Dental Board of Australia v Dhillon
[2018] WASAT 107
•19 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: DENTAL BOARD OF AUSTRALIA and DHILLON [2018] WASAT 107
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
MS L EDDY (MEMBER)
DR C PEARS (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 OCTOBER 2018
FILE NO/S: VR 44 of 2018
BETWEEN: DENTAL BOARD OF AUSTRALIA
Applicant
AND
RANDEEP SINGH DHILLON
Respondent
Catchwords:
Dental practitioner - Penalty - Costs - Further disqualification period - Prohibited from using title 'Doctor' until re-registration - Practitioner to pay Board's costs of proceedings
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010
State Administrative Tribunal Act 2004 (WA)
Result:
Practitioner disqualified for a further three years
Practitioner prohibited from using title 'Doctor' until re-registration
Practitioner pay Dental Board of Australia's costs of proceedings
Category: B
Representation:
Counsel:
| Applicant | : | M Naylor |
| Respondent | : |
Solicitors:
| Applicant | : | Tottle Partners |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The background to this matter was set out by the Dental Board of Australia (the Board) in its submissions which accurately stated:
1.On 3 October 2018, following a hearing, the Tribunal found Dr Randeep Singh Dhillon [Dr Dhillon], a previously registered dental practitioner, guilty of 2 counts of professional misconduct for the purposes of s 196(1)(b) of the Schedule to the Health Practitioner Regulation National Law(WA) Act 2010 (National Law).
2.[Dr Dhillon] was registered at the time of the conduct which led to the findings against him, but is no longer registered under the National Law.
3.He is currently serving a 2 year and six month period of disqualification from applying for registration as a dental practitioner under the National Law, as a consequence of orders on this Tribunal made on 25 January 2017. That disqualification period will end on 26 July 2019.
4.As [Dr Dhillon] is no longer registered, cancellation or suspension of registration cannot be imposed as a penalty. Nonetheless, the Tribunal may make a finding that had he still been registered it would have cancelled his registration.
The basis of these reasons
The submissions of the Board accurately set out the facts relating to this matter for the purposes of determining both penalty and costs. The Board's submissions largely follow previous decisions of the Tribunal.
Dr Randeep Singh Dillon did not take any part in the proceedings and has not provided any submissions on penalty. No useful purpose would be found by restating the Board's submissions in the Tribunal's own words. Accordingly, these reasons largely reproduce the Board's submissions.
The Tribunal's findings
The Board accurately submitted:
6.The Tribunal has determined that:
6.1[Dr Dhillon], a dental practitioner who was at all material times prior to 25 January 2017 registered under the National Law, and from 25 January 2017 was not registered under the National Law, has behaved in a way that constitutes professional misconduct by reason of:
(a)The judgments of conviction entered by the District Court of Western Australia on 17 February 2017 against [Dr Dhillon] upon three counts of obtaining a benefit by fraud, contrary to section 409(1)(c) of the Criminal Code (WA), in relation to conduct occurring whilst [Dr Dhillon] was a dental practitioner registered under the National Law; and/or
(b)[Dr Dhillon's] conduct underlying and forming the basis of the verdicts of guilty which lead to and were evidenced by the entry of the judgments of conviction referred to in the preceding paragraph, and such conduct as found by the learned trial Judge for the purposes of sentencing in the District Court of Western Australia, as set out below, which conduct occurred whilst [Dr Dhillon] was a dental practitioner registered under the National Law.
Count
Date of Conduct
Description of conduct
Sentence
Count 1
PE 13206/2015
Brief No: 1339670-1
15 October 2013
[Dr Dhillon], with intent to defraud by deceit or fraudulent means gained a benefit, namely $56,896.77 in money for Dental Horizons Pty Ltd.
Suspended Imprisonment Order
18 Months Imprisonment
Head Sentence
Count 2
PE
13207/2015
Brief No: 1339670-1
21 October 2013
[Dr Dhillon], with intent to defraud by deceit or fraudulent means gained a benefit, namely $7,244.23 in money for Dental Horizons Pty Ltd.
