Dental Board of Queensland v Shippey [2003] QHPT 2

HEALTH PRACTITIONERS TRIBUNAL QUEENSLAND CITATION: Dental Board of Queensland v Shippey [2003] QHPT 002 PARTIES: DENTAL BOARD OF QUEENSLAND (Registrant’s Board) v BRIAN GEORGE SHIPPEY (Registrant) FILE NO: D2844/02 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Action ORIGINATING COURT: Brisbane DELIVERED ON: 20 March 2003 DELIVERED AT: Brisbane HEARING DATE: 20 March 2003 JUDGE: Forde DCJ Assisted by Dr. G. Cheyne, Dr. M.Foley and Ms.J.Felton ORDER: 1. The undertakings given by the Registrant to the Board are approved. 2. Registrant to pay the costs of the Board. 3. Each party has liberty to apply. 4. Details are to be recorded in the Board’s register. CATCHWORDS: “unsatisfactory professional conduct” - undertakings by Registrant - Health Practitioners (Professional Standards)Act 1999 ss.27,29,31,123,124,126,240,241and 242. COUNSEL: Mr. D.H Tait, Counsel for the Registrant. Mr. T.J Bradley Counsel for the Board. SOLICITORS: Flower and Hart Solicitors, Solicitors for the Registrant. Minter Ellison Lawyers, Solicitors for the Board. -- 1 of 9 -- 2 Introduction [1] The Dental Board of Queensland (the “Board”) has referred to the Health Practitioners Tribunal (“the Tribunal”) a matter relating to the Registrant, Brian George Shippey. This disciplinary matter arose out of complaints by various complainants, Shirley Van Ryn, Danny Rowleson, Del Cossey, Carol Lyn Free, Lynette Finlay, Nola Lamour and Linda Rea It is the belief of the Board that the matter may provide a ground for suspension or cancellation of the Registrant’s registration. [2] The facts and circumstances following the basis for the ground of this disciplinary action against the Registrant, namely that the Registrant has behaved in a way that constitutes unsatisfactory professional conduct for the purpose of s.124(1)(a) of the Act set out in Schedule A to the Amended Referral Notice. Those allegations are admitted by the Registrant. [3] The Tribunal has been advised that the parties have agreed on certain conditions. As the matter has been set down for a hearing, it is necessary for the Tribunal to sit to determine the appropriate disciplinary action. The Nature of the Hearing [4] The members of the Tribunal are the District Court Judges (s.27(1) of the Health Practitioners (Professional Standards) Act 1999) (‘the Act”). The Tribunal can be constituted by any one of its members. The Chairperson of the Tribunal is the Chief Judge (s.29). Section 31(1) of the Act requires that the Tribunal must be assisted by one assessor chosen by the Registrar from the public panel of assessors and two -- 2 of 9 -- 3 assessors chosen by the Registrar from the professional panel of assessors for the Registrant’s profession. [5] Section 31(2) provides as follows: “Despite sub-section (1), the Tribunal may conduct a hearing under this Act without the assistance of assessors if the Tribunal is satisfied it is necessary because of the urgency of the matter.” [6] This matter has been set down for hearing for some time. It cannot be categorised as being of an urgent nature in the circumstances. Therefore, it is necessary for a member of the Tribunal (a judge) to be assisted by assessors. [7] Section 123 sets out the purposes of disciplinary proceedings and particularly refers to the need to protect the public and to uphold standards of practice within the health professions and to maintain public confidence in the health professions. Further, s.124(1) does set out the grounds for disciplinary action which include: 1. “The Registrant has behaved in a way that constitutes unsatisfactory professional conduct”. [8] That term is defined in the schedule to the Act as follows and includes: “(a) Professional conduct that is of a lessor standard than that which might reasonably be expected of the Registrant by the public or the Registrant’s professional peers; (b) Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practise of the Registrant’s profession;” [9] In deciding whether a ground for disciplinary action is established, a Tribunal pursuant to s.241 must have regard to any relevant codes of practice and any previous decisions of the Tribunal and where relevant, decisions by a foreign disciplinary body. Once the Tribunal decides a ground for disciplinary action has -- 3 of 9 -- 4 been established, then the Tribunal has various powers including the imposition of conditions; suspension; suspension subject to conditions; or cancellation subject to conditions (s.241(2)). [10] In making its decision under s.241(2), the Tribunal must have regard to the purposes of the disciplinary action mentioned in s.123 and any previous decisions by a disciplinary body or the Tribunal of which the Tribunal is aware, and must have regard to any relevant previous decisions about the Registrant by a foreign disciplinary body. Presumably this means other than the Queensland Board. Nature of the Evidence [11] The report of Dr. Dingle, a Bachelor of Dental Science, conveniently sets out the nature of the problems in relation to each of the complainants and for convenience, the Tribunal quotes from his report being