DENTAL BOARD OF AUSTRALIA and DHILLON

[2016] WASAT 78

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION:   DENTAL BOARD OF AUSTRALIA and DHILLON [2016] WASAT 78

MEMBER:   JUSTICE J C CURTHOYS (PRESIDENT)

MR D MACLEAN (MEMBER)
DR C PEARS (SENIOR SESSIONAL MEMBER)

HEARD:   10, 11 AND 12 FEBRUARY 2016

DELIVERED          :   1 JULY 2016

FILE NO/S:   VR 238 of 2014

BETWEEN:   DENTAL BOARD OF AUSTRALIA

Applicant

AND

RANDEEP SINGH DHILLON
Respondent

Catchwords:

Vocational regulation - Dental practitioner - Disciplinary proceedings - Professional misconduct - Unprofessional conduct - Failure to disclose criminal charges and convictions pursuant to s 130 of the National Law - Failure to maintain adequate dental records - Breach of the Code of Conduct for registered health professionals - Providing deliberately misleading claims and information regarding dental treatment for a patient

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 5, s 39, s 41, s 109(1)(b), s 130, s 130(3), s 196(1)(b), Sch 5
Restraining Orders Act 1997 (WA), s 6(1), s 61(1)

Result:

Dental practitioner found guilty of unprofessional conduct and professional misconduct

Summary of Tribunal's decision:

On 19 December 2014, the Dental Board Australia filed an application with the Tribunal seeking disciplinary orders against Dr Randeep Singh Dhillon.

In consideration of all of the evidence before it, the Tribunal determined that:

1) Dr Dhillon failed to give the Dental Board notice of his criminal charges and convictions pursuant to s 130(3)(a) and s 130(3)(b) of the Health Practitioner Regulation National Law; and that this conduct in breaching the National Law was of a lesser standard than might reasonably be expected of a dentist by the public and thereby constituted unprofessional conduct;

2)      Dr Dhillon's clinical records of treatment for 28 patients, as submitted by him at the request of HFB in conducting a review of his claims, and to the Dental Board's investigators, were inadequate; and that his overall conduct in relation to his records breached the Code of Conduct for registered health practitioners as they were substantially below the standard reasonably expected of a dentist of an equivalent level of training and experience and thereby constituted professional misconduct.

3) Dr Dhillion made entries in clinical notes of treatment and dental services for a patient which had not in fact been provided to that patient. In providing deliberately misleading claims and information, the Tribunal found that Dr Dhillon's conduct was sufficiently serious to constitute professional misconduct pursuant to s 196(1)(b)(iii) of the National Law.

Category:    B

Representation:

Counsel:

Applicant:     Mr H Quail

Respondent:     Mr J Neo

Solicitors:

Applicant:     Tottle Partners

Respondent:     Wang Lawyers Pty Ltd

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Legal Profession Complaints Committee and Wells [2014] WASAT 112

NOM v Director of Public Prosecutions (2012) 38 VR 618

Rejfek v McElroy (1965) 112 CLR 517

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1On 19 December 2014, the Dental Board Australia (the Board) filed an application with the Tribunal seeking disciplinary orders against Dr Randeep Singh Dhillon on the grounds that he had:

1)failed to disclose criminal convictions to the Board and made a false declaration in his application to renew registration;

2)kept inadequate clinical records; and

3)made claims for services not provided to Patient AS and had provided false or misleading information to the Australian Health Practitioner Regulation Agency (AHPRA) in relation to Patient AS.

The procedural history

2On 14 July 2015, Dr Dhillon filed a response to the application.  The response was filed by Wayne Burg & Associates on behalf of Dr Dhillon.  This was the only response filed by Dr Dhillon in these proceedings.

3Dr Dhillon's response of 14 July 2014 addressed only some of the issues in relation to grounds set out in the Board's application.

4An amended application was filed by the Board in November 2015.  This amendment deleted an allegation made in the original application and made some other minor amendments. 

5On 21 December 2015 and 10 February 2016, the Board filed further amended applications and a statement of issues, facts and contentions (SIFC).  Again, the amendments were minor.

6The minor amendments by the Board did not alter the substance of the allegations against Dr Dhillon.  Dr Dhillon was well aware of the allegations made against him from the date of the filing of the original application on 19 December 2014.

7On 30 June 2015, the Tribunal ordered that Dr Dhillon must file with the Tribunal and give to the Board:

(a)a response to each of the grounds set out in the [Board's] application; and

(b)an indexed and paginated bundle in chronological or other logical order of any documents on which he proposed to rely on in the proceedings not in the Board's bundle.

8On 31 July, 13 October and 10 November 2015, further orders were made in relation to the filing of specific documents by Dr Dhillon.  Dr Dhillon failed to comply with those orders.

9The Tribunal thanks the Board's solicitors for preparing a s 24 bundle of documents on behalf of Dr Dhillon from those documents which Dr Dhillon produced prior to the hearing (Exhibit B).

10On 13 October 2015, the Board's application was listed for final hearing at 10 am on 10 February 2016 for a duration of three days. 

11On the first day of the hearing Dr Dhillon turned up with three suitcases of documents which he claimed to be relevant.  In the course of cross­examination, Dr Dhillon sought to refer to those documents and to print out other documents.  He had had many opportunities to provide any relevant documentation to Hospital Benefit Fund (HBF), to AHPRA and pursuant to the multiple orders of this Tribunal.  The Tribunal refused to allow Dr Dhillon to refer to the documents (T:64­65; 12.02.16). 

12The community does not have unlimited resources to provide justice to the citizens of Western Australia.  The way that tribunals and courts have sought to make the best use of the limited resources available is to make orders requiring compliance with timetables.  Parties cannot assume that they will be granted extensions and adjournments indefinitely.  To do so is unfair both to the community and to those who do comply with orders. 

13In his closing submissions, Dr Dhillon conceded that he had failed to comply with the Tribunal's orders, causing substantial delay to these proceedings (Dhillon closing submissions at paragraph 3).  The Tribunal does not accept that his explanation for the delay satisfactorily accounts for the length of the delay.  However, the Tribunal does not draw any adverse inference against Dr Dhillon from his delays.

14At the hearing on 10 February 2016, Dr Dhillon was represented by Mr Neo.

15Both parties filed written closing submissions. 

16Dr Dhillon's closing submissions were prepared by Mr Neo.

Onus and standard

17The Board bore the onus of proof.  In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:

The Committee bears the onus of proof.  It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply.  That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out:  Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].

(See also Rejfek v McElroy (1965) 112 CLR 517 (Reifek))

18In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.

19The standard of proof required in a civil case where serious allegations are made was stated in Rejfek, where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:

The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.

20In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:

… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact.  The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.  Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

Professional misconduct

21The term 'professional misconduct' is defined in s 5 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) as conduct which 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[.]

22The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 3 of the National Law as:

[P]rofessional 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[.]

23This definition includes the various matters identified in subparagraphs (a) to (h) of that definition, in particular subparagraph (b) which provides:

a contravention by the practitioner of ­

(i)a condition to which the practitioner’s registration was subject; or

(ii)an undertaking given by the practitioner to the National Board that registers the practitioner[.]

24The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113:

…

524Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters.  The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

525The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]

…

527Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).

…

Unprofessional conduct

25Section 3 of the National Law provides that unprofessional conduct of a registered health practitioner 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, and includes:

(a)[a] contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention[.]

Unsatisfactory professional performance

26The term 'unsatisfactory professional performance' is defined in s 5 of the National Law as meaning:

[T]he 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[.]

The Board's witnesses

27Evidence was given on behalf of the Board by Ms Kim Firth, Manager of Registrations in the Western Australian Regional Office of APRHA, (Exhibit C) and by Patient AS (Exhibit F). 

28Patient AS came across as an honest witness who was endeavouring to state the truth. 

29Expert evidence was provided by Dr Tim Lego (Exhibit G).  Dr Lego's curriculum vitae appears at pages 66­68 of Exhibit G.  Dr Lego briefly set out his qualifications in his oral evidence (T:2; 11.02.16).  His qualifications as an expert were not challenged.  The Tribunal accepts that Dr Lego had the appropriate qualifications to qualify as an expert witness.

Dr Dhillon's evidence

30Dr Dhillon gave oral evidence. 

31Dr Dhillon gave his oral evidence in an evasive manner.  He had difficulty giving straightforward answers to even the simplest questions (for example, T:8; 12.02.16).  Considering both the manner in which Dr Dhillon gave his evidence and the answers themselves, by reference to the evidence of other witnesses and the documentary evidence, the Tribunal has concluded that Dr Dhillon was not a credible witness and his evidence should not be accepted.  In particular, whenever the evidence of Dr Dhillon and Patient AS conflicts, we prefer the evidence of Patient AS.

Registration

32It was not in issue that:

1.[Dr Dhillon] holds General registration, and has been registered in Australia since 2005.

2.[Dr Dhillon] has the following qualifications:

(a)ADC Certificate;

(b)Bachelor Dental Surgery (BDS).

Failure to properly disclose matters relevant to criminal proceedings

33In relation to Dr Dhillon's alleged failure to properly disclose matters relevant to criminal proceedings, the Board's SIFC stated:

…

3.On or about 5 February 2014, [Dr Dhillon] was charged with 4 counts of breach of a violence restraining order, contrary to section 61(1) of the Restraining Orders Act 1997 (WA), an offence punishable by 12 months of imprisonment or more (the Charges).

4.On or about 25 March 2014, [Dr Dhillon] pleaded guilty to 4 counts of breach of a violence restraining order, contrary to section 61(1) of the Restraining Orders Act 1997 (WA), an offence punishable by 12 months of imprisonment or more (the Convictions). He was fined a global amount of $400 and spent convictions were recorded by the Court.

5.[Dr Dhillon] failed to give the [Board] notice of the Charges or the Convictions within 7 days of becoming aware of those events, or at all, as required by section 130(3) of the National Law.

6.On or about 26 September 2014 he submitted an online application (the Application) for the renewal of his registration as a dental practitioner to the Australian Health Practitioner Regulation Agency, which has statutory responsibility for registration of health practitioners on behalf of the applicant.

