Dental Board of Australia v O'Brien [2014] QCAT 690

CITATION: Dental Board of Australia v O’Brien [2014] QCAT 690 PARTIES: Dental Board of Australia (Applicant/Appellant) v Dr Patrick O’Brien (Respondent) APPLICATION NUMBER: OCR144-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 4 November 2014 HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Geoffrey Cheyne Ms Jennifer Felton DELIVERED ON: 4 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Pursuant to s 124(1)(a) of the Disciplinary Proceedings Act, the Tribunal finds that a ground for disciplinary action has been established and that the former registrant has behaved in a way that constitutes unsatisfactory professional conduct. 2. Pursuant to s 243(2)(b)(v), the former registrant is to refrain from re-applying for registration as a health practitioner in any jurisdiction in Australia. 3. The former registrant is to refrain from applying to be relieved from the undertaking he provided to the Dental Board of Australia on 26 September 2014. 4. The Tribunal indicates that, had the former registrant been registered at the time of this decision, the Tribunal would have suspended his registration. 5. The former registrant must pay the Board’s costs of an incidental to the proceedings as agreed or assessed on -- 1 of 6 -- 2 the District Court scale. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY PROCEEDINGS – where the respondent admitted to behaving in a way that constitutes unsatisfactory professional conduct – where the respondent made an undertaking to permanently retire from practice – whether it is appropriate to order the respondent is to refrain from reapplying for registration in Australia – where the applicant seeks an indication from the Tribunal as to the disciplinary action that would have been taken had the respondent been registered at the hearing of the disciplinary proceedings – whether such an indication is appropriate Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 123, s 241(2)(d), s 243(2)(b)(v), s 243(2)(b)(vi) Pharmacy Board of Australia v Tavakol [2014] QCAT 112 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms L Nixon of the Australian Health Practitioner Regulation Agency RESPONDENT: Ms N Brown of Meridian Lawyers REASONS FOR DECISION [1] The Dental Board of Australia has referred a disciplinary proceeding to the Queensland Civil and Administrative Tribunal pursuant to the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’). That Act is now repealed. However, by operation of transitional provisions which were included, first, in the Health Practitioner Regulation National Law (Queensland) and, more recently, in the Health Ombudsmen Act 2013 (Qld), these proceedings are to proceed as though the Disciplinary Proceedings Act had not been repealed. [2] The referral alleges that Dr Patrick O’Brien has engaged in unsatisfactory professional conduct pursuant to s 124(1)(a) of the Disciplinary Proceedings Act as that term is defined in the dictionary, which is Schedule 2 to the Disciplinary Proceedings Act. The referral contained numerous allegations. There has been, recently, an amended response to the referral filed by Dr O’Brien in relation to which many of the allegations contained in the referral are admitted, but in respect of which many of the allegations are either not admitted or disputed. -- 2 of 6 -- 3 [3] However, Dr O’Brien does admit that his conduct, insofar as it is admitted, does constitute unsatisfactory professional conduct. [4] On that basis, the parties entered into a document described as a minute of consent orders. The date upon which that minute was entered into is not clear, it itself being undated. However, it is clear from other related documents that it must have been entered into some time in early September 2014. That is because, in its terms, it provides for an amended Form 36 response to be filed by Dr O’Brien within 14 days of entering into the consent. The amended response to which I have already referred was filed on 15 September 2014. The minute also required Dr O’Brien to provide an undertaking to the Board and, it is said, the Tribunal, within 14 days of the date of the consent. Such an undertaking has been provided by Dr O’Brien dated 26 September 2014. [5] The effect of the undertaking which Dr O’Brien has provided to the Board is that he would immediately and permanently retire from dental practice and would not re-apply for registration as a health practitioner in any jurisdiction in Australia, and that he would never apply to be relieved of the obligations contained in his undertaking. [6] Dr O’Brien’s registration had ceased in January of 2014. Paragraph 3 of the minute of consent order referred, erroneously it would seem, to the surrender of his registration within 14 days. [7] It is to be borne in mind that the nature of disciplinary proceedings, and any sanction which emerges from them, is intended to be protective in nature rather than punitive, but, quite often, a sanction will inevitably have a punitive effect in its operation. However, the fact that the proceedings are intended to protect the public, the profession and the profession’s reputation, should not be loss sight of. Indeed, s 123 of the Disciplinary Proceedings Act makes that plain. [8] In my view, the outcome which has been reached by the parties is an appropriate outcome in the circumstances. It provides for the protection which disciplinary proceedings are intended to facilitate. [9] Whilst paragraph 4 of the minute of consent orders refers the provision of the undertaking to the Tribunal, the Tribunal’s powers are confined to those which it is granted by the Disciplinary Proceedings Act. The Disciplinary Proceedings Act provides, pursuant to s 241(2)(d), that the Tribunal can require the registrant to give the Tribunal an undertaking. However, those powers are restricted to their being exercised in circumstances where the registrant remains registered as at the time of the Tribunal making its orders. [10] The circumstances which govern the Tribunal’s powers in relation to former