Dental Board of Queensland v Reddy [2009] QHPT 4

1 HEALTH PRACTITIONERS TRIBUNAL OF QUEENSLAND CITATION: Dental Board of Queensland v Reddy [2009] QHPT 4 PARTIES: REDDY (Registrant) v DENTAL BOARD OF QUEENSLAND (Registrant’s Board) FILE NO/S: 2946/08 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Action ORIGINATING COURT: Health Practitioners Tribunal DELIVERED ON: 6 March 2009 DELIVERED AT: Brisbane HEARING DATE: 6 March 2009 JUDGE: M W Forde DCJ with Dr W. Sanderson, Dr V. Woodford and Dr L. McLoughlin ORDER: 1. The appealable decision of the board of 24 September 2008 is set aside. 2. The respondent Board pay the appellant’s costs of and incidental to the appeal on a standard basis to be assessed. CATCHWORDS: HEALTH PRACTIONERS TRIBUNAL - DISCIPLINARY PROCEEDINGS – Dentist – Appeal of conditions placed upon the registrant by the Board. Health Practioners (Professional Standards) Act 1999 (Qld) ss59, 123, 325, 334, 336. COUNSEL: G. Diehm for the Registrant. P. McCowan for the Board. -- 1 of 7 -- 2 SOLICITORS: Flower and Hart for the Registrant. McInnes Wilson for the Board. -- 2 of 7 -- 3 Introduction 1. The registrant came to Australia in January 2006 from India. He had qualified with a bachelor of dental science in India in 1997 and obtained a masters degree in oral and maxillofacial surgery (MDS) in March 2002. Since arriving in Australia, he attended the necessary programme and sat for the necessary examinations of the Australian Dental Council, to qualify as a registered general dentist in New South Wales. After working at the Wagga Wagga Base Hospital, the Sydney Dental Hospital in 2007 and the Rosemeadow Oral Care Centre, he moved to Townsville with his family in early 2008. The one month that he served at the Sydney Dental Hospital, allowed him to commence independent oral surgical work for the Sydney South West Area Health Service. 2. In January 2008, he commenced work with 1300 Smiles Ltd at various clinics operated by that company. He made it clear that he was not an oral and maxillofacial surgeon. He referred the more complicated cases to a surgeon qualified in that discipline, Dr Geoffrey Dance. The Dental Board of Queensland (the “Board”) had received some complaints about advertising material which had referred to him as an oral and maxillofacial surgeon. He informed the Board that he had corrected the misleading material. 3. Letters were sent by the Board to the registrant care of his employer. Someone signed the receipt of the letters on his behalf but the registrant was not informed of their arrival. The first letter was dated 17 September 20081 . In that letter, the Board required the registrant to provide details concerning a patient, M. Of course, he was not aware of his rights to reply as he was not made aware of its arrival. Subsequently, the Board resolved to place conditions on his employment pursuant of s 59 of the Health Practitioners (Professional Standards) Act 1999 (the “Act”). The second letter was dated 24 September 2008, but the registrant was not made aware of its contents until he 1 Ex JR 1 to the affidavit of the registrant filed 18 February 2009 -- 3 of 7 -- 4 received a telephone call from a representative of the Board on 26 September inquiring why he had not responded to their letters. The registrant complied with the Board’s requirements and informed the relevant persons about the conditions placed upon his practising.2 The time between the first and second letter was only a week. Perhaps the Board may give consideration to extending the time and related process. It is suggested that the telephone call ought to have occurred before the second letter of 24 September 2008. 4. The present application is to set aside the decision of the Board made under s 59(2). The application is by way of appeal under s 325 of the Act. Effect of Conditions 5. One of the conditions placed upon the registrant was that he was not allowed to treat a patient if it involved a tooth extraction without that patient having a medical certificate from a doctor. The practical effect of that was that the registrant was limited to general restorative and preventative treatment. This was not acceptable to his employer. His employment ended on 11 October 2008 by mutual arrangement. He made efforts to obtain other employment on his return from India in late December 2008 but without success. He and his family have relied upon the generosity of friends for accommodation. Explanation of treatment of patients 6. Apart from the patient M, the registrant also explains his treatment of two other patients L and P. He provides a detailed explanation of his diagnoses, treatment and his recommendations for ongoing care or medical treatment. L had been referred to an oral and maxillofacial surgeon, Dr Dance, who corresponded with the registrant about his treatment for removing a root near the posterior segment of her maxillary sinus. There seems to be no adverse comment about the manner in which the registrant had carried out the preliminary work. Dr Dance did the operation under a general anaesthetic. 