Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sun [2016] NSWCATOD 123 Hearing dates: 29 February, 1, 2, 3 March and 12, 13, 14 September 2016 Date of orders: 04 October 2016 Decision date: 04 October 2016 Jurisdiction: Occupational Division Before: O Shub, Principal Member Dr A Lang Professional Member Dr A Kingon, Professional Member A Collier, General Member Decision: The Respondent is found guilty of unsatisfactory professional conduct and professional misconduct and has had conditions imposed on his registration. Catchwords: Dentist Legislation Cited: Health Practitioner Regulation National Law (NSW) (National Law) Civil and Administrative Tribunal Act 2013 (NSW), S38(2) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 HCCC v Litchfield (1997) 41 NSWLR 63 HCCC v Dr Della Bruno (2014) NSWCATOD 31 Gianoutsos v Glykis (2006) 65 NSWLR 539 In re Dr. Suman Sood [2006] NSWMT 1 at 10 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Refiek v McElroy (1965) 112 CLR 517 Neat v Karajan Holdings Pty Ltd Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31] Lucire v Health Care Complaint Commission [2011] NSWCA 182 ACCC v Fraser (2014) NSWCATOD 29 Kalil v Bray [1977] 1 NSWLR 356 Minister for Health v Thomson [1985] Pillai v Messiter (No 2) (1989) 16 NSLR 197 HCCC v Karalasingham [2007] NSWCA 267 Walsh v Law Society of New South Wales [1999] HCCC v Dawes [2015] NSWCATOD 84 Health Care Complaints Commission v Dr Jamieson [2014] Lee v HCCC [2012] NSWCA 80 NSW Bar Association v Meares (2006) NSWCA 340 Sabag v HCCC [2001] NSWCA 411 Clyne v New South Wales Bar Association (1960) 104 CLR 186 NSW Bar Association v Meakes [2006] Sabag v Health Care Complaints Commission [2001] HCCC v Dawes [2015] HCCC v Fraser (No 2) [2014] Mijatovich v Legal [2008] Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Dr Young Hoon Sun (Respondent) Representation: Counsel: W Hunt replaced by C P O'Donnell (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) DibbsBaker (Respondent) File Number(s): 1520087 and 1520162 Publication restriction: The publication of the names of Patients A & B and Patient A's mother in matter 1520087 and the names of patients A to O in matter 1520162 are suppressed and may not be published REASONS FOR DECISION Background 1. The HCCC made two applications to the Tribunal for disciplinary findings and orders. 2. In respect of matter 1520087 the HCCC sought orders that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: 1. Engaged in conduct that demonstrates the skill or judgement 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 2. That the Respondent is guilty of professional misconduct under section 139E of the National Law in that the practitioner has; 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; and/or 2. Engaged in 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 respect of matter 1520162, the HCCC sought an order that the Respondent is guilty of unsatisfactory professional conduct within the meaning of sections 139B(1)(A) and L of the National Law in that the practitioner has; 1. Engaged in conduct that demonstrates the judgement possessed or care exercised by him in the practice or purported practice of dentistry is significantly below the standard reasonably expected of an equivalent level of training or experience; 2. Engaged in improper or unethical conduct relating to the practice or purported practice of dentistry; and 3. The Respondent is guilty of professional misconduct within the meaning of section 139E of the National Law in that the practitioner has; 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or; 2. Engaged in 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 the suspension or cancellation of the practitioner's registration. 1. The two matters have been consolidated and accordingly are dealt with together in this decision. 2. The Respondent is currently incarcerated in Silverwater Prison and is not practising as a dentist. Matter 1520087 1. In respect of matter 1520087 the background to Complaints One and Two are as follows: Patient A 1. On 10 April 2013 Patient A consulted with the practitioner in relation to pain and discomfort caused by her two bottom wisdom teeth. During the consultation, the practitioner advised Patient A that each of her lower third molar teeth would need to be extracted and that one tooth would require a bone graft. On 8 May 2013 the practitioner provided the following dental treatment to Patient A: 1. Extracted Patient A's lower right third molar tooth; 2. Partially extracted Patient A's lower left third molar tooth; and 3. Placed a bone graft in a dead space. 1. Between 10 May 2013 and 13 May 2013 Patient A was diagnosed at Royal North Shore Hospital as having a dental abscess following attempted extraction of her lower third left molar tooth. Patient B 1. On 6 June 2011, Patient B consulted with the practitioner. At that time, Patient B had a history of periodontal disease and five teeth remaining on her upper gum. The practitioner advised Patient B to obtain implants to support dentures in her upper gum and that she would require a surgical procedure to introduce bone graft to the maxillary sinus floor (a "sinus lift"). 2. On 27 July 2011, the practitioner provided dental treatment to Patient B in that he: 1. Performed a bone graft introduction to the maxillary sinus floor; and 2. Placed implants in areas 13 and 17 of Patient B's upper gum. 1. On 25 January 2012, Patient B consulted with the practitioner. The practitioner viewed an orthopantogram of Patient B's upper gum taken on 18 January 2012. Between 25 January 2012 and around 20 April 2012, Patient B attended the practitioner on two occasions. On each occasion, the practitioner performed a surgical procedure. Amended Complaint One 1. In respect of amended Complaint One relating to Patient A, the only matters currently pressed by the HCCC are; 1. Particular 4 – Placed a bone graft in a dead space created by the practitioner in circumstances where; 1. There was no clinical indication for bone grafting in the surgical procedure undertaken on Patient A's lower third molar tooth; or 2. Not pressed 1. Particular 6 – Provided information to Patient A approximately 15 minutes before finishing the surgical procedure on 8 May 2013 that "I have left the roots of the tooth and taken everything else out", which was incorrect; 2. Particular 8 – Advised Patient A in an email dated 24 May 2013 that "… a small fragment of tip of root of the left lower wisdom tooth was left in situ without complete removal", which was a gross misrepresentation of the surgical outcome; and 3. Particular 9 – In his email of 31 May 2013 to Patient A, wrote that "the Oral Surgeon or any Dental practitioner who takes or interferes into [sic] someone else's work that it [sic] then becomes his concern, meaning the patient should go back to him from now on" where the contents of that email were irresponsible and inappropriate. 1. In respect of Patient B; 1. Particular 10 – Failed to conduct an adequate investigation prior to surgery performed on 27 July 2011 by failing to obtain a cone-beam radiograph of Patient B's maxillary sinus to eliminate pathology within the sinus prior to performing a surgical procedure to introduce bone graft to the maxillary sinus floor (also referred to as a "sinus lift"), where a more thorough investigation was indicated. 2. Particular 11 – Performed a surgical procedure on Patient B on 27 July 2011 to introduce bone graft to the maxillary sinus floor (also referred to as a "sinus lift") where that surgical procedure was unnecessary for securing a dental implant in area 17 of Patient B's upper gum. 3. Particular 12 – Placed a dental implant in area 13 of Patient B's upper gum on 27 July 2011 in circumstances where: 1. The practitioner had previously identified "degenerative bony absorption alveolus" in area 13; 2. There was insufficient bone for support of the implant; and/or 3. The practitioner had failed to perform a bone graft to support the dental implant in area 13 of Patient B's upper gum prior to performing the implant. 1. Particular 13 – Failed to make and retain adequate clinical records in relation to: 1. A consultation with Patient B on 25 January 2012 and any reasons for a decision to order a cone beam radiograph; 2. Any reasons for removal of the dental implant from area 17 of Patient B's upper gum between 25 January 2012 and around 20 April 2012; 3. Two consultations with Patient B between 25 January 2012 and around 20 April 2012; and/or 4. Surgery performed on Patient B's upper gum on two occasions between 25 January 2012 and around 20 April 2012; and/or 5. Contrary to the "Guidelines on dental records" approved by the Dental Board of Australia pursuant to section 39 of the National Law. 1. Particular 14 – Demonstrated a standard of knowledge, skill and judgement significantly below the standard reasonably expected of the practitioner by: 1. Removing the implant in area 17 of Patient B's upper gum in surgery performed between 25 January 2012 and around 20 April 2012 in circumstances where removal of the implant was not clinically indicated or required; and 2. Around two weeks later, operating for approximately two hours on Patient B's upper gum to remove the implant in area 17 of Patient B's upper gum, in circumstances where the practitioner had previously removed that implant around two weeks prior. Matter 1520162 1. In respect of matter 1520162, the HCCC alleged that: 2. At all relevant times the practitioner practised as an oral and maxillofacial surgeon and as a dentist in private practice at Primecos, located at Suite 20, 650 George Street, Sydney, New South Wales. 3. At all relevant times, the practitioner was: 1. A "health service provider" within the meaning of the Health Industry Claims and Payments Services (HICAPS) Provider Agreement; 2. Bound by the HICAPS Provider Agreement; and 3. A person in respect of whom "Funds" as defined in the HICAPS Provider Agreement could pay benefits for services rendered by the practitioner. 1. At all relevant times, Medibank Private Limited (MPL) was a "Fund" for the purposes of the HICAPS Provider Agreement and could settle health insurance claims through the HICAPS system where initiated by a health service provider. 2. At all relevant times, the practitioner was: 1. A health provider recognised by MPL for the purpose of paying benefits on behalf of its members in relation to treatment provided by the practitioner; and 2. Subject to "Medibank's Requirements for Recognised Providers". 1. At all relevant times, the practitioner was himself a member of MPL with membership number 30589844. 2. Annexure A is a summary of data containing particulars, relevantly, as to: 1. Claims made through HICAPS against MPL membership number 30589844 for dental services purportedly provided by the practitioner; 2. Where a benefit has been paid – the amount of the benefit paid to the practitioner by MPL in respect of those claims; 3. The purported dental service in respect of which the claim was made; 4. The date on which; 1. Each dental service was purportedly provided; and 2. Each claim in respect of those dental services was made through HICAPS against MPL. Particulars of Amended Complaint One 1. The practitioner: 1. Between 28 June 2012 and 11 March 2013, claimed through HICAPS and received payment of total benefits of $6,437.70 from MPL for dental services purportedly provided on 51 occasions by the practitioner to the practitioner (that is, to himself), being the 51 occasions particularised in Annexure A to the Complaint in respect of which a benefit is recorded as having been paid. 2. Between 28 June 2012 and 11 March 2013, claimed through HICAPS – but did not receive – benefits from MPL for dental services purportedly provided on 38 occasions by the practitioner to the practitioner (that is, to himself), being the 38 occasions particularised in Annexure A to the Complaint in respect of which a charge is recorded for a corresponding benefit of "$0.00". Further Amended Complaint Two (Dental Records) 1. Is guilty of unsatisfactory professional conduct within the meaning of sections 139B(1)(a) of the National Law in that the practitioner has: 1. Engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice or purported practice of dentistry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Further Amended Complaint Two 1. The background to AMENDED Complaint One – items A to D is repeated. 