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- Unreported Judgment
Gibraeil v Dental Board of Australia QCAT 113
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gibraeil v Dental Board of Australia  QCAT 113
dental board of australia
Occupational regulation matters
8 June 2021
26 March 2021
Judicial Member J Robertson
Dr Petrina Bowden
Dr Eardley Rozario
Ms Claire Elliott
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTAL PRACTITIONERS – APPLICATION TO REVIEW DECISION OF RESPONDENT BOARD TO IMPOSE CONDITIONS – where a complaint was made to the Office of Health Ombudsman who subsequently referred it to the Board about the Applicant’s practice in relation to one patient – where Board decided the way the Applicant practised was unsatisfactory in relation to keeping records, understanding of the management of non-carious tooth loss and use of radiographs as a diagnostic tool – where Board imposed conditions all of which the Applicant has completed – where Applicant applied to review the decision seeking an order that the Board’s decision be set aside-whether on the evidence before the Tribunal on a fresh hearing on the merits the Board’s reasonable belief was justified
Health Practitioner Regulation National Law (Queensland), s 41, s 178
Queensland Civil and Administrative Tribunal Act 2009, s 20, s 21, s 24, s 28, s 33
WD v Medical Board of Australia  QCAT 614
Mr Williams of Counsel instructed by Finemore Walters and Story Solicitors of Bundaberg
Ms Nixon (Sol) of Turks Legal
REASONS FOR DECISION
- On 21 May 2020, the delegate of the Dental Board of Australia (the Board) gave notice to the applicant of its decision made pursuant to section 178(1)(a) and (2)(c) and (3) of the Health Practitioner Regulation National Law (Queensland) (National Law) that, for reasons set out in the notice, the Board had formed a reasonable belief that the applicant’s practice as a registered dental practitioner with the Board was unsatisfactory, and imposed conditions on his registration with a review period of 6 months.
- The Board’s decision was the culmination of an investigation, initially by the Office of the Health Ombudsman under the Health Ombudsman Act 2013 (Qld) (the Act), into a complaint made to it by a patient of the applicant on 23 August 2019, relating to treatments provided on 7 May and 6 June 2019; which investigation had ultimately been transferred to the Australian Health Practitioner Regulation Agency (AHPRA) and the Board. The recorded complaint by the patient, reads objectively as a complaint of overcharging and/or over-servicing, but by the time of the Board’s decision on 21May 2020, this had morphed into concerns about the applicant’s record-keeping, his use of x-ray as a diagnostic tool, and his alleged lack of understanding about the cause and management of non-carious tooth loss.
- The conditions imposed by the Board (in summary) required the respondent to undertake education, specifically for a minimum of three hours in relation to each of the three areas of concern set out in the decision notice; and to complete thereafter a “reflective practice report” to the satisfaction of the Board, and to engage an auditor to, in effect, ensure that the education undertaken in the three areas identified in the conditions had been adequate and appropriate.
- The applicant applied to the Tribunal by application filed on 25 June 2020 to review the Board’s decision seeking an order that the decision be set aside.
The review jurisdiction
- The application is made pursuant to section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The purpose of the review is to produce the correct and preferable decision, and the Tribunal must hear and decide the review by way of a fresh hearing upon the merits.
- As to the proper construction of section 178(1)(a)(i) of the National Law, in AMS v Medical Radiation Board of Australia (No 2)  QCAT 401, the Deputy President of QCAT, his Honour Judge Allen QC wrote:
I am required to determine whether, pursuant to s 178(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner’s professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
With respect to the terms of s 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting a proposition. The condition for the exercise of the power pursuant to s 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.
The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory – it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient.
In Oglesby v Nursing & Midwifery Board of Australia  QCAT 701, Horneman-Wren DCJ, Deputy President, stated as follows at , in the context of immediate action:
I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
Whether or not one would have a reasonable belief, on all the evidence, that the way that the practitioner practises his health profession or the practitioner’s professional conduct is or may be unsatisfactory is a question on which minds might differ. I have been greatly assisted by the views expressed by the assessors when considering such question.
- In responding to the information requests from the Health Ombudsman, AHPRA and the Board, the respondent has been fully cooperative, although, as I will demonstrate, not very consistent in his responses.
