Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 Hearing dates: 19, 20 and 21 February 2018, 20, 23 and 28 March 2018 (written submissions) Date of orders: 06 April 2018 Decision date: 06 April 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr E Chan, Senior Member Dr I Woodhouse, Senior Member M Maher, General Member Decision: (1) The registration of the Respondent as a dental practitioner is cancelled. (2) The Respondent is precluded from making any application for registration for a period of two years from this date. (3) The Respondent is to pay the costs of the Complainant in an amount assessed in default of agreement. Catchwords: PROFESSIONS AND TRADES –– health care professionals –– dental practitioners –– Health Practitioner Regulation National Law –– breach of practice conditions –– prescribing medication while suspended –– held professional misconduct –– possession of cocaine –– finding of not a suitable person for registration in the dental profession –– registration cancelled –– costs order Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr William Simpson (Respondent) Representation: Counsel: A Britt (Complainant) B Adam (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Respondent (self-represented) File Number(s): 2017/00137873 Publication restriction: Non-publication order with respect to the name of any patient or former patient of the respondent or any material which may tend to identify such patient. reasons for decision 1. The Complainant, the Health Care Complaints Commission ("HCCC") by Further Amended Complaint alleges that the Respondent, Dr William Simpson who formerly practised as a dental practitioner is guilty of unsatisfactory professional conduct and professional misconduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"), and that his registration as a dental practitioner should be cancelled accordingly. 2. The Further Amended Complaint by which the proceedings are constituted is in the following terms: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Dental Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr William Simpson ("the practitioner"), (address deleted) NSW being a dentist registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, judgment 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/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of dentistry. 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 COMPLAINT ONE The practitioner was first registered as a dentist in NSW in 1970. On 19 January 2015, the Council was notified that the practitioner had been charged with the possession and supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) on 19 December 2014. On 17 June 2015, the Council convened proceedings under s 150 of the National Law. The Council placed the following conditions on his registration: 1. To attend for thrice weekly urine drug testing at the dentist's own expense in strict accordance with the Dental Council of NSW's urine drug testing protocol, for a minimum period of three months and until advised that this condition has been lifted by the Council. The urine drug testing is to commence within 7 days of 17 June 2015. To authorise the testing facility to forward all the results to: (a) The Dental Council of NSW; (b) Treating practitioners. 2. To attend for thrice weekly urine drug testing by a facility of the dentist's choosing from 17 June 2015 until the dentist makes arrangements to undertake urine testing as required by condition 1. The urine drug testing will be at the dentist's own expense. To authorise the testing facility to forward all of the results to: (a) the Dental Council of NSW (b) treating practitioners 3. The dentist is to advise the Council of the names and contact details of all treating practitioners within 7 days of 17 June 2015, and authorize the Council to exchange information with the treating practitioners. On 18 September 2015, further s 150 proceedings were held at which the Council determined that the practitioner had failed to comply with the conditions imposed on his registration and suspended the practitioner's registration. On 19 November 2015, the practitioner pleaded guilty to the offence for which he was charged on 19 December 2014. He was convicted in the Local Court and sentenced to enter into a good behaviour bond for two years in accordance with s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"). Section 150A review proceedings were convened on 9 December 2015 and 28 January 2016 and the suspension of the practitioner's registration was upheld. On 21 April 2016, on appeal the practitioner's conviction imposed on 19 November 2015 was quashed and in lieu of the orders of the Local Court the District Court impose a two year good behaviour bond, without proceeding to conviction, under s 10 of the CSPA. PARTICULARS OF COMPLAINT ONE 1. The practitioner produced positive urine drug tests for: a. Morphine trace, may not be a Heroin metabolite on 20 July 2015; b. Oxazepam and Temazepam on 22 July 2015; c. d. Temazepam on 27 July 2015; e. Codeine on 29 July 2015; f. Codeine on 6 August 2015; g. Morphine trace, may not be a Heroin metabolite on 7 September 2015. 2. The practitioner prescribed medicines to Patient A whilst his registration as a practitioner was suspended as follows: a. Amoxycillin 875mg (x 10) on 23 November 2015; b. Clavulanic Acid 125mg on 23 November 2015; c. Diazepam 5mg (x 50) on 2 October 2015. 3. The practitioner prescribed medicines to Patient B on 11 October 2015 whilst his registration as a practitioner was suspended as follows: a. Codeine phosphate with paracetamol 30mg-500mg (x 20); b. Amoxycillin 500mg (x 20). 4. The practitioner prescribed medicines to Patient C whilst his registration as a practitioner was suspended as follows: a. Cephalexin 500mg (x 20) on 29 November 2015. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(c)(i) of the National Law in that the practitioner has contravened a condition to which the practitioner's registration was subject. 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 COMPLAINT TWO The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened a condition on his registration in that he failed to comply with the UDT Council Protocols in that he failed to notify the Council of his self-administration of codeine on: a. 29 July 2015; b. 6 August 2015. 2. The practitioner contravened a condition on his registration in that he failed to comply with the UDT Council Protocols in that he failed to notify the Council that he was administered: a. Oxazepam and Temazepam on 14 August 2015; b. Oxazepam and Temazepam on 17 August 2015; c. Oxazepam and Temazepam on 20 August 2015; d. Oxazepam and Temazepam on 21 August 2015; e. Midazolam on 27 August 2015; f. Codeine on 2 September 2015. 3. The practitioner failed to comply with a condition on his registration that required him to "attend for thrice weekly urine testing", when he failed to submit to Urinary Drug Testing on the following dates: a. 29 June 2015; b. 3 July 2015; c. 6 July 2015; d. 8 July 2015; e. 15 July 2015; f. 3 August 2015; g. 10 August 2015; h. 24 August 2015; i. 4 September 2015; j. 9 September 2015; k. 11 September 2015; l. 14 September 2015; m. 16 September 2015. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. 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 BACKGROUND TO COMPLAINT THREE The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon cumulatively. COMPLAINT FOUR The practitioner is not a suitable person to hold registration as a dentist under the National Law. BACKGROUND TO COMPLAINT FOUR The background to Complaint One is repeated and relied upon. PARTICULARS TO COMPLAINT FOUR 1. On 19 December 2014 the practitioner had possession of 0.58 grams of cocaine for the purpose of supply, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 2. Complaints One and Two and the particulars thereof are repeated and relied upon cumulatively. 