Dental Board of Australia v Nairn
[2022] WASAT 86
•21 SEPTEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: DENTAL BOARD OF AUSTRALIA and NAIRN [2022] WASAT 86
MEMBER: PRESIDENT PRITCHARD
MS P LE MIERE, MEMBER
DR C PEARS, SENIOR SESSIONAL MEMBER
HEARD: 23 MARCH 2022
FURTHER SUBMISSIONS 6 APRIL 2022 AND 8 APRIL 2022
DELIVERED : 21 SEPTEMBER 2022
FILE NO/S: VR 65 of 2021
BETWEEN: DENTAL BOARD OF AUSTRALIA
Applicant
AND
NATALIIA NAIRN
Respondent
Catchwords:
Vocational regulation - Dental practitioner - Where parties agreed proper cause exists for disciplinary action against practitioner and that practitioner engaged in professional misconduct - Appropriate penalty in relation to agreed misconduct - Appropriate costs order
Where practitioner convicted of offences under Emergency Management Act 2005 (WA) for failing to self-quarantine during COVID-19 pandemic - Practitioner reprimanded - Practitioner's registration suspended for seven months - Practitioner's registration to be subject to condition requiring practitioner to be mentored by another registered health practitioner for 12 months
Costs - Tribunal's assessment of costs - Approach to determination of fair and reasonable costs order - Where applicant sought costs of $28,454.81 - Respondent ordered to pay applicant's costs fixed in the sum of $7,500
Legislation:
Emergency Management Act 2005 (WA)
Health Practitioner Regulation National Law (WA), s 5, s 156(1), s 195, s 196(2), s 196(4)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(2), s 87(2)
Result:
Penalty and costs orders made
Category: B
Representation:
Counsel:
| Applicant | : | Ms H Cormann |
| Respondent | : | Mr T Pontre |
Solicitors:
| Applicant | : | King & Wood Mallesons |
| Respondent | : | Panetta McGrath Lawyers |
Case(s) referred to in decision:
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia and Pepulani [2021] WASAT 128
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Mustac v Medical Board of Western Australia [2004] WASCA 156
Nadkarni v Medical Board of Australia [2022] WASCA 109
Panegyres v Medical Board of Australia [2020] WASCA 58
Panegyres v Medical Board of Australia [2020] WASCA 58 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
Re A Practitioner (1984) 36 SASR 590
Singh v Medical Board of Australia [2019] WASCA 51
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Young v Legal Profession Complaints Committee [2022] WASCA 52
REASONS FOR DECISION OF THE TRIBUNAL
Introduction
On 23 March 2022, the Tribunal made an order, with the consent of the parties, to the effect that the Tribunal was satisfied that proper cause existed for disciplinary action against the respondent, Dr Nairn (Order). The Tribunal found that, by reason of the conduct (Conduct) set out in paragraphs 5 to 22 of the agreed facts which were contained in Annexure A to the Order (Agreed Facts), Dr Nairn had behaved in a way that constituted professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (WA) (National Law) set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
These reasons should be read in conjunction with the Agreed Facts, a copy of which is annexed to these reasons. The same abbreviations as are used in the Agreed Facts are also used in these reasons.
The Order did not address the question of the orders which should be made against Dr Nairn in respect of the Tribunal's finding of professional misconduct (penalty), nor any costs which might be awarded to compensate the applicant (Board) for the cost of bringing these proceedings. The questions of penalty and costs were the subject of written submissions, and a hearing at which the Tribunal received documentary evidence, and oral evidence from Dr Nairn.
The Conduct described in the Agreed Facts in fact comprised a range of conduct by Dr Nairn, committed on eight separate occasions. The parties agreed, and the Tribunal accepted, as reflected in the Order, that the Conduct (as a whole) constituted professional misconduct, rather than a number of separate instances of professional misconduct.
For the reasons that follow, we have concluded, in summary, that the following orders by way of penalty should be made in respect of the professional misconduct in which Dr Nairn engaged:
a)Dr Nairn will be reprimanded in respect of the Conduct which constituted professional misconduct;
b)Dr Nairn's registration as a dentist will be suspended for seven months; and
c)Dr Nairn's registration will, with effect from the conclusion of the period of suspension, be subject to a condition that once she recommences practice, she must be mentored by another registered health practitioner, who is a dentist, for a period of 12 months.
In addition, Dr Nairn should pay the Board's costs, fixed in the sum of $7,500 within 12 months, or within such other period as may be agreed between Dr Nairn and the Board.
The Tribunal understands that Dr Nairn was represented in these proceedings by her solicitors and counsel on a pro bono basis, which was organised through the Tribunal's pro bono scheme. Given the difficult financial circumstances in which Dr Nairn has found herself, there can be no doubt that she would not have had the benefit of legal representation without the willingness of those legal practitioners to act on a pro bono basis. The Tribunal recognises, and is grateful for, the pro bono legal assistance provided by all legal practitioners who participate in its pro bono scheme.
Principles in relation to the imposition of a penalty under the National Law
The Tribunal's finding that Dr Nairn had engaged in professional misconduct was, in effect, a finding that the Conduct constituted unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner (in this case a dentist) of an equivalent level of training or experience.[1]
[1] See the definition of 'professional misconduct' in s 5 of the National Law.
Under s 196(2) of the National Law, if the Tribunal makes a decision that the practitioner has behaved in a way that constitutes professional misconduct it may decide to do one or more of the following:
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
If the Tribunal decides to cancel a person's registration, then the Tribunal may also decide to disqualify the person from applying for registration as a registered health practitioner for a specified period, or prohibit the person, either permanently, or for a stated period, from providing any health service or a specified health service, or using any title or a specified title.[2]
[2] National Law s 196(4).
The Tribunal may also make any costs orders that it considers appropriate.[3]
[3] National Law s 195, and see also State Administrative Tribunal Act 2004 (WA) (SAT Act) s 87(2).
The general legal principles which apply to penalties in vocational disciplinary matters are well settled. The Tribunal's discussion of those principles, in the context of proceedings against a medical practitioner, in Medical Board of Australia and Singh[4] was approved by the Court of Appeal in Singh v Medical Board of Australia.[5] Those principles were recently re-stated by the Court of Appeal in Nadkarni v Medical Board of Australia.[6] Those principles apply equally in the case of dentists, who are also subject to the National Law. Those principles may be summarised as follows.
[4] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Medical Board of Australia and Singh).
[5] Singh v Medical Board of Australia [2019] WASCA 51 (Singh).
[6] Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni).
First, the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.[7]
[7]Singh [30]; Panegyres v Medical Board of Australia [2020] WASCA 58 (S) at [6]; Nadkarni [66].
