Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chan [2017] NSWCATOD 66 Hearing dates: 13 December 2016 Date of orders: 01 May 2017 Decision date: 01 May 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member R Hochstadt, Professional Member J Draper, Professional Member D Anderson, General Member Decision: (1) Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Chan is reprimanded. (2) Pursuant to s 149A(1)(b)of the Health Practitioner Regulation National Law (NSW), Dr Chan must: Inspection of practice (a) Submit to an inspection of every practice in which he provides dental services by a person or persons nominated by the Dental Council of NSW (the Council), conducted in accordance with the following conditions: (i) The inspection must be held within three months from the date of this decision and subsequently at a frequency determined by the Council. (ii) The inspector(s) must examine and assess infection control standards and relevant clinical records to ensure compliance with the Dental Board of Australia's Guidelines in Infection Control. (iii) Dr Chan must authorise the inspector(s) to provide the Council with a report of their findings. (iv) Dr Chan must meet all costs associated with the inspection(s) and any subsequent reports. Mentoring (b) Within 28 days of the date of this decision, Dr Chan must nominate a registered experienced dental practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentor, March 2016 (as varied from time to time) and the Mentor Position Statement and as subsequently determined by the appropriate review body. (c) Submit to the Council a mentoring plan which details specific objectives/outcomes of the mentoring relationship including but not limited to ensuring compliance with infection control guidelines. (d) Meet with the mentor approved by the Council (the Mentor) on a quarterly basis, or at such intervals as required by the Council. (e) Discuss with the Mentor at each meeting infection control issues and any other issues as determined by the Mentor. (f) Authorise the Council to provide the Mentor(s) with a copy of this decision. (g) Participate in mentoring for a period determined by the Council, but not less than 12 months from the date the Mentor is approved by the Council. (h) On a regular basis, submit to the Council evidence of participation in on-going professional development in the area of infection control for a period determined by the Council but not less than 12 months. (i) Meet all costs associated with meeting the mentoring conditions. Other (j) Dr Chan must notify and seek written approval from the Council at least 14 days in advance of changing the nature or place of his practice. (k) Within 14 days of commencing at any new practice or place of practice, Dr Chan must: (i) provide a copy of these conditions and reasons for decision to any new employer, and (ii) provide written evidence to the Council that he has complied with this condition. (3) Dr Chan must pay the Commission's costs of the proceedings, as agreed or assessed. Catchwords: PROFESSIONS AND TRADES –— health practitioner — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — appropriate protective orders where finding made that practitioner is guilty of professional misconduct STATUTORY INTERPRETATION — precondition to the power to impose a fine under s 149B of Health Practitioner Regulation National Law (NSW) Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 HCCC v Hameiri [2011] NSWMT 13 HCCC v Jamieson [2014] NSWCATOD 56 HCCC v Litchfield [1997] 41 NSWLR 630 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 NSW Bar Association v Meakes [2006] NSWCA 340 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v HCCC [2006] NSWCA 298 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant ) Samson Sing Hon Chan (Respondent) Representation: Counsel: C O'Donnell SC (Applicant) S Barnes (Respondent) Solictors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 1620159 REASONS FOR DECISION 1. In 2015, NSW Health attempted to notify over 11,000 people considered at risk of a blood-borne virus as a consequence of undergoing "invasive procedures" at the Gentle Dentist and recommended that they be tested for hepatitis B, hepatitis C, and HIV. Gentle Dentist is owned and operated by dental practitioner, Samson Chan, with practices located in Campsie and Sussex St, Sydney. 2. The trigger for the notification was a complaint made by a patient in 2014 to the Health Care Complaints Commission (the Commission) about hygiene practices employed by Dr Chan. The Commission referred the Complaint to the Dental Council of NSW (the Council). 3. In December 2014, at the request of the Council, Dr Kavita Lobo conducted an inspection of Dr Chan's Campsie practice. In a report to the Council, dated 14 December 2014, Dr Lobo identified multiple shortcomings in the infection control measures employed at the practice. While subsequent inspections found Dr Chan had taken steps to address some of these shortcomings, on 11 March 2015 the Council decided to suspend Dr Chan's registration as a dental practitioner. On 25 September 2015, the Council lifted the suspension and imposed conditions on Dr Chan's registration. Those conditions remain in place to this day and include regular inspections of the Campsie and Sussex St practices. 4. In June 2016, the Commission referred to the New South Wales Civil and Administrative Tribunal (NCAT) a complaint about Dr Chan (the Complaint). The Complaint relates to Dr Chan's failure to comply with infection control standards issued by the Dental Board of Australia (DBA) at his Campsie and Sussex St practices. 