Gonzalez v Dental Board of South Australia - [2009] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GONZALEZ v DENTAL BOARD OF SOUTH AUSTRALIA
[2009] SASC 21
Judgment of The Honourable Justice Nyland
3 February 2009
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - DENTISTS - DISCIPLINE AND REMOVAL FROM REGISTER
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - DENTISTS - QUALIFICATION AND REGISTRATION - APPLICATION FOR REGISTRATION
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - DENTISTS - DENTAL BOARDS
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT
Dental practitioner’s name removed from Register – finding by Dental Professional Conduct Tribunal of unprofessional conduct following criminal convictions and sexual harassment of young female employee – Dental Board of New South Wales refused application for registration – appellant failed to advise University of Sydney of his lack of registration and failed to disclose his criminal record – further appeal to Supreme Court against limited registration granted by the Dental Board of South Australia under certain conditions on grounds that the conditions could not be fulfilled – limited registration granted after matter remitted by the Supreme Court for hearing afresh to the Dental Board of South Australia.
Appeal against the Dental Board of South Australia granting limited registration – appeal out of time – whether conditions imposed were unreasonable or unachievable – whether the Dental Board of South Australia has an obligation to safeguard the public.
Held: Appeal dismissed – Dental Board of South Australia took into account all relevant matters in determining appropriate conditions to attach to granted limited registration.
Dentists' Act (1984) SA s 4; Dental Practice Act (2001) SA ss 32, 37, 46, referred to.
Craig v Medical Board of SA (2001) 79 SASR 545, applied.
Reyes v Dental Board of South Australia [2002] SASC 239, discussed.

GONZALEZ v DENTAL BOARD OF SOUTH AUSTRALIA
[2009] SASC 21
Magistrates Appeal

NYLAND J: This appeal arises out of a decision of the Dental Board of South Australia (the Board) made on 23 October 2007. The appellant appeared in person on the hearing of the appeal. He also appears to have been unrepresented throughout his extensive dealings with the Board and some of the information which he provided on the hearing of the appeal was confusing. In order to understand the issues which arise for determination on this appeal, it is therefore necessary to review some of the history relating to the cancellation of the appellant’s registration as a dentist and his attempts to be reinstated.
History relating to cancellation of appellant’s licence
The appellant was born in Chile and migrated to Australia in 1988. He graduated from the University of Adelaide with a degree in dental surgery in about May 1996 and thereafter practised as a sole practitioner.. The appellant was subsequently charged with the crime of rape, which was alleged to have occurred on 15 July 1996, the victim being a 16 year old trainee employee. The appellant denied the charge and the matter proceeded to trial. The appellant was acquitted of the charge of rape but found guilty of indecent assault. The sentencing judge, however, described the indecent assault as a serious one of its type, due to the age difference between the two of them and on account of the victim’s vulnerable status. The judge referred to undisputed evidence before him that at the time of the offence the victim was crying, pouring her heart out to the appellant and confiding in him and the appellant had taken advantage of her. The appellant was sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months, which was suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months.
As a result of the conviction for indecent assault, on 4 July 1997 the Board laid a complaint of unprofessional conduct against the appellant. On 29 October 1997, the Tribunal found the appellant guilty of unprofessional conduct and suspended his registration for a period of 12 calendar months. The appellant then lodged an appeal against the order for suspension. On 22 January 1998, Perry J allowed the appeal and varied the period of suspension of registration by substituting a period of three calendar months.
On 27 November 1998, however, the appellant was apprehended by the police while driving a motor vehicle on King William Street, Adelaide whilst under the influence of intoxicating liquor. The appellant then assaulted the police officer and resisted arrest. The appellant eventually pleaded guilty to those three offences.
On 8 July 1999 a magistrate imposed a fine in respect of the charge of driving under the influence of intoxicating liquor and disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months, commencing on 10 July 1999. On the other two charges, the appellant was sentenced to a total period of three months’ imprisonment, which was suspended upon him entering into a bond to be of good behaviour for a period of three months. In suspending the sentence, the magistrate warned the appellant that this was a “last chance” for him and that if his record got worse, it might cause his professional board to consider whether he was a fit and proper person under the Act. Notwithstanding that warning, a short time thereafter, that is in about August 1999, at Morphett Vale, the appellant breached the order for disqualification by test driving a motor vehicle from a car yard on to a road.
