Dental Board of Australia v Draper [2025] QCAT 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Draper [2025] QCAT 4 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v ANDREW JOHN DRAPER (respondent) APPLICATION NO/S: OCR313-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 13 January 2025 HEARING DATE: 30 September 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Dick SC Assisted by: Dr A DeSilva, Dental Practitioner Panel Member Dr P Bowden, Dental Practitioner Panel Member Mr M Halliday, Public Panel Member ORDERS: In respect of grounds one to four of the referral, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), the respondent has behaved in a way that constitutes professional misconduct. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to section 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of three months to commence six weeks after the date this decision is delivered. Pursuant to section 196(3) of the National Law, conditions are imposed on the respondent’s registration in the form of Annexure A to the Board’s submissions. Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to these conditions. No order as to costs. CATCHWORDS: PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — DENTISTS — DISCPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT — -- 1 of 7 -- 2 where the applicant Board alleges that the respondent did not maintain professional indemnity insurance for a period of six years — where the respondent provided Ahpra with false or misleading information in completing an audit checklist and in annual online registration renewals — where the respondent allegedly failed to comply with his commitment to the applicant Board by not maintaining appropriate professional indemnity insurance — where the respondent failed to notify the applicant Board of a ‘relevant event’ pursuant to section 130 of the National Law — whether the conduct constitutes professional misconduct — whether conditions are to be imposed on the respondent’s registration — reprimand — three month suspension of registration Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Briginshaw v Briginshaw (1938) 60 CLR 336 Chiropractic Board of Australia v Crowe [2023] QCAT 358 Chiropractic Board of Australia v Northeast (Review and Regulation) (Corrected) [2019] VCAT 1279 Chiropractic Board of Australia v Oborne (Review and Regulation) [2023] VCAT 770 Dental Board of Australia v Bhowmik [2022] QCAT 400 Health Ombudsman v Boyle [2023] QCAT 270 Pharmacy Board of Australia v Elias [2020] VCAT 496 Psychology Board of Australia v Elzo [2020] VCAT 345 APPEARANCES & REPRESENTATION: Applicant: K Reid and C Piggott, solicitors of Clayton Utz Respondent: Self-represented REASONS FOR DECISION [1] The respondent first gained registration as a dentist on 6 December 1996. He is currently registered, and his registration is unrestricted. [2] The Dental Board of Australia (‘Board’) has referred five grounds to the Tribunal. The Board alleges that the respondent did not maintain professional indemnity insurance (‘PII’) between August 2015 and September 2021 (‘ground one’). Further, he provided Ahpra with false or misleading information in completing an audit checklist (‘ground two’) and provided false or misleading information in annual online renewals of his registration (‘ground three’). The respondent is alleged to have failed to comply with his commitment to the Board by not maintaining appropriate PII (‘ground four’) and breached section 130 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) (‘ground five’) by failing -- 2 of 7 -- 3 to notify the Board within seven days after becoming aware that a ‘relevant event’ had occurred. [3] The respondent disputes that his conduct as alleged in grounds one to five amounts to professional misconduct or unprofessional conduct and argues that he has a reasonable excuse because his conduct was the result of an honest and reasonable mistake of fact. [4] It is for the Board to satisfy the Tribunal, to the appropriate standard,1 that the alleged conduct did occur and amounted to professional misconduct. The respondent does not dispute he practised without PII for the period alleged. [5] The Board argues the Tribunal may make any of the following findings: (a) the conduct in grounds one to four amounts to professional misconduct; and/or (b) the conduct in ground five amounts to unprofessional conduct. Background [6] Experien Insurance organised Business Insurance Polices with VERO between 9 April 2015 to 9 April 2018. On 9 April 2018, the policy was cancelled due to non- payment. The policy did not include any element of professional indemnity. The respondent then obtained business insurance with Edge Insurance Services which does not offer PII in the medical or any associated field. [7] On 19 February 2021, Ahpra sent a request to the respondent to complete an audit checklist asking him to provide evidence of his PII arrangements for the period of 1 December 2019 to 30 November 2020 (‘audit period’). On 19 October 2021, after the respondent was granted numerous extensions, the respondent returned the checklist to Ahpra. It enclosed a certificate of currency for PII from Guild Insurance for PII cover between 22 September 2021 and 22 September 2022 which was not evidence for the entire audit period as required. [8] On 2 November 2021, Ahpra requested further information regarding the respondent’s cover between 1 December 2019 and 22 September 2021. [9] When applying to renew his registration between 2015 and 2021, the respondent falsely declared that he met the Board’s applicable PII standard. Further, he failed to comply with his commitment to the Board, when applying for renewal of registration, that he would not practise in the health profession without PII. The respondent failed to notify the Board within seven days after becoming aware that no appropriate PII arrangements were in place (i.e., a ‘relevant event’).2 Respondent’s argument in respect of ground one [10] For the period from August 2015 until 22 September 2021, he had made a mistake ‘when changing insurers’ because he expected PII had been provided as part of a suite of insurance. [11] He makes this submission despite the fact that he accepted he had not examined or checked the policies and had been ‘reckless’ in not doing so. Further, during periods over the relevant time he had another dentist or other dentists working at his practice 1 Briginshaw v Briginshaw (1938) 60 CLR 336. 