Bartram v the Dental Board of South Australia No. Scgrg-98-499 Judgment No. S6940

[1998] SASC 6940

BARTRAM V DENTAL BOARD OF SOUTH AUSTRALIA

Civil

LANDER J The appellant has appealed against a decision of the Dental Professional Conduct Tribunal (the Tribunal) where it found the appellant guilty of unprofessional conduct in relation to a patient, Mrs Rosemary Druce, and against orders made by the Tribunal where it suspended the appellant’s registration by removing his name from the register for a period of six months and made consequential orders.
The appeal first came on for hearing in May 1998 and then again in June 1998 when the appellant sought to amend his grounds of appeal and sought leave to call further evidence in support of those additional grounds.
In a ruling which I gave on 1 July 1998 I refused the appellant’s application to amend the grounds of appeal. My decision carried with it the inference which the parties have accepted that the appellant would be refused leave to advance further evidence on this appeal.
After the announcement of that ruling the appellant sought time to consider his position. In due course the appellant advised me that he intended to proceed with the appeal:
against the finding that he had been guilty of unprofessional conduct; and
if the appeal against the finding of unprofessional conduct was dismissed, against the decision removing his name from the register for a period of six months and some of those consequential orders.

During the hearing of the appeal, Mr K V Borick, who appeared for the appellant, indicated that his client wished to abandon that part of the appeal against the finding that he had been guilty of unprofessional conduct. He advised me that his client wished to pursue the appeal only in so far as it complained of the order of the Tribunal suspending the appellant’s registration by removing his name from the register for a period of six months. I shall treat, therefore, the appeal against the finding of unprofessional conduct as abandoned.
The appellant was charged on complaint dated 7 November 1996 with unprofessional conduct in relation to his patient, Mrs Rosemary Druce.
The grounds of the complaint were:
“1..... In or about the months of March and April 1991 at Hackney Dr Donald Keith Bartram (hereinafter referred to as “the respondent”) conducted a general dental practice at 19 North Terrace Hackney, South Australia.
2.During the said period the respondent treated a patient Rosemary Audine Druce (hereinafter referred to as “the patient”).
3...... The respondent had a particular interest in theories of “non-conventional” dentistry and medicine to the effect that various parts of the body are related to various teeth in the jaw. In particular he believed that if a tooth had inflammation it would affect the energy transmitted to organs of the body on “the same pathway”.
4.The respondent believed that by performing jaw surgery he had benefited women who were undergoing hysterectomies in respect of that gynaecological problem.
5...... In or about 1977 the respondent became aware of an instrument called a “dermatron” and used that instrument in his practice as a registered dentist. The “dermatron” was used by the respondent in the belief that the machine used electrical impulses to make measurements at acupuncture points on his patients. The respondent used the “dermatron” machine frequently in his general dental practice.
6.The patient first consulted the respondent in 1986 and saw him from time to time as a patient until 1991.
7...... On 5 March 1991 the patient consulted the respondent for a routine check-up. She had no apparent dental problem.
8.The respondent said to the patient that he had an interest in jaw surgery and that he had been successful with such surgery in relation to gynaecological conditions. The patient mentioned that she had seen a gynaecologist recently and had some “abnormal cells” and that she had been advised not to be concerned and was merely to see a specialist at a later date.
9...... Despite the fact that standard clinical practice had revealed no apparent dental problems the respondent then conducted a test using the “dermatron” machine. He said to the patient that the readings were high.
10.Placing reliance on the “dermatron” machine the respondent then took x-rays of the patient’s teeth.
11.... It is alleged that the x-rays of the patient’s teeth and jaw revealed no apparent dental problem.
12.The respondent advised the patient that she had an infection in the gum area and that surgery was urgently required.
13.... On the following day, which was 6 March 1991, the respondent again advised the patient that treatment was necessary and urgent and the surgery would be carried out by his employee. He stated that the operation to be performed was an apicectomy.
14.On 12 March 1991 the respondent carried out root canal treatment to the patient’s upper left lateral incisor.
15.... On 25 March 1991 the respondent’s employee carried out further root canal treatment.