The Registrar of the Board subsequently advised the appellant that he was considering whether the commission of the offences on the night of 27 November 1998 might amount to unprofessional conduct. The appellant, through his solicitors, then provided the Registrar with his version of the events, which was later shown to be untrue.
The Board also received a complaint alleging inappropriate conduct by the appellant between 16 July 1999 and 7 September 1999 with a young woman who at the relevant time was aged about 18 years and was employed by the appellant as a casual receptionist/secretary at his dental practice.
On 7 March 2000, the Board laid a further complaint of unprofessional conduct against the appellant. The complaint was subsequently amended to include all of these matters. The Board again found that the appellant had been guilty of unprofessional conduct. On 6 April 2001 the Board ordered the appellant’s registration as a dentist be cancelled and his name removed from the register.
The appellant subsequently appealed against that decision. The appeal was out of time, but Duggan J considered the merits of the appeal were relevant to the exercise of discretion to grant an extension and that it was appropriate to consider the grounds of appeal before returning to the application for extension of time.
In the course of his reasons, Duggan J considered the definition of unprofessional conduct with reference to s 4 of the Dentists’ Act 1984 SA and whether some conduct outside the course of practice could amount to unprofessional conduct. Duggan J said at [40]:
Given that the focus of attention is not punitive, but rather on fitness to practise, it seems particularly important to assess both the conduct and the context in which the conduct occurred. Previous conduct may be relevant if, when taken with the conduct immediately under consideration, it assists in disclosing a course of conduct or the manifestation of traits relevant to fitness to practise.
Duggan J thereafter examined the various complaints which had been made against the appellant and found at [52]:
The applicant has demonstrated in a number of ways that he is not a fit and proper person to practise dentistry. On two occasions within a short period of time he has taken advantage of the vulnerability of a young female employee to make advances of an offensive nature. On the first of these occasions these advances led to the commission of a sexual offence. In the same period the applicant has been sentenced on two occasions to sentences of imprisonment which have been suspended. The sentences reflect the seriousness of those matters. He was also contemptuous of a court order disqualifying his driving licence. He permitted a false version of the incident involving the police officers to be put before the Registrar. In my view the nature and extent of the unprofessional conduct justified the cancellation of the applicant’s registration as a dentist.
In the circumstances, Duggan J found the appeal to be without merit and the application for an extension of time was dismissed.
It seems that following his removal from the register, the appellant returned to Chile, where he practised dentistry for a period of time without informing the appropriate authority of his removal from the register in South Australia. He subsequently applied for, and was accepted, as a student in conscious sedation at the University of Sydney. This course would have required the appellant to treat patients under intravenous sedation, but he failed to advise the University that he did not have registration. He also failed to inform the New England Area Health Service of his lack of registration when he applied for employment with them, nor did he disclose his criminal record.
On 12 June 2003, the Dental Board of New South Wales refused an application by the appellant for registration in that State on the grounds of the appellant’s failure to disclose information to the relevant registration authorities in Chile, the University of Sydney and the New England Area Health Service. The Dental Board of New South Wales determined that the appellant was not a suitable person to be registered in New South Wales and that the South Australian Registration Board was better able to assess any reformation in character, having been involved with the applicant’s removal.
Appellant’s application for reinstatement
On 14 March 2003 the appellant lodged an application for reinstatement with the South Australian Board. In the course of the hearing with respect to that application, the Board received medical reports from Drs Sharma and Le Page on behalf of the appellant. In his report dated 1 September 2003, Dr Le Page said:
I believe that in view of the problems that he has experienced in the past, it would be more appropriate for him to re-commence dental practice in a group or hospital practice where he will be working in a disciplined structure.
Dr Le Page did not however consider that the appellant should return to unrestricted private practice in the short term.
On 30 September 2003 the Board rejected the appellant’s application for reinstatement. The Board did not consider it to be in the public interest for the appellant to be granted registration with conditions even such as those suggested by Dr Le Page. The Board said that if the appellant considered a re-application in the future, he should have regard to the recommendation of Dr Le Page that he continue counselling and that he be able to adequately demonstrate his disqualifying imperfections had been removed.