5. For the reasons that follow, we find proven most of the conduct particularised in the Complaint. In addition, we find that the proven conduct amounts to "unsatisfactory professional conduct" and "professional misconduct" within the meaning of the National Law Health Practitioner Regulation National Law (NSW) (the National Law). Scope of Complaint 1. At the hearing we gave the Commission leave to amend the Complaint by deleting Particulars 1(c), 5(b), and 5(c) of Complaint 1. For convenience we will refer to the amended Complaint as "the Complaint". History to the Complaint 1. The Council considered Dr Lobo's 14 December 2014 report at proceedings held under s 150 of the National Law on 23 December 2014. The Council resolved, apparently on the basis of undertakings given by Dr Chan, to take no action at that stage. 2. On 5 January 2014, the Council received a second complaint about the Gentle Dentist. 3. A few days later, Dr Lobo inspected the Campsie and Sussex St practices. In reports dated 11 January 2015, Dr Lobo stated that while she observed a number of shortcomings in relation to infection control measures, she found significant improvements had been made to the Campsie practice and recommended that Dr Chan be given the opportunity to address the identified shortcomings and attend a course on infection control. In addition, she recommended that a further inspection of both practices be undertaken in 10 months. 4. In early February 2015, at the request of the Council, Dr Lobo conducted further inspections of the Campsie and Sussex St practices to report on whether the breaches of the DBA's 2012 Infection Control Guidelines (Infection Control Guidelines) had been rectified. In a report dated 22 February 2015, Dr Lobo wrote that while Dr Chan and his staff appeared to have made some efforts to address the "multitude of issues" she had identified in December 2014 at his Campsie practice, there continued to be numerous breaches of the Infection Control Guidelines. "Incorrect testing and processing of chemical and biological tests" added to the issues she discovered. In addition, she wrote that the "lack of understanding of infection control procedures by all concerned is, at the very least, concerning". 5. With respect to the Sussex St practice, in a separate report dated 22 February 2015, Dr Lobo noted that while some of the deficiencies in infection control procedures had been addressed, significant problems continued, including those relating to the operation of the autoclave (a steriliser used for dental equipment). She wrote that the very serious breach of Infection Control Guidelines, and the lack of implementation of testing protocols, raised questions about Dr Chan's "understanding of the responsibilities as a dentist and practice owner" and whether the "safety of the public has been and continues to be compromised". 6. Following receipt of these reports, the Council convened a second set of proceedings under s 150 of the National Law and decided to suspend Dr Chan's registration effective from 11 March 2015. In addition, the Dental Council notified the Public Health Unit of NSW Health (the PHU) of the public health concerns it had identified. 7. In late March 2015, at the request of the PHU, Clinical Nurse Consultant Marilyn Harris inspected the Sussex St and Campsie practices. She identified breaches in infection control procedures at both practices including failure to maintain the cleanliness of surgery equipment and lack of appropriate information regarding infection control. 8. In June 2015, Dr Chan applied for review of the decision made by the Council to suspend his registration. At the Council's request, Dr Lobo undertook further inspections of both practices. In reports to the Council dated 29 July 2015 (the Sussex St practice) and 30 July 2015 (the Campsie practice), Dr Lobo stated that she found both practices to be "fully compliant with current Infection Control Guidelines". 9. Following review proceedings held on 31 August 2015 and 16 September 2015, the Council decided to end the suspension of Dr Chan's registration and to impose the following conditions on his registration: 1. To submit to inspections by a person or persons nominated by, and as required by, the Council. 2. To authorise the inspector to provide a report to the Council. 3. To engage a registered dental practitioner, approved by the Council, to perform regular inspections of his practices with regard to infection control, with this inspector to provide reports to the Council. 4. To notify the Council and seek its approval at least 14 days in advance of changing the nature of his practice. 5. To give to the Council evidence of having provided any new employers a copy of the conditions of his registration within 14 days of his commencement at any new place of practice. 1. At the request of the Council, Dr Brendan White inspected both practices. In a report to the Council dated 23 November 2015, Dr White reported that both practices were "generally compliant" with the Infection Control Guidelines but concluded that "urgent attention" is required in Dr Chan's own surgery within the practice. He recommended continued inspections. 2. On receipt of that report, the Dental Council convened a third set of proceedings under s 150 of the National Law. The Council decided that the conditions should remain in place and to take no "immediate action". Issues to be determined 1. Dr Chan admitted in writing all of the Complaint, except Particulars 1(c),1(d), 2, 4(c), 5(b), and 5 (c ) of Complaint 1. As noted, the Commission decided not to press Particulars 1(c), 5(b), and 5 (c) of Complaint 1. There is ample evidence to support each of the admitted particulars and we find each proven. The key issues that remain to be determined are: 1. Whether the particulars denied by Dr Chan are proven. 2. If so, whether any conduct found proven constitutes "unsatisfactory professional conduct". 3. If so, whether some or all of that conduct either individually or in aggregate, constitutes "professional misconduct". 4. If (b) and/or (c) above are established, whether protective orders should be made and, if so, what orders should be made. 1. The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at p 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 2. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrased adopted from Rich J in Briginshaw at p 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]. The disputed particulars 1. Each of the disputed particulars relates to the findings made by Dr Lobo during her inspection of the Campsie practice on 10 December 2014. 2. The practice operated seven days a week. It had 10 surgeries, a laboratory, and separate radiology and sterilising rooms. Ten dentists worked at the practice on what Dr Chan asserted to be a "contractor basis". Dr Chan, two other dentists, half a dozen dental assistants, and a receptionist were present on the day of the inspection. The Practice Manager, Elaine Tan, was on a day off. 3. In a report to the Council dated 14 December 2014, Dr Lobo recorded the following observations of the surgeries: * unclean plastic liners and a significant level of disorder in the drawers used to house clean instruments * instruments with residual material being "commonplace" * sticky residue covering the outside surface of many of the drawers * sharp containers in insecure positions, posing an "extreme hazard risk" * clean material and equipment adjacent to the opening of sharp containers * clean composite cartridges being stored adjacent to the sink and in close proximity to brushes used to clean contaminated equipment * open handpieces and burs exposed to contaminants * approximately 20% of the material in the surgery being past its use by date * root canal files stored in a "dirty and old" sponge and, in addition, no system in place to record how many times a file had been used * dirty mixing bowls and spatulas used for alginate impression. 1. In relation to the sterilising rooms, Dr Lobo wrote that only one of the three autoclaves was up to date with required calibration/servicing. In relation to the laboratory, she wrote that the benches were covered by alginate, plaster, or dental stone. 2. Dr Chan saw two patients in the course of Dr Lobo's inspection. According to Dr Lobo, during one of the consultations, Dr Chan seemed to leave the surgery "numerous times for no apparent reason". 3. Dr Lobo also recorded that she observed Dr Chan use a crown on a patient made of a non-precious material and when she asked to see the treatment notes for that patient he "bluntly refused". 4. Dr Lobo noted multiple deficiencies in Dr Chan's treatment records and wrote that that there were no records of substance to show either the procedures undertaken or the substances used in treating patients on any given day. She wrote that Dr Chan told her that it was his practice to only make clinical notes at the patient's first visit. She recorded that the treatment records appeared to largely consist of notes made by staff about work sent to or received from the laboratory. She wrote that when she informed Dr Chan of her opinion that his record keeping did not appear to comply with the Infection Control Guidelines, he "appeared blasé". 5. Dr Lobo wrote that during the inspection, Dr Chan stated that he had so many staff he had "minimal knowledge of the working of each room". She wrote that when she raised with him his responsibilities as the owner of the practice, he was dismissive and replied that they "were contractors and had to be responsible for themselves". Is particular 1(d) of Complaint 1 established? 1. Particular 1(d) reads: On or about 10 December 2014, at his practice located in Campsie, the practitioner failed to maintain and make available appropriate information for the practice in relation to infection control in that he did not provide: … d. a practice manual and/or guidelines for staff in relation to infection control. 1. Infection Control The Infection Control Guidelines state: Infection control 1 Documentation 1.1 Every place where dental care is provided must have the following documents in either hand copy or electronic form (the latter includes guaranteed internet access). Every working dental practitioner and all staff must have access to these documents: a) a manual setting out the infection control protocols and procedures used in that practice, which is based on the documents listed at sections 1.1(b), (c) and (d) of these guidelines and with reference to the concepts in current practice noted in the documents listed under References in these guidelines. 1. In an undated response provided by his solicitors to the Council on 22 December 2014, Dr Chan asserted that the Campsie practice held electronic and hardcopy versions of a practice manual, which detailed infection control procedures (the Practice Manual). He asserted that the hardcopy version of the Practice Manual was kept at the front reception area; the electronic version was kept on the computer used by the receptionist. In a statement prepared for these proceedings dated 11 November 2016, Dr Chan repeated that claim but conceded that the Practice Manual did not contain the "latest guidelines". In oral evidence, he claimed that Dr Lobo did not ask him, or to his knowledge, any member of staff, to produce the Practice Manual during her inspection of the practice. 2. Attached to Dr Lobo's report was a pro forma questionnaire entitled "infection control list", bearing Dr Lobo's signature and the date 10 December 2014 (the Checklist). The question, "Is there an up to date Practice Manual detailing Infection Control procedures as required by DBA guidelines on infection control?", was ticked "no". 