Exhibit B to his affidavit: “Re: Mrs Shirley Van Ryn It is my opinion that Dr. Shippey’s behaviour was that of “unsatisfactory professional conduct” as defined by the Health Practitioners Act 1999 in that it was: (a) a lesser standard than expected (by public or peers) (b) incompetent, showing lack of knowledge, skill, judgment or care. In particular, as the patient was under sedation when the bridge preparation was started, there was no likelihood of consent being properly obtained. A detailed discussion would normally be expected if a patient presenting with “a loose filling” was to then have bridgework done instead of a simple restoration. There seemed to be no evidence of treatment planning and indeed the treatment provided was not appropriate. A bonded resin bridge of that size and span would at best be a short term option. -- 4 of 9 -- 5 Also, as shown by radiographs and reports provided, the standard of work was unacceptable. In particular the bridge was in traumatic premature occlusion. In addition the follow up treatment showed incompetence or ignorance. A tooth with a pulpal exposure which continues to give pain cannot be treated by Panadeine Forte and Amoxil or by use of a laser. The patient needed early intervention of either root canal therapy or an extraction – not months of inaction. As well the patient records provided by Dr. Shippey were inadequate and failed to comply with the Dental Board’s guidelines which should be adhered to by all dentists either general practice or specialist. Re: Mr. Danny Rowleson In my opinion Dr. Shippey’s actions show evidence of “unsatisfactory professional conduct” in that it was: (a) a lesser standard than expected; (b) incompetent, showing lack of knowledge, skill, judgment or care. As far as consent applies it appears that not enough information was given to the patient about possible failure of bridges and alternative treatment (eg. Implants or dentures). In particular the treatment and treatment planning was certainly questionable in that a bridge of that length (21, 22-26) was a doubtful long-term treatment option. I would hope all general practice dentists would seek specialist consultation before attempting such a procedure. Similar could be said of the 13 post crown especially when Dr Shippey’s legal report states “a new fibre post made of ribbond…thought to be much stronger then traditional materials”. This shows some lack of knowledge. Such a post could not be stronger than traditional precious metal alloy posts. Even his follow up treatment of using “extended fibre-reinforced wings” to support the failing 13 post-crown shows more signs of desperation rather than appropriate clinical treatment and choice of materials. Again the records for the patient did not comply with the dental board guidelines which would be expected from all dental professionals. Re: Ms Del Cossey In my opinion, there is evidence that Dr. Shippey’s treatment of this patient shows some aspects of unsatisfactory professional conduct in that it was: -- 5 of 9 -- 6 b. incompetent, showing lack of knowledge, skill, judgment and care. As Dr. Joyce’s report points out there is some difference of opinion between the specialist’s reports provided. There can be no doubt that Dr. Shippey at least showed lack of skill or care in that an existing crown on the 35 was damaged to facilitate orthodontic treatment. I also think that Dr Shippey showed a lack of judgment in removing the orthodontic appliance before the treatment was completed, even if he was pressured by the patient. It seems that the orthodontic procedures provided little or no improvement in the spacing of the teeth. Even if the standard of the actual direct bonded resin restorations was accepted as reasonable for a general dentist, it probably should have been emphasized that this treatment is a short-term compromise, as opposed to indirect porcelain crowns. In addition the records provided by Dr. Shippey did not comply with the Dental Board’s guidelines. Re: Mrs Carol Lyn Free It is my opinion in this case that there is evidence of unprofessional conduct in that there was (b) incompetence, showing lack of knowledge, skill, judgment or care. It possibly could be accepted that the standard of treatment was reasonable, but only if a short-term compromise restoration was placed. Treatment planning was inadequate in that the teeth supporting the bridge were root filled and weak. As well, the materials used are inadequate for a long-term restoration. A general dentist should be able to assess this and advise the patient accordingly and not blame the “weak” existing teeth or the materials used. Again, the records taken for this patient failed to comply with the Dental Board’s guidelines. Re: Ms. Lynette J. Finlay In my opinion there is evidence of “unsatisfactory professional conduct” by Dr. Shippey in that there was: a. a lesser standard than expected b. incompetence (showing lack of knowledge, skill, judgement or care) -- 6 of 9 -- 7 It is accepted in general practice endodontics that pre-operative and treatment radiographs are mandatory to complete the treatment. As well the patient must be informed