On 4 April 2006, the appellant lodged a further application for reinstatement. On 26 March 2007, the Board made a decision in relation to that application. The Board granted the appellant limited registration with a number of conditions which included a requirement that the appellant successfully complete an Australian Dental Council Clinic (ADC) skills assessment. This condition proved to be a problem, as the course was not available to the appellant for a number of reasons. In particular, it was a course directed at overseas graduates who were applying for registration in Australia. The appellant did not fit into that category as he was a graduate of an Australian university.
The appellant appealed against the decision of the Board on a number of grounds which included the condition with respect to the ADC course and the failure to give him full registration. The appeal came on for hearing before Vanstone J on 13 August 2007. At the hearing, apparently in view of the problem with the ADC course, counsel for the Board conceded that the orders made by the Board on 26 March 2007 should be set aside and the matter returned to the Board for re-hearing. Vanstone J therefore allowed the appeal, set aside the orders of the Board and remitted the matter for a fresh hearing before the Board.
The Board heard the matter again on 11 September 2007. The matter was then adjourned to 23 October 2007 when the Board delivered its decision. The Board decided, pursuant to ss 32, 37 and 46 of the Dental Practice Act 2001 SA that the appellant had not demonstrated that he was eligible for full registration under s 32(1) of the Act, but that he should be granted limited registration, which was subject to a number of conditions. This included condition 2(d), which is in the following terms:
During the period of limited registration [the appellant] shall not provide dental treatment as a sole practitioner and shall only provide dental treatment in the public sector and under the supervision of a registered dentist who is able to supervise and assess his conduct and treatment. Any proposed employment and supervision scheme is to be arranged by the appellant [the appellant] and requires the prior approval of the Board. [The appellant] is to provide the proposed employer with a copy of this decision and the earlier decisions and judgments, details of which are set out at paragraph 41 of this decision.
Extension of time to appeal
The present notice of appeal was lodged by the appellant on 22 October 2008. It is therefore approximately 12 months out of time. The appellant has not filed an affidavit explaining the reason for the delay, but on the hearing of the appeal he said that the delay was occasioned by his attempts to obtain clarification from the Board with respect to the conditions contained in its order and his disagreement with their limitation with respect to public practice. It would appear that there was extensive dialogue between the parties over this period but it is neither possible nor necessary to determine the fault relating to this aspect of the matter. In view of some assertions made by the appellant, however, I should comment that there is no evidence before me that the Board has behaved other than appropriately in its dealings with him. In any event, I believe it is appropriate to proceed as Duggan J did earlier, that is to consider the grounds of the appeal before returning to the question of whether an extension of time should be granted.
I should mention that in its decision dated 23 October 2007, the Board also included condition 2(c), which required the appellant to satisfy the Board that he had successfully completed a course offered by the University of Adelaide School of Dentistry DENTEX 6035 EX “Contemporary Restorative Practice” conducted over a 16-week period, commencing on 25 February 2008. This was presumably in lieu of the earlier condition relating to the ADC course. It was agreed at the date of the appeal that the course had been successfully completed by the appellant in June 2008.
Grounds of appeal
The notice of appeal appeared primarily to be concerned with condition 2(d) of the order of the Board, which limits the appellant to working only in the public sector and under the supervision of a registered dentist. In his notice of appeal, the appellant said:
Condition (d) contains unclear element which could stop me from obtaining employment indefinitely. The DBSA has been unreasonable and discriminatory denying me the options of working in private practice.
In [43] of the list of arguments which the appellant incorporated in his notice of appeal, he said:
I believe that it is my right to know specifically, precisely what type of supervision they require, so that I can negotiate and organise appropriate work and supervision with my potential employer. Knowing the kind of supervision will facilitate and speed up the process of employment within the public sector. The lack of clarification of the type of supervision may lead to an endless and time consuming process. There appears to be no reasonable justification for the DBSA to obfuscate the clarification of the supervision, except to endlessly delay the resolution of this matter which by now has taken more than two years in procedures, making in total, more than 7 years of unemployment. Needless to say, my only potential employer in South Australia, SADS, and will not very happy to continue with this endless process and indeed I don’t believe any employer would. Past experience suggests that if a proposal of employment and supervision is rejected by the DBSA, that it would be the end of my employment prospects.