Suspended Imprisonment Order
12 Months Imprisonment-Concurrent
Count 3
PE 13208/2015
Brief No: 1339670-1
21 October 2013
[Dr Dhillon], with intent to defraud by deceit or fraudulent means gained a benefit, namely $16,303.37 in money for Dental Horizons Pty Ltd.
Suspended Imprisonment Order
12 Months Imprisonment-Concurrent
TOTAL TERM:
Suspended Imprisonment Order
18 Months Imprisonment
Suspension Period 12 Months
Start Date: 17 February 2017
6.2[Dr Dhillon], a dental practitioner who was at all material times prior to 25 January 2017 registered under the National Law, and from 25 January 2017 ceased to be registered under the National Law, has behaved in a way that constitutes professional misconduct by reason of:
(a)His failure to give [the Board] notice within 7 days that he had been charged, on or about 13 March 2015, with three counts of obtaining a benefit by fraud, contrary to section 409(1)(c) of the Criminal Code (WA) (the Charges), criminal offences punishable with a term of imprisonment of 12 months or more, as required by section 130(1) of the National Law.
(b)[Dr Dhillon's] conduct set out in the preceding paragraph was aggravated by the fact at the time that he failed to disclose the Charges, he had already been served with an application brought by [the Board] in this Tribunal in VR 238 of 2014, alleging that he had failed to disclose other criminal charges and convictions.
(c)Consequently, [Dr Dhillon] had already had the nature of the obligation imposed by section 130(1) of the National Law expressly drawn to his attention by the time that he was served with the Prosecution Notice containing the Charges, and nonetheless still failed to disclose the charges.
The Tribunal's powers in relation to penalty and costs
The Board accurately submitted:
8.The National Law provides that if a Tribunal finds that a practitioner has behaved in a way that constitutes professional misconduct under s 196(1)(b) of the National Law, it may amongst other things:
(a)caution or reprimand the practitioner;
(b)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner; and/or
(c)disqualify the person from applying for registration as a registered health practitioner for a specified period or prohibit the person from using a specified title or providing a specified health service.
9.The Tribunal may also make costs orders it considers appropriate, pursuant to s 195 of the National Law, and section 87(2) of the State Administrative Tribunal Act 2004 (WA).
The orders sought by the Board
The Board seeks the following orders:
(a)[Dr Dhillon's] conduct is such that he cannot be considered to be a fit and proper person to be registered, which would justify a finding that had [Dr Dhillon] still been registered as a dental practitioner under the National Law, the Tribunal would have cancelled his registration.
(b)[Dr Dhillon's] conduct would also justify an order pursuant to section 196(4)(a) of the National Law disqualifying [Dr Dhillon] from applying for registration for a period of between two to five years.
(c)[Dr Dhillon's] conduct would justify an order pursuant to s 196(4)(b) of the National Law prohibiting [Dr Dhillon] from using the title 'Doctor' or providing any health service, which prohibition should apply until [Dr Dhillon] is returned to the register of health practitioners under the National Law.
(d)The period of disqualification imposed in these proceedings should be cumulative upon the period of disqualification imposed by the Tribunal in Dental Board of Australia and Dhillon, which will end on 25 July 2019.
(e)[The Board] seeks an order pursuant to s 195 of the National Law, or alternatively s 87(2) of the State Administrative Tribunal Act 2004 (WA) that [Dr Dhillon] pay [the Board's] costs of these proceedings to be fixed in a sum of $45,000.
General principles in relation to penalty
In Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20 (Dhillon [No 2]) at [6]-[19], the Tribunal set out the general principles in relation to penalty as follows:
6Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Medical Board of Australia and Veettill [2015] WASAT 124 (S) (Veettill) at [14] citing Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
7The Tribunal repeats what it stated in Medical Board of Australia and Myers [2014] WASAT 137 (S) (Myers). The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41]; Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 ; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 4400441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24]-[26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 at [21] and [77]).