Secondly, the protection of the public has various dimensions. They may include an immediate need to protect the public from the practitioner's conduct. In addition, there may be a need to bring home to the practitioner the seriousness of their conduct, and a need to deter the practitioner from future breaches. An order directed to the latter aspects of the protection of the public involves personal deterrence. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct. An order of that kind may thus be regarded as akin to 'general deterrence'.[8]
[8]Singh [32]; see also Mustac v Medical Board of Western Australia [2004] WASCA 156 at [126]; see also Nadkarni at [66].
Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.[9]
[9]Singh at [33].
Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that the practitioner is unfit to practise their profession. Where a medical practitioner is 'permanently or indefinitely unfit to practise, [cancellation of registration] rather than suspension will (at least ordinarily) be the appropriate response'.[10] Permanent or indefinite unfitness to practise (at least ordinarily) will be a sufficient basis for cancelling the practitioner's registration, but it is not a necessary condition for cancellation. That is because the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to the exercise of that power.[11]
[10]Singh at [34], [37]; referring to Khosa v Legal Profession Complaints Comittiee [2017] WASCA 192 at [192].
[11]Singh at [38], referring to Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 (Chen) at [17] (Basten JA, Leeming and Payne JJA agreeing).
The Tribunal also has the power, under s 196(4)(a) of the National Law, to make an order specifying a period within which a person is disqualified from applying for registration as a registered health practitioner. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally. That being the case, all of the various aspects of the protection of the public (discussed above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.[12]
[12] Singh at [40], [43].
Fixing a period within which re-registration may not be sought indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession. But it also permits the possibility that an application for re-registration after that period will be considered. In determining what order to make, the Tribunal will consider all aspects of the possible orders available to it.[13] It is a matter for the Tribunal to determine the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period.[14]
[13] Chen at [22] (Basten JA, Leeming and Payne JJA agreeing).
[14] Singh at [45].
In contrast, an order for the suspension of a practitioner must be based upon a view that at the end of the period of suspension, the practitioner will be fit to practise.[15]
[15] Nadkarni at [68].
Fifthly, the Tribunal is able to impose a 'global' penalty in the alternative to individual penalties for each instance of unprofessional conduct or professional misconduct. That may be appropriate in circumstances where the facts of the case are inextricably woven together or where the penalty for a less serious transgression may be subsumed by the penalty for a more serious transgression.[16]
[16] Singh [2017] WASAT 33 (S) at [29]; Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20 at [9].
Sixthly, the appropriate sanction is to be considered at the time of the imposition of the sanction, and not by reference to the date of the unprofessional acts.[17]
[17] Medical Board of Australia and Singh at [24].
Seventhly, in determining the appropriate penalty, the Tribunal engages in the exercise of a discretion. In order to reach a decision, the Tribunal must evaluate and weigh a broad range of factors, including the purpose of disciplinary proceedings, the relevant facts, the various penalty options available, sanctions or penalties imposed in previous cases bearing some similar features to the case in question, personal and general deterrence, the practitioner's personal circumstances and antecedents, and any mitigating factors.[18]
[18] Nadkarni at [69].
In Medical Board of Australia and Singh,[19] the Tribunal identified twelve possible considerations which may be relevant in determining an appropriate penalty. While those considerations are not exhaustive, they provide a useful framework for considering the circumstances of this case relevant to penalty. The parties proceeded on that basis. We will do likewise.
[19] Medical Board of Australia and Singh at [30].
All of these matters are to be considered in the context of the Tribunal's findings as to liability; that is, its findings as to the seriousness of the practitioner's conduct and the practitioner's explanation for it.[20]
[20] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [30(1)]-[30(2)].
We commence by setting out our findings of fact relevant to penalty.
Findings of fact relevant to penalty
For the purposes of the penalty hearing, the parties supplemented the Agreed Facts with an affidavit and documentary evidence.
The Board tendered a book of documents,[21] which included:
•documents relating to the police investigation of, and the criminal proceedings for, the eight criminal offences (offences) of which Dr Nairn was convicted, namely breaches of the Emergency Management Act 2005 (WA) (EM Act);
•documents relating to the sentencing hearing in the Magistrates Court on 9 November 2020, including a psychological report in relation to Dr Nairn which was obtained for the purposes of the sentencing hearing (Psychological Report) and copies of character references tendered on Dr Nairn's behalf in those proceedings;
•documents pertaining to the Board's investigation of the Conduct, and its decision, by way of immediate action, to suspend Dr Nairn's registration as a dentist;
•copies of media articles in relation to the offences, and in relation to Dr Nairn's conviction for the offences (Convictions);[22] and
•a copy of the Dental Board of Australia Code of Conduct (Code of Conduct).
[21] Exhibit 1.
[22] Exhibit 1, pages 453-458.
The Board also filed a supplementary book of documents,[23] which contained:
•a transcript of an interview in which Dr Nairn participated on radio station 98.7FM on 24 February 2021 (Radio Interview); and
•a copy of a statement (Go Fund Me Statement) prepared by Dr Nairn in support of a Go Fund Me page which was established to raise funds for her benefit after her release from prison.
[23] Exhibit 2.
Dr Nairn filed two affidavits for the purposes of the penalty hearing,[24] together with two books of documents[25] which contained:
•seven character references; and
•copies of media articles, and an article published on an online dental news service, about Dr Nairn's convictions for the offences.[26]
[24] Exhibits 4 and 5.
[25] Exhibits 3 and 6.
[26] Exhibit 3, pages 9-22.
Save in two respects, Dr Nairn's affidavit evidence was unchallenged. The contested aspects of Dr Nairn's evidence were:
i)her claims of remorse for the Conduct, in light of evidence concerning her participation in the Radio Interview, and her preparation of the Go Fund Me Statement; and
ii)whether her employer was aware that she was subject to the first direction and the second direction.
In so far as Dr Nairn's evidence was unchallenged, we accept it. We discuss the contested aspects of Dr Nairn's evidence later in these reasons.
Dr Nairn's personal circumstances and prior experience as a dentist
Having regard to Dr Nairn's unchallenged evidence, and to the documentary evidence, we make the following findings.
Dr Nairn was born in 1989 and is presently 33 years of age.[27] She was born in Ukraine, and spent much of her formative years there.
[27] ts 29, 23 March 2022.
Dr Nairn's mother resides in Ukraine. Her father resides in the United States.[28] She has one sibling, a brother, with whom she is in regular contact.[29] Dr Nairn has no family support in Australia, and few close friends.[30]
[28] Exhibit 1, pages 220-221.
[29] Exhibit 1, page 223.
[30] Exhibit 4, para 49.
Dr Nairn was an academically talented student. She commenced university studies at 15 years of age,[31] and graduated with a Bachelor of Dental Science from Kiev Medical University in Ukraine in 2011,[32] when she was about 22 years of age.
[31] Exhibit 1, page 221.
[32] Exhibit 4, para 4.1.
