Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98 Hearing dates: 25 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Occupational Division Before: A P Coleman SC, Senior Member Dr J Highfield, Professional Member Dr J Dale AO, Professional Member Ms R Kusuma, General Member Decision: (1) Appeal allowed. (2) The orders of the Dental Council of New South Wales made on 18 December 2017 suspending the registration of the appellant are set aside. (3) The respondent is to pay the appellant's costs of the appeal as agreed or assessed. (4) In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law and section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the publication is prohibited of the name, address and any material identifying: (a) any former patient of Dr Coutinho mentioned in the proceedings or evidence, including without limitation the complainant referred to in Exhibit 1 tab 2 at folio 26; or (b) any registered health practitioner, other than Dr Coutinho or his wife, mentioned in the proceedings or evidence. Catchwords: PROFESSIONS - suspension of dental practitioner's registration - serious criminal offence - whether in public interest to suspend registration. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) No 86a. Road Transport Act 2013 (NSW) Cases Cited: Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Lindsay v NSW Medical Board [2008] NSWSC 40 Zeims v the Prothonotary (1957) 97 CLR 279 Category: Principal judgment Parties: Dr A Coutinho - Appellant Dental Council of New South Wales - Respondent Representation: Counsel: Mr J McNab – Appellant Mr A Stafford - Respondent Solicitors: File Number(s): 2018/00017449 Publication restriction: In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law and section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the publication is prohibited of the name, address and any material identifying: (a) any former patient of Dr Coutinho mentioned in the proceedings or evidence, including without limitation the complainant referred to in Exhibit 1 tab 2 at folio 26; or (b) any registered health practitioner, other than Dr Coutinho or his wife, mentioned in the proceedings or evidence. REASONS FOR DECISION Background 1. This is an external appeal brought pursuant to s 79 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 159 of the Health Practitioner Regulation National Law (NSW) (the National Law) from orders made by the Dental Council of New South Wales (the Council) on 18 December 2017. By those orders, pursuant to s 150(1)(a) of the National Law, the respondent suspended the appellant's registration as a dentist (the Council's Decision). 2. The hearing of this matter took place on 25 May 2018. On that day the Tribunal made orders that the appeal be allowed, and the Council's Decision be set aside. A consequential order was made with respect to the service of submissions on costs. 3. The Tribunal reserved its reasons for making those orders. These are those reasons. Facts giving rise to the Council hearing 1. The background facts which gave rise to the hearing before the Council are not in dispute. The effect of those factual matters going to whether it was in the public interest for the registration of the appellant to be suspended, within the relevant statutory scheme (which is discussed below), was the gravamen of the appeal. 2. The appellant is a registered dentist practicing in several towns in Northern New South Wales. His former wife is also a registered dentist and she was in partnership with the appellant in some of those practices and had an interest in certain companies with the appellant. 3. On 15 December 2013 in Ballina, the appellant was charged with drive mid-range PCA, first offence, under s 110(4)(a) of the Road Transport Act 2013 (NSW). The appellant pleaded guilty to that offence on 23 January 2014 in the Ballina Local Court. The Court accepted the plea but did not proceed to a conviction and the appellant was required to enter into a bond to be of good behaviour for two years. There is no allegation that the appellant failed to comply with the terms of the bond. 4. The appellant did not give written notice of this charge or his guilty plea to the National Board. The appellant's evidence was that he now understands that pursuant to s 130(3) (a) (ii) of the National Law he ought to have given such notice within 7 days of the guilty plea. As detailed below, his evidence was, however, that he was not aware of that obligation at the time of the offence. 5. On 8 July 2017 the appellant was charged with the offence of assault occasioning actual bodily harm. The assault occurred in a domestic violence situation, in that the appellant's then wife was the victim. The charge was brought under s 59 of the Crimes Act 1900 (NSW). The maximum penalty for the offence is imprisonment for 7 years. 6. On 1 September 2017 the appellant pleaded not guilty to the charge and there was a defended hearing at Ballina Local Court. The appellant unsuccessfully raised self-defence. The appellant was found guilty. He was sentenced to enter into a bond to be of good behaviour for a period of 12 months and was made subject to an apprehended domestic violence order for a period of 12 months. 