Dental Board of Queensland v Cullen [2006] QHPT 4

1 DISTRICT COURT OF QUEENSLAND CITATION: Dental Board of Queensland v Cullen [2006] QHPT 004 PARTIES: Dental Board of Queensland (Registrant’s Board) v Dr Trevor David Cullen (Registrant) FILE NO/S: 1800/05 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Hearing ORIGINATING COURT: Health Practitioners Tribunal DELIVERED ON: 16.06.06 DELIVERED AT: Brisbane HEARING DATE: 16.06.06 JUDGE: Forde DCJ with Dr M Foley, Dr L Mcloughlin and Mr D Mohr ORDER: 1. That the Registrant not be registered for a period of 12 months from today; 2. That upon the registrant resuming practice he will, pursuant to section 243(2)(b)(iii), be subject to the following conditions for a period of three years: 2.1 The Registrant must not consult with, assess, examine or treat any person under the age of 16 years, unless a parent of guardian of the child, or the Registrant’s nurse or receptionist, provided the nurse or receptionist is 18 years of age or older, is present in the same room during the entire consultation; 2.2 If treating any person under the age of 16 years, the registrant must record in the patient’s dental records, the name of the adult person who was present in the same room during the entire consultation; 2.3 The Registrant authorizes representatives of the board to attend the Registrant’s practice and to inspect the Registrant’s dental records at such -- 1 of 16 -- 2 JUDGMENT 1 10 20 30 40 50 60 time as the Board determines, for the purpose of monitoring compliance with the conditions imposed on the registrant’s registration; 2.4 The registrant must, upon request, provide the Board with copies of the dental records of patients nominated by the Board at such times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the registrant’s registration; 2.5 The Registrant must give the Board, upon request, access to his appointment diaries at such times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the Registrant’s registration; 2.6 The Registrant must notify any employer(s), partner(s) and any employee(s) in the Registrant’s practice(s), of the conditions imposed; 2.7 The Registrant must notify the Board of any and all changes in the Registrant’s practice, such notification to include the name(s) and address(es) of any employer(s)/partner(s)/person(s) for whom or with whom the Registrant is practicing dentistry; 2.8 The Registrant must authorize the Health Insurance Funds and Medicare Australia to release to the Board information relating to the Registrant’s practice of dentistry; 2.9 That upon the registrant resuming practice, he will, for the first two (2) years of such practice, attend regular monthly consultations with a psychiatrist or psychologist approved by the Board, in order to monitor his behaviour and mood as referred to in the report of Dr Gary Persley. The frequency of such consultations may be varied by the psychiatrist or psychologist with the consent of the Board in writing; 2.10 The Registrant must provide to the Board at his own expense, for the period of two (2) years referred to above, reports from his treating psychiatrist or psychologist every six (6) months or at other less frequent intervals as agreed to by the Board in writing; 3. That the Registrant pay the Board’s costs of the investigation and the Board’s costs of the proceedings to be assessed on the appropriate District Court scale, or as agreed. CATCHWORDS: DENTIST – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – -- 2 of 16 -- 3 JUDGMENT 1 10 20 30 40 50 60 conviction of an indictable offence – Health Practitioners (professional Standards) Act 1999 ss 59, 118, 123, 126 Re H., A Practitioner [1972] Queensland Weekly Note 40 Holms v Dental Board of Queensland BD 470/04, unreported decision of O’Brien DCJ, 20 February 2006 COUNSEL: Mr MacSporran SC for the Board Mr Burns for the Registrant SOLICITORS: Minter Ellison Lawyers for the Board Burns Lawyers for the Registrant -- 3 of 16 -- 4 JUDGMENT 1 10 20 30 40 50 60 HEALTH PRACTITIONERS TRIBUNAL JUDGE FORDE DR M FOLEY DR L McLOUGHLIN MR D MOHR No BD 1800 of 2005 DENTAL BOARD OF QUEENSLAND Registrant's Board and TREVOR DAVID CULLEN Registrant BRISBANE ..DATE 16/06/2006 JUDGMENT -- 4 of 16 -- 5 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The Registrant is a duly qualified dentist. He was born on 3rd of May 1956. On 13th August 2004 he pleaded guilty in the District Court of Queensland to attempting to unlawfully procure a child under 16 to commit an indecent act. There were two further counts of attempting to entice away a child under 16 for the purpose of unlawful and indecently dealing with the child. These offences were alleged to have occurred on 12th December 2000. The Registrant was given an 18 month term of imprisonment, wholly suspended, with an operational period of three years. In effect, he was not required to go to prison as long as he did not commit another offence in three years and which attracted a period of imprisonment. It