Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137 Hearing dates: 8 August, 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: (1) application for permanent stay dismissed (2) costs are reserved Catchwords: Dental practitioner – multiple complaints of misconduct- application for permanent stay – held delay in prosecution of complaints did not render the proceedings an abuse of process – application refused Legislation Cited: Child Protection (Working with Children) Act Health Care Complaints Act Health Practitioner Regulation National Law Cases Cited: Council of the Law Society of NSW v Clarke [2017] NSWCATOD142 Jago v The District Court of NSW [1989] HCA 46, 168 CLR 23 Minister for Immigration and Citizenship v Szizo [2009] HCA 37 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Tusitha Karunaratne (Respondent) Representation: Counsel: P Strickland SC (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2017/00327514 Publication restriction: The publication of the name of any person who was a patient of the respondent and any information tending to identify any such person is prohibited reasons for decision Background 1. The applicant in these proceedings, the Health Care Complaints Commission filed an Application for disciplinary findings and orders in this Tribunal on 30 October, 2017 seeking certain disciplinary orders against the respondent Dr Tusitha Karunaratne pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The applicant alleged that the respondent was not a suitable person to be registered under the National Law as a health practitioner by reason of his conviction for certain offences and by reason of him having engaged in unsatisfactory professional conduct and professional misconduct as those expressions are defined under the National Law. 2. The Application is based in part upon certain events which were alleged to have concerned two patients of the respondent which occurred in the years 2000, 2001 and 2002. There are further events which are alleged to have occurred involving a person working as a casual assistant at a place where the respondent was employed between 12 and 14 January, 2015. Finally, the Application is based upon the conviction of the respondent on 5 March, 2008 for a number of offences for which he was sentenced to imprisonment for a period of 4 ½ years commencing on 6 June, 2008. The respondent was released from custody on parole on 11 December, 2010. These offences all concerned one particular person with whom the respondent was in a personal relationship. They included assaults committed in about March 2003, June 2004 and July 2005 the use of an offensive weapon on 27 November 2003 with intent to commit an indictable offence, and sexual intercourse without consent in April 2005. 3. On 8 June 2018 the respondent filed an application seeking that so much of the proceedings about which complaints were made, other than those concerning the events of January 2015 should be permanently stayed. The basis for the application for a permanent stay was said to be the delay in commencing the proceedings which was said to render their continuation harsh, vexatious, oppressive and an abuse of process. Constitution and jurisdiction and powers of the Tribunal 1. Both parties agreed that this Tribunal has jurisdiction and power to determine these interlocutory proceedings. Both parties agreed that the Tribunal was empowered to deal with them as currently constituted. Whilst such agreement does not per se bestow jurisdiction and power, it is well-established that these are interlocutory proceedings and that I am empowered to deal with them sitting alone. Furthermore, overall jurisdiction and power was the subject of detailed consideration by this Tribunal in Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142 and I rely on that Decision. Some further background material 1. Both parties tendered into evidence documentary material referable to the factual background to these proceedings and the respondent gave evidence. Such evidentiary material which is, or which may be, relevant to the underlying substantive proceedings for the purpose of considering this interlocutory application for a permanent stay will be accepted as being limited to that purpose. Whether and to what extent any of such evidentiary material may ultimately become evidence in any substantive proceedings will be a matter for the Tribunal constituted for the purpose of determining those proceedings. The reference to that evidentiary material which follows is limited accordingly. Complaint 1- Patient A 1. This complaint alleges inappropriate sexual conduct with a female patient between March 2000 and March 2001. The patient made a police complaint on 7 March 2001. However, the patient informed a police officer that she did not wish the police to pursue the matter and said that she would contact the Australian Medical Association. The respondent was interviewed by police officers on 25 October 2002 following a complaint to police which had been made by patient B during which his conduct with patient A was raised. He was charged with an offence of aggravated sexual assault of patient A. Patient A made a statement to police on 28 October 2002. On 29 October 2002 a police officer sought certain information concerning the registration of the respondent from the Dental Board of Australia without reference to the name of any patient. That information was provided to the police. On 26 August 2003 patient A told police that she wished to withdraw her complaint because the outcome would be determined on whether she or the respondent was to be believed and she did not wish to subject herself to that exercise. Police charges were withdrawn on 9 September 2003. 