When she was 17 years old, Dr Nairn married an Australian man, who was 29 years older than her.[33] In 2012, they relocated to Kazakhstan for his work, and she undertook a General Dental Postgraduate Internship at Kazakh National Medical University.[34] Dr Nairn and her husband then lived in Asia before moving to Australia. Dr Nairn arrived in Australia in February 2014.[35]
[33] Exhibit 1, page 222.
[34] Exhibit 4, para 4.2.
[35] ts 28, 23 March 2022.
Dr Nairn then completed a Bachelor of Oral Health in Dental Science and a Graduate Diploma of Dentistry from Griffith University in Queensland, graduating in 2017.[36]
[36] Exhibit 4, para 4.3.
After graduating from Griffith University, Dr Nairn worked for about two and a half years as a general dentist in five dental practices in New South Wales, the Australian Capital Territory (ACT), Victoria and Western Australia.[37]
[37] Exhibit 4, para 5.
Dr Nairn and her husband separated in 2016. She was left with significant debt after the breakdown of their relationship.[38]
[38] Exhibit 1, page 222.
Dr Nairn formed a relationship with another man in 2016. They lived in Canberra, during which time Dr Nairn worked at a dental clinic in Canberra. That relationship ended at the beginning of 2020.[39] However, Dr Nairn continued to have contact with her partner's family, and his stepfather (Mr L'Estrange) provided her with a character reference in these proceedings. In that reference, Mr L'Estrange noted that Dr Nairn was residing with his stepson.[40] It appears, therefore, that the relationship resumed at some stage in 2021.
[39] Exhibit 1, page 219.
[40] Exhibit 6, page 6.
After the breakdown of that relationship in 2020, Dr Nairn decided to relocate from Canberra to Perth.[41] However, after she relocated to Perth, she continued to treat patients of her former employer in Canberra. Prior to engaging in the Conduct, she had been visiting Canberra about once a month for that purpose.[42]
[41] Exhibit 1, page 219.
[42] Exhibit 1, page 224.
While Dr Nairn was employed at the time of the Conduct, her unchallenged evidence, which we accept, was that at no time before she engaged in the Conduct was any professional support or mentoring available to her.[43]
[43] Exhibit 5, para 43.
As is noted in the Agreed Facts, on 9 November 2020, Dr Nairn was sentenced to seven months' imprisonment, to serve two months' immediate imprisonment, and with the remaining five months' imprisonment suspended for eight months.
Since her release from prison, Dr Nairn has had difficulty finding any employment, given her criminal record.[44] Dr Nairn is presently unemployed. She does not receive any social security benefits. She is reliant on support from her partner and his family, with whom she is currently living.[45]
[44] Exhibit 4, para 43.
[45] ts 69, 23 March 2022.
Dr Nairn's professional reputation has been damaged by the Conduct, her conviction and imprisonment, and the resulting media exposure.[46]
The Conduct
[46] Exhibit 4, para 44.
We turn, now, to consider the Conduct itself. In the Order, we found that Dr Nairn had engaged in professional misconduct on the basis of the Agreed Facts. The Conduct is described in detail in the Agreed Facts. However, the parties made submissions as to further findings we should make in relation to the Conduct, for the purpose of assessing its seriousness relevant to the issue of penalty.
Having regard to those submissions, we make the following additional findings as to the Conduct. We find that Dr Nairn's professional misconduct comprised conduct which can be characterised in four ways:
i)the commission of criminal offences, on each of the occasions on which she left the Respondent's residence while subject to the first direction or the second direction;
ii)exposure of her patients to a potential risk to their health, on each of the occasions on which, after having left the Respondent's residence in breach of the first direction or the second direction, she treated patients at the dental practice where she was employed;
iii)dishonesty, when, on 18 June 2020, she misled the police during a record of interview, by telling them that she had self-quarantined in compliance with the first direction, when that was false; and
iv)the breach of various provisions of the Code of Conduct, when she left the Respondent's residence on each of the occasions in May and June 2020, and treated patients, and further, on 18 June 2020, when she misled the police during their investigation.
We are also satisfied, and we find, that the Conduct involved professional misconduct of a serious kind, for the following reasons.
First, this was not a case in which Dr Nairn engaged in the Conduct on a single occasion. Although, as we have already explained, the Order was that the Conduct, as a whole (as described in paragraphs 5 to 22 of the Agreed Facts) constituted professional misconduct by Dr Nairn, rather than multiple discrete instances of conduct amounting to professional misconduct, the fact remains that Dr Nairn engaged in aspects of the Conduct on eight separate occasions.
Counsel for Dr Nairn submitted that the Conduct comprised two broad periods of misconduct, which should properly be viewed as one course of conduct.[47] We are unable to accept that submission. On six separate occasions during May 2020 - namely on 21, 22, 25, 27, 28 and 29 May 2020 - Dr Nairn left the Respondent's residence in breach of the first direction, and treated patients, and in doing so, also acted in breach of the Code of Conduct. On another occasion, on 17 June 2020, she left the Respondent's residence in breach of the second direction, and treated patients, and in doing so, acted in breach of the Code of Conduct. On a further occasion, on 18 June 2020, she left the Respondent's residence in breach of the second direction, and treated patients, and subsequently misled police officers when she participated in a record of interview later that evening (in so far as she claimed to have complied with the first direction), and in doing so, acted in breach of the Code of Conduct.
[47] ts 53, 23 March 2022.
Secondly, we are satisfied, and we find, that Dr Nairn engaged in the Conduct in conscious disregard of the first direction and the second direction. Each of those directions was expressed in unequivocally clear terms. They left no doubt about the requirement for Dr Nairn to remain inside the Respondent's residence for 14 days (subject to any contrary direction, or in the event of a threat to her safety).[48] Given the clear terms of each direction, it can be inferred, and we find, that on each occasion, Dr Nairn necessarily made a conscious decision not only to leave the Respondent's residence, but also to see patients at the dental practice. In doing so, she risked exposing her patients to possible infection with COVID-19, if it were to transpire that she herself had contracted COVID-19 while travelling interstate. We note that the learned sentencing Magistrate described Dr Nairn's criminal offending as conduct which was 'not isolated and was deliberate. She repeatedly ignored the clear direction[s]'.[49] In so far as the Conduct involved the commission of the offences, we respectfully agree with, and adopt, that characterisation.
[48] Exhibit 1, pages 75-78.
[49] Exhibit 1, page 23.
Furthermore, when Dr Nairn treated patients on 18 June 2020, we find that she did so in conscious disregard of the fact that compliance with the second direction was being enforced by the police. The police visited Dr Nairn at the Respondent's Residence on the evening of 17 June 2020, to check she was complying with the second direction. After that visit, it could not have been clearer to her that compliance with the second direction was not only expected but was being enforced. We note that the learned sentencing Magistrate described that aspect of Dr Nairn's conduct as 'an egregious act of defiance and willingness to ignore the directions even after police involvement'[50] which showed 'a contemptable disregard for the direction and police involvement in enforcing those directions'.[51] We agree with those observations.