8The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Veettill at [15], citing Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
9There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each finding as to conduct, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (Veettill at [16]). Alternatively, where the practitioner's conduct, if considered alone, would be subsumed in the more serious conduct, it is appropriate to impose a global penalty.
10The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the conduct (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
11It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 211-212, A Solicitor [2004] NSW).
12As the Tribunal explained in A Legal Practitioner (S) at [24]:
... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]
…
Disqualification from registration
14Although penalties for cancellation and suspension are not available by reason of the fact that Dr Dhillon is no longer registered, the principles applicable to cancellation and suspension provide useful guidelines for considering whether and what period of disqualification from registration should operate.
Cancellation of registration
15The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession: Veettill at [18] citing Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
16Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a practitioner: Veettill at [19] citing A Solicitor [2004] NSW at [15].
17A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19][20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] [28]); Love at [17][18]; Veettill at [19]).
Suspension
18Suspension is a less serious result and differs from cancellation of an practitioner's registration because suspension is for a specified limited period (Myers at [20]).
19The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]; Myers at [21]).
The 12 matters for consideration in determining penalty
The Board accurately submitted:
10.The considerations which apply to penalty in disciplinary cases were articulated by this Tribunal in Medical Board of Australia and Myers (Myers), and confirmed in Medical Board of Australia and Veetill (Veetill) and many subsequent decisions, most recently in Nursing & Midwifery Board of Australia and Roe (Roe). There are 12 matters which may require consideration in determining penalty. Those matters are interrelated and are not mutually exclusive or exhaustive. The twelve matters are:
(a)Any need to protect the public against further misconduct by the practitioner.
(b)The need to protect the public through general deterrence of other practitioners from similar conduct.
(c)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.
(d)In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
(e)Whether the practitioner has breached any:
(i)Act;
(ii)Regulations;
(iii)Guidelines or Code of Conduct, issued by the relevant professional body; and
(iv)whether the practitioner has done so knowingly.
(f)Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
(g)Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
(h)The practitioner's disciplinary history;
(i)Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
(j)The desirability of making available to the public any special skills possessed by the practitioner.
(k)The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice.
(l)The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
11.Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public.
12.The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations.
13.There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription.
14.Where findings against a person are part of a course of behaviour, the Tribunal may also impose a global penalty.
15.The principles relating to cancellation and suspension of registration offer some guidance for the determination of a suitable period before the respondent is able to reapply for registration.
16.The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the profession.
17.Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a health practitioner. The same consideration would apply to the making of a finding that the Tribunal would have cancelled registration, and the determination of a period of prohibition from applying for registration.
18.A practitioner is not a fit and proper person to be a registered health practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise.
19.Serious dishonesty is an obvious example of where cancellation of a practitioner's registration is appropriate.
Analysis of the case
Is there a need to protect the public against further misconduct by Dr Dhillon?
The Board submitted:
22.The public clearly requires protection against further misconduct by [Dr Dhillon].
23.The findings in this matter encompass a range of conduct, from failure to disclose criminal charges to the registration authority, to conviction on three counts of serious and premeditated fraud committed in the context of obtaining loans purportedly for the purchase of equipment for his dental practice.
24.The public are entitled to expect that:
(a)Health practitioners will make the registration disclosures required of them under the National Law, so that [the Board] and AHPRA are in a position to investigate their background and conduct to ensure that only those that are properly qualified and of good character may practice.
(b)Health practitioners will act with scrupulous honestly in all aspects of their practice and conduct, including in their commercial dealings.
The Tribunal accepts the Board's submissions.
Is there need to protect the public through general deterrence of other practitioners from similar conduct?
The Board submitted:
25.Judge Sweeney in sentencing the respondent in relation to the convictions which are the subject of these proceedings made the following observations in relation to deterrence:
(a)There was a high need for general deterrence in relation to frauds on financial companies. There was also a need for specific deterrence, but the opportunity to commit further fraud may be limited by the respondent's personal circumstances.
(b)Mental health issues do not reduce need for general deterrence.
26.There is a clear prima facie need for deterrence in the imposition of penalty in these disciplinary proceedings.