2. In circumstances which I shall shortly describe, the applicant contacted the Dental Council of NSW on 27 September 2011 concerning other matters involving the respondent. No action was taken by the applicant with respect to those matters, for reasons which shall also be discussed. However, the Dental Council of NSW became concerned in July 2014 about other matters involving the respondent. In the course of investigating those matters an investigator employed by the applicant conducted a Criminal History check concerning the respondent on 21 October 2014, and eventually received a number of documents from the police, including documents referable to the charge initially made arising out of the complaint by patient A. The investigator contacted patient A in March 2015 who at first was reluctant to become involved in any complaint made against the respondent for reasons which she expressed. Subsequently, on 9 July 2015, patient A forwarded to the applicant a copy of a police statement and an affidavit which she had sworn in 2006 in Family Court proceedings involving the respondent. Thereafter the applicant considered the initiation of a number of complaints against the respondent, including a complaint referable to patient A. The matter was delayed during the course of correspondence with the respondent's solicitors who had submitted that all investigations into all complaints should not proceed. 3. Following the completion of investigations by the applicant into all of the complaints in June 2017, the Application for disciplinary findings including the complaints with respect to patient A was filed on 27 October 2017. Complaint 2 – patient B 1. This complaint concerns a consultation with this female patient on 17 October 2002 in which she alleged that the respondent engaged in inappropriate sexual conduct with her. The patient made a complaint to the police on 21 October 2002 and gave a statement. The respondent was interviewed at length by police on 25 October 2002. He was charged with a criminal offence, committed for trial and was acquitted of all charges on 11 March 2004. 2. Subsequently, patient B was contacted by an investigator employed by the applicant on 9 March 2015 in similar circumstances to those described generally in [7] above. 3. The conduct of the respondent in connection with Complaints 1 and 2 was considered by the Dental Council of NSW in proceedings conducted on 15 April 2015 under section 150 of the National Law when it determined to impose practice conditions on the registration of the respondent requiring him to have a female chaperone present when treating female patients. The respondent participated in those proceedings. By letter dated 5 June 2015 the applicant informed the respondent that a complaint had been received from the Dental Council of NSW which required investigation. There followed correspondence between the applicant and the respondent's solicitors as generally described in [7] above, including matters referable to this patient and the institution of proceedings described in [8] above. Complaints 5 - 6 a person with whom the respondent was in a personal relationship 1. These complaints are based firstly on a conviction for criminal offences in NSW and secondly on an assertion that the respondent is "otherwise not a suitable person to hold registration as a dentist." In essence, they arise out of a conviction on 5 March 2008 for six offences involving common assault, use of an offensive weapon to commit an indictable offence and sexual intercourse without consent. The respondent was sentenced to imprisonment for a period of 4 ½ years, with a non-parole period expiring on 5 September 2010. He was released from custody on parole on 11 December 2010. 2. The respondent's solicitors advised the Dental Board of Australia concerning his conviction for these offences on 15 October 2008 and on 7 November 2008 renewal of the respondent's registration as a dentist was refused. On 7 February 2011 the respondent again applied to AHPRA for registration as a dental practitioner. In his application he disclosed that his registration in Australia was currently cancelled and referred to an annexure to his application which took the form of a letter from his then solicitors dated 22 December 2010 addressed to the Dental Board of Australia. That letter contained detailed material concerning the convictions for the offences referred to above. The letter then proceeded to state as follows; Prior to that time (the respondent) had no criminal record. He had been previously charged with two separate matters for which he did not commit. On about 25 October, 2002 (the respondent) was charged with one count of aggravated sexual assault, victim under authority and one count of assault with indecency ("the 2002 charges"). One of those charges was later withdrawn by police, the other was defended and (the respondent) was acquitted after a District Court trial in about 2004. (The respondent) has not been charged with any offences other than those disclosed above. 1. The applicant was reregistered as a dental practitioner by AHPRA on 8 March 2011. 2. On 6 December 2011 the Dental Council of NSW wrote to the applicant making a complaint against the respondent in relation to his "conduct", seemingly a reference to the conduct which gave rise to the respondent's conviction for the offences previously described and his imprisonment. The applicant responded by letter dated 13 February 2012. That letter said that the applicant had ascertained that the NSW Registration Committee of the Dental Board of Australia had considered that the respondent's criminal history "was not relevant to the practice of the profession and resolved that he be granted general registration as a dentist." In light of that decision, the applicant said that it did not propose that any further action be taken by it concerning the respondent. 