Although the appeal, as initially filed, appeared only to be concerned with the ambiguity arising out of condition 2(d), it became clear in the course of the appeal hearing that the appellant’s complaints extended to the order for limited registration which he believed to be unreasonable. This was mentioned in his notice of appeal at [45] as follows:
Given the acceptance of condition d including the requirement of supervision and approval by the DBSA, I do not consider limitation to the public sector practice necessary. If I seek employment in the private sector, the DBSA would have the opportunity to assess my proposal of employment and accept or refuse any private potential employer. Most of the dental work carried out in South Australia is achieved in private practice. There is only one potential employer in the public sector, SADS. Currently according to the declaration of Human Rights restriction of employment to one employer is discriminatory.
The appellant argued that there was no longer any impediment to him working in the private sector. He believed there would be suitable employers available in that area who would be able to provide an appropriate level of supervision, although he took issue with the level of supervision which the Board appeared to require. He considered “general supervision” would be sufficient, which he described in the following way:
For example, if I work in a group practice with two other dentists, for example, where I can diagnose the patient, propose treatment plan and then perhaps talk to the supervisor once I have done that and interchange some comments with him about what do you think, this is what I found, patient had this and this, I think this is the way to go, what do you think. He will say yes or he will say have you considered this alternative. I will say okay. Which happens all the time in dentistry.[1]
[1] Argument on Appeal, 1/12/2008, Tr 9.
In response to a question posed by me, the appellant agreed he considered all that was required was someone who could give him general advice, if needed.
The question of supervision and the limitation with respect to practice are closely related, so, as a matter of completeness, I eventually gave leave to the appellant to amend his notice of appeal to enable this aspect of the matter to be resolved. Although Mr Stevens, who appeared as counsel for the Dental Board, opposed the late amendment, he acknowledged he did not require an adjournment to respond to the new ground.
Condition as to supervision
It appeared to be common ground that the South Australian Dental Service (SADS) is the predominant public sector employer in South Australia. The appellant subsequently applied to SADS on 18 April 2006.. It appears that throughout 2007 there was correspondence between the appellant and the Board, in which the appellant sought to clarify the extent of supervision required by the Board. Dr Dooland, who is the CEO of SADS, gave evidence before the Board during the hearing on 11 September 2007 concerning the approach that SADS would take to the clinical assessment of a person such as the appellant. He agreed that SADS was not an accredited educational institution, but said some members took on a tutoring role. In response to a question from the appellant as to prospective employment, the evidence was[2]:
Q.Dr Dooland, would you consider an application for employment from behalf – from mine to you. How would you proceed with it now.
A.Well, first and foremost, my knowledge of you is limited only to the contact we’ve had over a couple of meetings. So, as with all employment possibilities, I would consider the clinical skills of the person, the ability of the person to work within the team environment and the way they behave and things like that. None of those I have any knowledge of at the moment, but in the context that there were appointments – positions available and I had funds available, if you had been registered, then you would be considered for employment.
Q.Okay. And the very last thing is: this assessment is done on one-to-one situation. Is that how it will be done.
A.Well, the assessments with overseas-trained dentists, in the experience I’m talking about in the past, the numbers of overseas-trained dentists undergoing this type of assessment is variable. In the circumstances dealing with you, I don’t know if there are other people who might go through the same process at the same time. It may well be one-on-one; it may well be in group settings.
Q.Okay. But it will be some contact with a tutor.
A.Yes.
[2] Reinstatement Proceedings before Dental Board, 11/09/2007, Tr 36-38.

On 22 July 2008, SADS wrote to the Board, advising that the appellant had recently applied for employment with the Central Northern Adelaide Health Service of SADS. In order to assess whether or not they should offer employment to the appellant, they required the Board’s advice as to whether the Board considered the appellant entitled to provide dental treatment. They also asked for clarification of the nature of the supervision and the assessment required by the Board to meet the intent of its decision with regard to his conduct and treatment.[3]
[3] Annexure I to chronology filed by Respondent on hearing of appeal.
On 30 September 2008, the Board responded to SADS and advised as follows[4]:
[4] Annexure J to chronology filed by Respondent on hearing of appeal.
The Board gave further consideration to this matter at its meeting on 4 August 2008 and now advises as follows:
1. That direct supervision is required. Two supervisors can be nominated.
2.That the supervisor, who must be a registered dentist, must take direct and principal responsibility for the patient and must be available in the work place at all times when dental treatment is being provided by Mr Reyes Gonzalez.
