VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z645/2019
	
CATCHWORDS	
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 – dental practitioner– allegations of substandard pre-operative and intra-operative dental treatment including failing to obtain informed consent, inappropriate billing practices, failing to refer to specialists and/or practising outside the scope of knowledge, skills and experience, failing to keep proper clinical records, giving false and/or misleading information to the Board, and demonstrating substandard clinical knowledge, skills and performance - registration surrendered after Board proposed immediate action to suspend registration - agreed statement as to facts and characterisation of conduct as professional misconduct – dispute as to applicable paragraph of definition of ‘professional misconduct’ – meaning of ‘fit and proper person’ in paragraph (c) - findings of fact in relation to allegations – characterisation of conduct as professional misconduct within paragraph (c) of definition - Tribunal to reconvene to consider submissions regarding determinations.  	
APPLICANT	Dental Board of Australia	
RESPONDENT	Dr Munawar Hussain   	
WHERE HELD	Melbourne	
BEFORE	J Billings, Senior Member
Dr A Johnston, Member
Assoc Prof R Story AM RFD, Member	
HEARING TYPE	Hearing via videoconference 	
DATE OF HEARING
DATE OF CONSIDERATION BY RECONSTITUTED TRIBUNAL	19 May 2021
20 April 2022 
	
DATE OF ORDER	2 May 2022 	
CITATION	Dental Board of Australia v Hussain (Review and Regulation) [2022] VCAT 467	
Order
1	The Tribunal finds that Munawar Hussain engaged in the conduct alleged in the Amended Notice of Allegations.  
2	The Tribunal finds that Munawar Hussain’s conduct as alleged in allegations 1-6 constituted professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law.  
3	The Tribunal finds that Munawar Hussain’s conduct as alleged in allegation 7 constituted professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law.  
4	The Tribunal will, by separate order, give directions with regard to the further conduct of the proceeding.

J Billings
Senior Member and Presiding Member 	Dr A Johnston  
Health Practitioner Member	Assoc Prof R Story AM RFD 
Health Practitioner Member	
			
APPEARANCES:		
For Applicant 	Ms D Chisholm of counsel	
For Respondent	Mr M McLay of counsel  	

NOTE: Orders under the Open Courts Act 2013 are in force. 

On 19 May 2021 the Tribunal made the following order under the Open Courts Act 2013:

1.	Subject to order 2, any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subject of these proceedings, the notifiers and the witnesses to be identified must not be published or otherwise disclosed.
2.	At the request of the lay witness referred to in the Notice of Allegations as CF and her husband, those persons are excluded from the scope of order 1.   
3.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of the people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
4.	This order operates until the later of the death of all of the people referred to in order 1.

Reasons
1	The Dental Board of Australia (the Board) has referred allegations about the respondent, Dr Munawar Hussain, to VCAT under section 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). The referral was dated 14 August 2019.  The referral attached a Notice of Allegations that has since been amended.
2	Dr Hussain is a dental practitioner aged in his early sixties.  He came to Australia 30 years ago.  Dr Hussain was born in Pakistan.  He migrated to the United Kingdom as a child.  His curriculum vitae indicates that he obtained qualifications in the UK in areas including a PhD in Microbiology, and that he has undertaken research at British and American universities.  Dr Hussain has also obtained tertiary qualifications in Australia and Pakistan.  Dr Hussain’s academic dentistry qualifications were completed in Karachi after years of study at the University of Melbourne.  Dr Hussain later completed the Australian Dental Examining Council (ADEC) examination in or about 2006, and he was first registered in Australia in 2006.  After he obtained registration, Dr Hussain worked as a General Dentist at some community health centres before establishing a group of three dental surgeries in Melbourne where he was Director and Principal Dentist.   
3	In late 2016 the Board took immediate action and imposed conditions on Dr Hussain’s registration, restricting his hours of practice and restricting the procedures he could perform.  
4	In April 2017 Dr Hussain surrendered his registration in circumstances described below.
5	The allegations fall into seven categories.  The first six allegations relate mainly to Dr Hussain’s practice of dentistry in 2016.  There were five notifications.  Three were made in 2016 and two were made in 2017.  Four of the notifications were made by patients.  One notification, referred via the Health Services Commissioner, was made by the parent of a child patient. The seventh allegation relates to a performance assessment that was conducted in March 2017.    
6	In summary, the first five allegations were: allegation one (substandard pre-operative dental treatment, being failures in assessment, diagnosis, planning and obtaining informed consent); allegation two (substandard intraoperative dental treatment); allegation three (inappropriate billing and/or failure to obtain informed financial consent); allegation four (failure to refer to specialists and/or performing examinations, assessments and treatment outside the scope of knowledge, skills and experience); and allegation five (failure to keep proper clinical records).  
7	The sixth allegation was that Dr Hussain gave false and/or misleading information to the Board, in that he indicated that a patient’s clinical records were contemporaneous when they had been edited subsequent to the date of treatment.
8	The seventh allegation was that, on dates prior to the performance assessment in March 2017, and during the assessment, Dr Hussain demonstrated clinical knowledge and/or skills and/or performance below the standard reasonably expected of a dental practitioner of an equivalent level of training or experience.  
9	In April 2017, the month that the performance assessment was completed, the Board gave notice of proposed immediate action to suspend Dr Hussain’s registration.  Dr Hussain immediately advised the Board that he wished to surrender his registration.  Therefore, the Board did not suspend his registration.     
10	The parties have submitted an Agreed Statement of Facts and Proposed Findings and Determinations (Agreed Statement). There is agreement with regard to the facts.  With qualifications that we will mention, there is agreement with regard to the characterisation of Dr Hussain’s conduct.  The proposed determinations are not agreed.  
11	The present decision concerns our findings of fact and the characterisation of Dr Hussain’s conduct.  
12	There was a hearing on 19 May 2021.  Since that time the Tribunal has been reconstituted under section 108(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.      
13	We set out the terms of the Amended Notice of Allegations immediately below.  We then record the admissions that Dr Hussain has made.  Next, we refer to some of the most important parts of the evidence.  We then record our findings of fact and our characterisation of Dr Hussain’s conduct.   