16.The patient suffered pain due to the operations conducted by the respondent and his employee and sought pain relief from the respondent.
17.... The patient’s dental records held by the respondent contained the information that the patient was allergic to penicillin.
18.The patient also advised the respondent’s receptionist when she sought such pain relief that she was allergic to penicillin.
19.... The respondent prescribed amoxyl (a penicillin-related drug) for the patient. The patient took the medication which caused an allergic reaction.
20.On 4 April 1991 the respondent’s employee carried out two apicectomy procedures at the direction of the respondent. The first procedure was to the left incisor, the second procedure was to the right incisor.
21.... The apicectomy procedures were conducted within too short a time after the root canal treatment to permit adequate assessment of that treatment. As a result of the procedures carried out by the respondent and his employee the patient’s face became very swollen. She had considerable pain and sought emergency treatment from another dental practitioner. The patient has continued to suffer from pain from the treatment.
22.In his treatment of the patient the respondent:
(a)failed to obtain accurate information concerning the patient and developed his treatment plan in part upon an inaccurate understanding that the patient was to undergo a hysterectomy;
(b)did not follow the normal, usual and recommended investigative procedures in his examination and assessment of the patient in that the respondent failed to carry out pulp, vitality, percussive or temperature tests;
(c)placed some reliance for his assessment and treatment of the patient on a “dermatron” machine, use of which equipment was not in accordance with ordinary and usual dental practice and was unscientific;
(d)became so preoccupied with his non-conventional theories and devices that it obscured his clinical objectivity and judgment;
(e)failed to advise the patient that he was placing reliance on an unconventional means of assessment and was not following normal, usual and recommended practice.
(f)wrongly considered that x-rays taken by him indicated infection whereas such x-rays did not show any significant infection and were not a basis for surgical intervention;
(g)made treatment recommendations which were not justified on the information available to him;
(h)treated the patient by causing to be carried out two apicectomies which were unnecessary.
(i)did not follow the normal, usual and recommended practice of not conducting apicectomies until a much longer period of time had elapsed after the conduct of root canal treatment on the same tooth;
(j)having information in his possession that the patient was allergic to penicillin, prescribed the drug amoxyl, which is a related penicillin antibiotic, for the patient.”
In concluding that the appellant had been guilty of unprofessional conduct the Tribunal found that all the findings of fact asserted in paragraphs 1 to 21 had been made out to the required degree of satisfaction. The Tribunal also determined that the allegations and inferences in paragraph 22 had also been made out to the degree of satisfaction required.
In essence, therefore, the Tribunal determined that at the time that Mrs Druce consulted the appellant the appellant subscribed to the theory that remedial work done to various teeth in a female patient could benefit women who were at the same time suffering gynaecological problems and who were liable to undergo hysterectomies. It also found that since 1977 the appellant held the belief that a dermatron machine could be used as a diagnostic aid in a general dental practice.
When Mrs Druce consulted the appellant she was unaware of any dental problems. During her consultation she advised the appellant that she had recently seen a gynaecologist who had advised her that she had some abnormal cells but that she had been advised by the medical specialist not to be concerned and to see a specialist at a later time.
During that same consultation the appellant told Mrs Druce that he had an interest in jaw surgery and that jaw surgery had been successful in relation to gynaecological conditions.
The appellant took x-rays of the patient’s teeth and jaw. The x-rays showed no dental problem and in particular showed no sign of infection.
He also conducted a test of Mrs Druce using the dermatron machine.
Notwithstanding the absence of radiocological evidence of infection, the appellant told Mrs Druce that she did have an infection in her gum area and that she ought to undergo surgery as a matter of urgency. On the day after that consultation the appellant again told Mrs Druce that treatment was necessary and urgent and that he could arrange for surgery to be carried out by Dr Pittman. The surgery he recommended at that stage was an apicectomy. About a week later the appellant carried out root canal treatment to one of Mrs Druce’s teeth and nearly two weeks later Dr Pittman carried out a further root canal treatment.
On 4 April 1991, at the direction of the appellant, Dr Pittman carried out two apicectomies. The procedures were to the left and right incisor teeth.