7.[Dr Dhillon] was required by section 109(1)(b) of the National Law to declare to the applicant details of any change in his criminal history which occurred in his preceding period of registration.

8.In the Application:

(a)[Dr Dhillon] was asked:

'During your preceding period of registration, has there been any change to your criminal history that you have not disclosed to AHPRA?'

(b)[Dr Dhillon] answered:

'No'

(c)[Dr Dhillon] did not disclose the Charges or the Convictions.

(d)The answer was false.

…

The charges and the convictions

34On or about 5 February 2014, Dr Dhillon was charged with four offences under s 6(1) of the Restraining Orders Act 1997 (WA) (Restraining Orders Act). On 28 March 2014, he pleaded guilty to the offences and was convicted.

35Dr Dhillon's charges and convictions under s 6(1) of the Restraining Orders Act, as set out in paragraphs 3 and 4 of the Board's SIFC, appear in Dr Dhillon's 'Court Outcomes History' which appears at page 386 of Exhibit A. A transcript of Dr Dhillon's appearance before the Magistrate is Exhibit I.

36Section 61(1) of the Restraining Orders Act provides:

(1)A person who is bound by a violence restraining order and who breaches that order commits an offence.

Penalty: $6 000 or imprisonment for 2 years, or both.

That is, the offences are punishable by 12 months' imprisonment or more.

Notice

37Section 130 of the National Law provides:

(1)A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board that registered the practitioner or student written notice of the event.

…

(3)In this section -

relevant event means -

(a)in relation to a registered health practitioner -

(i)the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or

(ii)the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment[.]

38Dr Dhillon accepts that he did not give the Board notice of the charges or the convictions within seven days, as required by s 130(3) of the National Law (T:70; 12.02.16; Dhillon closing submissions at paragraph 123).

39Although Dr Dhillon ultimately did give notice on 16 September 2014, it was only after AHPRA informed him that it was aware of the charges and convictions, and then only after a further delay.

40Dr Dhillon submitted that had he reported the event of his convictions to the Board, this would not have resulted in any changes being made to his registration status or any other forms of punishment except perhaps for a reprimand or caution.

41An applicant is required to give notice.  It is for the Board to determine what action it takes as a result of a charge or conviction.

42The Tribunal finds that Dr Dhillon:

a)failed to give the Board notice that he had been charged with a criminal offence punishable with a term of imprisonment of 12 months or more, within seven days, as required by s 130(3)(a) and s 130(3)(b) of the National Law;

(b)failed to give the Board notice that he had been convicted of a criminal offence punishable with a term of imprisonment of 12 months or more, within seven days, as required by s 130(3)(a) and s 130(3)(b) of the National Law.

43The Tribunal finds that Dr Dhillon's conduct in breaching the National Law is of a lesser standard than might reasonably be expected of a dentist by the public, and that it constitutes unprofessional conduct within subsection (a) of the definition of 'unprofessional conduct'.

Dr Dhillon's application for registration ­ 2014

44Section 109(1)(b) of the National Law provides:

(1)An application for renewal of registration must include or be accompanied by a statement that includes the following -

(b)details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration[.]

45The 2014 Online Registration Form for Dental Practitioners in Australia contained the following question:

7.During your preceding period of registration, has there been any change to your criminal history that you have not yet declared to AHPRA?

46Below that question there was an annotation which stated:

Criminal history includes the following, whether in Australia or overseas, at any time:

•every conviction of a person for an offence

•every plea of guilty or finding of guilt by a court of the person for an offence, whether or not a conviction is recorded for the offence, and

•every charge made against the person for an offence.

Under the National Law, spent convictions legislation does not apply to criminal history disclosure requirements.  Therefore, you must disclose your complete criminal history as detailed above, irrespective of the time that has lapsed since the charge was laid or the finding of guilt was made.  The Board will decide whether a health practitioner's criminal history is relevant to the practice of the profession.  Do not provide copies of a criminal history check.  AHPRA will conduct a check on your behalf.

For more information, view the full registration standard online at 2014 Online Registration Form contained a further question:

8.Do you have any criminal history that you have not disclosed to AHPRA (other than that disclosed in the question above)?

48Below that question there was an annotation which stated:

In order for the Board to assess your suitability for registration, you must disclose your full criminal history.  If you have any criminal history which you have not disclosed to AHPRA, please answer 'Yes' to this question and provide details.

Criminal history includes the following, whether in Australia or overseas, at any time:

• every conviction of a person for an offence

• every plea of guilty or finding of guilt by a court of the person for an offence, whether or not a conviction is recorded for the offence, and

•every charge made against the person for an offence.

Under the National Law, spent convictions legislation does not apply to criminal history disclosure requirements.

Therefore, you must disclose your complete criminal history as detailed above, irrespective of the time that has lapsed since the charge was laid or the finding of guilt was made.  The Board will decide whether a health practitioner's criminal history is relevant to the practice of the profession.  Do not provide copies of a criminal history check.  AHPRA will conduct a check on your behalf.

For more information, view the full registration standard online at www, dentalboard.gov. au/registration-standards.

49The Tribunal accepts the evidence of Ms Firth (Exhibit C at paragraph 11, attachment KF 1) and finds that the 2014 Online Registration Form for Dental Practitioners was as set out above.

50Dr Dhillon submitted that a letter written by him by the Board dated 16 September 2014 (Exhibit A page 204) constituted notice.  The letter of 16 September 2014 relevantly stated:

Violence Restraining Order (VRO) 201300890

This Violence Restraining Order was issued on behalf of my ex-wife (Vanessa Marie Duncher Dhillon).  When I was notified of the fact that she had issued one against me I did not inform the National Board.  I did not think that the VRO had any relevance to my dental practice as it was not the result of a conviction or an offence committed by me.

I breached this VRO on 25 March 2014 because I had attempted to communicate with her.  I was not aware of the conditions attached to the VRO and this led to the breach.  I have paid a fine of $400.00 for breaching the VRO and have received a spent conviction.

I did not inform the National Board of the breach because of the knowledge that I was not required to do so due to the nature of the Spent Conviction.

51On or about 26 September 2014, Dr Dhillon submitted his application for the renewal of his registration as a dental practitioner using the 2014 Online Registration Form for Dental Practitioners (Exhibit A Volume 1 page 314; Ms Firth Exhibit C at paragraph 12).  Dr Dhillon answered 'No' to questions 7 and 8.

52In his closing submissions, Dr Dhillon argued, in effect, that because of his letter of 16 September 2014 to AHPRA (Exhibit A page 209), he had disclosed a change in his criminal history and that the correct answer to questions 7 and 8 was therefore 'No'.  In effect, his answers to questions 7 and 8 were correct because on 16 September 2014, he had declared or disclosed his criminal history to AHPRA.  Therefore, there had not been any change in his criminal history that had not been declared to AHPRA.

53The Tribunal accepts Dr Dhillon's argument in his closing submissions. The Tribunal finds that Dr Dhillon did not breach s 109(1)(b) of the National Law because by the time he submitted the registration form, he had declared his criminal history to the Board.

54Dr Dhillon's case at trial was rather different to his closing submissions. 

55In Dr Dhillon's response dated 14 July 2015, he relevantly stated:

…

v)He was given a minor fine and received a global Spent Conviction for all offences.

vi)He understood that a Spent Conviction meant that he did not need to disclose the offence.

vii)In answering the request for renewal of his registration, he understood that it was not necessary to disclose the convictions as the Spent Convictions Act.

That is, Dr Dhillon did not submit that the letter of 16 September 2014 constituted notice for the purposes of s 109(1)(b) of the National Law.

56Dr Dhillon's case at trial was that he understood that it was not necessary to disclose his convictions because of the fact that the Magistrate's sentencing remarks included 'You have no previous convictions.  You're a person of good standing in the community …' (Dhillon closing submissions at paragraphs 12(a) and 13). 

57In Magistrate Hogan's sentencing comments, she said:

In sentencing, I'm taking into account the fact that you've entered an early plea of guilty.  That entitles you to a 25 per cent discount.  I take into account the fact that there is nothing abusive or threatening or anything of that nature in these texts.  They were outside the bounds of the restraining order, so they are breaches.  I've decided to impose a fine of $400.  That's a single fine for the four offences.  The costs are $146.90 and I will make a spent conviction order.  You have no previous convictions.  You're a person of good standing in the community, with your - the fact that you've got employees and a dental practice.  I don't see that there's any public interest in having you left with a criminal conviction as a result of this behaviour.  The order is now a consent order and you're now well aware that these matters are to be done through legal representatives[.]

58There is nothing in Magistrate Hogan's sentencing remarks that would provide a basis for a belief by Dr Dhillon that he did not have to disclose the charges and his convictions. 

59In cross­examination (T:75­76; 12.02.16), Dr Dhillon strongly denied writing the letter of 16 September 2014. 

60Dr Dhillon's closing submissions at paragraph 12(b)(v) stated:

It is conceded that Dr Dhillon must have either written that letter or caused it to be written on his behalf by someone and that letter had, despite being way out of date, complied with the Board's requests for particulars of the offences recorded against Dr Dhillon on 25 March 2016.

61Dr Dhillon was prepared to give answers in cross­examination that suited his perceived needs at the time.  He was prepared to deny that he sent the letter of 16 September 2014 when he thought it was adverse to his interests, but accepted that he had sent it when he realised it was very much in his interests to have sent it.  This reflects adversely on his credibility.

62The Tribunal finds that Dr Dhillon did not make a false declaration, in an online application for renewal of his registration as a dental practitioner, regarding his criminal history, in circumstances where he was required to disclose his criminal history by s 109(1)(b) of the National Law. This is because Dr Dhillon had declared his criminal history in his letter to AHPRA of 16 September 2014.

Failure to keep proper records

63In relation to Dr Dhillon's alleged failure to keep proper records, the Board's SIFC stated:

9.[Dr Dhillon] maintained clinical notes for 28 patients [as set out below] … that were inadequate and substantially below the standard to be expected of a dental practitioner.