- The applicant’s patient was 74 at the time of both treatments. His complaint made verbally to the Office of the Health Ombudsman on 23 August 2019, and recorded as a file note, was that he had treatment on 7 May as a result of which “he felt excess filling with his tongue on the back of his left tooth”. He could not return immediately because of a hospital admission, but in his mind, his return on 6 June was to rectify work done on 7 May 2019. The applicant’s position has always been that the consultations were unrelated and should be considered as separate and distinct.
- The applicant (through his Association) provided clinical notes of both appointments to the Office of the Health Ombudsman including x-rays conducted by him on 7 May, which he accepts are deficient because of cone cutting which he blames on the machine and not on his operation of it. The applicant also responded to AHPRA in its investigation, and it is clear that the issues the subject of the decision largely arise out of the Board’s assessment of the applicant’s responses and not the original complaint.
- For reasons that will become clear, and on a fresh hearing on the merits on the material before the Tribunal, I have concluded that it is not necessary to dissect the minutiae of the arguments advanced by the parties.
- The decision notice the subject of the review application has been supplemented by a formal Statement of Reasons filed by the Board on 21 October 2020, pursuant to section 21(2)(a) of the QCAT Act, under the name of its solicitor.
- The decision ultimately was critical of the applicant (in relation to the 7 May and the 6 June consultations), in relation to three areas of practice, namely, record-keeping, aetiology and management of non-carious tooth loss, and his use of diagnostic radiographs. As noted earlier, the criticisms largely came from his various responses to the Health Ombudsman and AHPRA in which he sought to respond to specific questions asked of him.
- It is common ground that proper clinical record-keeping is essential for a health practitioner to ensure the health and safety of the public.
- By virtue of section 41 of the National Law, relevant codes and guidelines promulgated by the Board are evidence of proper practice for a registered dentist. In relation to record-keeping, the relevant code of conduct provides:
Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some national boards have specific guidelines in relation to records. Good practice involves:
- (a)keeping accurate, up to date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners; –
- The position of the applicant now is that, prior to the 7 May consultation (his first with the patient), he reviewed clinical notes relating to the patient made by other practitioners in the practice in 2010 and 2011, which informed his diagnosis and recording on that day. He did not say this in his response to the Health Ombudsman, or in his response to AHPRA on 23 November 2019.
- The decision notice and statement of reasons (in relation to this issue of record-keeping) note that he did not record in the clinical notes, details of discussing with the patient information respecting the dental examination, results, possible causes, treatment options and costs, prior to undertaking the treatment. In his response to the Health Ombudsman the applicant (through his agent the Australian Dental Association Queensland), said that “After an examination” he explained to the patient his dental status, including worn cavities on teeth 22 (a number of aspects), 34, 33, and made recommendations for treatments.
- The records of the 7 May consultation refer to discussion of a treatment plan (pros and cons of treatment), explained, a quote is given, “verbal consent”. In his further submission to AHPRA on 12 April 2020 he says all this was discussed “prior to” the related treatment. He now says in his latest affidavit that “During the examination” he checked the conditions of the patient’s teeth and read them out loud, and these were recorded by his assistant in the visual charts.
- Again, for the first time in his recent affidavit, he refers to the use of the charting software at the practice, noting that “teeth with red or orange markings are teeth with decay present. Finally, teeth with orange diamond markings are teeth with wear”.
- The invoice for the 7 May consultation indicates that an adhesive restoration was undertaken on teeth 22 (three surfaces), 34 and 33, and odontoplasty was carried out in relation to teeth 11 and 13. His clinical notes refer to “caries as chartered”, but are otherwise silent on the issue of caries. There is no mention of wear. He says that he conducted a full examination and the patient was charged for this.
- In his response to the Board, he stated there were “clear cavities with no presence of decay on teeth number 22DP, 34DOL, 33LI and 22La”.
- In his clinical notes for the 6 June consultation, he refers to “worn teeth 22, 23”, an observation he did not record in his written notes on 7 May.
- On that occasion, he undertook adhesive restorations to three surfaces of tooth 22, and also 23. There is no note of explanation or consent in the clinical notes. In that regard, his counsel on his behalf now concedes that his record keeping was inadequate.
- When questioned by the regulators about how it could be that he would not notice wear to two teeth he worked on, on 7 May, just a month later on 6 June, he stated in various responses that they were “clean cavities” on those teeth. He certainly did not refer to the charting, which he now does in his most recent affidavit.
