Dental Board of Queensland v B [2002] QHPT 6

HEALTH PRACTITIONERS TRIBUNAL OF QUEENSLAND CITATION: The Dental Board of Qld v B [2002] QHPT 006 PARTIES: THE DENTAL BOARD OF QUEENSLAND Registrant’s Board -v- B. Registrant FILE NO/S: D 2309/02 DIVISION: Health Practitioners Tribunal DELIVERED ON: 11 October 2002 DELIVERED AT: Brisbane HEARING DATE: 30 September 2002, 1 October 2002 JUDGE: Judge Forde assisted by Dr. G.A. Cheyne, Dr. J. Birch, Ms. C. Dalley ORDER: 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. That 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. CATCHWORDS: Dental Practitioner – grabbing breast of patient – disciplinary action – standard of proof Health Practitioners (Professional Standards) Act 1996 s.121, s. 211(1), s. 219(1)(c), s. 223, s. 241(2), s.242(1)(d) Briginshaw v Briginshaw (1938) 60 CLR 336 Edwards v The Queen [1993] 178 CLR 193 Medical Board of Qld v Ali No. 4 1997, 17 December 1997 R v Chevathen & Dorrick [2001] QCA 337 at paras. 30-31 R v Richens (1994) 98 Cr. App. R. 43 COUNSEL: A. McSporran for Board C.E.K. Hampson Q.C. for Registrant SOLICITORS: Gilshenan & Luton for Board Nyst Lawyers for Registrant -- 1 of 11 -- 2 [1] The Dental Board of Queensland (“the Board”) has referred this matter of B (“the Registrant”) to the Health Practitioners Tribunal (“the Tribunal”) pursuant to s. 126 (1)(b) of the Health Practitioners (Professional Standards) Act 1999 (“the Act”). The jurisdiction of the Tribunal arises under s.211(1) of the said Act. According to the Referral Notice it was the belief of the Board that the matters raised in the Notice may provide a ground for suspending or cancelling the Registrant’s registration. The grounds for disciplinary action, and the facts and circumstances forming its basis, are:- “1. That the Registrant did on 21st day of May 2001 and during the course of a dental consultation with G unlawfully and indecently assault the said G by taking hold of her left breast. 2. Alternatively the Registrant did on 21st May 2001 and during the course of a dental consultation with G improperly take hold of her left breast.” [2] It has been accepted by counsel for the Board that proof of Ground 2 would be a sufficient basis upon which the Tribunal could act to discipline the Registrant. It is not intended, therefore, to discuss Ground 1. The grounds for disciplinary action are contained in s. 124(1) of the Act and relevantly s. 124(1)(a) provides a ground where “the registrant has behaved in a way that constitutes unsatisfactory professional misconduct.” The latter phrase is defined in the Schedule: “Unsatisfactory professional conduct’ for a registrant, includes the following: (a) professional conduct that is of a lesser 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 practice of the registrant’s profession; (c) infamous conduct in a professional respect; (d) misconduct in a professional respect; (e) conduct discreditable to the registrant’s profession; (f) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person’s well being; -- 2 of 11 -- 3 (g) influencing, or attempting to influence, the conduct of another registrant in a way that may compromise patient care; (h) fraudulent or dishonest behaviour in the practice of the registrant's profession; (i) other improper or unethical conduct.” Background Facts [3] The Registrant graduated from the University of Queensland in November 2000. He obtained employment at a dental centre on the Gold Coast. Since September 2001 he has carried on his own practice. On 21st day of May 2001, G, the Complainant, attended at the dental centre as she had been suffering pain in her wisdom teeth. At the time she was enrolled in a Commerce degree at University and worked as a gym instructor. She was born on 1st July 1980. [4] On her arrival at the dental centre, she was told to take a seat and was soon approached by the Registrant. Having explained her symptoms to him, he indicated what the procedure would be and the need for an x-ray. He intended to clean out the infected areas after using an anaesthetic to numb her mouth. The Complainant was somewhat apprehensive about the needle and initially refused same. However, soon after going to a second room where there was the necessary equipment, the Registrant started the procedure but after a while, with her consent, he injected the Complainant’s gums with the anaesthetic. He then proceeded to carry on with the procedure of cleaning the infected areas. [5] According to the Complainant he stroked her face with his fingers. He is alleged to have said “You are a very beautiful lady” and subsequently “You have a nice