Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand
[2023] NZHC 2759
•2 October 2023
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CIV-2022-418-17
[2023] NZHC 2759
BETWEEN BHARATH RAJA SUBRAMANI
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND
Respondent
Hearing: 4 September 2023 Appearances:
A H Waalkens KC and S R Courtney for Appellant J P Coates and A N Lane for Respondent
Judgment:
2 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 October 2023 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2023] NZHC 2759 [2 October 2023]
Contents
Introduction........................................................................................................... [1]
Grounds of appeal.................................................................................................. [5]
Approach on appeal............................................................................................... [7]
Background to the charge.................................................................................... [11]
The Tribunal’s decision........................................................................................ [29]
Application to adduce further evidence on appeal............................................... [50]
Submissions [59]
Discussion [67]
The appeal............................................................................................................ [77]
Was adequate regard given to Dr Shand’s evidence?.......................................... [79]
Discussion [85]
Did the Tribunal misdirect itself regarding the length of any condition of
practice, including supervision, it could impose?................................................ [87]
Discussion [90]
Did the Tribunal fail to give appropriate weight to the wider public interest in
retaining the services of this dental practitioner?................................................ [93]
Discussion [97]
Was the decision to cancel Dr Subramani’s registration excessive or
unreasonable?....................................................................................................... [99]
Discussion [119]
Was the decision to impose a fine appropriate?................................................. [127]
Discussion [133]
Result................................................................................................................. [137]
Costs.................................................................................................................. [138]
Introduction
[1] In early February 2022, the appellant, Dr Subramani, a registered dentist, appeared before the Health Practitioners Disciplinary Tribunal (the Tribunal) on a charge of professional misconduct.1 The charge particularised 40 instances of misconduct involving 11 patients who received dental treatment from Dr Subramani between 6 October 2017 and 11 October 2018.
[2] Dr Subramani admitted the charge, and the Tribunal, having heard the supporting evidence, issued an oral finding of professional misconduct. The balance of the hearing considered penalty.
[3] The Tribunal reserved its decision on penalty. It issued its decision on 16 December 2022 and imposed the following penalties:
(a)censure;
(b)cancellation of registration;
(c)a fine of $10,000; and
(d)costs of $150,000.
[4]The appellant appeals the Tribunal’s decision to:
(a)cancel his registration; and
(b)impose a fine of $10,000.
Grounds of appeal
[5] Dr Subramani relies on the following grounds to challenge the cancellation of his registration:
1 A Professional Conduct Committee appointed by the Dental Council of New Zealand
1282/Den21/511P [Tribunal Decision].
(a)The Tribunal failed to pay adequate regard to the evidence of Dr Subramani’s supervisor, Dr Michael Shand, who had been appointed by the Dental Council (the Council), and who gave evidence of a marked improvement in Dr Subramani’s dental practice and competence.
(b)The Tribunal misdirected itself in assuming it was only able to impose a suspension and/or conditions (including supervision) for a period of three years. This overlooked the power of the Council to continue orders of supervision and other conditions under the Health Practitioners Competence Assurance Act 2003 (the Act).
(c)When all the circumstances of the case are considered, the Tribunal’s decision to cancel Dr Subramani’s registration was excessive or unreasonable.
(d)The Tribunal failed to give appropriate weight to the wider public interest in retaining Dr Subramani’s services given the West Coast was desperately short of dental practitioners.
[6] Dr Subramani also challenges the imposition of a fine of $10,000 as unreasonable and excessive given the extent to which he has already suffered financially and otherwise from the disciplinary proceedings.
Approach on appeal
[7] Appeals under the Act proceed by way of rehearing.2 The court may confirm, reverse or modify the decision or order appealed against, and make any decision or order the Tribunal could have made.3
[8] Counsel identified a divergence of approach over whether penalty decisions of the Tribunal involve the exercise of a discretion, such that on appeal, the court should
2 Health Practitioners Competence Assurance Act 2003, s 109(2).
3 Section 109(3).
be limited to considering the criteria identified in May v May,4 or alternatively, whether they are general appeals which require the appellate court to come to its own view on the merits, even when that involves an assessment of fact and degree and entails a value judgement.5
[9] While Mr Waalkens KC, for the appellant, says it is now well established that an appeal such as this is a general appeal, Mr Coates, for the Professional Conduct Committee (PCC), points out that this is not settled law. There are a number of High Court cases where an appeal against penalty imposed by a specialist Tribunal has been treated as discretionary.6 However, both counsel accept that in more recent times, the High Court has tended to approach penalty appeals as general appeals,7 despite the Judge in Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand expressing reservations about whether such an approach was necessary.8
[10] I accept the preponderance of recent authority treats such an appeal as a general appeal. Furthermore, that is consistent with the broad powers given on appeal to make any decision or order that could have been made by the Tribunal.9 I therefore adopt this approach to the appeal, noting that the result in this case is not affected by the approach adopted.
Background to the charge
[11] To understand the Tribunal’s decision, it is important to set out the chronology of events which gave rise to the charge. Dr Subramani graduated with a Bachelor of Dental Surgery from a university in India in 2005. He worked in India before moving to New Zealand in 2006. He then studied towards a postgraduate Certificate in Health Sciences from the University of Canterbury and completed the Overseas Trained
4 May v May (1982) 1 NZFLR 165 (CA) at 170.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
6 GS v Professional Conduct Committee [2010] NZAR 417 (HC) at [14]; and Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [41]–[43].
7 Emmerson v A Professional Conduct Committee Appointed by the Medical Council of New Zealand [2017] NZHC 2847 at [96]; and Shousha v A Professional Conduct Committee [2022] NZHC 1457 at [68].
8 Emmerson, above n 7, at [96].
9 Health Practitioners Competence Assurance Act 2003, s 109(3)(b).
Dentist Bridging Programme at the University of Otago. While completing these qualifications, he worked as a dental assistant at Christchurch-based dental practices.
[12] In 2012, he became registered as a general dentist in New Zealand after taking the New Zealand Dentist Registration examinations. He worked as a dentist at Garden City Dental in Christchurch.
[13] In May 2013, Dr Rozeleen Rahiman, another dentist at the practice, notified the Council, under s 34(3) of the Act, of concerns she had about Dr Subramani’s conduct and treatment of patients. The complaints included:
(a)invoicing for treatment which had not been carried out;
(b)inappropriate invoicing;
(c)a patient complaint regarding inadequate root canal therapy;
(d)inadequate crown treatment; and
(e)endodontic treatment of the wrong tooth including an inadvertent perforation.