- In relation to obtaining the patient’s consent for the treatments on 6 June (given that the patient believes he was there to have work done to have the 7 May work rectified, which seems to be confirmed by the clinical notes), there is no evidence in the clinical notes that the patient gave consent. The applicant has said in his various responses to the regulators that he obtained verbal consent, but this is not recorded.
- He now says in his latest affidavit, that teeth 21 and 22 “were worn in a way that did not appear during the 7 May 2019 consultation”. No wearing of these teeth, “one of the same teeth (22) what I worked on during the May 2019 consultation”, is recorded in the notes of the 7 May consultation, although his latest affidavit states “it was a different surface than that which I worked on in May”. He also conducted, and charged for, a comprehensive oral examination on 7 May, so the logical conclusion is that if there was wearing on those teeth, he missed it. He would not concede this in close questioning from the professional assessors on the Tribunal, but the complaint is not that he missed any wearing on tooth 22; rather, in conducting comprehensive oral examinations, his clinical notes are deficient. In this regard, I agree with the reasonable belief reached by the Board on 21 May 2020 in relation to this discrete topic.
- In relation to record keeping, and the other issues of concern expressed in the Board’s decision notice, the applicant completed, as required by the conditions, a reflective report as a result of the additional education he has received. He told the Tribunal that none of the education modules had added to his clinical knowledge. I note that he presents as an extremely confident man who does not take criticism, even justifiable criticism, very well. In his reflective report he wrote this:
From the Record Keeping course, I have implemented what I learnt into my everyday practice. I thoroughly explain to the patient what I’m about to do for their today’s visit, or will be doing as a proposed treatment (if any) plan including but not limited to:
- asking the patient about the complaint/purpose of visits;
- the results of the examination;
- the possible outcome;
- the treatment options;
- the effective cost involved.
I am actively asking the patient if they understood. Also, I encourage them to ask if they have questions or concern. Similarly, I answer any questions that they might have raised. After having this communication and discussion, I obtain their consent prior to commencing treatment and document all of that in their respective clinical notes.
One thing that struck my attention is that, to add one more possibility to the options of treatment which is “No Treatment” as an option, to include that in the clinical notes, and to provide the patient and explain its positive and negative consequence (sic).
- During his evidence before the Tribunal, and in responding to questions from me, the applicant conceded that his own words indicated that he had altered his clinical practice in relation to record keeping as a response to the education modules. Although he was charmingly dismissive of the need for any education and the purpose of the reflective report (he told me he did it because he had to), in my opinion, his own words are supportive of the Board’s reasonable belief in relation to this issue in May 2020.
Cause and Management of Non-carious Tooth Loss
- The Board’s reasons and decision in relation to this issue, are connected with its concerns about the applicant’s record keeping. Its reasons are in these terms:
“30. Taking into account the information recorded by the Applicant in his clinical records relating to (the patient) the Respondent formed a reasonable belief the Applicant may not understand the differences between the process of tooth decay and the process of non-carious tooth loss.
31. In forming this belief, the Respondent took into account:
- (a)The use of the phrase “caries as charted” in the clinical records for 7 May 2019; –
- (b)The use of the description “worn teeth” in the clinical records on 6 June 2019;
- (c)The Applicant’s use of terminology including ‘clean cavity’ and ‘clear cavity’ in his submissions;
- (d)The phrase in the Applicant’s submissions ‘on clinical examination there were clean cavities’ (not due to a lost filling or caries);
- In relation to possible causes of non-carious tooth loss, the Board states in its reasons:
- In this regard the Respondent refers to the Applicant’s April 2020 submissions in which he expanded on the description in his clinical records for the consultation on 6 June 2019 saying:
On the 6th of June 2019, my physical observation and assessment of (the patient’s) dental condition with regards teeth 22MIP, 23MIP resulted in diagnosis of the following: “Clean cavity” which means cavity free from decay. However, the teeth described were affected by “Wear”, under the circumstances it was my assessment that the cause of “Wear” was simply grinding.
- The Applicant’s use of the phrase “clean cavity” and his explanation of the phrase does not reflect an accepted manner of describing a cavity in dentistry.