Amended Notice of Allegations
1.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between on or about 25 February 2016 and in or around October 2016, Dr Hussain provided substandard pre-operative dental treatment and/or care to his patients, AA, CF, CC, DD and EE, in that he failed to undertake adequate assessment, diagnosis and planning and/or he failed to obtain informed consent, in respect of the treatment provided.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on or about 25 February 2016, AA consulted with Dr Hussain at Broadmeadows Dental Surgery for urgent assessment and treatment of dental pain;
(iii)	at the consultation, Dr Hussain:
(A)	extracted teeth 18 and 28; and/or
(B)	performed coronoectomies on teeth 38 and 48 (AA Treatment);
(iv)	in respect of his consultation with AA, Dr Hussain:
(A)	failed to obtain a radiograph that was of sufficient diagnostic quality;
(B)	as a consequence of his failure to obtain an adequate radiograph:
(I)	failed to undertake an appropriate assessment of AA; and/or
(II)	failed to form an appropriate treatment plan with respect to AA; and/or
(C)	failed to obtain any or adequate informed consent from AA in that:
(I)	he did not inform AA of any material risks and/or side effects associated with the proposed AA Treatment;
(II)	he did not inform AA of any alternative treatment options; and/or
(III)	the administration of nitrous oxide gas to AA was commenced prior to her being provided with, or signing, a consent form;
(v)	on or about 22 June 2016 and on or about 24 June 2016, EE consulted with Dr Hussain at Contempo Healthcare for assessment and treatment of wisdom teeth pain (EE Consultations);
(vi)	at the consultations, Dr Hussain:
(A)	on 22 June 2016, extracted tooth 28; and/or
(B)	on 24 June 2016, extracted teeth 18 and 38 and performed a coronectomy procedure on tooth 48 (EE Treatment);
(vii)	Dr Hussain failed to obtain or to obtain adequate informed consent from EE in that:
(A)	a signed consent from was not obtained in respect of the procedures performed on teeth 18, 38 and 48;
(B)	he did not inform EE that he proposed to perform a coronectomy procedure on tooth 48;
(C)	he did not inform EE of any material risks and/or side effects associated with any of the proposed EE Treatment; and/or
(D)	he did not inform EE of any alternative treatment options;
(viii)	on or about 21 July 2016, CF consulted with Dr Hussain at Broadmeadows Dental Surgery for urgent assessment and treatment of wisdom tooth pain;
(ix)	at the consultation, Dr Hussain extracted teeth 28, 38 and 48 (CF Treatment);
(x)	in respect of his consultation with CF, Dr Hussain:
(A)	failed to obtain OPG radiographs of sufficient diagnostic quality; and/or
(B)	failed to obtain informed consent from CF in that he:
(I)	did not inform her of any material risks and/or side effects associated with the proposed CF Treatment;
(II)	did not inform her of any alternative treatment options;
(III)	did not provide her with adequate opportunity to refuse or question the proposed CF Treatment;
(IV)	did not provide her with a consent form until after the CF Treatment had been performed; and/or
(V)	refused to stop carrying out the CF Treatment despite CF repeatedly requesting, verbally, that he do so;
(xi)	on or about 29 July 2016, DD, then aged 6, consulted with Dr Hussain at Contempo Healthcare for urgent assessment and treatment of a broken tooth;
(xii)	due to his young age, DD did not have capacity to consent to dental treatment;
(xiii)	DD was accompanied by his mother, ED, who was able to provide consent on DD’s behalf;
(xiv)	at the consultation, Dr Hussain extracted tooth 21 and then replaced it back into the socket (DD Treatment);
(xv)	in respect of his consultation with DD, Dr Hussain:
(A)	failed to explain his diagnosis or treatment plan (including material risks or alternative treatment options) to ED;
(B)	failed to obtain informed consent from ED before performing the DD Treatment in that he did not provide ED with any and/or adequate information about the proposed DD Treatment, including:
(I)	what the proposed DD Treatment would entail;
(II)	any material risks and/or side effects associated with the proposed DD Treatment; and/or
(III)	any alternative treatment options; and/or
(C)	did not provide appropriate advice regarding options to ED when she requested that he stop performing the DD Treatment;
(xvi)	on or about 23 August 2016, CC consulted with Dr Hussain at Broadmeadows Dental Surgery for fitting of a partial denture;
(xvii)	at the consultation on 23 August 2016, Dr Hussain:
(A)	fitted and/or attempted to fit the partial denture; and/or
(B)	prescribed CC clindamycin and Panadeine Forte (CC Denture Treatment);
(xviii)in respect of his consultation with CC on 23 August 2016, Dr Hussain:
(A)	failed to explain or adequately explain his diagnosis or treatment plan (including material risks, side effects or alternative treatment options) to CC;
(xix)	on or about 20 September 2016, CC consulted with Dr Hussain at Broadmeadows Dental Surgery in relation to bleeding and pain at the extraction site of tooth 11 (which had previously been extracted by Dr Hussain);
(xx)	at the consultation on 20 September 2016, Dr Hussain:
(A)	examined CC’ mouth; and/or
(B)	attempted to administer CC local anaesthetic, for the purposes of drilling and/or draining her gum (CC Attempted Gum Treatment);
(xxi)	in respect of his consultation with CC on 20 September 2016, Dr Hussain:
(A)	failed to explain his diagnosis or treatment plan (including material risks, side effects or alternative treatment options) to CC;
(B)	failed to obtain informed consent from CC before commencing and/or attempting to commence the CC Attempted Gum Treatment, in that he did not provide CC with any and/or adequate information about the proposed CC Attempted Gum Treatment, including:
(I)	what the proposed CC Denture Treatment would entail;
(II)	any material risks and/or side effects associated with the proposed CC Denture Treatment; and/or
(III)	any alternative treatment options;
(xxii)	the Dental Board of Australia Code of Conduct (March 2014) provides that good practice involves:
(A)	assessing the patient or client, taking into account their history, views and an appropriate physical examination… (2.1(a));
(B)	formulating and implementing a suitable management plan (including providing treatment advice and, where relevant, arranging investigations and liaising with other treating practitioners) (2.1(b));
(C)	recognising and respecting the rights of patients or clients to make their own decisions (2.1(e));
(D)	communicating effectively with patients or clients (2.2(g));
(E)	encouraging and supporting patients or clients to be well-informed about their health and assisting patients or clients to make informed decisions about their healthcare activities and treatments by providing information and advice to the best of a practitioner’s ability and according to the stated needs of patients or clients (3.2(e));
(F)	informing patients or clients of the nature of and need for all aspects of their clinical care, including examination and investigations, and giving them adequate opportunity to question to refuse intervention and treatment (3.3(d));
(G)	discussing with patients or clients their condition and the available healthcare options, including their nature, purpose, possible positive and adverse consequences, limitations and reasonable alternatives wherever they exist (3.3(e));
(H)	ensuring that patients or clients are informed of the material risks associated with any part of a proposed management plan (3.3(g));
(I)	providing information to patients or clients in a way they can understand before asking for their consent (3.5(a));
(J)	obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment…including providing information on material risks (3.5(b));
(K)	documenting consent appropriately… (3.5(f)); and
(L)	offering assistance in an emergency that takes account of the practitioner’s own safety, skills, the availability of other options and the impact of any other patients or clients under the practitioner’s care, and continuing to provide that assistance until services are no longer required (2.5).