27.In terms of general deterrence:
(a)Health practitioners and all professional people should be aware that serious dishonesty of any kind is likely to result in interference with registration
(b)Health practitioners and all professional people must be discouraged from lack of candour with regulators, as the legislative scheme is reliant upon that candour
28.There is also a clear public interest in the imposition of a penalty which reflects the high standards of the profession of dentistry. Dishonesty and lack of candour should be denounced in order to uphold the standards of the profession.
29.In this case, [Dr Dhillon's] conduct is so serious and reflective of such a lack of the qualities necessary to be a member of the profession of dentistry, that nothing short of an order preventing him from applying for registration, using the honorific title 'Doctor' or administering any health service would achieve the objective of deterrence and maintenance of the standing of the profession[.]
The Tribunal accepts the Board's submissions in paras 25 to 29 above.
Dishonesty, and whether the public and fellow practitioners can place reliance on the word of Dr Dhillon
The Board submitted:
32.Judge Sweeney in sentencing [Dr Dhillon] in relation to the convictions which are the subject of these proceedings made the following observations in relation to [Dr Dhillon's] offending:
(a)The fraud the subject of the charges involved a business loan for the purchase of dental equipment which [Dr Dhillon] entered into with a finance company, Investec Professional Finance Pty Ltd (Investec).
(b)The loan allowed him to claim interest payments as tax deductions.
(c)[Dr Dhillon] and a Mr Richard Dunn (Mr Dunn) inflated the amounts required for dental equipment by generating fictitious duplicate invoices from legitimate invoices, creating the impression that [Dr Dhillon's] company had purchased precisely twice the amount of dental equipment as it actually had.
(d)[Dr Dhillon] doctored American Express credit card statements to include entries for the fictitious entries below legitimate entries to give the impression he had paid for identical pieces of dental equipment (for which he then received advances of loan funds from Investec).
(e)[Dr Dhillon] signed funding notices for three fictitious purchases, and Investec transferred funds on the strength of those notices.
(f)It was [Dr Dhillon] who personally benefited from these transactions (and not Mr Dunn) as [Dr Dhillon] received the funds through his company, Dental Horizons Pty Ltd.
(g)The point of the frauds was to enable [Dr Dhillon's] business to maximise borrowing potential and for [Dr Dhillon] to have access to money for his own purposes on the terms of a business loan without fetter as to how the money was spent.
(h)Investec was defrauded of a total of $80,469.27.
(i)[Dr Dhillon] lured Mr Dunn into the enterprise.
(j)The evidence against [Dr Dhillon] was overwhelming.
(k)[Dr Dhillon's] defence was that Mr Dunn had committed the frauds without his knowledge. This was implausible.
(l)Mr Dunn was sentenced to 12 months' imprisonment suspended for 12 months.
(m)The offences were serious, and premeditated. They involved serious dishonesty and a significant sum of money was involved. They involved sustained dishonesty.
(n)In [Dr Dhillon's] favour, the money was ultimately repaid to Investec (but the company had to sue him to have the money returned and it was not repaid as any expression of remorse).
33.In light of the findings of Judge Sweeney in sentencing [Dr Dhillon] and the findings of the Tribunal, neither the public, the profession, regulatory authorities, insurers or financial institutions could place reliance upon the word of [Dr Dhillon].
34.Public confidence in the profession, and the protection of the public at large both demand that only scrupulously honest people are allowed to practise in professions. The public expects health practitioners to be 'scrupulously honest'.
35.Honesty is fundamental to the concept of professionalism. Premeditated dishonesty, for personal gain, and in the course of practice, would seem to be inimical to membership of any profession.
36.It is critical that dentists and other health practitioners, employers and institutions be able to rely upon the honesty of their colleagues. This is important both to patient safety and the standing of the profession in the eyes of the public.
37.Registration boards must also be able to rely upon the veracity of practitioners, in relation to both registration and disciplinary matters. Registration is routinely granted and renewed in reliance upon the representations of practitioners on various subjects, including criminal history, health, qualifications and disciplinary history. Lack of candour with a board ought be subject to significant censure.