3. In oral evidence given in these proceedings, Dr Lobo stated she recalls asking for the Practice Manual on the day of the inspection and being told the practice did not have one. 4. In written reasons for its decision made on 23 December 2014, issued on 22 January 2015, the Council wrote at [27]: "[A] Practice Manual was produced [at the hearing] and the delegates were advised that the required infection control manuals were all stored electronically. As the practice manager had been on leave the day that the inspector had visited, these electronic copies had not been sighted". Consideration 1. Dr Lobo's claim of being told that the Campsie practice did not have a Practice Manual containing guidelines on infection control is supported by the Checklist created on the day of her inspection. On the other hand, as Counsel for Dr Chan points out, the hard copy of the Practice Manual was produced to the Council on 23 December 2014, which makes it implausible that it was not in existence when the inspection was conducted 10 days earlier. It was not put to Dr Chan that the Practice Manual produced in the s 150 proceedings was not in existence at the time of the inspection. 2. The checklist, together with Dr Lobo's account of her recollection of that inspection, is powerful evidence that on the day of the inspection, a Practice Manual was not kept at the practice. However, given the evidence of a hard copy version being produced at the s 150 proceedings 10 days later, we are not satisfied that a Practice Manual was not held at the Campsie practice on the day of Dr Lobo's inspection. Given the chaotic state of the practice at the time of her visit, and the numerous failures of members of the practice to follow infection control guidelines in practice, it is entirely possible that the staff questioned by Dr Lobo were not aware of the existence of the Practice Manual. 3. In the interests of completeness we note that in its reasons for the decision made on 23 December 2014the Council referred to Dr Chan's claim that the Practice Manual was stored electronically but did not make a finding about the truth of that claim: see Reasons at [27]. It is unclear whether Dr Chan produced an electronic version of the Manual to the Council. However, given our finding about the hard copy version, it is not necessary to decide whether an electronic version of the Manual was also held at the practice because, as formulated, Particular 1(d) will not be established if the relevant guidelines were made available to staff in either hard copy or electronic form. 4. Particular (1)(d) of Complaint 1 is not established. Is Particular 2 of Complaint 1 established? 1. Particular 2 reads: On or about 10 December 2014, at his practice located in Campsie, the practitioner failed to observe appropriate procedure and practice in relation to personal hygiene and hand hygiene, in that he engaged in non-aseptic conduct by: a. using a contaminated gloved hand to handle burs; b. using ungloved hands to handle contaminated burs. 1. The term "bur" in this context refers to the removable head of an instrument or handpiece used in dentistry to cut hard tissues, tooth, or bone. 2. Dr Lobo wrote that on the day of the inspection she observed, while treating a patient, Dr Chan: [U]sed his contaminated gloved hand to manually pick up burs that were stored in a "clean" zone. Upon completion of the treatment, Dr Chan made numerous attempts to show me he was not reticent to using gloves. However, he proceeded to remove his gloves and then sort through contaminated burs on his workspace with his bare hands… 1. In these proceedings, Dr Lobo confirmed that she observed Dr Chan, while treating a patient, using a contaminated gloved hand to handle burs and an ungloved hand to handle contaminated burs. She stated that she was standing in the door to the surgery about 1.25 metres from Dr Chan when she made that observation. She insisted that her view of Dr Chan was unobstructed and that she was not mistaken. 2. In a statement dated 11 November 2016, Dr Chan denied either handling contaminated burs with his bare hands or using a contaminated gloved hand to handle burs. 3. In oral evidence, Dr Chan said that the treatment observed by Dr Lobo involved cementing a crown. Before treating the patient, his dental assistant had placed five or six burs on the bracket table – a small table or tray attached to a jointed and movable arm. He agreed that the two burs he picked up from the bracket table were contaminated as he had touched the patient's mouth with his gloved hand. In cross-examination he conceded that he was not aware that anything within a one metre radius of a patient was deemed contaminated and therefore the burs on the bracket table, because of their proximity to the patient, were contaminated. 4. Dr Chan denied touching the burs following the consultation and after removing his gloves. He said he had no reason to do so because the burs were to be placed by his assistant in the autoclave. Consideration 1. We find it more probable than not that Dr Lobo observed Dr Chan touching contaminated burs with an ungloved hand. That observation was recorded in her report. The report was made shortly after the time of her observations and has a quality of contemporaneity about it. Dr Chan, on the other hand, took no contemporaneous notes. Where there is a conflict in evidence of this nature, courts and tribunals will usually rely on objective evidence and contemporaneous records to make findings of fact. As Hely J said in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211 at [40]: [T]he Court should, where possible, base its fact findings on the objective or contemporaneous documentary evidence augmented by the testimony of the relevant witnesses to the extent that these witnesses are not in conflict. Where there is conflict the Court should, where possible, seek to resolve it by determining, on the objective evidence, what is inherently probable supplemented by admissions against interests… 1. With respect to the first allegation, we accept Dr Lobo's claim that she witnessed Dr Chan use a contaminated gloved hand to handle burs. He admitted as much in cross-examination. However, whether by doing so he engaged in "non-aseptic conduct" is a more difficult question and turns on where Dr Chan took the burs from the unit or the bracket table. 2. Attached to Dr Lobo's report of 14 December 2014 is a series of photographs taken during her inspection and includes a photograph of the bracket and unit tables (see A1, Tab 47, Annexure B, p 3). The latter can also be seen in the photograph and shows a block or stand holding about forty burs and rolls of cotton wool on the unit table. 