2. On 6 August 2013, Michael Kenney, Investigator, MJK Investigations Pty Ltd attended the Primecos premises to conduct an audit on behalf of MPL, and requested the practitioner to produce patient records and appointment bookings schedules for 15 members of MPL to whom the practitioner had purportedly provided dental services. 3. Around 30 September 2013, the practitioner provided dental records to MPL in response to Mr Kenney's request of 6 August 2013. 4. Annexure B is a summary of particulars, relevantly, as to: 1. Claims made through HICAPS against MPL for dental services provided, or purportedly provided, by the practitioner to Patients A, B, C, D, F, G, H, I, J, K, M, N and O; 2. Where a benefit has been paid – the amount of the benefit paid to the practitioner by MPL in respect of those claims; 3. The dental service, or purported dental service, in respect of which the claim was made; 4. The date on which; 1. Each dental service was provided, or purportedly provided; and 2. Each claim in respect of those dental services was made through HICAPS against MPL. 1. In respect of each dental service provided or purportedly provided, whether it is alleged that the practitioner did or did not keep a patient record. 1. Annexure E to the Complaint is a summary of particulars identifying the dates and services on which it is alleged dental services were provided, or purportedly provided, by the practitioner to Patients A, B, C, D, F, G, H, I, J, K, M, N and O in respect of which the practitioner kept no dental records for certain dental services the subject of claims though HICAPS against MPL. Annexure E to the Complaint is a copy of Annexure B to the Complaint marked up with the identified dates and services provided or purportedly provided being highlighted. (Note: the Further Amended Complaint and Further Amended Complaint Two in particular does not rely on Annexure C to the Amended Complaint). Particulars of Further Amended Complaint Two 1. The practitioner; 1. Between December 2011 and March 2013, kept no clinical records in relation to the dental services provided, or purportedly provided, to Patients A, B, C, D, F, G, H, I, J, K, M and on the dates as highlighted in Annexure E to the Complaint. 2. Between December 2011 and March 2013, kept no dental records at all in relation to Patients N and O, including any clinical records in relation to dental services provided, or purportedly provided, to Patients N and O on the dates as highlighted in Annexure E to the Complaint. 3. Between December 2011 and March 2013, claimed through HICAPS and received from MPL benefits for dental services purportedly provided to Patients A, B, C, D, F, G, H, I, J, K, M, N and O in circumstances where the practitioner kept no corresponding clinical records of those services, as particularised in Annexure E to the Complaint. 4. Could not promptly retrieve all purported dental records for Patients A, B, C, D, E, F, G, H, K, L, M, N or O when required to do so on 6 August 2013. Amended Complaint Three 1. Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(I) of the National Law in that the practitioner has: 1. Engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. 1. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Amended Complaint Three 1. The background to Complaint One, items A to D, is repeated. 2. From time to time since approximately 2011, the practitioner engaged the services of Kwang Min Park, a Dental Prosthetist and the Director of Min Dental Laboratory. 3. Around 30 September 2013, the practitioner provided to MPL a copy of dental records held by the practitioner in respect of, relevantly, Patients B, C, E, F, G, H, I, J and K. 4. Each of those dental records contained one or more invoices purportedly issued by Min Dental Laboratory to the practitioner in respect of the relevant patient. Particulars of Amended Complaint Three 1. The practitioner; 1. Between December 2011 and January 2013, claimed and received benefits from HICAPS for provision of dental prosthetic services to Patients C, E, F, G, I and J, as particularised in Annexure D, in circumstances where: 1. An invoice was purportedly issued by Min Dental Laboratory in respect of each of those services; 2. Each such invoice was falsified; and 3. The practitioner knew, or ought reasonably to have known, that each of those invoices was falsified. 1. Between December 2011 and January 2013, claimed through HICAPS – but did not receive – benefits from MPL for provision of dental prosthetic services to Patients C, H, I and K, as particularised in Annexure D, in circumstances where; 2. An invoice was purportedly issued by Min Dental Laboratory in respect of each of those services; 3. Each such invoice was falsified; and 4. The practitioner knew, or ought reasonably to have known, that each of those invoices was falsified. 1. Around 30 September 2013, produced dental records to MPL in respect of Patients B, C, E, F, G, H, I, J and K in circumstances where: 1. The dental records in respect of each patient included an invoice or invoices, particularised in Annexure D, purportedly issued by Min Dental Laboratory for dental prosthetic services; 2. Each of the invoices particularised in Annexure D had been falsified; and 3. The practitioner knew, or ought reasonably to have known, that each of those invoices was falsified. 1. In respect of the failure to produce records to the Medibank Private, the HCCC provided a document Annexure E to the Complaint, containing a significant number of items in respect of which no clinical notes were available. As a result of discussions and review of the various documents, the HCCC produced a document Exhibit 5 listing a variety of disputed entries. In that regard, the items were divided into four categories. The items where no record was provided and the Respondent agreed that no record was provided were marked in pink, the items with an asterisk were those items in respect of which the HCCC maintained that there is no entry and the Respondent disagreed, the items marked in blue are items where it was accepted that records had been made available and items marked in yellow are items where there may be records available. 2. In respect of matter 1520087, evidence was called from three witnesses, Patient A, Patient A's mother and Patient B. In addition, the evidence of two experts was provided following a conclave between the two experts. Patient A 1. In summary, the evidence against the Respondent by Patient A was to the effect that the Respondent placed a bone graft in a dead space in Patient A, created by the practitioner in circumstances where there was no clinical indication for bone grafting in the surgical procedure undertaken on Patient A's lower third molar tooth. It was also stated that approximately 15 minutes before finishing the surgical procedure on 8 May 2013, the Respondent stated "I have left the roots of the tooth and taken everything else out". Patient A provided a copy of an email dated 24 May 2013 in which the Respondent stated that "a small fragment of tip of root of the left lower wisdom tooth was left in situ without complete removal". The evidence of Patient A was supported by her mother who indicated that Patient A was extremely nervous and appeared to be in a significant amount of pain, requiring a large amount of anaesthesia. Patient A's mother did not, however, confirm the words that everything else had been removed. Patient B 1. The effect of Patient B's evidence was that the Respondent performed a surgical procedure on Patient B on 27 July 2011 to introduce a bone graft to the maxillary sinus floor (also referred to as a "sinus lift"). 2. Patient B indicated that at a later visit, having removed an implant, the Respondent spent approximately two hours searching for the implant in order to remove it. Expert Evidence 1. In respect of the allegations contained at paragraph 4A, relating to Patient A of the particulars of Complaint One, the experts agreed that it was probably not necessary to perform a bone graft but when asked, it was agreed by the experts that while unnecessary, it was not unreasonable to place a bone graft in that area. 2. In respect of Patient B, the experts were agreed in their evidence that a cone beam radiograph should have been done. In addition, the experts agreed that the introduction of a bone graft was unnecessary. 3. In respect of matter 1520162, the HCCC did not call any evidence but provided Annexure E to the complaint which set out a variety of Patients in respect of whom clinical notes were not made available to Medibank Private on request. In addition, they provided documentation in respect of claims made for services provided by Kwang Min Park, a dental prosthetist, in respect of which the Respondent had provided tax invoices which were later claimed by Kwang Min Park to be falsified, and agreed to by the Respondent as having been falsified. Evidence of the Respondent 1. In evidence given by the Respondent relating to Patient A in matter 1520162, the Respondent said that in attempting to unsuccessfully extract tooth 38 from Patient A's mouth, he harvested autogenous bone due to the instruments he used. His original intention was to fill the anticipated large cavity to be created by the removal of tooth 38 with artificial bone graft material. Given that he was unable to completely extract tooth 38, he decided not to use the synthetic material, which might cause infection in the bony structures. Instead, he placed the harvested autogenous bone into the buccal plate. 2. In respect of the discussion between the Respondent and Patient A, 15 minutes prior to the termination of the treatment the Respondent stated that the words do not correctly reflect what he said. He was satisfied that he would have told Patient A that he had left the root in, but denied that he would have said "I have taken everything else out". He explained that he terminated the treatment and left a portion of the tooth and the root in situ as the tooth was too close to the alvolear nerve as he was concerned not to damage the nerve in further attempts to remove the balance of the tooth. 3. In respect of the evidence given by Patient B, the Respondent explained that he did not order a CT cone beam radiograph prior to commencing treatment of Patient B on the basis that he felt that he had sufficient information from the x-ray available to him to indicate that he could proceed. In respect of the allegation by Patient B that two weeks after removing the implant he spent two hours searching for the implant, he informed the Tribunal that that was so unlikely, as if that had had happened he would have definitely remembered the matter, and that if in fact he had forgotten that he had removed the implant two weeks prior to this occasion, it would have been easy for him to have found it in a couple of minutes by doing a further x-ray. 4. In respect of matter 1520162, the respondent's evidence was to the effect that in respect of Complaint One, namely where he had made claims on HICAPS for treatment by himself on himself, he indicated that he did not make those claims, did not pass those entries and that those claims were made without his knowledge and consent. He indicated that those claims were made by members of his staff and identified various members at various times. In respect of Complaint Two, the Respondent admitted a very significant number of items in respect of which claims were made on Medibank Private, where no clinical records were available to be provided to Medibank Private. He explained that he had been in the process of converting his documentation from paper stored to computer stored and had a significant turnover of staff during that process. The only explanation which he could advance was that those records might have been lost in the process of conversion. 