64The 28 patients were:

LM	AR
TSP	JC
JG	BH
AS	ES
LW	AL
BJ	AB
JA	SW
SC	JM
CH	C C
MM	ML
GJ	MY
FM	MW
RN	AW
NC	BW

10.On 10 January 2014 he produced to a private health insurer conducting a review of his claims those inadequate clinical notes.

11.The failure to maintain adequate clinical notes constitutes a breach of paragraphs 2.2(e), 8.4(a) and 8.4(d) of the [the Board's] 'Code of conduct for registered health practitioners'.

Code of Conduct for registered health practitioners

65The Code of Conduct for registered health practitioners (Code of Conduct) states at section 2.2(e):

2.2Good Care

Maintaining a high level of professional competence and conduct is essential for good care.  Good practice involves:

Maintaining adequate records (see Section 8.4) Health records)

66Sections 8.4 (a) and 8.4(d) of the Code of Conduct states:

Maintaining clear and accurate health records is essential for the continuing good care of patients or clients.  Practitioners should be aware that some National Boards have specific guidelines in relation to records.  Good practice involves:

a)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[; and]

…

d)ensuring that records are sufficient to facilitate continuity of care[.]

The Guidelines on dental records

67The Guidelines on dental records (Guidelines) issued by AHPRA on 1 July 2010 pursuant to s 39 of the National Law (Exhibit G Annexure A) relevantly provides:

…

2General principles to be applied

2.1A dental record must be made at the time of the appointment or as soon thereafter as practicable.

2.2Entries on a dental record must be made in chronological order.

2.3Entries on a dental record must be accurate and concise.

2.4Dental records must be understandable readily by third parties (particularly another dental practitioner).  Third party access is subject to the application of the provisions of privacy legislation.

2.5Dental records must be retrievable promptly when required.

2.6Dental records must be stored securely and safeguarded against loss or damage including a secure backup of electronic records.

2.7Dental practitioners should be aware of local privacy laws that govern the retention of records, which require retention from 7­10 years.

2.8All comments must be couched in objective, unemotional language.

2.9Dental practitioners should be aware of the requirements in the Board's Code of Conduct at 3.16 regarding closing a practice.  The Code requires the transfer or appropriate management of all patient records in accordance with the legislation governing health records in the jurisdiction.

2.10Corrections made to records must not remove the original information,

2.11A treating dental practitioner must not delegate responsibility for the accuracy of medical and dental information to another person.

3Information to be recorded

The following information forms part of the dental record and is to be recorded and maintained, where relevant:

3.1Patient details

a).identifying details of the patient

b).completed and current medical history including and any adverse drug reactions

3.2Clinical details

a). for each appointment, clear documentation describing:

i).the date of visit

ii).the identifying details of the practitioner providing the treatment

iii).information about the type of examination conducted

iv).the presenting complaint

v).relevant history

vi).clinical findings and observations

vii).diagnosis

viii).treatment plans and alternatives

ix).consent of the patient, client or consumer

x),all procedures conducted

xi).instrument batch (tracking) control identification, where relevant

xii).a medicine/drug prescribed, administered or supplied or any other therapeutic agent used (name, quantity, dose, instructions)

xiii).details of advice provided

b).unusual sequelae of treatment.

c).radiographs and other relevant diagnostic data; digital radiographs must be readily transferable and available in high definition digital

d).other digital information including CAD-CAM restoration files

e).instructions to and communications with laboratories

3.3Other details

a).all referrals to and from other practitioners

b).any relevant communication with or about the patient, client or consumer

c).details of anyone contributing to the dental record

d).estimates or quotations of fees

68The Code of Conduct and the Guidelines are a code and a guideline respectively, for the purposes of s 41 of the National Law.

69Section 41 of the National Law provides:

An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.

Dr Dhillon's dental records

70On 25 October 2013, HBF requested Dr Dhillon to produce a copy of the original clinical records in relation to the 28 patients set out in the table above (Exhibit A pages 397­398).

71On 10 January 2014, Dr Dhillon provided documents to HBF in response to its request of 25 October 2013.  Those records appear in Exhibit A at pages 400 to 476.  Dr Dhillon also produced those documents to AHPRA.

72Those records are divided into two sections ­ treatment history and treatment notes ­ see, for example, the records relating to Patient AS set out below.

73In a number of instances, for example Patient MG, Dr Dhillon stated that the nominated patient was 'not a patient of record' (Exhibit A page 400).

74In a number of cases, prior to submitting the documents to HBF, Dr Dhillon crossed out the dates on which treatment was provided.  An example of this is the clinical records of Patient LM (Exhibit A Volume 2 pages 407­408).

75Dr Dhillon's initial explanation was that he had crossed out the dates for privacy reasons, which he later admitted was ridiculous (T:82­83; 12.01.16).  The Tribunal notes this as an example of Dr Dhillon's failure to honestly answer questions put to him. 

76On 21 July 2014, an AHPRA investigator, by notice under cl 1 of Sch 5 of the National Law, required Dr Dhillon, inter alia, to answer an allegation that the documents produced to HBF were inadequate: 'It appears that you are unable to provide clinical notes and identifiable photographs/radiographs for the approximately 20 patients required by HBF' (Exhibit A Volume 1 page 157).

77On 16 September 2014, in response to the AHPRA investigator's notice, Dr Dhillon produced a set of documents which appear in Exhibit A Volumes 2 and 3, pages 477-1080.  Those documents largely comprise various photographs and x-rays.

78Dr Dhillon said that he maintained a fuller set of notes.  The notes he referred to appear in Exhibit B Volume 1 Tabs 10 to 35.

79Although there is a degree of commonality between the documents, Dr Dhillon produced three different sets of documents which he claimed to be clinical records.

The expert evidence of Dr Lego (Exhibit G)

80Dr Lego was asked to:

B)(i)Please describe the necessary features of adequate clinical notes for dental practitioners.

The Dental Board of Australia stipulates the following;

A)Behaviours

•Dental Practitioners have a professional and legal responsibility to ­ keep as confidential the information they collect and record about patients / clients / consumers, retain / transfer / dispose of / correct and provide access to dental records in accordance with the requirements of the laws of the relevant States / Territories / and the Commonwealth, assist patients / clients / consumers to make well informed decisions about treatment procedures and not force treatment on patients / clients / consumers without their consent.

81Dr Lego then set out the 'general principles to be applied' by dentists as stated in the Guidelines at Items 2 and 3 above.

82Dr Lego explained the significance of clinical notes in C)(iii):

Concise, accurate, legible and contemporaneous records are important for a number of reasons;

•They provide the basis for diagnosis, treatment planning and informed consent, which in turn affords more favourable treatment outcomes with fewer complications.

•They provide a reference against which treatment comparisons can be made, facilitating material choice, treatment modality for a given condition and overall treatment prognosis.

•They provide a reliable reference on which practitioner and or patient performance / compliance can be objectively assessed, reports can be based, appropriate referral made, and or to facilitate patient identification.

83Dr Lego said that the Guidelines describe the minimum requirements for dental records (T:46; 11.02.16).

84In examination in chief Dr Lego explained the value of a dental chart as a means of recording clinical findings and observations (T:48; 12.02.16).

85Dr Dhillon conceded that when you first see a patient you should take a medical and detailed history from them and record it.  Dr Dhillon also conceded that a detailed chart should be prepared (T:88; 12.02.16).

86Dr Dhillon also conceded that the records should be kept together particularly when there was orthodontic treatment such as Invisalign (T:88; 12.02.16).

87Dr Lego was then asked to examine each patient record produced by Dr Dhillon to HBF on 10 January 2014 (Exhibit A pages 400-476), and comment on whether, in each case, the patient record is of a standard one would expect of a dentist of equivalent training or experience to the respondent.

88Dr Lego's response (Exhibit G) was:

•The following patient records ARE of a standard that one would expect of a dentist of equivalent training or experience to the Respondent-NIL

•The following patient records are NOT of a standard that one would expect of a dentist of equivalent training or experience to the Respondent - TSP (27/10/74), LM (07/12/76), JG (28/11/56), AS (08/07/57), LW (12/01/75), JA (28/11/95), SC (19/10/73), CH (30/06/67), MM (02/10/74), GJ (19/05/67), FM (30/10/85), RN (17/06/60), NC (19/09/41), AR (26/02/93), JC (09/05/41), BH (05/04/78), ES (18/11/87), AL (20/06/85), AB (05/03/86), SW (30/08/83), JM (05/08/92), CC (29/06/75), ML (21/02/09), MY (05/01/56), MW (11/02/93), AW (06/06/95), BW (06/06/95), BJ (25/09/56).

•According to the Respondent, the following were not patients on record - MG (14/12/48), ML (20/12/89), JR (06/11/81).

89Dr Lego was then asked to examine the clinical records produced by Dr Dhillon in these proceedings (Respondent's Bundle Tabs 10 to 35, Exhibit B) and whether the records were of a standard that one would expect of a dentist of equivalent training or experience to Dr Dhillon.

90Dr Lego's response was that those clinical records were not of a standard that one would expect of a dentist of equivalent training or experience to Dr Dhillon.

91The Australian Dental Association Inc has an item code system for dental billing in Australia - 'The Australian Schedule of Dental Services and Glossary' (currently 10^th Edition) - commonly referred to as the 'Glossary'.  This is used for making claims to health benefit funds in Australia (Exhibit G page 16):

92The Glossary specifically states the following:

• It is universally accepted as the definitive coding system of dental treatment and is endorsed by the National Coding Centre.

•It assigns a three digit code number to items or clinical procedures it considers to be part of current dental practice.

•A Schedule entry describes, as a general rule, a treatment outcome.  It does not accommodate minor variations in clinical technique.

•Consideration for a listing in the Schedule will only be given to accepted forms of therapy.

•The principal of the most appropriate item number should be utilised.  Where no suitable item number can be identified, item number 990 is to be allocated for describing such services.

•No item numbers are reserved exclusively for specialists.

