Health Ombudsman v Gupta[2022] QCAT 160

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION 

Introduction

1. [1]
   The Tribunal is hearing two health service complaint referrals against the respondent Dr Mohit Gupta.  The first referral was filed 20th of December 2017 (the first referral) and, broadly speaking, concerned conduct by the respondent in 2015.  This referral had not been resolved by the time of the filing of the second referral on the 31st July 2019 (the second referral), which concerned conduct, generally speaking, in 2016. 
2. [2]
   By order dated the 14th of April 2019, the Tribunal ordered that the first and second referrals be consolidated and be heard and determined together.  Since the second referral, the parties have engaged in detailed and lengthy negotiations concerning the allegations and sanction, and have reached agreement on both issues.  The parties have filed what is effectively an agreed statement of facts.  The proceedings before the Tribunal proceed on the basis of an amended consolidated referral filed on the 31st of August 2021, and an amended response filed on the 29th of September 2021.
3. [3]
   The allegations contained in both referrals concern failures by the respondent, who is a registered dentist, to maintain proper infection control practices in his professional practice.

Background

4. [4]
   The respondent was born on the 29th of November 1981, so is presently 41 years old.  He obtained a Bachelor of Dental Surgery from Kurukshetra University in India in 2004.
5. [5]
   He was first registered as a dental practitioner on the 1st of June 2009.  He is currently registered with the Dental Board of Australia (the Board), holding general registration as a dental practitioner pursuant to the Health Practitioner Regulation National Law (Queensland) (the National Law), and is a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld).
6. [6]
   His registration is not currently subject to any conditions. 
7. [7]
   At all relevant times he was the sole director of The Smile Designer Pty Ltd (the company), and caused the company to operate a dental practice under the registered business name “Gap Free Smile” (the practice) at Carina in Queensland (now trading as “Care4Teeth”); practised as a dental practitioner at the practice and was the operator of the practice as defined in section 147 of the Public Health Act 2005 (Qld) (the PH Act) (The practice being a health care facility as defined in that Act.) 
8. [8]
   The first complaint which led ultimately to the first referral was by way of a mandatory notification to the Office of the Health Ombudsman (the OHO) on the 23rd of June 2015 by a dental practitioner, Dr A, who was then working at the practice.  On the 10th of July 2015, Professor Laurence Walsh from the University of Queensland made a mandatory notification to the OHO in conjunction with the notification made by Dr A on the 23rd of June 2015.  Dr A, who had then worked at the practice for approximately three months, had consulted Professor Walsh about his concerns on the 12th of June 2015.
9. [9]
   As a result of those notifications, the applicant took immediate registration action by imposing conditions on the respondent’s registration, which included the requirement for an independent infection control audit and education program. 
10. [10]
    As a consequence of a number of satisfactory audits undertaken at the practice on the 22nd of September 2015, the 28th of September 2015 and the 22nd of February 2016, and retrospective approval by the applicant of education courses (safe sharp practices and infection controls) undertaken by the respondent in October 2015, the OHO removed the conditions on the 6th of May 2016. 
11. [11]
    On the 22nd of December 2016, the OHO received a mandatory notification from the Chief Health Officer of Queensland concerning the respondent’s infection prevention and control practices based on an audit conducted at the practice on the 19th of December 2016 by Queensland Health.  This notification ultimately formed the basis of the second referral.
12. [12]
    As a result of this notification, the applicant took immediate registration action by suspending the respondent’s registration with no show cause period, undoubtedly because of the concerns about public health and safety arising out of the notifications underpinning the first referral. 
13. [13]
    The respondent’s legal adviser then negotiated with the OHO, and on the 24th of February 2017, it lifted the suspension and instead imposed mandatory audit conditions.  From 24 February 2017, the respondent was the subject of conditions that required him to submit to random audits at the practice at a frequency of six per calendar month. 
14. [14]
    In the intervening period to September 2018, the conditions remained materially the same, with the frequency of the random auditing gradually reduced over that time.  On 5th of September 2018, the conditions were varied to require random audits quarterly.
15. [15]
    On the 9th of April 2019, the conditions were removed from the respondent’s registration and he has practised unrestricted since that time. 