2 Health Practitioner Regulation National Law (Queensland) s 130(3)(c). -- 3 of 7 -- 4 and he probably did not ask if they held PII which, perhaps, reflects his view of the importance of holding PII. The Board’s reply in respect of ground one [12] The Board submits that not having PII, whether deliberate or not, constitutes professional misconduct. A mistake may be relevant to sanction but the respondent ought to have been aware of his professional obligations and been diligent in complying with them. The Board submits there is a strong body of authority indicating that a practitioner’s failure to hold adequate PII satisfies the threshold for professional misconduct even when it is a result of oversight or administrative error.3 [13] The Tribunal accepts this submission. In Chiropractic Board of Australia v Oborne (Review and Regulation)4, the Victorian Civil and Administrative Tribunal (‘VCAT’) said: Failure to hold PII cover leaves patients unprotected if any harm is caused to them. Failure to provide accurate information about PII cover on registration renewal forms frustrates the Board’s ability to carry out its oversight role in protecting the public. The conduct here undermines the reputation of the chiropractic profession and the confidence of those who consult chiropractors that they will be protected if something goes wrong. Ground two [14] The respondent has not addressed ground two which relates to a declaration made on 18 October 2021 in completing an audit check. On 21 September 2021, the respondent took out PII cover, and the Board alleges he did so because he must have known he was not previously covered for the whole audit period. [15] The VCAT relevantly observed in Chiropractic Board of Australia v Northeast (Review and Regulation) (Corrected)5 that:6 the ability of the Board to oversee the suitability of those in the profession and ensure ongoing compliance with professional standards is fundamental to the maintenance of the good reputation of the profession; the failure to provide correct information in registration renewal forms and an audit checklist, and the failure to notify the Board of a lack of PII, frustrates the Board’s oversight role and prevents the Board from fulfilling its functions, in particular its role in protecting the public. [16] The Board submits that the conduct alleged in this ground amounts to deceptive and misleading conduct and the fact he did take out insurance at that time indicates that the declaration was knowingly false. 3 Health Ombudsman v Boyle [2023] QCAT 270; Psychology Board of Australia v Elzo [2020] VCAT 345; Dental Board of Australia v Bhowmik [2022] QCAT 400; Pharmacy Board of Australia v Elias [2020] VCAT 496; Chiropractic Board of Australia v Crowe [2023] QCAT 358. 4 [2023] VCAT 770, at [32]-[33]. 5 [2019] VCAT 1279, [11]. 6 Ibid [11(c), (d)]. -- 4 of 7 -- 5 Ground three [17] The respondent does not address ground three. He does accept that he did not have appropriate PII for the period from 2015 to 2021 but had declared he did so in each of the online applications to renew registration. [18] The Board submits that even if some of the declarations may have been recklessly false, the last declaration on 18 October 2021 was knowingly false. Ground four [19] Ground four follows in that he failed to comply with his commitment to the Board when he declared that he would not practise without appropriate PII arrangements. The particular declaration requires practitioners to attest to a future confirmation to hold PII in order to obtain registration. As it concerns future conduct, it is not a false declaration and has formed its own ground. Ground five [20] The respondent has not addressed ground five. [21] The Board submits that at some point before 21 September 2021 when the respondent obtained PII with Guild Insurance, the respondent must have become aware that he did not have PII. Not holding PII is a ‘relevant event’ under section 130(3)(c) of the National Law and the respondent failed to notify the Board within seven days as required. Findings [22] Every case must be decided on its own merits. Characterising proven conduct is an objective assessment which looks towards the conduct in light of the applicable standards, relevant definitions and other matters such as remorse, insight and rehabilitation. [23] Section 5 of the National Law provides that professional misconduct, of a registered health practitioner, includes:7 unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. [24] The definition of ‘unprofessional conduct’ is:8 professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s peers. [25] There is now a consistent line of authorities which support the view that the behaviour in grounds one to four amounts to professional misconduct and the Tribunal is satisfied it does so. The allegations in ground five can comfortably be categorised as unprofessional conduct. 7 Health Practitioner Regulation National Law (Queensland) s 5 (definition of ‘professional misconduct’ limb (a)). 8 Ibid (definition of ‘unprofessional conduct’). -- 5 of 7 -- 6 Sanction [26] At paragraph [64] of the Board’s original submission, it correctly sets out the orders the Tribunal may make.9 It is well established that disciplinary proceedings are protective, not punitive in nature. [27] The Tribunal should, and does, consider: (a) general deterrence; (b) specific deterrence; (c) maintenance of professional standards; and (d) protection of the reputation of the profession. [28] The Tribunal should also consider any mitigating factors such as remorse, insight and rehabilitation. Despite the respondent’s cooperation throughout, he did not self-report and obtained retroactive cover nearly a year after he arranged PII before responding to the audit checklist. He failed to respond to Ahpra for many months and his submission that the Ahpra emails must have gone to spam is difficult to accept in light of the fact he responded to the initial request to complete an audit checklist. [29] He was not entirely honest with the Tribunal when asked directly whether he had practised between becoming aware he did not hold PII and obtaining it. Most significantly perhaps, he did not hold PII for a period of six years from the time he set up a private practice. [30] He did not self-report. He has provided no references and has not undertaken any education in respect of his ethical duties. He has referred to his failure to have appropriate PII as a ‘routine administrative matter… of low complexity’.10 [31] These matters place the respondent’s conduct, even if reckless, at the more serious end of professional misconduct of the nature alleged. [32] The Board has placed comparable cases before the Tribunal with the acknowledgement that care should be taken when comparing sanctions in similar cases. Analysing past cases can be a useful guide to proportionality and assists to ensure that the penalty imposed is not outside the range of permissible penalties and promotes consistent decision making. Orders In respect of grounds one to four of the referral, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), the respondent has behaved in a way that constitutes professional misconduct. Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to section 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of three months to commence six weeks after this decision is delivered. 9 Hearing Brief filed 15 July 2024, 329 [64]. 10 Respondent’s Response to Referral filed 11 March 2024, [2]; Ibid 21. -- 6 of 7 -- 7 Pursuant to section 196(3) of the National Law, conditions are imposed on the respondent’s registration in the form of Annexure A to the Board’s submissions. Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to these conditions. No order as to costs. -- 7 of 7 --