should be noticed that the child that was concerned was in fact a police officer. Since June 2005 the registrant has voluntarily ceased to practice as a dentist. Prior to that date he had been allowed to practice by the Dental Board of Queensland (the Board) upon certain conditions. These were audited from time to time and there were no breaches of those conditions. There were no complaints made. The Registrant had become addicted to cyber sex. The referral notice, count 1, contains numerous allegations of inappropriate conduct by the registrant whilst on the Internet. The Board are not proceeding on that charge. -- 5 of 16 -- 6 JUDGMENT 1 10 20 30 40 50 60 The Board alleges that the Registrant (a) has behaved in a way that constitutes unsatisfactory professional conduct in that the registrant has engaged in (i) conduct discredible, discredible to the registrant's profession, and (ii) other improper or unethical conduct. (b) has been convicted of an indictable offence. The registrant pleads guilty to these allegations. The basis of the unsatisfactory professional conduct is that he pleaded to the criminal offences. The Board have proceeded under section 59(2) of the Health Practitioners (Professional Standards) Act 1999 (The Act). The Board have proceeded further under section 118A and 126 of the Act and as it considered that further action was necessary in this case by the Tribunal. Background Facts The conduct of the registrant in relation to the criminal offences includes suggestions that he would show the child how to kiss and masturbate. A meeting was arranged. Exhibit 1 is the agreed statement of facts. On one occasion in December 2000 the registrant attended at a prearranged place to meet Susie 12 who purported to be a -- 6 of 16 -- 7 JUDGMENT 1 10 20 30 40 50 60 12 year old child. He was observed by police officers. The registrant arranged a second meeting and was arrested at that time. Those occasions form the basis of the criminal convictions. The Explanation For the Registrant's Conduct A report from a psychologist Dr McCullough was obtained. She diagnosed the registrant as suffering from an addiction in relation to paraphilia. It is important to note that this condition as described is not paedophilia. "Paraphilia" is defined as: "An erotosexual condition of being recurrently responsive to and obsessively dependent on an unusual stimulus perceptual in fantasy in order to have a state of erotic arousal initiated or maintained". (See the report of Dr McCullough, page 14, volume 2 page 487". In commenting upon this condition Dr McCullough stated (IBID page 15): "In terms of the use of cyber sex it enables those individuals who are prosocial citizens to engage in this type of behaviour. Young (2001) suggests that this mode of communicating provides anonymity, convenience and a means of easy escape for this population. In suggesting these variables Young proposes that individuals who participate in this activity find comfort in the fact that they can (play out hidden or repressed sexual fantasies in a private lab)." Dr McCullough is of the view that the registrant is unlikely -- 7 of 16 -- 8 JUDGMENT 1 10 20 30 40 50 60 to reoffend. She suggests that he undergo regular monitoring while he undertakes further therapy. That view is shared by Dr Persley, a psychiatrist, in his report, being Exhibit GVP1. The report by Dr McCullough was written for the criminal Court but the opinions are relevant to the present proceedings. A copy of the article by Young is available to this Tribunal (see volume 2, page 457). The discussion in that paper seems to accept that the conduct of the registrant was in accord with the profile usually found. For example, those involved often move from cyber sex to phone sex and even request real live meetings. The registrant says in his affidavit (volume 2, page 382) that he did not believe that he is doing anything illegal at the time unless he engaged in sexual activity with someone who was not an adult. He says that if someone met him he knows that nothing would have happened. He accepts that the transcript of the chat line points to an opposite direction. He did not expect a child to attend to meet him. References For the purposes of the criminal proceedings there was some 27 references from family, friends of the family and a patient. -- 8 of 16 -- 9 JUDGMENT 1 10 20 30 40 50 60 Some of the friends were young women who had known the registrant through the registrant's children. They had known him during their early teen years and at no stage felt threatened by him. There were young women related to the registrant who said that nothing untoward ever happened involving the registrant while they were growing up. The registrant was described as being a most caring and important member of his own family and that of his siblings see volume 2, pages 429 to 456). Personal Circumstances The effects of this contact have been devastating both for the registrant and his family. He has separated from his