7. It is not disputed by the appellant that he now understands that, pursuant to s 130(3)(a)(i) of the National Law, as the offence was punishable by a term of imprisonment for a period of 12 months or more, he was obliged to give to the National Board written notice of the charge within 7 days of it being laid. His evidence was that he was not aware of the precise scope of that obligation at that time. His evidence was that on the afternoon of the hearing following his conviction, he telephoned the Australian Health Practitioner Regulatory Agency (AHPRA) and spoke, for 7 minutes, to a person called Mark. He says he was told by Mark that he was required to make full disclosure of the charge when his registration as a dentist became due for renewal. 8. When the paperwork for the appellant's registration for renewal was received by him in early October 2017, he says he completed a statutory declaration outlining all offences and charges referred to above. Whilst there was some further correspondence with respect to the appellant providing an original of the statutory declaration, there is no dispute that the appellant did then give to AHPRA notice of the charge for mid-range PCA and the assault offence and conviction. 9. On 11 December 2017 and 15 December 2017, a hearing to consider whether the appellant's registration should be suspended was convened pursuant to s 150 of the National Law. The appellant appeared at that hearing, was assisted by a member from the Australian Dental Association and gave evidence. The Council's Decision 1. Following the hearing, by letter dated 18 December 2017 (received by the appellant on 20 December 2017) the Council notified the appellant that it had decided to suspend his registration as a dentist effective from 18 December 2017. 2. The Council published its reasons for its decision on 10 January 2018. It noted that the issues before it were: Issues The central issue for the Delegates to consider is whether Dr Coutinho poses a risk to the safety or health of the public that warrants action to be taken by the Council and whether it is generally in the public interest for the Council to take action. As there is no obvious risks to the health and safety of the public the Delegates formed the view the focus of the Proceedings would be on what is generally in the public interest. Therefore, the following questions must be answered: i What is the public interest? ii Does the practitioner's conduct accord with the public interest? If the Delegates conclude that the public interest warrants action being taken, the following questions must be answered: i Are there conditions that could be imposed to minimise that risk? ii If not, should Dr Ajay Coutinho's registration be suspended? 1. The Council continued: What is the public interest? The public has expectations of dental practitioners to maintain the community trust in their profession. These expectations include that dental practitioners will serve the public's health needs with competent, ethical and professional care and that they will exhibit behaviours and attitudes that reflect the expectations of their colleagues and the broader community. it is part of the key public interest role of the Council to ensure that community trust is maintained in the dental profession and that there is no public perception that dental practitioners or dental regulators will not act to effectively sanction conduct but falls short of the expected standards. Maintenance of a minimum standard of conduct and behaviour not only protects and safeguards patients, it will uphold the reputation of the profession and its status in society. The public interest is served for both the profession and patients in this way as it helps to maintain public confidence in the dental profession. If it appears a practitioner has acted unlawfully, public interest would require that action be taken. If a practitioner has failed to act in the best interest of a patient, or if a practitioner has failed to provide appropriate care, has failed to meet the standards of the Dental Board of Australia Code of Conduct, public interest would require that action be taken. Clearly the public has a strong interest in patients being able to trust a dental practitioner and be confident that the practitioner will not be subject to actions that may amount to serious breaches of the Code of Conduct and the criminal law. Does the practitioner's conduct accord with the public interest? Dr Coutinho was found guilty of the offence of assault occasioning actual bodily harm on 1 September 2017. The conduct of Dr Coutinho is manifestly against the public interest. The charge of assault occasioning actual bodily harm is very serious and is in the context of domestic violence as the victim is Dr Coutinho's wife, Dr Philida Noronha, a fellow dental practitioner and his business partner. Dr Coutinho has acted unlawfully. Dr Coutinho has failed to meet the standards of the Code of Conduct. Only fit and proper persons are eligible to be registered as dental practitioners under section 55 of the National Law (NSW). Dr Coutinho's charge of assault occasioning actual bodily harm attracts a maximum penalty of five years gaol. The category of Dr Coutinho's offence affects a person's fitness and propriety to practice as a member of the dental profession. 