The Tribunal found that such procedures should not have been carried out so soon after the root canal treatment because sufficient time had not been allowed to permit adequate assessment on Mrs Druce’s teeth.
During the course of treatment by the appellant the appellant was advised by Mrs Druce that she was allergic to penicillin. Notwithstanding that advice the appellant prescribed amoxyl which is a penicillin related drug for pain which Mrs Druce was suffering. She took the medication and suffered an allergic reaction.
After she had undergone the apicectomies Mrs Druce’s face became very swollen and she suffered considerable pain, so much so that she sought emergency treatment from another dental practitioner. She continued to suffer pain after the treatment.
The Tribunal determined that the treatment to which I have referred was inappropriate for a number of reasons. It determined that the respondent failed to obtain accurate information concerning the patient and did not follow the normal and usual investigative procedures in his examination. Instead it found he had regard to the findings on the dermatron machine, the use of which was not in accordance with ordinary and usual dental practice and the use of which was unscientific.
It also found that the appellant failed to properly read the x-rays, which he had taken, and wrongly concluded that the x-rays did show signs of infection.
Moreover the Tribunal found that the appellant recommended the course of treatment to which Mrs Druce agreed not for reasons connected with her dental well being but because he believed that the treatment would be in her medical interests in that it would assist her in relation to a hysterectomy which she was to undergo. It found, however, that it was never in her contemplation, nor the contemplation of her medical specialist, that she would undergo a hysterectomy.
It also found that not only did the appellant wrongly recommend the treatment to which the patient submitted but he did so for the wrong reasons, namely, for medical rather than dental reasons. Moreover, it found that he had inappropriately prescribed a penicillin based drug for pain relief in circumstances where he knew or ought to have known that she was allergic to penicillin.
In my opinion there are no ambiguities about the findings of the Tribunal. The Tribunal have made it clear that it believed that Dr Bartram was actuated by inappropriate or improper motives. He recommended the wrong treatment for the wrong reasons. He failed to carry out basic investigative procedures before recommending that treatment and he failed to have regard to evidence which was available which contra indicated the recommendations which he made.
His recommendations caused the patient to suffer pain and to undergo operative procedures which were unwarranted.
His recommendations could have done nothing for Mrs Druce’s gynaecological condition but in any event she did not have the condition which gave rise to the recommendation for the treatment.
The findings of the Tribunal, in my opinion, show a very serious departure from the standard expected of a dental practitioner. The findings clearly warranted, in my opinion, an ultimate finding that the appellant had been guilty of unprofessional conduct.
It has to be said that in the hearing before the Tribunal the appellant claimed that he had recommended the treatment of Mrs Druce for reasons unconnected with her gynaecological or medical condition. He also said he paid little or no reliance upon the dermatron machine in arriving at his recommendations.
That evidence was contrary to the evidence he had given in civil proceedings which had been heard by Judge Lowrie in the District Court prior to the hearing in the Tribunal. In those civil proceedings he had made it clear that his recommendations for the treatment which Mrs Druce underwent was based upon his belief that he could assist Mrs Druce in relation to her gynaecological problems. He also placed significant reliance upon the dermatron machine.
The Tribunal was entitled to reject his evidence in circumstances where it contradicted his previous evidence on the same matter. Indeed, in my opinion, it was almost inevitable that his evidence before the Tribunal had to be rejected.
There was no doubt, in my opinion, that the Tribunal was right to conclude that the appellant was guilty of unprofessional conduct.
There were two matters, however, that Mr Borick continued to pursue in relation to the finding of unprofessional conduct which he said were relevant in the determination of the appropriate orders which should have been made by the Tribunal. First, he said it was inappropriate to visit any negligence or any improper conduct on the part of Dr Pittman on the appellant. It was suggested in the Tribunal that Dr Pittman knew when he carried out the apicectomy that there was no infection in the sites which he was exploring, but notwithstanding continued to curette the area.
Clearly, if Dr Pittman was aware that there was no infection in the sites subject to the surgical procedure he should not have continued to carry out the apicectomy. He should have recognised that the treatment plan was wrong and the procedure was not warranted. However, if in fact he continued with the surgery, notwithstanding the absence of infection, that cannot be visited upon Dr Bartram. Certainly Dr Bartram’s recommendations had given rise to the surgical intervention but it cannot be said, and in all fairness to the Tribunal it was not said by them, that Dr Bartram ought to be responsible for any impropriety on the part of Dr Pittman.