•There is no differentiation between services on primary or secondary teeth unless the procedure is unique within that group.

• Changes to materials within a generic group or changes in laboratory techniques are unlikely to be allocated new item numbers.

As such, the 'Glossary' together with the Dental Board of Australia's 'Code of Conduct' jointly provide the tools and platforms for dental practitioners to communicate openly, honestly, accurately, ethically, morally and objectively with the public, members of the profession (or otherwise), and appropriate third parties, including health funds.

Health funds rely heavily on the honesty and integrity of dental practitioners to appropriately itemise treatment performed on their members.  To do otherwise could only be considered a serious and significant breach of accepted professional standards.

93Dr Lego stated that the majority of Dr Dhillon's records in Exhibit A at pages 400 to 476 were billing records setting out the glossary codes.  He stated that there was no expansion by Dr Dhillon as to the nature of the procedures undertaken associated with that code or attached to that code (T:13­16; 11.02.16).

94Dr Lego's evidence was that it would not be acceptable to use a billing record as a clinical record of procedures (T:29; 11.02.16).

95It is obvious, even from a layperson's perspective, that the documents supplied to HBF and the Board on 10 January 2014 are little more than billing records. 

96In his oral evidence, Dr Lego went through examples of some patient records, identifying specific deficiencies in the records (T:18­24; 11.02.16).

97Dr Lego identified deficiencies in radiographs in that the entire tooth was not shown (T:26; 11.02.16).

98Dr Lego was critical of Dr Dhillon's records being in the form of a copy of a digital x­ray because a copy could not be interpreted (T:30; 11.02.16).

99Nitrous oxide is a sedative.  Dr Lego was critical of Dr Dhillon's failure to record the level of concentration of nitrous oxide used and the patient's reaction to that level of nitrous oxide (T:32; 11.02.16). 

100Dr Lego's evidence was:

And when we are using sedation with patients it is very, very important ­ again, if I look at this particular entry, I don't have a date of birth here, that I can see.  But, if we are using inhalational sedation, obviously if it's for a patient under the age of 18 years of age, I will always gave a guardian in the room at the time of sedation is very, very important.  So I don't see any reference to that.  I don't see any indication of the concentration of the sedation used and to me it's no different than using a local anaesthesia.  We must record the type and the quantity.  It's a requirement.  There's no grey area there.

101In cross­examination, Dr Lego was asked about the records for Patient BJ.  He was asked about an entry by Dr Dhillon which read 'item 221 clinical periodontal analysis and recording'.  Dr Lego's evidence was that the entry told him nothing about what had been found clinically; therefore, it was inadequate (T:44­45; 11.02.16).

102Another example of Dr Dhillon's records emerged when Dr Lego was cross­examined about the deficiencies in the records as follows:

NEO, MR:Your honour, my instructions are that there were some fillings that were actually put onto the cementum area which is after the teeth has receded at the root area whether it becomes more yellow and that's what Dr Dhillon has instructed that he has actually used these fillings to cover up that part so that her teeth actually doesn't look that yellow.

PEARS, DR:Where are the notes supporting - - -

NEO, MR:They're not in Dr Dhillon's notes, but he ­ these are my instructions with respect to the (indistinct) 5-3-1 that he did on [Patient A] which he has forgotten which ones of the teeth were ­ they actually were, but thinks that the ones on the later invoice were the correct teeth.

(T:59; 11.02.16)

103In cross­examination, Dr Dhillon conceded that there should be a periodontal assessment in the clinical notes but none were to be found (T:91; 12.02.16).

104In cross­examination, Dr Dhillon conceded that the clinical notes were inadequate.  His explanation was that they were lost by some unidentifiable party (T:94­95; 12.02.16).

105Dr Lego denied that from examining the teeth you will always be able to know what has been carried out (T:45; 11.02.16).

106Dr Dhillon used a paperless system known as 'Praktika' (T:84; 11.02.16).  It was not used in Western Australia at the time (T:84; 11.02.16). 

107Dr Dhillon's evidence was that he was 'not very computer literate at the time' (T:89; 11.02.16). 

108Dr Dhillon's training with his software was limited to a couple of days one on one.  He described himself as not very proficient once he had finished the training (T:95; 11.02.16).  Dr Dhillon described himself as 'limited to my knowledge of my practice management and other software because I didn't know how to get it all together' (T: 95; 11.02.16).  This was his explanation for not providing proper records to HBF.

109Dr Lego's evidence (T:49: 11.02.16)was that:

So it is incumbent that if a practitioner does want to go, for example, paperless, where some practices are now going, that's fine, but you still need to ensure that your programs and your computer system that you use can still enable a very comprehensive record to be produced that is complete with the medical history, the dental history, the presenting complaint, the dental chart.  I'm not aware of any dental program that does not have a dental chart.  It also has a periodontal chart.  Now, this is not one program; it's across the board.  Why?  Because it's a requirement.

110In cross­examination, Dr Dhillon sought to excuse his failure to provide the correct records to HBF on the basis that it was 'early in the days' (T:93; 12.02.16).

111When asked whether earlier in his practice his record keeping was inadequate, Dr Dhillon denied it and blamed the fact that 'they all seem to have been mixed up' (T:81; 12.02.16).

112Dr Dhillon's closing submissions conceded that there were some deficiencies in relation to his clinical records (see paragraphs 18­20). 

113Dr Dhillon described his clinical notes as 'not the best' (T:88; 11.02.16), although he stated that his clinical notes for Patient AS were immaculate (T:89; 11.02.16).

114Dr Dhillon's closing submissions sought to excuse his failure to maintain adequate records on the basis of his lack of skill and knowledge in using the software systems and incorporating them into one record.

115The Tribunal accepts Dr Lego's evidence that this does not provide a basis to excuse Dr Dhillon's failure.  He should have used a paper system until such time as he was proficient in the various software systems he used.

116Dr Lego was then asked that if Dr Dhillon's clinical records did not comply with required standards, how seriously he regarded the breach of those standards.

117Dr Lego's response was:

Having reviewed all available case notes, there is not one case that would appear to satisfy Australian Dental Board standards. Accordingly, I would consider this a significant and serious breach of professional standards.

(see also T:4­33; 11.02.16)

118The Board submitted that:

One instance of maintaining inadequate clinical notes would constitute either unprofessional conduct or unsatisfactory professional performance.  Maintaining inadequate clinical notes in 28 cases, would be sufficient to constitute professional misconduct, in the sense conveyed by either paragraph (b) of the definition of professional misconduct in the National Law.  That is, more than one instance of unprofessional conduct that when considered together amount to conduct substantially below the standard reasonably expected of a practitioner of equivalent training or experience.

119Dr Dhillon's closing submissions, at paragraphs 24 and 25, stated:

a)Dr Dhillon was merely incompetent or tardy with the integrating and retrieval of records and/or the level of details required when the health fund and AHPRA requested them; and

b)Dr Dhillon may have been tardy in keeping his records in the way they were entered but they were, nonetheless, capable of informing a reader with sufficient experience such as Dr Lego, despite his claims that the records were wholly inadequate, what had happened to the patient in question in general given the context of their treatment.

In conclusion, we submit that Dr Dhillon may have fallen short of the standards required in the Code of Conduct and practitioners' guidelines.  However, these acts/omissions of Dr Dhillon fell short of the requirement of reckless indifference, fraudulent or deliberate acts with fraudulent intent despite the number of instances it had occurred and consequently does not support a finding of professional misconduct but would at most, be on the upper end of unprofessional conduct.

120The Tribunal does not accept that Dr Dhillon was merely incompetent or tardy.  He was consistently late in providing information.  He simply did not have a system that complied with his obligations. 

121The Tribunal finds that Dr Dhillon maintained inadequate clinical notes for the patients identified by Dr Lego, and produced those inadequate clinical notes to a private health insurer conducting a review of his claims.

122We accept Dr Lego's evidence that there is not one case of the 28 cases that appears to satisfy the Board's standards and that Dr Dhillon's conduct was a significant and serious breach of clinical standards.

123The Tribunal further finds that Dr Dhillon produced inadequate clinical notes to AHPRA.  His overall conduct in relation to his records was substantially below the standard reasonably expected of a dentist of an equivalent level of training and experience.

124The Tribunal finds that Dr Dhillon, by failing to maintain adequate notes, breached paragraphs 2.2(e), 8.4(a) and 8.4(d) of the Code of Conduct for registered health practitioners. Under s 41 of the National Law, an approved Code of Conduct is evidence of what constitutes appropriate professional conduct.

125The Tribunal finds that, when the records were considered overall, Dr Dhillon's conduct constitutes professional misconduct within the meaning of subsection (b) of the definition.

Claims for services not provided

126In relation to Dr Dhillon's alleged claims for services not provided, the Board's SIFC stated:

12.[Dr Dhillon] either made, or allowed to be made on his behalf, claims to HBF for dental services to [Patient AS], which had not been authorised by [Patient AS], and which he had not in fact provided.

Particulars

Description	Item Code	Service Date
Dental Occlusal Therapy	D961	02.07.13
Endodontic Service	D119	02.07.13
Endodontic Service	D119	02.07.13
Dental Restoration	D531	02.07.13
Dental Restoration	D531	02.07.13
Dental Restoration	D531	02.07.13
Dental Restoration	D531	02.07.13
Dental Restoration	D531	02.07.13
Endodontic Service	D119	02.07.13
Endodontic Service	D119	02.07.13

13.[Dr Dhillon] made entries in the clinical notes for [Patient AS] (the Clinical Notes) indicating that he had provided occlusal therapy, and dental restorations to [Patient AS] when he did not ever provide such services to her.

14.On 10 January 2014, [Dr Dhillon] produced the Clinical Notes to an AHPRA investigator appointed by the applicant under the National Law (Investigator) without indicating that the notes did not reflect the dental services actually provided.

15.On 10 January 2014, in a letter to the Investigator, [Dr Dhillon] stated:

'4 x item 531 on tooth 34 was a (sic) error and was meant to be 531 x 3 on other teeth.  Error is regard (sic) to person billing out the item 531 codes on 4 teeth ...'

which was false because he had never undertaken any fillings or dental restorations on [Patient AS].