[14] Inquiries were then made by the Council into the competence issues raised in the notification.10 A report dated August 2013 by Dr Bambery agreed the information raised a concern about Dr Subramani’s competence in practicing dentistry. While expressing some scepticism about Dr Rahiman’s motives for making the complaint, he found the two other dentists at the practice were genuine in their concerns about Dr Subramani’s treatment of patients, and the report was referred to the Council to consider what action was appropriate.
[15] The Council determined it was appropriate for Dr Subramani to undertake an individual recertification programme (IRP), saying he “was not a risk to public safety” but he did require “upskilling”. The Council agreed that Dr Subramani would benefit
10 Under s 36 of the Act.
from mentoring support and noted he was currently undertaking the modular education programme through the Royal Australasian College of Dental Surgeons (MRACDS) and a Masters in Advanced General Dental Practice through Birmingham University. The Council considered that supervision and mentoring for the duration of the MRACDS programme by a registered practitioner appointed by the Council was appropriate, in addition to the mentor appointed by the College as part of that programme. When Dr Subramani undertook the IRP, it was anticipated that it would be completed by 30 November 2014. The IRP commenced in October 2013.
[16] Dr Subramani took much longer to complete the IRP than was originally envisaged because Dr Subramani took longer than expected to complete the MRACDS programme. Of the 12 modules he was required to complete, he initially failed the assessments for the following modules: infection control, examination technique and dental imaging, and diagnosis and treatment planning. Indeed, Dr Subramani also failed two further reassessments on the diagnosis and treatment planning module before passing it on his fourth attempt in December 2015. His initial case reports for the operative dentistry, endodontics and periodontics modules also did not meet the necessary requirements. However, by January 2016 Dr Subramani obtained pass results in the remaining modules.
[17] While completing the IRP, Dr Subramani practiced initially under the supervision of Dr Stuart Johnson and then, from May 2014 onwards, under the supervision of Dr Garry Rae at his Greymouth practice, Lumino Garry Rae Dental. Dr Rae’s evidence was that he entered into a contract with the Council to supervise Dr Subramani while he was working for him. This included providing weekly reports to the Council.
[18] Dr Rae said that while he was supervising Dr Subramani, he came across as polite and courteous. While he would fall behind on components of the MRACDS programme for his IRP, this did not raise concerns with Dr Rae at the time. He wrote favourable reports to the Council. He said while Dr Subramani was under his supervision, “he appeared to be making an effort to fulfil all his obligations and his clinical work was viable”.
[19] On 18 July 2016, Dr Rae was advised by the Council that Dr Subramani had successfully completed his IRP, and the period of supervision ended. Dr Rae said that almost straight after Dr Subramani had achieved his recertification, his attitude and behaviour started to change. He said he “developed a temper and became aggressive with staff verbally”. Dr Rae was of the view that Dr Subramani’s change in attitude after he had completed his period of supervision reflected the fact that he “never truly believed he even needed supervision”. Dr Rae also recalls an incident where Dr Subramani confronted him and told him in a threatening manner that he was going to be “the number one dentist on the West Coast” and “take over as lead dentist at [his] practice”. While Dr Rae accepted in cross-examination that he may have misinterpreted this comment, which could have been intended to express Dr Subramani’s desire to achieve excellence, it is clear the relationship broke down. Dr Subramani left Lumino Garry Rae Dental at the end of September 2017. With the support of Lumino, Dr Subramani commenced work at Lumino Greymouth Dental Centre, a newly established dental surgery where he was in sole practice.
[20] It was during the period that Dr Subramani was the sole dentist at Lumino Greymouth that the issues which gave rise to the professional misconduct charge arose. Dr Christopher Brooks, a registered dentist, who acts as clinical adviser for Lumino, learnt in August 2018 of concerns about the standard of Dr Subramani’s care. He travelled to Greymouth to meet with Dr Subramani, and he also undertook a review of randomly selected patient files. The outcome of his enquiries confirmed Dr Brooks’ concerns regarding the level of care provided by Dr Subramani and the risk of harm to patients. In oral evidence, Dr Brooks said Dr Subramani displayed “a lack of insight into the harm that had been or may have been caused by his treatment decisions”.
[21] Lumino terminated Dr Subramani’s contract on 15 October 2018, and the Council was notified of Dr Brooks’ concerns. In the letter to Dr Subramani from Lumino’s national operations manager advising of the termination, it was noted that Dr Subramani “didn’t appear to understand the gravity of our concerns or how your approach didn’t meet our clinical standards”. Dr Brookes also notified the Council of the clinical concerns he had on 12 October 2018. These concerns included:
(a)failing to record or inaccurately recording medical history;
(b)extracting teeth without appropriate radiographs;
(c)inappropriate and/or unnecessary treatment;
(d)a lack of informed consent as to both the dental procedures and the costs of treatment;
(e)poor clinical records; and
(f)poor standard of clinical treatment.
[22] In March or April of 2019, Dr Subramani opened his own practice, Coast Smiles Dental Spa.
[23] On 9 March 2019, another dentist, Dr Angelo Ioanides, had a former patient of Dr Subramani, Mr C,11 present to him as a patient. Dr Ioanides was “appalled” by what he saw, and he asked the patient to request his clinical notes from Dr Subramani. He said these notes were “grossly deficient” and “grossly inaccurate”. He formally notified the Council on 9 March 2019 of the concerns he had about the treatment Dr Subramani had provided to this patient.
[24] Since 29 March 2019 Dr Subramani has practiced under a Council-approved supervisor, as required by the Council.12 Dr Subramani was first supervised by Dr Fred Timmermans in Picton for a short period. The Council also restricted Dr Subramani’s scope of practice to only include “basic dentistry”. That meant he could only undertake the following procedures:
(a)check up (consultation);
(b)cleaning;
(c)composite filling;
11 The Tribunal suppressed the names of all patients referred to in the charge and referred to them by letter identifiers in its decision. I use the same letter identifiers in this judgment.
12 Pursuant to s 69 of the Act.
(d)extraction;
(e)emergency endodontic dressing; and
(f)removable prosthodontics.
[25] Dr Subramani was also required to advise each patient that he was under supervision, his practice was limited to basic dentistry only and their records would be shared with his supervisor.
