Dental Board of Australia v Mai [2025] QCAT 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Mai [2025] QCAT 2 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v DUY MAI (respondent) APPLICATION NO: OCR229-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 13 January 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Robertson Assisted by: Dr M Webb, Dentist Panel Assessor Dr P Bowden, Dentist Panel Assessor Dr W Grigg, Public Panel Assessor ORDERS: Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds that the practitioner has behaved in a way that constitutes professional misconduct. Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded. Pursuant to section 196(2)(c) of the Health Practitioner Regulation National Law (Queensland), the practitioner pay a fine of $15,000 to the Board. Pursuant to section 196(2)(d) of the Health Practitioner Regulation National Law (Queensland), the practitioner’s registration is suspended for a period of two months to commence 21 days after the date of this order. No order as to costs. CATCHWORDS: PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — DENTISTS — DISCPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT — where the applicant Board alleges that the respondent breached conditions imposed on his registration — where the respondent admits the conduct — where the parties agree on the relevant facts, characterisation of conduct and -- 1 of 6 -- 2 sanction — whether the Tribunal is satisfied the proposed findings and orders are an appropriate response to the conduct and address occupational regulatory principles such as specific and general deterrence and maintenance of public confidence Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Ombudsman v Gillespie [2021] QCAT 54 Health Ombudsman v HNH [2021] QCAT 235 Medical Board of Australia v Redzepagic (No 2) [2023] VCAT 93 Medical Board of Australia v Redzepagic (Review and Regulation) [2022] VCAT 838 (26 July 2022) Nursing and Midwifery Board of Australia v INZ (Review and Regulation) [2018] VCAT 99 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The respondent is a registered dental practitioner. These disciplinary proceedings relate to admitted professional misconduct for breaching conditions imposed on the respondent’s registration by the Dental Board of Australia (‘Board’). The hearing today proceeds on the basis of a referral filed by the Board in the Tribunal on 27 September 2023. An amended response was filed on behalf of the respondent on 15 May 2024. The matter proceeds by way of consent on the papers. The parties agree as to the relevant facts, the characterisation of the admitted conduct and sanction. There are no disputed issues between the parties. [2] The parties make a joint submission that, pursuant to s 196 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), the Tribunal should find that the respondent has engaged in professional misconduct and that, by way of sanction, he be reprimanded, pay a fine of $15,000 to the Board, have his registration suspended for a period of two months to commence 21 days after the date of this order. [3] In relation to the period of suspension, as noted, the parties have agreed that the suspension should commence 21 days from today, which is reasonable to enable the respondent to make arrangements in relation to patients already booked at his practice. The respondent also asked the Tribunal to recommend that the Board consider removing the reprimand from the National Register after two years. Conventionally, the Board has adopted a neutral stance in relation to that issue. Conduct [4] The respondent has held registration as a dental practitioner since 1997. [5] At all relevant times, he was the owner of a business named Amazing Smiles running in Queensland, where he worked as a dental practitioner. -- 2 of 6 -- 3 [6] On 12 August 2020, the Board imposed conditions on the respondent’s registration. The conditions were imposed with the agreement of the respondent. [7] The respondent was notified of the Board's decision by email sent on 13 August 2020. [8] The conditions generally, require that the respondent be supervised by a Board- approved supervisor when undertaking dental implant treatments and/or fixed procedures. With consequential conditions relating to notification to Ahpra of primary and alternative supervisors. [9] On 18 September 2020, the respondent nominated Dr Stark as his supervisor. He did not nominate a primary and at least one alternative supervisor as required by one of the conditions. It is not alleged in the referral that the respondent’s failure to nominate a primary and at least one alternative supervisor is a breach of the conditions. [10] On 12 November 2020, Ahpra received Dr Stark's CV as required by the supervisor nomination form. On 1 December 2020, Ahpra notified the respondent that Dr Stark's nomination as a supervisor had been rejected. On 8 January 2021, the respondent nominated Dr Kaur to be his supervisor. On 4 May 2021, the respondent was informed that Dr Kaur’s nomination had been approved by the Board. [11] The respondent now admits that he breached the conditions imposed on his registration in so far as he: (a) performed dental implant treatment and/or