3.That at least two or three other staff and at least one other dentist must be present within the clinic however not necessarily in the cubicle when dental treatment is being provided by Mr Reyes Gonzalez.
4.Reports to the Dental Board of South Australia in relation to the supervision of Mr Reyes Gonzalez must be provided on a three monthly basis at the expense of Mr Reyes Gonzalez.
5.Further, at his own expense, Mr Reyes Gonzalez is to ensure that three monthly assessments as to his fitness to practice and to remain on the register of dentists are provided by his employer to the Dental Board.
6.The Board will re-assess the frequency of reports required from Mr Reyes Gonzalez’ employer subject to consideration of those assessment reports.
We advise that pursuant to the decision at 2(d):
Any proposed employment and supervision scheme is to be arranged by Mr Reyes Gonzalez and requires the prior approval of the Board.
It is therefore important that SADS fully understands the proposed employment and supervision scheme and the responsibilities that will fall upon SADS and the nominated supervising dentist(s) pursuant to that scheme.
On 7 October 2008, the Board wrote to the appellant and advised him of the communication from SADS and invited him to discuss the issue of supervision with them.   The appellant was subsequently advised by letter from SADS dated 20 November 2008[5]:
I refer to your application for employment as a dentist, with the SA Dental Service, lodged on 30 June 2008.
As you are aware, from your discussions with Ms S Loftes, SA Dental Service has been considering your application and, in particular, evaluating the supervisory requirements imposed by the Dental Board of South Australia that SA Dental Service would need to implement if your application for employment were successful.
The estimated cost of the supervisory arrangements is $50,000 per annum. This estimate assumes that both you and your Supervisor are able to:
·    work in a open plan clinic;
·    see patients (75% of full workload for Supervisor).
These costs would need to be met by you.
As you are aware, it would be necessary to clarify, with the Dental Board of South Australia, that our interpretation of the prescribed supervisory arrangements comply with the Board’s intent. They are also subject to formal approval by the Board.
Should you wish to proceed with a request for employment on that basis, please advise Ms Loftes who will establish a selection process to formally evaluate your application for employment.
[5]    Tendered as Exhibit by Appellant at Argument on Appeal, 1/12/2008.
Appellant’s Argument
On the hearing of the appeal, the appellant maintained that the level of supervision required by the Board was unreasonable and unachievable. He submitted that the Board had never questioned his clinical skill as an issue to be addressed in the past and he had completed the course at the University of Adelaide, as required. He said that he was not in a position to pay the $50,000 required by SADS and that effectively meant that employment would not be available to him in this State. The appellant acknowledged his previous misconduct but maintained he had done everything he could, including counselling and undertaking courses, to show that his earlier problems had been resolved.
Respondent’s Argument
The thrust of the argument presented by the respondent related to the obligation of the Board to safeguard the public. In Craig v Medical Board of SA[6], Doyle CJ discussed the purpose of disciplinary proceedings and said:
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[6] (2001) 79 SASR 545 at [41].
Those comments have equal application to a Board’s consideration of the issue of reinstatement of a person who has been removed from the register for wrongdoing.
Mr Stevens referred at some length to the appellant’s history of misconduct which had finally resulted in the cancellation of his registration. He referred to the finding of the Board as to the
Intrinsic difficulties associated with assessing the reform of a person’s character or recovery from a personality disorder.[7]
[7] Reasons for Decision of Dental Board of SA 23/10/2007 at [53].
Mr Stevens submitted that the conditions imposed by the Board were necessary for the protection of the public. If the public could not be protected, then the appellant should not be registered. Mr Stevens pointed out that the course undertaken at the University of Adelaide only tested the appellant’s technical ability, not his clinical expertise, and the appellant had appeared to acknowledge that was so at the hearing before the Board.
The Board had made an order whereby the technical aspects of the appellant’s work could be tested, followed by a period of supervision to ensure that the appellant was behaving appropriately when dealing with patients.
