient contrary to the Code of Conduct for Unregistered Health Professionals. The Health Care Complaints Commission published a statement concerning the applicant on its website but did not publish the underlying decision. The Tribunal stayed the publication of the public statement pending the appeal. The Tribunal stated at [17]: I accept that the protection of the public is a matter that should be given significant weight in an application of this kind: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91]. I also accept that the issuing of the public statement serves a public interest purpose in this case. It alerts members of the public and prospective employers to the conduct in which Mr Kirbach has engaged and may protect the public from any future conduct of the same kind in which Mr Kirbach seeks to engage. However, there is virtually no risk that Mr Kirbach will attempt to seek employment as a social worker either in New South Wales or elsewhere, or engage in the kind of behaviour for which he has been disciplined while these proceedings are on foot. In those circumstances the public interest is not so significant in the short term that it should override Mr Kirbach's interests. Consideration 1. The practitioner submits that she has a better than arguable case on appeal, if not a strong case. This submission is made on the basis of the Council decision having involved a "gross" denial of procedural fairness; and penalty (namely the reprimand) that was "too harsh". It is impossible to express a view as to whether or not the decision involved a denial of procedural fairness. Whether or not the reprimand was too harsh, is a matter on which I express no view, although I can see arguments either way. The appeal itself appears to be arguable, and it could not be said that the appeal was entirely hopeless. All these matters will be reconsidered by the Tribunal at the appeal hearing, which involves a reconsideration of Council's decision, the Tribunal engaging in a "reconsideration of the matter", and, in that deliberative process, receiving fresh evidence, or evidence in addition to or substitution for the evidence which was before the Council when it considered the matter: see Bova v Pharmacy Council of NSW [2014] NSWCATOD 40 at [30]. I consider the strength of the practitioner's appeal to be a neutral matter in determining whether or not to grant the stay. 2. As to the effect on the applicant's on income. I place no weight on this matter, and I accept the Council's submissions that this is not a relevant factor to take into account. I do not consider that this factor favours the granting of a stay. 3. As already noted, the paramount consideration is the protection of the public. I consider that there is substance in the practitioner's submission that, given the Council has allowed the practitioner to continue to practise, and has placed no conditions on her right to practise (save for ordering that she co-operate with a Council review of review of her understanding and application of the Guidelines and the Code). I further note that the practitioner has now complied with those orders and, in addition, attended a continuing professional development course regarding the giving of informed consent; reviewed the Guidelines to make sure that she was updated on the latest requirements on dental record keeping; selected multiple patient dental records and performed "self-auditing" to determine if she could improve her record keeping; utilised the consent form endorsed by the ADA prior to commencement of treatment to ensure adequate communication with patients; and utilised the treatment plan quotation function of her software to give patients printouts of the approximate cost of treatment. 4. Given that the Council has not restricted the practitioner's right to practise, I consider that the public will remain adequately protected if the order requiring that the reprimand be recorded on the AHPRA register is stayed. It might be considered that the balance of convenience might favour the continuance of the reprimand on the Register, given that the reprimand has already been in place for some three months. In this respect I note that in Kirbach, where the Tribunal granted a stay, the public statement had also already been published for approximately four months. 5. I conclude that overall fairness and justice dictates that the order of the Council that the practitioner be reprimanded be stayed until further order. In reaching this conclusion I note that the appeal has been expedited. ORDERS 1. The Tribunal orders that: 1. The order of the Council that the practitioner be reprimanded be stayed until further order. 2. Costs are reserved. 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: 12 July 2016