wife. He still sees his children, but is unable to take part in their lives as he once did. His practice suffered once there was adverse publicity about the case. He lives in a residence provided by a member of his family who is overseas. He is studying for a Bachelor of Applied Science (medical science) at the university. He is on social security and receives a benefit from the university of $210 per fortnight. He has voluntarily ceased to work as a dentist since June 2005. He is presently not registered. He hopes again to work in dentistry, particularly with the knowledge obtained from his further degree. Up until June 2005 he worked under restricted conditions. -- 9 of 16 -- 10 JUDGMENT 1 10 20 30 40 50 60 The Objects of the Act Section 123 of the Act provides as follows: "The purposes of disciplinary proceedings and disciplinary action against the registrants are as follows: (a) to protect the public; (b) to uphold standards of practice within the health professions; (c) to maintain public confidence in the health professions". The Tribunal is required to make orders which protect the public, not to punish the registrant (see re H A Medical Practitioner (1972) Queensland Weekly Note 40). However, an order requires a general deterrent factor in order to protect the public in the future. The Tribunal is satisfied that the registrant is guilty of unsatisfactory professional conduct. Submissions of the Board The commissions of submissions of the Board are contained in paragraphs 12 to 18 of what is Exhibit 1. Those include that this conduct is extremely serious, that a particular concern is that the registrant believed he was meeting a 12 year old on two occasions, that even though there is a low risk of reoffending, and there does not appear to be a danger to his patients, the matter is still regarded as serious. The Act sets out the purposes of disciplinary proceedings, and that it -- 10 of 16 -- 11 JUDGMENT 1 10 20 30 40 50 60 is accepted that it is not to punish the registrant but, of course, to reflect general principles of deterrence. The Board submits that an appropriate order would be a term of actual suspension from this point on if, and when the registrant resumes practice, if he does so, that conditions be imposed for three years, as suggested in Exhibit 3. Reference was made to the case of Holms, which the Board did not describe as serious, however there were aspects in Holms' case (BD 470/04, 20th of February 2006) which did have disturbing features of observing children, taking photos and there being pornographic photography images on his computer at home. That case is of some relevance in our consideration. In the submissions of the registrant a report from Dr Persley was referred to. In his report of GVP1 Dr Persley made the following observations: that the registrant was not suffering from a diagnosable psychiatric condition; that he was possibly having a midlife crisis and was dissatisfied with his work and had other financial problems; that in referring to the article by Young on "Cyber Sex Addiction and True On-line Paedophilia" that the Registrant's condition was consistent with sex addiction and has been previously mentioned, of course, as a condition described as "paraphilia", not "paedophilia". In fact, there was a specific finding by Dr Persley that the registrant was not suffering a condition of paedophilia. He agreed with Dr McCullough's view that there would be a low -- 11 of 16 -- 12 JUDGMENT 1 10 20 30 40 50 60 risk of reoffending. However, he thought, notwithstanding no pre-existing history to suggest misconduct in his professional life, that the registrant accepted that he would never work without a chaperone, both for the protection of his patients and for his own self-protection. Dr Persley was of the view that a monitoring process should continue consistent with the proposals put forward on conditions of registration in Exhibit 3. Conclusions The registrant has pleaded guilty to count 2 on the referral notice. The Tribunal is satisfied that conditions should be placed upon his right to practice. Although he has voluntarily not practised since June 2005 the serious nature of these offences require that a further period of suspension of 12 months be imposed. If he were a registrant his registration would be suspended from 12 months from today. Apart from the cyber sex the registrant's conduct and character have been described as excellent by all referees who know him in different capacities. Addiction to cyber sex is a recent phenomenon brought about by the development of a Worldwide Web in the last 10 years (see the affidavit of P M Sinfield, 15th December 2005, volume 2, page 338). This fantasy world has a downside, particularly when persons pray on children and put their fantasies into effect. -- 12 of 16 -- 13 JUDGMENT 1 10 20 30 40 50 60 The Tribunal, having considered the psychiatric evidence and the nature of the registrant's condition, it is satisfied that the registrant is unlikely to offend. However, it is also of the view that conditions on registration be imposed: "that upon the registrant resuming practice he will, pursuant to section 243(2)(b)(iii), be subject to the attached conditions for a period of three years as contained in Exhibit 3 paragraphs 1 to 10." 