tongue”. The Registrant concedes that he may have stroked the side of the -- 3 of 11 -- 4 Complainant’s face and asked her whether the anaesthetic had had an effect. He denied commenting about her tongue or her beauty. [6] The procedure involved having a low suction nozzle and high velocity suction nozzle on the left side and on the right side an ultrasonic scaler. The Registrant held the high velocity suction line in his left hand and the scaler in his right hand. Whilst carrying out this procedure the Complainant said that the Registrant asked “Can I touch you there”. Believing that he was referring to her mouth she grunted “Yeah”. According to the Complainant’s affidavit she said “I then felt him grab my left breast with his hand fairly quickly and then he released his hand”. In evidence before the Tribunal she described that touching as a stroking of the left breast rather than a grabbing. The difference may be seen to be significant. However, it could be said that the Complainant has not attempted to exaggerate what occurred on that occasion. In the first instance she passed it off as something that occurred by way of the procedure and did not react. Also, the allegation at the hearing was less serious than that in her affidavit. It does show a discrepancy but in the realm of things, not particularly decisive. What occurred next is the basis of the offence and that is that the Registrant is alleged to have grabbed firmly her left breast. When cross-examined about this that perhaps it may have been an accident by brushing parts of the instruments against her left breast, the Complainant was adamant that the fingers that she felt on her breast were not that of an instrument or its apparatus. She then said she pushed his hands away and jumped out of the chair. In cross- examination although she accepted that there were instruments in her mouth, she was not sure that any particular thing was happening in her mouth at the time. The Registrant is alleged to have said “I thought you were comfortable with that”. This was immediately after the incident. -- 4 of 11 -- 5 [7] Two other aspects of the Complainant’s evidence were contested by the Registrant, namely whether he inquired about the effect of the needle and secondly, whether the Complainant was wearing safety glasses at the time. She denied the latter. The Registrant said that she was wearing them. However, on the former point, in his original detailed statement (Ex. 5), the Registrant did not give any details about what occurred after he had given the Complainant the anaesthetic. However, in evidence in chief he did give evidence as to what he did on that occasion. His original statement is consistent with the Complainant’s evidence that there was a failure to provide any questioning about the effects of the anaesthetic upon her face. She said he just pursued the procedure and did not wait for the anaesthetic to take effect. Post Incident Events [8] The Complainant immediately contacted her mother. Her mother has sworn an affidavit which is not contested that on the date of the incident the Complainant rang her. She sounded “distressed and overawed”. She referred to the inappropriate behaviour by the Registrant. This recent complaint can be said to be consistent with her version of events and so bolsters the Complainant’s credit. Thereafter a complaint was made to the Health Commission and the police. The complainant in cross-examination said she did not pursue the complaint with the police but thought that it would be just that he would lose his job for what he did to her. She also spoke to Dr John Uthama who she believed was the owner of the Dental Clinic. After speaking to him about the complaint she subsequently received a call from the Registrant who is alleged to have said “It wouldn’t happen again”. In effect he apologized. The next day, Dr Uthama spoke to the Complainant who told her that -- 5 of 11 -- 6 the Registrant had informed him that the Complainant had called the Registrant to tell him that she “was teaching him a lesson for being rough”. Dr Uthama was informed by the Complainant that the Registrant had actually rung her to apologize. She was able to give him the number from where the Registrant had called. [9] This particular phone call has significance in the present case as the Registrant was asked to write out a note of the events by Dr Uthama. In his note which is Exhibit 4 he stated: “PT called, apologizing ...”. In cross-examination the Registrant said that that was really a shorthand for: “The patient was called, apologizing ...”