3. The respondent, although registered as a dentist, was not entitled to provide dental treatment to persons under the age of 18 because his conviction in 2008 rendered him a "disqualified person" under the Child Protection (Working with Children) Act, 2012. He applied to this Tribunal for an enabling order to avoid his status as a disqualified person. During the course of giving evidence in those proceedings, the respondent made mention of the fact that he was initially charged with an offence in 2001, presumably relating to patient A, which charge was later withdrawn, and that he had been charged with sexual assault in 2002, presumably relating to patient B, and had been acquitted. A further matter had also come to the attention of the Tribunal during the course of those proceedings. None of these matters had been disclosed by the respondent to the Tribunal in connection with the application that he had made. In a Decision published on 16 April 2014 the Tribunal refused the application on the basis of the failure to disclose these matters. On 3 July 2014 the Dental Board of Australia, part of AHPRA, wrote to the Dental Council of NSW to make a "notification" against the respondent arising out of the decision of the Tribunal and the reference to non-disclosure of certain matters. It was said that those matters should have been considered in connection with the decision to extend registration to the respondent in March 2011. The Council was asked to consider the fact of non-disclosure of those matters as grounds for a complaint against the respondent under the National Law. (I mention for completeness only that that Decision of the Tribunal was quashed by Adamson J in the Supreme Court of NSW on 27 February 2015 on the basis that the Senior Member who had constituted the Tribunal had failed to apply relevant statutory provisions. Despite the fact that the Decision was quashed, it nevertheless plays a part in the relevant history which forms the backdrop against which the current substantive proceedings were instituted, and which have given rise to these interlocutory proceedings.) It should be noted that the allegation of non-disclosure was not correct. There had been disclosure contained in the solicitor's letter of 22 December 2010 referred to above which accompanied the application for registration made in February 2011.The Dental Council referred the matter to the applicant for investigation on 3 July 2014. 4. Following this request the enquiry referred to in [11] above was conducted on 15 April 2015 by the Council under section 150 of the National Law which was attended by the respondent. The Delegates of the Council determined to impose practice conditions on the registration of the respondent which, inter alia, precluded him from treating children under the age of 18 years. The respondent then decided that he would no longer practise as a dentist and has not done so since. 5. There then followed the matters referred to in [7] and [8] above. 6. Additional factual matters will be considered in the course of a discussion of the submissions advanced by each of the parties in the course of the proceedings. The basis for the application for a permanent stay 1. In general terms, the respondent asserted that there had been non-compliance with certain statutory requirements in connection with Complaints 1 and 2. He also complained generally of the time which had elapsed since the offences the subject of all of these complaints had taken place, and the significant delay in instituting these proceedings. The respondent claimed to have been prejudiced thereby in defending these proceedings. The respondent also relied on the fact that the applicant had determined on 13 February 2012 to take no further action with respect to the matters the subject of the respondent's convictions, being aware of the withdrawal of the charge with respect to patient A and the acquittal of the charge with respect to patient B. It was submitted that in all the circumstances these proceedings should be permanently stayed. Each of these matters needs to be considered in detail. Statutory non-compliance 1. The respondent asserted that the applicant had failed in connection with Complaints 1 and 2 to comply with the provisions of section 144D (1) of the National law and with sections 16 (1) and 28 (1) of the Health Care Complaints Act. These provisions are in the following terms; 144D COMPLAINTS TO BE IN WRITING [NSW] (1) A complaint, other than a complaint made by a Council or the Secretary, must-- (a) be in writing; and (b) contain particulars of the allegations on which it is founded. (2) A complaint need not be made in terms that are strictly consistent with the terminology of section 144 or 144A. (3) A Council or the Commission may consider and investigate a complaint that does not comply with the requirements of subsection (1) but must not refer the complaint under Subdivision 2 until the requirements are complied with. 16 PERSON AGAINST WHOM COMPLAINT MADE TO BE NOTIFIED OF COMPLAINT (1) The Commission must give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made. The notice must be given not later than 14 days after the Commission's assessment of the complaint under Division 4. (2) If the Commission has assessed the complaint, the notice is to include the notice required to be given to the person under section 28. (3) The Commission may give a copy of the complaint to the person against whom the complaint is made. (4) This section does not require the Commission to give notice under this section if it appears to the Commission, on reasonable grounds, that the giving of the notice will or is likely to: (a) prejudice the investigation of the complaint, or (b) place the health or safety of a client at risk, or (c) place the complainant or another person at risk of intimidation or harassment. (5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that: (a) it is essential, having regard to the principles of natural justice, that the notice be given, or (b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice. (7) On the expiration of each consecutive period of 60 days after the complaint is assessed, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)) unless notice under this section has already been given or the Commission has discontinued dealing with the complaint. 