As the Tribunal stated in Dhillon [No 2] at [34] and [37]-[40]:
34If a professional person is prepared to be dishonest with his/her professional body, the public is entitled to be concerned whether she/he is committed to or capable of honesty with them: Psychologists Registration Board of Victoria v Ferriere (2000) PRBD (Vic) 3 at [23] and Medical Board of Western Australia v Bham [2006] WASAT 190 (Bham) at [54].
…
37In light of the Tribunal's findings, neither the public, the profession, the health insurance funds, nor the regulator could place any reliance upon the word of the practitioner.
38Public confidence in the profession, and patient safety, both demand that only scrupulously honest people are allowed to practise in professions. The public expects health practitioners to be 'scrupulously honest' (Bham at [54]).
39Honesty is fundamental to the concept of professionalism. Calculated dishonesty of this magnitude, in such a range of contexts, is inimical to membership of a profession.
40It is critical that dentists and other health practitioners, employers and institutions be able to rely upon the honesty of their colleagues: Chan v The Nurses Board of Western Australia [2005] WASAT 115 at [89]. This is important both to patient safety and the standing of the profession in the eyes of the public.
Dr Dhillon's conduct reflects serious, calculated dishonesty. The Board's submissions at paras 32 to 37 are accepted by the Tribunal.
The Tribunal has also taken into account what it said in Dhillon [No 2] above. Neither the public, nor fellow practitioners, nor the Board could place any reliance on Dr Dhillon's word. Dr Dhillon's dishonesty is inimical to membership of the dental profession.
Breach of Act, Regulation, Code or Guideline, and whether Dr Dhillon has done so knowingly
The Board submitted:
38.On 14 October 2016, [Dr Dhillon] was found guilty and was convicted of three counts of obtaining a benefit by fraud contrary to section 409(1)(c) of the Criminal Code 1913 (WA) (convictions).
39.The findings of the sentencing judge are consistent with [Dr Dhillon] having committed these offences knowingly and for his own benefit.
40.The failure to inform [the Board] of criminal charges constitutes a breach of section 130(1) of the National Law.
41.The Tribunal has found that [Dr Dhillon] was charged with the relevant criminal offence on or about 13 March 2015.
42.On 2 January 2015, [Dr Dhillon] had been personally served with an application in disciplinary proceedings initiated by [the Board] in this Tribunal in VR 238 of 2014. One of the findings made in those proceedings was that [Dr Dhillon] had failed to disclose other, earlier criminal charges and convictions to [the Board] as required to by s 130 of the National Law.
43.The Tribunal has now found that [Dr Dhillon] had been made aware of his obligations pursuant to s 130(1) of the National Law when he failed to make the s 130(1) National Law disclosure relevant to these proceedings.
The Tribunal accepts the Board's submissions.
Incompetence
The Board submitted:
44.The conduct in this matter would not reflect upon professional competence, but rather upon [Dr Dhillon's] probity and possession of the qualities of character necessary to be a member of a profession.
The Tribunal accepts the Board's submissions.
Was the conduct isolated? / Dr Dhillon's disciplinary history
The Board submitted:
45.These two issues are interrelated and should be considered together.
46.The conduct which led to the three criminal convictions the subject of these proceedings occurred on 15 October 2013 and 21 October 2013.
…
49.[The Board] submits that the prior disciplinary findings made by this Tribunal in VR 238 of 2014 are relevant to penalty in this case:
(a)Dr Dhillon engaged in unprofessional conduct in that he:
(i)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) ands 130(3)(b) of the National Law; and
(ii)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) ands 130(3)(b) of the National Law.
(b)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.
(c)Dr Dhillon engaged in professional misconduct when he:
(i)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;
(ii)produced the clinical notes on 10 January 2014, to an AHPRA investigator appointed by the Board under the National Law without indicating that the notes did not reflect the dental services actually provided;
(iii)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
(iv)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.
(v)Dr Dhillon knowingly made claims to HBF for Item 982 and Item 961 for which he had already been paid by the Groupon voucher.