[26] In the latter part of 2019, Dr Subramani finished working under Dr Timmermans’ supervision. He then had a break of approximately three months from dentistry because he suffered an injury. He had trouble finding an alternative supervisor but, on 1 June 2020, Dr Alex Munro commenced supervision for a three-month period.
[27] Dr Shand commenced supervision of Dr Subramani in September 2020. On 14 April 2021, the disciplinary charge was laid.
[28] The charge itself was a lengthy document being 22 pages in length. While it alleged only one charge of professional misconduct under s 100(1)(a) and (b) of the Act, it was supported by 39 particulars relating to 11 patients. Many of the particulars were alleged in relation to a number of the patients and included:
(a)failing to conduct an adequate examination or diagnostic evaluation of the patient;
(b)failing to obtain adequate x-rays;
(c)failing to obtain informed consent to the treatment implemented and the cost of treatment;
(d)failing to document, or adequately document, all aspects of the patient’s periodontal status, medical history, diagnosis, reason for diagnosis and treatment;
(e)implementing treatment which failed in an unreasonable timeframe;
(f)undertaking dental work that was not required or appropriate;
(g)undertaking work that was defective or not to an adequate standard; and
(h)charging excessive fees.
The Tribunal’s decision
[29] The Tribunal convened on 1 February 2022 to hear the charge of professional misconduct. The Tribunal comprised the following members:
(a)Dr Sergio Salis, prosthodontist;
(b)Dr Sunyonng Ma, prosthodontist;
(c)Dr Tim MacKay, general dentist;
(d)Ms Amanda Kinzett, lay member; and
(e)Ms Theo Baker, chairperson.
[30] As already noted, the first part of the hearing focused on the question of liability. The Tribunal was provided briefs of evidence from 10 of the 11 patients subject to the charge. Evidence was given by Dr Brooks, who first raised some of the issues which led to the charge. The Tribunal also had briefs of evidence from five other dentists, each of whom outlined concerns regarding shortfalls in Dr Subramani’s care of specific patients identified in the particulars to the charge. Finally, the Tribunal heard from Dr Andrea Cayford, an independent expert witness. She provided a comprehensive report reviewing the allegations of misconduct in relation to all 11 patients. In her report, she detailed the shortcomings in Dr Subramani’s care, and these were summarised in 25 points in her conclusion.
[31] Dr Cayford’s conclusions were essentially unchallenged and were accepted by the Tribunal. They in turn fed into the Tribunal’s assessment of the seriousness of the misconduct. The Tribunal concluded that Dr Subramani’s misconduct was serious for the following reasons:13
(a)Negligent care was delivered to 11 patients[.]
(b)For each patient, there was sub-standard care on a number of bases[.]
(c)For each patient the negligent care occurred at more than one appointment[.]
(d)Some of the conduct was unethical. For example over an 11 month period, multiple fillings were placed when not required.
(e)[T]he failure to record a patient’s medical history [was] a major departure from accepted practice and is potentially fatal. He did this despite having just completed his education for MRACDS
(f)Some of Dr Subramani’s patients were vulnerable. The Tribunal felt that Dr Subramani’s overtreatment and overcharging of his patients [Mr and Mrs H] who were superannuitants, was a significant breach of his obligations and of their trust;
(g)Dr Subramani’s care of [Mr C] was woefully inadequate, extensive and invasive. The inconvenience for remedial work was extensive.
(h)The cumulative effect of all of the shortcomings is very serious indeed.
[32] In assessing the appropriate penalty to impose, the Tribunal referred to the relevant legal principles applying.14 In particular, the Tribunal referred to the decision in Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, where Collins J said an appropriate penalty is one which:15
(a)most appropriately protects the public and deters others;
(b)facilitates the Tribunal’s “important” role in setting professional standards;
13 Tribunal decision, above n 1, at [650].
14 At [418].
15 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5, at [44]–[51] as summarised in Katamat v Professional Conduct Committee [2012] NZHC 1633, [2013] NZAR 320 at [49].
(c)punishes the practitioner;
(d)allows for the rehabilitation of the health practitioner;
(e)promotes consistency with penalties in similar cases;
(f)reflects the seriousness of the misconduct;
(g)is the least restrictive penalty appropriate in the circumstances; and
(h)looked at overall, is the penalty which is “fair, reasonable and proportionate in the circumstances”.
[33] The Tribunal also directed itself to the principles which govern a decision to cancel registration. Its decision set out those principles as follows:16
(a)An order for cancellation or suspension is not to punish, but to protect the public because the person is not a fit and proper person to remain registered as a professional person.
(b)Cancellation is more punitive than suspension (albeit the purpose of neither is to punish).
(c)The choice between the two turns on proportionality, and therefore the decision to suspend implies that cancellation would have been disproportionate.
(d)Suspension is more appropriate where there is a “condition affecting a practitioner’s fitness to practice that may or may not be amenable to a cure”.
(e)Suspension should not be imposed simply to punish.
[34] The Tribunal then examined Dr Subramani’s history of practice in some detail. It also set out the evidence it heard on penalty, much of which focused on how Dr Subramani responded to criticism in the past, the reasons he gave for his shortcomings, and the success or otherwise of the significant periods spent under supervision.
16 Tribunal decision, above n 1, at [419].
[35] The Tribunal then embarked on a fulsome discussion of the appropriate penalty considering each of the principles articulated in Roberts. It referred to the aggravating features of Dr Subramani’s conduct, including the fact he caused physical, financial and emotional harm to patients and breached their trust.17 The Tribunal recognised that Dr Subramani had engaged in supervision with Dr Shand, and Dr Shand gave evidence he had responded well.18 However, the Tribunal noted it was not until the PCC filed all its evidence, including Dr Cayford’s report, that Dr Subramani admitted his wrongdoing, and the Tribunal also found him “inconsistent in his acceptance of responsibility”.19
[36] The Tribunal acknowledged the conduct occurred some four to five years earlier.20 However, it noted that concerns were raised over Dr Subramani’s competence in early 2013 which led to the Council requiring Dr Subramani to undergo an IRP involving further study and a lengthy period of supervision.21 The Tribunal also noted that when the first event covered by the charge occurred, Dr Subramani had been working in the field of oral health in New Zealand for 12 years and also had completed a range of further study.22
[37] The Tribunal then turned to the question of whether, in consideration of the need to protect the public, suspension or cancellation was the appropriate option. The Tribunal noted that the span of Dr Subramani’s negligence was “extensive” and the particulars in the charges did not relate to “minor shortcomings”.23 The Tribunal considered Dr Subramani was operating at “the level of a junior dental student”, whereas the “public is entitled to expect that when they consult a registered dentist, he or she is able to meet the basic standards of the practice of dentistry”.24 The Tribunal identified that the two principles of protection of the public and the rehabilitative prospects of Dr Subramani were at the “forefront” of its decision on penalty.25
