The matter of Health Care Complaints Commission v Poole No. 2

[2014] NSWCATOD 67 is a decision of the New South Wales Civil and Administrative Tribunal of 20 June 2014. In broad terms, it related to a dentist and a dispute inter alia in relation to professional fees.


The practitioner in question was an older practitioner working in the western area of Sydney and had done some treatment and was ordered to make amends by paying thirty-two thousand and four hundred dollars ($32,400.00).


He made the point that his remuneration was only forty per cent of that amount and he had only ever received, after laboratory bills, presumably some ten thousand dollars ($10,000.00). The practitioner was not of the view that he should refund the whole amount, but that his employer should also refund the balance between the ten thousand dollars ($10,000.00) and the thirty-two thousand and four hundred dollars ($32,400.00).


The Tribunal considered a range of matters including the ability of the registrant dentist to provide services in the local area and there was evidence that although the dentist had provided a certain form of oral surgery and general anaesthesia, it was not such that the treatment could not have been provided given best efforts by the employing organisation by other practitioners.


Ultimately, the Tribunal found against the respondent dentist and although his personal circumstances were somewhat dire, the court found of course that the fundamental duty is to protect members of the public. As a result, a member of the public had suffered damage in having paid the respondent thirty-two thousand and four hundred dollars ($32,400.00) for treatment and had to have additional costs of repairing that work. Most of the repairing work related to crown and bridge work and the Respondent registrant had continued to carry on treatment, despite the fact that there was a limitation and condition placed on his practice.


The Respondent had a list of non-compliance with directions and was found to be guilty of unsatisfactory professional conduct and professional misconduct earlier in a previous hearing.


Ultimately, at its final hearing, the Tribunal was satisfied that the Respondent Registrant had behaved unprofessionally in respect of his dealings with the entire complaint with a member of the public, his professional body and the entire Tribunal.


The Tribunal further found that the Respondent lacked insight into his conduct and the damage which he had caused to a member of the public and the dental profession as a whole and it was appropriate that the Respondent be deregistered as a dentist. It should be noted that deregistration is not permanent and is not analogous to the being “struck off”. The Respondent was deregistered with immediate effect and would have to reapply for registration after a period not less than one year. Costs were awarded against the Registrant dentist.


This is a unique situation in that it brings up the interesting issue of how much should be paid and the Tribunal apparently did not deal with the issue of who had physically been paid the money, because this was not a civil matter in terms of damages, it was the matter of hearing of a professional disciplinary body.


The interesting question which never to date has been dealt with adequately in many of these decisions about patients seeking redress or compensation is, if professional fees are paid to a dentist. Then the tribunals see this is being attaching to the provider and registrant when the reality is, as most dentists know, the actual person providing the treatment is provided with remuneration of a fraction of the actual entirety of the fees. So the interesting question of whether the dentist who employed the registrant ought to be required to pay the balance of the fees back is unlikely to be addressed in a professional regulatory authority and it may well be only dealt with by a personal injury claim and civil liability being shared between the principal dentist and the employed dentist.