28 NOTICE OF ACTION TAKEN OR DECISION MADE FOLLOWING ASSESSMENT (1) The Commission must give the parties to the complaint notice in writing of the action taken or decision made by the Commission following its assessment of the complaint. The notice is to be given within 14 days after the Commission takes that action or makes that decision. (2) If the Commission decides to investigate a complaint against a health practitioner, the Commission must give notice in writing of the decision: (a) if the health practitioner has provided the health service in respect of which the complaint is made under a contract or agreement with a person who is, or who conducts, a hospital or other health care facility, to the person, or (b) if the health practitioner has provided the health service in the capacity of an employee, to the health practitioner's employer. (3) If the Commission decides to investigate a complaint against a health practitioner, the Commission may give notice in writing of the decision to a person who currently employs or engages the health practitioner as a health practitioner. (4) This section does not require the Commission to give notice of action taken or a decision made to investigate a complaint if it appears to the Commission, on reasonable grounds, that the giving of the notice will: (a) prejudice the investigation of the complaint, or (b) place the health or safety of a client at risk, or (c) place the complainant or another person at risk of intimidation or harassment, or (d) unreasonably prejudice the employment of the health practitioner in the case of a health practitioner who has provided the health service in the capacity of an employee. (5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that: (a) it is essential, having regard to the principles of natural justice, that the notice be given, or (b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice. (7) On the expiration of each consecutive period of 60 days after the Commission has decided to investigate a complaint, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)), unless notice under this section has already been given or the Commission has discontinued dealing with the complaint. (8) The Commission's notice to the parties to the complaint must include: (a) advice that the complainant may ask the Commission to review the decision made after assessing the complaint if the decision is: (i) not to investigate the complaint, or (ii) to refer the complaint to the Health Secretary under section 25 or 25A, or (iii) to refer the complaint to another person or body under section 25B or 26, or (iv) to discontinue dealing with the complaint under section 27, and (b) the reasons for the decision. (9) The Commission may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision. Note : A complainant also has the right under section 41 (3) to request a review of a decision made by the Commission under section 39 at the end of its investigation of a complaint. 1. The making of complaints under the National Law is dealt with under Division 3 of Part 8 of that Act. Section 144 sets out the grounds upon which a complaint might be made including the fact of a criminal finding, an allegation of professional misconduct and that a health practitioner is not a suitable person to hold registration. Section 144B describes who may make a complaint. A complaint may be made by "any person" as well as a Council or the Secretary of a Council. By section 144C a complaint may be made to a Council or the to the applicant in these proceedings. By section 144F a Council or the applicant may require a complainant to provide further particulars of the complaint. The remaining provisions of the Division deal with the progress and processing of complaints. 2. It may be assumed, therefore, that the purpose of the requirement that a complaint be in writing is as much for the assistance of the applicant or a Council in processing it than permitting a person the subject of a complaint to deal with it. In fact, the procedures contemplated within Part 8 enable a complaint which is eventually made against a health practitioner to be appropriately investigated and formulated. Seen in this light, any failure to adhere to the provisions of section 144D is more an impediment to the applicant than it is to the respondent. In any event, we agree with the applicant's submissions that on the evidence the complaints made by patients A and B were reduced to writing at the time the statements were given to the police. They therefore constituted complaints for the purpose of the National Law. Those and other statements were eventually provided to the Dental Council of NSW and later to the applicant. 3. The submission made by the respondent that there has been a relevant non-compliance with section 144D of the National Law is rejected. 4. It is possible, on the basis of the factual information made available during the course of these interlocutory proceedings that there has been non-compliance with sections 16 (1) and 28 (1) of the Health Care Complaints Act. However even if there has not been strict compliance with these provisions, there is no doubt that the respondent has been aware of the complaints and their particulars for a long time, predating the commencement of these proceedings by the applicant. Furthermore, the respondent through his solicitors was engaged in lengthy communications with the applicant prior to the institution of the substantive proceedings. 