Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Starkenburg [2017] NSWCATOD 22 Hearing dates: 30 January 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Occupational Division Before: J Millbank, Senior Member S Liberali, Professional Member T Boland, Professional Member A Johnston, General Member Decision: (1) A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of the Patient A in the schedule to the complaint and any other patients named in the Respondent's evidence; (2) The practitioner's registration in Dentistry is cancelled pursuant to s149C(1)(b) of the National Law; (3) The Commission is entitled to their costs pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Dentistry – infection control – hygiene – sterilisation of equipment – out of date materials – inadequate health records Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64; Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') ss 3A, 149C(1)(b); cl 13(1) Sch 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336; Gad v HCCC [2002] NSWCA 111; HCCC v Do [2014] NSWCA 307; HCCC v Philipiah [2013] NSWCA 342; HCCC v Litchfield (1997) 41 NSWLR 630; Lee v HCCC [2012] NSWCA 80; Qasim v HCCC [2015] NSWCA 282; Sabag v HCCC [2001] NSWCA 411 Texts Cited: Australian Dental Association (ADA) Guidelines for Infection Control 2nd ed 2012-2014; 3rd ed 2015; Australian/New Zealand Standard 4815, Office-based health care facilities – Reprocessing of reusable medical and surgical instruments and equipment and maintenance of the associated environment, 2006; Dental Board of Australia (DBA) Guidelines on Continuing Professional Development 29 March 2011; DBA Fact Sheet: Infection Control Obligations under the National Law; DBA Guidelines on Dental Records 1 July 2010; NHMRC, Guidelines for the Prevention and Control of Infection in Healthcare, 2010; Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Robert Starkenburg (Respondent) Representation: Counsel: V Hartstein (Applicant) Solicitors: Health Care Complaints Commission (HCCC) (Applicant) R Starkenburg (Respondent in person) File Number(s): 1620174 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of Patient A in the schedule to the complaint and any other patients named in the Respondent's evidence. REASONS FOR DECISION Background 1. Dr Starkenburg was first registered as a Dentist in Australia in 1982, having qualified as an orthodontist in the USA in 1966. Dr Starkenburg is registered as a Dentist and practises as a sole practitioner in Bondi Junction. 2. In August 2014 Patient A made a complaint to the Dental Council ("the Council") that certain dental work provided by the practitioner was the wrong colour, and that some materials used by him were out of date. 3. As a result of this complaint the Council sent an inspector to the practitioner's premises on 19 November 2014. The practitioner was given notice of the inspection and was present at the time. The inspector reported serious breaches of infection control guidelines in a detailed report which included an infection control check-list, almost every step of which was failed, and 68 photographs depicting the practice rooms and instruments ("the 2014 inspection"). 4. The Council held s 150 proceedings on 2 December 2014. The practitioner conceded that his conduct demonstrated an extreme breach of the current infection control guidelines. The Council immediately suspended the practitioner's registration and referred the matter to the HCCC for investigation. 5. The Council's written report dated 19 December 2014 records that the practitioner did not routinely take a medical history from patients to identify any health conditions or chronic illness which could place them at risk. The practitioner's evidence to the Council was that he could tell by the appearance of patients whether they were in good health. The practitioner stated that he saw between two and six patients a week and maintained a "simple" practice undertaking "simple fillings, cleaning and some crown and bridge" as well as "simple extractions". 6. In 2015 the NSW Department of Health conducted an inquiry and attempted to make contact with up to 800 of Dr Starkenburg's current and past patients. A media release was issued and a dedicated telephone hotline established. The Department recommended that all of Dr Starkenburg's patients be tested for blood-borne viruses; however it was not able to make contact with all of the patients, or to make an accurate assessment of the risk to each patient, because the patient records were "generally incomplete". 7. In 2015 Dr Starkenburg made a number of applications for his suspension to be reviewed and a section 150A hearing was held by the Council on 26 November 2015. At that hearing the practitioner characterised the state of his practice at the time of the 2014 inspection as "a bit third world." Dr Starkenburg responded to questions about the lack of privacy in his treatment room and waiting area by saying that this was not a concern because a lot of his patients were friends. 8. Council required a further inspection of the practitioner's premises before making a decision. In response to an inspection report of 10 December 2015, the practitioner made further changes and responses, and on 23 March 2016 the Council lifted the suspension of the practitioner's registration but imposed the condition of potential further inspections as required by the Council. 