2.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between on or about 25 February 2016 and in or around October 2016, Dr Hussain provided sub-standard intraoperative dental treatment and/or failed to exercise appropriate clinical judgment and/or skill, in respect of his patients, AA, CF, CC, DD and EE.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on or about 25 February 2016, at Broadmeadows Dental Surgery, Dr Hussain (in respect of AA):
(A)	performed coronectomy procedures on teeth 38 and 48 which were not clinically indicated; and/or
(B)	in any event, failed to carry out the coronectomy procedure on tooth 48 to an acceptable standard; and/or
(C)	administered an excessive quantity of local anaesthetic to AA;
(iii)	on or about 22 June 2016, at Contempo Healthcare, Dr Hussain (in respect of EE), failed to carry out a coronectomy procedure to an acceptable standard in that:
(A)	only the distal half of the crown was removed; and/or
(B)	the mesial portion of the tooth remained intact and in contact with tooth 47;
(iv)	on or about 21 July 2016, at Broadmeadows Dental Surgery, Dr Hussain (in respect of CF):
(A)	failed to appropriately consider the balance of benefit and harm in his decision to extract teeth 28, 38 and 48;
(B)	persisted with the CF Treatment in circumstances where:
(I)	he ought to have known that:
(1)	CF’s medical condition was being exacerbated and/or adversely impacted by the CF Treatment; and/or
(II)	he knew and/or ought to have known the CF Treatment was causing CF an excessive amount of pain and/or distress; and/or
(III)	CF repeatedly requested him to stop performing the CF Treatment; and/or
(C)	he engaged in conduct during and after the surgery that had the effect that Ms CF felt demeaned and/or distressed;
(v)	on or about 29 July 2016, at Contempo Healthcare, Dr Hussain (in respect of the DD Treatment):
(A)	failed to correctly identify tooth 21;
(B)	failed to adequately manage DD’s pain and comfort during the DD Treatment; and/or
(C)	failed to provide any and/or adequate post-operative advice and management to DD’s mother, ED;
(vi)	on or about 23 August 2016, at Broadmeadows Dental Surgery, Dr Hussain (in respect of the CC Denture Treatment):
(A)	failed to adequately manage CC’ pain and comfort during the CC Denture Treatment; and/or
(B)	prescribed clindamycin to CC without clinical justification;
(vii)	the Dental Board of Australia Code of Conduct (March 2014) provides that good practice involves:
(A)	assessing the patient or client, taking into account their history, views and an appropriate physical examination… (2.1(a));
(B)	formulating and implementing a suitable management plan (including providing treatment advice and, where relevant, arranging investigations and liaising with other treating practitioners) (2.1(b));
(C)	recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patient or client (2.1(d));
(D)	recognising and respecting the rights of patients or clients to make their own decisions (2.1(e));
(E)	recognising and working within the limits of a practitioners competence… (2.2(a));
(F)	ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care (2.2(b));
(G)	practising patient/client centred care… (2.2(d));
(H)	considering the balance of benefit and harm in all clinical management decisions (2.2(f));
(I)	communicating effectively with patients or clients (2.2(g));
(J)	taking steps to alleviate the symptoms and distress of patients or clients… (2.2(h));
(K)	practising in accordance with the current and accepted evidence base of the health profession, including clinical outcomes (2.2(n));
(L)	evaluating practice and the decisions and actions in providing good care (2.2(o));
(M)	treating patients or clients with respect at all times (2.4(a));
(N)	offering assistance in an emergency that takes account of the practitioner’s own…skills, the availability of other options and the impact on any other patients or clients under the practitioner’s care… (2.5);
(O)	being courteous, respectful, compassionate and honest (3.2(a));
(P)	treating each patient or client as an individual (3.2(b));
(Q)	encouraging and supporting patients or clients to be well-informed about their health and assisting patients or clients to make informed decisions about their…treatments by providing information and advice to the best of a practitioner’s ability and according to the stated needs of patients or clients (3.2(e));
(R)	respecting the right of the patient or client to choose whether or not they participate in any treatment or accept advice (3.2(f));
(S)	listening to patients or clients, asking for and respecting their views about their health and responding to their concerns and preferences (3.3(a));
(T)	encouraging patients or clients to tell a practitioner about their condition and how they are managing it…(3.3(c));
(U)	informing patients or clients of the nature of and need for all aspects of their clinical care, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment (3.3(d));
(V)	discussing with patients or clients their condition and the available healthcare options including…reasonable alternatives wherever they exist (3.3(e));
(W)	in respect of patients with additional needs:
(I)	paying particular attention to communication (3.8(a));
(II)	being aware that increased advocacy may be necessary to ensure just access to healthcare (3.8(b)); and
(III)	being aware that these patients or clients may be at greater risk (3.8(d)).
3.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, on or about 13 August 2016, he engaged in inappropriate and/or non-transparent billing practices with, and/or failed to obtain informed financial consent, from his patient, CC.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on or about 13 August 2016, CC consulted with Dr Hussain for urgent treatment of a broken tooth;
(iii)	at the consultation, Dr Hussain:
(A)	advised CC that:
(I)	the remainder of the broken tooth would need to be extracted on a later date; and/or
(II)	a denture would be required to replace the tooth (to be fitted subsequent to the extraction);
(B)	took a cast for the purposes of preparing the denture;
(C)	informed CC that the cost of the consultation was $688, which CC paid to Dr Hussain (the payment); and/or
(D)	provided CC with an invoice and receipt;
(iv)	the invoice and receipt:
(A)	incorrectly recorded that the entirety of the treatment recommended by Dr Hussain had been performed on 13 August 2019; and/or
(B)	revealed that CC had paid for the entirety of the planned treatment, prior to it being performed;
(v)	Dr Hussain:
(A)	did not inform CC that the payment related to the entirety of the planned treatment; and/or
(B)	did not provide CC with the option of paying for each portion of the treatment after it had been provided;
(vi)	the Dental Board of Australia Code of Conduct (March 2014) provides that:
(A)	practitioners must be honest and transparent in financial arrangements with patients or clients (8.12);
(B)	patients should be made aware of all the fees and charges involved in a course of treatment, preferably before the health service is provided (3.5); and
(C)	discussion about fees should be in a manner appropriate to the professional relationship and should include discussion about the cost of all required services and general agreement about the level of treatment to be provided (3.5).
4.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between on or about 25 February 2016 and in or around October 2016, he failed to adequately manage his patients and/or former patients, EE, CF, AA and DD, in that he failed to refer them to specialists where a referral was clinically indicated, and/or he performed examinations, assessments and/or treatment that was outside the scope of his knowledge, skills and experience.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on or about 25 February 2016, AA consulted with Dr Hussain at Broadmeadows Dental Surgery for urgent assessment and treatment of wisdom tooth pain;
(iii)	Dr Hussain failed to refer AA to a relevant specialist for treatment, and/or proceeded to perform the AA Treatment himself, in circumstances where:
(A)	AA expressly Dr Hussain asked whether a referral was required; and/or
(B)	Dr Hussain was unable to effect a complete removal of tooth 48;
(iv)	on or about 22 June 2016 and on or about 24 June 2016, EE consulted with Dr Hussain at Contempo Healthcare for assessment and treatment of wisdom teeth pain;
(v)	approximately three weeks after the EE Consultations and EE Treatment:
(A)	EE informed Dr Hussain that she had reduced sensation in the right side of her tongue; and/or
(B)	Dr Hussain failed to refer EE to a relevant specialist for assessment and treatment of her symptoms;
(vi)	as a consequence of Dr Hussain’s failure to refer EE to a specialist, EE lost the opportunity to repair the nerve damage to her tongue, which required treatment within three months;
(vii)	on or about 21 July 2016, CF consulted with Dr Hussain at Broadmeadows Dental Surgery for urgent assessment and treatment of wisdom tooth pain;
(viii)	Dr Hussain failed to refer CF to a relevant specialist for treatment, and/or proceeded to perform the CF Treatment himself, in circumstances where:
(A)	CF informed Dr Hussain about:
(I)	her existing medical condition; and/or
(II)	her phobia of needles;
(B)	CF informed Dr Hussain that she had previously been advised to have her wisdom teeth removed in hospital due to her medical condition; and/or
(C)	CF informed Dr Hussain that she wanted to have her wisdom teeth removed in hospital, and requested his assistance in expediting the surgery;
(ix)	on or about 29 July 2016, Dr Hussain consulted with DD at Contempo Healthcare for urgent assessment and treatment of a suspected broken tooth;
(x)	Dr Hussain failed to refer DD to a relevant specialist for post-operative assessment and management in circumstances where, during the consultation, Dr Hussain had:
(A)	extracted tooth 21; and/or
(B)	forcibly replaced the same tooth back into the socket;
(xi)	the Dental Board of Australia Code of Conduct (March 2014) provides that good practice involves:
(A)	facilitating coordination and continuity of care (2.1(c));
(B)	recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patient or client (2.1(d));
(C)	recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time (2.2(a));
(D)	ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care (2.2(b));
(E)	supporting the right of the patient or client to seek a second opinion (2.2(j)); and
(F)	consulting and taking advice from colleagues when appropriate (2.2(k)).