1. Prior to and during the course of the hearing a large measure of agreement was reached whereby the Respondent admitted breaches of Complaint One as particularised, Complaint Two as particularised and Complaint Three as particularised, but did not admit that he was not a suitable person to hold registration as a dentist as alleged in Complaint Four. 2. Although the Respondent admitted the breaches referred to above, the parties remained in dispute concerning the nature and extent of his misconduct, and concerning the appropriate protective orders. Ultimately, the Complainant sought cancellation of the Respondent's registration and the Respondent submitted that further suspension for a period of one year together with the imposition of practice conditions at the end of that period was warranted in all the circumstances. The evidentiary material 1. A large volume of evidence was tendered by the Complainant, and we received an Affidavit sworn by the Respondent together with other documentation tendered in the course of the proceedings. In addition, the Respondent gave oral evidence and was cross examined, and we had available to us two reports of Dr Glenys Dore, the Respondent's treating psychiatrist who also gave oral evidence. 2. We now proceed to deal with the evidentiary material concerning each of the Complaints the subject of these proceedings. The evidentiary background concerning the Complaints 1. Before dealing with some additional factual matters concerning the Particulars of Complaint One, we should first elaborate on the results of the District Court proceedings which occurred on 21 April 2016. It is correct that the Respondent's conviction was quashed, but we should emphasise that in doing so the Court nevertheless found that the offence was proven. Accordingly, there can be no doubt that at the relevant time the Respondent was in possession of the prohibited drug which, on the evidence before us, consisted of .58 grams of cocaine. 2. The Dental Council of NSW forwarded a letter to the Respondent dated 22 June 2015 concerning the monitoring of the conditions relating to urine drug testing. That letter contained detailed information concerning the protocols surrounding and the procedures to be followed with respect to these tests. It was made clear that if the Respondent became aware that he would be unable to attend the testing he was required to advise the Council in writing at least five working days before any absence and provide any corroborative evidence such as a medical certificate. If he missed a test he was required to notify the Council in writing immediately and provide an explanation. 3. Whilst the drug testing regime was in train, the Respondent was informed that he was "prohibited from self-administering any drugs detailed in Schedule 1 (of the Drug Misuse and Trafficking Act) and Schedule 4D or Schedule 8 drugs (of the Poisons and Therapeutic Goods Act). This includes any narcotic derivatives, non-prescription compound analgesics or cold medications unless prescribed and taken at the direction of a treating practitioner. You must immediately notify the Council in writing of any instance of illness requiring the administration of medications described above. Written confirmation from the treating practitioner regarding items prescribed must also be provided to the Council." Furthermore, the Respondent was required to advise the Council of details of all treating practitioners and authorise the Council to exchange information with them. 4. The letter concluded with a warning that it was the responsibility of the Respondent to comply with the conditions and provide evidence of compliance and that non-compliance would be referred to the Council "which may take further action that may affect your registration." 5. The letter also enclosed, inter alia, a copy of the Protocols established by the Dental Council which contained a detailed explanation of what was expected of the Respondent in complying with the drug testing requirements. Significantly, this material included the following: When consumed in a sufficient quantity, poppy seeds may result in the presence of morphine and codeine metabolites in the participant's urine. The registrant must actively avoid the consumption of any food containing poppy seeds. Tests showing metabolites for a known drug of addiction, for example morphine, may result in the Council convening an Impaired Registrants Panel to inquire into the matter or referring the matter to the Conduct Committee for formal disciplinary action. In addition, weight loss supplements and drugs are not recommended as they may contain amphetamines or other stimulants, resulting in a positive urine drug test. Participants must advise the Council of any procedures that they are required to undergo which may involve the administration of drugs. Where administration of drugs has occurred in an emergency situation, the participant must advise the Council as soon as practicable in the circumstances and provide the Council with written confirmation of such treatment from the treating practitioner. 1. We proceed on the basis that the Respondent was given what we regard as clear instructions concerning the requirements imposed upon him by the establishment of the drug testing conditions which were imposed on his registration as a dental practitioner. 2. There has been made available to us documentation provided from the records of the Dental Council and others concerning the interaction with and on behalf of the Respondent with respect to the drug testing regime imposed as a condition on his registration. In summary form this indicates: 1. The Respondent enquired by telephone on 22 June 2015 as to what facilities might be attended upon to provide samples. He said he would attend Royal North Shore and provide a sample at its PaLMS facility. 2. On 26 June 2015 the Respondent's nurse advised that he had been rushed to hospital that morning and would not be able to attend the test that day, and provided a contact number for his treating general practitioner 3. On 1 July 2015 the Respondent called from his hospital bed at St Vincent's hospital advising that he had not yet commenced testing and indicated that he might be discharged the following day 4. On 13 July 2015 the Respondent said that he had provided a sample at St Vincent's hospital on 10 July and another sample that day and that he had set up appointments to provide a sample three times a week thereafter. He said that he had also provided a sample through his general practitioner on 18 June but that the chain of custody was not followed. He was asked to provide the results of that sample to demonstrate that he had done so, even though the sample was not valid. He was advised that he should send samples only to PaLMS as it was the only laboratory that tested for "the additional substances." 5. On 12 August 2015 the Respondent advised by telephone that he had been attending St Vincent's for testing three times a week for approximately six weeks, but that some weeks he only attended twice as he had been in hospital. There was a discussion about whether the results had gone to the correct facility. By 18 August 2015 the Council had ascertained that the testing carried out at St Vincent's was not compliant and that in any event the Respondent had not arranged for the testing results to be forwarded to the Council. Accordingly, the samples had not been tested in accordance with the standards set by the Council, even if a copy had been made available to it. He was advised to forward the results so there was evidence that he had attended. 6. On 28 August 2015 the Respondent enquired of the Council whether it had received the results of his urine testing. He was advised that no results had been received and that he was non-compliant. He said that he had been unwell with pneumonia "over the past few weeks." 