Relevant Codes, Guidelines and Standards

16. [16]
    At all relevant times, the respondent was required to practice dentistry in accordance with a number of standards, codes and guidelines.  These included the Board’s Code of Conduct dated March 2014;  the Board’s Guidelines on Infection Control dated the 1st of July 2010, last reviewed on the 29th of June 2012;  the Australian Dental Association’s Guidelines for Infection Control, 2nd edition 2012;  the Australian Dental Association’s Guidelines for Infection Control, 3rd edition 2015;  the Australian and New Zealand Standards relating to office-based health care facilities – reprocessing of reusable medical and surgical instruments and equipment, and maintenance of the associated environment, 2nd edition 2006;  and the National Health and Medical Research Council’s Australian Guidelines for the Prevention and Control of Infection in Health Care 2010.
17. [17]
    These instruments, to the extent to which they are relevant,  are admissible as evidence as to what constitutes appropriate professional conduct or practice for a health care provider in proceedings of this nature pursuant to section 41 of the National Law. 

The Relevant Conduct 

18. [18]
    Charge 1 in the first referral is that between February 2015 and the 28th of August 2015, the respondent failed to develop and/or implement at the practice an infection control management plan, contrary to section 156 of the Public Health Act 2005; or a comprehensive infection control manual, contrary to Part E.4 of the Australian Dental Association’s Guidelines on Infection Control, 2nd edition; and any written plan for infection control whatsoever.
19. [19]
    Dr A in his affidavit noticed the absence of an infection control plan soon after commencing employment in the practice in February 2015.  He raised this with the respondent, who told him he did not know of such a requirement.
20. [20]
    Dr Gregory Mahoney, an expert dentist retained by the applicant, described the infection control management plan as a:

    1. (a)
       documented plan to prevent and minimise the risk of infection to staff, patients and other persons at the facility.
21. [21]
    He described the plan as one of the cornerstones of dental practice management.
22. [22]
    The risks of not having such a plan include that staff have no reference to written protocols, potentially leading to a variety of standards being applied.  Dr Mahoney concluded that the lack of such a plan would indicate performance substantially below that which was reasonably expected. 
23. [23]
    Charge 2 in the first referral is that during the relevant period, the respondent failed to take reasonable precautions and care to minimise the risk of infection control to persons by:

    1. (a)
       reusing various single-use items;
    2. (b)
       failing to use sterile gloves (albeit using gloves) on approximately 30 occasions for invasive oral surgical procedures, and 11 occasions for implant placements;
    3. (c)
       returning composite filling material back into the tube;
    4. (d)
       failing to ensure his staff wiped down the external surface of an acid etch syringe between patients;
    5. (e)
       failing to correctly decontaminate dental impressions before packing them to be sent to a dental lab; and
    6. (f)
       failing to provide alcohol hand gel, rub or soap containing an active antibacterial ingredient.
24. [24]
    It is not contested that before making his mandatory notification to OHO, Dr A raised his concerns about many of these issues with the respondent and in fact gave him a document called Common Compliance Issues in Dental Practice, which raised many of the failures enumerated in charge 2.
25. [25]
    The purpose of the relevant single-use items is discussed in Dr Mahoney’s evidence.  These items are single use because they come into contact with contaminants and cannot be sterilised in an autoclave.  The costs of these items are minimal.  According to Dr Mahoney, reuse of these items poses a serious risk to patients because they come into contact with contaminants and cannot be properly sterilised.  The appropriate course is to discard these items after use. 
26. [26]
    The respondent’s failure to use sterile gloves for the abovementioned procedures left patients at a high risk of infection of the surgical site, either through direct contact with the non-sterile gloves or from a contaminated implant.  That left patients at risk of poor outcomes such as implant failure and post-operative infection.
27. [27]
    The returning of composite filling back into the tube presented a risk of cross-infection as described by Dr Mahoney in his evidence before the Tribunal. 
28. [28]
    He described the use of an acid etch syringe as a technique which is not encouraged, but opined in any event that the respondent was compounding that error by not applying an aseptic technique. 
29. [29]
    As for the dental impressions, Dr Mahoney described the accepted technique as requiring rinsing the visible contaminants (ie, saliva and blood) in running water, then spraying an appropriate disinfectant before placing the impression in a sealed container.  Failure to do so placed laboratory workers at risk. 
30. [30]
    Charge 3 of the first referral is that the respondent imported and used a bonding material on patients that was not approved by the Therapeutic Goods Administration.  The issue about the lack of approval caused Dr A to hold concerns that there was no way of knowing whether the product was genuine and whether it was of an appropriate quality or standard.
31. [31]
    Charge 4 of the first referral concerns the respondent’s dispensing for “home use” teeth whitening kits which contained hydrogen peroxide at concentrations of not less than 14 per cent, where the accepted professional standard was the use of teeth whitening kits with concentrations above six per cent, was restricted to use within a dental clinic under the supervision of a dentist.
32. [32]
    Dr David Cox, another expert dentist retained by the applicant, provided an opinion about the respondent’s dispensing of home use teeth whitening kits.  He opined that the accepted professional standard for home kits was no more than six per cent hydrogen peroxide.  The risk of use of these home kits is that excessive amounts of hydrogen peroxide can cause serious harm to teeth, oral cavity, oesophagus and stomach.  Direct exposure of the skin, eyes and mucus membranes to high concentrations of hydrogen peroxide may cause severe burns.  These risks are appropriately mitigated in the clinical environment under the supervision of a dentist. 
33. [33]
    Charge 1 in the second referral concerns documentation at the practice.  After the initial issues with infection control in 2015, the respondent put in place an infection control plan, a copy of which is provided in the hearing brief.  The respondent admits that this plan did not state matters that are required under section 55(1)(c) – (e) of the Public Health Act 2005.  Dr Mahoney described this plan as a “reasonable attempt in infection control”, but it lacked all the elements required.  Additionally, the plan was not signed.  The concern is the respondent was unable to comply with these requirements after having previously been the subject of a notification to OHO and subject to conditions imposed on his registration in August 2015. 
34. [34]
    The respondent also failed to maintain a signed record confirming that staff had read the infection control documents implemented at the practice.  Dr Mahoney described it as “inconceivable” that a dental practice would not maintain such a record.
35. [35]
    Finally, charge 2 in the second referral concerns the respondent’s failure to store sterilised instruments in a manner so as to risk contamination, by storing them in trays stacked on top of one another, increasing the risk of compromising integrity of the pouches.  Photos of the trays stacked in this manner appear in the hearing brief.  Dr Mahoney opined that the storage of the trays in this manner could lead to breakages of the pouches. 
36. [36]
    The respondent admits the factual basis for all the charges set out in the amended consolidated referral. 

Characterisation of the Conduct. 

37. [37]
    The applicant has the onus of proving that the admitted conduct constitutes professional misconduct as defined in section 5 of the National Law.  The respondent admits that his conduct in charges 1 and 2 in the first referral amounts (when viewed separately) to unprofessional conduct.  He accepts that the admitted facts in charge 4 constitutes conduct contrary to the accepted professional standard, and in relation to charges 1 and 2 in the second referral, he admits that his conduct constitutes unsatisfactory professional performance.  He admits that the totality of his admitted conduct in respect of all charges in both proceedings constitutes professional misconduct as defined in section 5 of the National Law.  The Tribunal agrees with that characterisation.
38. [38]
    The conclusion of the Tribunal is also warranted having regard to the decisions referred to in Mr Templeton’s written submission on behalf of the applicant.  The cases are all cases before the New South Wales Civil and Administrative Tribunal:  Health Care Complaints Commission v Chan [2017] NSWCATOD 66 (Chan), Health Care Complaints Commission v Starkenburg [2017] NSWCATOD 22 (Starkenburg), and Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 (Somaey). 
39. [39]
    As Mr Templeton notes in his written outline, professional misconduct is defined slightly differently under the New South Wales regime, such that the conduct must be “sufficiently serious” to “justify suspension or cancellation”.  In the present case, the conduct admitted collectively is quite clearly unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
40. [40]
    Dr Mahoney’s description of the importance of an infection control management plan is set out above.  The respondent’s actions in charge 2 in the first referral clearly had the potential to risk infection and compromise the health and safety of his patients, staff and lab technicians.
41. [41]
    Despite the significant consequences to him following the first notification, and despite him apparently developing insight into his failures by changing his practices during 2016, having regular random audits, attending educational courses and other matters, which led to OHO lifting conditions in May 2016, very concerningly, as a consequence of the Queensland Health audit on the 19th of December 2016, his infection control management plan was still deficient;  he had failed to maintain a signed record that staff had read the plan, and was still engaging in at least one risky infection control practice. 