5. I have not received any submissions from the respondent concerning the consequences of non-compliance with these two provisions asserting in particular that non-compliance would in some way impact adversely on the efficacy or validity of the substantial proceedings. However, the applicant relied on the principles to be applied in considering the consequences of a failure to comply with a statute as referred to in the High Court of Australia in Minister for Immigration and Citizenship v Szizo [2009] HCA 37. In the context of provisions contained within the Migration Act (Commonwealth) the Court said; 35 While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being "rather absurd"[41]. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing[42]. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case. 1. My perusal of the provisions of the Health Care Complaints Act upon which the respondent relies in the context of the overall provisions of the legislation does not indicate that there is any intention in that legislation to create any form of invalidity consequent upon non-compliance with those provisions. 2. It follows that I reject any suggestion that in some way non-compliance with these particular provisions would per se create any basis to permanently stay the substantive proceedings on an interlocutory basis. However, such a conclusion does not preclude the respondent from raising the same argument during the course of the substantive proceedings, nor does it preclude a consideration of this matter in the overall assessment of whether a permanent stay should be granted. Permanent stay – general principles 1. The general principles which govern a consideration of the exercise of the jurisdiction and power to permanently stay disciplinary proceedings have recently been considered by this Tribunal in Council of the Law Society of NSW v Clarke [2017] NSWCATOD142. Both counsel in these proceedings were content to adopt the observations of the Tribunal in that matter as containing an accurate statement of the relevant principles. I am content to proceed accordingly. Based on the reasons for decision in Clarke the following principles need to be taken into account in determining this interlocutory application 1. there is no substantive entitlement to a speedy hearing (as opposed to a right to a fair hearing), breach of which will per se justify a permanent stay order (see Jago v The District Court of NSW [1989] HCA 46, 168 CLR 23) 2. the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised…. and therefore the exercise of a power to grant a permanent stay of proceedings is in essence a power to refuse to exercise jurisdiction. It follows that the grant of a permanent stay should be exercised only "in exceptional cases" or "sparingly, and with the utmost caution." (See Gaudron J in Jago at CLR 14). 3. the extreme step of permanently staying proceedings is to allow the Tribunal to protect its own processes from abuse, for example if proceedings were taken for a purpose alien to the proper pursuit of disciplinary proceedings so as to cause "improper vexation and oppression". Seen in this way the power to permanently stay proceedings is an "incidence of the general power (of the Tribunal) to ensure fairness. (See Mason CJ in Jago at CLR 30) 4. the power to stay proceedings is not confined to the effect of delay necessarily rendering a hearing unfair. Continuation of proceedings may, of itself, "be so unfairly and unjustifiably oppressive that it would constitute an abuse….. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset…" (See Deane J in Jago at CLR 58) 5. the availability to the Tribunal of processes and procedures designed to prevent any unfair hearing caused by undue delay or other factors will militate against the grant of a permanent stay. 6. account should be taken of the fact that any adverse impact on the forensic processes caused by delay, for example the recollection of witnesses, will in many cases affect the prosecution as much as a defendant 7. in the context of criminal proceedings, consideration would need to be given to the length of any delay, reasons given by the prosecution to explain or justify the delay, the responsibility of the defendant for the delay and any past attitude to it, proven or likely prejudice to the defendant and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes. These matters should not be applied slavishly, but a proper consideration will assist in the formation of a value judgement "in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances." (Kirby J and Deane J in Jago). This approach applies by analogy in the case of disciplinary proceedings 8. it will be necessary for the respondent to show some appropriate degree of prejudice occasioned by the delay. "Where delay is the sole ground of complaint, an accused seeking a permanent stay must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute." (See Mason CJ in Jago at CLR 33 – 4). Examples would include the unavailability by death or incapacity of a crucial witness, destruction of important documents and the like. 1. Senior Counsel for the applicant submitted that the principles to be derived from Jago referred to above should be subject to a gloss created by the provisions of the National Law, and in particular the objects and purpose of that legislation which are designed predominantly for the protection of the health and safety of the public. This "gloss" should inform both the work of the applicant charged with the prosecution of complaints against health practitioners and the approach of this Tribunal which is required to conduct and deal with disciplinary proceedings involving health practitioners having regard to the