17 At [606].
18 At [607].
19 At [607].
20 At [608].
21 At [609]–[611].
22 At [612].
23 At [616].
24 At [617].
25 At [620].
[38] In terms of Dr Subramani’s prospects of rehabilitation, the Tribunal noted that over the years he had undertaken a significant amount of professional development and education. It also noted he had completed over 280 hours of continuing professional development from January 2017 to June 2018 “with no evidence of a positive effect on his practice”.26 Furthermore, if his periods of supervision were added up, between 2013 and 2022 he had at least five years of supervision.27 The Tribunal observed that “the current supervision regime … is not sustainable”.28 Dr Shand had retired from practice and could not continue indefinitely. Furthermore, the Tribunal held the “public is entitled to assume that a dentist who has been registered in New Zealand for nearly 10 years does not require the level of supervision of a dental student”.29 The Tribunal also noted that under s 101(1)(c) of the Act, the duration of any condition on practice may not exceed three years. The Tribunal did not have confidence that a three-year period of ongoing supervision would address the rehabilitation that was required and would therefore be adequate to protect the public.30
[39] The Tribunal observed that while Dr Subramani had responded satisfactorily to supervision under Dr Shand, he had also apparently responded satisfactorily to supervision under Dr Rae. However, as soon as he was unsupervised, his practice slipped well below the standard expected of a registered general dentist.31 The Tribunal went on to note that as Dr Subramani had done 1,000 hours of education in the last three and a half years, including both face to face and distance learning, he should not need rehabilitation. The Tribunal’s assessment was that if Dr Subramani was suspended, he would come back to practice no further ahead.32
[40] Finally, the Tribunal referred to the personal characteristics Dr Subramani displayed which reinforced its concerns about his amenability to true rehabilitation. The Tribunal said it formed the view “that Dr Subramani says what he thinks one
26 At [621].
27 At [622].
28 At [623].
29 At [623].
30 At [624].
31 At [625].
32 At [626].
wants to hear”.33 He attributed many of his failings to “being out of his depth”,34 but the Tribunal observed there was no reason for him to be out of his depth in performing dental treatment such as fillings and extractions.35 While the Tribunal acknowledged that English was not Dr Subramani’s first language and he would have been nervous at the hearing, the Tribunal would still have expected him to be able to explain why he was out of his depth practicing at Lumino Greymouth despite his extensive training and experience.36
[41] The Tribunal was critical of Dr Subramani attempting to detract from the allegations against him by suggesting he was the victim of professional jealousy because he had set up in competition to the Lumino dental practices in Greymouth or that he was the subject of racial disparagement for which there was no evidence.37 The Tribunal considered his attempts to justify his actions demonstrated a lack of insight and that if he was “truly capable of being rehabilitated” there would be evidence of genuine remorse and insight.38 Instead, despite admitting the charge, he did not fully accept that his care had been substandard. For example, under cross-examination, he did not accept that he had given Mr and Mrs H too many fillings.39
[42] In the Tribunal’s view, someone with the level of supervision Dr Subramani had should not now require ongoing intensive supervision at that level. The Tribunal concluded Dr Subramani had “done a lot but achieved little”.40 Based on his progress to date, the Tribunal found it difficult to see that, within the foreseeable future, he would be operating at the standard expected of a reasonable dentist. In the Tribunal’s view, public safety could not take second place to Dr Subramani’s ongoing learning on the job to achieve the level of competence expected of a graduate.41
[43] The Tribunal then considered consistency with penalties in similar cases. The Tribunal considered the decision in Aladdin v Director of Proceedings, where the
33 At [627].
34 At [627].
35 At [629].
36 At [630].
37 At [632].
38 At [633].
39 At [635].
40 At [638].
41 At [639].
Dentists Disciplinary Tribunal cancelled Dr Aladdin’s registration as a dentist shortly after suspending Dr Aladdin on another charge.42 The Tribunal in that decision expressed its reason for electing cancellation rather than supervision as follows:43
…Dr Aladdin’s short comings are so profound and cover so many aspects of dentistry the Tribunal believes he must be re-trained as a dentist before he practises in New Zealand again.
[44] The Tribunal also considered the penalty decision in Vatsyayann, which followed the High Court’s quashing of Dr Vatsyayann’s cancellation of registration.44 There, Dr Vatsyayann’s registration was again cancelled after hearing more extensive evidence on penalty.45 In that case, the doctor’s conduct showed “a generic absence of insight, and a real doubt as to willingness to learn from past experiences”.46 In Dr Subramani’s case, the Tribunal likewise had serious concerns about his insight. While he had demonstrated a “willingness to learn”, it was unclear whether he had learned from past experiences, and the Tribunal questioned his ability to do so.47
[45] The Tribunal also referred to the decision in A Professional Conduct Committee appointed by the Dental Council of New Zealand v Gabb, where a dentist was censured and conditions placed on her practice for multiple failings in relation to one patient over an eight-year period.48 While there were similarities between the treatment in Gabb and the treatment, in particular, of Mr C, the present case was seen as more serious because of the number of complainants and the fact there were findings of malpractice.49
[46] The Tribunal next considered the seriousness of the conduct, saying it related to a broad range of failures. These were not isolated lapses, but rather showed a pattern of behaviour.50
42 At [642] citing Director of Proceedings v Aladdin 13/Den/04/02D at [86].
43 At [87].
44 Tribunal decision, above n 1, at [645] citing Vatsyayann 479/Med10/152P.
45 At [97].
46 At [78].
47 At [645].
48 At [646] citing A Professional Conduct Committee appointed by the Dental Council of New Zealand v Gabb 1138/Den 20/479P.
49 At [649].
50 At [651].
[47] In considering the least restrictive penalty appropriate in the circumstances, the Tribunal concluded that nothing short of cancellation was appropriate given its lack of confidence in Dr Subramani’s ability to reach and maintain the standard required of a dentist. It was not satisfied that he could work without supervision, even after a further three years, which is the longest period of supervision the Tribunal could order. For that reason, a term of suspension followed by conditions that he work under supervision would provide no long-term protection for the public.51
[48] The Tribunal concluded that “[b]oth the public and the profession are entitled to have confidence that any person being a registered dentist is able to practice autonomously”.52 It considered temporary periods of supervision and support were appropriate where there was a prospect of rehabilitation, something it was not persuaded was the case here. For that reason, cancellation under s 101(1)(a) was concluded to be a fair, reasonable, and proportionate penalty.