9. The Council noted that the practitioner had made numerous improvements to his equipment and knowledge and that these were evidence of his "good intentions", but they also continued to express concern that he had "not demonstrated a satisfactory knowledge of infection control" and that he "was unfamiliar with the requirements for CPD and had not met those requirements over an unknown period of time." The s 150A decision notes that Dr Starkenburg expressed the intention of employing a dental assistant to assist him to maintain a safe practice. This did not occur. 10. From March 2016 to date the practitioner returned to practice. A further inspection took place on 22 November 2016. These Proceedings 1. The complaints of unsatisfactory professional conduct before the Tribunal primarily relate to a lack of infection control and hygiene on 19 November 2014 as found in the 2014 inspection (Complaint 1). 2. Complaint 1 details failures to have in place appropriate procedures for surface cleaning and decontamination between patients, maintain separate clean and contaminated zones within the treatment room or instrument reprocessing area, observe proper standards for the safe transfer of used instruments and materials, have adequate cleaning aids or facilities, ensure that instruments were sterile at point of use (if required), have an ultrasonic cleaner that was appropriately tested or contained appropriate cleaning solution, have an autoclave that was tested or calibrated on an annual basis, maintain adequate batch control identification or maintain and store instruments in a hygienic manner, observe appropriate practice and procedure in relation to hand hygiene, and maintain and make available appropriate information relating to infection control policies and procedures. 3. Complaint 2 is of failures to maintain appropriate dental records for Patient A. Complaint 3 is that the matters in Complaints 1 and 2 individually and cumulatively amount to professional misconduct. 4. In a letter dated 13 November 2016 the Respondent states, "I freely admit to being seriously in breach of current guidelines to infection control and record keeping in my practice of dentistry in late 2014." 5. At the hearing the practitioner conceded all three complaints and did not seek to challenge any of the evidence. In earlier statements to the Council and in his s 40 responses to the HCCC the practitioner did not contest the factual basis of the particulars. 6. The HCCC materials included an expert report by Dr Tseng of 12 November 2015 in which he opined that the matters complained of were significantly below the professional standard and expressed strong criticism. The view of the professional members of the Tribunal was in accord with the expert opinion. The Tribunal was independently satisfied on the evidence that Complaints 1 and 2 were proved to the required standard, and that the seriousness of the breaches of the professional standards amounted cumulatively to professional misconduct per Complaint 3. The hearing was therefore primarily directed towards the question of appropriate orders. 7. The practitioner's position at the hearing was that he had "cleaned up his act", as evidenced by his new equipment and the three courses he had undertaken in 2015. The practitioner sought to return to practice without conditions, although he also suggested that he could be "re-examined" or inspected after 1 year. 8. The HCCC sought deregistration of the practitioner on the basis that that it was the only appropriate order having regard to the seriousness of the misconduct, the risk to the public, the respondent's lack of insight and his failure to implement necessary changes, particularly with regard to record keeping. Relevant law 1. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 2. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. 3. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 4. Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the practitioner: s149C(1)(b). Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v HCCC [2001] NSWCA 411 at [82]. 5. The predominant consideration is the protection of the public. Protective orders must 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]. In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC [2002] NSWCA 111 at [55]. Findings and Reasons 1. The practitioner's failures to meet the most basic standards of infection control and hygiene across a range of areas of his practice in 2014 constitutes a gross breach of the required professional standard; it posed a serious, and sustained, risk to the health of his patients. 2. The evidence, including findings of later inspections and the practitioner's oral evidence at hearing, convinced the Tribunal that this risk continues to be present and that it cannot be met by the imposition of conditions on registration. Deregistration of the practitioner is the only appropriate order, for the reasons that follow. 3. The practitioner's evidence was that he currently saw two or three patients per week and did not have a dental assistant. The process of taking a patient history was a "pretty casual" 15 minute chat which took place in the waiting room (a room shared with other practices on the same level of the building). 