The Tribunal, I think, properly recognised that to be the case in a finding which they made in the following terms:
“Nor do we think that, because Dr Bartram was not directly responsible for the performance of the apicectomies, he can escape responsibility. True, he was not responsible for how they were done, but he was certainly responsible for the fact that they were done. He cannot escape by saying that Dr Pittman did them. We reject Mr Halliday’s submission to that effect. There can be no doubt on the evidence that the reason why Dr Pittman carried out the apicectomies was that Dr Bartram told him they were necessary because of the dermatron readings and the gynaecological condition - two matters about which Dr Bartram and Dr Pittman had no knowledge or expertise.”
With respect I agree with that finding and I think that that finding demonstrates that the Tribunal was careful to identify exactly what Dr Bartram was responsible for and that for which he was not responsible.
The second matter which Mr Borick referred to was the evidence of a Dr Goodhart. Dr Goodhart was called on behalf of the appellant and said that there was some indication, in the x-rays, that there was infection present.
However, he said that the possibility that the x-rays demonstrated infection would give rise to three alternative approaches. The first approach would be to simply wait and see whether any further symptomatology or infection developed. Alternatively it might possibly be appropriate to carry out root canal treatment on the teeth subject to the possible infection and then to wait for some six to twelve months and see whether any further infection developed. The third alternative was to carry out those root canal treatments and follow up with apicectomies.
It was his opinion that it would be appropriate to do nothing. The third approach could only be justified, he said, if the patient demanded that course of treatment. There is no suggestion in this matter that the patient demanded any such treatment at all. She was not told that the treatment to which she was to be subjected was not for her dental well being but for a medical condition which she did not suffer.
I do not think Dr Goodhart’s evidence takes the matter very far from the appellant’s point of view. It cannot be used for the purpose of denying the primary finding made by the Tribunal and that is that the x-rays did not demonstrate any infection.
The thrust of the appellant’s submissions was that the order made by the Tribunal suspending the appellant’s registration by removing his name for a period of six months was manifestly excessive.
In particular it was put that the Tribunal either failed to have regard or gave insufficient weight to five particular matters.
First, that Dr Bartram had practised dentistry for about twenty years and this was the first occasion that he had been brought before a Tribunal on a charge of unprofessional conduct. It was frankly admitted by the appellant that Dr Bartram had previously been the subject of a complaint but the complaint did not proceed. He had also been sued on two occasions. Once in connection with a claim for professional negligence on his part and once in relation to a claim for professional negligence on the part of an employee. Those matters apart, however, it was said that the Tribunal failed to take into account his otherwise good record. Insufficient consideration was also given, so it was claimed, to the fact that his conduct involved only one patient and only one patient suffered thereby. Thirdly, it was put, that the conduct complained of occurred in 1991 and the finding of unprofessional conduct was made in 1998. It was particularly important that no other complaints were made about Dr Bartram in the intervening seven years. Fourthly, it was submitted, that Dr Bartram had given and undertaking to the Tribunal not to use the dermatron machine in his dentistry practice. Fifthly, that insufficient regard was had to the fact that Dr Bartram had been the subject of much adverse publicity arising out of the civil proceedings before Judge Lowrie and the proceedings before the Tribunal. Mr Borrick also relied upon the submission that Dr Bartram should not be held responsible for Dr Pittman’s negligence and some regard should be had to the fact that Dr Goodhart observed possible signs of infection on the x-rays. I have commented on those matters already. Lastly, it was put that Dr Bartram had suffered very serious financial consequences as a result of these matters. Directly he had incurred legal fees to the extent of $63000. Indirectly he had lost a further $56000 because of his absence from his practice and to attend before the Tribunal on this appeal. Indirectly he has also suffered a substantial loss of goodwill in relation to his practice. If the suspension for six months is to stand he will further suffer very significant financial losses.