1. The Council then went on to consider the evidence that was before it. That evidence included a curriculum vitae of the appellant and evidence about his practice arrangements in each of the locations where he practiced as a dentist. There was quite a deal of evidence about his corporate arrangements and whether he had placed himself in a position of conflict of interest. There was also some evidence about inconsistencies in his CV. The evidence with respect to his corporate and practice arrangements, and any alleged conflict of interest, need not be considered further on this appeal as the respondent has accepted that it is not relevant to the issues before the Tribunal. 2. The Council also reviewed the evidence of the appellant about his ignorance of the obligation to inform AHPRA in writing within 7 days of a relevant event (which would have included each of the charges and convictions referred to above). The Delegates were critical of the appellant's stated ignorance of this obligation. They considered his evidence on this topic adversely effected his credibility. 3. The Delegates concluded: Dr Coutinho's Conduct has been found wanting in relation to his role as a company director, his charge, and sentence under s 10 for midrange drink driving and his failure to notify the DBA within seven days of that "event", his failure to notify the DBA within seven days of his charge for the AOABH and his unreliability as a witness. However, in assessing Dr Coutinho's fitness and propriety to practice as a member of the dental profession the most serious consideration for the Delegates is the crime committed by Dr Coutinho. It is of concern to the Delegates that despite the finding of guilty Dr Coutinho declared in his Statutory Declaration dated 16 October 2017 "I considered my actions as self-defence, but was found guilty", Dr Coutinho made that same statement in his oral evidence. It does not give the Delegates comfort that Dr Coutinho has remorse or insight into his behaviour. Dr Coutinho's actions amount to serious breaches of the DBA code of conduct and the criminal law and do not accord with the public interest. it is the decision of the delegates that Dr Coutinho is not at this time a fit and proper person to practice as a member of the dental profession. 1. The Delegates considered that there were no conditions relevant to "protect the health and safety of the public" and decided that his registration should be suspended. The Nature of the Appeal 1. Dr Coutinho appeals to the Tribunal by right pursuant to s 159(1)(a) of the National Law. Section 159(3) of the Law provides that: 1. …The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may by order terminate, vary or confirm a period of suspension or, vary or confirm the conditions, as it thinks proper. 2. the Tribunal's order must not cause a suspension or conditions imposed by a Council to have an effect beyond the day on which a related complaint about person is disposed of. 1. Each party addressed the nature of the appeal in their helpful written submissions. Reference has been made to authorities which have considered the nature of an appeal such as this. Those authorities include Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 and Lindsay v NSW Medical Board [2008] NSWSC 40. The applicable principles are most helpfully summarised in Karimi at [123], quoted by each of the parties: Hanna v Medical Council of NSW [2017] NSWCATOD 27 and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 provide useful guidance as to the nature of an external appeal under s 159 of the National Law against a decision of the Council to suspend a medical practitioner's registration under s 150. The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: 1. Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]) 2. Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) 3. Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) 4. No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) 5. Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) 6. Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) 1. Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) 2. Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) 7. No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) 8. Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) 9. Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law). 1. In this case, there is no suggestion that the appellant poses a danger to any member or part of the public such that we must consider the protection of the health and safety of any person or persons. Rather, our task is to consider, on the material before us, whether the conduct of the appellant involves a risk otherwise not in the public interest such that his registration should be suspended. The authorities inform us that the scope of that inquiry includes the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession. The Grounds of Appeal 1. The appellant sought, and was granted, leave to rely on an amended external appeal form. That form contains the following grounds of appeal: DENIAL OF NATURAL JUSTICE 1. The Appellant has been denied natural in the following instances: a. the suspension of registration was imposed to commence on a date prior to the appellant being notified; b. The suspension of Notification was given without the provision of any reasoning in support of the Council's decision; c. The suspension is for an indeterminate period; and d. The appellant was not given any opportunity to "show cause" as to why suspension of registration should not be imposed. SEVERITY 1. The penalty of Suspension is considered too harsh/severe by reasons such as: a. The appellant is denied from earning an income as a dentist for an indeterminate