Dental Board Of Queensland v McCarthy [2001] QHPT 5

HEALTH PRACTITIONERS TRIBUNAL OF QUEENSLAND CITATION: Dental Board of Queensland v. McCarthy [2001] QHPT 005 PARTIES: DENTAL BOARD OF QUEENSLAND Applicant V DARRYL JOHN McCARTHY Registrant FILE NO/S: D1969 of 2001 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Action ORIGINATING COURT: DELIVERED ON: 24 August 2001 DELIVERED AT: Brisbane HEARING DATE: 22 August 2001 JUDGE: Judge O’Brien Assisted by Dr. Mark Brown Dr. Julee Birch Mrs Robyn Kerr ORDER: THAT THE REGISTRANT’S REGISTRATION BE SUSPENDED FOR A PERIOD OF 5 MONTHS THAT SUSPENSION TO COMMENCE ON AND FROM 28 SEPTEMBER 2001. FOLLOWING SUSPENSION REGISTRANT TO SUBMIT TO RANDOM AUDIT OF RECORDS. SUSPENSION TO BE RECORDED FOR 12 MONTHS. REGISTRANT TO PAY COSTS OF AND INCIDENTAL TO THE HEARING. CATCHWORDS: Dental Practitioner; convicted of indictable offence of misappropriation and fraud; false medical benefits claims; suspension from the register and submission to random audit of records. Health Practitioners (Professional Standards) Act 1999; ss 6,123, 124(1)(i), 126 (1) (b), 241 (2)(c) Medical Board of Queensland v. Tucker 1335 of 2000, delivered on 26 April 2000 -- 1 of 6 -- 2 COUNSEL: Mr R Devlin for the Dental Board Mr M Johnson for the Registrant SOLICITORS: Minter Ellison for the Dental Board Registrant in person [1] This is the hearing of a referral of a disciplinary matter by the Dental Board of Queensland pursuant to s.126(1)(b) of the Health Practitioners (Professional Standards) Act 1999. [2] The ground for disciplinary action is founded in s.124(1)(i) of the Act in that the registrant has been convicted of an indictable offence. There is no issue that the registrant has been so convicted and the only matter of concern to the Tribunal relates to the penalty that should now be imposed. [3] The indictable offences of which the registrant was convicted were Misappropriation with a Circumstance of Aggravation, committed between 5 June 1995 and 30 June 1997, and Fraud, committed between 1 July 1997 and 3 October 1997. The offences, which involved the furnishing of false medical benefits claims in respect of existing patients, resulted in the registrant receiving an amount of $31,272.00 over a period in excess of two years. [4] On 9 February 2001 the registrant pleaded guilty to those charges in the District Court at Brisbane, and on 27 April 2001, was sentenced to a term of two and one half years imprisonment, such term of imprisonment being wholly suspended for a period of four years. The learned sentencing Judge recognised the importance of general deterrence in sentencing for offences of this nature, but was satisfied that the registrants’ offending had not been motivated by avarice and was further -- 2 of 6 -- 3 satisfied that he was unlikely to offend again in the future. Her Honour had regard to the registrant’s personal circumstances and ultimately took the view that the need for deterrence could be best met by the imposition of a wholly suspended sentence. [5] The registrant had conducted a successful practice in a shopping complex at Everton Park until a fire burnt out a large portion of that complex in September 1994. This had a significant detrimental effect upon the registrant’s practice which he describes as follows:- “While my surgery suffered minor damage only as a direct result of the fire, the consequence of the fire was that the shopping centre lost a large portion of their custom, and that a great proportion of my patients assumed that my practice was no longer operating, and therefore went elsewhere for their dental needs. Although I was insured against fire, my insurer refused to pay me, on the basis that I had not suffered any damage by fire, (apart from a water-damaged computer). This was disastrous to me as I was locked into a lease for another nine to ten months, and had virtually no patients and therefore no income. The shopping centre remained in its damaged state for years, further exacerbating the deserted and inoperative appearance of the centre. It was as a direct consequence of this state of affairs that I succumbed to temptation and committed the above mentioned offences.” [6] The obvious aggravating features of the present case are the length of time over which the registrant’s fraudulent conduct occurred, and the amount of money involved in that conduct. On the other hand, there are several matters which weigh in his favour. He has co-operated throughout and his timely plea of guilty was a further indication of genuine remorse. He has made full restitution of the money involved. There is no suggestion that he has acted out of greed or that his conduct had posed a risk to his patients. It has been accepted that the motivation for his conduct lay in the events of 1994 as set out above. -- 3 of 6 -- 4 [7] Another factor of significance in this case is the delay that has occurred through no fault on the part of the registrant. He was first spoken to by Police in October 1997 yet he was not dealt with until April 2001. He has throughout that time continued to practice without committing any further offences. [8] There are a large number of references presented on the registrant’s behalf which demonstrate that he is a well regarded member of his community and is otherwise of good character. One such reference is from his present employer, Dr Fentiman, who clearly holds the registrant in high regard. It is argued that any period of suspension will adversely affect those patients whom he now treats in Dr Fentiman’s Maleny surgery. Apart from these matters it is further argued, given the registrant’s personal and financial circumstances, that even a short period of suspension will necessarily involve a significant burden for him and his family. [9] During the course of submissions reference has been made to the purposes of disciplinary proceedings and disciplinary action as set out in s.123 of the Act. They are - (a) to protect the public (b) to uphold standards of practice within the health professions; (c) to maintain public confidence in the health professions. These matters are also reflected in the objects of the Act as set out in s.6. [10] The jurisdiction exercised by this Tribunal is not essentially punitive, although that may sometimes be the effect of the Tribunal’s orders. This does not however mean that the issue of deterrence is of no relevance for the one of the matters which the -- 4 of 6 -- 5 Tribunal must consider is the effect which any order will have upon other practitioners who might be minded to act in a way similar to the present registrant. That is a matter of obvious relevance to the purposes of these proceedings as set out in s.123 of the Act and is a matter to be considered along with the circumstances of the particular offence and of the particular offender. [11] As Pratt DCJ. observed in the matter of Medical Board of Queensland v. Tucker 1335 of 2000, delivered on 26 April 2000, it is trite to say that professional behaviour implies honesty. The profession and the public are entitled to expect that those involved in the provision of health services will demonstrate the highest levels of probity in dealing with those agencies which, in one way or another, provide funding for such services. Although in the present case there are circumstances that might engender a degree of sympathy for the registrant, the Tribunal is of the view that the only appropriate penalty is one which involves a period of suspension. However, the Tribunal is further of the view, having regard to those matters which weigh in the registrant’s favour, that that period of suspension should be less than might ordinarily be the case. [12] The order of the Tribunal is that the registrant’s registration be suspended for a period of five months, such suspension to commence on and from 28 September 2001. Further, pursuant to s.241(2)(c) of the Act, it is approved by the Tribunal that the registrant, after serving the period of suspension, undertakes to submit to random audit of his professional, financial and treatment records on behalf of the Dental Board of Queensland until the expiration of the term of his suspended sentence on 27 April 2005. The suspension of the Registrant’s registration is to be recorded for a period of 12 months after the suspension ends and pursuant to s. 242 -- 5 of 6 -- 6 (1) (b) details of the undertaking should be recorded in the Board’s register for the period during which the undertaking is in force. -- 6 of 6 --