[49]The Tribunal also ordered censure under s 101(1)(d) and imposed a fine of
$10,000 under s 101(1)(e).53 Dr Subramani was also required to pay $150,000, being around 37.5 per cent of the total costs incurred in the PCC’s investigation and prosecution and the Tribunal’s costs.54
Application to adduce further evidence on appeal
[50] Shortly before the appeal hearing, Dr Subramani applied to adduce further evidence on appeal. The application initially included all the affidavit evidence adduced for the application seeking to stay the cancellation decision while Dr Subramani pursued his appeal.
[51] To provide some context, when the Tribunal’s decision issued on 16 December 2022, Dr Subramani promptly applied to the High Court for a stay of the decision pending determination of his substantive appeal. On 23 December 2022, Osborne J ordered an interim stay but required Dr Subramani to file an on-notice
51 At [652].
52 At [653].
53 At [654]–[655].
54 At [664].
application for the stay to be heard on 7 February 2023.55 When that application was heard, the interim stay in relation to penalty was rescinded (the stay judgment).56
[52] Dr Subramani then filed an interlocutory application for leave to appeal the stay judgment and for a stay of the stay judgment itself. In a decision dated 5 April 2023, Osborne J granted leave to appeal the stay judgment.57 In the same decision, he continued the stay on conditions, including that Dr Subramani retain the services of Dr Susan Gorrie as a supervisor of his practice in accordance with the supervisory arrangements that were previously in place with Dr Michael Shand.
[53] The Court of Appeal heard the appeal in late July 2023 and issued its decision on 18 August 2023. It dismissed the appeal against the refusal to grant a stay.58
[54] As the stay application progressed through these various hearings, further evidence was filed by both parties. This included updating evidence on Dr Subramani’s supervision arrangements and reports on the same, as well as evidence about the shortage of dentists on the West Coast. There was also an affidavit from Dr Beata Migda, a dentist, confirming she had recently joined Dr Subramani’s practice. There was also evidence from Dr Andrew Gray, the Deputy Registrar of the Council, about the supervision arrangements which were in place after Dr Shand’s annual practising certificate lapsed. Dr Gray also referred to a complaint being received from a staff member at Coast Smiles which was ultimately not pursued. There was also evidence from Dr Rae, advising that he is still seeing patients who claim to have received substandard treatment from Dr Subramani and outlining two specific cases. Dr Subramani filed an affidavit in reply rejecting any problems with the staff member and responding to the claims about the two patients referred to in Dr Rae’s affidavit.
55 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand
[2022] NZHC 3619.
56 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand
[2023] NZHC 189.
57 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand
[2023] NZHC 757.
58 Subramani v A Professional Conduct Committee of the Dental Council [2023] NZCA 375.
[55] Dr Subramani subsequently modified his application to adduce further evidence. Instead of incorporating all the further evidence heard by the High Court and Court of Appeal on the application for a stay, he limited it to evidence which updated the Court with regards to his supervision arrangements and performance under supervision. The evidence was variously omitted or redacted to focus on this issue as was explained in a memorandum dated 16 August 2023.
[56] The application was opposed by the PCC on the grounds that there was no special reason for admitting the evidence and it did not add anything relevant to the determination of the appeal.
[57] It was hoped that the application could be determined in advance of the appeal. However, when the proceedings were called before Mander J on 24 August 2023, he advised that no hearing time was available and the issue would have to be dealt with when the substantive appeal was heard. Mander J did observe, however, that updating information is commonly admitted, at least on a provisional basis.
[58] On 1 September 2023, the PCC also filed an additional affidavit from Dr Gray on the basis that if the evidence Dr Subramani sought to adduce was admitted, the PCC’s evidence opposing the application should also be included. This evidence included redacted versions of Dr Gray’s affidavit dated 27 January 2023 and Dr Rae’s affidavit of the same date, as well as (for completeness) Dr Subramani’s affidavit in reply and Dr Shand’s affidavit, both dated 3 February 2023. Dr Gray also sought to adduce evidence of Dr Subramani purchasing an interest in a dental practice in Christchurch and of two further complaints being referred to the Council from the Health and Disability Commissioner.59 One of the complainants, Mr L,60 raised concerns about treatment received over six visits between 6 December 2021 and 27 January 2022 which were very similar to the complaints which were the subject of
59 While at para [15] Dr Gray refers to three complaints, the only information about the complaints shows that two complaints were referred to the Council from the Health and Disability Commissioner on 10 March 2022. There are further complaints received by the Council about Dr Subramani’s compliance with his conditions of supervision at his newly acquired Hoon Hay practice but that originated from anonymous members of the public and not the Commissioner.
60 During the hearing I ordered suppression of the name of any new complainant and I continue the use of letters to identify complainants.
the charge. Dr Gray also describes the lack of detailed supervision reports from Dr Subramani’s subsequent supervisors, Dr Gorrie and Dr Lester Settle.
Submissions
[59] Mr Waalkens, for Dr Subramani, says the purpose of the application is simply to provide updating evidence to the High Court for the appeal. He argues that the updating evidence is clearly relevant. Both before the Tribunal, and on appeal, Dr Subramani focused on the success of the intensive supervision arrangement that has been in place for some years now. This was done to support the submission that the appropriate penalty was censure, a fine, conditions and costs.61 The progress achieved through supervision with Dr Shand must be taken into account as well as the public interest in enabling his rehabilitation to be achieved. Mr Waalkens argues that given the 10 months it took the Tribunal to issue its decision on penalty, during which Dr Subramani continued to receive and engage in the supervision from Dr Shand, this further period of successful supervision should be taken into account in the appeal against penalty.
[60] The PCC opposes the application for leave to adduce new evidence. Ms Lane, addressing the Court on this issue, submits this was not a simple case of adducing relevant updating evidence. The evidence of Dr Subramani performing successfully under supervision was already before the Tribunal, and Mr Shand’s further reports to the same effect do not add anything of relevance.