. To insert the verb “was” detracts from the tenses used in that sentence. That may be overlooked in the first instance as perhaps bad English on the part of the Registrant but the matter is not left there. In conversations with Dr Uthama on 22 nd May 2001, the Complainant was told that the Registrant said that the Complainant had called him to apologize. The Complainant told Dr. Uthama that the Registrant had called her. The only source for the contrary was the Registrant. The evidence in paragraph 18 of the Complainant’s evidence is admissible: s. 179(1)(c) of the Act. In evidence, the Registrant did not accept that version given by Dr Uthama. He stated that Dr Uthama was bullying him and pushing him into answers. It is quite clear to the Tribunal that the Registrant was not candid with the Tribunal or with Dr Uthama in the first instance. It reflects adversely on his credit in the present case. The admission in Exhibit 3 and at trial that he in fact had called the Complainant in the first instance is inconsistent with the notes made by him and given to Dr Uthama immediately after the event. (Ex 4). The Registrant’s clumsy attempts to explain the note and to deny his conversations with Dr Uthama do him no credit. The affidavit of Ms Webb-Pullman was excluded after argument. It is not relied upon. One might infer that the reason he rang her was to apologize and put an end to the -- 6 of 11 -- 7 matter particularly where he had acted improperly. If it was related to the treatment, then why not admit that he had made the phone call in the first instance as it would show that he was a caring practitioner. That would be consistent with good practice after a traumatic event for a patient. The denial in this case, the Tribunal finds, touches on an important issue in the case, namely the credit of the Registrant. It is not intended to use a “lie out of court” as a “realization of guilt” in terms of Edwards v The Queen [1993] 178 CLR 193. Rather, the Tribunal finds that it touches upon the evidence of the Registrant in an adverse way: R v Richens (1994) 98 Cr. App. R. 43 at 51; R v Chevathen & Dorrick [2001] QCA 337 at paras. 30-31. Other Issues [10] The Registrant was left without the assistance of a dental assistant on that morning of the alleged incident. An explanation was given that an employee failed to report for work and so the Registrant was left to fend for himself. This failure by the employer to provide adequate staff left the Registrant in a vulnerable position. In his statement, the Registrant initially stated that the Complainant was his first patient. In evidence, after having done a check of the records over last weekend, the Registrant stated that she was his second patient. No records were produced. The Complainant believed that she was his first patient but nothing particularly turns on this point except that the Registrant’s recall of events immediately after the alleged incident was that she was his first patient. (Exhibit 3 p. 1). [11] The Complainant was cross-examined as to whether the treatment had been completed when she left the chair. She was adamant it had not been but it would be fair to say she would not have been in a position to determine same. She -- 7 of 11 -- 8 subsequently attended at another dental clinic and no further work was done on that occasion. She was given some further anti-biotics. Counsel for the Registrant argued that if the work was completed, it was unlikely her version of events was correct. The Complainant says that she got up and then went back momentarily. The Tribunal is not satisfied that the work was completed. [12] The Registrant does accept that he touched the tongue of the Complainant and that he stroked her cheek although, as conceded by his counsel, it would not have been unusual. The Complainant was concerned about her tongue and the effects of the anaesthetic. It may well have been that the Registrant was being sympathetic and complimentary in attempting to placate the Complainant. Certainly, in the first instance the Complainant did not seem to regard the comments as sinister but once the grabbing of the breast occurred, she placed more emphasis upon those earlier events. Generally speaking, her version of events had a ring of truth about them. She did not over-react to comments or the stroking of the breast in the first instance as she believed they may well have been “innocent”. This was not a case of a young woman over-reacting to an accidental touching. Finding on Credit [13] The Tribunal generally accepts the evidence of the Complainant as a truthful witness. She was cross-examined skilfully and at length by an experienced senior counsel. She