5. In respect of the various patients where clinical notes were allegedly not provided according to the HCCC but where the Respondent disputed that fact, the Respondent gave various explanations, many of which would have satisfied the HCCC and others which remained in dispute. 6. In respect of Complaint Three, the Respondent's evidence was to the effect that the tax invoices provided to Medibank Private were in fact falsified. He stated that the invoices were kept by his accountant, not with the patients clinical records and that the only explanation he could give was that those invoices were falsified by his accountant who he later discovered was in the midst of an investigation by the Australian Taxation Office. He denied that he knew or ought to have known that the tax invoices were falsified. 7. In all of his evidence, however, he accepted without reservation that any falsification of invoices or false claims made on Medibank Private were his responsibility as the head of the practice and regretted the circumstances in which those claims arose. Submissions 1. The HCCC made extensive submissions, both in respect of the law applicable to Tribunal hearings and in respect of the evidence given by witnesses for the Complainant and evidence given by the Respondent. The Standard of Proof 1. The HCCC submitted that the standard of proof in both matters is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 AT 362-3. However, by reason of the seriousness of the allegations and the gravity of the consequences that may flow from them the Tribunal must be reasonably satisfied that the matters in the complaint have been established. 2. The use of "reasonably satisfied" does not imply that proof to a higher standard than the balance of probabilities is required: Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal In re Dr. Suman Sood [2006] NSWMT 1 at 10. The Tribunal must have regard to the gravity of the allegations and the seriousness of consequences that flow from the making of a particular order when applying the Briginshaw standard: Forster v Hunter New England Area Health Service [2010] NSWCA 106 (paragraph [23]). The degree of satisfaction that the civil standard may call for may vary according to the gravity of the fact to be proved, but reasonable satisfaction only, not satisfaction beyond reasonable doubt, is all that is required to meet the civil standard: Refiek v McElroy (1965) 112 CLR 517. 3. The standard of proof is also discussed in the decision of the plurality in the High Court in Neat v Karajan Holdings Pty Ltd; the general principles to be applied in civil litigation are set out with reference to Briginshaw. 4. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard of proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard. The Effect of Written Admissions 1. The Commission contends that, in the circumstances of this matter, the Tribunal can rely on the admissions (where made) by the practitioner to establish the respective particular admitted and, if relevant, also place reliance on any admission of unsatisfactory professional conduct. 2. In relation to a number of the admissions made by the practitioner, it may be that the Tribunal is persuaded (to the Briginshaw standard) that the conduct proved and/or the nature of the breach is greater in scope than the limited terms of the admissions made. 3. Having considered the particulars admitted and those additional particulars proved by the Commission, and the extent of the respective breaches, the Tribunal will need to consider whether the particulars which have been established in relation to each of the Amended Complaints (Complaint 1 for Matter 1520087 and Complaints 1, 2 and 3 for Matter 1520162) ground findings of unsatisfactory professional conduct. As to the relevant Complaints (Complaint 2 for Matter 1520087 and Complaint 4 for Matter 1520162), the Tribunal will be obliged to consider whether the admitted and proved instances of unsatisfactory conduct are of a sufficiently serious nature to constitute professional misconduct. 4. The Tribunal must make findings for each particular (except those conceded in writing: section 165H National Law), and then determine whether those findings amount to proof on the balance of probabilities of the complaint: Lucire v Health Care Complaint Commission [2011] NSWCA 182 per Basten JA at [43]. Relevance of the opinions of the professional Members of the Tribunal 1. It is trite to observe that, subject to the legal directions of the Principal Member, all Members of the Tribunal have both the capacity and the obligation to determine the relevant facts and make findings according to the evidence. The Tribunal is entitled to act on all the evidence before it in making its findings. The Tribunal is not bound by the rules of evidence and is able to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013 (NSW) section 38(2). 2. As has been submitted for the Commission during the course of the hearing, there is a particular further role marked out for those Members of the Tribunal who share the same professional qualifications as the practitioner. Health Care Complaints Commission v Fraser (2014) NSWCATOD 29 is authority for the proposition that the professional members of a disciplinary body are entitled to use their own specialist experience in forming opinions about whether there has been a departure from the relevant standard of conduct. In Fraser, at [238], the Tribunal observed: "… we do not overlook the primary reason for the constitution of the Tribunal that includes two professional members of the same division as the practitioner the subject of the proceedings. That primary reason is so that the specialist members of the Tribunal can apply their knowledge and expertise to the evidence before them (see Kalil v Bray [1977] 1 NSWLR 356 per Street CJ at [261-262]; Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 at 224). However, prudence will dictate that where there is a "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal (Kalil v Bray per Moffitt P). Although the decisions to which we have referred were determined prior to the introduction of the National Law, we are satisfied that the principles espoused in those decisions remain apposite to proceedings under the National law." General observations concerning expert witnesses 1. As a result of the two experts considering further material made available to each other and the ability to confer in conclave before giving concurrent evidence on 1 March 2016, there is broad concurrence between the experts, which fact avoids the necessity for any detailed submissions on the first Complaint (Matter 1500087). Absent perhaps some departure from their views concerning particular 4 of Complaint 1 to Matter 1520087, given the oral evidence of the practitioner on that issue on 1 March 2016 (not available for consideration by the experts), the Tribunal can safely move on the joint opinions expressed by them. 2. Legal principles regarding professional disciplinary matters generally and relied on Pillai v Messiter (No 2) (1989) 16 NSLR 197, in which Kirby P said at 201: "The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed." 1. The Commission then made submissions in respect of both unsatisfactory professional conduct and professional misconduct. Of particular relevance, the Commission referred the Tribunal to the recent decision of this Tribunal in HCCC v Dr Della Bruna [2014] NSWCATOD 31 (the President of the Tribunal Justice Wright presiding) deals with proof of professional misconduct and the prospect of cancellation of registration. At [89] the Tribunal observed: "Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [267] it was held: "…However, it is clear that decision [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of sections 60-64 [which are substantially the same as sections 149 – 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: section 64(1) [section 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends on a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: section 62(2) [see section 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend on the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby, and Callinan JJ)." 1. Accordingly, it does not follow that the Tribunal must be of the view that cancellation is likely before professional misconduct will be established. 2. The submission of the Commission is that the Tribunal would be reasonably satisfied that the demonstrated multiple examples of unsatisfactory professional conduct are sufficiently serious individually and in combination to amount to professional misconduct. 3. The HCCC then addressed the complaints in matters number 1520087 and 1520162 and made the following submissions: 4. The Commission submits that each of the Complaints pressed in matter 1520087 has been established to the requisite standard of proof, although the original particulars of Complaint 1 have been attenuated. 5. As a result of the amendment of the Complaint in matter 1520087 particulars 1, 2, 3, 4(b), 5, 7 and 9(a) and (b) of the first complaint are no longer pressed by the Commission. The remaining particulars of the first complaint are pressed by the Commission. Two of these particulars – particulars 10 and 11 – are admitted by the practitioner. All of the remaining particulars of the first complaint in matter 1520087 are dealt with in turn below. 6. It is alleged in particular 4(a) that the practitioner placed a bone graft in a dead space in Patient A created by the practitioner in circumstances where there was no clinical indication for bone grafting in the surgical procedure undertaken on Patient A's lower third molar tooth. 7. The practitioner denied placing a bone graft and did not comment on whether it was clinically indicated in his statement (Exhibit A tabs 1 and 2). During oral evidence he admitted he placed an autogenous bone graft (Transcript 29/02/16 pages 37-38) and again in cross-examination: (Transcript 01/03/16 page 34). The experts came to the view that the graft was not necessary and was not indicated, but that it was not detrimental to patient A (Transcript 01/03/16 pages 10-12). 8. In particular 6 it was alleged that the practitioner provided information to Patient A approximately 15 minutes before finishing the surgical procedure on 8 May 2013 that "I have left the roots of the tooth and taken everything else out", which was incorrect. 9. In response to this particular the practitioner claimed he had advised Patient A that he had removed the part of the tooth that gave rise to the infection but that he had left the rest, which would need to be assessed at the next appointment. Both Patient A and her mother gave evidence that that did not occur (Transcript 29/02/16 pages 18-19, 28). It is submitted that their evidence should be accepted over that of the practitioner where it differs on this issue. 10. It is alleged in particular 8 that the practitioner advised Patient A in an email dated 24 May 2013 that "… a small fragment of tip of root of the left lower wisdom tooth was left in situ without complete removal", which was a gross misrepresentation of the surgical outcome. 