16.On 16 September 2014, in a letter to the [Board], he stated:

'I only provided Invisalign services to [AS].  Do read enclosed letter and statement.  Bucall filling (sic) were done by me but teeth numbers were wrong.  Bucall filling (sic) were placed lateral surface of 4 teeth (sic).  There is an error on part of the Biller or manipulation by other persons'

which was false because he had never undertaken any fillings or dental restorations on [Patient AS].

Claims to HBF

127Dr Lego's evidence as to the relationship between dental practitioners and insurance funds such as HBF was set out at Exhibit G at pages 13 to 25.

128Dr Lego's evidence (Exhibit G) was that there is an obligation of candour (arising independently of contract) by a dentist to a health insurer.

129Dr Dhillon was the owner of Dental Horizons in Claremont.

130In around September 2012, Patient AS bought a Groupon voucher for 'Invisalign Consultation and Treatment Plus Teeth Whitening' at Dental Horizons for an alleged value of $7,500 worth of dental services (Exhibit F paragraphs 4-6 Attachment AS­1).

131Patient AS first consulted Dr Dhillon at Dental Horizons in Claremont in or around late September to early October 2012 (Exhibit F paragraph 13).

132When Patient AS first attended Dental Horizons, she completed a form which asked for her HBF membership number (T:17; 10.02.16).

133At the first consultation Patient AS told Dr Dhillon she needed to know upfront all of the costs associated with the Invisalign treatment (Exhibit F paragraph 14).

134Patient AS had raised the issue of costs because she knew HBF would not cover orthodontic treatment, and she wanted to make sure the Groupon voucher covered the whole Invisalign treatment (Exhibit F paragraph 15).

135Dr Dhillon told Patient AS that in accordance with the conditions of the Groupon voucher, the Invisalign treatment was covered, but any additional work would incur extra costs.  If Patient AS needed fillings or additional dental work that was unrelated to the Invisalign treatment, it would be done at extra cost (Exhibit F paragraph 17).

136Patient AS received Invisalign treatment and teeth whitening treatment from Dr Dhillon.  Patient AS had her first Invisalign treatment in November 2012 (T:102­103; 11.02.16).  She understood that this was covered by the Groupon voucher (T:19; 10.02.16).

Invisalign

137In his expert report (Exhibit G), Dr Lego explained Invisalign treatment as follows:

Invisalign represents an orthodontic treatment modality utilising sequential aligners, as opposed to conventional removable (active, functional) and/or fixed (braces) appliance therapy, to help align and coordinate dental arches.

It may apply to one or both arches.

Typically, consideration for such therapy demands collection and analysis of baseline records specific to orthodontic treatment, namely OPG (item 037), Lat Ceph (item 036), Ceph analysis (item 081), orthodontic study models (item 071x2) and intra / extra-oral photographs (072,073).

A written treatment plan is developed, based on patient concern(s) and analysis of such records, and subsequently presented to the patient outlining proposed treatment namely risks, benefits, protocol, duration, post treatment retention, applicable fees and codes, need for adjunctive therapies and or second (specialist) opinion.

A signed informed consent may be obtained, with all aspects of the consultation clearly recorded in patient notes (along with copies of such) before treatment commences.

Interproximal stripping (IPR, item 982) in conjunction with bonded composite resin anchors are often utilised to facilitate Invisalign orthodontic alignment, the requirement for which is typically determined at time of initial treatment planning.  Anchor placement generally occurs prior to commencement of aligner therapy, IPR utilised on a sequential basis, more so in the initial 3-6 months of treatment.

Although not stipulated, 'Bonding of attachment for application of orthodontic force' (item 862), typically applies to force application utilising either (conventional) fixed or (active) removable appliances, as opposed to 'sequential aligners'.

Upon attainment of a mutually acceptable result, retention in the form of fixed and or removable appliances (usually the final aligners themselves) applies, and in many cases (if not all) is considered indefinite given the natural tendency for post orthodontic relapse.

Due to inherent biomechanical limitations, Invisalign typically applies to mild to moderate non-extraction cases otherwise not requiring complex tooth movement, space closure and or inter arch mechanics.

As it is usually more expensive, less efficient and effective as compared to conventional fixed modalities, Invisalign is generally not considered a first-line treatment modality in the practice of (specialist) orthodontics.

This item falls under the category of 'Orthodontics'.

Invisalign in the Glossary

138Item 825 is defined in the Glossary as:

825 Sequential plastic aligners­per arch

A series of custom­made plastic aligners used to gradually move teeth.  This item is inclusive of any removable and/or fixed retention.

139Dr Dhillon used 'Invisalign' brand sequential aligners.

140During a course of Invisalign, it is necessary to reduce the width of selected teeth by a process of enamel stripping.  The Glossary describes this item as:

982 Enamel stripping - per visit

The removal of enamel from the interdental surfaces of a tooth/teeth to reduce width.

141Dr Lego refers to this as interproximal stripping. 

142During a course of Invisalign, it is sometimes necessary to make minor occlusal adjustments to teeth (Item 961) to remove interferences as their position changes.

143Although Item 961 is under the main heading of 'Occlusal Therapy' in the Glossary, it is not to be confused with more major forms of occlusal therapy requiring the use of splints.  Item 961 is described in the Glossary as:

961 Minor occlusal adjustment-per visit

The detection and correction of minor irregularities and traumatic tooth contacts.

144Both items 982 and 961 are items which are encompassed by item 825.

Dr Dhillon's records of the treatment provided to Patient AS on 2 July 2013

145Dr Dhillon's records of dental services provided to Patient AS on 2 July 2013 are as set out below (Exhibit A at pages 116­117).

Treatment History

#	Date	Code	Description	Tooth	Surfaces	Provider
8	02/07/2013	119	Bleaching, home application per arch	RD
9	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	35	B	RD
10	02/07/2013	531	Adhesive restoration one surface posterior tooth - direct	34	B	RD
11	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	34	B	RD
12	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	34	B	RD
13	02/07/2013	111	Removal of plaque and/or stain	RD
14	02/07/2013	982	Enamel stripping per visit	RD
15	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	34	B	RD
16	02/07/2013	961	Minor occlusal adjustment per visit	RD
17	02/07/2013	119	Bleaching, home application per arch	RD

Treatment Notes

Date 02/07/2013	Treatment Notes from Appointment of 02/07/2013
Type General	#35[B] Proc 531 Adhesive restoration one surface posterior tooth - direct
Author STF	#34[B] Proc 531 Adhesive restoration one surface posterior tooth ­ direct
#34[B] Proc 531 Adhesive restoration one surface posterior tooth - direct
#34[B] Proc 531 Adhesive restoration one surface posterior tooth - direct
#34[B] Proc 531 Adhesive restoration one surface posterior tooth - direct
Proc 111 Removal of plaque and/or stain
Proc 982 Enamel stripping per visit
Proc 961 Minor occlusal adjustment per visit
Proc 119 Bleaching, home application per arch
Proc 119 Bleaching, home application per arch
nv
s/c no gap
30 mins

146The treatment notes for 2 July 2007 do little more than reproduce the treatment history.

147Dr Dhillon made a claim to HBF for these items as set out below (Exhibit A pages 1563 and 1565). 

Patient's Name  [AS]

Claims Listing To           24/10/2014

Claim No	Description	Item Code	Service Date	Provider of Service	Fee	M/CARE Benefit	HBF Benefit	Out of Pocket
52	Endodontic Service	D119	2/7/2013	DHILLON RANDEEP	$149.00	$0.00	$0.00	$149.00
52	Endodontic Service	D119	2/7/2013	DHILLON RANDEEP	$149.00	$0.00	$0.00	$149.00
52	Dental Restoration	D531	2/7/2013	DHILLON RANDEEP	$140.00	$0.00	$84.00	$56.00
52	Dental Restoration	D531	2/7/2013	DHILLON RANDEEP	$140.00	$0.00	$84.00	$56.00
52	Dental Restoration	D531	2/7/2013	DHILLON RANDEEP	$140.00	$0.00	$84.00	$56.00
52	Dental Restoration	D531	2/7/2013	DHILLON RANDEEP	$140.00	$0.00	$84.00	$56.00
52	Dental Restoration	D531	2/7/2013	DHILLON RANDEEP	$140.00	$0.00	$84.00	$56.00
52	Miscellaneous Dental	D982	2/7/2013	DHILLON RANDEEP	$68.00	$0.00	$40.80	$27.20
52	Dental Prophylaxis	D111F	2/7/2013	DHILLON RANDEEP	$60.00	$0.00	$60.00	$0.00
52	Dental Occlusal Therapy	D961	2/7/2013	DHILLON RANDEEP	$52.00	$0.00	$31.20	$20.80

148Dr Dhillon's treatment notes from his appointment of 2 August 2013 are as set out below (Exhibit A page 117):

Date   02/08/2013:

Type  General

Author:  ADM

Treatment Notes from Appointment of 02/08/2013

Proc 012 Periodic oral examination

Proc 114 Removal of calculus first visit

Proc 121 Tropical application of remineralisation and/or ceriostatic agents, one treatment

Proc 982 Enamel stripping per visit

Proc 015 Consultation extended (30 minutes or more)

#22 Proc 117 Bleaching internal per tooth

Treatment Notes from Appointment of 02/08/2013

Proc 015 Consultation extended (30 minutes or more)

Proc 114 Removal of calculus first visit

Proc 121 Tropical application of remineralisation and/or cariostatic agents, one treatment

Proc 012 Periodic oral examination

Proc 982 Enamel stripping per visit

Proc 119 Bleaching home application per arch

Proc 119 Bleaching home application per arch

149Dr Dhillon made a further claim to HBF for treatment of Patient AS on 2 August 2013.