made concessions when they were not necessarily in her interest. For example, she accepted that the Registrant tried to reassure her on occasions about the use of the anaesthetic. His manner of stroking her face and reassuring her, she felt, was consistent with his caring approach in the first instance. She accepted that -- 8 of 11 -- 9 he may have pulled her cheek back to get the needle in. However, she rejected the proposition that the Registrant was causing her pain because of a cold sore. She was adamant that she never got cold sores. There is no evidence from the Registrant that in fact he observed a cold sore. The Complainant was not confused about the sequence of events. Apart from the point relating to whether the breast was fondled, stroked or grabbed in the first instance, as reported by the Complainant, her evidence was generally cohesive, coherent and credible. It was practical for the Registrant to take out the high velocity vacuum and replace it in its holder before grabbing her breast. She was aware something was in her mouth and it may well have been the scaler that was still on or the low level suction vacuum. [14] One other issue which reflects on the Registrant is that when he rang the Complainant he said “I got your message”. The Complainant informed him that she did not leave a message. Given that the Registrant now accepts that he made the phone call, that misleading conduct further reflects upon his credibility. He was really suggesting to Dr Uthama and the Board (Ex. 3) that the Complainant was making allegations because of the “rough” or “harsh” treatment and that it was a “perverse attempt to punish me...”. The Registrant’s overall conduct and evidence lacked a ring of truth. [15] It was suggested that the Registrant had blood on his gloves, (Ex. 3 p. 2) and that it was unlikely that he would grab the Complainant. The Complaint was wearing a bib, the size of A4 paper. Whether or not it covered the whole of her left breast or whether the Registrant wiped his left hand are matters of conjecture. It is one factor to take into account viz. that blood was in or around the mouth. Holding the suction vacuum may not have necessarily led to blood being on the left hand. -- 9 of 11 -- 10 [16] Counsel for the Registrant stated that it was highly improbable that the Complainant would get up out of the chair quickly, return for a short while then wait around for the x-ray refund or bill. Given the problems which she was having with her teeth, the Complainant wanted treatment. It would be not unusual, the Tribunal finds, for her to wait notwithstanding the incident she described. [17] Finally, in cross-examination when asked whether he may have said to the complainant “Can I touch you there?” the Registrant answered “Very possible I may have”. To some extent that admission by the Registrant supports the Complainant’s version of events. The Tribunal is aware of the standard of proof being on the balance of probabilities but having regard to the seriousness of the allegation and the need to adjust the degree of confidence required before an adverse finding could be made: Briginshaw v Briginshaw (1938) 60 CLR 336; Medical Board of Queensland v Ali No. 4 of 1997 (Fryberg J.) at p. 9. The Tribunal finds Ground 2 proved and that the Registrant is guilty of unsatisfactory professional misconduct in terms of paragraphs (a), (d) and (e) of the Schedule definition referred to above. [18] Sections 6 and 123 refer to the objects of that Act and the purposes of disciplinary proceedings. Relevantly, the Tribunal is required to protect the public by ensuring that health care is delivered by the Registrant in a professional, safe and competent way. The Tribunal finds that ongoing supervision is necessary: s. 241(2)(b)(iii). Further submissions are called for as to the form of this order. [19] The name of the Complainant is not to be published. It is a contempt of the Tribunal to do so: s. 236(1)(j). The name of the Registrant should be suppressed in this case: s. 223. The nature of the offence and the age of the Registrant warrant -- 10 of 11 -- 11 such an order. It would amount to contempt if the order is breached: s. 236(1)(k). For similar reasons, the details of the disciplinary action should not be recorded in the Board’s Register: s. 242(1)(d) 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. 2. The Registrant is required to be properly supervised subject to further submissions. 3. The names of the Complainant and the Registrant are to be suppressed. 4. That no record of the disciplinary action be placed on the Board’s register. -- 11 of 11 --