[61] Ms Lane says this application could be compared with the application in Bainbridge v A Professional Conduct Committee, where the High Court declined an application to adduce further evidence which included additional mental health records about the complainant, saying “new medical records do not add in any material way to the medical evidence that was before the Tribunal”.62 Gordon J went on to say:63
The information in the new records is effectively “more of the same” when considered alongside the medical records that were before the Tribunal …
61 See Tribunal decision, above n 1, at [575].
62 Bainbridge v A Professional Conduct Committee [2022] NZHC 3289 at [69].
63 At [80].
That the records may have some relevance is not sufficient to satisfy the test for fresh evidence.
[62] Ms Lane also refers to the decision in Zimmerman v Director of Proceedings, where there was an application to adduce an affidavit from Dr Zimmerman setting out his career goals since the Tribunal’s decision, including the limitations he made to his practice and the courses he completed.64 In declining the application, Clifford J stated:65
I also note the general reluctance of Courts to accept further evidence on appeal … I note further that the proposed additional evidence, in substance, addresses matters similar to those that were before the Tribunal, that is, matters relating to Dr Zimmerman’s undertaking. The further evidence is of substantially the same nature as that undertaking, although I accept it takes it further as a matter of fact. It does not introduce, however, any further category of consideration.
[63] Finally, Ms Lane refers to the Court of Appeal’s decision in Foundation for Anti-Aging Research v Charities Registration Board, where the Court observed:66
The court will be guided by the usual criteria of freshness, relevance and cogency. Material that would merely elaborate or improve upon the evidence already available in the record of proceedings at the first instance is unlikely to meet the test.
[64] Applying those observations to the present case, Ms Lane submits that the fact supervision has continued apparently satisfactorily does not add to the evidence about the supervision arrangements that were before the Tribunal. Ms Lane points out that Dr Shand was questioned carefully and fully by the panel and Dr Shand’s further affidavit merely revisits this evidence, reiterating that he does not regard Dr Subramani as a dentist who is unable to be rehabilitated, but without providing any further explanation. For that reason, his affidavit is neither substantially helpful nor cogent.
[65] Ms Lane also submits that Dr Migda’s affidavit, which says Dr Subramani’s work was “entirely appropriate and to a satisfactory standard”, does not advance matters for the appeal. She was only at the practice briefly and it is unclear on what basis she was in a position to assess Dr Subramani’s standard of practice. Similarly,
64 Zimmerman v Director of Proceedings HC Wellington CIV-2006-485-761, 29 May 2007.
65 At [41].
66 Foundation for Anti-Aging Research v Charities Registration Board [2015] NZCA 449, (2015) 4 NZTR 25-022 at [51] (footnotes omitted).
the affidavit by Dr Subramani, which attaches his (then) current supervision protocol and a report from Dr Settle, is not relevant to the determination of the appeal and simply comprises more evidence of the same nature as that before the Tribunal.
[66] Finally, the evidence gives rise to factual disputes, and that, too, points against its admission. As identified in Dr Gray’s evidence, there is a question over whether Dr Subramani has been performing satisfactorily under supervision, particularly given the evidence of subsequent complaints, in particular, that of Mr L which bears similarities to the complaints heard by the Tribunal. As those factual disputes cannot be resolved on appeal, the evidence is not helpful in determining whether the Tribunal’s decision was correct.
Discussion
[67] The question of whether further evidence should be adduced is governed by r 20.16(3) of the High Court Rules 2016. Leave is required and may only be granted if there are “special reasons” for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against that are or may be relevant to the determination of the appeal. In other words, not all updating evidence will be admissible. It must still meet a materiality threshold.
[68] In exercising my discretion as to whether to grant leave to file new evidence on the appeal, I have regard to the following factors:67
(a)whether the evidence could have been obtained with reasonable diligence for the trial (this requirement is satisfied where the evidence is updating evidence);
(b)whether the evidence appears to be cogent and credible;
67 LH v PH HC Auckland CIV-2006-404-5799, 2 March 2007 at [18]; Cornwall Park Trust Board (Inc) v Chen HC Auckland HC55/98, 11 June 1998 at 4–6; and Cromwell Corporation Ltd v Sofrana Immobilier (NZ) Ltd [further evidence] (1991) 5 PRNZ 180 (CA) at 182.
(c)whether the evidence would have an important influence on the outcome of the case; and
(d)whether admitting the evidence would require further evidence from parties in cross-examination.
[69] The overarching consideration, however, will be the importance of doing justice in the particular case.
[70] Here, the evidence sought to be adduced is fresh in the sense it was not available at the disciplinary hearing. It comprises further, apparently satisfactory, reports from Dr Subramani’s supervisors.
[71] On their face, the reports appear cogent and credible, although having read Dr Gray’s evidence, questions arise, particularly as to the extent to which some of the deponents could attest to the issues they address.
[72] Of more doubt is whether the evidence is material in the sense that it would have an important influence on the outcome of the case. The Tribunal already had before it evidence of Dr Shand’s supervision for around a year and a half. He was cross-examined on that and, while he identified shortcomings in Dr Subramani’s communication style which still needed work, he was firm in saying Dr Subramani’s technical skills on the basic dentistry work he did were sound.
[73] Another factor which points against the further evidence being admitted is the fact it is contested by the PCC. Questions are raised over whether unsatisfactory work was done during the period of supervision, both in respect of patients that Dr Rae subsequently saw and patients who are the subject of complaints to the Health and Disability Commissioner. There are also recent complaints which the Dental Council has received about whether Dr Subramani was complying with his terms of supervision.
[74] I accept entirely, as Mr Waalkens says, that where complaints have been made but the investigation has not concluded, I can draw no adverse inferences about
Dr Subramani’s conduct. However, the fact they have been made brings into question whether I can take the satisfactory supervision reports at face value.
[75] More importantly, though, the further evidence would be unlikely to materially assist in determining whether the Tribunal erred in concluding that cancellation was the appropriate penalty. Pointing against this outcome is the history of successful supervision under Dr Shand. I do not consider that further evidence of ongoing satisfactory supervision reports would alter the fundamental question that needed to be addressed by the Tribunal and now, by this Court, which is whether Dr Subramani is able to practice competently and ethically when not under close supervision.
[76]Accordingly, the application to adduce further evidence is declined.