Sanction

The purpose of proceedings such as this is protective and not punitive.  The principle that informs and underpins the discretionary power of this Tribunal to impose sanctions upon health care providers who have engaged in professional misconduct is that the health and safety of the public is paramount.

In determining sanction in a particular case, the tribunal may consider a number of factors.  These factors include the seriousness and nature of the proved conduct;  insight and remorse shown by the practitioner;  the need for specific and general deterrence;  evidence of steps taken by the practitioner to ensure that the risk of the misconduct does not reoccur – this is relevant both to insight and the tribunal’s assessment of future risk;  and other factors, including past disciplinary history, evidence of good character, periods of preclusion from or non-practice, and cooperation with the disciplinary process.

42. [42]
    The respondent’s lawyer in his submission submits that delay is of some relevance in this matter.  He submits that it is a mitigating factor.  In support of that submission, he relies on the decision of the then Deputy President of QCAT, his Honour Judge Allen QC in Health Ombudsman v Veltmeyer [2021] QCAT 77 at paragraphs [30] – [31].  The Tribunal did accept in that case that the delay between notification of the complaint to the respondent and referral to the Tribunal was a:

…significant mitigating factor in determination of appropriate orders by way of sanctions.

43. [43]
    That case concerned boundary violations, and the practitioner was not notified of the notification until approximately 20 months after it was received by the Health Ombudsman.  He made full admissions to the OHO soon after in 2016 and 2017, however, the matter was not referred to the Tribunal until June 2019.  In that case, the applicant acknowledged that there was delay in its investigation due to backlogs in matters in the office and in the office of the Director of Proceedings.  That is a completely different factual scenario to what exists in this case.
44. [44]
    Here, the delay was contributed to by the respondent’s own conduct which led to the December 2016 notification.  It is clear that a great deal of time was taken in negotiations between the parties, and there is no basis on which the Tribunal could attribute responsibility for that delay in any pejorative sense to either party.  The relevance here of the long period of time that has elapsed since the misconduct in 2015 and 2016, is that the respondent has taken substantial steps to ensure that there is no repeat of the misconduct the subject of both referrals.  It is also relevant to his insight, his remorse, but more importantly to the paramount principle.
45. [45]
    In terms of the steps which the respondent has taken since the immediate registration action taken by the Health Ombudsman on the 23rd of December 2016, the evidence establishes that he has taken steps to remedy the non-compliances and updated the infection control management plan to meet the requirements of the Public Health Act.  He holds regular staff meetings to review infection control procedures, and in relation to the second charge in the second referral, he has taken steps to ensure that lids are always placed on trays to avoid any risk of damage to the sterilisation packs or staff if any instrument was to fall out, and to ensure that the trays are no longer stacked but placed on a rack to avoid damage to the pouches, and to ensure that the packs are stacked on their sides in drawers so that they do not rest on top of each other. 
46. [46]
    The respondent has practised without any restrictions on his registration since the 9th of July 2019, which was just prior to the filing of the second referral.  In this case, the parties have reached agreement as to the appropriate sanction, which involves a reprimand, a substantial fine and an agreed order for costs to be paid by the respondent to the applicant which is substantial. 
47. [47]
    The effect of a joint submission as to sanction was discussed by the then Deputy President of QCAT, his Honour Judge Horneman-Wren in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93].  In short, the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective, rather than punitive. 
48. [48]
    In the Tribunal’s view, in relation to sanction, the most helpful comparable case is the matter of Chan.
49. [49]
    Chan’s conduct may be summarised as follows:

    1. (a)
       he practised in circumstances in which he used unclean plastic liners and a significant level of disorder in drawers used to house clean instruments;
    2. (b)
       instruments with residue being commonplace; 
    3. (c)
       sticky residue covering the outside surface of many drawers; 
    4. (d)
       sharps containers in an insecure position; 
    5. (e)
       clean material and equipment adjacent to the opening of sharps containers; 
    6. (f)
       clean composite cartridges stored proximate to contaminated equipment; 
    7. (g)
       open handpieces and burs exposed to contaminants; 
    8. (h)
       approximately 20 per cent of materials in the surgery past their use by date;  root canal files stored in a dirty sponge;
    9. (i)
       dirty mixing bowls and spatulas; 
    10. (j)
        only one of three autoclaves up to date with calibration/servicing; 
    11. (k)
        benches covered with alginate, plaster, etc;
    12. (l)
        failure to observe sterilisation and disinfection procedures; 
    13. (m)
        failure to maintain adequate records relating to the use and maintenance of the autoclaves in two practices; 
    14. (n)
        using un-gloved hands to handle contaminated burs; 
    15. (o)
        failure to have documented sterilisation procedures or instructions for operating the steriliser; 
    16. (p)
        autoclaves not properly tested;  staff not properly supervised/trained in testing;  and
    17. (q)
        failure to observe appropriate procedures and practice in relation to both the practices operated by Dr Chan, in particular in relation to the cleanliness of surgery equipment, specifically the cleaning of equipment and storage of sterile and non-sterile items, maintenance of the provision to staff of information in relation to infection control and in relation to the reprocessing of instruments.
50. [50]
    In Chan, unlike the present case, a charge of failing to maintain a practice manual/guidelines for staff in relation to infection control was not proved. The parties were agreed that the orders should include a reprimand and the imposition of conditions.  The Commission urged for a fine of $27,500, which Dr Chan opposed.  Ultimately, the Tribunal did not impose a fine, but in New South Wales the fine regime discretionary power is restricted to circumstances where the Tribunal is satisfied that no other order, or combination of orders, was appropriate in the public interest. 
51. [51]
    Despite the parties’ agreement as to a reprimand in that case and not a suspension, the Tribunal nonetheless considered whether a suspension was warranted.  The factors which loomed large in favour of a suspension were the serious risk at which Dr Chan placed his patients of contracting glove-borne virus and the educative, or deterrent, effect by reminding the profession of the critical importance of infection control.  However, balanced against that was Dr Chan’s extensive rehabilitation.  He had implemented wide-ranging improvements and numerous subsequent inspections revealed that each practice was fully compliant.  He had also undertaken further professional development.
52. [52]
    The significant rehabilitative steps persuaded the Tribunal that the appropriate order was a reprimand with conditions, including inspections and mentoring, and not a suspension or cancellation. 
53. [53]
    I agree with both parties that Starkenburg was a more serious case than the present one.  The primary allegations arose from an inspection on the 19th of November 2014 in which almost every step of an infection control checklist was failed.  The practitioner did not routinely take a medical history from patients, and his evidence to the Dental Council was that he judged by their appearance whether they were in good health.  The incomplete records meant that the Council was later unable to make contact with, or assess the risk to, patients with respect to contracting bloodborne disease.
54. [54]
    Dr Starkenburg’s failures regarding infection control were very similar to those in Chan and similar in some respects to this case.  In that case, Dr Starkenburg had admitted all of the conduct.  However, he gave evidence at the hearing and was asked questions by the professional panel members, which the Tribunal found showed a level of understanding (about infection control and diagnostic and treatment protocols) that was so poor as to represent a significant risk to the public. Dr Starkenburg did not appear to understand the importance of personal protective equipment such as gloves.
55. [55]
    As distinct from Chan, the Tribunal found that the findings of later inspections and the practitioner’s evidence at the hearing convinced it that the risk remained and it could not be met by the imposition of conditions.  Also, Dr Starkenburg had been the subject of an earlier complaint about unhygienic practices in 1998.  An inspection which occurred in 2016, two years after the initial one in 2014, found ongoing concerns with hand hygiene, out of date stock and clinical records.  The practitioner demonstrated a continued lack of understanding about his continuing professional development obligations.  Ultimately, the Tribunal cancelled his registration.
56. [56]
    Somaey was another recent case in New South Wales involving infection control issues, which were of a similar nature to the present case.  There was a slightly unusual circumstance in that case in that the practitioner was no longer providing active dental care (other dentists were using her rooms); but it was nonetheless found that as principal of the practice, she had the responsibility to ensure that proper procedures were followed.  The Tribunal found that together with her failure to respond to requests from the regulator in a timely manner, her failures in infection control amounted to professional misconduct. 
57. [57]
    Dr Somaey was reprimanded, her registration was suspended for a period of three months, and various conditions were imposed.  Apart from some of the conditions, the other aspects of the sanction were agreed. 
58. [58]
    I adopt what was said in Somaey by the New South Wales Tribunal:

Infection control is a fundamental responsibility of practitioners to ensure the health of patients.

59. [59]
    In relation to the sanction agreed to by the parties, it has often been stated in this Tribunal and in Tribunals of a similar jurisdiction throughout the country, that a reprimand is not a trivial penalty, as it is a matter of public record and affects the reputation of the practitioner.  It is a public denunciation of his conduct.
60. [60]
    I agree with the applicant that a fine is appropriate in these circumstances where a suspension is no longer appropriate given the effluxion of time and the respondent’s demonstrated improvements in standards following long-term compliance with conditions.  Dr A’s evidence, which is not contested, was that the respondent’s failings were at least in part motivated by cost saving, which cost saving occurred for his own financial benefit and at the expense of patient safety.  The conduct the subject of the second proceeding occurred after issues of poor infection control had been brought to the respondent’s attention and he had been subject to stringent conditions imposed by way of immediate action.
61. [61]
    Although it is accepted that the need for specific deterrence has diminished given the respondent’s extended period of compliance with conditions, a fine will nonetheless serve as a strong deterrent should he again consider taking cost-saving measures in preference to maintaining patient safety through good infection control.
62. [62]
    In the applicant’s submission, a fine is also necessary to serve the function of general deterrence.  The Tribunal accepts that submission.  The issue of infection control has in relatively recent times been of significant concern to relevant bodies regulating the dental profession. 
63. [63]
    In July 2015, the Board released a fact sheet reminding dental practitioners of their obligations under the National Law.  The fact sheet reminded practitioners to ensure their practice meets the infection control standards listed in the board guidelines, including the NHMRC guidelines.
64. [64]
    On the 2nd of July 2015, the Board issued a media release statement regarding enforcement of infection control standards in dental practice and the need to take action to manage risk to patients.  The statement made reference to the Dental Council of New South Wales suspension of six practitioners and imposition of conditions on another six practitioners in clinics in Sydney as a result of serious breaches of infection control procedures and substandard hygiene.
65. [65]
    On the 16th of July 2015, following infection control breaches in Sydney, the Dental Council of New South Wales and the Board wrote to all dental practitioners alerting them to those breaches, reminding practitioners of their obligations and highlighted that the Board takes breaches of infection control standards seriously. 
66. [66]
    The respondent has not specifically admitted knowledge of these matters but does not require proof.  Dr Mahoney’s expert evidence referred to earlier in these reasons is a very important reminder to practitioners of the importance of infection control measures as required in the Codes and standards and the law.  Thankfully cases of this nature are quite rare.

Orders

67. [67]
    In those circumstances, the orders of the Tribunal will be as follows:

1. (1)
   Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. (2)
   Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.

3. (3)
   Pursuant to section 107(3)(c) of the Health Ombudsman Act 2013, the respondent is to pay a fine of $20,000 to the Health Ombudsman.

4. (4)
   The respondent shall pay the Health Ombudsman’s costs of $20,000 as agreed within three months of the date of the Tribunal’s order.