- The Respondent submitted that this supports its concern that the applicant misunderstands the process of non-carious tooth loss, and supports the respondent’s concern that because of his misunderstanding of the aetiology of non-carious tooth loss, he misuses terms which render his clinical records inaccurate.
- In his latest affidavit sworn on 19 March 2021, for the first time, the applicant refers to the colour coding in the visual charts. For the first time (i.e., in his prior dealings with regulators over this issue) he says now, that during the May consultation he referred back to the patient’s previous contact with the practice in 2010 and 2011. There is no reference to this in his contemporaneous notes, and if relevant to his conclusions about how to treat the patient, there should have been. It is clear that, in his affidavit, and in earlier responses to regulators,he was re-constructing, in the sense that he was referring then i.e., at the time he was responding to the regulator, to the previous notes.
- He says that he used “clean” and “clear” in his responses to the Board “to try and explain the ‘clear’ presence of a cavity”. It would have been much more sensible to have provided the explanations he now does, by reference to the colour-coded visual charts that use technical terms, rather than to use non-technical terms such as, “clear” and “clean” when dealing with his peers on the Board. His use of these terms was apt to lead the professional members of the Board to reasonably believe that he was demonstrating confusion about the causes and treatment of caries.
- However, as he points out in his affidavit, these terms are not used in his clinical notes; and when one has regard to his note, “caries as charted”, in light of this new explanation, which was not given to the Board, and given the high degree of improbability that such an experienced practitioner would not properly understand these basic issues, I am not satisfied that the Board’s reasonable belief, as at May 2020, on this issue alone, was justified. The applicant demonstrated in this evidence, and in particular, his cross-examination, that he does not take kindly to any criticism of his practice and knowledge; and this aspect of his approach is demonstrated in his various responses to the regulators.
- In relation to the applicant’s failure to record any wearing on his consultation on 7 May, the Board, in its reasons, states:
- On the 7 May 2019, three surfaces of tooth 22 were treated by the Applicant, and a further three surfaces of the same tooth were treated on 6 June 2019. Taking this into account, the Respondent has formed the reasonable belief the treatment carried out on tooth 22 on 7th May 2019, provided the Applicant sufficient opportunity to detect the presence of wearing, including on surfaces not treated on that day. No wearing was observed or recorded in the clinical notes.
- The applicant now says (by reference to the coloured charts) that his clinical notes and charts, when read together, distinguish between carious and non-carious cavities.
- As I have noted, in effect, he says that his use of ‘clear’ and ‘clean’ were only used because of the Board’s invitation to him to respond to this specific question. As I have noted, it is an unusual response by a very experienced professional; and, despite what has happened since the Board’s decision, suggests that he is still trying to justify his failure to properly record notes on both occasions when he saw this patient. In any event, this leads me to conclude that the conditions imposed in May 2020 by the Board should be varied to exclude reference to non-carious tooth loss.
Use of radiography
- Essentially, the Applicant argues that the three radiographs he took on 7 May are corrupted by cone cutting. There is no reference in the notes of that day to this issue. He blames the faulty machine; but nevertheless, he says the radiographs were diagnostically effective. As the Respondent notes, if the machine was faulty, that should be noted in the records, particularly as, at that time, the applicant would have seen the obvious faults in all three radiographs.
- The applicant’s contention that it was, “not worthwhile or beneficial to submit the patient to a further x-ray, given that the diagnostic contents would be the same as the first attempt”, was challenged in questions of him by all three assessors, and in particular, the professional assessors, and, again on this issue, I have been greatly assisted by their advice. The elongated radiograph which appears at page 106 of the hearing brief was the particular focus on questioning of the applicant by the professional assessors.
- Again, the applicant demonstrated an inability to accept any criticism of his use of the technology, or his decision not to take another picture when he realised that all three he had taken were faulty. I am satisfied that the Board’s reasonable belief on this issue was fully justified. For the first time, in his recent affidavit, he says that the machine had a “wobble”. He has consistently blamed inadequacies in the equipment for the poor quality of the radiographs, and, like a golfer blaming his club for a bad shot, would not accept that perhaps the fault was in the operator.
- He agreed that he presses the button to activate the x-ray beams, and that he has the patient in full view at the time, and that if there is any movement (patient or machine), proper practice should identify that he would be immediately aware of it. I agree with the Board that the radiographs did not meet appropriate standards, and are not sufficiently diagnostic. It would have been expedient to take one more radiograph, particularly of tooth 22, so that the ends of the roots were clearly visible, before embarking on his treatment. The radiation effects on the patient would have been miniscule.