7. By email dated 1 September 2015 the Respondent was informed that a number of test results had been received from St Vincent's Hospital, but results were missing on 9 nominated dates and there were anomalies for the results of two dates and no results between the period 7 August and 31 August, 2015. 8. On 2 September 2015 the Council wrote to the Respondent informing him that there had been positive results for morphine on 20 July, oxazepam and temazepam on 22 July and codeine on 6 August 2015. He was required to provide a written explanation by 5 September. In a telephone conversation the Respondent explained that the positive tests would have arisen as a result of his hospitalisation. He was reminded that he required written proof that the drugs in question had been prescribed and he offered to obtain this. 9. On 9 September 2015 the Respondent explained in an email to the Council that there was an explanation for his positive urine testing results by reason of the medication administered during hospital admissions. He said "I have done my utmost to keep to the required schedule, despite obvious current ill-health, hospitalisation and running a new and busy practice. The positive drugs that have been picked up have no relationship to my original (and in my opinion nonrelevant) charge. I am finding that the thrice weekly drug testing onerous, both in financial aspect (not covered by Medicare) and a huge time issue." 10. On 15 September 2015 the Council received a telephone call from Dr E Coates who said that he was the Respondent's treating health practitioner, and wished to inform the Council that he had received a copy of a positive urine drug test from a sample taken 27 August 2015 which was positive for midazolam. Dr Coates said that he had not prescribed that drug for the Respondent and that he should not have been taking it with his current medical condition. He also confirmed that the Respondent's health was better and that he had a normal platelet blood count. 11. The Dental Council convened a section 150 hearing on 18 September 2015 to consider the results of the Respondent's drug testing program. The delegates of the Council noted that there was information that the Respondent had undergone a bronchoscopy on 27 August 2015 and that midazolam had been administered as an anaesthetic drug. In the course of discussing the information available to them the delegates were not satisfied with the Respondent's assertion that his lack of attendance to thrice weekly testing could be satisfactorily explained by reference to "two hospital stays and a trip away." Furthermore, explanations given by the Respondent that he had presented for testing on incorrect days at incorrect places and had failed to follow the established protocols "only reinforced his lack of insight into the seriousness of non-compliance with the conditions on his registration. By his own admission, Dr Simpson stated that "rules are rules" but he was "not good at taking or following rules."" The delegates further noted: Dr Simpson claimed that the other 12 positive test results were due to prescription medication that he was taking. Records from St Vincent's Hospital indicated that during his hospital stay, he was prescribed Temazepam nightly as a sleeping tablet. This prescription would account for the positive UDTs for "oxazepam, temazepam" from 14 August to 21 August, inclusive. There was no evidence of other medications prescribed that would result in the remaining 8 positive UDTs. Dr Simpson surmises that he may have taken one of his wife's Endone tablets and this would give a positive result for codeine or morphine trace. It was explained to Dr Simpson that pharmacologically this was not possible and he was questioned again about any prescription medications. Dr Simpson then stated that he had many prescriptions for medications and that on a rare occasion, he may have taken a Valium but he was against taking medications and he very rarely took any tablets. 1. At the conclusion of the hearing the delegates determined that it was appropriate to suspend the registration of the Respondent. 1. On 18 September 2015 the Respondent forwarded a letter to the Council following "a meeting", presumably the section 150 proceedings, which had occurred earlier that day. In it he said that he had attempted to comply with the drug testing requirements as best he could, he had experienced some acute medical episodes over the last several months although he stressed that the medical condition "has in no way diminished my ability to administer what I believe to be an excellent standard of dental care to my patients" although it had "greatly diminished my regular routine time, and disturbed my plans for regular attendances at the pathology collection point." He elaborated on the treatment he had received for his then medical condition, which included a period in isolation and hospitalisation for blood tests. We note in particular that the Respondent made the following assertions in the course of this communication: 1. He had never previously been charged "or even implicated in any police matters" prior to the incident concerning the cocaine. 2. He had no previous "serious claims against my professionalism." He said that there had been some issues which had "mostly been dismissed I have only once been reprimanded with a very light consequence." (We note that this is incorrect. The Respondent had been the subject of several prior complaints dating back to 1992. In 2000 he was reprimanded and fined and practice conditions were imposed following certain restorative dental work. In 2001 he was counselled about his use of item numbers. In 2005, 2008 on 2 occasions and in 2009 on 3 occasions he resolved a number of complaints by refunding treatment payments). 3. He was still married to the same partner for 41 years. 4. He was "very much anti-drugs" and would be contesting the allegations of possession of cocaine. 5. The drugs found in his urine were "completely consistent" with his hospital discharge summary and medication provided to him. 6. The drugs found in his urine did not include cocaine. 7. He had attended on the urine collection point "approaching 30 visits" and that he had "struggled admirably to comply" with the drug testing requirements. 1. On 29 October 2015 the Respondent wrote to the Council seeking a review of the decision to suspend his registration. In the course of this letter he set out in brief terms the recent history of his involvement with the Council subsequent to what he described as the "minor" drug issue and said, in part: This total sham has happened to a dentist who has not been found guilty of any charge; who does not pose a threat or harmed any patient; and could not be considered a danger to his profession or his patients; has done his best to cooperate with the dental Council, despite being hospitalised for most of the testing period; who has been shown to be completely free of any medication which is not accountable for. We shall return to this extract from his letter when dealing with the stage 2 aspects of these proceedings, namely the appropriate protective order that should be made. 1. The application for review was heard by delegates of the Council who issued written reasons for decision on 10 March 2016. Because those proceedings involved a review of the previous decision to suspend the Respondent's registration it was appropriate for the delegates to consider events subsequent to that decision. The delegates based their consideration on three such matters, namely: 1. The Respondent had been convicted in the interim for supplying a prohibited drug. 2. The Respondent had undertaken 22 drug tests, and 6 of them had proven positive. 3. The Council had become aware that the Respondent had prescribed medication whilst his registration had been suspended. 