period without reason; b. Other options of less severity (such as supervision) could be imposed in the interim c. … d. The subject matter under investigation is not associated with the risk to the public, other practitioners nor patients. GENERAL 1. The Council failed to apply the Briginshaw standard of proof in their determination; 2. The Council made a number of findings of fact. 1. We do not think it is necessary to consider all of the grounds individually. That is because, as observed above, the relevant question before us is whether it is in the public interest that the registration of the appellant to practice as a dentist be suspended. In ground 2, the appellant contends that the suspension imposed by the Council was too severe for reasons which include that the matter under investigation is not associated with a risk to the public, other practitioners or patients. We are prepared to read this ground as raising the relevant question before us. Indeed, a consideration of that question occupied the vast majority of the hearing before the Tribunal. The reference to the matter under investigation can be understood to be the investigation by the Health Care Complaints Commission (HCCC) into the conduct of the appellant and whether any disciplinary or other steps will be taken with respect to that conduct. 2. For the reasons that follow, based on the evidence before us, we formed the view that it was not in the public interest that the registration of the appellant be suspended. That conclusion is enough to dispose of the appeal with the consequence that it is unnecessary to consider the other grounds of appeal. The material before the Tribunal 1. The appellant placed before the Tribunal a significant bundle of material (Ex A) including a lot of material going to his corporate and financial arrangements. That was to deal with the criticisms made of him by the Delegates in the Council decision. As we have noted, the respondent's counsel indicated at the hearing that the respondent would not be pressing any submissions that this material was relevant to whether it was in the public interest that the appellant's registration be cancelled. We are able to disregard that material. 2. The appellant also placed before the Tribunal, and read, an affidavit made by him on 21 March 2018, and its annexures. The appellant gave evidence and was cross examined. 3. The respondent also placed a considerable amount of material (Ex 1 and Ex 2) before the Tribunal including the Council's reasons for decision, the transcript of the hearing before the Council, relevant documents dealing with the appellant's registration and history, the transcript of the Local Court hearing on 1 September 2017 and the orders made by that Court following the conviction of the appellant, the DBA Code of Conduct, correspondence with the appellant and legislative extracts. 4. We have considered all of the relevant material put before us. The appellant's evidence 1. The appellant graduated to the degree of Bachelor of Dentistry from Mangalore University in India in 1998. In 2001 he was awarded Master of Dental Surgery in Conservative Dentistry and Endodontics from Manipal University in India. In October 2004 he sat and passed the Australian Dental Council Examination. He did so on his first attempt. In 2013 he was admitted as a Fellow of the Royal Australian College of Dental Surgeons. In 2016 he was awarded a Masters of Science in Endodontics (Pass with Merit) from King's College, London. In October 2016, he completed a postgraduate Certificate course in Advanced Oral Implantology at Manipal University in India. It can be seen that he is a very well qualified dental surgeon. There has not been any other complaint substantiated against him in respect to his practice as a dentist. 2. The appellant gave evidence of the charge of assault occasioning actual bodily harm made against him on 8 July 2017. In his affidavit he stated that "I believed my actions were in self Defence and pleaded this defence at hearing. However, I accept the findings of the court." He had made similar statements in a statutory declaration made by him on 16 October 2010 by which he made disclosure of the charge and conviction for that offence (and for the mid-range PCA charge) to the National Board. 3. The appellant was cross examined extensively about this evidence. It was suggested to him that there was an inconsistency between maintaining his belief that he was acting in self-defence on the one hand, yet accepting the court's rejection of him acting in self-defence. Reference was made in cross examination (and in closing submissions) to passages of his evidence before the Local Court in this regard. It was suggested to the appellant that his position in maintaining that he was acting in self-defence shows a lack of insight into his conduct. The appellant maintained that he was acting in self-defence but accepts that he was found guilty by the Court. 4. The appellant was also cross examined about the evidence given by a Constable Brown about the incident. It was suggested to him that he gave untruthful evidence before the Local Court. The appellant did not accept that he gave untruthful evidence before the Local Court. Counsel for the respondent pointed out that the Magistrate had disbelieved parts of the appellant's evidence and did not find him to be a witness of credit. The appellant maintained he was giving an honest account of the events, but accepts the Magistrate's findings. 