(vi)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.
(d)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.
50.On 25 January 2017, the Tribunal disqualified [Dr Dhillon] from applying to register as a dental practitioner for a period of two years and six months (as his registration had already lapsed).
51.The findings in the earlier Tribunal proceedings:
(a)Are demonstrative of dishonesty in a range of professional contexts (billing, dealing with insurers and financial institutions and in dealing with regulatory authorities).
(b)Evidence previous failures to make the criminal history disclosures required by the National Law.
52.As a result of his recent disciplinary history in this Tribunal, it cannot be said that the conduct of which he has now been found guilty is isolated. Nor can it be said that [Dr Dhillon] was unaware of the need for candour with the Board.
The Tribunal accepts the Board's submissions.
Whether or not Dr Dhillon understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof)
The Board submitted:
53.The onus of proof in relation to insight is on the respondent in disciplinary proceedings. [Dhillon 1 at [50]]
54.He has not participated in these proceedings to date, so there is no evidence of insight or remorse before the Tribunal.
55.Judge Sweeney in sentencing found that in the respondent's favour, the money was ultimately repaid to Investec (but the company had to sue him to have the money returned and it was not repaid as any expression of remorse).
56.It is submitted that the respondent's conduct of the criminal proceedings, combined with his failure to engage with these proceedings, are factors that might weigh against a finding of insight or remorse.
The Tribunal accepts the Board's submissions. Dr Dhillon has not demonstrated any remorse.
Are there any special skills possessed by Dr Dhillon?
The Board submitted:
57.… [Dr Dhillon] does not possess any special skills which would influence any penalty to be imposed.
The Tribunal accepts the Board's submissions.
The practitioner's personal circumstances
The Board submitted:
58.Although [Dr Dhillon] did not take part in these proceedings, his personal circumstances relevant to the convictions are set out by Judge Sweeney in her sentencing remarks.
59.Relevantly, Judge Sweeney found as follows:
(a)At the time of committing these offences, [Dr Dhillon] was separated from his wife and did not at that time have access to his children.
(b)In 2010, his general practitioner diagnosed him with a minimum brain injury, frontal lobe symptoms and depression and referred him to a psychiatrist. A psychiatrist had assessed him as suffering from Adult Attention Deficit Syndrome, for which he received dexamphetamine. This was ceased in October 2016 because of the emergence of paranoid ideation.
(c)[Dr Dhillon] had been diagnosed with a paranoid disorder in the context of an adjustment disorder, by psychiatrist Dr Schineau. [Dr Dhillon] discussed the offences with him in a way which indicated paranoid ideation. Dr Schineau said [Dr Dhillon] was not suffering active psychosis. The paranoia may have arisen as a result of the use of dexamphetamine. The psychiatrist did not support a diagnosis of brain injury.
(d)Dr Schineau found it difficult to accept that any mental disorder impaired [Dr Dhillon's] ability to make calm, rational choices or appreciate the moral and legal wrongfulness of his conduct. He did not support a connection between mental health and offending, but it may have caused [Dr Dhillon] to need money.
(e)[Dr Dhillon] may have some antisocial personality features but without testing, the psychiatrist could not diagnose them.
(f)[Dr Dhillon] told an assessing psychologist he was homeless. He asked the psychologist to lie to police regarding the reason he was late to report for bail.
(g)The psychologist found elevations on the delusional disorder scale, indicating an acutely paranoid state. She found [Dr Dhillon] to be fragile, and to have great difficulty acknowledging failure on his part. She said that he failed to reflect upon his role in situations, and instead developed intricate stories where institutions were out to control him, because he had uncovered fraud by them.
(h)There was not a clear link between mental health and the offending.
(i)From 2010, [Dr Dhillon] appeared to have been considered to have had a mental health issue.
(j)The sentencing judge was prepared to infer that at the time of the offences, [Dr Dhillon] had compromised mental health and a personality which allowed him to justify his dishonesty.
