Health Care Complaints Commission v Somaey [2021] NSW CATOD 91 5 July 2021

Link to case (84 pp)

Regulation and prosecution of health practitioners is a discrete area of law that draws upon disciplinary matters, particularly in relation to legal practitioners and health practitioners going back for centuries.

Typically, since 2010 – at least in this country, in both the somewhat different jurisdiction of New South Wales and the rest of the country, often there is a notification made and then an investigation proceeds whether by way of immediate action or otherwise.

After that, investigation proceeds and is concluded and when there are actions taken in relation to the practitioner, then a prosecution consideration may be  given by the Director of Proceedings in each State in whatever format that particular prosecution occurs.

Recently in the case of Health Care Complaints Commission v Somaey, many of these matters were ventilated.

The background to the matter is a registrant had a complaint in relation to a number of issues, including that of impairment and unsatisfactory professional conduct and/or professional misconduct under s 139 of the National Law as it applies in New South Wales.

The practitioner had been initially suspended in 2013, the suspension was lifted in 2014 with conditions imposed.  Ultimately, after a series of changes to conditions on in June 2017, the conditions were removed, and the registrant was suspended.

What is perhaps the most relevant to dental practitioners is that in these proceedings over two hearings in and over an extended period of time that consideration was given to a range of matters including responding properly to regulators and also the effect of s 8.10 of the Code of Conduct of the Dental Board of Australia and Infection control

CODE OF CONDUCT

At paragraph 116 of the decision of 5  July 2021, the Tribunal said:

“We do not regard the good practice specified in section 8.10 of the Code of Conduct as creating an absolute obligation and that any departure from the good practice will constitute a breach of the section.  Section 1.1 indicates that the Code of Conduct is guidance to practitioners.  While not expressly stated in the Code of Conduct, there may be circumstances where a practitioner will have a reasonable excuse for not applying a guidance in the Code of Conduct.  It follows that in considering whether a practitioner has failed to follow any guidance in Code of Conduct (sic) it is necessary not only to consider whether the guidance applies in a particular circumstances, but whether in all the circumstances the practitioner had a reasonable excuse for not following the guidance.”

Ultimately the Tribunal found that there was no reasonable excuse, but this passage is important for lawyers practising this area and practitioners to understand that although the Code of Conduct is important, there can be excuses for not applying the guidance in the Code of Conduct.

This may particularly have application currently with the heightened levels of concern around infection control to deal with the COVID-19 pandemic.

INFECTION CONTROL RESPONSIBILITY

In relation to infection control, the current understanding of the profession could be said to be that a principal of a practice has overall responsibility for the infection protection control program but also that each practitioner has their own responsibility to practise within these regulations, standards and guidelines.

The Tribunal said at paragraph 197 that there was no controversy between the parties that:

“… 1. The ….. obligations to maintain infection and hygiene control were applicable to the Respondent’s practice when allowing other dentists to use it for a fee.”

This comment is of interest to practitioners simply because there might be an argument that while this is true for employers of practitioners, that dentists who let their practices be used pursuant to a Service and Facility Agreement may not have the same obligations in relation to maintaining infection and hygiene control and that some of that regulatory liability is shared.

There have been cases, particularly in New South Wales, where practitioners who use facilities have the same responsibilities impressed upon them as the owners of the facilities.  This area of law will continue to develop as prosecutions continue.

It is important as a result of these provisions that practitioners who operate dental practices ensure that they are strictly compliant with those guidelines and that dentists who use those facilities, whether it be by way of employment or engagement through a Service and Facility Agreement or indeed Independent Contractor Agreement, are observant and knowledgeable about those infection control practices.

There is arguably little utility in practitioners pointing the finger, as all parties should have proper infection control as a shared goal and to work collaboratively towards patient safety

RESPONDING TO REGULATORS

The other issue that arises in this case is that the applicant Commission alleged that there had been a failure to provide documentation to the Commission officers at all or in a reasonable timeframe or without excuse.  Not all of that conduct was proven or at accepted to have occurred by the Tribunal but this case is a reminder for practitioners that when correspondence is received in relation to request for information that that information should be provided promptly, in a timely fashion and in a professional manner.

It should be obvious that a failure to respond to a regulator and its officers appropriately can be a matter that may give rise to allegations of unprofessional conduct.