4. Although the practitioner had upgraded some equipment and procedures, and subsequent inspections found the premises to be improved, the Tribunal continues to hold grave concerns as to the ability of the practitioner to practice safely. 5. The Tribunal regards the risk posed by the practitioner as heightened in light of the fact that he is a very experienced practitioner, and yet the breaches that occurred have been gross, repeated, and occurred over a considerable period. The practitioner faced a serious complaint of unhygienic premises in 1998, with a number of repeat inspections as a result. The complaint that triggered these proceedings occurred in late 2014, with a number of repeat inspections as a result. 6. The most recent inspection report of 22 November 2016 noted that the practice is "now mostly compliant with infection control requirements" but there were on-going concerns with hand hygiene, out of date stock and inadequate health records. The practitioner's response to this was that the 2016 inspection had been brief and that it had been "bad luck" that the inspector had happened to find out of date materials and an incomplete health record. The practitioner had no other answer at the hearing for how he could still not have fully resolved the identified deficiencies in his practice some two years after the original inspection. 7. The Tribunal concluded that the practitioner was prepared to take steps to appear compliant with professional standards but did not fully appreciate the importance of those standards, nor would he necessarily comply with them in the absence of on-going monitoring. 8. The practitioner's conduct in relation to the autoclave machine is indicative of the practitioner's repeated failings and superficial attempts at compliance with fundamental standards of infection control and hygiene. When the 2014 inspection occurred a technician was present, testing and calibrating the autoclave machine. The inspector's statement to the HCCC noted that the machine's records indicated that it had not been serviced since July 2011, although such maintenance should occur every 12 months. When the inspector returned on 24 July 2015 she found no evidence that the machine had been serviced or calibrated again, when records indicated that this was due to occur on 19 May 2015. On 10 December 2015 a further report by the same inspector found that the autoclave machine had been replaced with a newer model but was not being used appropriately: Dr Starkenburg informed me that all instruments had been reprocessed using the new autoclave. However, on examining the instruments, I noticed that all the bags had brown stains which appeared to be rust and all the bags had large watermarks present. …Further discussion revealed he was using a domestic toast rack in the autoclave. This rack had rust marks present on it… 1. The December 2015 inspection records the inspector's findings that Dr Starkenburg was "somewhat confused" about the requirements of Autoclave testing. 2. On 22 November 2016 a further inspection occurred, again with notice given to Dr Starkenburg, and the inspector noted that the "steriliser was in the process of having its annual validation completed on the day of the inspection." 3. At the hearing the practitioner's evidence was that the autoclave machine worked "fine", as did the ultrasonic cleaner, and that he tested them himself; however he also acknowledged that he had only learnt how to test the ultrasonic cleaner with aluminium foil as a result of the 2014 inspection and had previously assumed it was working because it was noisy when it was turned on. We conclude that the practitioner was content to simply assume that equipment essential to infection control and hygiene was working and, moreover, to calibrate or service it only when faced with compliance measures. 4. A further example of the practitioner's attitude to professional standards and obligations related to his on-going professional education. As a result of the December 2014 s 150 hearing the Council required the practitioner to undertake three specific courses on infection control before he could apply for a review of his suspension under s 150A. The practitioner undertook these courses in early 2015, amounting to 13.5 hours of CPD, and he presented the evidence of such to Council. However at the s 150A hearing in 2015 when asked about his CPD obligations more broadly the practitioner expressed the view that he was required to undertake eight hours of CPD per year. In fact the requirement under the current DBA Guidelines on Continuing Professional Development is a minimum of 60 hours over 3 years, of which 80% must be "clinically or scientifically based". The Council report of 23 March 2016 lifting the suspension specifically expressed concern about the practitioner's lack of understanding of his professional obligations to maintain CPD. 5. At the time of the Tribunal hearing, the practitioner had still not taken steps to ensure that he understood, or complied with, his CPD obligations. The DBA Guidelines on CPD were included in full in the HCCC materials served on the practitioner. In answer to a question from the Tribunal the practitioner stated that he thought he needed "about 25 hours" of CPD but could not specify which types were required. Asked if he had fulfilled this obligation in the past year, the practitioner stated that that he had a friend who was a "dental supply guy" whom he accompanied to conventions, and that one of the courses he had undertaken as part of this travel was about 16 hours. We note that this was the same answer that the practitioner gave to the s 150A inquiry in 2015 when asked whether he had complied with his CPD obligations. 