5. The appellant was also cross examined about his supposed failure to make any concessions before the Local Court. It was suggested that he "didn't give up anything" in those proceedings. The appellant stated that he gave evidence in those proceedings to the best of his ability. 6. The appellant also gave evidence about the circumstances of his failure to report the PCA charge in 2013. That charge was not reported until he made his statutory declaration on 16 October 2017 when he disclosed that charge, and the assault offence, to AHPRA. The appellant said that at the time he understood the obligation to report was limited to convictions. He said that he understood this meant being found guilty by a court, not simply being charged. He said he now understood that this was incorrect. 7. The appellant was cross examined about his evidence to the Delegates at the s 150 hearing that he had been advised by lawyers at the time of the PCA charge that even though he had pleaded guilty, as there was no conviction there was no criminal charge and thus the matter did not need to be disclosed to anyone. The appellant's evidence was that his failure to initially disclose the PCA charge arose from that advice together with ignorance and not dishonesty. 8. The appellant was also cross examined about the circumstances leading to the disclosure of the assault conviction. It was his evidence that on the afternoon following his conviction for that offence on 1 September 2017, he had telephoned AHPRA and spoke to a person called Mark. He said the call lasted for 7 minutes. The appellant annexed to his affidavit an extract from his mobile phone records which showed a call to AHPRA's number on 1 September that lasted for 7 minutes. It was suggested to him that to report the conviction would not take 7 minutes, however, he answered, and we accept, that the conversation did not take all of the 7 minutes but there was some time to get through and when he was on hold. 9. The evidence was that in the phone call with Mark, the appellant disclosed not only the conviction for assault, but the historical PCA charge. It was suggested to the appellant that if, as he had already stated with respect to the 2013 PCA charge, he thought that there had been no criminal charge, there was no need for him to disclose that matter to Mark. The appellant said he was trying to be open and honest and had nothing to hide. He said he does not know exactly why he told Mark of both the PCA charge and the assault conviction, but he did tell him and was advised to disclose those matters when next he renewed his registration. We note that there was no suggestion by the respondent that the number called by the appellant, as evidenced by his phone records, was not that of AHPRA. Nor was it suggested that there was no person by the name of Mark at AHPRA who may have taken the appellant's call on 1 September. 10. In answer to questions from Dr Dale, a Tribunal member, the appellant stated that following the transition to the National Law he had not received any lectures on his legal responsibilities as to disclosure. Whilst he had received some material about the National Law, and knew it was online, he had not considered it all in detail nor read it all online. 11. The appellant also gave evidence about his financial and personal circumstances. He now lives alone in Ballina and pays $600 per week in rent. He has no means of income since his registration was suspended. He has two children from his marriage with his former wife. Family Court proceedings are on foot and are back before the family Court in July this year. He has some supervised contact with his children every two weeks. He receives approximately $4,000 per month in spousal support from his wife, although she sometimes misses payments. Together they own 5 properties which are rented and dental practices are operated out of at least some of them. Dr Coutinho said that he has incurred approximately $25,000 in legal expenses in respect to the current matter. 12. Finally, the appellant also gave evidence about courses he had undertaken since the conviction including a Building Connections Course, an Ethics and Governance Course, a Diploma in Leadership and Management Course (part completed) and, significantly, an anger management course. The parties' submissions The Respondent 1. We have had regard to the matters raised by the respondent in its written submissions. 2. In oral argument the respondent submitted that the suspension of the registration of the appellant was warranted and should be maintained. This was in the context of the accepted legal principles that a professional's conduct even outside of their profession, could be such that they are not a fit and proper person to practice in the profession (see for example Zeims v the Prothonotary (1957) 97 CLR 279). It was submitted that the offence of the assault occasioning actual bodily harm, in the domestic violence context, was so serious that it bears in a weighty way on the appellant's capacity to practice. It was also submitted that the seriousness of the offence was such that the public perception of the profession of dentistry would be adversely affected if the suspension was not maintained. 