Dental Board of Queensland v Boctor [2003] QHPT 7

DISTRICT COURT OF QUEENSLAND CITATION: Dental Board of Queensland v Boctor [2003] QHPT 007 PARTIES: Dental Board of Queensland Registrant’s Board v Raymond Ramsis Boctor Registrant FILE NO/S: DC No 2309 of 2002 CA No 10212 of 2002 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Action ORIGINATING COURT: District Court DELIVERED ON: 29 August 2003 DELIVERED AT: Brisbane HEARING DATE: 21 August 2003 JUDGE: Forde DCJ Assisted by Dr G. Cheyne Dr J. Birch Ms. C. Dalley ORDER: a) The Tribunal is satisfied that the Registrant on 21 May 2001 and during the course of a dental consultation with the Complainant improperly did take hold of her left breast amounting to unsatisfactory professional misconduct. b) The Registrant is required to be properly supervised as follows and that the Board appoint a mentor from outside the Registrants practice for a period of two (2) years to carry out supervision if necessary: i. The Registrant must not examine or treat any female patient without a chaperone, aged eighteen (18) years or over, present; ii. The Registrant must record the name of the chaperone in the patient’s clinical -- 1 of 12 -- 2 record; iii. The Registrant must allow a representative of the Board to inspect his patient records at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions; iv. The Registrant must authorise insurance funds to provide information about the Registrant’s treatment to female patients; v. The Registrant must notify all partners/employers/employees in his practice of these conditions; vi. The Registrant must inform the Board of the names of the persons he notifies of these conditions. c) That the details of the said conditions be recorded on the Board’s register for the period for which the conditions are in force viz. two (2) years. d) The Registrant pay the Board’s costs of the investigation to be fixed at $1826.49 and further order the Registrant pay the Board’s costs of these proceedings to be assessed on the District Court scale for matters greater than $50,000.00. CATCHWORDS: Dental practitioner – unsatisfactory professional conduct – improper touching of patient – sanctions – suppression order – recording of conditions on Board’s register. Health Practitioners (Professional Standards) Act 1999 ss. 123, 223 and 242(1)(a). Cameron v. The Queen (2002) 76 ALJR 382. Dental Board of NSW v. Dr. Ho 26.07.02. Medical Board of Queensland v Ali (Medical Assessment Tribunal 17.12.97). Medical Board of Queensland v. H. (Medical Assessment Tribunal 18.12.97). Reyes v. Dental Board of South Australia (1998) SASC 6516. Saidden v Dental Board of NSW 18.12.01. COUNSEL: Mr A. MacSporran of Counsel for the Board. Mr J. Murakami solicitor for the Registrant. SOLICITORS: Gilshenan & Luton Lawyers for the Board. Nyst Lawyers for the Registrant. -- 2 of 12 -- 3 Introduction [2] Following a disciplinary hearing in this matter, a charge against the Registrant was found to be proved. The charge was that “the Registrant did on the 21st day of May 2001 and during the course of a dental consultation with Dayna Gillespie improperly take hold of her left breast”. After the decision was handed down submissions were taken from both parties. Those included written submissions from counsel for the Board. The solicitor for the Board also made submissions on various matters, handed up copies of cases and made submissions about those cases. The orders made were as follows: “ 1. The Tribunal is satisfied that the Registrant on 21 May 2001 and during the course of a dental consultation with the Complainant improperly did take hold of her left breast amounting to unsatisfactory professional misconduct. 2. The Registrant is required to be properly supervised subject to further submissions. 3. The names of the Complainant and Registrant are to be suppressed. 4. That no record of the disciplinary action be placed on the Board’s register. 5. The Registrant pay the Board’s costs of the investigation to be fixed at $1826.49 and further order the Registrant pay the Board’s costs of these proceedings to be assessed on the District Court scale for matters greater than $50,000. 6. Order in terms of supervision (i) – (vi) Ex B and that the Board appoint a mentor from outside the Registrant’s practice for a period of 2 (two) years to carry out supervision if necessary. i. The Registrant must not examine or treat any female patient without a chaperone, aged 18 years or over, present; ii. The Registrant must record the name of the chaperone in the patient’s clinical record; iii. The Registrant must allow a representative of the Board to inspect his patient records at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions; iv. The Registrant must authorise insurance funds to provide information about the Registrant’s treatment to female patients; v. The Registrant must notify all partners/employers/employees in his practice of these conditions; -- 3 of 12 -- 4 vi. The Registrant must inform the Board of the names of the persons he notifies of these conditions.” [3] Both parties appealed. The appeal by the Registrant concerning the adverse finding against him that the charge had been proved was dismissed. The appeal by the Board on the ground that there was a breach of natural justice succeeded. The Court of Appeal held that when submissions on sanction are made that all of the members of the Tribunal should be present or at least appraised of the submissions and consulted before any decision is made. Those submissions have now been made before all of the members of the Tribunal which heard the original charge. Consultations occurred following the hearing and a decision has been reached based upon the material presented on 11 October 2002 and the additional material presented on 21 August 2003. Submissions on 21 August 2003 [4] The Board relied upon its earlier submissions, with the main change being that the period of suspension should be in the range of six (6) months rather than twelve (12) months as previously suggested. No reasons were given for the change except for reference to another case of Medical Board of Queensland v Ali (Medical Assessment Tribunal 17.12.97). The Board’s earlier