Discussion of findings made by the Board
During the hearing before the Board the appellant agreed that during the period of limited registration, he should be supervised by a dental practitioner, who would be able to supervise both his conduct and treatment, although he submitted that could occur in either the private or public sector. He said there were some private practices comprised of four or five dentists, which would be large enough to permit the required supervision and assessment. The appellant acknowledged, however, that the supervising dentist should not be someone with whom he had a friendship or pecuniary relationship which might affect their reporting to the Board. There was some discussion as to the layout of treatment rooms in private as opposed to public practice and in the course of the hearing the appellant conceded that in a hospital, work was undertaken in a more open area, which would assist supervision. The evidence was[8]:
MS RICHARDSON:             What do you see as being the difference in the physical layout of the rooms of a private practice compared with the physical layout of perhaps a surgery in public practice?
MR GONZALEZ:                Well, the difference in the hospital is there is a common room, and they are more open, if you like.
MS RICHARDSON:             Can you see that might assist in ongoing supervision, given the issues that you had to face in the past?
MR GONZALEZ:                Yes.
MS RICHARDSON:             Do you think that that might assist the supervision?
MR GONZALEZ:                Well, it may assist the supervision, yes. I think so. Yes.
MS RICHARDSON:             But it’s not common that you would have open layout in a private practice.
MR GONZALEZ:                I don’t think it’s common, no. No. More or less like single individual room. Yes, now I understand what you’re saying.
[8]    Reinstatement Proceedings before Dental Board, 11/09/2007, Tr 58.
In reaching its decision, the Board noted the appellant’s continued participation in professional development programs offered in the United Kingdom, although it noted that the requirements for re-admission to practice in the United Kingdom, which had been provided by the appellant to the Board, were not of relevance to South Australia or, in this particular case[9]. In making its findings, the Board acknowledged that the appellant had demonstrated a shift in attitude, had admitted his past abhorrent behaviour and had recognised the harm that his behaviour would cause to others, although they said it was not clear that he assumed full responsibility for those actions.[10] As however the appellant had not practised dentistry for more than five years, they considered that his knowledge of the practice of dentistry and his clinical skills and competency required formal assessment.[11] The Board found that by at least 2006 the appellant had accepted advice about treatment, had undertaken counselling and further education, had demonstrated greater maturity and an awareness of his past abhorrent behaviour and had expressed contrition for his behaviour.[12] The Board also took into account the expert medical opinions provided to them by the appellant. The Board concluded on account of the nature of the appellant’s aberrant behaviour, that it was not appropriate that he provide dental treatment as a sole practitioner and considered he should work as a dentist employed by another and that for the period of limited registration he should only provide that treatment where it was under the supervision of a registered dentist who was able to supervise his conduct and treatment.[13]
[9] Reasons for Decision of Dental Board of SA, 23/10/2007 at [38].
[10] Reasons for Decision of Dental Board of SA 23/10/2007 at [41.15]..
[11] Reasons for Decision of Dental Board of SA 23/10/2007 at [41.17].
[12] Reasons for Decision of Dental Board of SA 23/10/2007 at [47].
[13] Reasons for Decision of Dental Board of SA 23/10/2007 at [56].
Because the level of supervision was critical and the role of supervisor/employer might be onerous, the Board considered that the appellant should be restricted to employment in the public sector. They referred to the appellant’s submission that he be permitted to work in the private sector, although he had conceded that adequate supervision might not be available in private practice. The Board determined, however, that an adequate level of supervision and assessment were only available in the public sector environment and for that reason the appellant should be restricted to employment in the public sector.[14]
[14] Reasons for Decision of Dental Board of SA 23/10/2007 at [57]..
Conclusion
Although the appellant argued that the degree of supervision required by the Board was unreasonable, it appears that at the hearing before the Board he agreed to limited registration for a period of five years and in fact provided the Board with a draft order which included a provision that he not provide dental treatment as a sole practitioner and that he be under the supervision of a registered dentist who was able to supervise his conduct and treatment.
Although the appellant maintained before the Board and on the hearing of the appeal that employment would be available in the private sector, to date he has not provided any information as to any offer of employment, the nature of it, nor the level of supervision which would be available. When I asked him about his attempts to obtain employment in the private sector, he said:[15]
MR GONZALEZ:        I have inquiry. I have made two inquiries and they don’t want to know about me.
HER HONOUR:          Have they given you any reason why they don’t want to know about you?