3. If, after touching the patient, Dr Chan took a bur from the unit table that would constitute non-aseptic conduct. This is because the 2012 Australian Dental Association guidelines require that the table be in the "non-contaminated zone" and whenever necessary to move from the "contaminated zone" to the "non-contaminated zone", the practitioner must remove their contaminated gloves, wash their hand and re-glove. (see A1, Tab 123, p 19). If, however, as Dr Chan claims, the burs were taken from the bracket table, handling those burs with a contaminated gloved hand would not amount to non-aseptic conduct as the bracket table was in the "contaminated zone". 4. Dr Lobo referred in her report to the bur being taken from the "clean zone" but did not state, and was not asked, whether she was referring to the unit or bracket table. In our view, it would be unsafe to infer that Dr Lobo was referring to the unit table. Without better evidence we could not be satisfied that by using a contaminated gloved hand to handle burs, Dr Chan's conduct amounted to non-aseptic conduct. 5. Particular 2(b) but not Particular 2(a) of Complaint 1, is established. Is Particular 4 (c) of Complaint 1 established? 1. Particular 4(c ) reads: 4. On or about 10 December 2014, at his practice located in Campsie, the practitioner failed to observe appropriate sterilisation and disinfection procedure and practice in that he did not: … (c) have documented sterilisation procedures or instructions for operating the steriliser; ... 1. When visited by Dr Lobo, there were three autoclaves in the practice: a Vacular 40-B, a DAC Professional, and Midmark M9. In the Checklist, in respect of each autoclave, Dr Lobo answered "no" to the following questions: Is there an operating manual for the autoclave available on the premises? Are there protocols and documentation in place for the use and maintenance of the steam steriliser, including: cleaning of the chamber? cleaning of the trays? loading of the chamber? 1. In his statement provided to the Council on 22 December 2014, Dr Chan claimed that only one of the three autoclaves, the Vacular 40-B, was operational at the time of Dr Lobo's visit, as he was waiting to trade in the other two on a newly purchased autoclave. He claimed the instruction manuals were kept in a cupboard above the autoclaves. 2. In these proceedings, Dr Lobo stated that Dr Chan and his staff told her that two of the three autoclaves were in operation. She testified that while she found some documentation for the Vacular 40-B and the DAC, it related to the installation, not the use of, those machines. That claim is consistent with the Checklist. 3. In evidence given in these proceedings, Dr Chan claimed that only a few people in the practice were permitted to operate the autoclaves because otherwise it would be "too chaotic". He insisted that the instruction manuals for the autoclaves were kept in the cupboards above the autoclaves and, had the Practice Manager been there on the day, she could have shown them to Dr Lobo. Consideration 1. The operating manual for the Vacular 40-B was not provided to the Council before or at the s 150 proceedings held on 23 December 2014: see Annexure B to the Council's reasons for the decision made on 23 December 2014. 2. Dr Chan made no mention in either his statement to the Council provided on 22 December 2014, or his statement to the Tribunal dated 11 December 2016, of only a "few people being authorised to use the autoclave". Nor did he provide any evidence to support his claim of the operating manuals for the autoclaves being stored in the cupboard above the Vacular 40-B. We find it improbable that Dr Lobo would have inaccurately recorded in the Checklist that she did sight the operating manual for the Vacular 40-B, or, as Dr Chan apparently suggests, that she had confused that documentation with the installation instructions. 3. We are satisfied that when visited by Dr Lobo on 10 December 2015, Dr Chan did not have documented sterilisation procedures or instructions for the operation of the Vacular 40-B at the Campsie practice. Given this finding, it is not necessary to determine whether, as Dr Chan claims, the Vacular 40-B was the sole steriliser in operation at the time of the inspection. 4. Particular 4(c ) of Complaint 1 is established. Summary 1. Complaint 1 is established except for particulars 1(d) and 2(a). Does the conduct found proven constitute unsatisfactory professional misconduct? 1. The parties agree, and we accept, that the conduct particularised and found proven in Complaints 1, 2, 3, and 4 (the offending conduct) amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a). 2. In addition, the Commission contends that each Particular constitutes professional misconduct within the meaning of s 139E(a) of the National Law and, as a consequence, that the conduct in aggregate also amounts to professional misconduct within the meaning of s 139E(b). While Dr Chan does not concede that the offending conduct, in combination, amounts to professional misconduct, he accepts that finding is available to the Tribunal. 3. To put the submissions made by the parties in context, it is necessary to examine the offending conduct. In broad terms, it relates to failures by Dr Chan to comply with the Infection Control Guidelines between December 2014 and March 2015. 4. Complaint 1, as discussed above, relates to multiple breaches of the Infection Control Guidelines identified by Dr Lobo during her inspection of the Campsie practice on 10 December 2014. 5. Complaint 2 relates to Dr Chan's failures to observe appropriate sterilisation and disinfection procedures in both the Campsie and Sussex St practices, identified by Dr Lobo during inspections conducted on 8 and 9 January 2015. In addition, Complaint 2 relates to Dr Chan's failure to maintain adequate records relating to the use and maintenance of autoclaves at both practices. 