(k)[Dr Dhillon] had lost his business, and had really lost everything. He had gone from being a dentist to a homeless person obsessed with imaginary conspiracies. He had paid a high price for the offending.
(l)[Dr Dhillon's] mental health was compromised.
(m)A term of imprisonment was required.
(n)The term of imprisonment imposed should be suspended in light of the fact that the relevant company got its money back.
(o)[Dr Dhillon] had lost his livelihood, and had significant mental health issues which gave rise to a concern about his ability to manage a prison term.
60.Although the sentencing judge did not find a clear link between [Dr Dhillon's] mental health and the offending, there may be a basis for a lower penalty than might otherwise have been imposed in this case, having regard to [Dr Dhillon's] mental state at the time he offended/failed to disclose charges.
61.For instance, it might be seen to reduce to some extent moral culpability for the impugned conduct.
62.To accord this factor too much weight however would be to overlook the protective role of disciplinary proceedings especially for misconduct which involves dishonesty.
The Tribunal accepts the Board's submissions. The Tribunal has made some discount for Dr Dhillon's mental health.
Any other matters relevant to Dr Dhillon's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness
The Board submitted:
63.In this case, it is submitted that the imposition of a global penalty is appropriate because all of the conduct found by the Tribunal is a course of conduct from offence, to criminal charge, failure to disclose that charge, followed by conviction. Further, [Dr Dhillon's] convictions and the conduct underlying them, are sufficiently serious to justify disqualification from applying for registration for a considerable period (which would subsume any lesser penalty for the finding that [Dr Dhillon] breached s 130(1) National Law).
64.The Tribunal has found that [Dr Dhillon's] failure to give [the Board] notice within 7 days that he had been charged with three counts of obtaining a benefit by fraud was aggravated by the fact at the time that he failed to disclose those charges, he had already been served with an application brought by [the Board] in VR 238 of 2014, alleging that he had failed to disclose other criminal charges and convictions.
65.A finding that the Tribunal would have cancelled [Dr Dhillon's] registration if he had still been on the register would appear to be more than justified on the facts, and would express disapprobation of the impugned conduct.
66.An order disqualifying [Dr Dhillon] from applying for registration for a considerable period would appear to be an appropriate order in circumstances where a practitioner has behaved in a way that means that he is not a fit and proper person to be registered.
67.The imposition of a significant period of disqualification from applying for registration will have a number of significant effects:
(a)It will send a message to those that may be minded to transgress in a similar way in future that dishonesty and lack of candour with regulators will not be tolerated.
(b)It will provide an indication of how seriously the Tribunal regards [Dr Dhillon's] conduct.
(c)It will allow the Tribunal to exercise its authority to ensure applications for registration are not allowed for the period necessary to protect the public.
(d)It will mean that [the Board] will not be troubled with applications for registration that are doomed to fail (which given [the Board] is funded by registration fees from registered health practitioners, is very much in the public interest).
68.[The Board] submits that the Tribunal should also make an order prohibiting [Dr Dhillon] from using the honorific title 'doctor' or providing health services unless and until he is again registered under the National Law to protect the public from:
(a)the provision of any unregistered health services during disqualification;
(b)being misled in relation to the right to practise dentistry by the use of the title 'doctor'.
69.This order would be very much in the public interest because the National Law does not prohibit dental practice by unregistered persons (except in so far as it makes it an offence to perform certain 'restricted dental acts' and to make a claim as to registration). The title 'Doctor' is not a protected title under the National Law.
70.The prohibition on providing health services whilst unregistered and banning the use of the title doctor should also serve to underline how seriously the Tribunal regards [Dr Dhillon's] conduct.
…
72.The Tribunal should also consider whether (by analogy with the criminal sentencing process in relation to persons serving an existing sentence at the time of sentence) any period of disqualification should run concurrently with or be cumulative upon the period of disqualification imposed by the Tribunal in the earlier SAT VR 238 of 2014.
73.By analogy with criminal sentencing, the Tribunal might decide upon the penalty which it thinks appropriate in these proceedings, then review the aggregate effect of the penalty in this case with that imposed in SAT VR 238 of 2014 and consider whether the totality is just and appropriate.