Claim No	Description	Item Code	Service Date	Provider of Service	Fee	M/CARE Benefit	HBF Benefit	Out of Pocket
53	Endodontic Service	D119	2/8/2013	DHILLON RANDEEP	$149.00	$0.00	$0.00	$149.00
53	Endodontic Service	D119	2/8/2013	DHILLON RANDEEP	$149.00	$0.00	$0.00	$149.00
53	Dental Prophylaxis	D114F	2/8/2013	DHILLON RANDEEP	$103.00	$0.00	$0.00	$103.00
53	Dental Prophylaxis	D015	2/8/2013	DHILLON RANDEEP	$82.00	$0.00	$8.00	$74.00
53	Miscellaneous Dental	D982	2/8/2013	DHILLON RANDEEP	$68.00	$0.00	$0.00	$68.00
53	Dental Consultation	D012	2/8/2013	DHILLON RANDEEP	$51.00	$0.00	$0.00	$51.00
53	Dental Topical Fluoride	D121	2/8/2013	DHILLON RANDEEP	$32.00	$0.00	$0.00	$32.00
$0.00	$560.00	$1,252.00

The total of the claims of 2 July 2013 and 2 August 2013 was $1,812 of which Dr Dhillon was paid $560.

Patient AS was not asked to pay the balance between the fee claimed and the rebate paid.  In all cases, this gap was 'discounted'.  This explains how she did not realise that claims were being made to her health fund.

(D)119

150              In Dr Dhillon's claim to HBF, Item 119 was described as 'Endodontic Service'.

151              The Glossary definition for (D)119 was:

The prescribed use, by a patient at home, of a custom­made tray for the application of bleaching medicaments to the patient's dentition.  This procedure describes the complete course of treatment per arch.  For provision of the tray and medicaments, see items 926 and 927.

152              Dr Lego's explanation of the nature of the treatment relating to a claim for (D)119 Bleaching, home application - per arch (Exhibit G) was:

Typically, custom templates, or stents (itemised 926), are fabricated from casts (models) of the patient's teeth.  These templates are used to carry and hold the bleaching medicament intimately against the teeth, usually for one or more hours, on a daily basis for two or more weeks, after which successive bleaching treatments usually prove ineffective (or sensitivity prohibitive), with the degree of whitening (if any) slowly reverting to pre­treatment baseline levels over the course of approximately one to two­years.

Orthodontic aligners (Invisalign) or conventional suck-down (trutain) retainers can also be used to reduce patient cost.

Medicaments to help minimise post-operative sensitivity (itemised 927) associated with vital bleaching can also be applied, utilising the bleaching template.

This item falls under the category of 'Preventive, Prophylactic and Bleaching Services'.

153              Dr Lego stated that:

(D)119 - whilst customary to perform post orthodontic vital bleaching, and accepting there are no constraints on its timing in relation to Invisalign therapy, I was surprised to see item 119x2 billed twice within a month (initially 02/07/13, then again 02/08/13), given inherent technique limitations (described above), and yet only 8-9 months into Invisalign treatment (as opposed to post treatment).

154              Dr Lego was asked whether there is evidence of any endodontic services having been undertaken on Patient AS.  Dr Lego's evidence was that Item 119 has been incorrectly classified as an 'endodontic service'.  There was no evidence of endodontic management having otherwise been undertaken (Exhibit G).

155              Although Dr Dhillon did not receive a rebate from HBF for Item 119, 'tooth whitening' was within the Groupon voucher and should not have been claimed by him.

156              Dr Dhillon's claims to HBF for Item 119 were misleading.  He had already been paid for those items by the Groupon voucher.

(D)531

157              The Glossary definition for (D)531 was:

Direct restoration, using an adhesive technique and a tooth-coloured material, involving one surface of a posterior tooth.

158              Dr Lego's explanation of the nature of the treatment (D)531 Adhesive restoration - one surface - posterior tooth ­ direct ­ was:

This applies to the placement of a one surface direct (chairside), as opposed to indirect (laboratory fabricated) filling (restoration) used to restore function, integrity and or morphology of 'missing tooth structure', with or without the benefit of anaesthesia.  The structural loss can result from carious and or non-carious processes.

This item falls under the category of 'Restorative Services'.

159              A direct restoration is commonly called a 'filling'.

160              On 19 November 2013, AHPRA wrote to Dr Dhillon seeking, relevantly, the following information:

2.A full and clear copy of your clinical notes (it would appear that the records of some appointments have been omitted from the copy obtained by us on 27 September 2013) and all invoices/receipts produced for patient [AS].

3.An Audit Report Log for the clinical notes of patient [AS].

4.Comment in respect of your having recorded 4 x item 531 on tooth 34 for patient [AS] on 2 July 2013.

(Exhibit A page 1614)

161              AHPRA wrote to Dr Dhillon on 7 January 2014 to again request the information.  The letter is incorrectly dated 7 January 2013 (Exhibit A pages 1654­1655).

162              Dr Dhillon responded to AHPRA on 10 January 2014 (Exhibit A pages 1619­1620).  In Dr Dhillon's letter to AHPRA of 10 June 2014, he referred to an 'attachment #2'.  The attachment, a copy of the treatment notes, was in the same form as set out above.  He stated:

4 x item 531 on tooth 34 was a (sic) error and was meant to be 531 x 3 on other teeth.  Error is regard (sic) to person billing out the item 531 codes on 4 teeth ... [.]

163              On 16 September 2014, Dr Dhillon wrote to AHPRA.  The letter relevantly stated:

Item number 531 was was [sic] a typo error and since been corrected and has been discussed with [Patient AS] no issues is what was noted.

[Patient AS] has received restorations and they do correlate with her treatment.  Copy attached.

No misleading information has been sent in response only maybe clerical / human errors.  All have been verified with [Patient AS] and she is happy to send in a statement if you should require her to do so.

[Patient AS] has never made an alleged complaint as stated by HBF.  We have attached a letter confirming this in support to Dr Randeep Dhillon and this issue at hand.

To date [Patient AS] is very upset with HBF for not verifying alleged claims before using her name in lodging fictitious claims on her behalf.

164              In his oral evidence, Dr Dhillon suggested that an unknown third party had adjusted the first set of clinical notes (T:87­88; 11.02.16).

165              Dr Dhillon's first letter of 16 September 2014 attached a revised treatment history and treatment notes as set out below (Exhibit A pages 1662­1664).

Treatment History

#	Date	Code	Description	Tooth	Surfaces	Provider
9	02/07/2013	119	Bleaching, home application per arch	RD
10	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	44	B	RD
11	02/07/2013	531	Adhesive restoration one surface posterior tooth - direct	34	B	RD
12	02/07/2013	111	Removal of plaque and/or stain	RD
13	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	14	B	RD
14	02/07/2013	982	Enamel stripping per visit	RD
15	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	24	B	RD
16	02/07/2013	961	Minor occlusal adjustment per visit	RD
17	02/07/2013	119	Bleaching, home application per arch	RD
18	02/07/2013	531	Adhesive restoration one surface posterior tooth ­ direct	35	B	RD

Treatment Notes

Date: 02/07/2013  Author: RD  Type: General

Related teeth: #34#35

Treatment notes from Appointment of 02/07/2013

#35 [B] Proc 531 Adhesive restoration one surface posterior tooth - direct

#34 [B] Proc 531 Adhesive restoration one surface posterior tooth – direct

#14 [B] Proc 531 Adhesive restoration one surface posterior tooth - direct

#24 [B] Proc 531 Adhesive restoration one surface posterior tooth - direct

#44 [B] Proc 531 Adhesive restoration one surface posterior tooth - direct

Proc 111 Removal of plaque and/or stain

Proc 982 Enamel stripping per visit

Proc 961 Minor occlusal adjustment per visit

Proc 119 Bleaching, home application per arch

Proc 119 Bleaching, home application per arch

etched, bonded and filled decay, polished and checked for rough spots, pt happy

align going well, no local used, salt h20 post op given

nv

s/c no gap

30 mins

166              The effect of the changes was to alter the teeth that were said to have been filled for Patient AS from four on tooth 34 to one on tooth 34, one on tooth 14, one on tooth 24 and one on tooth 44.

167              On 16 September 2014, in a second letter to AHPRA, Dr Dhillon stated:

I only provided Invisalign services to [AS].  Do read enclosed letter and statement.  Bucall filling (sic) were done by me but teeth numbers were wrong.  Bucall filling (sic) were placed lateral surface of 4 teeth (sic).  There is an error on part of the Biller or manipulation by other persons

(Exhibit A page 202; see also page 1667)

What treatment does Patient AS say she received?

168              Patient AS' evidence (Exhibit F) as to the treatment she received from Dr Dhillon and whether she made any claim to HBF was as follows:

…

98.A copy of the HBF claims schedule with, my markings is:  attached to this witness statement as AS-3.  [The markings on AS-3 denied all of the treatments listed apart from 'Miscellaneous Dental $68'?  'Dental Prophylaxis $60' 'may be' and 'Miscellaneous Dental $68?']

(AS-3 in the HBF claims for 2 July and 2 August 2013 set out above)

99.1 have never been consciously sedated by Dr Dhillon.

100.I understand that dental restoration treatment means fillings.  I have never had any fillings from Dr Dhillon.

101.I understand Bucall fillings are fillings in the teeth below the hollow of the cheek.  I never received Bucall fillings or any fillings from Dr Dhillon.

102.I understand endodontic therapy is root canal therapy.  I never received root canal therapy from Dr Dhillon,

103.I understand occlusal therapy includes the use of splints to prevent tooth damage, I never received splint therapy from Dr Dhillon.

104.During the course of my dealings with Dr Dhillon I never signed any HICAPS claim forms for claims on my HBF policy.

105.Dental Horizons did not have my HBF card but they did have my HBF number from the patient form I completed at my initial consultation with Dr Dhillon.

106.I did not receive any bills from Dental Horizons in relation to my treatment.

(see also T:20­24; 10.02.16)

169              Patient AS' oral evidence was that she would know if her teeth had been filled (T:24; 10.02.16).

170              Patient AS' oral evidence was that she did not ask Dr Dhillon to perform any HBF covered treatment on her and that she did not authorise Dr Dhillon to charge HBF for any work performed on her (T:16; 10.02.16), apart from a scale and clean (T:20; 10.02.16).