5.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between on or about 25 February 2016 and in or around October 2016, he failed to make and keep accurate, current and complete records of the services provided, with sufficient detail to permit planning for continuity in the delivery of dental services, in respect of his patients and/or former patients, AA, CF, EE, CC and DD.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	between in or around February 2016 and in or around October 2016, Dr Hussain consulted with AA, CF, EE, CC and DD;
(iii)	Dr Hussain’s clinical records with respect to AA:
(A)	do not adequately record instrument batch tracking; and/or
(B)	do not record all of Dr Hussain’s clinical findings;
(iv)	Dr Hussain’s clinical records with respect to CF:
(A)	are not contemporaneous, and do not make apparent that they have been amended;
(B)	do not adequately record instrument batch tracking; and/or
(C)	do not corroborate that the informed consent process was fully undertaken;
(v)	Dr Hussain’s clinical records with respect to DD:
(A)	do not clearly describe:
(I)	treatment plans and alternatives;
(II)	all procedures conducted; and/or
(III)	unusual sequelae of treatment; and/or
(B)	do not adequately record instrument batch tracking;
(vi)	Dr Hussain’s clinical records with respect to EE:
(A)	are inaccurate; and/or
(B)	are not in chronological order;
(vii)	Dr Hussain’s clinical records with respect to CC:
(A)	are incomplete;
(B)	do not clearly describe all procedures conducted;
(C)	are inaccurate;
(D)	do not adequately record instrument batch tracking; and/or
(E)	are inconsistent;
(viii)	the Dental Board of Australia’s Code of Conduct (March 2014) provides that good practice involves 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;
(ix)	the Board’s Guidelines on dental records (1 July 2010) provides that:
(A)	a dental record must be made at the time of the appointment or as soon thereafter as practicable (2.1);
(B)	entries on a dental record must be made in chronological orders (2.2);
(C)	entries on a dental record must be accurate and concise (2.3);
(D)	for each appointment, the following must be clearly documented and described (3.2(a)):
(I)	the date of visit;
(II)	the type of examination conducted;
(III)	the presenting complaint;
(IV)	relevant history;
(V)	clinical findings and observations;
(VI)	diagnosis;
(VII)	treatment plans and alternatives;
(VIII) consent of the patient, client or consumer;
(IX)	all procedures conducted;
(X)	instrument batch tracking control identification, where relevant;
(XI)	a medicine/drug prescribed, administered or supplied or any other therapeutic agent used (name, quantity, dose, instructions);
(XII)	details of advice provided; and
(XIII)unusual sequelae of treatment.
6.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between on or about 20 August 2016 and on or about 24 October 2016, he provided false and/or misleading information to the Board in that he indicated that the clinical records of his patient, CF, were contemporaneous, in circumstances where they had, in fact, been edited by Dr Hussain subsequent to the date of treatment.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on or about 21 July 2016, CF consulted with Dr Hussain at Broadmeadows Dental Surgery;
(iii)	on 29 July 2016, Dr Hussain was informed by the Board that CF had made a notification in relation to his professional conduct and/or performance;
(iv)	on four occasions on 4 August 2016, subsequent to being advised of CF’s notification, Dr Hussain edited his clinical records in respect of the consultation with CF (clinical records), in a material respect, without recording that he had done so;
(v)	on 20 August 2016, having being requested to do so by the Board, Dr Hussain provided to the Board a copy of the clinical records, which were dated 21 July 2016;
(vi)	when providing the clinical records to the Board, Dr Hussain did not advise the Board that he had amended the clinical records or otherwise note the date of his amendments;
(vii)	in written submissions to the Immediate Action Committee of the Board dated 24 October 2016, Dr Hussain (via his legal representative), referred to the clinical records as ‘contemporaneous’; and/or
(viii)	the Dental Board of Australia Code of Conduct (March 2014) provides that:
(A)	good practice involves cooperating with any legitimate inquiry into the treatment of a patient or client and with any complaints procedure that applies to a practitioner’s work (8.10); and
(B)	patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion (1.2).
7.	That Dr Hussain engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between in or around July 2016 and on or about 29 March 2017, his demonstrated clinical knowledge and/or skills and/or performance were below the standard reasonably expected of a dental practitioner of an equivalent level of training or experience.
PARTICULARS
The particulars include, but are not limited to:
(i)	at all material times, Dr Hussain was a registered dentist;
(ii)	on 8 March 2017, Dr Hussain was directed to undergo a performance assessment pursuant to section 170 of the National Law (Performance Assessment);
(iii)	the Performance Assessment was carried out on 18 March 2017, 27 March 2017 and 29 March 2017;
(iv)	the Performance Assessment included a review of Dr Hussain’s clinical records in respect of 15 patients from July 2016 to 18 March 2017;
(v)	between in or around July 2016 to on or about 18 March 2017, Dr Hussain’s clinical records did not meet the clinical standards as established by the Board’s guidelines in that they:
(A)	often contained an unacceptable medical history form and/or medical risk assessment, in that:
(I)	the medical history forms were usually not signed or dated by Dr Hussain or the relevant patient; and/or
(II)	there was no medical risk assessment conducted for high risk patients;
(B)	often inadequately recorded adverse drug reactions and/or medication allergies;
(C)	often inadequately recorded and/or did not record the relevant presenting complaint of the patient;
(D)	often did not record the relevant history of the patient;
(E)	often did not record a hard tissues inspection;
(F)	inadequately recorded and/or did not record the patient’s periodontal condition;
(G)	often inadequately recorded diagnostic tests and/or investigations, including radiographs;
(H)	often inadequately recorded and/or did not record Dr Hussain’s diagnosis;
(I)	often inadequately recorded Dr Hussain’s proposed treatment plan and alternatives in that:
(I)	the treatment plan was a standard entry applied indiscriminately to all patients; and/or
(II)	there was no risk assessment for complex surgical, endodontic or prosthodontic procedures;
(J)	often contained inadequate evidence of informed consent, in that:
(I)	the consent forms were not always signed and dated;
(II)	the scanned documents were dated post-treatment; and/or
(III)	the informed consent recorded in the case notes was a standard entry applied indiscriminately to all patients;
(K)	often did not record a risk assessment for complex procedures;
(L)	often failed to record the tooth number, surface and/or materials used in respect of procedures performed;
(M)	often inadequately recorded medication prescribing and/or advice given;
(N)	often inadequately recorded administered medications;
(O)	often inadequately recorded instrument batch tracking; and/or
(P)	often did not record appropriate patient follow-up;
(vi)	between in or around July 2016 to on or about 18 March 2017, Dr Hussain’s clinical judgment and performance did not meet the clinical standards as established by the Board’s guidelines in that he:
(A)	in respect of review patient 3, did not make any clinical notes in circumstances where multiple extractions were performed;
(B)	in respect of review patient 4:
(I)	performed a surgical extraction of a tooth:
(1)	which was not clinically justified as the relevant radiograph was not diagnostic; and/or
(2)	without radiographically assessing roots and surrounding tissues; and/or
(3)	and recorded the surgical extraction with no reference to the tooth number; and/or
(II)	failed to obtain parent/guardian consent to the extraction;
(C)	in respect of review patient 6:
(I)	failed to record instrument batch tracking in respect of endodontic procedures; and/or
(II)	obtained a non-diagnostic radiograph;
(D)	in respect of review patient 7, obtained a radiograph of poor quality, as a consequence of which:
(I)	the radiographs were repeated; and/or
(II)	the patient was exposed to unnecessary radiation;
(E)	in respect of review patient 8:
(I)	attempted root canal treatment on an unrestorable tooth; and/or
(II)	failed to provide follow-up care;
(F)	in respect of review patient 10, performed an emergency extraction of tooth 38 without obtaining a pre-operative radiograph;
(G)	in respect of review patient 11:
(I)	inappropriately extracted tooth 16 in circumstances where caries and severe bone loss on tooth 17 were left untreated; and/or
(II)	obtained a non-diagnostic radiograph;
(H)	in respect of review patient 12:
(I)	obtained radiographs of poor quality, as a consequence of which:
(1)	the radiographs were repeated; and/or
(2)	the patient was exposed to unnecessary radiation;
(II)	inappropriately performed an emergency extraction on tooth 48 in circumstances where:
(1)	informed consent was not obtained;
(2)	no risk assessment was conducted;
(3)	full radiographic investigation did not [take] place; and/or
(4)	the tooth was impacted in proximity to the inferior alveolar nerve canal; and/or
(III)	failed to record an extraction of tooth 46 in his clinical notes;