11. In his statement the practitioner denied that his email was a gross misrepresentation of the surgical outcome. However, under cross-examination he admitted that it was (Transcript 01/03/16 page 31). 12. It is alleged in particular 10 that the practitioner failed to conduct an adequate investigation prior to the surgery performed on Patient B on 27 July 2011 by failing to obtain a cone-beam radiograph of Patient B's maxillary sinus to eliminate pathology within the sinus prior to performing a surgical procedure to introduce bone graft to the maxillary sinus floor (also referred to as a "sinus lift"), where a more thorough investigation was indicated. 13. The practitioner admitted this particular in his second statement (Exhibit A tab 3) and during cross-examination (Transcript 02/03/16 pages 5-11). 14. It is alleged in particular 11 that the practitioner performed a surgical procedure on Patient B on 27 July 2011 to introduce bone graft to the maxillary sinus floor (also referred to as a "sinus lift") where that surgical procedure was unnecessary for securing a dental implant in area 17 of Patient B's upper gum. The practitioner admitted this particular (Exhibit A tab 12 sub-tab 2 response). 15. In particular 12 it is alleged that the practitioner placed a dental implant in area 13 of Patient B's upper gum on 27 July 2011 in circumstances where: 1. The practitioner had previously identified "degenerative bony absorption alveolus" in area 13; 2. There was insufficient bone for support of the implant; and/or 3. The practitioner had failed to perform a bone graft to support the dental implant in area 13 of Patient B's upper gum prior to performing the implant. 1. The practitioner did not admit this particular but simply explained what he did. The Commission relies upon its expert report. The experts gave joint evidence following conclave (Transcript 01/03/16 pages 10-12) and concluded that the practitioner should have had a cone beam scan or CT scan before raising a flap but once he had raised the flap, it would be reasonable to place an implant if it was clinically indicated. 2. It is alleged in particular 13 that the practitioner failed to make and retain adequate clinical records in relation to: 1. A consultation with Patient B on 25 January 2012 and any reasons for a decision to order a cone beam radiograph; 2. Any reasons for removal of the dental implant from area 17 of Patient B's upper gum between 25 January 2012 and around 20 April 2012; 3. Two consultations with Patient B between 25 January 2012 and around 20 April 2012; and/or 4. Surgery performed on Patient B's upper gum on two occasions between 25 January 2012 and around 20 April 2012, and/or 5. Contrary to the "Guidelines on dental records" approved by the Dental Board of Australia pursuant to section 39 of the National Law. 1. The practitioner denies this particular. Both experts agreed that the records were inadequate. (Exhibit A tab 9, Exhibit 1 tabs 17-22, Transcript 01/03/16 pages 6-14). 2. It is alleged in particular 14 that the practitioner demonstrated a standard of knowledge, skill and judgement significantly below the standard reasonably expected of the practitioner by: 1. Removing the implant in area 17 of Patient B's upper gum in surgery performed between 25 January 2012 and around 20 April 2012 in circumstances where removal of the implant was not clinically indicated or required; and 2. Around two weeks later, operating for approximately two hours on Patient B's upper gum to remove the implant in area 17 of Patient B's upper gum, in circumstances where the practitioner had previously removed that implant around two weeks prior. 1. The expert witnesses stated in respect of particular 14(a) that if the implant failed, it was appropriate to remove the implant. The practitioner was unable to remember relevant details in respect of this particular. It is difficult to determine what happened as there were no clinical notes. (Exhibit A tab 9, Exhibit 1 tabs 17-22, Transcript 01/03/16 pages 6-14). 2. The practitioner denies particular 14(b). It is submitted that the Tribunal should accept Patient B's evidence over that of the practitioner. 3. The HCCC then made submissions in respect of matter 1520162 as follows: 4. The practitioner admitted that the claims (set out in Annexure A to the complaint) to MPL through HICAPS for services purportedly provided by him to himself were made under his MPL membership number (Exhibit B tabs 1 and 2; TS 02/03/16 pp 43). 5. The practitioner stated that these claims were made without his knowledge by members of his staff using his MPL card that was kept at his work premises and denied that he instructed his staff to make the claims: (Exhibit B tabs 1 and 2). 6. Aspects of the practitioner's evidence about these claims for treatment he purportedly provided to himself were implausible, contradictory, evasive and untruthful. 7. Any analysis of the claims would note, as a starting point, their demonstrable absurdity based on the evident impossibility of the practitioner to be able to perform the claimed procedures (e.g. comprehensive oral examination, insertion of implants, osteotomy, removal of calculus, full crowns) on himself. 8. The practitioner agreed that the financial proceeds of the claims would flow to an account he controlled: (Transcript 02/03/16 pp 42-43). He agreed that he was the beneficiary of the claims: (Transcript 02/03/16 02/03/16 p 55). He did not in his reply to the Complaint nominate which staff members made the claims: (Exhibit B tabs 1 and 2). 9. The first time he nominated a staff member – named Grace Kim or Grace Jung – as the culpable staff member, and Yen Gup as a manager who was unaware of the claims – was under cross-examination: (Transcript 02/03/16 pp 46-51). This evidence was vague and unpersuasive. He agreed that he did not supply those names to the police, MPL or the Commission and stated that neither staff member was terminated as a result of the making of the claims: (Transcript 02/03/16 pp 52-53). 10. It is submitted that this explanation for the making of the claims is demonstrably untruthful and should be rejected by the Tribunal. Why a staff member would make such plainly false claims where the benefit flowed to the practitioner was never adequately explained. The only reasonably available conclusion on the evidence is that the practitioner made the claims himself in the brazen hope that their falsity would remain undetected, and that he made them for financial gain as a result of financial pressure. 11. The Commission contends that the Tribunal would be comfortably satisfied that the particulars of Complaint 1 in matter 1520162 have been established and, therefore, that the practitioner is guilty of unsatisfactory professional conduct. Complaint 2 Matter 1520162 1. In his reply to the Complaint, the practitioner blamed the absence of some medical records for the nominated patients in this Complaint on a shift from a paper-based to an electronic record-keeping system: (Exhibit B tabs 1 and 2). 2. This evidence was contradicted by aspects of the available records which showed partial records for some days when one might expect – if the practitioner's evidence were truthful – that no such partial records for a given day would be available: (Transcript 02/03/16 pp 56-60). 3. In any event, during the adjournment between the March and September segments of this hearing the practitioner admitted many of the entries in RED in Annexure E to the Complaint – being entries that comprise claims made through HICAPS for which there is no corresponding record in the dental notes. Those entries in Annexure E in Red and marked with an asterisk comprised the entries in dispute between the parties at the recommencement of the evidence on 12 September 2016. However, during cross-examination on that date the practitioner admitted that there were no entries in the medical records corresponding with some of the asterisked entries in Schedule E. 4. It is submitted that the extent and number of entries in Schedule E which are admitted by the practitioner to comprise claims through HICAPS for which there is no corresponding record is sufficient to support the conclusion that the Tribunal would be comfortably satisfied that the particulars of Complaint 2 in Matter 1520162 have been established to a sufficient degree to support the conclusion that the practitioner is guilty of unsatisfactory professional conduct. Complaint 3 Matter 1520162 1. The uncontested evidence from Kwang Min Park of MDL is that the invoices in Annexure D are false: (Exhibit 4 tabs 31-34). 2. The practitioner in his reply to this Complaint admitted that the MDL invoices particularized for this complaint in Annexure D and provided to MPL were false. He stated that some time after late October 2013 he mentioned to his staff that MPL was conducting investigations and they admitted to him that they had falsified invoices where they could not find the original invoices and sent the false invoices to MPL. He denied having any knowledge prior to this that falsified invoices were sent to MPL: (Exhibit B tabs 1 and 2). 3. The practitioner did not nominate which staff member or members falsified the invoices in his reply: (Exhibit B tabs 1 and 2). 4. When pressed about this in cross-examination on 13 September 2016 the practitioner gave implausible, contradictory, evasive and, it is submitted, untruthful evidence. He claimed that his accountant, named "Shelly", falsified the invoices in response to a tax audit that occurred some time late in 2013 – as late as December of that year. This was the first time the practitioner nominated this person as the falsifier of the invoices. This evidence was contradicted by the evidence that the MDL invoices were provided to MPL around 30 September 2013: (Exhibit 4 tabs 2, 11, 13). The practitioner earlier in his cross-examination agreed with this timing. 5. The practitioner gave no cogent explanation as to why his accountant or any other staff member would choose to falsify MDL tax invoices rather than approaching the prosthetist or prosthetists who had provided the relevant services and obtaining from them copies of the legitimate tax invoices that evidenced the services. This explanation for the provision of the invoices was highly implausible. 6. The practitioner's evidence that he would not keep copies of such tax invoices with his patient's clinical records was unconvincing. 7. It is evident that the practitioner's record-keeping was incomplete, sloppy and somewhat chaotic. The practitioner admitted as much under cross-examination. 8. It is submitted that this explanation for the submission of the false tax invoices to MPL is demonstrably untruthful and should be rejected by the Tribunal. Why a staff member or accountant would of their own volition falsify and submit demonstrably false tax invoices was never adequately explained. The only reasonable available conclusion on the evidence is that the practitioner falsified or ordered another or others to falsify the tax invoices and provided them to MPL in the brazen hope that their falsity would remain undetected and to cover defecits in the medical records for the patients to whom the invoices purported to relate. 9. The Commission contends that the Tribunal would be comfortably satisfied that the particulars of Complaint 2 in matter 1520162 have been established and, therefore, that the practitioner is guilty of unsatisfactory professional conduct. 10. In essence, therefore, the HCCC contended that the Tribunal would be comfortably satisfied that the proved individual and collective instances of unsatisfactory professional conduct are sufficiently serious to amount to professional misconduct in the case of each of matters 1520087 and 1520162. 