171              The Tribunal accepts Patient AS' evidence that she did not receive the disputed treatment claimed by Dr Dhillon on 2 July or 2 August 2013.

Dr Lego's evidence to the treatment of Patient AS

172              Dr Lego carried out a clinical examination of Patient AS (T:34; 11.02.16).

173              Following his clinical examination of Patient AS and examination of the documents, Dr Lego was asked whether there was evidence of five separate posterior/buccal teeth restorations having been undertaken on Patient A (Exhibit G).  Dr Lego's evidence was:

Further to clinical and radiographic examination performed 16^th September 2015, charting for quadrant 3 (lower left) is summarised as follows;

•31 - sound

•32 - sound

•33 - labial (cervical) resin restoration

•34 - buccal resin build up (anchor?) that did not appear to be replacing missing tooth structure, and hence, by definition, not a restoration.

•35 - buccal (cervical) resin restoration (?), with benefit of doubt.

•36 - occluso-buccal amalgam restoration

•37 - occlusal amalgam restoration, buccal pit resin sealant

•38 - missing

This is consistent with patient Invisalign Treatment Overview.  With the possible exception of tooth 35 there was no evidence of one surface posterior resin restorations elsewhere within mandibular and or maxillary arches.

174              Dr Lego's evidence was that the attachment of materials to tooth surfaces for the anchoring of Invisalign retainers could not be properly described as 'restorations' or 'buccal fillings' or properly be billed under Item 531.

175              Dr Lego's evidence was that the tooth anchor from the Invisalign treatment which was formed by the application of hard plastic to the tooth was not a tooth restoration or filling (T:36; 11.02.16):

Now, one of those teeth at 34 you found evidence of what you thought might be an anchor, buccal resin build up? - - - Yes.

All right.  Can you within the glossary describe an anchor as a buccal filling? - - - No.  The other thing that I ­ when I read the notes, which was in the page 226, was on that particular date, 2 July 2013, by Dr Dhillon.  It says at the bottom:

Etched, bonded and filled buccal decay.  Polished and checked for rough spots.  Patient happy.

I don't see any evidence, nor documentation, that there was any buccal decay, because we do not have the records to show that.  I didn't see it clinically on the tooth, because I saw no signs of direct restoration.  And if there is buccal decay, then that ­ we normally manage that at the beginning, before we begin the Invisalign.  So that to me was inconsistent.

176              Dr Dhillon conceded that he should have seen the need for the five fillings before 2 June 2013 (T:46; 12.02.16).

177              Dr Lego's oral evidence was that Dr Dhillon's corrected records, that is, that the dental restorations carried out on teeth 34, 35, 14, 24 and 44, were not accurate.  Dr Lego gave Dr Dhillon the benefit of the doubt that there was a surface posterior resin restoration for tooth 35.  Dr Lego's evidence was that there was no evidence of restoration on teeth 34, 14, 24 or 44 (T:74­75; 11.02.16).

178              It is important to note that Dr Lego's finding as to tooth 35 was only made by giving the benefit of the doubt to Dr Dhillon.

179              Dr Dhillon's evidence was that the reason for the five fillings was because of recession of the junction which exposed discolouration.  He said they were extended, bonded and filled without local anaesthetic (T:32; 14.02.16).

180              Dr Lego's evidence was that even if Dr Dhillon's treatment was to cover up discolouration and he had to remove part of the existing tooth, he would have used local anaesthetic (T:62; 11.02.16).

181              During his oral evidence, Dr Dhillon reviewed photographs of Patient AS's teeth and gave evidence of possible dental work on her teeth (T:4­7; 12.02.16). 

182              In relation to tooth 34, his evidence in relation to a filling was '34, possibly yes' (T:7; 12.02.16).

183              In relation to tooth 35, Dr Dhillon's evidence was '35: hard to say, nothing there' (T:5; 12.02.16).

184              In cross­examination, Dr Dhillon conceded that there was no filling in tooth 34, that what appeared in fact with tooth 35 was more like an attachment from the Invisalign treatment and that he could not see a filling in tooth 35.  He changed his evidence shortly thereafter to say he did see a filling there (T:26­31; 12.02.16).

185              In relation to teeth 36 and 37, Dr Dhillon's evidence was '36, nothing.  37, possibly an amalgam black filling all the way in the back bottom left' (T:6; 12.02.16).

186              It was evident from Dr Dhillon's oral evidence that examining the photographs of Patient AS's teeth is a very poor way of determining whether any dental work had been done.

187              In cross­examination, Dr Dhillon gave evidence that he had done fillings on teeth 43, 14, 23 and 33 (T:10­11; 12.02.16).

188              In cross­examination it became apparent that the treatment history given to AHPRA on 16 September 2014 was, at best, guesswork.  Dr Dhillon said:

… Back to that record in page 226, printed on 16 September, and given to you ­ AHPRA by you, where you have corrected the teeth numbers to now reflect 35, 34, 14, 24 and 44 as being the teeth that you did the fillings on? ­ ­ ­ I corrected them but don't even know if they're the correct numbers, because I don't have that information in front of me.  Ms Surman was not there.  I just had to change it from 34 buccal to something that's more different.

Right? ­ ­ ­  So - - -

And that's what you did?­ ­ ­ Well - - -

You just picked different teeth numbers, didn't you? ­ ­ ­ No, no, no, that's not what I did.

Well, that's what you just said? ­ ­ ­ No, I did, but I did not have the whole picture in front of me.

How did you get those numbers then? ­ ­ ­ Well, I looked at x­rays, and you can't really justify doing buccal fillings from x­rays.  But it was better than saying 34 buccal for the last three years they've been bugging me about them, you know?  What am I supposed to do?

So you can pick your own handiwork from x­rays? ­ ­ ­ No, I cannot.  I should have done it ­ I should have called the patient in, done everything by the book.  But 28 patients, three bags of paperwork, practices to run, I had to do something.  (T:15; 12.02.16)

…

If you're now picking another four different teeth? ­ ­ ­ Yes, that's my problem.  I mean, I ­ look, at the end of the day it was three four buccal, okay?  Mistake made, end of story; that's it.  Get the patient back in, take x­rays, and take photos, do it right again.  If I don't have access to that, if people keep bugging me over and over for records, I did the next best thing I could:  I could took a wild guess - - -

The reason -  -  -?­ ­ ­  -  -  - with x­rays.  (T:18; 12.02.16)

…

If you had some clinical notes you wouldn't have needed to make it up, would you?­ ­ ­ Yes.  (T:21; 12.02.16)

Patient AS' further evidence

189              Patient AS' further evidence (Exhibit F) was that Dr Dhillon sought to justify a claim for the 531 items on the basis that the hard plastic was a filling:

…

72.He explained, 'At the start of the Invisalign treatment I put some hard plastic on your teeth to help the aligners sit firmly on the teeth'.

73.He said that the hard plastic is stuck to the teeth and is like glue.

74.Dr Dhillon said he referred to this as a 'filling' or was how he could justify a filling.

75.I said, 'I haven't had any fillings'.

76.He responded, 'The hard plastic glue is like fillings.  I have put it through as fillings.  They understand that.  Otherwise I can't afford to do the treatment for the price you paid."

77.I recall having this glue put on my teeth.

…

190              Dr Dhillon's explanation for saying to Patient AS that she had had fillings was to keep the situation calm (T:105; 11.02.16).

191              The Tribunal rejects Dr Dhillon's explanation and accepts the evidence of Patient AS.

Tribunal findings on Dr Dhillon's claims to HBF for Item 531

192              Dr Dhillon's first claim of four fillings on the one tooth was clearly misleading.  When asked for an explanation by HBF, Dr Dhillon blamed the error on an unknown party.  There is no evidence to support the involvement of a third party.

193              Dr Dhillon's explanation to Patient AS about his claim was inconsistent with the clinical evidence and his explanation to this Tribunal.  He clearly sought to mislead Patient AS.

194              Dr Dhillon's amendments to the teeth that were filled did not have any basis.  Even on Dr Dhillon's own admission it was guesswork.

195              The Tribunal finds that Dr Dhillon did not carry out any tooth restoration/fillings for Patient AS.  Although Dr Lego gave Dr Dhillon the benefit of the doubt in finding that there may have been a restoration in tooth 35, in the light of Patient AS' evidence, Dr Dhillon should not receive the benefit of the doubt.  Clinical examination by Dr Lego did not support Dr Dhillon's contention that five fillings had been carried out.  There is no basis for a finding that at least three teeth had been filled.  The Tribunal does not accept Dr Dhillon's explanation that the reason for the alleged treatment was the recession of the gums.

D(111)

•Item 111 (removal of plaque and or stain - 02/07/13) and item 114 (removal of calculus, 02/08/13) used within the space of four weeks.

196              Dr Lego's oral evidence was that if a patient needs plaque removal only, then that involves removing plaque with just a really good toothpaste.   He could not understand why one month later Patient AS had tartar removed.  If Patient AS had tartar, then the tartar (calculus) and plaque should all have been removed in one procedure (T:72; 11.02.16).

197              The Glossary states that only one of these item numbers between 111 and 117 may be used.

198              The Tribunal finds that Dr Dhillon should have removed the plaque and calculus on the same occasion.

(D)982

199              The claim as submitted to HBF by Dr Dhillon erroneously described Item 982 as 'Miscellaneous Dental'.

200              Dr Dhillon conceded that enamel stripping (Item 982) was part of the Invisalign treatment (Item 825) and that he should not have billed for it (T:113; 11.02.16).

201              Dr Dhillon claimed $68 from HBF in July 2013 (erroneously described as 'Miscellaneous Dental') and received a rebate of $40.80.

202              Dr Dhillon claimed again for Item 982 in August 2013, but HBF will only pay out a certain number of times on a claim within a prescribed period and so Dr Dhillon did not receive any payment from HBF on this occasion.

