Dental Board of Australia v Bishop [2020] QCAT 458

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Bishop [2020] QCAT 458 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v PRIYA BISHOP (respondent) APPLICATION NO/S: OCR409-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 7 December 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC, Assisted by: Dr P Bowden, Dr P Marshall and Ms C Ashcroft. ORDERS: The conduct of the respondent the subject of the referral amounted to professional misconduct; The respondent is reprimanded; The respondent is disqualified from applying for registration as a registered health professional for a period of 5 years; The parties are to bear their own costs. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – dentist making fraudulent claims on health insurer – medical records fabricated to support claims – work claimed not done, and often impossible – criminal conviction – registration surrendered – professional misconduct – sanction. Health Practitioner Regulation National Law (Qld) s 193B(2), s 196. Health Care Complaints Commission v Do [2014] NSWCA 307 Health Ombudsman v Kimpton [2018] QCAT 405 -- 1 of 4 -- 2 Medical Board of Australia v Blomeley [2018] QCAT 163 Medical Board of Australia v de Silva [2016] QCAT 63 Medical Board of Australia v Martin [2013] QCAT 376 Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 Pharmacy Board of Australia v Thomas [2011] QCAT 637 R v Agrawal [2017] QCA 209 REPRESENTATION: Applicant: Clayton Utz Respondent: Fisher Dore Lawyers APPEARANCES: 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 This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 193B(2). In accordance with the Health Ombudsman Act, I am sitting with assessors Dr P Bowden, Dr P Marshall and Ms C Ashcroft.1 The respondent was a registered health practitioner for the purposes of the National Law, being a dentist. The applicant alleges that the respondent engaged in professional misconduct, in that she made fraudulent claims to a health insurer in respect of dental services not provided. The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct. The parties have provided written submissions to the Tribunal,2 and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32. The respondent’s submissions support the sanction proposed by the applicant. The Tribunal accepts the facts set out in the agreed statement of facts. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1977 and is now 43. She was first registered as a dentist in Australia in about January 2009. At the relevant time she was operating her own dental practice in a provincial centre. Between 9 June 2011 and 8 December 2011 she made approximately 1,915 claims to a health insurer in respect of dental services which she had not in fact provided, as a result of which she was paid approximately $169,480.50 by the health insurer. In December 2011 she made further claims, which were not paid by the insurer. In connection with the fraudulent claims, the respondent maintained medical records which were false or inaccurate, recording procedures and tests which had not been done, and obtaining and signing consent forms for procedures or tests which had not occurred. When the later claims were not paid, she contacted the insurer pretending to be a patient, and enquired about what was happening. She was investigated by police, but made no admissions. In May 2012 she was charged with fraud and attempted fraud, jointly with the 1 Health Ombudsman Act 2013 s 126; see s 127 for their function. 2 The respondent has also filed affidavits, by her and three other deponents. -- 2 of 4 -- 3 person who had been managing the practice at the relevant time, and who was for a time in a de facto relationship with her. She married in 2013, and took the surname of her husband. The charges went to trial in the District Court, and on 13 December 2016 she was convicted of the charges, and sentenced to a head sentence of six years imprisonment, with parole eligibility after two and a half years. At the trial an expert testified that the relevant procedures or tests, as recorded in the fabricated records, were “excessive, unreasonable or impossible.” The 1,915 procedures were all supposed to have been carried out on the one patient, the mother of the co-offender, and included over one thousand “five surface” fillings, an uncommon form of filling which involves virtually reconstructing the whole tooth. Each offender at the trial blamed the other for the fraud.3 An appeal to the Court of Appeal was dismissed.4 The respondent was released on parole on 13 June 2019. The applicant filed a referral in the Tribunal on 18 December 2019, alleging professional misconduct on the basis of the convictions and the conduct underlying them, and on the basis that she had maintained false and misleading patient records. The respondent surrendered her registration on 25 January 2017, and remains unregistered. The applicant claimed and the respondent conceded that the relevant conduct amounted to professional misconduct, under all three paragraphs of the definition in the National Law. I am aware of that definition, and agree with that position. This was seriously dishonest conduct engaged in by the respondent in the practice of her profession, and the dishonesty was persisted in, even to the point of the hearing in the Court of Appeal. In imposing a sanction, the health and safety of the public are paramount.5 Disciplinary proceedings are protective, not punitive in nature.6 Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.7 Insight and remorse on the part of the respondent are also relevant.8 What matters is the fitness to practice of the respondent at the time of the hearing.9 The parties both seek the same outcome. This is a similar situation to a joint submission as to sanction. The effect of a joint submission as to sanction was discussed by Horneman- Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31]. I do not propose to depart from the outcome proposed by the parties. The respondent has not been registered for almost four years, which is also relevant, because that is already a significant time away from practice, and because it is therefore 3 Such a defence was implausible, because, for example, the co-offender was out of the country when the claims covered by the attempted fraud were lodged. 4 R v Agrawal [2017] QCA 209. The respondent was charged under that name. The judgment sets out compelling evidence of fraud. The court refuse to receive fresh evidence, in the form of a report from a psychiatrist, for reasons which included that the respondent had not been frank to the psychiatrist about her offending, as the version she gave was inconsistent with facts before the court. 5 Health Ombudsman Act 2013, s 4(1). 6 Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122]. 7 Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79]. 8 Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143]. 9 Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31]. -- 3 of 4 -- 4 not open for the Tribunal to cancel her registration. In view of her conduct she was certainly in the past unfit to practice as a dentist, and if she had been still registered, it would have been appropriate to cancel her registration. In the circumstances, I agree that it is appropriate for her to be reprimanded. The respondent has filed an affidavit by a dentist who has offered to employ her in his practice, and who regards her as a friend. He speaks of her current reaction to the offending in terms which suggest remorse, and stated that he did not regard her now as a threat to the health and safety of the public. The respondent has been doing casual work as a receptionist at his practice. In her affidavit, the respondent gives details of her life, and speaks of assistance from counselling in prison. She has undertaken volunteer work on occasions for community events, and has helped Salvation Army chaplaincy work. She speaks of trying to sell the premises of the former dental practice, and said she hopes in this way to be able to afford to repay the health insurer; so far nothing has been repaid. There was also a report from a psychologist, which expressed some concerns, largely because of an absence of treatment for past trauma, and maladaptive strategies for managing stress. Of some concern to me is that it records reliance on the co-offender as her practice manager to handle billing during the period of the offending, suggesting a continuing tendency to put the blame for the offending on him. In view of this, it is also of some concern that the respondent in her affidavit, although referring in general terms to her fraudulent conduct, was not forthcoming about her role in the offending. As well, she did not mention the psychiatric report rejected by the Court of Appeal. In circumstances where there is no dispute about the imposition of a lengthy period of disqualification, it is unnecessary to consider this matter further. Should the respondent seek to return to practice in the future, she will have to satisfy the Board that she was then fit to be registered under the National Law. I have had the benefit of the assistance of the assessors. The decision of the Tribunal is that: 1. The conduct of the respondent the subject of the referral amounted to professional misconduct; 2. The respondent is reprimanded; 3. The respondent is disqualified from applying for registration as a registered health professional for a period of 5 years; 4. The parties are to bear their own costs. -- 4 of 4 --