11. In contending that the appropriate orders for the Tribunal to make are cancellation of the Respondent's license to practice as a dentist, the HCCC made the following points: 12. The principal sections that provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law, in relation to proven claims against registered health practitioners, are sections 149A, 149B and 149C. 13. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public (see section 3A of the National Law). The Tribunal should also consider current unfitness, rather than limiting consideration to permanent unfitnesses, in considering deregistration (Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [102]). 14. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection (see Lee v HCCC [2012] NSWCA 80 at [34]). 15. In NSW Bar Association v Meakes [2006] NSWCA 340 at [114] Basten JA listed the following important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: 1. The order reminds other members of the profession of the public interest in the maintenance of high professional standards. 2. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. 3. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession 1. Basten JA also stated in Meakes (at [101]) that "high standards of honesty and integrity [are] required in accordance with general law principles governing professional responsibility". 2. Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation (see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). 3. The Commission's general contention is that the practitioner has demonstrated, apart from a lack of candour, no real insight into his failings or any evidence of rehabilitation from his lack of understanding of and proper compliance with the regulatory regime designed to both protect the public and maintain the high standards of the profession of dentistry. 4. No suite of protective orders short of cancellation would properly address the concerns raised by this practitioner's failings, as proved. 5. In HCCC v Dawes [2015] NSWCATOD 8 the Tribunal held that "reasons for the Tribunal's view that cancellation and disqualification is the only appropriate course includes the objective seriousness of the conduct, the Respondent's lack of insight into his conduct, his compulsion to continue with the conduct despite knowing it was contrary to ethical (and moral) standards, his deception and lack of care, his failure to engage in treatment, the impairment suffered by the Respondent and his lack of competence". 6. In HCCC v Fraser (No 2) [2014] NSWCATOD 84 the Tribunal found that the practitioner's untruthful evidence to the Tribunal, which revealed a pattern of dishonesty and lack of candour, impacted adversely on the weight that could be given to the practitioner's statements of remorse and the weight that could be given to her assertion that she would not offend again (at [108]-[110]). 7. In respect of costs, the HCCC contended that it was appropriate to make a costs order against the Respondent on the basis that costs should follow the outcome. Respondent's Submissions 1. In respect of the legal analysis, the Respondent made no submissions as the Respondent pointed out that the submissions on the law made by the HCCC, and the legal position in general was well known to the Tribunal. 2. The Respondent made the following submissions in respect of the evidence in both matters. 3. In respect of application 1520087, the Respondent made submissions only in respect of those matters which were still in contention between the HCCC and the Respondent as follows: Particular 4 1. Following the conclusion of the evidence given on 29 February 2016 by Patient A, her mother and Patient B, Dr Sun gave evidence limited to this particular. He explained that during the course of attempting unsuccessfully to extract tooth 38 from Patient A's mouth he harvested autogenous bone. His original intention was to fill the anticipated large cavity to be created by the removal of tooth 38 with artificial bone graft material. Given he was unable to completely extract tooth 38 he decided not to use the synethic material which might cause infection and necrosis of bony structures. Instead he placed the harvested autogenous bone into the buccal plate (Transcript 29/2/16 p 37:49-p.38:26). 2. The 2 expert witnesses, Dr Aquilina and Dr Carter gave concurrent evidence at the commencement of the hearing on 1 March 2016. They had been provided by the respective legal representatives of the parties with an indication of the substance of the evidence given by Dr Sun as set out in paragraph 1 above. 3. The 2 experts agreed that whilst what Dr Sun did was probably unnecessary, it was unlikely to have caused Patient A any harm. They agreed his placing of the autogenous bone graft was not conduct significantly below the standard expected of a practitioner of a similar level of training or experience (Transcript 01/03/16 p.9:26-51). 4. Consequently the Tribunal would not find the conduct alleged in Particular 4 to amount to unsatisfactory professional conduct. Particular 6 1. In order to find this and other contested Particulars proven the Tribunal must be reasonably satisfied that the facts alleged have been established on the balance of probabilities. The Tribunal should bear in mind the oft-quoted passage from the decision of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references" 1. In cross-examination Dr Sun conceded that at some point during the consultation with Patient A he probably said to her words to the effect of "I have left the roots of the tooth". 2. The factual matter set out in particular 6 is alleged to be the words used about 15 minutes before he ceased the procedure. Dr Sun denies using the words attributed to him in particular 6. Those words are a modification of what is asserted by Patient A in paragraph 14 of her statement dated 7 January 2014 (Exhibit 1, Tab 4) to have been the words he used. 3. The focus of the Tribunal's consideration of this particular should not be on whether or not Dr Sun said "I have left the roots of the tooth", which he conceded he probably did say and which was on any view a true and correct statement. 4. Rather the focus should be on what is asserted to have been said by him that was incorrect, that is the words "I have taken everything else out". 5. In his statement (Exhibit A, Tab 2) Dr Sun denied using those words. He maintained that denial in cross-examination. 6. The following matters support Dr Sun's position: 1. Patient A's first account of the events being her undated 3 page letter (Exhibit 1, Tab 58) forwarded to Dr Sun under cover of an email dated 20 May 2013 (Exhibit 1, Tab 59). 1. That letter was written no more than 12 days after the procedure. Nowhere in that letter does Patient A say that Dr Sun used the words "I have taken everything else out". 2. At the foot of page 1 of the letter, Patient A says Dr Sun said to her and her mother during the last 10 or 15 minutes to the following effect: "You have left only roots in my tooth as it was too close to the nerve and did not want to risk the nerve damage". 1. Patient A's initial complaint to the Commission received 26 June 2013 (Exhibit 1 Tab 2) 1. That undated document was written no later than 7 weeks after the procedure which was performed on 8 May 2013. 2. Again, Patient A does not claim Dr Sun used the words "I have taken everything else out". 3. What she asserted appears in the third paragraph on page 1 and is in the following terms: "We (Mum and I) were later told by him whilst he was stitching up that he had to leave the tip of the root in as the position of the tooth was too close to the alveolar nerve and if he had removed the nerve, it would have potentially caused nerve damage." 1. Statement of Patient A's mother (Exhibit 1 Tab 5) 1. In paragraph 14, Patient A's mother says that what she recalls Dr Sun as having said was" "I have left the roots of the tooth in as I didn't want to risk damaging the nerve". 1. Mrs Zhou was the only other person present at the consultation in addition to Dr Sun and Patient A. She does not say Dr Sun said the contested words alleged in Particular 6 namely "I have taken everything else out". 1. The position therefore is that in accounts by Patient A given much more contemporaneously to the date of performance of the procedure, she never asserted Dr Sun said the words "I have taken everything else out". 2. The only other witness, Patient A's mother, does not say Dr Sun used those words. 3. The words only appear in any account of the events in Patient A's statement of 8 January 2014, made some 8 months after the date of the procedure. 4. Having regard to those matters and in the face of Dr Sun's denial the Tribunal will not be reasonably satisfied that Dr Sun used the words attributed to him in particular 6, namely "I have taken everything else out". 5. When the discrepancies in the 3 accounts of the consultation given by Patient A were put to her in cross-examination she was adamant Dr Sun said he had left in the roots of the tooth. That is not in dispute (T 29/2/16 p.19:25-35). 6. When it was put to her that Dr Sun did not use the words ascribed to him by Patient A in paragraph 14 of her statement she said: "Q: It was not a well worded question. I want to suggest to you that Dr Sun didn't say the words that you set out in paragraph 14 of your statement being the words he used? A: Well, it's – it's words to the effect, so it's something that I've – from my understanding - - Q: That's what you understood him to be suggesting? A: Well, yeah, that's what he said, but not – not exactly word for word, but that's the context he said it." 1. The Tribunal will not be reasonably satisfied Dr Sun used the words "I have taken everything else out" and will not find this particular proven. Particulars 8 and 9 1. In cross-examination Dr Sun agreed that he accepted the criticisms made by Dr Aquilina and Dr Carter in respect of his emails to Patient A dated 24 and 31 May 2013. Consequently the particulars are proven. Dr Aquilina in his first report (Exhibit A Tab 9 pp.3-4) characterised the conduct as errors of judgement. 2. In relation to each email Dr Sun demonstrated insight into the appropriateness of his responses (see re 24/5/13 email T1/3/16 p.30-32-p.31:50; re 31/5/13 email p.32:36-p.33:2). Patient B Particulars 10 and 11 1. Prior to commencement of the hearing Dr Sun admitted particulars 10 and 11. In cross-examination he explained why he changed his position after reading the report by Dr Aquilina (T 2/3/16 p.9-27-p.10:6; p.11:46-p.12:3). Whilst his explanation was very technical it appeared that at least Dr Lang understood that explanation. In any event Dr Sun accepts that he should have first obtained a cone beam radiograph before proceeding to treat Patient B. Particulars 12 and 14 (a) 1. Following the concurrent evidence of Dr Carter and Dr Aquilina there is no expert evidence to support these particulars and the Tribunal will find they have not been proven (see re particular 12 T 1/3/16 p.10:1-20; re particular 14(a) p.10:22-40). Particular 13 1. As to particular 13 Dr Carter is not specifically crticial of the adequacy of the clinical record made by Dr Sun on 25 January 2012. He queried why Dr Sun had made no note as to why he ordered a cone beam radiograph on that day (Exhibit 1, Tab 18 p.2). 2. It is clear from Dr Sun's clinical records (Exhibit 1 Tab 65) that he did not order the radiograph on that day as it was performed on 18 January, one week prior to the consultation. Rather the clinical records suggest that when Dr Sun placed the 2 implants on 29 July 2011 he gave the patient a referral for performance of the 'CT Cone Beam' with a plan to review the patient 6 months later which in fact occurred. 3. Dr Aquilina in his report simply says that he concurred with particular 13. Both he and Dr Carter are for obvious reasons critical of the fact there are no notes available to evidence precisely what treatment Dr Sun provided to the patient after 25 January 2012. Dr Aquilina however provides no reasons for his conclusion that the record of 25 January 2012 was deficient. 