if an instrument breakage occurs (and the options discussed). There is also serious doubt about the appropriateness of the materials used – a paste root filling material is at best an interim compromise treatment. In addition the standard of treatment was poor as the tooth was incompletely filled. There is also evidence that the tooth was periodontally compromised and therefore root canal treatment and a crown were a poor choice of treatment plan. It should be also noted that the records taken did not comply with the Dental Board’s guidelines. Re: Ms Nola Lamour In my opinion Dr Shippey’s actions show evidence of unsatisfactory professional conduct in that there was: a. a lesser standard than expected. b. incompetence (showing lack of knowledge, skill, judgment or care) With regard to obtaining consent there seems to be much argument about the fees quoted and subsequently charged. It is generally accepted that with orthodontic treatment especially there should be a written quote and payment program provided to the patient, which also should cover unforseen treatment charges. As other reports have pointed out it is difficult to comment on the existence or otherwise of multiple cavities now the treatment has been carried out. The unsatisfactory conduct is the lack of bitewing radiographs which are a necessary aid in diagnosing caries. There is not necessarily a definite case for using a “catching membrane” during amalgam removal, if done carefully. As a general dentist who does some fixed orthodontic treatment, the orthodontic appliance provided for Ms. Lamour was inadequate. Also there was poor treatment planning – no study models and radiographs were available from Dr. Shippey. His choice of orthodontic appliance seemed at best, unwise and unconventional, particularly for a difficult case such as crowded lower incisors in an adult. Another instance of lack of knowledge or skill was the over use of enamel-stripping which was poorly done. Together these aspects of Dr. Shippey’s treatment were of a lesser standard then might be expected from a general practice dentist doing orthodontics. As well, the treatment not only caused the patient considerable discomfort, but also caused damage to the teeth which were in a worse state after Dr Shippey’s treatment than at commencement.” -- 7 of 9 -- 8 [12] The report of Mr. Dingle has been supported by Mr. Joyce save for Mrs. Cossey. In relation to Ms. Cossey, Mr. Joyce was somewhat equivocal. Dr. Darveniza described the dental work carried out by the Registrant on Ms. Cossey as being “fair to good”. Once the evidence of Mr. Joyce and Mr. Dingle is accepted, the Tribunal is in no doubt that a finding of unsatisfactory professional conduct has been made out against the Registrant. The work was carried out on the various complainants between December 1998 and May 2000. It can be described as a pattern of conduct or practice by the Registrant. Recording Disciplinary Action [13] The parties have agreed that pursuant to s.242(1), the details of the undertakings be recorded in the Board’s register. The Tribunal has decided that it is appropriate to record the undertakings given the serious nature of the facts and circumstances set out in the Amended Referral Notice and also the nature of the undertakings. Nature of Disciplinary Action [14] The conduct consisted of misleading statements about how long the particular crowns would last through to incompetence, workmanship and failure to obtain the necessary consent to procedures. There was also a failure to comply with Dental Board guidelines in that adequate records for patients were not kept. These are serious breaches of the professional conduct. The Tribunal is satisfied that the Registrant is guilty of unsatisfactory professional conduct within the meaning of parts (a) and (b) of the definition. -- 8 of 9 -- 9 [15] Further re-training is essential followed by periods of supervision. The Registrant has undertaken limited retraining since May 2002 and in particular relating to endodontic procedures. The Registrant and the Dental Board of Queensland have agreed upon certain undertakings which are dated 11 February 2003 and signed by the Registrant. These are before the Tribunal and are marked Exhibit 1. Pursuant to s.241(2)(c), the Tribunal may approve such undertakings relating to the Registrant’s conduct or practice. Following submissions and further consideration by the Tribunal, the Tribunal approves of the said undertakings initialled by the judge of the Tribunal. The Tribunal has also taken into account references from existing patients including a dental practitioner. These speak highly of the Registrant. Orders 1. The Tribunal approves the undertakings as set out in Exhibit 1 given by the Registrant to the Dental Board of Queensland. 2. The Registrant is to pay the Board’s costs of the investigation and the Board’s legal costs of the proceedings on a standard basis to be agreed, or failing agreement, to be assessed. 3. Each party has liberty to apply. 4. That details of the undertakings be recorded in the Board’s register for the period for which the undertaking is in force. -- 9 of 9 --