[50] Exhibit 1, page 26.
[51] Exhibit 1, page 27.
Thirdly, in so far as the Conduct involved the commission of the offences, those were serious instances of the offence of failing to comply with a direction. That much was accepted by Dr Nairn's counsel at the sentencing hearing,[52] and the learned sentencing Magistrate concluded that the offending fell within the upper range of seriousness for this type of offence.[53]
[52] Exhibit 1, page 19.
[53] Exhibit 1, page 24.
Fourthly, in so far as the Conduct involved exposing her patients to a potential risk to their health, namely the risk of contracting COVID19 if it transpired that Dr Nairn had herself contracted COVID19 during her interstate travel, we find that that aspect of the Conduct, of itself, involved a serious departure from the standards of behaviour reasonably expected of a dentist of her training and experience, because of the importance of infection control measures in that profession. We are mindful that, as events transpired, Dr Nairn did not, in fact, have COVID-19, nor did she infect any of her patients. However, at the time Dr Nairn engaged in the Conduct, there was nevertheless a risk that she may have contracted COVID-19 during her interstate travel, and if that had occurred, there was a risk that she could also infect her patients with COVID-19. It was in that way that the Conduct posed a potential risk to the health of Dr Nairn's patients. We find that, at the time, that was a not insignificant potential risk, having regard to the number of patients involved (41 in total); the fact that the potential risk was not confined to Dr Nairn's patients, but extended to each of the people with whom those patients might come in contact; and to the fact that when Dr Nairn engaged in the Conduct, the body of scientific and public health knowledge of the health risks of COVID-19 was still developing, and no COVID-19 vaccine was available to the Australian public.
Fifthly, in so far as the Conduct involved dishonesty, we find that that aspect of the Conduct, of itself, clearly fell below the standards of behaviour reasonably expected of a dentist of Dr Nairn's training and experience. For the avoidance of doubt, we consider that the dishonesty involved in the Conduct concerned Dr Nairn's untruthful statement to the police, on 18 June 2020, that she had complied with the first direction. Counsel for the Board submitted that each criminal offence committed by Dr Nairn involved dishonesty. We do not agree with that characterisation. Those breaches are better viewed as a breach of the public trust reposed in each person permitted to self-isolate pursuant to a direction rather than being confined to a hotel room. However, in our view, that breach of trust did not add to the seriousness of the criminal offending per se.
Dr Nairn's statement, to the police, that she had complied with the first direction, is a different matter. It was clearly a dishonest statement. Dishonesty by a health professional, such as a dentist, will constitute at least unprofessional conduct because honesty and integrity on the part of every dentist is essential for ensuring patients can rely on the advice given to them by their dentist, that dentists can be assured of the honesty of their colleagues in their professional dealings with them, and that public confidence in the profession can be maintained. However, the seriousness of each instance of dishonesty must be judged by reference to the context in which it occurred. When Dr Nairn made the dishonest statement to the police, she was a socially isolated woman, who found herself in trouble with the police, and who no doubt was anxious about further ramifications if her breaches of the first direction were discovered. In those circumstances, and having regard to the character references which we discuss below, it can be inferred, and we find, that her dishonesty was spontaneous and reflected a poor exercise of judgment made on the spur of the moment, rather than an intrinsic character flaw.
In so far as the Conduct involved breaches of the Code of Conduct, we have taken the view that those breaches, which reflected the underlying Conduct,[54] did not, in and of themselves, add to the overall seriousness of the Conduct.
[54] For example, section 1.1 of the Code of Conduct requires that dental practitioners 'must always act in accordance with the law', while section 1.2 requires that dental practitioners 'must be ethical and trustworthy'.
For completeness, we note that counsel for the Board made two submissions, bearing on the seriousness of the Conduct, which we are, with respect, unable to accept. Counsel for the Board submitted that having regard to the evidence, it could be inferred that if it were not for the actions and investigations of the police on 18 June 2020, Dr Nairn 'would have continued to offend and breach the directions in place until 30 June 2020 [that is, until the end of the quarantine period] and continued to see patients and expose them and the community to the health risks associated with the COVID-19 outbreak.'[55] Counsel for the Board also submitted that 'had Dr Nairn taken a later period of interstate travel and returned to Western Australia … she would likely have again offended, breached directions and exposed patients and the community to infection'.[56] We do not consider that it is open to us to draw either inference, for two reasons.
[55] Applicant's Submissions para 37(a).
[56] Applicant's Submissions para 37(b).
First, in this case, to do so would give the Conduct a different characterisation to that which it warrants based on the Agreed Facts. The Board's disciplinary proceedings alleged professional misconduct based on what Dr Nairn did, rather than what she might have done.
Secondly, the evidence did not support either inference. There was no evidence as to whether Dr Nairn had plans to visit Canberra after June 2020, for the purpose of treating patients there. There was no evidence - apart from two appointments which appear to have been made for 19 June 2020 - to support an inference that Dr Nairn would have continued to see patients throughout the balance of the remainder of her quarantine period (which was not due to end until 30 June 2020).
Dr Nairn's explanation for the conduct
Dr Nairn acknowledged the seriousness of her misconduct, but sought to provide an explanation for it. In that respect, Dr Nairn pointed to six matters.
First, Dr Nairn's evidence was that she 'feared that if I did not go to work, my employer would terminate my employment'.[57]
[57] Exhibit 4, para 8.2.
Secondly, Dr Nairn pointed to the fact that she had 'little support in a new country and was under significant financial pressures that required me to attend work. This included having unpaid tuition debts …, travelling expenses between WA and [the] ACT, having limited family financial support and significant regular outgoings including rent and other living expenses'.[58] Dr Nairn said that she was receiving wages of $800 per week from Discount Dental at the time.
[58] Exhibit 4, para 8.3.
Thirdly, Dr Nairn said that she 'felt committed to providing dental services to my patients'.[59]
[59] Exhibit 4, para 8.6.
We accept that Dr Nairn's concern about the security of her employment, and her financial position, contributed to her decision to breach the first direction and second direction, to attend work and to see patients at the dental practice on the various occasions when she was subject to the directions. We also accept that Dr Nairn's commitment to her patients contributed to those decisions on her part.
Fourthly, Dr Nairn stated that she 'had no symptoms of COVID19'[60] at the time she engaged in the Conduct.
[60] Exhibit 4, para 8.4.
Fifthly, Dr Nairn said that she had 'taken precautions against contracting COVID-19 when travelling by wearing personal protective equipment'.[61] We understood that to amount to a submission that because she had taken precautions against contracting COVID-19, Dr Nairn did not consider, and certainly did not intend, that she would pose any risk to the patients she treated.
[61] Exhibit 4, para 8.5.