74.The following matters favour the imposition of a cumulative period of disqualification:
(a)The conduct in these proceedings is factually distinct from the conduct in the earlier proceedings: the proceedings involved different episodes of misconduct.
(b)Arguably, concurrence with the penalty in the earlier proceedings would be insufficient to reflect the seriousness of the findings in these proceedings.
75.The totality principle, is not a means by which an offender can escape condign punishment for a series of offences of the same nature committed over a period of time.
In Dhillon [No 2] at [22] in relation to Dr Dhillon's previous penalty the Tribunal stated:
In this case, the imposition of a global penalty is appropriate. That is because Dr Dhillon's separate conduct, when considered together, is sufficiently serious to warrant a finding that he is disqualified from applying for registration. Hence, any less significant penalty which might be appropriate if some allegations stood alone, would be subsumed in the more serious finding.
The Tribunal accepts the Board's submissions in paras 63 to 70. The Tribunal has considered the Board's analogy to criminal sentencing in its submissions in paras 72 and 73. Some allowance should be made for the fact that a period of disqualification is already in place.
A global penalty is appropriate.
Having regard to all the factors set out above a further period of disqualification from applying to be registered as a dental practitioner is appropriate.
Had Dr Dhillon been registered as a dental practitioner, his conduct would have warranted the cancellation of his registration. Dr Dhillon's conduct is so serious that he is indefinitely unfit to practice.
If Dr Dhillon were not presently disqualified from practice an appropriate period of disqualification from applying for registration would be four years. Taking into account that he is presently disqualified an appropriate period of disqualification is three years from when his past period of disqualification ends. This makes some allowance for his present disqualification whilst also recognising the seriousness of his conduct.
Dr Dhillon should also be disqualified from using the title 'Doctor' until, if and when, he again attains registration as a dental practitioner.
Costs
In Dhillon [No 2] at [60]-[62] the Tribunal stated:
60The Tribunal may make any order about costs it considers appropriate for the proceedings, pursuant to s 195 of the National Law, and s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
61The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 (in de Braekt) at [51] and [53] as follows:
Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].
62Despite what the Tribunal stated in in de Braekt, every case must be considered individually on its merits bearing in mind s 87 of the SAT Act. There is no presumption that a disciplinary body will be awarded costs if successful.
In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016]WASCA32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
46The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
…
51Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
The Board submitted:
77.[The Board] was successful on all allegations. On that basis, the [Board] submits that it should be entitled to an order that [Dr Dhillon] pay its costs of the proceedings.
78.[Dr Dhillon] did not participate in these proceedings. The cost of these proceedings was substantially increased by [Dr Dhillon's] failure to engage with the proceedings, and the consequent need to serve material in multiple ways, and provide evidence of service of materials upon him.
79.In addition, the loss of the opportunity to settle these proceedings at an early mediation, have also resulted in a likely increase in the costs of the proceedings for [the Board].
80.[The Board] seeks its costs to be fixed in a sum of $45,000.00. A schedule of costs incurred is submitted with these submissions. It shows that [the Board] has incurred costs of $46,476.33.
The Tribunal accepts the Board's submission on costs and fixes the costs at $45,000.
Orders
1.Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010, Randeep Singh Dhillon is disqualified from applying for registration as a dental practitioner for a period of three years commencing on 26 July 2019 and following the completion of his current period of disqualification which ends on 25 July 2019.
2.Pursuant to s 196(4) of the Health Practitioner Regulation National Law (WA) Act 2010, Randeep Singh Dhillon is prohibited from using the title 'Doctor' or providing any health service, which prohibition should apply until he is returned to the register of health practitioners.
3.Pursuant to s 195 of the Health Practitioner Regulation National Law (WA) Act 2010 and s 87(2) of the State Administrative Tribunal Act 2004 (WA), Randeep Singh Dhillon is to pay the Dental Board of Australia's costs of these proceedings to be fixed in the sum of $45,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
19 OCTOBER 2018
31
2