6. Complaint 3 relates to a further inspection of the Sussex St practice conducted on 18 February 2015 in which Dr Lobo observed the autoclaves had not been appropriately tested and staff were not appropriately supervised and/or trained in testing procedures. 7. Complaint 4 relates to Dr Chan's failures to observe appropriate procedures and practice in relation to both the Campsie and the Sussex St practices, as observed by PHU inspector Dr Harris on 20 March 2014. In relation to the Sussex St practice, Dr Harris observed that Dr Chan failed to observe appropriate procedure and practice in relation to the cleanliness of surgery equipment, specifically the cleaning of equipment and storage of sterile and non-sterile items. In addition, she observed failures in relation to the maintenance of and provision to staff of information in relation to infection control, as required by the DBA. In relation to the Campsie practice, Dr Harris observed that Dr Chan failed to observe appropriate infection and control procedures and practice in relation to the reprocessing of instruments. Consideration 1. "Professional misconduct", is defined by s 139E of the National Law to mean: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an evaluation of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing the gravity of the offending conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. 2. The Commission submits that in assessing the nature and degree of seriousness of the offending conduct it is relevant that the conduct took place across a range of dates, over a significant period of time and, in the respect of the latter Complaints, after Dr Chan had been put on notice of the breaches of appropriate infection control procedure identified at the Campsie practice. 3. We agree with the Commission's submission. This was not a case of an isolated one-off breach of the proper standards relating to the practice of dentistry. Rather, as found by Dr Lobo in her initial inspection of the Campsie practice, the breaches were numerous, significant, and involved most areas of the practice. In addition, it is reasonable to infer that the deficiencies identified by Dr Lobo during her first visit were longstanding. As revealed by her inspection of the Sussex St practice conducted three weeks later, those breaches were not confined to the Campsie practice. Despite being squarely on notice of the deficiencies in infection control measures in both practices, significant breaches continued to be identified in the inspections conducted throughout February and March 2015. Indeed, it was not until the decision taken by the Council to suspend his registration on 11 March 2015 that Dr Chan took decisive steps to address the endemic shortcomings identified in both practices. 4. Assessed together, the offending conduct in our opinion is sufficiently serious to justify the suspension or cancellation of Dr Chan's registration. What, if any, protective orders should be made? 1. The parties agree that conditions should be imposed on Dr Chan's registration and a reprimand issued. The only point of difference is whether, in addition, a fine should be imposed. The Commission urges the Tribunal to impose a fine of $27,500. Dr Chan opposes the imposition of a fine. 2. Given our finding that the offending conduct was sufficiently serious to warrant suspension or cancellation, in our view it is necessary to also consider whether it is appropriate to suspend or cancel Dr Chan's registration, notwithstanding that neither party has suggested that such order is warranted. This is because our role is obliged to evaluate the evidence and form our own independent judgment about the appropriate form of orders. 3. Relevant to the question of whether an order to suspend or cancel Dr Chan's registration should be made is the risk of the offending conduct being repeated, the likelihood that Dr Chan will comply with any conditions imposed on his registration and any other public interest considerations. 4. The risk of the offending conduct being repeated requires examination of the steps taken by Dr Chan after receiving Dr Lobo's first report. The history reveals that before the suspension of his registration Dr Chan took some, but inadequate, steps to address the shortcomings identified by Dr Lobo. 5. Following the suspension of his registration, Dr Chan engaged retired dental practitioner, Dr Michael Payne, to review both practices and advise of infection control compliance. Dr Payne has considerable experience in the area of infection control and served on the ADA's NSW Infection Control Committee between 2005 and 2015. 6. Dr Payne identified a number of areas that required improvement and recommended a suite of changes to infection control measures. In addition, Dr Payne provided training to staff, gave advice about the review and updating of the Practice Manuals and infection control. 7. In a report dated 22 April 2015, Dr Payne wrote that having conducted two inspections of the Sussex St practice he was satisfied that it now complied with the Infection Control Guidelines. He wrote, that while there will be a need for constant training, staff "seem very willing to learn and to improve the general cleanliness in all areas". 8. In a report dated 23 April 2015, Dr Payne wrote that following a third inspection of the Campsie practice, he was satisfied that it complied with the Infection Control Guidelines. 9. In a final report dated 24 April 2015, Dr Payne wrote that "once clearly directed, Dr Chan was very willing to make changes and spared no expense". He commented that, considering the short time he had been engaged as a consultant, the "transformation in both practices was amazing". He wrote the records were now of high quality and consistently filled in; there was considerable improvement in instrument storage and reduction of clutter; both practices now met the DBA's checklist for infection control and the Practice Manual better met the DBA's requirements. He concluded that while things are not perfect, "my guess is that Dr Chan's practices are now well above average". 