protection of the health and safety of the public. Whilst I acknowledge the objects and purpose of the National Law, and that they inform the work both of this Tribunal and the applicant, I do not understand that in some way these matters will modify the approach to the principles and circumstances which operate in considering an application to permanently stay these proceedings. The work of the criminal courts and of those charged with the responsibility of prosecuting proceedings in those courts in the interests of the community is no less important than the work of this Tribunal and those prosecuting disciplinary proceedings against health practitioners. I do not approach the application of these well-known principles as being modified in any way by reference to the application of the National Law to these proceedings. The application of the general principles concerning permanent stay applications to these proceedings Prejudice 1. The first matter to consider is whether there is any relevant prejudice suffered by the respondent by reason of the considerable delay between events which occurred as early as 2001 and November 2018 when the substantive proceedings are due to be heard. It is almost certain that the memories of the respondent, the two patients and the person the subject of Complaints 5 and 6 will be affected. However, there exist either contemporaneous or almost contemporaneous records of the recall of each of these persons and of the respondent about what happened concerning those events which are relevant to the several complaints. Statements were taken by and given to police officers, statements were given to legal representatives involved in the various criminal and other proceedings, including the inquiries conducted under section 150 of the National Law. There was a lengthy hearing in the District Court concerning the events surrounding patient B and the offences for which the respondent was convicted, and the court transcripts are available. 2. The respondent complained that he no longer had the clinical notes of patients A and B, but those notes are currently available, and copies are now in possession of the respondent. These are matters which are all capable of being managed by the Tribunal during the course of the hearing of the substantive proceedings. At the present time there is no relevant prejudice which has been identified which would justify the grant of a permanent stay. If any such circumstances arise during the course of the hearing of the substantive proceedings, the respondent will be at liberty to make such submissions as he is advised to overcome any such prejudice, and the Tribunal will be obliged to ensure that no undue unfairness arises. The decision of 13 February 2012 not to proceed with any complaints arising out of the conviction 1. It will be remembered that the applicant informed the Dental Council of NSW on 13 February 2012 that it proposed to take no further action after referral relating to the reregistration of the respondent as a dentist following his term of imprisonment for the matters upon which he was convicted. The basis upon which the applicant so determined was the fact of reregistration by the Dental Board of Australia despite being aware of these convictions on the basis that they were "not relevant to the practice of the profession." Although this would appear to have been the sole reason for proposing to take no further action, the respondent noted that the applicant had been aware, in a general sense, since 2011 of the fact that the respondent had been the subject of the earlier charges involving patients A and B. 2. There was no suggestion by the respondent that the applicant was precluded by law from having commenced these proceedings by reference to the matters involving the convictions. Indeed, the applicant was entitled to reopen a complaint which had been discontinued or terminated. Section 13 (2A) of the Health Care Complaints Act is in the following terms; (2A) If either the Commission or the appropriate professional council is of the opinion that an associated complaint that has been discontinued or terminated and to which regard was given during consultation: (a) should be reopened or investigated—the complaint must be reopened and investigated in accordance with Division 5, or (b) should be referred to the appropriate professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW)—the complaint must be so referred, as if it had not been discontinued or terminated. 1. By section 4 of that Act, associated complaint is defined as follows; associated complaint means a complaint made or referred to the Commission in respect of a health practitioner who is, or a health organisation that is, the subject of another complaint being assessed or investigated by the Commission or being prosecuted by the Commission before a disciplinary body, and includes: (a) a complaint made at any time prior to the completion of the assessment, investigation or prosecution of that other complaint, and (b) a complaint that has been discontinued or terminated. 1. Whilst the respondent may justifiably be disappointed that the applicant has determined to initiate these proceedings by reference to a matter which it said would not be pursued, in light of the statutory entitlement of the applicant to do so it is necessary for him to identify a particular detriment or prejudice so as to justify an order to permanently stay the proceedings on this basis. An obvious detriment is that the respondent is now exposed to the prosecution of this aspect of the proceedings which he would not otherwise have had to deal with. However, in the context of the statutory entitlement of the applicant to proceed, something more needs to be demonstrated. There is no suggestion that the respondent in some way conducted himself in response to the initial decision not to proceed to his detriment or to his prejudice. Indeed, no submission of this kind was made on his behalf. Such prejudice as is alleged is confined to the overall prejudice associated with the difficulties in defending these proceedings based on events which happened a long time ago. In circumstances where the applicant has determined to proceed on the basis not only of the matters involving patients A and B together with the matters giving rise to the convictions, but also the circumstances of one additional person, no inappropriate purpose or motive can be attributed to the applicant. 