3. The respondent submitted that, for the purposes of the test under s 150 of the National Law, and considering the public interest, the following matters support a conclusion that it was in the public interest that the appellant's registration be suspended: 1. The circumstances of the offence, being a serious assault in a domestic violence situation, particularly as the victim was also a dentist; 2. The failure to disclose the PCA charge and the conviction within the required 7-day period; 3. The fact that by maintaining that he was acting in self-defence, the appellant shows a lack of insight into his conduct and behaviour; and 4. The inconsistency between his continuing to maintain that he was acting in self-defence and purporting to accept the Court's findings to the contrary. 1. The respondent did not put to the appellant in cross examination, nor submit, that the appellant had been dishonest in his evidence to the Tribunal. Nor, as has been noted above, did it submit that the appellant posed any risk to the public or any particular person or persons. Rather, it submitted that in all of the circumstances, the conduct of the appellant and the seriousness of the offence, made it such that it was not in the public interest for the appellant to continue to practice as a dentist pending resolution of the investigation against him and his suspension should continue. The appellant 1. The appellant's counsel submitted that the appellant was an extremely well qualified dentist with an otherwise unblemished record. He submitted that it was in fact in the public interest for the appellant to continue to practice as he provides dental services in rural and regional NSW where the services of dentists are needed. He submitted that, whilst it can and should be accepted that the assault offence is a very serious one, this of itself, is not enough in these circumstances to mean that it was in the public interest that the registration of the appellant be suspended. He submitted that the reasons given for the non-disclosure were borne out of ignorance, were understandable and again, of themselves, would not be enough to warrant suspension. He submitted the appellant should be allowed to return to practice. Disposition 1. In reaching our decision we are conscious of the protective nature of the jurisdiction we are exercising under s 150 of the National Law. We are also conscious that we need to balance the exercise of that jurisdiction with considerations of the draconian nature of a suspension and the other matters raised in the authorities. Of course, we are not to make any conclusive findings of fact, nor are we to decide whether the appellant is a fit and proper person to practice as a dentist. That may be alleged in a complaint raised against the appellant after a proper investigation by the HCCC. If such a matter is raised, it will be determined in accordance with the appropriate disciplinary procedures. The task we have to undertake is to decide, on the material before us, whether the public interest, including the need for patients and others to have confidence in the competence of dental practitioners and that they will exhibit traits consistent with the honourable practice of that honourable profession, requires the suspension of the appellant's registration. 2. We accept that the appellant has committed a serious offence. We accept that in some circumstances the commission of a serious criminal offence may, even without more, be enough to warrant a finding that it is not in the public interest that a professional be allowed to continue to practice in their chosen field either until the relevant complaint processes are completed, or at all. Of course, it is trite to say that each matter must be considered on its own facts. Reference to other authorities may provide guidance on the principles to be applied and examples of the application of those principles, however, as the factual circumstances and context of the conduct involved will ordinarily be different in each case, they cannot be used as a direct comparator to say if one type of offence is committed, the same result must automatically follow. 3. The respondent submitted that the offence in this case was more serious, and more significantly impacted on the public interest, because the victim of the assault was also a dentist. We do not accept that submission. We see no connection between the fact of the victim being a dentist and the public interest necessitating the appellant's registration being suspended. The more serious aspect of the assault was the domestic violence aspect of it. However, we do not accept that because the offence was committed in a domestic context, that of itself automatically means that it is in the public interest that the appellant be suspended from the practice of his profession. Determining whether the public interest requires a suspension of a professional's registration involves a balancing of matters including the nature of the offence, whether the conduct giving rise to the offence would lead to the erosion of confidence by the public or patients in the relevant profession, as against the draconian nature of the suspension and its impact on the professional involved and his or her patients. 