10. Following the lifting of the suspension of Dr Chan's registration, the Council appointed Dr Rouel Vergara to inspect Dr Chan's practices. Dr Vergara conducted three weekly inspections until 23 March 2016 and reported that during each inspection he found the practices to be "fully compliant" with the Infection Control Guidelines. Dr Pavey took over the role of inspecting the practices in May 2015. In a report dated 18 May 2016, he wrote that the Campsie practice "now appears to be compliant with only a few minor adjustments required". Following further inspections of the Campsie practice (18 May 2016, 16 August 2016), and the Sussex St practice (19 May 2016 and 16 August 2016), Dr Pavey reported that each practice fully complied with Infection Control Guidelines. 11. Dr Vergara returned to inspect the practices in September 2016 and found each practice to be fully compliant with the Guidelines (see report of Dr Vergara, 22 September 2016). 12. The most recent inspection of the practices was conducted by Dr Brendan White in November 2016. In a report dated 12 November 2015, Dr White wrote that "as nearly all aspects of infection control [in each practice] appear to be compliant with current standard…it will be …for Council to decide whether further inspections are warranted". Consideration 1. It does not follow that because a finding is made that the proven conduct is sufficiently serious to justify the suspension or cancellation of Dr Chan's registration, an order to cancel or suspend his registration must be made: HCCC v Jamieson [2014] NSWCATOD 56 at [100]. An order of this type is but one of a number of orders available where a health practitioner has been found guilty of professional misconduct. While the safety of the public is the paramount consideration, any protective order must nonetheless be commensurate with the seriousness of the impugned conduct. 2. In exercising our power to make protective orders under the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A. This requires consideration to be given to, among other things, the probability of the recurrence of the offending conduct and the nature and extent of any justifiably apprehended harm. 3. The public interest is also a relevant factor in determining what, if any, protective order should be made. In HCCC v Litchfield [1997] 41 NSWLR 630 at pp 637, 638 the Court of Appeal considered that the (then) Medical Tribunal's jurisdiction must be exercised bearing in mind the need both to protect the public and to maintain high standards in the profession. 4. The following factors favour suspending or cancelling Dr Chan's registration. First, the serious threat posed to public health as a result of the repeated breaches of the Infection Control Guidelines. While there is no evidence that anyone contracted a blood-borne virus, by employing poor infection control measures, Dr Chan endangered the health of his patients. Second, such order would serve an educative function by reminding the profession of the critical role the Infection Control Guidelines play in protecting patient health and safety and of the dangers of departing from the guidelines. 5. These factors must be balanced against the evidence of Dr Chan's rehabilitation. First, as a result Dr Payne's review of the practices, he introduced wide-ranging improvements in the infection control measures employed at both practices. Second, all but one of the 15 inspections conducted by three different inspectors since the reinstatement of Dr Chan's registration revealed that each practice was fully compliant with the Infection Control Guidelines. While concerning, the shortcomings identified by Dr While on inspection of the Campsie practice in November 2015 were isolated and not repeated. Third, Dr Chan has taken significant steps to address the shortcomings which led to his suspension by, among other things, undertaking professional development and remaining abreast of current infection control guidelines. Importantly, the evidence indicates that he now appreciates that as owner of the Practice he is responsible for the maintenance of appropriate standards. Fourth, Dr Chan has invested heavily in improving equipment and practices and procedures relating to infection control. Not only does this demonstrate a commitment to compliance but it is likely to act as a powerful financial incentive to maintain compliance. Fifth, the available evidence indicates that Dr Chan has fully complied with the conditions imposed on his registration. Sixth, Dr Chan has undertaken to comply with any conditions imposed by the Council. 6. We have decided that, given the significant steps taken by Dr Chan since his registration was suspended, the preferable decision is not to cancel or suspend his registration but to issue a reprimand and impose conditions on his registration. In addition, for the reasons below we have decided not to impose a fine. 7. The conditions we have decided to impose require Dr Chan to, among other things: (i) submit to regular inspections of his practice, and (ii) establish and maintain a mentoring relationship with a senior practitioner. The former is, in effect, a continuation of the conditions that have been in place since September 2015. The latter is imposed for reasons of abundant caution and as an additional safeguard to ensure that current standards are maintained. 8. In addition, as requested by Dr Chan, we have decided to appoint the Council as the appropriate review body under s 163(1)(c) of the National Law. Can and should a fine be imposed? 1. Dr Chan opposes the imposition of a fine and contends that the pre-conditions to the exercise of the power to impose a fine have not been satisfied. In the alternative, he argues that the power should not be exercised. 