submissions were relied upon. Dr. Ali was suspended for three (3) months. [5] The main submissions of the Board were as follows: a) that the Registrant has continued to deny the substance of the complaint b) lack of insight and/or lack of remorse -- 4 of 12 -- 5 c) element of self-gratification d) the Registrant’s age and lack of experience are not valid explanations e) any costs order is not relevant to sanction. [6] In dealing with these submissions, the solicitor for the Registrant, submitted that the Registrant should not be penalised because he has contested the charge. The High Court has recognised the distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for failing to plead guilty: Cameron v. The Queen (2002) 76 ALJR 382. Of course, remorse is a factor to be considered when a person does plead to a charge. In the present case, the Registrant denied that anything untoward had occurred, even an accidental touching. What the Registrant has done is to install video cameras in both surgeries where he works. This allows a permanent record to be kept of all consultations. It does evince a positive response by the Registrant to avoid any repetition of any allegations of that nature. [7] Also, the Registrant approached Professor Laurence James Walsh to be his mentor. The Board has failed to appoint a mentor pursuant to the conditions imposed. The failure to appoint a mentor has concerned the Tribunal in this matter. The Board was unaware that Professor Walsh had been so acting. It shows either that the Board was not concerned about the Registrant needing assistance or it reflects a lack of will to carry out conditions imposed in cases of this nature. In any event, the Registrant took the step himself. Professor Walsh has deposed that he has known the Registrant since 1997 when he commenced to teach the Registrant as an undergraduate. The Registrant according to Professor Walsh was “one of the most intellectually gifted students for his age” that he had encountered in his twenty years of lecturing. The Registrant has graduated with First Class Honours in December -- 5 of 12 -- 6 2001. Professor Walsh had visited him at his practice at the Gold Coast and he has discussed the matter presently before the Tribunal with him. [8] The Board suggested that this act was one of self-gratification. Such acts usually are. It was momentary and was not repeated with the complainant. There were no other complainants. These events occurred some five (5) months after his graduation. He was a relatively inexperienced practitioner but that fact and his age are not excuses. His position can, however, be contrasted to an older and more experienced practitioner who may be more aware of the pitfalls in life. His brother is his partner in the practice which operates from two surgeries. The practice employs two dentists part time and six female dental assistants/receptionists. Dr. Victor Boctor, the Registrant’s brother and partner, deposes that the incident and the subsequent hearing has caused the Registrant “a considerable amount of anxiety and stress”. Both Dr. Victor Boctor and a dental assistant, Ms. Muscat confirm that a dental assistant is always present during all consultations and the name of the dental assistant is recorded on the patient’s card. [9] The Registrant attended a Dr. Jones at Ashmore Medical Centre in March 2003. He was treated for depression. He was concerned about his career. An anti-depressant was prescribed. His health has improved. Dr. Jones opined that the Registrant’s health had suffered a great deal in the past six to eighteen months. He has been a patient for some eighteen months. [10] Although the Registrant’s solicitor put before the Tribunal the costs which have been incurred by the Registrant including solicitor and client costs, the Tribunal does not regard those as relevant in deciding the appropriate sanction in this case. -- 6 of 12 -- 7 Cases relied upon [11] It is the view of the Tribunal that the cases referred to in argument are more serious than the present case. The sanctions varied from some twelve (12) months suspension in Saidden v Dental Board of NSW 18.12.01 to three (3) months in Ali op. cit and Medical Board of Queensland v. H. (Medical Assessment Tribunal 18.12.97). [12] In Saidden’s case, the registrant was convicted in the criminal courts for indecent assault. The complainant was sixteen (16) years and was a dental assistant. He had massaged her on a number of occasions. Inappropriate suggestions were made. The registrant there denied any inappropriate touching. The case of the Dental Board of NSW v. Dr. Ho 26.07.02 involved an act of indecency on an employee as well and a conviction in the criminal court. He admitted his activity and pleaded guilty in the criminal court and did not contest the charge before the Dental Board. He had taken photographs of his dental assistant and on one occasion took a photo of his erect penis in her presence. No explanation was given for his bizarre behaviour. He was suspended from practice for eight (8) months. In Ali op.cit., there were two charges the first of which involved hugging and kissing the patient. He attempted to kiss her on the lips. He pleaded to that charge. The second charge involved rubbing the patients hips for no medical reason, commenting that she had “beautiful breasts” and saying “you don’t mind me making passes at you, do you?”