(I)	in respect of review patient 13, obtained radiographs of poor quality, as a consequence of which:
(I)	the radiographs were repeated; and/or
(II)	the patient was exposed to unnecessary radiation;
(J)	in respect of review patient 14, obtained a non-diagnostic radiograph;
(K)	in respect of review patient 15, obtained radiographs of poor quality, as a consequence of which:
(I)	the radiographs were repeated; and/or
(II)	the patient was exposed to unnecessary radiation;
(vii)	during the Performance Assessment, Dr Hussain demonstrated clinical knowledge and judgment which was substantially below the level expected from a registered dentist of an equivalent level of training and experience in that he:
(A)	was unable to open the computer software in which OPG radiographs were stored;
(B)	identified an upper premolar as a lower premolar;
(C)	erroneously referred to the Buccal canal of the Columbia tooth 14 as the ‘palatal canal’;
(D)	was unable to use the results of tests for cold sensibility and percussion in order to formulate a diagnosis;
(E)	was unable to identify the difference between A delta and c fiber neural stimulation;
(F)	was unable to identify cracked tooth syndrome, periodontal disease, sinusitis, TMJ disorders and inadequate sealing of a restoration as possible causes of pain;
(G)	indicated that he prescribes antibiotics:
(I)	if he is unsure of a diagnosis, irrespective of the differential diagnoses;
(II)	for the purpose of analgesia for toothache; and/or
(III)	in cases of reversible pulpitis;
(H)	was unable to identify the primary purpose of sealant;
(I)	in relation to restorative treatment:
(I)	was unable to identify the criteria to determine whether a tooth could be restored or not;
(II)	demonstrated a selection of restorative techniques that was inappropriate and inconsistent;
(III)	was unable to identify the materials he uses in restorative treatment;
(J)	was unable to identify causes of pulpal pathology other than caries into the pulp;
(K)	was unable to define reversible compared with irreversible pulpitis or how these are diagnosed;
(L)	was unable to diagnose:
(I)	a necrotic, cracked tooth; and/or
(II)	a vertical root fracture;
(M)	did not suggest transillumination, heat testing or periodontal probing as possible clinical diagnostic tests;
(N)	did not identify cracks, other canals or poor coronal seal as possible causes of root canal failure;
(O)	was unable to name an endodontist to whom he refers patients, in circumstances where he had previously stated that he refers difficult cases, perforation, failed root canal treatments and all molars to endodontists;
(P)	demonstrated superficial knowledge of materials used in crown, bridge and implant work;
(Q)	did not allow for adequate healing time after tooth extraction prior to commencing fixed bridgework;
(R)	indicated that he relies on dental technicians to manage ill-fitting crowns, bridges and dentures;
(S)	demonstrated poor knowledge of the post-operative complications associated with third molar removals;
(T)	indicated that he would treat dry socket by ‘[scooping] the bone margin and the socket walls to remove infection and promote bleeding from the bone’ and placing Alvogyl;
(U)	was unable to identify the medicaments contained in Alvogyl and how this relates to medical history and drug allergies;
(V)	was unable to identify the indications and contraindications for coronectomies (other than teeth with caries being a contraindication);
(W)	demonstrated only a vague understanding of atrial fibrillation and its effect on dental treatment;
(X)	was unable to distinguish the effects and management of antiplatelet and anticoagulant medications;
(Y)	was unable to diagnose pain of [endodontic] origin in that he confused pulp necrosis with irreversible pulpitis;
(Z)	failed to demonstrate an understanding of the mechanisms of failure for endodontic treatment;
(AA)	demonstrated a poor understanding of periodontal disease and its assessment, diagnosis, treatment and follow-up;
(CF)	demonstrated a lack of understanding of case selection for veneers, the rationales for various veneers designs and mechanism of failure;
(CC) in relation to local anaesthetics, he failed to demonstrate an understanding of the method of action, how long they last or the correct drugs inside each cartridge;
(DD)	incorrectly stated that 1:80000 adrenaline is a weaker dose than 1:100000;
(EE)	stated that, in his practice, he does not use a scavenger when administering nitrous oxide; and/or
(FF)	was unable to identify risks or contraindications to using Penthrox or nitrous oxide; and/or
(viii)	during the Performance Assessment, Dr Hussain demonstrated clinical skills which were substantially below the level expected from a registered dentist of an equivalent level of training and experience:
(A)	in the area of endodontics generally, in that he demonstrated:
(I)	an inability to isolate teeth effectively with rubber dam as:
(1)	the rubber dam clamp was placed back to front; and/or
(2)	the clamp was secure[d] with floss placed under the dam;
(II)	destructive, inappropriate access preparation;
(III)	incomplete and ineffective canal instrumentation; and/or
(IV)	extrusion of sealant through the apex; and/or
(V)	under condensed obturation; and/or
(B)	in that he demonstrated poor intraoral radiographic technique, including unnecessary radiation exposure;
(ix)	the Dental Board of Australia’s Code of Conduct (March 2014) provides that good practice involves:
(A)	recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time (2.2(a));
(B)	ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care (2.2(b); and
(C)	practising in accordance with the current and accepted evidence base of the health profession, including clinical outcomes (2.2(n)).
Admissions
14	Dr Hussain admits that he engaged in the conduct particularised in the Amended Notice of Allegations.
15	Dr Hussain admits that the conduct set out in allegations 1, 2, 3, 4, 5 and 6 together constitutes professional misconduct within the meaning of the definition of professional misconduct in section 5 of the National Law.  He admits that the conduct set out in allegation 7 constitutes professional misconduct within the meaning of the definition of professional misconduct in section 5 of the National Law or, alternatively, that the conduct constitutes unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.  
16	The parties made separate submissions in relation to the applicable paragraph of the definition of ‘professional misconduct’: see below.    
Further evidence about the allegations
17	The Tribunal Book contains investigation materials complied by the Australian Health Practitioner Regulation Agency (Ahpra) and the Board.  The material includes witness statements by patients and their relatives; dental records; hospital and medical records; photographs and photocopies of radiographs; Dr Hussain’s responses to the allegations; expert reports; and two 2017 performance assessment reports.    
18	The witness statements detail the experience patients had when they consulted Dr Hussain and subsequent to that.  Each patient’s account is significant, but we refer specifically to only some of them.  For instance, in a statement she made about three and a half years after she saw Dr Hussain, the patient we identify as AA referred to intermittent ongoing pain, and difficulty opening her mouth completely.  She mentioned the remedial attention she sought from a specialist, and the months-long disruption there had been to her studies in 2016.  AA said she was still reluctant to undergo further dental treatment due to the ‘traumatic experience’ she had with Dr Hussain.  On the subject of consent, AA said that she was given forms to sign regarding consent and fees after Dr Hussain had opened the valve on the nitrous oxide tank, although she did not think that the gas was affecting her at the time.  
19	Other patients described their pain and distress during procedures performed by Dr Hussain and for some time afterwards. 
20	The patient CF said that on the evening when she saw Dr Hussain she was in considerable distress.  She had a rare skin condition and had been advised to have her wisdom teeth removed in hospital under general anaesthetic, but there was a waiting list.  CF went to Dr Hussain because he was an ‘after hours’ dentist.  She was wanting him to give her something to control the pain and possibly facilitate urgent hospital admission.  CF told Dr Husain that she had been advised to go to hospital.  He told her he would remove her wisdom teeth immediately.  CF gave details of the discussion she had with Dr Hussain.  She described the procedure and the pain she experienced.  She said that three or four times she asked him to stop.  She said that Dr Hussain said things to her that made her feel he was blaming her for ‘that fact that he wasn’t being gentle enough’.  It was after the procedure that CF was asked to sign a consent form.     
21	ED, the mother of the child patient, DD, described DD’s distress during and after the procedure, saying he could feel what Dr Hussain was doing whereas Dr Hussain had said words to effect that the child just thought he could feel it.  ED said that DD had become very anxious and no longer trusted dentists and was terrified of the dentist’s chair.  The specialist paediatric dentist DD saw later wrote a letter in 2018 expressing the view that the treatment of DD was incompetent and showed no understanding of dental development or behavioural management in dental anatomy.  He said that the treatment had compromised DD’s long term dental development.   