We accept Dr Nairn's evidence as to the latter two matters. While we accept that Dr Nairn believed that she was not a risk to patients because she had taken precautions to avoid contracting COVID-19 while travelling interstate, that belief reveals a surprising degree of either naivety, or ignorance, on the part of a health practitioner. The learned sentencing Magistrate expressed a similar view.[62] Dr Nairn's belief also revealed a degree of hubris, manifested in a willingness to disregard the expert health advice that had been well-publicised in the community about the risk of transmission of COVID-19, and which health advice was quite clearly reflected in the first and second directions. However, we find that that naivety or ignorance, on the one hand, and hubris on the other hand, are to some extent explained by the fact that, at the time of the Conduct, Dr Nairn was a socially isolated and relatively inexperienced dentist who did not have the benefit of the guidance of a more senior dental practitioner with whom she could have discussed her intended course of action before she engaged in the Conduct.
[62] Exhibit 1, pages 19 – 20.
Finally, by way of explanation for the Conduct, Dr Nairn said that her employer, Discount Dental in Joondalup, had scheduled patients for her to see 'despite their knowledge of the quarantine regulations and that I was travelling from [the] ACT to WA'.[63] This was one of the aspects of Dr Nairn's evidence which was contested. It is convenient to turn to consider all of the evidence in relation to that issue.
[63] Exhibit 4 para 8.1.
We understood the import of Dr Nairn's evidence to be that her employer knew that she was subject to the requirement to quarantine, yet required her to see patients nevertheless. In addition to explaining the Conduct, this aspect of Dr Nairn's evidence appeared intended to mitigate the seriousness of the Conduct.
The Board disputed Dr Nairn's evidence, and pointed to the existence of evidence which it submitted undermined Dr Nairn's claim, namely a statement contained in the police running sheet of their investigation into Dr Nairn's breaches of the directions. The running sheet contained a note indicating that police officers attended the Discount Dental practice in Joondalup and spoke to the practice manager who told them that Dr Nairn 'had informed her that she did not have to SQ [self-quarantine] and that appropriate paperwork had been completed to allow her to work'[64] (Alleged Statement).
[64] Exhibit 1, page 64.
Dr Nairn denied that she had told her employer that she was not required to quarantine. Her evidence was that 'I … thought I was exempt, because I'm a health professional [but]… I never actually told her that.'[65] (Later in her evidence, Dr Nairn clarified that before she travelled to the ACT in May 2020, she had thought she was exempt from quarantine requirements, but upon her return to Perth on 18 May 2020 it was made clear to her that she was not exempt from those requirements. Dr Nairn confirmed that she was not suggesting that at any point thereafter she thought she was exempt from the requirement to quarantine).[66]
[65] ts 27, 23 March 2022.
[66] ts 28, 23 March 2022.
We do not give the Alleged Statement any weight, for the following reasons. First, the Alleged Statement constitutes hearsay. The Board did not call the practice manager to give evidence. Although the Tribunal is not required to apply the rules of evidence,[67] we are nevertheless mindful of the risk that hearsay evidence may be unreliable. Furthermore, the veracity of the Alleged Statement may be open to doubt. It is not difficult to envisage possible reasons why Dr Nairn's employer may have been concerned to give the police a version of events which denied knowledge of the directions, or of Dr Nairn's breaches of the directions. Without the opportunity to hear from Dr Nairn's employer in relation to the Alleged Statement, we do not place any weight on it. Secondly, and in any event, the Alleged Statement does not specify when Dr Nairn is said to have told her employer that she was exempt from the requirement to quarantine. The Alleged Statement therefore does not support a finding as to when Dr Nairn told her employer that she was not required to quarantine.
[67] SAT Act s 32(2)(a).
We return, then, to Dr Nairn's evidence that during the period of the Conduct, her employer had scheduled patients for her to see 'despite their knowledge of the quarantine regulations and that I was travelling from [the] ACT to WA'. In cross-examination, it became apparent that, at best, Dr Nairn had assumed that her employer was aware of the requirement for her to quarantine. Dr Nairn's evidence was that she told her employer that she was going to the ACT to treat patients. As to whether she told her employer that she had a direction to quarantine, Dr Nairn's evidence was that 'I don't think I told her directly'[68] and that she had assumed that her employer knew she would be subject to quarantine requirements.[69] Viewed in its totality, Dr Nairn's evidence does not support a finding that her employer in fact knew that she was subject to the directions.
[68] ts 26, 23 March 2022.
[69] ts 26, 23 March 2022.
What, then, should we make of Dr Nairn's reliance, by way of explanation for the Conduct, on her assumption that her employer knew of the requirement for her to quarantine, and nevertheless booked appointments for her to see patients? We are prepared to accept that as a result of appointments having been made for her to see patients, Dr Nairn felt some pressure to continue to go to work, notwithstanding that she was subject to the first direction and the second direction to quarantine. However, we do not consider that that adds anything to the fact that Dr Nairn felt pressured to go to work, for fear that her employment would be terminated if she did not, and because she was in some financial distress. We proceed on that basis.
Disciplinary history, suspension from practice and its impact on Dr Nairn
Returning to the uncontested evidence, it was not in dispute, and we find, that Dr Nairn had not been the subject of any previous disciplinary proceedings, or criminal proceedings, until she engaged in the Conduct.[70]
[70] Exhibit 4, para 7.
On 4 August 2020, the Board took immediate action to suspend Dr Nairn from practising as a dentist (IA Suspension). The IA Suspension has continued since then. By the time of publication of our decision, Dr Nairn will have been suspended from dental practice for over 25 months.
We accept Dr Nairn's evidence, and we find, that she has suffered significant financial hardship as a result of the IA Suspension, which precluded her from engaging in dental practice.
Furthermore, according to the psychological report, Dr Nairn 'not only takes significant pride in her role as a dentist, but … her work is a core, if not predominant, component of her sense of identity'.[71] There can be no doubt that her inability to work as a dentist during her suspension has had an adverse impact on Dr Nairn's sense of identity. Prior to her convictions, Dr Nairn was a competitive powerlifting athlete, who competed at international level. However, her criminal convictions and the present disciplinary proceedings have taken a physical and mental toll on her, and she has not trained as a power lifter for over two years.[72]
[71] Exhibit 1, pages 218 and 224.
[72] Exhibit 4, para 47.
Dr Nairn wishes to resume dentistry, and in the first instance, hopes to work for two to three days per week.[73] Dr Nairn would like to specialise as an orthodontist in the future.[74] Dr Nairn also says that she intends to 'work and give back to the community and the dental profession' and that she is 'motivated to work to provide dental services to poor and disadvantaged Australians'.[75] We accept that evidence.
Remorse and insight
[73] Exhibit 4, para 20.
[74] Exhibit 4, para 23.
[75] Exhibit 4, para 21.