1. In their written decision, the delegates said that the Respondent had sought to explain the positive test results between September and December 2015 "as variously due to over-the-counter medications that contained traces of Codeine, the metabolisation of codeine to morphine, his continued use of the Temazepam that had previously been prescribed for him and his custom of eating poppy seed bagels which caused morphine traces to show up on testing." The delegates expressed concern about the positive test results and the explanations proffered and said that they expected that the Respondent's "desire to have the suspension of his registration lifted would cause him to take care about the substances he consumed, even if they were in fact poppy seed bagels and previously prescribed and over-the-counter medications…...". 2. The Respondent had told the delegates during the hearing that he had not worked as a dentist while suspended, but had worked at the surgery "as a practice manager" and as such had prescribed medication for some patients. The delegates said that they had been told by the Respondent that "he did not "treat" the patients in any way and merely spoke to them when they turned up in need of medication after hours and when no other dentist was available to see them." 3. When asked by the delegates to produce the clinical records for the patients for whom he had issued prescriptions, the Respondent had done so, but there was no record of the prescriptions issued by him having been recorded. He told them that he had entered the prescriptions in his "Journal – a private record he keeps of his activities" and had produced some pages from that journal, copies of which are before us. 4. The Respondent told the delegates that he did not realise that he was unable to prescribed medication by reason of his suspension. "He said that he thought he simply could not "lay hands" on patients and, because he was distressed and confused, he made an "error of judgement"". He said that as soon as he realised this he ceased. He argued that the medications he had prescribed "were not dangerous or addictive." The delegates expressed concern that the issuing of these prescriptions by the Respondent had undermined the purpose of the suspension order mainly the protection of the health and safety of the public. They were "very concerned" by the failure of the Respondent to understand that a suspension of registration would result in a prohibition on being able to prescribe medication. Furthermore, this occurred in the context of the Respondent having cancelled his professional indemnity insurance. 5. The delegates declined to lift the Respondent's suspension. 6. A chronology which had been prepared by the Council for the purpose of those proceedings, which is verified by documentation provided to us in these proceedings indicates that the hospitalisations upon which the Respondent relied as explaining the presence of certain drugs occurred on the following dates: 1. 26 June 2015, admitted to hospital, discharged 2 July 2015. 2. 12 August 2015, admitted to hospital and discharged on 20 August 2015. 3. 27 August 2015 bronchoscopy performed. 4. 19 September 2015 admitted to hospital discharged 27 September 2015. 1. The dates upon which the Respondent produced positive urine drug tests are set out in paragraph 1 of the Particulars of Complaint One. It will be observed that none of these dates coincide with or approximate any period of hospitalisation. 2. Because these proceedings, in that they relate to the patients of the Respondent concern three patients only, we only have before us limited patient records. However, we do have clinical records relating to a fourth person who was a patient of the Respondent, whom we shall refer to as Patient D. These records demonstrate that on 7 and 8 August 2015 the Respondent carried out complex dental work involving the removal of teeth, including their roots. This is corroborative of the fact that the Respondent, despite asserting from time to time that he was unable to submit to urine drug testing because of the effects of the various medical conditions from which he was suffering, nevertheless considered himself well enough to at least, on these two days, undertake complex dental work. The medical evidence concerning the Respondent 1. Expert medical evidence was given in the proceedings by Dr Glenys Dore, a consultant psychiatrist specialising in addiction medicine who had been treating the Respondent. She had seen him on regular occasions, and, as at the date of her first report of 18 October 2017 he had attended on 14 occasions from 15 June to 10 October 2017. Dr Dore had conducted "a detailed psychiatric assessment" and taken a detailed history, and said that she had made "a detailed assessment of his personal vulnerabilities." She had focused on the identification and management of "issues related to personal and professional boundaries and limits." 2. In this first report Dr Dore referred to a history of past cocaine use when the Respondent was in his mid-40s, his "thoughtless foolishness" associated with being given the small portion of cocaine which was the subject of the police proceedings, the onset of a major depressive disorder about 20 to 30 years ago which was well controlled with medication and a number of diverse medical conditions. She said that she had explored a number of issues with the Respondent including, potentially for our purposes, "the importance of conforming to rules and guidelines." She said that "in the past he tended to have a more casual approach." She also discussed with him the fact that suspension of registration impacted upon prescribing rights and the importance of "strict, pristine compliance" with all practice conditions. 3. In a later report of 15 February 2018 Dr Dore noted that the Respondent had attended on her 13 times during the period 17 October 2017 to 13 February, 2018. She has continued to focus attention on "the establishment and maintenance of appropriate limits and boundaries in both professional and personal settings" and has continued to review the circumstances surrounding his suspension. She said that the Respondent "remains insightful and remorseful about his previous behaviour. His mental health has remained stable and there have been no concerns about substance use." She said that if his suspension was lifted that the Respondent would continue to attend regular appointments with her. 4. Whilst without in any way being seen to be at all critical of Dr Dore, we note that her reports do not contain any diagnosis of any condition suffered by the Respondent or contain any explanation for his misconduct as particularised in the Complaint document which is at the heart of these proceedings. However, these matters were explored with Dr Dore in her oral evidence. 5. It was put to Dr Dore that the Respondent had in fact given a number of different reasons and excuses as to why he had taken possession of the quantity of cocaine which was the subject of the police proceedings. She said that he had not well thought through what had occurred, and he had panicked and given a number of versions because he was not sure what was the best approach both legally and professionally. She said that she was concerned that the Respondent had given a number of versions, including a different version to the Dental Council and she recognised that it was important that the Respondent be absolutely honest and transparent. She observed that the Respondent did not appear to appreciate that he had to be absolutely frank with the Dental Council. Furthermore, she said that it was difficult for her to "get a handle" on why the Respondent had engaged in such a foolish hopeless act of stupidity. She was concerned that he had retained the cocaine especially given his history of cocaine use and that he might have kept it in case he might want to have used it himself in the future. We are concerned that overall, the respondent has a tendency to fashion his evidence in the best manner which suits his case. 6. Dr Dore said that the Respondent had recently declared himself bankrupt, and she referred to certain financial issues affecting the family. 