4. Dr Sun's position is that in accordance with his usual practice he would have made notes but he has not been able to find them. The Tribunal would accept that evidence that he did in fact make notes. 5. The Tribunal would however find particular 13 proven insofar as it relates to Dr Sun's failure to retain clinical records as set out in sub-paragraphs (b); (c) and (d). 6. The Tribunal would not be reasonably satisfied that sub-paragraph (a) has been proven. Particular 14(b) 1. The determination of the factual issue in this sub-paragraph is made difficult by the absence of clinical notes. Patient B has given evidence that the events occurred. Dr Sun cannot recall the events. As was put to him in cross-examination, it is unlikely he would not remember the events if they in fact occurred. On one view his lack of recollection is consistent with the events not having occurred. 2. The events described by Patient B are not consistent with the note made by the treating dentist Dr Kim (Exhibit 1 Tab 64) on 20 April 2012, some 2 months after when the events were alleged by Patient B to have occurred. That note states the 17 implant had been replaced, the sutures had been removed and the area appeared to be healing well. Such a note could only have been made by Dr Kim after looking at the patient's mouth. 3. Dr Sun was questioned by Dr Lang about Dr Kim's note. Whilst there seemed to be a degree of confusion in Dr Sun's mind he eventually said there would have been enough time between 25 January and 20 April to have replaced the 17 implant and for Dr Kim to have observed it appearing to be healing well (T 2/3/16 p.27:39-48). 4. Principal Member Shub referred to other evidence which tended to contradict what is written by Dr Kim in her notes. That is the imaging report of Strathfield Medical Imaging dated 6 June 2012 which states that as at that date there was no implant at position 17 (T 2/3/16 p.30:4-13). 5. Viewed objectively the events described by Patient B would be regarded by the Tribunal is falling within the category referred to by Dixon J in Briginshaw as "… the inherent unlikelihood of an occurrence of a given description…" which he said was a "…consideration which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.". 6. The Tribunal therefore will not be reasonably satisfied that particular 14 (b) has been proven given: 1. Dr Sun's evidence that as at 25 January 2012 all appeared well and there were no signs of infection suggesting he would need to see Patient B in 2 weeks time in order to remove the implant (T 2/3/16 p.33:5-25); 2. Dr Sun's lack of any recollection of the events having occurred; 3. The inherent unlikelihood of those events having occurred; 4. The 20 April 2012 note by Dr Kim which is contrary to the events having occurred; and 5. The contents of the imaging report dated 6 June 2012. 1. In respect of application number 1520162, the Respondent made the following submissions: Amended Complaint One 1. Dr Sun has admitted the 2 particulars. He says that claims were made without his knowledge by staff members using his own membership number. The Tribunal would accept his explanation as to how the claims came to be made. It is understandable but not justifiable that staff members made the claims when cash flow was tight (see Dr Sun's evidence T 2/3/16 P.55:29-33). 2. Dr Sun's explanation is not some recent invention. He advanced the same explanation to Medibank Private in his letter to it dated 28 October 2013 (Exhibit 4 Tab 11). In its reply dated 10 February 2014 (Exhibit 4 Tab 14) Medibank Private indicated its intentions to refer the matter to AHPRA. From the beginning of the investigation of the matter by the relevant complaint authorities Dr Sun's explanation as to what occurred was available. Further Amended Complaint Two 1. In his reply Dr Sun admitted the paragraphs appearing under the heading 'Background to Complaint Two' save for paragraph E. In relation to paragraph E he denied that he kept no dentals in respect of certain services identified now in Annexure E to the Complaint. 2. His position is that he made records at the time he rendered the services however when he was asked to supply Medibank Private with copies of those records he was unable to locate all of them. It is clear that the records he provided are incomplete when viewed against Annexure E to the Complaint. 3. In evidence Dr Sun was adamant that he made contemporaneous notes of his treatment of patients (T 2/3/16 p.59:40-p.60:2). 4. There is no doubt however that the records produced by Dr Sun to Medibank Private are not complete. It seems unlikely that a practitioner would have a practice of only making clinical notes on some occasions but not others. 5. The HCCC does not seek to make a case that the services claimed for were in fact not rendered. It is not suggested that that is an explanation for the absence of notes of treatment. 6. In his statement Dr Sun said he believed that in 2012, in the process of attempting to transfer paper-based records to electronic records, some of the paper-based records were misplaced. 7. Accordingly for the reasons set out above the Tribunal would not be reasonably satisfied that Dr Sun failed to make contemporaneous notes of his treatment of patients A – O in the period December 2011 to March 2013. Particulars of Amended Complaint Two Dental Records 1. The Tribunal would not be reasonably satisfied that particulars 1 – 3 inclusive are made out. 2. The Tribunal would be reasonably satisfied that particular 4 is made out. Amended Complaint Three Min Dental Laborary ('MDL') Invoices 1. That the relevant tax invoices provided to Medibank Private by Dr Sun are in fact false is a matter admitted by Dr Sun. He says that the tax invoices were kept by his practice's accountant, not with the relevant patient's clinical records. That is not an unreasonable position given the tax invoices concern deductible expenses for the practice. 2. There is no suggestion the patients concerned did not receive mouth guards which had been prepared by dental prosthetists at Dr Sun's request. 3. Dr Sun said he requested his staff to locate the clinical notes and relevant tax invoices for Patients A – O when requested by Medibank Private in approximately August 2013. Eventually he was given a bundle of documents representing the records which he said in evidence he quickly checked. 4. On a quick check the MDL tax invoices would not appear to be anything other than legitimate. 5. The Tribunal would accept Dr Sun when he says he did not know at the time the documents were submitted to Medibank Private in September 2013 that the MDL tax invoices had been falsified. There was no benefit to him to be gained by such deception. 6. If he had been told that the tax invoices could not be located, it is likely Dr Sun would have indicated that to Medibank Private along with an intention to obtain copies from the relevant prosthetist, if that was possible. If Medibank Private had genuine concerns the services had not been rendered, it was open to it to follow that up with the patients themselves. 7. Notwithstanding the above, Dr Sun accepted in evidence that ultimately it was his responsibility to ensure Medibank Private was provided with genuine tax invoices. He was asked why he held that view and said words to the following effect: "I have a duty to submit real tax invoices. That's it. Full stop." 1. Dr Sun was adamant in his denial of the suggestions that he knew the tax invoices could not be found; was involved in their fabricating and knowingly supplied them to Medibank Private. Particulars of Amended Complaint Three Particulars 1 & 2 1. Particulars 1 and 2 assert as a fact that between December 2011 and January 2013 Dr Sun claimed benefits from Medibank Private on the basis of the falsified invoices from MDL. 2. That is not so. There is no evidence the claims for the relevant services needed to be supported by a corresponding tax invoice. No officer of Medibank Private said in any document in evidence that was the required procedure. 3. The only relevant evidence is from Dr Sun that the tax invoices were created by his accountant sometime after the August 2013 request from Medibank Private and the end of September when copies were supplied. 4. Consequently, particulars 1 and 2 are not established factually. Particular 3 1. The Tribunal will not be reasonably satisfied this particular is made out. The key issue is whether or not Dr Sun, at the time he submitted copies of the MDL tax invoices to Medibank Private in September 2013, "… knew or ought reasonably to have known…" that the documents had been falsified. Unsatisfactory Professional Conduct/ Professional Misconduct 1. Dr Sun concedes that the following particulars of the 2 applications are established and constitute unsatisfactory professional conduct on his part: Application No. 1520087 – Patients A & B Patient A Particulars 8 and 9 – emails to Patient A dated 24 and 31 May 2013. Patient B Particular 10 – failing to obtain a cone beam radiograph prior to performing surgery on 27 July 2011. Particular 11 – performing an unnecessary bone graft on 27 July 2011. Particular 13(b), (c) and (d) – failing to retain adequate clinical records in relation to treatment performed after 25.1.12. Application No. 1520162 – Medibank Private Further Amended Complaint One Particulars 1 and 2 – claims re services provided to himself Further Amended Complaint Two Particular 4 – inability to promptly retrieve records when requested by Medibank Private 1. Finally, the Respondent made submissions that while it is open to the Tribunal to characterise the conduct of the Respondent as professional misconduct that this is not conceded by the Respondent. The Respondent submitted that the more important issue is that of protective orders. In essence, the Respondent submitted that the complaints regarding Patients A and B really come down to two inappropriate emails to Patient A and the failure to order a cone beam radiograph of Patient B prior to performing surgery on 27 July 2011. The Respondent submitted the lack of records of treatment rendered to Patient B after 25 January 2012 is consistent with the lack of records for Patients A – O in the Medibank Private complaint. As the Respondent submitted that they were all explicable on the basis of the misplacing of records during the process of attempting to transfer written records to electronic records. 2. Finally, the Respondent submitted that the balance of the matters in the Medibank Private complaint concerns actions taken by Dr Sun's staff. First is the charging of non-existent procedures to HICAPS using Dr Sun's Medibank Private card, and secondly, the falsifying of the MDL tax invoices. The Respondent submitted that if the Tribunal accepts Dr Sun when he says he was not a party to those actions, it will take a much more benign view of his conduct as the person nonetheless ultimately responsible. Submissions regarding Orders 1. The HCCC and the Respondent were afforded an opportunity to make submissions to the Tribunal in respect of protective orders. In that regard, the HCCC made the following submissions: 2. The Commission does not support the imposition of conditions in this matter. The Commission has submitted that cancellation of the practitioner's registration is the appropriate order. These conditions are provided to assist the Tribunal in the event that it determines that practice conditions are suitable. Substantive Orders 1. The practitioner is subject to the conditions on his registration as set out in the Schedule headed 'Practice Conditions'. 