2. In all the circumstances I do not regard this particular matter as justifying the grant of a permanent stay. Inordinate delay in investigating complaints and initiation of proceedings 1. The next matter to be considered is the long delay in initiating the disciplinary proceedings, given that the alleged conduct involving patients A and B occurred in 2001/2002. There is in evidence a letter from NSW Police dated 29 October 2002 to the Dental Board of NSW informing the Board that investigations were being conducted involving the respondent concerning allegations of "indecent assault and sexual assault matter with two different victims with more than a year in between the two offences." The Registrar of the Board forwarded details of the respondent's registration to the investigating police officer on 29 October 2002. For reasons which are inexplicably unexplained, there is no record of the Board having initiated any enquiries or referred these matters to any regulatory authority until the events which occurred in 2011, which have been summarised above. 2. The first occasion on which the applicant in these proceedings became aware of any alleged misconduct on the part of the respondent was on receipt of the letter of 6 December 2011 from the Dental Council of NSW. At that stage the applicant determined to take no further action because the Dental Board of Australia had determined that the criminal matters with respect to which the respondent had been convicted were not relevant to his registration as a dental practitioner. Of course, disclosure had voluntarily been made by solicitors acting for the respondent concerning the criminal convictions and concerning also the matters involving patients A and B in their letter of 22 December 2010 addressed to the Dental Board of Australia which accompanied the respondent's application for registration submitted on 7 February 2011. 3. Documentation annexed to a statement of an investigator employed by the applicant, Moira Kelly, sets out the steps taken by her to investigate the conduct of the respondent. Ms Kelly initiated correspondence with NSW Police on 21 October 2014 seeking certain information which continued at least into December 2014. In March 2015 Ms Kelly initiated a series of communications with patient A who indicated initially that she was not prepared to furnish any evidence. 4. In April 2015 Ms Kelly became aware of the findings of the Delegates of the Dental Council of NSW arising out of the section 150 proceedings conducted on 15 April 2015. Those findings make reference to the circumstances of patients A and B. The Delegates specifically referred to the applicant the circumstances of patient A which they said had never been the subject of a complaint, and the circumstances of patient B which they said had already been investigated by the applicant. For completeness I note that the Delegates were compelled under the National Law to make that referral. Following this referral, the applicant made contact with the respondent by letter dated 5 June 2015 indicating that "a complaint" had been made to it which required investigation and that contact would be made with him within 21 days to advise about the investigation process. In June 2015 Ms Kelly made further contact with patient A and this culminated in the provision of a statement dated 2 July 2015. 5. By lengthy letter dated 17 December 2015 the applicant informed solicitors acting for the respondent that it was "at the end of the investigation" concerning complaints involving patients A and B. That letter set out the "substance of the grounds for the proposed action" so as to provide the respondent with an opportunity to make submissions. The letter also indicated that if the applicant intended to take any action against the respondent, the respondent would be given an opportunity of making further submissions concerning the proposed action. There then followed correspondence between the applicant and the respondent's solicitors up to and including a letter from those solicitors dated 6 July 2017. The Application for disciplinary findings and orders was filed in this Tribunal on 30 October 2017. 6. The respondent complained about the inordinate delay between the commencement of proceedings and the circumstances pertaining to patients A and B which go back many years. Certainly, the Dental Board of NSW was aware of these matters on receipt of the letter from NSW Police dated 29 October 2002. Admittedly, there was no reference in the letter to the fact that the persons involved were patients of the respondent. For whatever reason, receipt of this letter did not result in any form of reaction. The Dental Board of Australia was informed of these matters in February 2011. That Board took no action to initiate any enquiries about those matters nor to refer the matters by way of investigation or complaint. 7. It was on this basis that the respondent complained that despite knowledge possessed by responsible authorities, positive decisions were taken not to commence any proceedings by way of complaint against him. These decisions were taken by both the Dental Board of Australia and the applicant. 