7. When asked about her observations concerning the Respondent's casual attitude, she said that he had had a long history of a lax attitude to guidelines, the law and rules such as wearing seat belts. He had not paid sufficient attention and diligence in conforming. She said that she had detected a change in his attitude after discussing with him the importance of complying with guidelines, rules and the law. 8. In discussing the Respondent's approach, Dr Dore noted that initially the Respondent had seen himself as a victim, but his approach has now changed and she was endeavouring to get him to focus on his own role in having caused and in solving his problems. She said that it was possible to mould and change a character in response to psychotherapy and that she had been partly successful in doing so. He no longer pursued a philosophy that "near enough is good enough", which personified his earlier attitude. She described the Respondent as being "still on a journey" and was unable to say how long it was likely to be before that journey was complete. The Respondent would need to continue to undertake regular psychotherapy. 9. Dr Dore was adamant that the Respondent could now safely practice dentistry except that initially he would have to work as an observer, especially to gain recency of practice, he would be required to work under close category B supervision, restricted to working in a group practice, would need to continue regular psychotherapy, and to continue regular urine drug testing. She was confident that the Respondent would now comply with all of those conditions. 10. In essence, Dr Dore was unable to identify any particular psychiatric or psychological disorder which would explain the Respondent's conduct which is the subject of the various Complaints with which we are dealing. In essence, his problems are behavioural in nature. The evidence of the Respondent 1. We have available to us narratives provided by the Respondent to the Local and District Courts concerning the prosecution for possession of cocaine, statements made to the police about the same matter, a Reply document filed by him, an affidavit sworn by him for the purpose of the proceedings, various communications made by him primarily with the Dental Council and his oral evidence given in these proceedings. Although the Respondent has admitted the several Complaints and the Particulars of those complaints save for Complaint Four, the evidentiary material referred to is important for two significant reasons. Firstly, such material must be evaluated for the purpose of dealing with the Respondent's submission that there are exculpatory matters that should be taken into account in his favour in assessing the seriousness of his misconduct and the necessity for any resultant protective orders. Secondly, we will need to consider the Complainant's submission that the Respondent has given so many competing and conflicting versions concerning a number of matters, that the basis for the opinion of Dr Dore has been destroyed and that we should not accept her opinion that the Respondent is fit to resume practice safely, albeit with the practice conditions which she specified. For these reasons we shall need to deal with the Respondent's evidence in some little detail. Prescribing while suspended 1. The Respondent forwarded a letter to the Dental Council concerning these matters on 18 December 2015. He sought to explain that he had been uncertain and confused about the proceedings being taken against him. He said that he had thought that, in effect, the prescribing of medication was "separate and distinct" from his work as a dentist. By then he realised that this was incorrect. However, in mitigation he highlighted the fact that the medication which had been prescribed was limited to antibiotics, pain relief and Valium and did not include "addictive drugs." He acknowledged his "error of judgement" and said that he would not engage in conduct of this kind in the future if permitted to practice again. 2. In the same letter the Respondent provided the following descriptions with respect to each of the patients the subject of Complaint One: 1. Patient A required antibiotics and painkillers following root canal work performed by another dentist in the same practice. 2. Patient B was the patient of another dentist in the practice who was not present. She presented at the front desk with pain and he prescribed antibiotics and painkillers. 3. Patient C presented at the front desk with swelling of the face following a wisdom tooth extraction performed by another dentist. The prescription for antibiotics which he issued constituted a second course at a time when the patient was unable to see a general practitioner and the treating dentist was not present. 1. We note that the Respondent did not enter any reference to the prescription of the medication to these three patients in their clinical records. He made the briefest of notations in a day-to-day diary which he said he kept at the practice. In the course of giving evidence the Respondent said that none of these patients required a consultation because he knew them and knew their history. He said he did not make any observations, conduct any physical examination or take a history from them, but elaborated on the latter matter by saying that he took a verbal history, but he did not record it. He met each of them at the desk in the reception area. The Respondent recanted in part from this evidence by saying that with respect to patients B and C he did ask them whether they had allergies. He knew because of a close personal relationship with patient A what allergies that patient suffered from. Furthermore, the Respondent did not think at the time that he was treating these patients but "merely relieving their pain and discomfort." 2. The Respondent gave evidence concerning patient A. In an affidavit, the Respondent said that he had prescribed Valium on 2 October 2015 because the patient had not slept for several nights as a result of grinding her teeth. He had prescribed antibiotics on 23 November 2015 because she was complaining of pain in her lower left molar with obvious signs of infection. The patient had a history of gross decay and had been scheduled for root canal treatment and pulp extirpation. In both cases no other dentist had been available. When pressed with respect to the second occasion why he had not referred the patient to a medical practitioner, the Respondent said he recalled the patient speaking to a dentist and telling him that she was having trouble. However, he conceded that this information had not been included in his affidavit. The clinical notes for this patient revealed that she attended on the practice on 30 October 2015 for the commencement of nerve root canal therapy and did not attend again until 4 December, 2015. When she attended on this latter occasion, as an emergency appointment, there is a notation of teeth having fallen out recently, lack of sleep from pain, severe tooth decay, acute peritonitis, and a "hopeless prognosis" for two nominated teeth which were extracted. 3. We are concerned that the respondent did, in fact, conduct a consultation with this patient on each occasion on which she saw him at the practice. She told him that she was, respectively, not sleeping and in pain. He conducted no physical examination and, by reference to the second occasion, clearly left her in a vulnerable position until 4 December 2015 subject to complications from infection, decay and the like. Furthermore, he did not create any clinical notes on the record of the patient of what he had done, so that no other dentist would have known that this medication had been prescribed. 