Dr Nairn deposed that '[i]n hindsight and upon reflection of (sic) my conduct, I understand that my actions had the potential to put large numbers of people in the community at risk and I regret engaging in it'.[76] She said that she was 'deeply embarrassed and ashamed by [her] conduct and … apologise[d] sincerely for it'.[77]
[76] Exhibit 4, para 9.
[77] Exhibit 4, para 10.
Dr Nairn accepted that she 'made an error of judgment in misleading police … and I acknowledge that it was wrong to do so'.[78] Dr Nairn stated that she was committed to avoiding the repetition of any similar conduct in the future, and believed that various steps she had taken towards rehabilitation would ensure that there was no likelihood of repetition.[79]
[78] Exhibit 5, para 48.
[79] Exhibit 4, para 12.
As we have indicated, the genuineness of Dr Nairn's claim of remorse for the Conduct was challenged by counsel for the Board, having regard to evidence concerning the Radio Interview and the Go Fund Me Statement. We turn to deal with that evidence before making findings in relation to the extent of Dr Nairn's remorse for the Conduct.
Radio Interview
On 24 February 2021, Dr Nairn participated in the Radio Interview on Perth community radio station 98.7FM. Mr Travis Carter hosted the Radio Interview.
In a supplementary affidavit that she filed for the purposes of the penalty hearing, Dr Nairn explained how she came to participate in the Radio Interview. Her evidence was that she had been released from prison on 9 January 2021 and at the end of February 2021, was 'still struggling emotionally and mentally'.[80] She said that at the time she 'was still in a very emotional state; angry and frustrated, because I felt that I had been unfairly treated'.[81]
[80] Exhibit 5, para 5.
[81] Exhibit 5, para 30.
Dr Nairn explained that she was contacted by a Mr Michael Darby, who had become aware of her circumstances, and who suggested that she should participate in an interview on radio to encourage awareness for her situation and to raise money for a lawyer to assist her to return to practice.[82] Mr Darby introduced her to Mr Carter, the host of a chat show on 98.7FM.
[82] Exhibit 5, paras 6 and 9.
The transcript of the Radio Interview was in evidence. In the course of the radio interview, Dr Nairn said, in summary, that:
i)she went to work, despite being subject to the directions, because her employer had instructed her to do so;[83]
ii)she went to jail 'for crossing the State border for COVID';[84]
iii)she agreed with statements put to her by Mr Carter to the effect that she had been made an example, and that she was a 'political prisoner' who had been prosecuted 'purely for political points';[85]
iv)if she had had the opportunity, at the time of the Radio Interview, to say something to the sentencing Magistrate, she 'was thinking so I'm … qualified dentist in three different countries, I'm Australian citizen and that's how you treated me when no one was hurt' (sic);[86] and
v)she said that she had been given a 'life sentence' as the Australian Health Practitioner Regulation Authority (AHPRA) had suspended her licence.[87]
[83] Exhibit 2, page 9.
[84] Exhibit 2, page 13.
[85] Exhibit 2, page 14.
[86] Exhibit 2, page 15.
[87] Exhibit 2, page 16.
Dr Nairn's evidence was that she 'agreed to appear on the show without thinking it through very well'.[88] She said that at the time she was unemployed, had no idea what she would do for financial support and 'did not think I had anything to lose'.[89] Dr Nairn also said that during the interview, she was very emotional and 'not in a good head space'.[90] She did not have any advance notice of the questions Mr Carter proposed to ask, and was not well-prepared.[91]
Go Fund Me Statement
[88] Exhibit 5, para 10.
[89] Exhibit 5, para 12.
[90] Exhibit 5, para 17.
[91] Exhibit 5, para 18.
Dr Nairn's evidence was that during the Radio Interview, Mr Carter suggested that he establish a Go Fund Me page to raise funds to assist Dr Nairn to obtain a lawyer to help her regain her registration as a dentist, and to cover her living expenses. Mr Carter invited her to write a statement to be published on the Go Fund Me page. Dr Nairn agreed to do so.[92]
[92] Exhibit 5, para 26.
A copy of the statement that Dr Nairn wrote for the Go Fund Me page was in evidence. Dr Nairn confirmed that she wrote that statement herself.[93] In it, Dr Nairn wrote, amongst other things, that:
On Nov 9th 2020 I was sentenced to 7 months with 9 weeks imprisonment, with the remained (sic) of the term suspended for a period of eight months for coming to work as a dentist after crossing inter-state border!
…
I have practised in Canberra for 2 years and relocated to Perth in early 2020. Travelled back to see my patients, as a health professional, as a responsible practitioner, as of MY Duty of Care to my patients - there was no other way to do it! As a trained scientist in a medical discipline, I was fully aware that I was not carrying the disease and had NO risk to all of my patients. Police and the Judge did not allege that any of my patients had at any time shown symptoms of COVID-19.
…
What is it? A Classic Victimless Crime. Run by current Government. … It is impossible to escape the conclusion that both Police Prosecutor and the Magistrate were told by a government representative "We want an example made of this woman!" … This will not be left like this … I thought I was a Dentist … Well, I am. A good one. But now it is becoming a fight against government who Breaches Human Rights! Who Breached my Rights, several times.
[93] ts 18, 23 March 2022.
Dr Nairn's evidence was that the funds raised through the Go Fund Me page amounted to $1,431.[94]
Our findings about Dr Nairn's remorse in light of the Radio Interview and the Go Fund Me Statement
[94] Exhibit 5, para 27.
Counsel for the Board submitted that the onus was on Dr Nairn to establish that she was sincere in her expressions of remorse, and that she had insight into the seriousness of the Conduct. She submitted that while Dr Nairn had admitted, at an early stage, the allegations of misconduct against her, she had only acknowledged her misconduct when presented with incontrovertible evidence gathered by the police.[95] Counsel for the Board also submitted that Radio Interview and the Go Fund Me Statement cast doubt on the genuineness of Dr Nairn's previous claims of remorse and insight.[96] Counsel submitted that the Tribunal therefore should not accept Dr Nairn's most recent claims that she was remorseful, and had insight, much less her earlier claims to that effect.[97]
[95] Applicant's Submissions para 74.
[96] ts 34, 23 March 2022.
[97] ts 30, 23 March 2022.
There is considerable merit in those submissions but we do not accept them in their entirety.
We regarded Dr Nairn's explanation for why she participated in the Radio Interview as entirely candid. Dr Nairn frankly admitted that at the time of the Radio Interview 'I did not properly appreciate the seriousness and consequences of my conduct'.[98] Dr Nairn also acknowledged that she 'did not have good insight into [the Conduct] at the time of the Interview'.[99]
[98] Exhibit 5, para 31.
[99] Exhibit 5, para 35.