2 Affidavit of registrant op cit at [27] -- 4 of 7 -- 5 The patient had told the registrant that she could not afford a general anaesthetic and so he attempted it under a local anaesthetic. His notes for that operation and the other two patients were provided to an expert, Dr Christopher Muir, an oral and maxillofacial surgeon. Having perused the records including material from the Townsville Hospital and Dr Dance, Dr Muir made no adverse comment about the diagnoses, treatment or management of the three patients. In relation to L, Dr Muir regarded the treatment to be of an adequate and professional standard for a general dentist with additional training and experience in oral surgery. In relation to M, he stated that the treatment was excellent and “I think Mr M was probably quite lucky to have had Dr Reddy to treat him.” 3 In relation to the patient P, Dr Muir regarded the treatment by the registrant as “excellent and of the highest professional standard for any dentist, general or specialist”4 . Legislative basis for hearing 7. The registrant is entitled to appeal the nature of the conditions placed upon him pursuant to s 59(2) of the Act.5 An appeal is by way of rehearing on the evidence before the Board or panel which made the decision to impose the conditions. Not all of the material placed before the Board has been provided to the Tribunal. For example, the original complaints relating to all three patients has not been provided nor the results of any investigation. The Tribunal may give leave to adduce fresh, additional or substituted evidence. The report of Dr Muir is additional evidence and leave is given to adduce that evidence. It would be unfair in the circumstances not to allow that evidence to be led. Due to the failure of the previous employer’s receptionist to pass on the correspondence, the conditions were imposed before the registrant was aware of the allegations and before he could adequately prepare his case. 3 Ex CBM2 to the affidavit of Dr Muir filed 4 February 2009 at p2 4 ibid p2 5 s325 of the Act -- 5 of 7 -- 6 8. It is open to the Tribunal to conduct the appeal on the written material.6 It is appropriate and fair that that approach be adopted in the circumstances of this case. The registrant did not have the initial opportunity to put his case. The report of Dr Muir clearly establishes that the registrant carried out his work in a professional manner. It is open to the Tribunal to set aside the appealable decision of the Board.7 9. The purposes of disciplinary proceedings against the registrant can be found in s 123 of the Act which provides: (a) to protect the public; (b) to uphold standards of practice within the health professions; (c) to maintain public confidence in the health professions. As the report of Dr Muir is not contested, there is no risk to the public in removing the conditions placed upon the registrant. Although the Board acted upon a complaint and moved to protect vulnerable patients, the continuance of such conditions cannot be justified. It is regrettable that the registrant’s former employer did not have a better system of notifying an employee of certified mail being received on behalf of its employee. Position of Board 10. The attitude of the Board to this appeal was not known to the Tribunal until yesterday when the Board indicated that it would be consenting to the decision of the Board being set aside. It has also agreed to pay the costs of the appeal.8 This appeal was filed on 21 October 2008. No material had been filed which provided any basis for continuing the imposition of the conditions after the appeal was lodged. It seems that the registrant provided the Board with an explanation as to why he did not respond to the original letters in September 2008. That explanation has not been challenged. In that event it is appropriate to set aside the decision of the Board. 6 s334 of the Act 7 s336 of the Act 8 The consent order was handed up during a call over and is marked Ex 1 -- 6 of 7 -- 7 Orders 1. The appealable decision of the board of 24 September 2008 is set aside. 2. The respondent Board pay the appellant’s costs of and incidental to the appeal on a standard basis to be assessed. -- 7 of 7 --