fixed prosthodontic treatments without a supervisor; (b) performed dental implant treatment and/or fixed prosthodontic treatments under the supervision of Dr Stark when her nomination as supervisor had not yet been approved by the Board; (c) performed dental implant treatment and/or prosthodontic treatments under the supervision of Dr Stark after being informed her nomination as a supervisor was rejected by the Board; and (d) performed dental treatment and/or fixed prosthodontic treatments under the supervision of Dr Kaur when her nomination as a supervisor had not yet been approved by the Board. [12] Between 4 September 2020 and 17 March 2021, the respondent breached the conditions imposed on his registration on 25 occasions. [13] On those occasions, eight breaches relate to the respondent performing procedures, for which he was required to have an approved supervisor, after he was informed Dr Stark had not been approved as a supervisor. A further eight breaches relate to the respondent performing procedures, for which he is required to have an approved supervisor, after he nominated Dr Kaur to be his supervisor but before he was informed his nomination of her had been approved. [14] On 26 April 2023, the Board decided to refer the matter to the Tribunal. At the same time, it removed conditions imposed on 22 June 2022 from the respondent’s registration and removed the conditions the subject of the referral from his registration. [15] Between 26 April 2023 and 26 March 2024, the respondent therefore held unrestricted registration. On 27 March 2024, the Board imposed conditions on the respondent’s -- 3 of 6 -- 4 registration pursuant to s 178 of the National Law. The respondent was informed of the decisions made by the Board on 26 April 2023 on 4 May 2023. Characterisation [16] As noted, the parties, through experienced lawyers, have agreed that the admitted conduct is unprofessional conduct that falls substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience. The parties note appropriately that it is still the responsibility of the Tribunal in the exercise of its discretion to make that finding, taking into account the agreement of the parties. In relation to cases like this involving breaches of Board imposed conditions, the observations of the Victorian Civil and Administrative Tribunal in Nursing and Midwifery Board of Australia v INZ (Review and Regulation) [2018] VCAT 99, [113]: Thankfully, there is no evidence of actual harm caused by [the practitioner] to a patient. That however is not to the point. Conditions are imposed in order to ensure the safety of patients. Failure to comply with conditions potentially places patients at risk. [17] It is not suggested here that the respondent’s failure to comply with the conditions on multiple occasions over an approximate six-month period is other than clear evidence of deliberate conduct and or reckless indifference to the need for him to strictly comply with conditions imposed on his registration by the Board. This is more important in relation to a dental practitioner, who has practised as a dentist for more than two decades. [18] As in the case of Dr Redzepagic,1 one of the authorities referred to in some detail in the Board's submission, the respondent appeared to have little understanding of the importance of the conditions, particularly in relation to patient safety, and seems to have failed to personally read and action correspondence from the regulators. His conduct is aggravated by what was obviously a deliberate choice to continue to undertake procedures caught by the conditions after he was notified by Ahpra that Dr Stark was not approved as a supervisor. Unlike Dr Redzepagic, the respondent has participated in the proceedings, made appropriate admissions and has recently fully accepted the extent of his unprofessional conduct. [19] I agree with the parties that the admitted conduct constitutes professional misconduct on either or both of the first and second limbs of the s 5 definition of that term in the National Law. Sanction [20] The principles relating to the imposition of sanction in disciplinary proceedings are well known and are set out in some detail in the Board’s submission. At the time of the admitted unprofessional conduct, as noted earlier, the respondent had been a dentist for over 22 years. [21] As he accepts, since 2011, he has been subject to 11 notifications, including three received after the notification, leading to the imposition of the conditions the subject of the referral. 