The appellant was entitled to bring to the attention of the Tribunal and bring to my attention his otherwise good record. He was entitled to rely upon that for the purpose of asking the Tribunal to impose a lesser sentence than it otherwise would have if findings of unprofessional conduct had been made against him. I have no doubt that the Tribunal took that matter into account. It also took into account the fact that the conduct complained of involved only one patient and that that conduct occurred in 1991 and that in the intervening period the appellant had not been subject to any other complaints.
All of those matters were relevant, in my opinion, in determining the appropriate orders under the Act.
I am less sure that much weight could have been put upon the submission that the appellant has suffered significant financial detriment as a result of this charge. The charge, in my opinion, was never defensible and certainly not in the way in which the defence proceeded before the Tribunal. The appeal against a finding of unprofessional conduct was never likely to proceed.
In my opinion, the defence by the appellant of the charge and the prosecution of the appeal shows a lack of insight on the part of the appellant. In my opinion he has brought the significant costs and expenses which he has suffered upon himself by failing to appreciate the impropriety of his own conduct.
As I pointed out to Mr Borick during the appeal, and before his client abandoned the appeal against the finding of unprofessional conduct, the failure of his client to recognise the impropriety of his conduct demonstrates that he has little insight into his own conduct. He was not able to recognise until some time into the hearing of the appeal that his conduct was such that it required a finding of unprofessional conduct.
So also, in my opinion, has he brought the publicity which he has gained upon his own head. He chose to defend the proceedings before Judge Lowrie upon a basis which was, with respect, wholly untenable. His defence before the learned Judge was the reason for the adverse publicity. His continual refusal to acknowledge his own improper conduct is the reason why he has suffered further publicity.
I am not inclined to think that too much sympathy can attach to the appellant in relation to the financial detriment and the adverse publicity which he has suffered by reason of his own conduct.
The Tribunal was entitled, upon a finding of unprofessional conduct, to exercise any one of the following powers.
It could have reprimanded the appellant; ordered him to pay a fine not exceeding $5000; imposed conditions restricting his right to practise dentistry; suspend his registration by removing his name from the appropriate register for a period not exceeding one year or cancel his registration. The Tribunal was entitled to exercise more than one of those powers if it thought it appropriate.
On this appeal the respondent claims that not only are the orders imposed by the Tribunal incapable of being criticised by the appellant, the orders were in fact merciful. The respondent indicated that it asked the Tribunal to cancel the appellant’s registration. Notwithstanding the refusal by the Tribunal to accede to that request the respondent submitted that such an order would still be the appropriate order. There was, however, no cross appeal against the order made by the Tribunal and therefore I cannot attach too much weight to that submission.
I believe the appellant was guilty of a very serious departure from the standard of professional conduct expected of a dentist. I believe that he deliberately avoided carrying out the appropriate investigative procedures so as to enable himself to advise Mrs Druce that she ought to undergo the treatment that she did.
I believe he deliberately refrained from telling her the reasons why he believed that she should have the treatment because he knew that if he told her the reasons which he thought appropriate she would decline to accept his recommendations.
I believe that he recommended this treatment for reasons quite outside his own specialty. The reasons, in my opinion, do not support the advice he gave his patient.
In circumstances where a professional person had deliberately misled his client or patient for the purpose of having them undergo a course of treatment unconnected with that person’s specialty, the Tribunal had no option but to view the matter very seriously.
Whilst I make no comment upon the respondent’s submission that the Tribunal ought to have ordered the cancellation of the appellant’s registration, I do agree that the orders which were imposed were not, in the circumstances of the appellant’s conduct, inappropriate.
In my opinion, the Tribunal would have erred if it had not at least suspended the appellant’s registration and would have erred if it had not suspended his registration for at least six months.
The orders which were otherwise imposed upon the appellant, in my opinion, were appropriate. It is clear from the appellant’s behaviour in 1991 and his behaviour since then that the appellant needs reinforcing in relation to basic practices. It is also clear that it is in the public interest that that occur and, further, it is in the public interest that he be subject to the form of supervision which is otherwise provided for in the Tribunal’s orders.
In my opinion the appeal should be dismissed.

[1998] SASC 6940

16 November 1998