The appeal
[77] As already noted, there are four grounds of appeal against the decision to cancel registration. These are:
(a)the Tribunal failed to pay adequate regard to the implications of Dr Shand’s evidence in deciding to cancel Dr Subramani’s registration;
(b)it misdirected itself in saying it was only able to impose suspension and conditions for a period of three years because the Council also has the power to continue orders of supervision and other conditions on a dental practitioner’s practice under pt 3 of the Act;
(c)in any event, the decision to cancel Dr Subramani’s registration was excessive or unreasonable; and
(d)the Tribunal failed to give appropriate weight to the wider public interest in retaining the services of this dental practitioner when the West Coast was desperately short of dentists.
[78]I deal with each of these issues in turn.
Was adequate regard given to Dr Shand’s evidence?
[79] At the time of the hearing, Dr Shand had been supervising Dr Subramani for almost a year and half. The extent of that supervision was outlined in the decision and included Dr Shand spending the day with Dr Subramani, usually twice a month, where he sat in on consultations and observed what was going on through an intraoral camera.68 Dr Shand spoke positively about Dr Subramani’s technical skills, but noted communication difficulties, saying:
His dental work itself was fine, I didn’t have a problem with that, it was I just wanted to get him quietly improving. … I hadn’t realised initially it wasn’t a mechanical issue with him, it was more a, perhaps call it attitude issue. And so, that’s what we worked on. …
[80] The Tribunal recorded Dr Shand’s firm view that Dr Subramani understands what to do and his clinical decisions are satisfactory.69 In Dr Shand’s opinion, Dr Subramani had demonstrated a marked improvement and taken on board all feedback. Dr Shand said he would be comfortable with Dr Subramani having some of his restrictions eased.70
[81] In Mr Waalkens’ submission, of all the evidence received by the Tribunal, Dr Shand’s evidence was “the most persuasive” and it was hard to imagine more persuasive evidence being able to be obtained on Dr Subramani’s ability to be rehabilitated and serve the local community. Furthermore, he points out that the Tribunal accepted Dr Shand’s evidence, saying that it “recognises that Dr Subramani has engaged in supervision and accepts Dr Shand’s evidence that he has responded well”.71 Dr Shand’s evidence was not challenged either in cross-examination or by any member of the Tribunal. In Mr Waalkens’ submission, the Tribunal focused inappropriately on Dr Subramani’s historical conduct without recognising the marked improvement that had taken place. Furthermore, Dr Subramani was clearly wholly committed to his own rehabilitation, having spent some $87,000 on supervision up to the date of the Tribunal’s hearing and obviously more following the hearing date.
68 Tribunal decision, above n 1, at [517].
69 At [520].
70 At [522].
71 At [607].
[82] Mr Coates, for the PCC, however, does not accept that Dr Shand’s evidence was “the most persuasive” evidence received by the Tribunal. In that regard, he notes that Dr Shand did not give evidence on the conduct that was the subject of the charge, nor had he seen Dr Cayford’s report and the extent of her criticisms.
[83] In any event, Mr Coates notes that even Dr Shand’s evidence indicated some shortcomings in Dr Subramani’s practice. Dr Shand observed that Dr Subramani’s dentistry was “a bit like dentistry in New Zealand 50 years ago”, and that he would benefit from a supervisor on an ongoing basis to ensure “he stayed on track and was aware of it”. Dr Shand also alluded to mistakes that Dr Subramani made under supervision but reassured the Tribunal he would bring these mistakes to Dr Subramani’s attention. Dr Shand was also clear that if Dr Subramani was to expand his scope of practice, he would have to do it with some sort of further education to “get back into some good habits and what was required”.
[84] The Tribunal had to consider Dr Shand’s evidence alongside all the other evidence which included evidence that when Dr Subramani was not under supervision, significant problems arose.
Discussion
[85] Having considered the Tribunal’s decision, I am satisfied it gave full and appropriate weight to the evidence of Dr Shand. It did not dismiss it, indeed it accepted it, but then had to reconcile it with all the other evidence which it accepted. This included the extent of supervision and further education Dr Subramani had, and the subsequent regression into deficient practices after the IRP supervision. It also needed to consider it in light of the limited level of insight and understanding that Dr Subramani appeared to have gained during his period of supervision under Dr Shand.
[86] The Tribunal clearly reached the view that Dr Subramani was capable of practising adequately while under close supervision, which was supported by Dr Shand’s and Dr Rae’s evidence, but was unable to apply what he had learned to
practice when unsupervised.72 This was a conclusion that was readily available to the Tribunal on the totality of evidence before it and I reject the ground that the Tribunal had inadequate regard to Dr Shand’s evidence in reaching its decision.
Did the Tribunal misdirect itself regarding the length of any condition of practice, including supervision, it could impose?
[87] Mr Waalkens submits that one of the reasons the Tribunal chose the penalty of cancellation was because it wrongly understood that supervision of the practitioner could only be imposed for a period of three years. Specifically the Tribunal said:
[624] Furthermore, under s 101(1)(c), the duration of any condition of practice may not exceed 3 years. Dr Subramani has already practised under supervision for over 5 years. The Tribunal does not have confidence that a three-year period of ongoing supervision will address the rehabilitation that is required and is therefore adequate to protect the public.
[88] Mr Waalkens submits the Tribunal was wrong to assume that supervision could only continue for three years. Under pt 3 of the Act, the Council has all the powers and ability to impose continued terms and conditions on any practitioner at the conclusion of any penalty orders imposed.73 If, at the end of three years, it was considered Dr Subramani required further supervision, the Council could impose that.
[89] Mr Coates says the Tribunal was correct to identify there was a statutory limit on the duration of conditions it can impose. While further conditions can be imposed under pt 3 of the Act, Mr Coates points out that part of the Act is unrelated to professional disciplinary findings and any new conditions imposed would involve an entirely separate process. It is for the Tribunal, under pt 4 of the Act, to impose a penalty that meets the various objectives of the disciplinary regime. In any event, Mr Coates says the Tribunal was correct to observe that “[t]he public is entitled to assume that a dentist who has been registered in New Zealand for nearly 10 years does not require the level of supervision of a dental student”.74
72 See at [652]–[653].
73 Health Practitioners Competence Act, ss 5(1) definition of “authority”, 36(2)(a) and 38(1)(b).
74 Tribunal decision, above n 1, at [623].
Discussion
[90] I am satisfied the PCC’s submissions are correct. The Tribunal must consider the powers available to it under pt 4 of the Act to select the most appropriate penalty. If it is not satisfied that conditions imposed for a three-year period would be sufficient to protect the public, it cannot choose that option in reliance on the Council, under pt 3, continuing such supervision to ensure the public is adequately protected.