Viewed in isolation, the comments made by Dr Nairn in the Radio Interview might be characterised as thoughtless or careless agreement with the questions of an interviewer who was clearly prosecuting an agenda of opposition to the government's COVID-19 response. However, the same cannot be said for the Go Fund Me Statement, which was prepared very shortly after the Radio Interview. There was nothing to suggest that the Go Fund Me Statement reflected anything but Dr Nairn's own view of her situation. The contents of the Go Fund Me Statement suggest a complete lack of appreciation, on Dr Nairn's part, of the seriousness of the Conduct and what was expected of her as a dental practitioner.
Consequently, we find that at the time she participated in the Radio Interview and prepared the Go Fund Me Statement, Dr Nairn did not demonstrate an appreciation of the seriousness of the Conduct, and of why the Conduct constituted a substantial departure from the conduct that would reasonably be expected of a dentist of an equivalent level of training or experience.
More significant for present purposes, however, is whether Dr Nairn now appreciates the seriousness of the Conduct, and of why it constituted a substantial departure from the conduct that would reasonably be expected of a dentist of an equivalent level of training or experience.
Dr Nairn's evidence was that as a result of the mentoring and education in which she had participated, her understanding of the Conduct had changed.[100] Dr Nairn said that she now realised that the Conduct 'put large numbers of people at risk, including my own patients' and accepted that 'I lacked [the] professional judgment and selfawareness required of a dental practitioner'.[101] Dr Nairn said that she now has 'a much better understanding and appreciation of the potential devastating impacts of COVID-19 on the community, public health, and the reasons for restrictions to manage the risk to public health by COVID-19'.[102]
[100] Exhibit 5, para 32.
[101] Exhibit 5, para 33.
[102] Exhibit 5, para 36.
Dr Nairn accepted that she did not engage with a mentor until February 2022, and that this had been arranged by her lawyers. She denied that she had undertaken the continuing professional development in order to be able to tell the Tribunal that she had engaged in education, consistent with her claim to have been rehabilitated.[103] In our view, the fact that Dr Nairn did not enjoy the benefits of any mentoring until February of this year is entirely consistent with her professional isolation prior to that point in time. In those circumstances, and given her financial difficulties, the fact that the mentoring Dr Nairn has now received was organised by her lawyers should not be viewed as detracting from any growth in her professional development which it has achieved.
[103] ts 24, 23 March 2022.
But for the evidence of Dr Hughes and Dr Hallett, we would have approached, with some scepticism, Dr Nairn's claims that she now has an appreciation of the seriousness of the Conduct and feels genuine remorse for it. However, in light of the evidence of Dr Hughes and Dr Hallett, we are persuaded that Dr Nairn does now have insight into why the Conduct fell below the standard reasonably expected of a dentist with her experience and training. We also accept that Dr Nairn's expressions of remorse, as at the date of the hearing, should be accepted as genuine. We turn to explain our reasons for that conclusion.
Mentoring and education from Dr Hughes and Dr Hallett
Dr Hughes is a dentist who is the Clinical Director for a dental practice which appears to operate a number of dental centres.[104] Between early February 2022 and the date of the hearing, Dr Nairn had the benefit of mentoring from Dr Hughes. They met regularly during that period.[105]
[104] Exhibit 3, page 26.
[105] Exhibit 6, page 10.
That mentoring has involved discussions about matters such as the Conduct itself, Dr Nairn's actions since she engaged in the Conduct; processes which will support Dr Nairn's return to dentistry, including the completion of educational courses, how to maintain current knowledge of COVID-19 restrictions, and restrictions applicable to the dental profession in particular, and risk management principles applicable to dentistry.[106]
[106] Exhibit 4, paras 25, 28-29.
Dr Hughes confirmed that Dr Nairn had 'been very eager to engage in discussions and processes which will support her return to dentistry' and that she had completed a number of courses run by the dental practice of which Dr Hughes was a director.[107]
[107] Exhibit 3, para 26.
Dr Nairn has also engaged in some education in ethics and professional development with the assistance of Dr Hallett, who is the Chief Executive Officer of the Australian Dental Association Western Australia Branch. He was introduced to Dr Nairn in early October 2021.[108] Dr Hallett provides education, collegiate support and mentoring for dental students and the dental profession, in relation to professionalism and ethics as they relate to dentistry.[109]
[108] Exhibit 6, para 4.
[109] Exhibit 6, page 4.
In October 2021, Dr Hallett gave a presentation to Dr Nairn on professionalism and ethics in contemporary dental practice, which was an interactive session of two hours' duration.[110] Dr Nairn also undertook a number of modules of online professional development during February 2022.[111]
[110] Exhibit 6, page 4.
[111] Exhibit 4, para 30; Exhibit 3 pages 4-8.
Dr Nairn recognised that 'as a recently graduated practitioner dentist, I need mentoring and I do need help. Not just in the practical issues but in the ethicals'.[112] Furthermore, through her mentoring with Dr Hughes, Dr Nairn has identified the potential benefits of consulting a psychologist 'in an effort to assist me to further understand and process my actions and the events of the last 18 months'.[113] Dr Nairn's evidence was that '[f]rom this experience and the ensuing professional development and mentoring experiences, I have learned valuable lessons about the importance of public health in dental practice and ensuring maintenance of the highest possible ethical standards to ensure public health measures are adhered to'.[114] As we have already noted, Dr Nairn's evidence was that before she engaged in the Conduct, she did not have such supports or help available to her.[115] We accept that that was the case.
[112] ts 23, 23 March 2022.
[113] Exhibit 4 para 26. At the time of swearing her affidavit dated 3 March 2022, Dr Nairn had not yet accessed the assistance of a psychologist, as she was waiting to access bulk-billed psychology services: Exhibit 4 para 27.
[114] Exhibit 4, para 13.
[115] Exhibit 5, para 43.
Dr Nairn's evidence as to what she has learned, and her insight into the Conduct, as a result of this mentoring and education, was supported by letters of reference provided by Dr Hughes and Dr Hallett.
In a letter dated 21 February 2022, Dr Hughes reported that she and Dr Nairn had met on three occasions since early February 2022. At that stage, Dr Hughes expressed a somewhat guarded opinion. She said:
Dr Nairn has displayed a deep sense of remorse relative to the events which occurred in 2020. Dr Nairn is extremely regretful for what has occurred and has accepted responsibility for her decisions and actions. There is no question that this has been an extremely challenging experience for Dr Nairn, and I hope that as a promising young dentist, she will be able to return to practice having learned a valuable lesson about the importance of public health. …
Dr Nairn has expressed a great love for dentistry and is understanding of the position her actions placed her patients in. Dr Nairn is now making every effort to ensure that her patients' safety will be at the forefront of any future care she provides should she be able to return to practice. …
While Dr Nairn and I still have much to discuss, I believe that she is sincere in her wish to provide safe and appropriate care for her patients. … I sincerely believe that as a young dentist, Dr Nairn has much to offer the profession moving forward and that she will not repeat the mistakes of the past.[116]
(emphasis added)
[116] Exhibit 3, page 27.