MR GONZALEZ:        Because of my past. It was a dentist in Aldinga. I didn’t apply to him but it was somebody that I know who had inquiry with him to see if he could help me, because he used to work in community. His response that he didn’t want to know about me because I have some past history. There is no basis for imposing the tight supervision described in this letter for the following reasons.
[15] Argument on Appeal, 1/12/2008, Tr 6.
The appellant is obviously placed in a difficult position. The requirement to pay $50,000 per annum for his supervision is clearly onerous, but I think unavoidable, as a private sector employer would also be likely to demand a similar fee to cover the cost of supervision. As the appellant has not practised dentistry for more than five years, he could not expect to return immediately to unsupervised private practice. The Board has a duty to protect the public, as discussed in Craig (supra). The matters which resulted in the appellant’s removal from the register were serious and it is of particular concern that even after that order was made, the appellant attempted to practise dentistry without providing details to the appropriate authorities as to the cancellation of his registration. The Board recognised, however, that the appellant has made some progress in resolving his earlier problems and that undoubtedly was behind the decision to grant him limited registration. This will enable him to demonstrate that he is now capable of practising in an appropriate manner. That could only be done by including a requirement that the appellant be supervised by a suitably qualified person. On the findings of the Board, that would appear to be more readily available in the public sector than in private practice and they gave detailed reasons for reaching that conclusion.
The appellant has not provided any alternative proposal with respect to work with a specified employer in the private sector. If that were to be available, the proper course would be for the appellant to apply to the Board with details of the proposed employment and ask them to vary condition 2(d), which limits him to employment in the public sector.
The nature and extent of the supervision required by the Board has now been clarified and in my view is reasonable. This is consistent with the evidence given by Dr Le Page on behalf of the appellant at the hearing before the Board which took place on 19 February 2007, wherein he said:[16]
The only way that can be assessed is for you to be back in the situation over a reasonable period of time; an ongoing period of time, where you can have experiences, for example, with patients, practising as a dentist, particularly female patients or female staff and other staff, where you can interact with patients and other adult people in this context, in a professional situation, over a period of time, to determine that you can exercise your dental skills and not lose control of your impulses, like you have done in the past. It can’t really be evaluated in any other way because all of the reports that you have submitted to me about the various courses you have done and the various other situations you have been in, they are not – in my opinion, they have not been the sort of situations that the Board need you to be in, in order to get a more confident – to express a more confident opinion about you, as to whether you are fit and proper person to practise as a dentist. In my opinion, the only way they can get the sort of feedback that they require is for you to be in a situation where you are practising in a group situation – as I mentioned in a letter about four years ago – where you can have ongoing experiences over a period – a significant period of time – in order for a group of people to be expressing opinions about the same period of time and your interactions concerning patient care and staff interactions. In my opinion, this is the only way that the Board could get appropriate feedback about you in a dental situation or in a real life situation that would give them feedback information on which they could develop a – or come to a more confident opinion about your ability to practise. Because I see your aberrant behaviour as personality weaknesses that gave way at particular points in time, rather than a personality disorder which is likely to behave in that sort of way all the time. I believe that you’ve got a capacity to learn from your experiences and develop those conscious controls.
[16] Reinstatement Proceedings before Dental Board, 19/02/2007, Tr 44.
Section 37 of the Dental Practice Act 2001 provides the person who seeks reinstatement on the Register must satisfy the Board that they are eligible for registration. Section 31(1) sets out the criteria that must be satisfied for a person to be eligible for registration and s 32(2) and (3) provides for limited registration being granted to a person who does not satisfy the requirements of s 32(1). Section 32(3) entitles the Board to impose one or more conditions on the registration, namely:
In registering a person under subsection (2) the Board may impose one or more of the following conditions on the registration:
(a)a condition restricting the places or times at which the practitioner may provide dental treatment;
(b)     a condition limiting the kind of dental treatment that the practitioner may provide;
(c)     a condition limiting the period during which the registration will have effect;
(d)a condition requiring that the practitioner be supervised in the provision of dental treatment by a particular person or by a person of a particular class;
(e)     such other conditions as the Board thinks fit.
The Board appears to have taken into account all relevant matters in determining the appropriate conditions to attach to the grant of limited registration to the appellant. The appellant has failed to demonstrate any grounds upon which this Court should interfere with the decision of the Board. In the circumstances, the application for extension of time in which to appeal is dismissed and the appeal is also dismissed.