22	The patient CC said that she saw Dr Hussain after her right front tooth and crown broke off while she was eating.  It was a Saturday night and her usual dentist was not available.  After the first appointment she realised that she had paid for the entirety of proposed treatment.  To some extent that influenced her in continuing to see Dr Hussain.  Otherwise, she did not think she would have likely gone back to see him.  CC described what occurred on subsequent visits, and the ‘extreme’ pain she suffered especially after her third visit, pain that continued for about a month.  CC said she was unable to eat, smile or talk normally on account of the pain.  She could not sleep well.  She had continuous headaches.  She began losing weight.  She was embarrassed by the gap in her teeth.  She had difficulty concentrating at work as she was distracted by pain.  She experienced nausea and vomiting.  Three years later she still had pain in her face from time to time.  CC referred to recordings she made of discussions with Dr Hussain.  We say more about that later.      
23	The Board obtained expert reports from Dr Michael Wyatt in 2018 and 2019.  (Among other things, Dr Wyatt is an examiner for the Royal Australian College of Dental Surgeons).  Dr Wyatt had access to records for the patients referred to in the amended Notice of Allegations.  He was careful to indicate instances where he considered that treatment provided was appropriate, or areas where there was insufficient information for him to form an opinion one way or the other.  Dr Wyatt’s reports nevertheless confirm deficiencies in numerous aspects of Dr  Hussain’s practice; non-compliance with the Code of Conduct (the Code); and non-compliance with the Guidelines on Dental Records (the Guidelines). 
24	The performance assessors made an interim report dated in April 2017.  In broad summary, the interim report confirms the many ways in which Dr Hussain’s clinical records, and the many ways his clinical judgement and performance, did not meet relevant clinical standards in the period July 2016-March 2017 as particularised under allegation 7.  The report further confirms the many ways in which Dr Hussain demonstrated clinical knowledge and judgement that were substantially below the level expected from a registered dentist of an equivalent level of training and experience.  The assessors identified fundamental ways in which Dr Hussain’s knowledge was lacking, and the risks he posed to the public.  They noted that Dr Hussain believed he was competent and that he was the victim of vexatious claims.  The assessors expressed the opinion that Dr Hussain was overly confident as to his true abilities.  The assessors’ final report, also dated in April 2017, went on to make a number of findings and recommendations.  The recommendations included further education and practical re-training, supervision, and restrictions on Dr Hussain’s practice.  
25	It was later in April 2017 that Dr Hussain surrendered his registration.        
Further evidence about Dr Hussain 
26	The submissions for Dr Hussain mentioned that he has five adult children who work in one way or another in the health professions.  Dr Hussain and his wife separated in 2012 and later divorced.  Their property issues were finalised in 2016.  It was submitted that this was a very difficult time in Dr Hussain’s life, and it was said that Dr Hussain has lost his businesses and become financially dependent on Centrelink payments and his children.  
27	There is important history relevant especially to allegation 7.  In November 2016, during what local media referred to as ‘the thunderstorm asthma crisis’, Dr Hussain suffered a near-fatal hypoxic cardiac arrest following a ‘thunderstorm asthma attack’   Mr McLay, on behalf of Dr Hussain, told the Tribunal at the hearing that Dr Hussain was in a coma for a week and that he ‘struggled’ for three or four months after that ‘life-changing event’.  (The performance assessment to which allegation 7 relates took place in March 2017, about four months after the cardiac arrest). 
28	There is a report by consultant cardiologist and electrophysiologist, Dr Manoj Obeyesekere, dated 27 June 2017.  Dr Obeyesekere noted that Dr Hussain had ‘mild’ coronary artery disease, though he expressed the view that the episode in November 2016 was due to ‘hypoxic thunderstorm asthma attack’ (rather than any specific heart condition).  Dr Obeyesekere said that Dr Hussain had recovered well.   
Principles concerning the proper approach to an Agreed Statement
29	The principles concerning the proper approach for a disciplinary tribunal to take to an Agreed Statement of the kind submitted in this case have been discussed in numerous decisions of courts and tribunals. The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]- [21]. See also, in particular, the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46.
Findings of fact
30	The Board carries the burden of proof. The standard of proof is the normal civil standard: on the balance of probabilities. In the context of disciplinary proceedings that standard is to be applied having regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 the Court referred to Briginshaw and expressed the view that it was entirely proper for VCAT to require that it be ‘comfortably satisfied’ of the facts in issue: see also Medical Board of Australia v Alkazali [2017] VCAT 39.
31	On the basis of Dr Hussain’s admissions and the evidence in the Tribunal Book – being the material we have referred to and further relevant correspondence, reports and statements, clinical and other records, invoices and radiographs - we are comfortably satisfied that Dr Hussain engaged in the conduct alleged in the Amended Notice of Allegations.
Characterisation of conduct 
32	Section 5 of the National Law includes the following definition of ‘professional misconduct’.    
professional misconduct, of a registered health practitioner, includes—
(a)	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; and
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
33	The definition of ‘unprofessional conduct’ in section 5 means ‘professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’.
34	The Code and the Guidelines are evidence of what constitutes appropriate professional conduct or practice for the profession: see section 41 of the National Law.  In these reasons for decision, we do not refer exhaustively to the parts of the Code or the Guidelines referred to in the Amended Notice of Allegations, for they are self-explanatory.
35	With respect to allegations 1-6, the Board submits that it is open to the Tribunal to make a ‘global finding’ under paragraph (c) of the definition of ‘professional misconduct’.  
36	Notwithstanding that the Agreed Statement records that Dr Hussain admits that the conduct set out in allegations 1-6 together constitutes professional misconduct, Dr Hussain submits that the conduct ought to be characterised as unsatisfactory professional performance and/or (‘in the aggregate’) unprofessional conduct.  (‘Unsatisfactory professional performance’ in relation to a registered health practitioner is defined as in section 5 to mean that ‘the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’). 
37	Dr Hussain also submits however that if the conduct is not characterised in the above way, the conduct ought to be characterised as professional misconduct within the meaning of paragraphs (a) or (b).  He submits that the misconduct ought not be characterised as professional misconduct within paragraph (c).  
38	With respect to allegation 7, the Board submits that we can be satisfied that Dr Hussain engaged in professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’.  Dr Hussain makes a similar submission that the conduct is unprofessional conduct, or professional misconduct under paragraphs (a) and (b), but not (c).   
39	The submissions for Dr Hussain were to the effect that characterising the conduct as professional misconduct under paragraph (c) would necessarily involve an adverse finding about Dr Hussain’s character.  Put another way, the submissions were to the effect that for conduct to be conduct that is inconsistent with a practitioner being a fit and proper person to hold registration in the profession, the conduct would have to involve some moral turpitude.  As there was no moral turpitude on Dr Hussain’s part, the conduct cannot be characterised as professional misconduct within the meaning of paragraph (c).   
40	For reasons that follow, we disagree.  
41	Paragraph (c) is part of a statute, and so we interpret paragraph (c) in its statutory context.  That said, the general authorities demonstrate that when a finding has to be made as to whether a person is a ‘fit and proper person’, a finding that the person is a ‘fit and proper person’ may involve a finding that the person is of good character.  But a finding that a person is not a ‘fit and proper person’ does not necessarily involve a finding that the person is not of good character.  The finding may simply be that there is an element of what is required for a person to be a ‘fit and proper person’ that is lacking.
42	It is to be emphasised that in the context of the National Law, we are considering conduct, not character.  And we are considering conduct that Dr Hussain engaged in years ago.  In Medical Board of Australia v Arulanandarajah [2021] VCAT 85 at [34]ff, VCAT noted that the words in paragraph (c) allow for the possibility that while the conduct engaged in was inconsistent with the practitioner being a fit and proper person to hold registration, the practitioner was not in fact unfit at the time.  VCAT also noted that the words allow for the further possibility that, while the conduct may have indicated that the practitioner was unfit at the time, that would not prevent the practitioner becoming a fit and proper person to hold registration by the time of the tribunal hearing.