2. The practitioner shall not make application for variation of the Practice Conditions for a period of 2 years from the date he commences supervised practice in accordance with Practice Condition 4. 3. The appropriate review body is the Dental Council of NSW. Practice Conditions 1. The practitioner is to practice only in a group practice approved by the Council where there are at least 2 other registered dental practitioners (excluding the practitioner). This is a critical compliance condition. 2. The practitioner is not to undertake solo dental practice. This is a critical compliance condition. 3. The practitioner is to submit to an audit of his practice, by a random selection of his records by a person or persons nominated by the Council. 1. The audit is to occur within 6 months of recommencing practice and thereafter as determined by the Council. 2. The practitioner is to authorise the auditor(s) to provide the Council with a report on their findings. 1. The practitioner is to practice under Category A supervision in accordance with the Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body by a supervisor as approved by the Council. 1. The practitioner is not to practise until a supervisor has been approved by the Council. This is a critical compliance condition; 2. At each review meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on ethics, clinical performance and clinical record review and to review a number of patient records. 1. The practitioner is to nominate a registered experienced dentist to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Position Statement and as subsequently determined by the appropriate review body. 2. The practitioner is to meet with the mentor on a monthly basis in person for at least two hours (or at the frequency and length of time to be determined by the Council), and at each meeting with the mentor, the discussion is to include, but not limited to ethics, clinical performance and record keeping. 3. The practitioner must complete course(s) relating to ethics and record keeping approved by the Council and any other educational courses deemed appropriate by the Council within 12 months of recommencing practice. 1. Within 3 months of recommencing practice the practitioner must provide evidence to the Council of his enrolment in the abovementioned course(s). 2. Within 1 month of completing the abovementioned course(s), the practitioner is to provide to the Council documentary evidence that he has satisfactorily completed the courses. 1. The practitioner is to bear responsibility for any costs incurred in meeting these conditions. The Respondent's Submissions 1. In contrast, the Respondent made the following submissions: 2. The Respondent refers to his written submissions dated 14 September 2016, particularly paragraphs 65 – 68 inclusive. In short the Respondent's submission is that the matters which the Tribunal is likely to find proven relate less to his skill as a surgeon/dentist but more to administrative matters being the retention of clinical notes and inappropriate billing by staff using the Respondent's Medibank Private membership number. 3. If the Tribunal accepts the Respondent's submissions the following protective orders would be appropriate: 1. A reprimand; 2. (Proposed HCCC Practice Condition 5) – mentor; 3. (Proposed HCCC Practice Condition 6 deleting reference to any Ethics course) – record-keeping course; 4. (Proposed HCCC Practice Condition 3) – medical records audit; 5. (Proposed HCCC Practice Condition 7); and 6. (Proposed HCCC Substantive Order 3) – Dental Council to be appropriate review body. 1. Even if the Tribunal might find proven, contrary to the Respondent's submissions, additional Particulars which are not admitted by him, the Tribunal would not impose any conditions upon the Respondent's registration any more onerous than those set out above. 2. The HCCC proposes such additional conditions. Proposed Substantive Order 2 is that the Respondent not apply to vary the Practice Conditions for a period of 2 years from the date he commences supervised practice. There should be no limit set by the Tribunal upon when the Respondent might make such an application. Assume for example that after a period of 12 months the mentor and/or supervisor write to the Dental Council to the effect that there is no further benefit to be gained by the Respondent by further sessions having regard to progress made during that period. What is the public interest in requiring the Respondent to nonetheless undergo a further 12 months of mentorship/supervision? That seems the more so given the focus of the proceedings before the Tribunal was not really any serious defect in the Respondent's technical skills as a surgeon/dentist. 3. Proposed Practice Conditions 1 and 2 require the Respondent to practice only in a group practice where there are at least 2 other registered dental practitioners. Given the lack of serious concern about the Respondent's technical skills it is difficult to see how such conditions are warranted. In relation to the administrative side of the practice of dentistry the Tribunal would be satisfied that the Respondent has well and truly learned his lesson about the importance of maintaining records of treatment and supervising clerical staff more closely. 4. Proposed Practice Condition 4 requires the Respondent be subject to Category A supervision. Again, given the lack of concern about the Respondent's technical skills it is difficult to see why there is a need for direct supervision of the Respondent in the workplace. The Respondent says there is no need for supervision of him but if the Tribunal takes a contrary view the public interest would be protected by Category C supervision. Tribunal Considerations 1. The HCCC seeks substantive orders 1, 2 and 3. While the Respondent believes that a two year period should not be provided, as it is possible that the Respondent might be in a position to be considered "rehabilitated" within a lesser period, the Tribunal is reasonably satisfied that it is necessary to provide a two year review period to ensure that any changes in the Respondent's behaviour are permanent and not short-term. In addition, the Tribunal believes that the substantive orders should contain a fourth order, namely that the costs of the application brought by the HCCC be borne by the Respondent. In oral submissions it was submitted that costs should follow the result and the Tribunal accepts that. 2. Turning then to the practice conditions, the HCCC seeks an order that the practitioner is to practice only in a group practice and not to undertake solo dental practice. The Tribunal has considered the evidence of the experts and does not believe that their evidence supports a finding that the Respondent should not be entitled to practice whether as a solo practitioner or in a group practice. While the experts indicated that they would not have done what the practitioner had done, they stated after a conclave that his treatment was not unreasonable and that it did not fall significantly short of what would be expected of a practitioner of his level of experience. Accordingly, the Tribunal could not support that order. 3. The HCCC sought an order that the Respondent submit to an audit of his practice, with the first audit to occur within six months of recommencing practice and thereafter as determined by the Council. The Tribunal is reasonably comfortable with the practice condition 3, save that having regard to the very significant importance for the protection of the public, of keeping proper clinical notes, the first audit should occur within 3 months of recommencing practice and thereafter six monthly for the period until the practitioner may apply for variation of the orders and have the orders varied. 4. In respect of supervision, the Tribunal believes that it should not be category A but it should be category C. In this regard the Tribunal recognises that category A supervision is generally required when a practitioner needs to be supervised in his or her clinical practice which does not appear to be the case here. 5. In respect of a mentor, the HCCC and the Respondent agreed that a mentor should be appointed to the practitioner and the terms proposed by the HCCC appear to be reasonable. 6. The HCCC has sought an order that the practitioner must attend a course related to ethics and record keeping and while the Respondent believes that the reference to ethics should be deleted, the Tribunal is of the view that it is difficult to separate out issues of appropriate ethical behaviour and record keeping, and accordingly is comfortably satisfied that an order in terms of submission 6 of the HCCC conditions should be approved. 7. In respect of the costs associated with the conditions being enforced, the practitioner should bear the responsibility for any such costs incurred in meeting these conditions. Decision 1. The Tribunal considered all of the evidence by the HCCC and while the witnesses of fact might have been conveying what they recall from that time, there were inconsistencies between, for example, Patient A and her mother. There is a lack of probability in the evidence of Patient B, regarding the alleged 2 hour operative treatment to remove an already removed implant. 2. The Tribunal also had regard to the evidence of the two expert witnesses who largely were not overly critical of the Respondent except in regard to the retention of clinical records and the emails to Patient A. 3. The Tribunal also had regard to the evidence given by the Respondent and the impression which they gained from his evidence. The Respondent was giving evidence by video conference from Silverwater Prison. This carried with it its own problems in that the Respondent was sitting in a room on his own, having to sift through documents during evidence and cross-examination, and although the Respondent on numerous occasions resorted to lengthy explanations rather than being responsive to questions put to him, the Tribunal did not form a negative view of the Respondent in all the circumstances. 4. The Tribunal found it necessary to consider each of the particulars of the complaints in both sets of matters and to deal with those individually. 5. Accordingly, the Tribunal found in respect of 1520087, the following: 6. In respect of particular 4(a), the Tribunal found that this was not proven. Both experts agreed that it was probably not necessary but when asked, Dr Aquilina stated that it was not unreasonable to place a bone graft in that area and Dr Carter agreed. 7. In respect of particular 6, the Tribunal heard the evidence given by Patient A and Patient A's mother, which was contradicted by the evidence given by the Respondent. Regardless of whose recollection of what was said was more accurate, of concern to the Tribunal was the fact that in an email dated 24 May 2013, when the Respondent would have been in a position to confirm his version of the story that he had told Patient A that he left a piece of the tooth in situ, his email does not reflect that and states "a small fragment of tip of root of the left lower wisdom tooth was left in situ without complete removal". This does call into question his memory of what was said on that occasion and tends to support part of Patient A's evidence. 8. In particular 9, the complaint was found proven and accepted by the Respondent who stated that he should not have written that email and regretted having done so. He stated that he should have responded more professionally. Accordingly, this particular was found proven. 9. In respect of Patient B, particular 10, the experts are agreed that a cone beam radiograph should have been done and the Respondent, having initially denied that allegation, conceded that on reflection he should have requisitioned a cone beam radiograph. The experts are however agreed that the clinical decision made by the Respondent was a reasonable basis for proceeding with the implant in the circumstances. 