4. There is a notation in the Respondent's diary on 10 October 2015 concerning patient B that he had written a script for antibiotics and Panadeine Forte because the treating dentist had forgotten to write them for her. There is a notation in the same diary on the following day, Sunday, 11 October 2015 that the patient had left the scripts which had been written the day before in the bus. This is the only record made by the Respondent concerning the issue of scripts for this patient. This record and the evidence of the Respondent about it is inconsistent with the version given in his affidavit which was to the effect that the scripts issued on 10 October 2015 had in fact been written by the treating dentist, Dr Nygren. 5. There are no patient records available for patient B. The Respondent said that he did not carry out any physical examination but may have discussed her problems with her but now had no recollection. 6. The Respondent said that he saw patient C at the desk in the reception area and had access to his medical records on the computer. In evidence he said that that patient had telephoned him at home to say that he needed emergency assistance, and although it was a Sunday the Respondent went to the surgery to see him. There is a diary note that the patient presented with swelling and that he had previously been prescribed antibiotics by a general practitioner. There is a further notation that the patient had an appointment with Dr Wee on 4 December 2015, and that a person, whom we assume was a dentist had "left for the day." The clinical notes for this patient indicated that he had previously attended on the practice on 29 July 2015 and did not attend thereafter until 4 December 2015. 7. When questioned about this patient's prior treatment the Respondent said that he had told him on 29 July that he should come in for more treatment, although this was not recorded in the notes. Indeed, the notes of 29 July are cryptic and refer to an extraction of three teeth and the patient had "very broken down roots". Three further teeth were removed on 4 December 2015. We were concerned that the Respondent, not having conducted any physical examination on 29 November 2015 when he had issued the script, he was unable to say whether the patient was suffering from an infection in another area or whether his problems were caused by poor hygiene or underlying decay. It was put to him that on his evidence the patient had a serious swelling and was in a lot of pain and might need hospitalisation. The Respondent said that he had prescribed antibiotics and that this would be the first course of treatment, no matter what the underlying cause of the patient's problems. We expressed concern to him during the course of the hearing about his failure to have prescribed antibiotics without conducting a physical examination and taken x-rays. 8. In all the circumstances, it is clear that the versions of events as given in evidence is different from the information provided to the Council which we have set out above, and indicates that the Respondent did, while suspended, in fact engage in a consultation with the patients, failed to carry out an appropriate physical and diagnostic examination and failed to make an appropriate clinical record. We readily acknowledge that these are matters which go beyond the particulars of the Complaint, but they are relevant to our consideration of what protective orders should appropriately be made. Other matters 1. In the course of cross examination, the respondent conceded that he had given inconsistent information and evidence concerning the criminal charge of possession of cocaine when furnishing information to the police, and in the proceedings before the Local Court and the District Court. He also conceded that he had given inconsistent information and evidence concerning the circumstances surrounding his failure to attend for urine drug testing. It is not necessary that we elaborate on these matters because they were readily conceded during the course of cross examination. It is sufficient for present purposes to state that there are a number of important respects in which the evidence and information provided by the Respondent about these matters were inconsistent and the Respondent did not present as a witness whose evidence was consistently reliable. Again, these matters will become relevant to our consideration of the appropriate protective orders that should be made. Findings on professional misconduct 1. The Respondent has conceded that he is guilty of professional misconduct, which is defined in section 139E of the National Law as follows: 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. The definition of professional misconduct is based upon a finding of unsatisfactory professional conduct, which is defined as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (The remainder is omitted because it is not relevant for present purposes.). 1. It will be seen that the definition of professional misconduct is predicated upon a finding of unsatisfactory professional conduct. This latter misconduct is, in turn, predicated upon the Tribunal being comfortably satisfied on the balance of probabilities that, relevantly: 1. The knowledge, skill or judgment possessed, or care exercised, by the respondent in his practice was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. He contravened a condition imposed on his registration 3. He engaged in other improper or unethical conduct relating to the practice or purported practice of his profession. 1. Because, as we have said, the Respondent has admitted that he is guilty of professional misconduct, and unsatisfactory professional conduct upon which such guilt is based as well as Complaints One to Three as particularised it is not necessary that we deal in detail with the particulars of these complaints. In essence, there are two significant matters which are at the heart of these complaints. 2. The first relates to the practice conditions imposed upon him requiring that he undertake mandatory urine testing. It is obvious from the factual material which we have referred to above that the Respondent resented the imposition of this practice condition because he regarded the circumstances in which he had possession of cocaine as being innocent of any significant wrongdoing and the mandatory urine testing unnecessary because there was no question that he had used cocaine. Nevertheless, it is a fact that the practice conditions were lawfully imposed on his registration and there can be no doubt that they were so imposed for the protection and safety of the public. Practice conditions are an integral and important part of the regulation of health practitioners in New South Wales. The Respondent was obliged to conform to them, and his failure to do so not only arguably jeopardised the safety of the public, but also manifested a disregard by the Respondent of his lawful obligations. We reject the explanation which the Respondent purported to give that his failure to attend for urine testing as particularised in Complaint Two and the positive test results as particularised in Complaint One resulted from periods of hospitalisation. As we have pointed out, there was no co-relation between hospitalisation and all the omissions of the Respondent to attend for urine drug testing and his positive results with respect to all of the relevant days and periods. Furthermore, his assertions that he was merely taking over-the-counter medication and prescription drugs issued under an old prescription ignored the detailed information concerning the drug testing procedures and protocols which had clearly been provided to him by the Council when these practice conditions were imposed. His behaviour is consistent with the observations of Dr Dore that the Respondent was reluctant on occasions to observe rules and regulations which apply to him, including by way of example, the use of seat belts. Rules and regulations which are part and parcel of the important practice of dental surgery are imposed for a purpose, namely the protection of the safety of the public, and any dentist who conducts himself or herself in a manner which is inconsistent with these rules and regulations is thereby exposed to a finding of professional misconduct and the consequent protective orders which may follow. 