1 Medical Board of Australia v Redzepagic (Review and Regulation) [2022] VCAT 838 (26 July 2022); Medical Board of Australia v Redzepagic (No 2) [2023] VCAT 93. -- 4 of 6 -- 5 [22] All are related to clinical performance, including poor record keeping and inappropriate informed consent. [23] Most involved no action being taken by the regulator. In 2014 and 2017, conditions were imposed on his registration with which it appears he has he complied. The only relevance of this is that he's an experienced dentist. He's been the subject of conditions before, which should have made him very conscious of the importance of treating such conditions seriously, which he clearly did not. [24] As the material demonstrates, he was dilatory in accepting the extent of his noncompliance but has now shown appropriate insight into his conduct and remorse for it. He has complied with educational conditions imposed by the Board in 2022. [25] It is relevant that, although Dr Stark was not ultimately approved by the Board, she was nevertheless present during a number of procedures and she did assume conduct of a procedure on a patient from the respondent on 17 December 2020; thus demonstrating the importance for a health practitioner in the respondent’s position to comply with supervision conditions imposed by the Board. The Board properly concedes that this supports the finding that the potential risk to patients was limited in all the circumstances. [26] It's also relevant for the Tribunal to take into account that the respondent has completed a course with Dr Ralph Kelsey regarding the regulatory scheme and professional obligations, including ethics, honesty and integrity, dental records- keeping, informed consent process, communication, assessment and treatment planning. [27] As noted earlier, the respondent is currently subject to conditions imposed on his registration on 28 March 2024 in response to a notification. In his affidavit filed on the 15 May 2024, he deposes to his developing insight, the acceptance of responsibility for the factors leading to this referral and contributing to the imposition of the indirect supervision conditions presently on his registration. [28] At no time, since the respondent’s breach of conditions was detected, has he been prevented from practising or earning an income by way of immediate action or more restrictive conditions. In other words, he's never had any period of suspended practice, which is a relevant factor in cases of this nature. [29] Even though the Board reached the level of satisfaction necessary to remove the conditions imposed on the respondent’s registration in 2020 and 2022, his registration is currently subject to conditions requiring indirect supervision. The 2024 conditions also do not prevent the respondent from practising and have led to the ongoing development of Dr Kelsey in the respondent’s professional practice as his approved supervisor. [30] It is accepted that where the parties agree on disciplinary orders, the Tribunal should be hesitant to interfere and only do so where the agreed orders fall outside the general range, as demonstrated in the case law. I'm satisfied that the proposed orders provide an adequate response to the admitted conduct, and properly address the principles of specific and general deterrence and the need to maintain public confidence in the maintenance of the highest level of professional standards in a profession that is central to our health system. -- 5 of 6 -- 6 [31] In relation to the issue of the reprimand, section 226(3) of the National Law gives the Board a discretion to remove the fact of a reprimand from the National Register ‘if it considers it is no longer necessary or appropriate’. In his submission, the respondent refers to the criticisms made by his Honour Judge Allen KC in Health Ombudsman v Gillespie2 of the Ahpra policy, which provides for an automatic five-year period of recording which is of course subject to the Board’s discretion to shorten that period. [32] In Health Ombudsman v HNH (‘HNH’),3 the Tribunal observed: [t]he Tribunal has no power to make any order as to how long the reprimand of the respondent remains recorded on the Register. That is a decision for the Board. However, there is no prohibition on the Tribunal expressing a view on such matter, provided it is clear that the ultimate determination of such matter remains solely a matter for the Board. [33] The respondent has referred to other cases as well as HNH in his submission, in which a recommendation has been made. [34] The respondent's conduct here was not one of dishonesty and no criminal conduct occurred, and the respondent has voluntarily rehabilitated himself through education and demonstrated insight and remorse, albeit belatedly. [35] He does not seek to deny a significant disciplinary history relating principally to clinical issues to which earlier reference is made. It is relevant that he's accepted the maximum fine and the suspension of practice for two months. In those circumstances, this is a case where it's appropriate for the Tribunal to recommend to the Board that the reprimand be removed from the National Register after a period of two years from the date of this order. [36] The findings and orders of the Tribunal are as follows: Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds that the practitioner has behaved in a way that constitutes professional misconduct. Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent is reprimanded. Pursuant to section 196(2)(c) of the Health Practitioner Regulation National Law (Queensland), the practitioner pay a fine of $15,000 to the Board. Pursuant to section 196(2)(d) of the Health Practitioner Regulation National Law (Queensland), the practitioner’s registration is suspended for a period of two months to commence 21 days after the date of this order. No order as to costs. 2 [2021] QCAT 54, [31]. 3 [2021] QCAT 235, [36]. -- 6 of 6 --