4. From all of the material before us, we formed the view that whilst the offence was serious, it was the first such offence committed by the appellant. There is no suggestion that there is a substantial, or any, risk of the appellant re-offending. We have formed the view that, even having regard to the serious nature of the offence, the public interest does not warrant the suspension of the appellant. We do not accept that, in the circumstances, if the appellant is allowed to continue to practise pending the investigation into his conduct, patients would lose confidence in the competence of dental practitioners. We do not think that the circumstances of this case support the draconian measure of a suspension of the appellant's registration with the significant adverse effects it has had, and will have on him. Of course, the adverse effect on the appellant is not determinative and does not outweigh the public interest if we otherwise thought that a suspension was required. We also consider that there is a relevant public interest in favour of not suspending the appellant's registration having regard to the fact that he is a highly qualified practitioner, with an unblemished professional history, providing specialised dental treatment in rural and regional parts of New South Wales. 5. With respect to the alleged inconsistency between the appellant's maintenance of his belief that he acted in self-defence whilst purporting to accept the Court's findings, we do not accept the respondent's submissions that this shows a lack of insight by the appellant into his behaviour. We carefully observed the appellant giving evidence. We formed the view he was doing the best he could in an upsetting and stressful situation to honestly answer the questions asked of him. He appeared to genuinely accept the Court's findings and was remorseful that the whole event had occurred. He still believes he acted in self-defence. This does not make his evidence that he accepts the Court's findings dishonest (which was not put to him) nor inconsistent. It is plausible that he maintains an honest belief he was acting in what he, as a lay person, believed was self-defence but accepts that the Court has reached a different view based on its factual findings and application of the law. 6. As to his failure to disclose the PCA charge, whilst it is now apparent to the appellant that this should have been disclosed, his ignorance of the obligation to disclose the charge at the time whilst unfortunate (and having regard to the advice he said he received), is not sufficient to tip the scales of the public interest in favour of suspension. Whilst there is no evidence before us, we would be surprised if the appellant was the only dentist (indeed professional) who was ignorant of, or misunderstood, their reporting obligations particularly when no conviction has been recorded. 7. We accept the appellant's evidence as to the circumstances of his belated disclosure of the assault charge. We accept his evidence of the conversation with Mark from AHPRA as corroborated by his phone records. We note that he made full disclosure of all relevant matters on the first occasion the renewal of his registration was due, in accordance with the advice he said he received from Mark. 8. In all of the circumstances, we are not satisfied that it is in the public interest that the registration of the appellant be suspended. Costs 1. Each party has, in accordance with the direction we made at the conclusion of the hearing, provided brief submissions as to costs. The respondent correctly concedes that the costs discretion is, in cases such as this, unfettered under cl 13 of Schedule 5D of the National Law, and that costs usually follow the event absent disentitling conduct. The appellant was successful in the proceedings. There is no allegation of disentitling conduct by the appellant so as to impact on the question of costs. Accordingly, we will order that the respondent is to pay the appellant's costs of the appeal as agreed or assessed. Non-Disclosure Order 1. There was some discussion at the conclusion of the hearing as to the necessity for, and form of, a non-disclosure order. The parties were directed to confer and inform the Tribunal of the agreed form of any such order. They have done so. The form of the order they proposed was: In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law and section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the publication is prohibited of the name, address and any material identifying: a. any former patient of Dr Coutinho mentioned in the proceedings or evidence, including without limitation the complainant referred to in Exhibit 1 tab 2 at folio 26; or b. any registered health practitioner, other than Dr Coutinho or his wife, mentioned in the proceedings or evidence. 1. We are satisfied that it is desirable to make an order in that form. Orders 1. The orders we make are: 1. Appeal allowed. 2. The orders of the Dental Council of New South Wales made on 18 December 2017 suspending the registration of the appellant are set aside. 3. The respondent is to pay the appellant's costs of the appeal as agreed or assessed. 4. In accordance with Schedule 5D clause 7 of the Health Practitioner Regulation National Law and section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the publication is prohibited of the name, address and any material identifying: a. any former patient of Dr Coutinho mentioned in the proceedings or evidence, including without limitation the complainant referred to in Exhibit 1 tab 2 at folio 26; or b. any registered health practitioner, other than Dr Coutinho or his wife, mentioned in the proceedings or evidence. ********** 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: 26 June 2018