3. The second matter upon which these proceedings are based concerns the prescription of medication by the Respondent whilst his registration had been suspended to patients as particularised within Complaint One. Again, suspension of registration is imposed for the protection of the safety of the public. It is a serious matter which must be taken seriously by a health practitioner. The Respondent sought to justify this misconduct on two bases, firstly that he did not think that suspension of his registration would preclude him from issuing prescriptions in circumstances where he was clearly not treating a patient, and secondly that what he did was undertaken in an emergency situation where the patient had no recourse to another dentist or doctor. 4. We reject these explanations, and in doing so we observe that despite his protestations the Respondent did engage in a consultation with each of these patients, albeit an inadequate one because no physical examination or other diagnostic tool was used, and it is possible that he may have compromised the safety and well-being of one or more of these patients. These observations are not relevant to a consideration of the establishment of the Complaints brought against the Respondent, but are relevant to the nature of the protective orders that should be made consequent upon a finding of professional misconduct. 5. We are comfortably satisfied on the balance of probabilities that Complaints One and Two have been made out. For the reasons which we have set out we find the Respondent guilty of unsatisfactory professional conduct. In so finding, we are cognisant that the breach by the Respondent of the practice conditions imposed on his registration ipso facto constitutes unsatisfactory professional conduct. However, our finding is based on the totality of the conduct of the Respondent as described by us. 6. Whether and to what extent the misconduct of the Respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made. Some guidance as to the circumstances is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Accordingly, in considering whether or not the misconduct of the Respondent is sufficiently serious to justify suspension or cancellation of registration, we take into account the misconduct itself, the need to deter other dental surgeons from engaging in similar conduct, the need to deter the Respondent in the event that he again engages in the practice of dentistry, and the enhancement of the integrity and reputation of the dental profession in the eyes of the public. We apprehend that the nature of the misconduct is of primary significance in this regard. 2. We regard the behaviour of the Respondent in failing to undertake the mandatory urinary testing which was required of him, even allowing for some latitude occasioned by periods of hospitalisation as being a most serious matter. In the same way, the fact that the Respondent returned a positive test on some occasions in circumstances where we do not accept that there is an adequate or appropriate explanation is also a most serious matter. Finally, the issue of the prescriptions to patients while his registration had been suspended cannot be justified on the basis of ignorance. Prudence would dictate that if the Respondent wished to issue prescriptions whilst his registration was suspended, it would have been appropriate to have made enquiries about whether he was permitted to do so. Suspension of registration must ordinarily carry with it the implication that registration and the privileges attaching to it is not operative during the period of suspension. We can only assume that the attitude which the Respondent adopted in engaging in this aspect of his misconduct was motivated by his predilection to rejecting rules and regulations as noted by Dr Dore, as exemplified by her description of his attitude as "near enough is good enough." The ability to prescribe medication of this kind to patients is a privilege associated with registration. The restricted ability to prescribe this medication is reflective of the concern of the public as contained within the relevant legislation to ensure that only persons who hold the requisite registration can prescribe medication of this kind. This is also a serious matter. 3. Whether and to what extent unsatisfactory professional conduct satisfies the criteria which enables a finding of professional misconduct will be a matter of impression and evaluative judgement. In our opinion all of the matters which we have found proven and which constitute unsatisfactory professional conduct when considered in the aggregate are sufficiently serious to justify a finding of professional misconduct, which we hereby make. Complaint Four – whether a suitable person to hold registration as a dentist. 1. It is a trite observation that the jurisdiction and power of this Tribunal to deal with matters concerning health practitioners must have the requisite statutory basis, which is to be found in this case in the National Law. For present purposes we observe that these proceedings were required to be initiated by way of Complaint brought under the National Law. The grounds for any such complaint may be found in section 144, which is in the following terms: 144 GROUNDS FOR COMPLAINT ABOUT REGISTERED HEALTH PRACTITIONER [NSW] The following complaints may be made about a registered health practitioner-- (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. It will be observed that Complaint Four in its terms purports to be made under paragraph (e). This paragraph follows on a series of paragraphs (a) to (d) all of which describe certain particular matters. Indeed, the matters referred to in paragraph (b) has been specifically referred to in the Complaint. Unlike the other paragraphs, paragraph (e) contains the word "otherwise." This word must convey its ordinary dictionary meaning, namely "in other respects", and where used indicates a category to which the preceding adverb does not apply. That is, for the purpose of section 144, the suitability of the person to hold registration must be ascertained by reference to matters which are not covered by the preceding paragraphs. Although we apprehend that the provisions of paragraph (a) have not been relied upon in connection with any of the Complaints One to Three, we need to consider whether the matter referred to in paragraph (a) is excluded in considering the application of paragraph (e) because although the Respondent was not convicted of the offence of possession of .58g of cocaine, there was a finding that the offence was proven. 2. In written submissions the Complainant stated that in establishing the above particular, it did not rely on the fact that the Respondent had been made the subject of a criminal finding for an offence, but it relied "on the actual conduct of the Respondent on 16 December 2014." There is evidence about this matter which exists independently of any finding made in the course of the criminal proceedings. The Respondent admitted in evidence before us that he had been given .58g of cocaine by a patient, which was in his possession when apprehended by the police. He gave evidence concerning the circumstances in which he had been given the cocaine which was in conflict with versions given on other occasions. There is no doubt that the cocaine was in his possession, nor is there any doubt that this constituted conduct which was not consistent with the community's expectations of the standard of conduct of a dentist. It matters not whether the cocaine was being held for someone else or for his own possible consumption. Possession of the cocaine was unlawful, and a serious matter. 