- The Applicant’s submissions in relation to “reasonable belief” are set out above. In initial responses to regulators, the applicant was, despite being fully cooperative, quite combative, suggesting that the concerns of the Board were not based in fact. That approach, of course, ignored the law, which is that the Tribunal in considering section178 (1)(a)(i) of the National Law is not bound by the rules of evidence, and can inform itself in any way it deems fit.
- For the reasons set out above, and having considered the matter afresh on the merits, I have come to the same conclusion as the Board in relation to its reasonable belief, with the one exception relating to the cause and management of non-carious tooth loss.
- In the application, it was contended that the conditions imposed under section 172(2)(c) were onerous, and punitive, and should be set aside, however that contention was not pressed by counsel at the hearing.
- Since the Board’s decision, it is apparent from the documents provided to the Tribunal in the hearing brief, as part of the Board’s documents, namely, 5.8 and 6.2 – 6.10, that the applicant has undertaken all three hour education courses required by condition 4 and also the Audit conditions (at least to a satisfactory level) required by the conditions set out at page 65 of the Hearing Brief.
- As I read this later material, and I do not think this is disputed, the applicant (at his own expense), has completed the education modules required by the conditions in relation to all three areas of concern set out in the decision notice, and has provided a reflective report, all of which appears to have been accepted by AHPRA. He has also provided a monitoring plan, and forwarded the details to AHPRA.
- At the hearing, and over objection, the first report sent to the Board by the auditor was tendered into evidence, and was considered by the Tribunal. It is relevant to the question of reasonable belief, and particularly having regard to the paramount principle, that the primary purpose of the exercise of the Tribunal’s jurisdiction in relation to health practitioners is the health and safety of the public, that since the decision notice of the Board, and after the applicant completed his reflective report, on 18 October 2020, another patient has complained about the applicant’s performance. The complaint is being considered by the Board, and has no other relevance to these proceedings.
- It is also relevant that on two prior occasions, the Applicant has received a caution from the Board in relation to his practice. The first audit report, 5 December 2020, concludes:
At this Audit, the record keeping appears to be of an acceptable standard. The most egregious omission relates to recording the dosage and method of administration of local anaesthetic. The practitioner needs to make a paradigm shift towards the recording of a diagnosis, or possible diagnoses.
- Having regard to section 24 of the QCAT Act, and for the reasons set out above, the Tribunal amends the decision made by the Board, by excluding reference to the aetiology and management of non-carious tooth loss from the decision notice and conditions. Otherwise, the reasonable belief of the Board is upheld, and the remaining conditions also, I find, to be justified, and not punitive.
- It is unlikely that either party will make any further application as a result of these reasons, and the Tribunal’s decision. But in accordance with the need to provide natural justice, I will allow liberty to apply by giving written notice to the other party within seven days of receipt of these reasons for judgment.
 Hearing Brief (HB), page 16.
 HB, page 4.
 Section 20, QCAT Act.
 Section 28(3), QCAT Act.
 WD v Medical Board of Australia  QCAT 614 at .
 at  –  (footnotes omitted).
 HB, page 66; Applicant’s submissions dated 24 December 2020. HB, page 73; Respondent’s submissions dated 29 January 2021.
 HB, page 346.
 Applicant’s affidavit affirmed 19 March 2021, paras  – .
 HB, page 48.
 HB, page 20
 HB, page 55.
 Affidavit affirmed 19 March 2021, para 21, and see clinical notes HB pages 23-25.
 Affidavit, para 14.
 HB, page 26.
 Response dated 23 November 2019.
 HB, page 23.
 Para 23 Affidavit affirmed 19th March 2021
 HB, page 301.
 Paras 8-11
 See HB 50
 Affidavit, para 32
 Affidavit, para 38
 HB, page 64.
 HB, page 308.
 HB, page 317.
 Exhibit 2, dated 5 December 2020, under the hand of Dr Lloyd Wong Auditor.
- Published Case Name:
Gibraeil v Dental Board of Australia
- Shortened Case Name:
Gibraeil v Dental Board of Australia
 QCAT 113
Judicial Member J Robertson
08 Jun 2021