6. The practitioner added that he watched a lot of material on YouTube. The practitioner expressed surprise when informed that reading journal articles could count towards CPD. He stated that he read a lot on the internet but did not keep track of his reading, or a CPD log, did not subscribe to any dental journals, and was not able to indicate whether the material he was reading was authoritative in the sense that it was evidence-based or peer-reviewed. This contributed to the Panel's overall view that record keeping and other forms of professional compliance was a long term, systemic issue with this practitioner. 7. At the hearing Counsel for the HCCC asked the practitioner what he understood the purpose of health records to be. The practitioner responded to the effect of, "I think the problem is more litigation. You need records if you are being sued. Most of my patients are down at heel and come in if they have a toothache. There is no need for elaborate records. I have a limited practice of poor people." 8. The practitioner gave evidence that he now had a computer programme which kept more thorough records. However the practitioner could not identify the name of the dental program he used for electronic records, and also stated that he would not necessarily ask patients about their medical history or medications, and if he did take a history would not make contemporaneous notes. 9. In order to better assess Dr Starkenburg's level of understanding of infection control in the dental practice setting, the Tribunal dental practitioners asked Dr Starkenburg to describe his current diagnostic and treatment protocols in certain clinical situations. Dr Starkenburg's responses showed a level of understanding that was so poor as to represent a significant risk to the public. 10. Dr Starkenburg was asked how he would diagnose and treat a patient who presented with a facial swelling as a result of an infected mesio-angular impacted lower third molar tooth. He was unable to provide a satisfactory diagnostic protocol (and indeed had to be prompted that it would be advisable to take an x-ray). Dr Starkenburg said that he routinely treats these types of cases by applying hydrogen peroxide. Asked if his treatment would be different if the patient in this scenario was a diabetic, Dr Starkenburg replied that his treatment would be the same adding that the patient "would be fine in a couple of days" following the application of the hydrogen peroxide. The clinical situation described represents a situation which may have a very significant risk of potentially dangerous complications. Dr Starkenburg's responses indicated a lack of skill, knowledge and care that fell very substantially below that standard expected of a responsible dental practitioner in current Australian practice. 11. The practitioner did not appreciate the importance of personal protective equipment (PPE), was not able to describe the correct order in which to don PPE, and admitted that he "does not always glove up to get instruments out". He also admitted that he has the dental materials he requires already out on the "slab next to me" and doesn't remove contaminated gloves prior to dispensing and mixing materials for patient use. The practitioner was also not able to accurately describe how to 'decontaminate' the dental equipment and surfaces after treatment was completed and the patient had left the surgery, nor accurately explain the decontamination process in the central sterilising area. 12. We note that the November 2016 inspection report found that the practitioner passed most elements of the infection control check-list; but the inspector did not observe the practitioner undertake a dental procedure, as the previous inspector had done. The Tribunal concluded from the practitioner's oral evidence that he is still not compliant with fundamental aspects of the relevant standards: Australian Dental Association (ADA) Guidelines for Infection Control; 3rd ed 2015 and NHMRC, Guidelines for the Prevention and Control of Infection in Healthcare, 2010; Australian/New Zealand Standard 4815, Office-based health care facilities – Reprocessing of reusable medical and surgical instruments and equipment and maintenance of the associated environment, 2006. 13. At a number of points in the disciplinary and inspection processes that led to these proceedings, it appears that other dental professionals have expressed the view to the practitioner that it is very hard to simultaneously maintain sterile instruments and perform complex dental work without the assistance of a dental assistant (that is: to mix materials, handle instruments, provide suction and so on). The professional members of the Tribunal also put this view to the practitioner (after he had indicated that in his current practice he would mix materials with gloved hands and return to the mouth of the patient wearing the same gloves). 