3. We conclude by reference to this matter alone that the respondent is not a suitable person for registration as a dentist. Section149C of the National Law, is in the following terms: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. ... (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The Respondent complained in written submissions that he was in fact being punished twice for the same conduct. We reject this submission It is well-established that conduct can concurrently give rise to both criminal proceedings and involve considerations of misconduct in the practice of a health profession. Protective Orders 1. The available protective orders are those found in section 149 C of the National Law, set out above. As we have previously stated, the Complainant sought cancellation of the registration of the Respondent and the fixing of a minimum period of two years before he might again apply for registration. The Respondent submitted that we should suspend his registration for a further period of one year and impose practice conditions to apply upon resumption of practice. 2. The nature and extent of any appropriate protective orders are to be determined by reference to the primary object of the National Law, namely the protection of the safety of the public, informed also by the other matters referred to in the NSW Court of Appeal in Do, which we have extracted and summarised above. There are a number of matters which we take into account in concluding that the appropriate protective order is one of cancellation with a non-application period of two years as sought by the Complainant. These are: 1. The obvious failure of the Respondent to have serious regard to his obligations to attend for thrice weekly urine analysis testing. We reject, for reasons which we have earlier stated, his excuse for not having done so. We regard his purported reliance on his periods of hospitalisation as being unsustainable, at least in part, and we note that part of his excuse is based on how busy he was in establishing a new practice. This constitutes a contumelious disregard for the regime which then applied to his practice of dentistry. 2. The fact that the Respondent was clearly taking substances which were prohibited by the regime which then applied to him, not all of which can be explained by reference to hospital treatment. Furthermore, the Respondent must have been aware that he was required to inform the Council in advance prior to taking any prohibited substances and should have done so except in the case of one and perhaps two emergency situations when he was admitted to hospital. Again, there was a demonstrated disregard for his obligations. 3. The fact that the Respondent thought that he was able to prescribe medication although his registration had been suspended is indicative either of inappropriate ignorance of or disregard for the consequences of suspension. It is another example of non-compliance with his obligations. 4. The assertion of the Respondent that he did not engage in any consultation with or treat any of the patients to whom he prescribed medication is plainly wrong. It demonstrates that he continues to this day to deal with issues in the manner which he thinks best suits his purpose. He professed not to have conducted any internal examination and he certainly did not have any diagnostic testing in the nature of x-rays and the like carried out even though each of the patients was presenting in what he described as an urgent situation. He obviously must have taken some form of history from each of these patients and in any event, he said that he had access to their clinical notes. In all cases he said that he was aware of their history. For reasons which we have previously explained, what the Respondent did on each occasion was more than simply writing out a prescription, and consisted in part of a consultation, and therefore of treatment. For reasons which we have previously explained, in doing so the Respondent exacerbated his wrongful act of prescribing the medication because he did not have adequate regard to the then underlying cause of the patients' complaints. Clearly, except in the case of patient A, he had not seen them for some time. We do not accept the explanation of the Respondent which he gave in evidence that the prescribing of antibiotics would have been the first line of treatment no matter what the underlying cause of the problem. 5. As we have indicated, the Respondent has given unsatisfactory and conflicting explanations concerning a number of discrete matters. These circumstances do not afford us comfort that, in some way, he is a totally reformed person, even allowing for the confidence that Dr Dore has expressed in the results of her psychotherapy, albeit that she describes this as a "work in progress." 6. We note that Dr Dore expressed the opinion that the Respondent could safely practice dentistry provided that: 1. He would first need to be engaged as an observer in a practice 2. He would need to satisfy recency of practice conditions 3. He would need to be supervised by a category B supervisor 4. He would need to continue with thrice weekly urine testing for a period 5. He would need to continue with regular psychotherapy because he was on "a very long-term journey". It seems to us that the nature and extent of these conditions are such that it cannot be concluded that the Respondent can currently safely practice dentistry. We would regard this cocktail of cumulative conditions as contra indicating any finding that at the present time the Respondent could safely return to practice in the near future. 1. There can be no confidence that the Respondent will be able to return to the practice of dentistry safely, even with appropriate practice conditions such as supervision in the near future. Having regard to the fact that the Respondent has continued to manifest behaviour of the kind which Dr Dore is endeavouring to eliminate, and even though Dr Dore is confident that she is continuing to make progress with the Respondent during the course of her regular psychotherapy sessions with him, it seems to us that there can be no confidence that the Respondent will be fit to practice dentistry safely in the near future. Furthermore, it will be necessary for him to gain recency of practice qualifications, which will also take some little time. 1. Having regard to the necessity to protect the safety of the public, and taking into account the need to allow for some deterrent effect and to uphold the integrity of the profession in the eyes of the public, we are of the opinion that an appropriate protective order based upon the finding of professional misconduct is the cancellation of the registration of the Respondent and the fixing of a period of two years before he can again apply for registration. This conclusion is reinforced by our finding that the Respondent is not a suitable person for registration in the dental profession. Costs 1. The Complainant sought an order for costs which would normally follow the event. The Respondent did not make any contrary submissions and we propose to order accordingly. Orders 1. Pursuant to the reasons which we have advanced above and the findings of professional misconduct and unsuitability for registration as a dental practitioner which we have made we make the following orders: 1. The registration of the Respondent as a dental practitioner is cancelled. 2. The Respondent is precluded from making any application for registration for a period of two years from this date. 3. The Respondent is to pay the costs of the Complainant in an amount assessed in default of agreement. ********** 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: 06 April 2018