registrants are set out in s 243 of the Disciplinary Proceedings Act. Section 243 does not provide for the Tribunal to require an undertaking to be provided or to accept an undertaking previously provided by a former registrant. -- 3 of 6 -- 4 [11] However, s 243(2)(b)(v), permits the Tribunal to decide to order a former registrant to refrain from doing anything the Tribunal reasonably considers inappropriate. [12] In my view, having provided the undertaking in the terms which I have already set out, it would be inappropriate for Dr O’Brien to subsequently act contrary to that undertaking. It would, therefore, be inappropriate for him to re-apply for registration as a health practitioner and it would be inappropriate for him to apply to be relieved of his undertaking. In those circumstances, it seems to me that an appropriate exercise of the Tribunal’s powers pursuant to s 243(2)(b)(v), is to order that Dr O’Brien refrain from re-applying for registration as a health practitioner in any jurisdiction in Australia and to refrain from applying to be relieved of the undertaking he provided to the Board on 26 September 2014. [13] Section 243(2)(b)(vi), also permits the Tribunal to indicate another form of disciplinary action as mentioned in s 241(2), which would have been taken if the person were registered at the time at which the Tribunal makes its decision. [14] The Board has sought that the Tribunal exercise its powers under s 243(2)(b)(vi), and make such an indication in this case. In order to do so, it is necessary to say something a little further about the admitted conduct of Dr O’Brien. [15] At the time at which the conduct occurred, Dr O’Brien was a self-employed dentist operating independently at clinics in Mackay and Rockhampton in regional Queensland. He had obtained a qualification in 1976 to administer intravenous sedation from Guy’s and St Thomas’ Hospital in London, England. [16] The referral concerns Dr O’Brien’s conduct in administering oral conscious sedation to nine patients of the clinic, including the drug midazolam, during the period from February 2008 to December 2008. Midazolam is a restriction drug of dependency under the Health Drugs and Poisons Regulation 1996 (Qld) (‘Regulation’). Pursuant to s 146(4) of the Regulation, a person must not administer a restricted drug to someone unless he or she is endorsed under the Regulation to do so. [17] At the time of Dr O’Brien’s conduct, dentists were only permitted to administer conscious sedation to a patient if the dentist had completed a course of training in conscious sedation which was acceptable to the then Dental Board of Queensland. Dr O’Brien admits that certain aspects of his treatment of patients with midazolam constituted unsatisfactory professional conduct. [18] The admitted allegations are summarised in the Board’s submissions in broad terms as follows. Dr O’Brien admits he performed oral conscious sedation when he was not a qualified or registered oral surgeon and was not accredited to perform oral conscious sedation. He admits that he did not hold a qualification equivalent to those required to provide oral -- 4 of 6 -- 5 conscious sedation in Queensland. He admits he breached section 102 of the Dental Practitioners Act 2001 (Qld). He admits he failed to inform patients of the particular risks associated with the use of midazolam. [19] In particular, he failed to inform two patients that midazolam should not be administered to persons of their age. He admits patients recovered from oral conscious sedation in a recliner chair without automated monitoring equipment and continued care of trained staff. He admits that he allowed one patient to be discharged while still sedated. In relation to one patient, he also admits he carried out oral conscious sedation without obtaining a written form of consent from that patient’s parent. [20] The number of instances admitted to by Dr O’Brien lead to the conclusion that, even on the admitted conduct, had he been registered at this time, a suspension of his registration would have been an appropriate sanction under s 241(2) of the Act. However, beyond indicating that a suspension would have been an appropriate sanction, the Tribunal is reluctant to indicate for what period of time it would have suspended his registration, or whether any part of that suspension would, itself, have been suspended, which was, of course, permissible under Part 6, Subdivision 6 of the Disciplinary Proceedings Act.1 [21] In my view, it would inappropriate to indicate what period of suspension may have been imposed or whether any portion of it may, itself, have been suspended in the absence of a full consideration of the factual matters admitted and submissions in relation to the circumstances of the conduct and of the registrant himself. [22] The Board has sought its costs. The minutes of consent record the agreement to an order in the form that Dr O’Brien must pay the Board’s costs of and incidental to the proceedings in the sum as agreed or assessed on the District Court scale and the Tribunal will order accordingly. [23] The formal orders of the Tribunal will be that: 1. Pursuant to s 124(1)(a) of the Disciplinary Proceedings Act, the Tribunal finds that a ground for disciplinary action has been established and that the former registrant has behaved in a way that constitutes unsatisfactory professional conduct. 2. Pursuant to s 243(2)(b)(v), the former registrant is to refrain from re- applying for registration as a health practitioner in any jurisdiction in Australia. 3. The former registrant is to refrain from applying to be relieved from the undertaking he provided to the Dental Board of Australia on 26 September 2014. 1 Compare Pharmacy Board of Australia v Tavakol [2014] QCAT 112. -- 5 of 6 -- 6 4. The Tribunal indicates that, had the former registrant been registered at the time of this decision, the Tribunal would have suspended his registration. 5. The former registrant must pay the Board’s costs of an incidental to the proceedings as agreed or assessed on the District Court scale. -- 6 of 6 --