14. In the s 150A proceedings the response of the practitioner was that he would engage an assistant. This has not occurred. The practitioner had also stated at the s 150A hearing and since that he only undertakes "simple dentistry". For example the November 2016 inspection report concludes, "The compliance requirement for all surgical procedures was discussed, and Dr Starkenburg undertook to limit his procedures to simple extractions." 15. In the course of discussion, Dr Starkenburg revealed that he had undertaken procedures for his patients such as the provision of an implant - the surgical placement of the implant fixture he had undertaken himself, crown and bridgework involving multiple units and complex periodontal surgery. He stated that he does bone regeneration following every extraction (Dr Starkenburg apparently uses Bio-Oss - a bone substitute derived from bovine bone). The practitioner stated that he had also recently done a course in venepuncture so that he can utilise platelet rich fibrin in periodontal treatment. This platelet rich fibrin would be obtained by Dr Starkenburg centrifuging the blood of his patients. All of these procedures require a high level of technical skill, knowledge and competence accompanied by an impeccable attention to infection control. They are procedures that are not normally undertaken by a sole general dental practitioner operating without a suitably trained chairside assistant. The responses to questions put to Dr Starkenburg by the Tribunal dental practitioners relating to these procedures confirmed that Dr Starkenburg's practice was definitely not limited to "simple" dentistry. 16. For a practitioner who worked part time and had repeatedly referred to his profession as a hobby, Dr Starkenburg showed no appreciation for the risk profile of some of the procedures he either conducted, or some of the dental technology he saw on-line and professed an interest in. This further enlivened the Panel's concerns as to the practitioner's clear lack of insight. The Tribunal concluded that Dr Starkenburg was practicing at a level which was substantially beyond his level of competence. 17. It was of concern that the practitioner did not appear to follow basic diagnostic procedures for complex or invasive treatments. For example he stated that he would assess an acute alveolar abscess by tapping on the teeth, would treat an impacted wisdom tooth with a couple of drops of hydrogen peroxide, and would not always obtain an x-ray prior to an extraction. When questioned about to whom he would refer a patient with an impacted wisdom tooth, the practitioner was unable to name a specialist oral surgeon or other dental practitioner that he would consult with, or refer complex matters, to beyond, "a Greek fellow in Randwick." 18. The practitioner characterised his patients as "down at heel" and "mostly poor". When questioned about the paucity of his past record keeping by the HCCC, the practitioner stated that the reason why he was unable to provide phone numbers for a number of his patients to the Health Department was because many of his patients did not have telephones due to poverty. The practitioner repeatedly characterised all his patients as "friends", and stated that he often provided free or discount treatment. 19. The 2014 inspection report included photographs which, even to the lay person, depict a treatment room that was cramped, disorganised and visibly dirty, and dental equipment which was dirty and rusty. The 2016 inspection report also included photographs of visibly dirty dental materials. Yet there is no recorded complaint from any of the practitioner's approximately 100 annual patients, and the practitioner only came to the attention to the regulatory authorities because one patient was dissatisfied with the colour of a veneer. The practitioner's claims of the disadvantaged socio-economic status of his patients, and of their ties of friendship to him, give us enhanced concern that any future breaches would also not be brought to light through patient complaints. 20. Finally, it was of very grave concern to the Tribunal that the practitioner still does not accept that his gross breaches of infection controls standards had placed his patients at risk of transmission of blood or saliva borne viruses. The practitioner repeatedly stated that he "would notice" a spot of blood. He also stated that there may have been some risk of measles infection because of the dust in the practice, or some other infection transmitted by dust, but was adamant that there had been no other risk posed by his previous breaches. Costs 1. The statutory authority for NCAT to make costs orders in health professions cases is found in Sch 5D, cl 13 of the National Law. That clause gives NCAT broad discretion to order any party or person entitled to appear in any inquiry or appeal to pay costs to another person. 2. In a number of cases the NSW Court of Appeal has noted that ordinarily costs in this jurisdiction should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]; HCCC v Philipiah [2013] NSWCA 342 [42]-[44]. 3. In this case the HCCC was wholly successful and there were no factors to mitigate against their recovery of costs. Orders 1. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of Patient A in the schedule to the complaint and any other patients named in the Respondent's evidence; 2. The practitioner's registration in Dentistry is cancelled pursuant to s149C(1)(b) of the National Law; 3. The Commission is entitled to their costs pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2017