2. Section 149B of the National Law gives the Tribunal power to award a fine on a health practitioner of up to $27,500 (250 penalty units): 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless– (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (Emphasis added) … 1. Dr Chan asserts that, in circumstances where in addition to a fine various protective orders are available, including a reprimand and the imposition of conditions, the pre-condition to the exercise of the power to impose a fine is not satisfied. He submits that the authorities on which the Commission relies, HCCC v Hameiri [2011] NSWMT 13, Saville v HCCC [2006] NSWCA 298, do not assist the Commission because the order-making powers considered in those matters, did not contain an equivalent to s 149(2)(b). 2. Section 149B(2)(b) of the National Law requires the Tribunal to be satisfied that "there is no other order, or combination of orders, that is appropriate in the public interest" before the power to impose a fine can be exercised. If the construction of this provision advanced by Dr Chan is adopted, the power to impose a fine will never be enlivened, because where a practitioner's conduct is found to amount to professional misconduct a range of orders will always be available, including suspension and cancellation. 3. As stated by the plurality of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47], "the task of statutory construction must begin with a consideration of the text itself. …The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." 4. The interpretation Dr Chan urges us to adopt must be rejected because it fails to give effect to all of the words of the provision, specifically the phrase "appropriate in the public interest". These words direct the Tribunal to form an opinion as to whether there is "no…order, or combination of orders [apart from a fine] that is appropriate in the public interest." 5. The Commission contends that if the Tribunal decided not to suspend or cancel a practitioner's registration a fine must be imposed because otherwise the orders made will lack the necessary element of deterrence. As Basten JA commented in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], the following important but indirect effects of a disciplinary order in respect of a professional 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. While these considerations must be taken into account, it does not follow that where a practitioner is found guilty of professional misconduct, the Tribunal must in effect choose between an order for suspension, cancellation, or fine because not to do so would mean the order made would lack an element of deterrence and be contrary to the public interest. In addition, we do not accept the implicit assumption made by the Commission that the imposition of conditions and the issue of a reprimand have no deterrent effect. 2. We have decided that in the circumstances of this case, the issue of a reprimand and the imposition of conditions is the appropriate form of order. Costs 1. The Commission seeks an order that Dr Chan pay its costs in these proceedings. Dr Chan does not oppose that application. We see no reason not to exercise the discretionary power to award costs under cl 13 of sch 5D to the National Law and order accordingly. Orders 1. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Chan is reprimanded. 2. Pursuant to s 149A(1)(b)of the Health Practitioner Regulation National Law (NSW), Dr Chan must: Inspection of practice 1. Submit to an inspection of every practice in which he provides dental services by a person or persons nominated by the Dental Council of NSW (the Council), conducted in accordance with the following conditions: 2. The inspection must be held within three months from the date of this decision and subsequently at a frequency determined by the Council. 3. The inspector(s) must examine and assess infection control standards and relevant clinical records to ensure compliance with the Dental Board of Australia's Guidelines in Infection Control. 4. Dr Chan must authorise the inspector(s) to provide the Council with a report of their findings. 5. Dr Chan must meet all costs associated with the inspection(s) and any subsequent reports. Mentoring 1. Within 28 days of the date of this decision, Dr Chan must nominate a registered experienced dental practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentor, March 2016 (as varied from time to time) and the Mentor Position Statement and as subsequently determined by the appropriate review body. 2. Submit to the Council a mentoring plan which details specific objectives/outcomes of the mentoring relationship including but not limited to ensuring compliance with infection control guidelines. 3. Meet with the mentor approved by the Council (the Mentor) on a quarterly basis, or at such intervals as required by the Council. 4. Discuss with the Mentor at each meeting infection control issues and any other issues as determined by the Mentor. 5. Authorise the Council to provide the Mentor(s) with a copy of this decision. 6. Participate in mentoring for a period determined by the Council, but not less than 12 months from the date the Mentor is approved by the Council. 7. On a regular basis, submit to the Council evidence of participation in on-going professional development in the area of infection control for a period determined by the Council but not less than 12 months. 8. Meet all costs associated with meeting the mentoring conditions. Other 1. Dr Chan must notify and seek written approval from the Council at least 14 days in advance of changing the nature or place of his practice. 2. Within 14 days of commencing at any new practice or place of practice, Dr Chan must: (i) provide a copy of these conditions and reasons for decision to any new employer, and (ii) provide written evidence to the Council that he has complied with this condition. 1. Dr Chan must pay the Commission's costs of the proceedings, as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2017