However, in a further letter dated 21 March 2022,[117] Dr Hughes gave a more confident opinion about Dr Nairn's future in dentistry:
Dr Nairn has shown extreme remorse for her previous actions … and I am confident that Dr Nairn, if given the chance to practice dentistry again, will not repeat the mistakes of the past. While the penalties already applied will serve as a strong deterrent moving forward, I believe that Dr Nairn's passion for dentistry and serving others will ensure that she complies with the National Law and in particular the Code of Conduct relevant to registered dental practitioners.
…
While I have not seen Dr Nairn's clinical treatment, I have seen the joy it brings to her when she speaks of providing care for her patients. … She has shown much compassion for others during our discussions.
Dr Nairn is young, with a promising career ahead of her. She has made some poor decisions, which I believe she has learned from.
[117] Exhibit 6, page 10.
In a letter dated 25 October 2021,[118] Dr Hallett stated:
At times during our [education] session, she became upset and emotional. I was left in no doubt the criminal proceedings and incarceration have had a profound impact on her.
I remember Dr Nairn making comments, such as 'accepting full responsibility for her actions' and 'bringing the dental profession into disrepute'. Despite our limited contact I believe I recognised an overwhelming sense of shame and remorse.
In 2013 Dr Nairn had the overseas dental qualifications to be eligible in seeking registration as a dentist with AHPRA/Dental Board of Australia by undertaking examinations … . She chose the far more timeconsuming arduous route of seeking registration by committing to an additional 5 years of study at [Griffith University]. It must have taken considerable dedication to have undertaken such an onerous pathway to become registered and practise dentistry in Australia. There is no reason that with the assistance of appropriate collegiate support and mentoring that if Dr Nairn exhibits that same level of dedication and commitment any concerns in relation to future conduct in the future will be mitigated.
[118] Exhibit 6, pages 4-5.
6.On 16 June 2020 the Respondent arrived at Perth airport on Qantas flight QF571 from Sydney. The Respondent was given a direction to self-quarantine under the EM Act (second direction) at the Respondent's residence.
7.At approximately 8:55 pm on 17 June 2020, WA Police officers attended the Respondent's residence. The officers attempted to contact the Respondent by knocking on the door of the house and calling the Respondent's mobile phone number. The officers spoke to the Respondent and asked her to come to the front door of the residence. The Respondent claimed that she was at the residence, but she refused to present to the front door of the residence as requested by the officers.
8.At approximately 10:00 am on 18 June 2020, WA Police officers again attended the Respondent's residence. The Respondent did not answer the door or her mobile when the officers attempted to call her.
9.At approximately 4:40 pm on 18 June 2020, WA Police officers again attended the Respondent's residence. The Respondent did not answer the door or her mobile when the officers attempted to call her.
10.At approximately 8:30 pm on 18 June 2020, WA Police officers again attended the Respondent's residence. The Respondent was at the residence and agreed to participate in a recorded interview with the officers. In the course of that interview, the Respondent:
a.admitted to failing to comply with the second direction;
b.admitted that she understood the second direction and the requirement for her to remain in self-quarantine for 14 days;
c.advised the officers that she had worked at the practice on both 17 and 18 June 2020, in contravention of the second direction; and
d.claimed that she had self-quarantined for 14 days after arriving in Perth on 18 May 2020 and having been provided the first direction.
11.The Applicant's claim that she had self-quarantined for 14 days after arriving in Perth on 18 May 2020 and receiving the first direction was false.
12.WA Police obtained a number of records, including rosters, from the practice.
13.The roster records showed that the Respondent worked at the practice on the following dates:
a.on 21 May 2020, between 4:00 pm and 6:00 pm, during which time the Respondent treated seven patients;
b.on 22 May 2020, between 10:30 am and 1:00 pm, during which time the Respondent treated four patients;
c.on 25 May 2020, between 9:30 am and 5:00 pm, during which time the Respondent treated five patients;
d.on 27 May 2020, between 9:30 am and 11:00 am, during which time the Respondent treated three patients;
e.on 28 May 2020, between 9:00 am and 5:00 pm, during which time the Respondent treated five patients; and
f.on 29 May 2020, between 11:00 am and 5:30 pm, during which time the Respondent treated nine patients;
collectively, the May dates.
14.The roster records also showed that the Respondent worked at the practice on the following dates:
a.on 17 June 2020, between 9:00 am and 12:00 pm, during which time the Respondent treated four patients; and
b.on 18 June 2020, between 9:00 am and 5:00 pm, during which time the Respondent treated four patients,
collectively, the June dates.
15.At no time on the May dates or the June dates was the Respondent exempt under the EM Act from selfquarantine obligations.
16.The first direction and the second direction required that, after arriving at the residence, the Respondent was to remain inside the residence for a period of 14 days.
17.The Respondent left the residence on the May dates in breach of the first direction.
18.The Respondent left the residence on the June dates in breach of the second direction.
19.While in breach of the first and second directions, the Respondent attended the practice and she treated 41 patients in total on the May dates and the June dates.
20.On 19 June 2020 the Respondent was charged with eight separate offences of failing to comply with a direction under the Emergency Management Act 2005 (WA) (offences), and on 24 July 2020 the Respondent entered pleas of guilty to all charges and was convicted of the offences.
21.On 9 November 2020 the Respondent was sentenced to a seven month partially suspended sentence, comprising two months of immediate imprisonment, and the balance of five months suspended for a period of eight months.
22.The Respondent's conduct admitted above in paragraphs 6 to 22 was contrary to the following provisions of the Applicant's 'Code of Conduct' published under s 39 of the National Law in March 2014:
a.dental practitioners ''must always act in accordance with the law'' (section 1.1);
b.dental practitioners should ''ensure that they are aware of their legal obligations and act in accordance with them'' (section 1.1);
c.dental practitioners ''have a duty to make the care of patients or clients their first concern and to practise safely and effectively'' (section 1.2);
d.dental practitioners ''must be ethical and trustworthy'' (section 1.2);
e.patients or clients believe that their dental practitioners ''will display qualities such as integrity, truthfulness, dependability and compassion'' (section 1.2);
f.dental practitioners have a responsibility ''to protect and promote the health of individuals and the community'' (section 1.2);
g.dental practitioners have a responsibility ''to contribute to the effectiveness and efficacy of the health care system'' (section 5.1);
h.dental practitioners have a responsibility ''to promote the health of the community through disease prevention and control'' (section 5.4);
i.dental practitioners must minimise risk to patients or clients (section 6.1); and
j.dental practitioners ''must display a standard of behaviour that warrants the trust and respect of the community'', including by ''observing and practising the principles of ethical conduct'' (section 8.1).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EN
Associate to the Honourable Justice Pritchard
21 SEPTEMBER 2022
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