43	We are not considering the question whether Dr Hussain was a fit and proper person to hold registration in the profession at the time he engaged in the conduct.  And we are not considering whether he is currently a fit and proper person to hold registration.  We are not considering whether Dr Hussain was then or is now a person of good character.  What we are considering is whether Dr Hussain’s admitted conduct in 2016-2017 is inconsistent with him being a fit and proper person to hold registration in the profession.
The meaning of ‘fit and proper person’
44	In Australian Broadcasting Tribunal v Bond [1990] HCA 33, Toohey and Gaudron JJ noted at [36] of their judgment that the ‘expression “fit and proper person”, standing alone, carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities’.
45	In Occupational Therapy Board of Australia v Cornelio [2019] VCAT 20, at [31], VCAT discussed what ‘fit and proper’ means in the context of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law:
The term ‘fit and proper person’ is not defined in the National Law but its meaning has been the subject of much judicial comment.  The test does not carry defined criteria but allows for a wide range of matters to be considered.  It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails.  The decision maker needs to make a value judgment and in so doing must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person.  The test must be applied in the context of what the person will be authorised to do if the relevant permission is given. 
46	After the hearing, the Board drew the Tribunal’s attention to a number of decisions by tribunals in other Australian jurisdictions.  The most significant of these was Medical Board of Australia v Tunbridge [2020] SACAT 34 (Tunbridge).  Tunbridge concerned a doctor who admitted that over a period of years he had inappropriately prescribed medication; failed to adequately monitor or treat patients; and failed to maintain adequate records.  The South Australian Civil and Administrative Tribunal expressed the view that the doctor’s conduct exhibited a serious disregard for the requirements of professional practice.  The tribunal found that there had been professional misconduct without specifying any paragraph in the definition.  Still the tribunal expressed the view that the conduct demonstrated that the doctor was ‘unfit to be registered’: at [30]-[34].  
47	A judgment of the Supreme Court of Victoria about a lawyer contains a discussion of the meaning of ‘fit and proper’ that is of particular assistance.  In Victorian Legal Services Commissioner v Horak [2016] VSC 780, at paragraphs [60]ff, McMillan J said: 
[60]	The High Court considered the meaning of ‘fit and proper’ in the seminal decision of Hughes and Vale Pty Ltd v New South Wales (No 2):
The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 
[61]	The standard required is amorphous. In Sobey v Commercial and Private Agents Board, Walters J gave some more content to the phrase:
The issue whether an appellant has shown himself to be “a fit and proper person” ... is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 
[62]	The Court does not demand perfection of practitioners. Nor is it particularly helpful to attempt to draw a defining line between conduct which demonstrates that a practitioner is not (sic) a ‘fit and proper person’ and conduct which does not—the enquiry is a holistic one which depends on undertaking often a difficult exercise of weighing competence, knowledge, and integrity, amongst other factors. A lack of competence and knowledge may be paired with a great deal of honesty, and vice versa. The disciplinary consequences will naturally differ. As always, the result turns on the facts of the particular case. (Emphasis added) 
Summary regarding paragraph (c) 
48	In summary, we consider that there may be conduct connected to a practitioner’s knowledge and ability that constitutes professional misconduct within the meaning of paragraph (c).  For reasons we will give, we consider that Dr Hussain’s conduct is such conduct.  Mr McLay submitted that only paragraphs (a) and (b) (which deal with conduct that is substantially below the standard reasonably expected) could apply.  We disagree.  Depending on the case, only (a) or (b) - or (a) and (b) - may apply.  However, we consider that Dr Hussain’s case is one where paragraph (c) applies.  During the course of argument, Mr McLay conceded that there could be ‘outliers’ whose practice of the profession is so ‘wanting’ that paragraph (c) could apply, but he submitted that Dr Hussain’s case is not such a case  We consider that it is such a case.
Consideration of Dr Hussain’s conduct – allegations 1-6
49	We focus first on allegations 1 – 5.  The allegations concern conduct in relation to five patients over a period of about eight months.  
50	Mr Chisholm, on behalf of the Board, settled on the phrase ‘arc of practice’ in submitting that the admitted conduct concerned Dr Hussain’s practice at all relevant stages, from the point of obtaining informed consent onwards.  There were deficiencies in relation to pre-operative treatment and care, intra-operative treatment, and post-operative care.  They included the failure to refer patients to specialists where that was clinically indicated, and the performance of examinations, assessments and/or treatment that were outside the scope of Dr Hussain’s knowledge, skills and experience.  Further, there were issues about Dr Hussain’s billing practices.  (Mr Chisholm had, in the alternative, referred to the ‘entirety’ of Dr Hussain’s practice.  Resisting the notion that the conduct concerned the entirety of Dr Hussain’s practice, Mr McLay made a submission to the effect that the five patients were a small subset of Dr Hussain’s patients and that there were no known issues concerning the other patients.  We will return to that issue).  
51	With regard to consent, Mr McLay drew our attention to a number of signed consent forms in the Tribunal Book.  He submitted that Dr Hussain did attempt to properly inform his patients and obtain their consent.  He did accept that there were patients whose ‘fully informed consent’ was not obtained, but he submitted that this was not a case where the practitioner had shown ‘total disregard’ for obtaining consent.  
52	While Dr Hussain’s conduct in relation to obtaining informed consent was not the same for every patient, viewed overall, his conduct in relation to obtaining informed consent was grossly inadequate.    
53	There will be more to say about allegation 7, which arises from the March 2017 performance assessment.  But we indicate now that we consider that the admitted conduct in relation to allegations 1-5 supports the reliability of the performance assessment, and the performance assessment adds meaning and strength to allegations 1-5.  
54	We consider that it would be unsafe to conclude that the deficiencies in Dr Hussain’s practice in 2016 were restricted to the five patients (AA, CF, CC, DD and EE).  On the other hand, we do not conclude that the deficiencies necessarily impacted on the entirety of Dr Hussain’s practice.  We nevertheless consider that there was global incompetence.  The nature and range of the deficiencies involved in the admitted conduct leads us to conclude that Dr Hussain engaged in conduct that is inconsistent with him being a fit and proper person to hold registration in the profession.  
55	At this point we indicate our view that Dr Hussain’s conduct does not merely involve conduct relating to his clinical performance.  There are elements in the admitted conduct that involve matters of moral integrity and rectitude of character.  We say more about that now.  
56	Within allegations 1 and 2 are allegations that Dr Hussain refused to stop carrying out treatment (extractions) despite his patient requesting him to.  Allegation 2 includes that the patient CF repeatedly asked him to stop performing the treatment, but he persisted when he knew or ought to have known that the treatment was causing her an excessive amount of pain or distress, and that he engaged in conduct during and after the surgery that had the effect that CF felt demeaned and/or distressed.  It is to be recalled that these allegations are admitted.  
57	We mention now, in passing, that a recording of a discussion that another patient (CC) had with Dr Hussain was played during the hearing, for the stated purpose of demonstrating that Dr Hussain genuinely had care and concern for the patient and was genuinely trying to manage her care proficiently.  To some extent the recording does support that, though the recording was evidently made sometime after the initial day of treatment, and the relevant allegations concern more than one patient.       
58	Allegation 3 is that Dr Hussain’s billing practices were inappropriate and/or non-transparent, and that there was a failure to obtain ‘informed financial consent’ from a patient, CC.  Among other things, it is admitted that the invoice and receipt incorrectly recorded that the entirety of the recommended treatment had been performed on the initial consultation date when significant parts of the treatment were to be performed later.  Mr McLay said on Dr Hussain’s behalf that there was no intention to mislead or deceive the patient, though Dr Hussain accepted that what he did ‘wasn’t good enough’.    