1. The Registrant must not consult with, assess, examine or treat any person under the age of 16 years, unless a parent or guardian of the child, or the Registrant's nurse or receptionist, provided the nurse or receptionist is 18 years of age or older, is present in the same room during the entire consultation. 2. If treating any person under the age of 16 years, the Registrant must record in the patient's dental records, the name of the adult person who was present in the same room during the entire consultation. 3. The Registrant authorizes representatives of the Board to attend the Registrant's practice and to inspect the Registrant's dental records at such time as the Board determines, for the purpose of monitoring compliance with the conditions imposed on the Registrant's registration. 4. The Registrant must, upon request, provide the Board with copies of the dental records of patients nominated by the Board at such times as the Board shall determine for the -- 13 of 16 -- 14 JUDGMENT 1 10 20 30 40 50 60 purpose of monitoring compliance with the conditions imposed on the Registrant's registration. 5. The Registrant must give the Board upon request, access to his appointment diaries at such times as the Board shall determine for the purpose of monitoring compliance with the conditions imposed on the Registrant's registration. 6. The Registrant must notify any employer(s), partner(s) and any employee(s) in the Registrant's practice(s), of the conditions imposed. 7. The Registrant must notify the Board of any and all changes in the Registrant's practice, such notification to include the name(s) and address(es) of any employer(s)/partner(s)/person(s) from whom or with whom the Registrant is working and the address or addresses from which the Registrant is practicing dentistry. 8. The Registrant must authorize the Health Insurance Funds and Medicare Australia to release to the Board information relating to the Registrant's practice of dentistry. 9. That upon the Registrant resuming practice, he will, for the first two (2) years of such practice, attend regular monthly consultations with a psychiatrist or psychologist approved by the Board, in order to monitor his behaviour and mood as referred to in the report of Dr Gary Persley. The frequency of such consultations may be varied by the -- 14 of 16 -- 15 JUDGMENT 1 10 20 30 40 50 60 psychiatrist or psychologist with the consent of the Board in writing. 10. The Registrant agrees to provide to the Board at his own expense, for the period of two (2) years referred to above, reports from his treating psychiatrist or psychologist every six (6) months or at other less frequent intervals as agreed to by the Board in writing. Further: "(11) that the registrant not be registered for a period of 12 months from today". Suppression This matter was raised by the Tribunal, and there is power under section 223 of the Act to suppress the name of a registrant to whom the disciplinary proceeding relates. We have had regard to the matters raised in the Dental Board of Queensland v. B (2003) QHPTRO7. These matters were referred to in discussion, and factors which were considered were: whether it would reflect on other practitioners in an area; whether it was in the public interests that proceedings be conducted in public absent the statutory prohibition; whether it might allow other complainants to come forward; the public shaming as part of the accountability process; consider the age, experience of the registrant and the nature of the -- 15 of 16 -- 16 JUDGMENT 1 10 20 30 40 50 60 charge and whether it is likely to occur in the future; whether there has been a lack of remorse or incite of the registrant, and the detriment it may cause to the practice to which the registrant belongs. Those are matters that have been raised there, but another factor which should be emphasised is this, that the Tribunal which is responsible for maintaining public confidence regards the publication of the details of this case as a warning to others who may engage in similar conduct. It also allows the profession to know that even though they may be punished in other ways, for example by criminal proceedings, that the duty of the Tribunal is to maintain confidence in the profession and by imposing a suspension and conditions that the role of the Tribunal under the Act is fulfilled by so doing, and that a suppression order would not be appropriate in the circumstances. ... HIS HONOUR: It is further ordered that the registrant pay the Board's costs of the investigation. Further ordered that the registrant pay the Board's costs of these proceedings to be assessed or as agreed on the appropriate District Court scale. ----- -- 16 of 16 --