. He also tapped her on the breasts although she did not indicate that there was an injury to her breasts. An aggravating feature of Ali’s case is that the registrant committed another offence after a complaint had been made in an earlier matter. The offences occurred in a time span of some five months. -- 7 of 12 -- 8 [13] Finally, there is the case of Reyes v. Dental Board of South Australia (1998) SASC 6516. In that case the registrant had acted inappropriately towards an eighteen (18) year old employee. The registrant had asked the complainant out to dinner on a couple of occasions. During those outings he made suggestions to her of how beautiful she was and also went shopping with her. He asked her to go to the beach and said that “he wanted to go far away so that he could hit her over the head with a stick and do rude things with her”. On another occasion he hugged her. The registrant was also on charges of driving under the influence of an intoxicating liquor, driving whilst disqualified and giving an untrue account of the events to the Board. He had assaulted police in the fracas and attempted to escape. The applicant was 36 years of age and had migrated to Australia from Chile in 1988. He received a suspended sentence of eighteen (18) months for the serious sexual offence on an employee. He suffered from anxiety and depression. It was obviously a more serious case of an aggravated nature and justified the cancellation of his registration for unprofessional conduct. Other considerations [14] The present Registrant did suffer from depression as a result of these events. He has taken steps to minimize the risk of any repetition of such conduct by having surveillance videos installed. He has complied with all of the conditions placed upon him by the order of 11 October 2002. He took the initiative and appointed his own mentor. [15] In Ali’s case Fryberg J. commented at pp.5-6: “The case also shows the need on occasion for the Board to provide the Tribunal with evidence or information relating to the prevalence of -- 8 of 12 -- 9 particular types of misconduct. While I am greatly assisted by what I am told by my assessors, there is a limit to the information which they have readily to hand. There may be on occasions a need for formal evidence to be introduced.” [16] Although invited to do so, the Board did not put any relevant material before the Tribunal as to the prevalence of this type of offence. There have been no complaints concerning the present Registrant since the subject incident some two years and three months ago. Also, the Board did not see any urgency in appointing a mentor in the present case. [17] The Tribunal is satisfied that the conditions relating to supervision as set out in paragraph six (6) of the decision are appropriate. In arriving at this decision the Tribunal has had regard to the purposes as defined by the Health Practitioners (Professional Standards) Act 1999 (“the Act”) in relation to disciplinary proceedings (s123): “1. to protect the public; 2. to uphold standards of practice within the health profession; 3. to maintain public confidence in the health profession.” Suppression Order [18] At the earlier hearing a view had been reached that the name of the Registrant be suppressed. His age and the nature of the offence were regarded as relevant. More expansive submissions have now been placed before the Tribunal. S.223 of the Act provides that the Tribunal “may by order, suppress the name of the registrant to whom the disciplinary proceedings relates”. No factors are referred to in the section. The Tribunal, after submissions, regards the following factors as relevant: -- 9 of 12 -- 10 (i) by not identifying the Registrant it may reflect on other Gold Coast practitioners; (ii) it is in the public interest that proceedings be conducted in public, absent statutory prohibition. It may in appropriate cases encourage other complainants to come forward; (iii) public shaming is part of the accountability process; (iv) the age and experience of the registrant; (v) the nature of the charge; (vi) whether such conduct is likely to occur in the future; (vii) the lack of remorse or insight of the registrant; and (viii) the detriment it may cause to the practice to which the registrant belongs. [19] Some of the factors above have been discussed in the reasons as part of the sentencing process. The relevance of the other factors viz. (i), (ii), (iii) and (viii) are obvious. It is the view of the Tribunal that no basis has been established which would justify a suppression order in the present case. Recording the details in the Board’s Register [20] S.242(1)(a) of the Act provides that the Tribunal must also decide whether details of the conditions imposed must be recorded in the Board’s register. It is clear from the Act that the Tribunal is justified in recording the details in the register, “unless the tribunal reasonably believes it is not in the interests of users of the registrant’s services or the public to know the details”. There was no submission or evidence -- 10 of 12 -- 11 put before the Tribunal to show the former. Once grounds exist to have a suppression order lifted it could be difficult to prove the latter. The Tribunal is satisfied that it is justified in this instance to record the details in the register. Orders [21] As two of the orders have been varied, it is convenient to set out all of the orders: 1) The Tribunal is satisfied that the Registrant on 21 May 2001 and during the course of a dental consultation with the Complainant improperly did take hold of her left breast amounting to unsatisfactory professional misconduct. 2) The Registrant is required to be properly supervised as follows and that the Board appoint a mentor from outside the Registrants practice for a period of two (2) years to carry out supervision if necessary: i. The Registrant must not examine or treat any female patient without a chaperone, aged eighteen (18) years or over, present; ii. The Registrant must record the name of the chaperone in the patient’s clinical record; iii. The Registrant must allow a representative of the Board to inspect his patient records at such time or times as the Board shall determine for the purpose of monitoring compliance with these conditions; iv. The Registrant must authorise insurance funds to provide information about the Registrant’s treatment to female patients; v. The Registrant must notify all partners/employers/employees in his practice of these conditions; -- 11 of 12 -- 12 vi. The Registrant must inform the Board of the names of the persons he notifies of these conditions; 3) That the details of the said conditions be recorded on the Board’s register for the period for which the conditions are in force viz. two (2) years; 4) The Registrant pay the Board’s costs of the investigation to be fixed at $1826.49 and further order the Registrant pay the Board’s costs of these proceedings to be assessed on the District Court scale for matters greater than $50,000.00. -- 12 of 12 --