10. In respect of particular 13, although the experts agreed that there were clinical notes for Patient B on the 25th of January 2012, they believed that they did not sufficiently disclose his treatment plan and the need for a cone beam radiograph. In respect of the balance of the treatment, the experts agreed that the Respondent failed to keep records of the subsequent treatment of Patient B which the Respondent conceded. 11. In respect of Particular 14, where it was alleged that the Respondent demonstrated a standard of knowledge, skill and judgement significantly below the standard reasonably expected of the practitioner by: 1. Removing the implant in area 17 of Patient B's upper gum in surgery performed between 25 January and around 20 April in circumstances where removal of the implant was not clinically indicated; and 2. Around two weeks later, operating for approximately two hours on Patient B's upper gum to remove the implant in area 17 of Patient B's upper gum in circumstances where the practitioner had removed that implant around two weeks prior. 1. The experts were agreed that based on the information that was available to them, they could not find that the implant should not have been removed in light of the fact that the Respondent determined to remove that based on his clinical examination. 2. In respect of particular 14(b), despite the evidence of Patient B, the Tribunal found that there was insufficient evidence available to it to determine that the Respondent spent two hours operating to remove an implant which he had removed two weeks before. The Tribunal could not be reasonably satisfied that this occured as alleged, given that it is so unlikely that a dentist of any ability would spend two hours searching for an implant which didn't exist. The Respondent in evidence said that if he was looking for an implant and could not locate it he would have done an x-ray and found it in a matter of minutes. The Tribunal accepted this proposition. 3. In respect of matter 1520162, the Tribunal considered each of the particulars provided in respect of this matter. In respect of Complaint One, particulars 1 and 2, the practitioner admitted the correctness of particulars 1 and 2, and advised the Tribunal that these claims were made without his knowledge or consent and that he had entered into an arrangement with Medibank to refund the amounts paid in respect of claims on member number 30589844. 4. The Tribunal was reasonably satisfied that the practitioner was truthful in this regard and in particular concluded that it would be absurd to imagine that a dental practitioner of any skill would process claims on his own member number in respect of work that he would know would have been impossible for him to have carried out on himself. 5. In respect of Complaint Two, the Tribunal had before it Exhibit E, which contained a series of agreed and a lesser number of disputed items alleging that no clinical notes were provided in respect of those claims. Accordingly, the Tribunal found that particular proven. 6. In respect of particulars of claim three, the Respondent admitted paragraphs 1(a) and (b) but denied paragraph (c). In respect of paragraph (c) his evidence was to the effect that he only became aware of the falsified tax invoices after commencement of the Medibank investigation, and there was no evidence to show that he knew that they were falsified prior thereto. They were sent to Medibank for their investigation. The HCCC submitted that the Tribunal should find that the Respondent did know and intentionally submitted falsified claims. 7. The Respondent did try to explain that the documents could have been falsified by his accountant to cover himself in respect of an ATO investigation which was being conducted at that time. Based on the evidence before it, the Tribunal was unable to come to a conclusion that he knew or should have known that they were falsified. 8. In respect of particulars 2 and 3, the Tribunal came to the same conclusion. 9. The Tribunal had to a consider a submission made by the HCCC as follows: "It is submitted that this explanation for the making of the claim is demonstrably untruthful and should be rejected by the Tribunal. Why a staff member would make such plainly false claims where the benefit flowed to the practitioner was never adequately explained. The only reasonably available conclusion on the evidence is that the practitioner made the claim himself in the brazen hope that their falsity would remain undetected and that he made them for financial gain as a result of financial pressure." 1. Such an allegation is tantamount to an allegation of fraud, however, in the complaint brought by the HCCC, no allegation of fraud was made. The matter of Mijatovich v Legal Practitioners Complaints Committee (2008) WA SCA 115 is relevant where Justices Martin, Bass and Beech stated at paragraph 58: "If the prosecutor proposes to submit, or the Tribunal before whom the hearing is conducted proposes to find that the defendant acted fraudulently or dishonestly then the allegation of fraud or dishonesty and proper particulars of it must be given to the defendant with sufficient notice to enable him or her to have a fair opportunity of meeting it." 1. In the circumstances, the Tribunal finds that an allegation tantamount to fraud is not available to the Complainant and therefore not proven. 2. In all the circumstances, the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct, pursuant to section 139B of the National Law and that taken together, the number of instances of unsatisfactory professional conduct and the seriousness in particular of the failure to retain clinical records in respect of the large number of patients in respect of whom clinical records were not available amounts to professional misconduct pursuant to section 139E of the National Law. The Tribunal was indeed extremely concerned since it is not only important for a practitioner to make clinical notes at the time of treatment, but it is incumbent on the practitioner to retain or ensure the retention of those records both for his own purposes in respect of future treatment and in respect of treatment by alternative practitioners in the event that this should become necessary. 3. Having made a finding of professional misconduct on the part of the Respondent, it becomes necessary for the Tribunal to determine whether in all the circumstances the Respondent's licence to practice should be revoked as requested by the HCCC or whether protective orders can be put in place to protect the public and to ensure that the good name of the dental profession is maintained. Having considered various cases that deal with these issues and the basis on which a Tribunal should or should not invoke cancellation of the Respondent's license, the Tribunal was reasonably satisfied that it would be inappropriate in the circumstances to deregister the Respondent and that appropriate protective orders can be put in place to protect the public and the good name of the profession. 4. The Tribunal noted that the Respondent is currently incarcerated in Silverwater Prison, and as such is not in a position to practice dentistry at this time. In any event the Respondent is not in a position to practice dentistry while incarcerated. 5. Looking ahead however to some future date when the Respondent will be released from prison, the Tribunal came to the conclusion that the following are appropriate protective orders in respect of the Respondent: 1. While the Respondent is incarcerated, the conditions imposed upon the Respondent by the Dental Council of New South Wales be retained. 2. On release from incarceration and subject to any of the Dental Council's continuous practice requirements to allow a practitioner to continue to practice after a period of suspension or lack of participation as a practicing professional, that the Respondent be permitted to continue practising as a dental surgeon and an oral and maxillofacial surgeon subject to the following conditions: 3. That the Respondent pay the costs of the Complainant in respect of the complaints made under file numbers 1520087 and 1520162. Orders 1. Accordingly, the Tribunal makes the following orders: Substantive Conditions 1. On release from incarceration and subject to any of the Dental Council continuous practice requirements to allow a practitioner to continue to practice after a period of suspension or lack of participation as a practicing professional, that the Respondent be permitted to continue practising as a dental surgeon and an oral and maxillofacial surgeon subject to the following conditions: 2. The practitioner is subject to the conditions on his registration as set out in the Schedule headed "Practice Conditions". 3. The practitioner shall not make application for variation of the Practice Conditions for a period of 2 years from the date he commences supervised practice in accordance with Practice Condition 2 4. The appropriate review body is the Dental Council of NSW. 5. The costs of and relating to the Complaint brought by the HCCC be paid by the Respondent under complaint numbers 1520087 1520162 be paid by the Respondent. Practice Conditions: 1. The practitioner is to submit to an audit of his practice, by a random selection of the records by a person or persons nominated by the Council. The practitioner is to authorise the auditor(s) to provide the Council with a report on their findings; The first audit is to occur within three months of recommencing practice and thereafter at least 6 monthly until the practitioner is entitled to apply for a review of the conditions imposed upon him. 2. The practitioner is to practice under Category C supervision in accordance with the Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body by a supervisor as approved by the Council; 1. The practitioner is not to practise until a supervisor has been approved by the Council. This is a critical compliance condition. 2. Once a supervisor approved by the Council has been appointed, the practitioner is to advise the Council of the date on which he proposes to commence practice. 1. The practitioner is to nominate a registered experienced dentist to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentor (as varied from time to time) and the Mentor Position Statement and as subsequently determined by the appropriate review body. 1. The practitioner is to meet with the mentor on a monthly basis in person for at least two hours (or at the frequency and lengthy of time to be determined by the Council), and at each meeting with the mentor, the discussion is to include, but not limited to ethics, clinical performance and record keeping. 1. The practitioner must complete a course(s) relating to ethics and record keeping approved by the Council and any other educational courses deemed appropriate by the Council within 12 months of recommencing practice. 1. Within 3 months of recommencing practice the practitioner must provide evidence to the Council of his enrolment in the abovementioned course(s). 2. Within 1 month of completing the abovementioned course(s), the practitioner is to provide to the Council documentary evidence that he has satisfactorily completed the courses. 1. The practitioner is to bear responsibility for any costs incurred in meeting these conditions. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 02 December 2016 - Substantive Condition 1 removed Substantive Condition 4 – practice condition 4 corrected to practice condition 2 [5] Removed reference to imposed conditions [38] and [45] Dental Council corrected to Medibank Private [49] plaintiff corrected to respondent [230] Removed reference to imposed conditions 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: 02 December 2016