203              The Tribunal finds that Dr Dhillon's claims to HBF for Item 982 were misleading.

(D)961

204              The claim as submitted to HBF by Dr Dhillon, erroneously described a 'Minor occlusal adjustment' as 'Dental Occlusal Therapy'.

205              Dr Lego's explanation' of the nature of the treatment (D)961 Minor occlusal adjustment - per visit ­ was:

(The detection and correction of minor irregularities and traumatic tooth contacts)

This typically applies to smoothing of irregular incisal edges, often for cosmetic reasons, and or sharp cusps associated with either soft-tissue and or occlusal trauma.

This item falls under the category of 'Occlusal Therapy'.

206              Dr Lego was asked whether Dr Dhillon could properly claim for Item 961 in the case of Patient AS.  He stated that:

(D)961 - although there is nothing to obviate it's use within context of Invisalign therapy, I would have assumed that correction of minor irregularities and traumatic tooth contacts during the course of Invisalign would have been encompassed under item 825.

Post orthodontically, and more so in non-growers than growers, it is customary to perform occlusal equilibration (item 968) to help improve musculo-skeletal-occlusal stability.

207              Dr Lego was asked whether there is evidence of any occlusal therapy (other than Invisalign treatment) being provided to AS.

208              Dr Lego's evidence (Exhibit G) was:

Similarly, whilst AS was of the opinion that occlusal therapy had not been undertaken (02/07/13, 02/08/13), as baseline (pre-treatment) clinical records were inadequate given scope of treatment provided (Respondent failed to record and or include orthodontic study models), I was unable to objectively verify the fact based on clinical and radiographic examination, comparative cast analysis, patient history and or information provided.

209              The Tribunal finds that Dr Dhillon was not justified in claiming for Item 961 because it was covered by Item 825.  Dr Dhillon had already been paid for this treatment by the Groupon voucher.  The Tribunal finds that Dr Dhillon's claim to HBF was misleading and deliberately so.

How long did Dr Dhillon spend treating Patient AS on 2 July 2013?

210              Dr Dhillon's diary showed that Patient AS had a 30 minute appointment at 11 am on 2 July 2013, with another patient immediately thereafter.  Dr Dhillon accepted that this was the diary he provided to the Tribunal as an accurate record of his day (T:41­42; 12.02.16).

211              Dr Lego's evidence was (Exhibit G):

•Use of item numbers 012 (Periodic oral examination) and 015 (Extended consultation - 30 minutes or more, 02/08/13) also appear inconsistent, given one would normally perform one or the other, not both, at the same appointment.

•The ability to complete 119x2, 961, 531x5, 982, 111 (ll.00-ll.30am, 02/07/13), and 015, 012, 119x2, 982, 121, 114 (11.45am-12.15pm, 02/08/13) in appointments of just thirty minutes duration.

212              Dr Lego's oral evidence was that there was no way a clinician could provide all those services in a fair and reasonable manner within 30 minutes (T:72­73; 11.02.16).

213              Dr Dhillon accepted that he could not have done work recorded on Patient AS on 2 July 2013 within 30 minutes (T:44; 12.02.16).

214              The Tribunal finds that the diary records establish that Patient AS only had a 30 minute appointment and that she only spent 30 minutes with Dr Dhillon.  The Tribunal accepts Dr Lego's evidence that the items claimed could not have been completed in 30 minutes. 

215              The Tribunal finds that Dr Dhillon's statement that he had performed these items was deliberately misleading.

Dr Lego's assessment of Dr Dhillon's clinical records in relation to Patient AS

216              Dr Lego was asked, taking into account the documentary evidence (including the statement of Patient AS) and his clinical examination of Patient AS, whether he regarded Dr Dhillon's clinical notes for Patient AS to be an accurate reflection of his treatment of her (Exhibit A Volume 4 pages l566­1611).

217              Dr Lego's evidence (Exhibit G pages 24­25) was:

No.

Clinical records provided were in-descript, non-compliant, repetitive and grossly inadequate given the scope of (orthodontic) treatment provided. Clinical and radiographic findings (16/09/15) were inconsistent with treatment claims (02/07/13).

Additionally, there are glaring inconsistencies with use of treatment codes, namely;

•Item 531 inappropriately used for Invisalign anchor (tooth 34), then billed four (4) times for the one procedure (02/07/13).

•Item 111 (removal of plaque and or stain ­ 02/07/13) and item 114 (removal of calculus, 02/08/13) used within the space of four weeks.  This is nonsensical.  Why perform plaque removal and leave behind calculus?

•Use of item numbers 012 (Periodic oral examination) and 015 (Extended consultation ­ 30 minutes or more, 02/08/13) also appear inconsistent, given one would normally perform one or the other, not both, at the same appointment.

•The ability to complete 119x2, 961, 531x5, 982, 111 (11.00­11.30am, 02/07/13), and 015, 012, 119x2, 982, 121, 114 (11.45am­12.15pm, 02/08/13) in appointments of just thirty minutes duration.

218              If those fillings were necessary, Dr Dhillon should have detected them and filled them before the Invisalign treatment commenced.  The fact that he did not leads to an inference that Patient AS did not need, and did not have, fillings.

Was Dr Dhillon's conduct deliberately misleading?

219              If Dr Dhillon had admitted to HBF or to AHPRA that he had made errors then the Tribunal might have found that Dr Dhillon's misleading entries and claims were simply errors.  However, he sought to blame third parties without any basis.  He 'remedied' his Item 531 claims by simply guessing the teeth he allegedly filled.  The fact that he misled HBF, AHPRA and Patient AS after the incorrect entry was detected rather than simply acknowledging an error, leads to an inference that Dr Dhillon's conduct was deliberately misleading.  The other incorrect entries identified above were also deliberately misleading.

220              The Tribunal finds that:

a)Dr Dhillon made entries which were false in the clinical notes for Patient AS indicating that he had provided occlusal therapy, and dental restorations to Patient AS when he did not ever provide such services to her;

b)on 10 January 2014, Dr Dhillon produced the clinical notes to an AHPRA investigator appointed by the applicant under the National Law without indicating that the notes did not reflect the dental services actually provided;

c)on 10 January 2014, in a letter to the Investigator, Dr Dhillon stated:

4 x item 531 on tooth 34 was a (sic) error and was meant to be 531 x 3 on other teeth. Error is regard (sic) to person billing out the item 531 codes on 4 teeth ...

which was false because Dr Dhillon had never undertaken any fillings or dental restorations on Patient AS; and

d)on 16 September 2014, in a letter to the Dental Board, Dr Dhillon stated:

I only provided Invisalign services to [AS].  Do read enclosed letter and statement.  Bucall filling (sic) were done by me but teeth numbers were wrong.  Bucall filling (sic) were placed lateral surface of 4 teeth (sic).  There is an error on part of the Biller or manipulation by other persons[.]

which was false because Dr Dhillon had never undertaken any fillings or dental restorations on Patient AS.

e)Dr Dhillon knowingly made claims to HBF for Item 982 and Item 961 for which he had already been paid by the Groupon voucher.

f)Dr Dhillon knowingly made claims to HBF for Item 119, teeth whitening, when he knew he had already been paid for them by the Groupon voucher.

221 The Tribunal finds that Dr Dhillon's conduct is sufficiently serious to constitute professional misconduct pursuant to s 196(1)(b)(iii) of the National Law.

Orders

222              The Tribunal finds that the following disciplinary matters exist:

1.Dr Dhillon engaged in unprofessional conduct in that he:

(a)failed to give the Board notice that he had been charged with a criminal offence punishable with a term of imprisonment of 12 months or more, within seven days, as required by s 130(3)(a) and s 130(3)(b) of the Health Practitioner Regulation National Law (WA) Act 2010; and

(b)failed to give the Board notice that he had been convicted of a criminal offence punishable with a term of imprisonment of 12 months or more, within seven days, as required by s 130(3)(a) and s 130(3)(b) of the Health Practitioner Regulation National Law (WA) Act 2010.

2.Dr Dhillon engaged in professional misconduct in that he failed to maintain adequate clinical notes which constitutes a breach of paragraphs 2.2(e), 8.4(a) and 8.4(d) of the Code of Conduct for registered health practitioners.

3.Dr Dhillon engaged in professional misconduct when he:

(a)made entries in the clinical notes for Patient AS indicating that he had provided occlusal therapy and dental restorations to Patient AS when he did not ever provide such services to her;

(b)produced the clinical notes on 10 January 2014, to an AHPRA investigator appointed by the applicant under the National Law without indicating that the notes did not reflect the dental services actually provided;

c)stated on 10 January 2014, in a letter to the Investigator:

4 x item 531 on tooth 34 was a [an] error and was meant to be 531 x 3 on other teeth. Error is [in] regard to person billing out the item 531 codes on 4 teeth ...

which was false because Dr Dhillon had never undertaken any fillings or dental restorations on Patient AS; and

d)Dr Dhillon stated on 16 September 2014, in a letter to the Board:

I only provided Invisalign services to [AS].  Do read enclosed letter and statement.  Buccal filling[s] were done by me but teeth numbers were wrong.  Buccal filling[s] were placed [on] lateral surface of 4 teeth.  There is an error on part of the Biller or manipulation by other persons[.]

which was false because Dr Dhillon had never undertaken any fillings or dental restorations on Patient AS.

e)Dr Dhillon knowingly made claims to HBF for Item 982 and Item 961 for which he had already been paid by the Groupon voucher.

f)Dr Dhillon knowingly made claims to HBF for Item 119, teeth whitening, when he knew he had already been paid for them by the Groupon voucher.

g)Dr Dhillon knowingly made claims to HBF for Item 531, dental restorations, when he knew that he had never undertaken any fillings or dental restorations on Patient AS.

4.The Dental Board of Australia is to file its submissions on penalty and costs by 15 July 2016.

5.Dr Dhillon is to file his submissions on penalty by 5 August 2016.

6.The matter is adjourned to a directions hearing on 16 August 2016 at 9:15 am to fix a date for the hearing of submissions as to penalty and costs.

I certify that this and the preceding [222] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE J C CURTHOYS, PRESIDENT