59	We now come to allegation 6.  The allegation is that Dr Hussain provided false or misleading information to the Board in that he indicated that the clinical records for CF were contemporaneous in circumstances where they had, in fact, been edited by Dr Hussain subsequent to the date of treatment.  Dr Hussain saw CF on 21 July 2016.  He was informed on 26 July about the notification made by CF.  On 4 August 2016, Dr Hussain edited CF’s records – on four occasions – in a material respect without recording that he had done so.  Later that month, at the Board’s request, Dr Hussain provided the records to the Board, but he did not advise the Board that he had made the amendments or otherwise note the date of the amendments.  In written submissions to the Board’s Immediate Action Committee in October 2016, Dr Hussain (through his lawyer) referred to the records as ‘contemporaneous’.  (At that stage Dr Hussain opposed immediate action to impose conditions on his registration.  The October 2016 submissions described his ‘contemporaneous clinical records’ as the ‘best evidence’ in relation to the matters that CF and other patients had raised).  
60	Mr McLay asserted that Dr Hussain did not intend to mislead the Board.  He acknowledged that practitioners should highlight in clinical records where the records have been updated, but he said that Dr Hussain kept both paper and electronic records ‘which he struggled with’, and that caused the records to be insufficient.  Dr Hussain’s purpose had been to correct the electronic record and not to mislead the Board.  
61	The Code makes clear that practitioners must be honest and transparent in financial arrangements with patients, and that good practice involves cooperating with any legitimate inquiry into the treatment of a patient or in relation to any complaint.  The Code sets out the expectation that practitioners will display qualities such as integrity and truthfulness.
62	We reiterate that Dr Hussain has admitted the allegations.  Allegations 3 and 6 do not say that Dr Hussain deliberately provided false or misleading information to his patient or to the Board.  Dr Hussain did not give oral evidence to the Tribunal.  He was not cross-examined.  We would not conclude that Dr Hussain acted fraudulently.  But we are unable to conclude that Dr Hussain acted altogether innocently.  We consider that especially in relation to the representations made to the Board by him or on his behalf, Dr Hussain failed to take proper care to ensure that the information he provided was true and correct.  To that extent, Dr Hussain’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession, in the sense that the conduct was inconsistent with him being a person with the necessary rectitude of character.
Consideration of Dr Hussain’s conduct – allegation 7
63	We turn finally to allegation 7.  While we were given only scant information about Dr Hussain’s hospitalisation and treatment following his cardiac arrest in November 2016, we accept that it was a near-fatal episode that would well be described as ‘life-changing’.  It would be understandable for there to have been physical and psychological effects, lasting for some time.  Mr McLay told us that Dr Hussain lost a substantial amount of weight between November 2016 and March 2017 when the performance assessment was conducted.  It was said that Dr Hussain was still ‘struggling’ in March 2017.  
64	We have considered Dr Obeyesekere’s report.  Mr McLay conceded that it was not an expert report with regard to the impact of the episode on Dr Hussain, as might be relevant to his performance when he participated in the performance assessment.  There were no other medical, psychological or other expert reports for us to consider.  
65	We will come to the performance assessment itself.  First, we need to address some issues relating to Dr Hussain’s capacity at the time the assessment was undertaken.      
66	Mr McLay submitted in effect that Dr Hussain performed poorly during the assessment because he was still affected by his near-fatal cardiac arrest.  (He actually said there was a combination of stressors, noting that a performance assessment would be stressful for any practitioner).  Mr McLay said that this was reflected in the assessors giving Dr Hussain extra breaks during the assessment.  We have seen what the documents record about the breaks given.  We do not consider them to be remarkable.  But there does not appear to be any note by the assessors to the effect that Dr Hussain required and was given additional breaks by reason of his physical or psychological condition.  Mr McLay said that Dr Hussain did tell the assessors about his condition.  It is reasonably to be expected that such important matters as these would be documented by the assessors, however.
67	Secondly, we mention by March 2017 Dr Hussain had returned to work.  In February 2017, he submitted a completed ‘Performance Assessment Pre-visit Questionnaire’ to Ahpra.  Of particular note is item 21, containing this prompt: ‘In a typical week, state that number of hours spent in direct patient contact’.  Dr Hussain’s response indicated that in a typical week he had direct contact with patients for eight hours per day on seven days.  In a later response he indicated that he saw about 50 patients per week.  He also indicated that he did not recognise any deficiencies in knowledge, competence or performance in his areas of practice.    
68	Mr McLay highlighted the word ‘typical’ in the questionnaire and said that some days were better than other days for Dr Hussain.  He said that the time of the performance assessment was not a good time.  Mr McLay did not go so far as to submit that the performance assessment would have been ‘completely different’ if it had been conducted before Dr Hussain’s cardiac arrest, but he did make a submission to the effect that the episode was relevant and that Dr Hussain had difficulties at the time of the assessment.  
69	In our view, it is reasonable to expect that for some time after November 2016 Dr Hussain would generally have been unable to perform at the same level he was before then, but on the available evidence we are unable to conclude that his performance during the performance assessment was affected to any significant degree.  As we have noted, the admitted conduct concerning his performance (which pre-dates November 2016) supports the reliability (and therefore the probative value) of the performance assessment.  We add that the performance assessment included a review of Dr Hussain’s clinical records in respect of 15 patients from July 2016 to March 2017, so it too included a period that pre-dated November 2016.    
70	The performance assessment records that Dr Hussain demonstrated clinical knowledge and judgement that was substantially below the level expected from a registered dentist of an equivalent level of training and experience.  There were over 30 points, involving deficiencies of one kind or another in a wide range of areas, that the assessors mentioned.  We refer to some of the more important ones.  Clinical records did not meet the required standards.  They often did not record, or they inadequately recorded, fundamental matters such as the patient’s presenting complaint and history.  There were serious problems that included the absence of a medical risk assessment for high-risk patients, and inadequate documentation of adverse drug reactions.  The records were inadequate in relation to diagnostic tests, diagnoses, and proposed treatment and alternatives to treatment.   There was often inadequate evidence of informed consent.  The records were inadequate as to treatment given, or medications prescribed or administered.  
71	In relation to the 15 review patients, the problems were not limited to the absence or inadequacy of clinical records.  There were extractions performed despite the lack of clinical justification.  There was a failure to obtain the consent of one patient’s parent or guardian.  A number of patients were exposed to unnecessary radiation because Dr Hussain first obtained a radiograph of poor quality.  There were further failures with respect to treatment and follow-up care.
72	The assessors noted that Dr Hussain made significant errors and displayed deficiencies in the ability to diagnose or the knowledge of appropriate treatment that were fundamental.   Among other things, Dr Hussain could not name an endodontist to whom he refers patients, in circumstances where he had previously stated that he referred relevant cases to endodontists.  His knowledge in key areas was variously described as poor, or superficial, or vague.  Dr Hussain was unable to identify risks or contraindications to using Penthrox (methoxyflurane) or nitrous oxide.  There were numerous areas identified where Dr Hussain’s surgical technique was substandard.     
73	The performance assessment therefore identified conduct, that Dr Hussain has admitted, that constitutes professional misconduct.  For essentially the same reasons that we gave earlier, we consider that while the conduct generally concerns ‘performance’ rather than ‘character’ issues, the conduct is inconsistent with him being a fit and proper person to hold registration in the profession.
Summary and conclusion 
74	For the reasons given, we are comfortably satisfied that Dr Hussain engaged in the conduct referred to in the Amended Notice of Allegations.  We characterise Dr Hussain’s conduct as alleged in allegations 1-6 as professional misconduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law.  We characterise the conduct as alleged in allegation 7 as professional conduct within the meaning of paragraph (c) of the definition of ‘professional misconduct’ in section 5 of the National Law.  
75	The Tribunal will give directions as to the further conduct of the proceeding for the purpose of the Tribunal characterising the conduct and making appropriate determinations.  

J Billings
Senior Member and Presiding Member	Dr A Johnston  
Health Practitioner Member	Assoc Prof R Story AM RFD 
Health Practitioner Member