8. Although the health and safety of the public are the primary concern of the National Law, there is also emphasis on the expeditious handling of complaints. For example, section 145 provides that "All complaints are to be dealt with expeditiously." Furthermore, if a complaint is assessed as sufficiently serious to provide grounds for suspension or cancellation of registration if it is substantiated, there is a duty imposed on both a Council and the applicant to refer it to this Tribunal. So much is clear from section 145D of the National Law which is in the following terms; 145D SERIOUS COMPLAINTS MUST BE REFERRED TO TRIBUNAL [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. (2) However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner or student is founded) relate solely or principally to-- (a) for a practitioner, the physical or mental capacity of the practitioner to practise the practitioner's profession; or (b) for a student, the physical or mental capacity of the student to undertake clinical training in the health profession in which the student is registered. (3) If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel. (4) If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Council. (5) This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious. Note : A referral under this section is an application made to the Tribunal for a general decision for the purposes of the Civil and Administrative Tribunal Act 2013 . 1. The circumstances surrounding this delay must also be considered by reference to the substantial role that the applicant plays in the investigation, assessment and prosecution of complaints against registered health practitioners. So much is clear from the objects of the Health Care Complaints Act by which the applicant was established contained within sections 3 and 3A; 3 OBJECT AND PRINCIPLE OF ADMINISTRATION OF ACT (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. 3A OUTLINE OF ROLE AND PRINCIPLES OF COMMISSION AND RELATED GOVERNMENT AGENCIES IN HEALTH CARE SYSTEM (1) This section provides an outline of the Commission's role in relation to government agencies with functions in connection with the health care system. (2) Health Care Complaints Commission The Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils. 1. Although there was considerable early involvement by the Dental Board of Australia and the Dental Council of NSW in a consideration of the circumstances of the respondent, the involvement of the applicant did not commence until 2011 when it determined, solely on the information then available to it, that it would take no action arising out of the matters for which the respondent was convicted, because the Dental Board of Australia had allowed the respondent to be registered on the basis that those matters did not impact upon his practice as a dental practitioner. It was not until sometime in 2014 that the applicant became aware of additional matters involving patients A and B and commenced the lines of enquiry which have been outlined above. 2. The considerable delays in the institution of these proceedings involving the circumstances of patients A and B and the matters arising out of the criminal convictions must be examined in the context of the matters discussed above. The primary role of investigating, assessing and instituting these proceedings falls on the applicant. It was only when it became aware of the circumstances pertaining to patients A and B that it was able to determine that those circumstances in conjunction with the matters for which the respondent was convicted might properly form the basis of complaints. Any consideration solely of the matters for which the respondent was convicted as forming the basis of of professional misconduct or unsatisfactory professional conduct was forestalled by the decision of the Dental Board of Australia to renew the registration of the respondent with knowledge of these matters. Accordingly, the involvement of the applicant dates from 2014. In these circumstances there is no indication that the applicant has conducted itself other than as carrying out its statutory duties in a timely manner. There is no suggestion that these proceedings were commenced for any purpose other than to pursue a complaint of misconduct against the respondent. 3. These matters do not justify a grant of a permanent stay. Conclusion 1. The Tribunal when constituted to determine the substantive proceedings is bound to ensure that the respondent receives a fair hearing consistent with the application of the rules of natural justice. There is also a public interest in the right of the community to expect that complaints alleging that health practitioners have committed unsatisfactory professional conduct or professional misconduct are prosecuted. In circumstances where any prejudice to the respondent which might arise during the course of the hearing by reason of delay, the passage of time, or for any other reason can be accommodated by the Tribunal applying the rules of natural justice, the overall public interest in the context of the general principles pertaining to the grant of permanent stay orders to which I have earlier referred militates against the grant of a permanent stay. I do not consider that any of the particular matters referred to above whether considered individually or in the aggregate justify the making of an order that these proceedings or any part of them be permanently stayed. I propose to dismiss the application accordingly. Costs 1. The parties asked that the question of costs be determined in connection with the overall disposition of the substantive proceedings. Accordingly, I shall reserve costs. Orders 1. I make the following orders 1. application for permanent stay dismissed 2. costs are reserved ********** 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: 21 August 2018