Dental Board of Australia v Nairn [2022] Wasat 86

FROM OUR PARTNER – HALL & WILCOX

The State Administrative Tribunal of Western Australia (Tribunal) recently delivered a disciplinary order to suspend a dental practitioner’s registration after finding that she has made a conscious choice to disregard health orders during the height of the COVID-19 pandemic.

Whilst the case occurred in Western Australia, the principles from this decision are applicable to all Queensland dental practitioners and demonstrates what factors will be taken into account when deciding sanctions in a disciplinary proceeding.

BACKGROUND

In May and June 2020, during the height of the COVID-19 pandemic, Perth-based dentist Nataliia Nairn travelled interstate. Upon her return to Perth from both trips, Dr Nairn was given two directions to self-quarantine at home for 14 days pursuant to the Emergency Management Act 2005 (WA) (EM Act). In an interview with the police, Dr Nairn claimed that she complied with the first direction, and only admitted to breaching the second direction. But the police later found that she left her residence on 6 occasions to treat 41 patients in May 2020, in contravention of the first direction.

On 9 November 2020, Dr Nairn was sentenced to 2 months of immediate imprisonment, with another 5 months’ suspended sentence. On 9 January 2021, Dr Nairn was released from prison.

On 24 February 2021, Dr Nairn participated in a radio interview. In the disciplinary proceeding before the Tribunal, she explained that she participated in the interview because she ‘was angry and frustrated, because [she] felt that she had been unfairly treated’. During the interview, she agreed with statements put to her by the host that she was a ‘political prisoner’. She also said she had been given a ‘life sentence’ as her registration was suspended. With the help of the host, Dr Nairn later wrote a statement on a Go Fund Me page regarding her circumstances, which contained her dissatisfaction about the judicial system, and she complained of being involved in a ‘classic victimless crime’.

CHARACTERISATION OF CONDUCT AND ORDERS

The Tribunal found that Dr Nairn’s conduct constituted professional misconduct within the meaning of section 5 of the Health Practitioner Regulation National Law (WA) (National Law) and considered that the misconduct was serious. The Tribunal found that Dr Nairn conscious choice to disregard the health orders shows a departure from the standards of behaviour reasonably expected of a dentist of her training and experience, because of the importance of infection control measures in the profession and her dishonesty during her interview with the WA Police was a further departure from those standards.

Dr Nairn acknowledged the seriousness of her conduct and submitted mitigating evidence which included that she feared her employment would be terminated if she did not treat her patients at the clinic and she was under extreme financial stress. She also said she had no symptoms of COVID-19 and did not consider that she would pose any risk to her patients as she had taken precautions against contracting COVID-19 whilst travelling.

While the Tribunal considered Dr Nain’s behaviour to have ‘manifested in a willingness to disregard the expert health advice that had been well-publicised in the community about the risk of transmission of COVID-19’, the Tribunal justified Dr Nairn’s naivety and ignorance by attributing it to her inexperience and lack of senior supervision. The Tribunal also considered that Dr Nairn was remorseful and deeply regretful of her actions.

THE TRIBUNAL ULTIMATELY ORDERED THAT:

1. Dr Nairn be reprimanded for professional misconduct;
2. Her registration as a dentist be suspended for 7 months;
3. At the conclusion of the suspension, her registration will be subject to various mentoring conditions; and
4. Dr Nairn to pay the Board’s costs fixed in the sum of $7,500. 

WHAT FACTORS WILL A TRIBUNAL CONSIDER IN DETERMINING PENALTY?

In Queensland, disciplinary proceedings against dental practitioners are heard at first instance by the Queensland Civil and Administrative Tribunal (QCAT). The Tribunal in Dr Nairn’s case provides a helpful summary of what the factors will be considered in order to determine the relevant penalty, including when suspension or cancellation of the registration is warranted. The following factors are important and are relevant for Queensland practitioners to consider:

1. Protect the public against further misconduct by the practitioner (personal deterrence).
   1. If the breach amounts to serious professional misconduct, QCAT will consider it necessary to impose a penalty which makes clear to the practitioner that from the perspective of their professional responsibilities, the conduct substantially departed from what was expected.
   2. Even if the risk of reoffending is low, there is a need for imposing a penalty which deters the practitioner from engaging in professional misconduct more generally.
   3. Mitigating factors that the Tribunal will consider include any other penalties or sanctions already imposed on the practitioner (for example, mentoring and education conditions, suspension from practice and most seriously, incarceration), the relative experience of the practitioner, insight of the practitioner and access to mentoring and education.
2. Protect the public through general deterrence of other practitioners from similar conduct.
   1. Penalties must be administered for a practitioner’s professional code of conduct breaches and the risks to patients because of the breach.
   2. The penalty imposed must make clear to practitioners that serious consequences will follow from such departures from the standards of conduct expected of them.
   3. Protect the public and maintain public confidence by reinforcing high professional standards and denouncing transgressions.
3. The penalty imposed should reflect and reinforce the high standards of the dental profession to maintain public confidence in the sector.
   1. Importantly, there is a recognition that there are several other ways to maintain public confidence that do not involve cancellation of a dental practitioner’s registration. Alternatives are, suspension and conditions involving ongoing audits, education and mentoring.
   2. In cases involving misleading conduct, including dishonesty, consideration is given to whether the public and fellow practitioners can place reliance on the word of the practitioner. QCAT will consider mentoring and completion of courses on ethics and decide about the likelihood of being dishonest in the future.
   3. Has there been a breach by the practitioner of any Act, Regulations, Guidelines or Code of Conduct, and if so, did the practitioner do so knowingly?
4. Did the practitioner's conduct demonstrate incompetence and, if so, to what level? A breach suggesting that a practitioner is not fit for practice will impose a heavier sanction. If there is an ongoing risk, this can be ameliorated by a requirement that the practitioner have the benefit of oversight by a mentor.
5. Was the conduct isolated, such that the QCAT can be satisfied of the practitioner's worthiness or reliability for the future? QCAT will consider the insight shown by the practitioner, evidence of mentoring, character references and prospects of rehabilitation to determine whether the dental practitioner can be trusted in the future.
6. Practitioner’s disciplinary history.
7. Has the practitioner shown remorse or insight? The insight needs to be one of accepting that the practitioner’s behaviour constituted a substantial departure from the standards of conduct expected. The insight may be present at various stages of the proceedings.
8. Does the practitioner have any special skills which it is desirable to make available to the public notwithstanding the findings as to her misconduct?
9. The practitioner's personal circumstances at the time of their conduct and at the time of imposing the penalty.
10. Any other matters relevant to the practitioner's fitness to practise, or which may be regarded as aggravating his or her conduct or mitigating its seriousness including flagrant and conscious breaches of the law and exposure to patients and the community of serious health risks.

KEY TAKEAWAY

The key takeaway from this case is that in circumstances where a practitioner has been found to have engaged in serious professional misconduct, there is an expectation based on the principle of general and personal deterrence that a penalty will be imposed which is likely to involve a suspension of their registration for a period of time. The best way to mitigate a harsher penalty being imposed is to show insight and remorse about how their conduct constituted a substantial departure from the standards of conduct expected and pre-emptively engage in education and mentoring.

HALL & WILCOX REGULARLY ASSISTS ADAQ MEMBERS BY REPRESENTING MEMBERS IN QCAT PROCEEDINGS, PREPARING SUBMISSIONS TO EITHER OHO OR AHPRA IN RESPONSE TO PATIENT COMPLAINTS, AND IN CIVIL MALPRACTICE CLAIMS.