[91] Furthermore, the Tribunal was entitled to have regard to the implicit assumption in s 101(1)(c) that three years should be a sufficient time to complete the rehabilitation required in order to protect the public. If it did not have confidence that rehabilitation could be completed in that timeframe, it was entitled to impose cancellation of registration instead.
[92] For these reasons, I am satisfied the Tribunal did not misdirect itself in respect of the duration of any condition of practice it could impose or on its relevance to penalty.
Did the Tribunal fail to give appropriate weight to the wider public interest in retaining the services of this dental practitioner?
[93] Although this consideration is the fourth ground of appeal, I consider it next as it is relevant to the last ground of appeal which is whether, in all the circumstances, the Tribunal’s decision to cancel registration was excessive or unreasonable.
[94] There was evidence before the Tribunal of the shortage of dentists on the West Coast. Furthermore, Dr Subramani gave evidence that he operated an after hours service and was the only emergency dentist available in the area.
[95] Mr Waalkens submits that given the shortage of dentists on the West Coast, the Tribunal’s decision adversely affects the public on the West Coast by removing Dr Subramani’s ability to provide any dental services at all. This should have been taken into account when deciding penalty.
[96] Counsel for the PCC rejects the suggestion that the Tribunal failed to consider the risk of harm to the West Coast community if cancellation was ordered. Indeed, the
Tribunal expressly acknowledged the submission in its decision.75 However, the Tribunal concluded that the “population of the West Coast is entitled to dental care by suitably qualified and competent dentists”.76 In Mr Coates’ submission, it could not sensibly be argued that a community is “harmed” by removing a dentist who was performing woefully below the necessary standards.
Discussion
[97] In my view, the public interest in maintaining dental services in an under-serviced area like the West Coast can only sensibly be taken into account where the Tribunal is satisfied the practitioner in question can be rehabilitated. If so, then it is appropriate that the practitioner be assisted to return to practice, particularly in an area where the practitioner’s services are needed. However, it could never be the case that someone be allowed to continue to practice simply to meet a shortfall where there is no confidence that person can be rehabilitated to the point where they can deliver their services without ongoing intensive supervision.
[98] The correctness of the Tribunal’s decision to put no weight on this factor really turns on the correctness of the Tribunal’s decision that Dr Subramani was not likely to be rehabilitated within a realistic timeframe so he could practice independently. If the Tribunal’s finding that Dr Subramani had no real prospect of rehabilitation is right, then it can not be criticised for ignoring the impact this would have on the level of dental services available on the West Coast.
Was the decision to cancel Dr Subramani’s registration excessive or unreasonable?
[99] Mr Waalkens submits that cancellation of a practitioner’s registration is an order of last resort. The Tribunal, therefore, needed to satisfy itself that the lesser penalty of suspension would not be adequate. In advancing that argument, Mr Waalkens cites this Court’s decision in Shousha v A Professional Conduct Committee where Gordon J observed:77 “Suspension (rather than cancellation) is
75 At [592] and [597].
76 At [606].
77 Shousha v A Professional Conduct Committee, above n 7, at [135].
appropriate where there is a prospect of rehabilitation and the practitioner’s fitness to practice may be remedied.”
[100] Again, Mr Waalkens points to Dr Shand’s evidence as clearly demonstrating a marked improvement and realistic prospects of rehabilitation. Furthermore, Dr Subramani himself accepts he is in no position to repeat the conduct which was subject of the charge and has learnt a salutary lesson. Although the Tribunal acknowledged that the purpose of disciplinary proceedings is not to punish the practitioner (albeit acknowledging it may have that effect),78 the orders made here suggest the Tribunal was in fact punishing the practitioner.
[101] Furthermore, Mr Waalkens suggests that if Dr Subramani was only ever able to undertake dental practice on the basis of restrictions, that should not preclude him practicing dentistry at all. Many dental practitioners practice under conditions, or voluntary undertakings, which restrict their ability to practice.
[102] Mr Waalkens also submits that too little regard was had to consistency with other cases when deciding to cancel Dr Subramani’s registration. In the decision of Aladdin, Dr Aladdin had previously been the subject of findings of professional misconduct and had previously been suspended.79 He did not even bother to attend the Disciplinary Tribunal hearing. Furthermore, unlike Dr Subramani’s case, there was no evidence of reassuring reports from a Council-appointed supervisor confirming the dentist was practicing safely. In summary, Aladdin was a much more serious case than the present and it was unsurprising Dr Aladdin’s registration was cancelled.
[103] Similarly, Mr Waalkens submitted the allegations in Vatsyayann were more serious than Dr Subramani’s.80 Dr Vatsyayann had prior Tribunal findings of professional misconduct. There were also findings of dishonesty on his part, noting he had wrongly claimed capitation payments. He gave combative evidence in the hearing before the Tribunal. He was also charged with having his wife, not a health practitioner, undertake medical attendances on numerous occasions, despite being
78 Tribunal decision, above n 1, at [620].
79 Director of Proceedings v Aladdin, above n 42.
80 Vatsyayann, above n 44.
warned not to do this. There was also no evidence, as in this case, that he was now practicing satisfactorily. Again, it was unsurprising his registration was cancelled.
[104] In Patel v Complaints Assessment Committee, the dental practitioner had previous periods of suspension and a large number of previous adverse disciplinary findings before his registration was finally cancelled.81
[105] Finally, in Gabb, although it involved only one patient, it involved substantial and gross incompetence over a period of eight years. The practitioner was not suspended, but simply received an order of censure and conditions on her practice.82
[106] Mr Waalkens also argues the Tribunal did not adequately direct itself to the important principle of imposing the “least restrictive penalty” which was appropriate in the circumstances. Furthermore, this factor was wrongly influenced by a belief that supervision could only ever continue for three years and by ignoring the evidence of Dr Shand. In Mr Waalkens’ submission, the Tribunal was wrong to cancel the appellant’s registration and ought to have more carefully assessed the option of suspension.
[107] Mr Coates, for the PCC, submits the decision to cancel Dr Subramani’s registration was not excessive or unreasonable, but was appropriate. Mr Coates acknowledges the issue of amenability to rehabilitation is central, pointing out that one of the principles relating to penalty is whether the practitioner is “truly capable of being rehabilitated and reintegrated into the profession”.83 However, he points out that the capacity of the practitioner to be rehabilitated is just one of the principles relating to penalty articulated in Roberts. The other principles, such as protection of the public, deterrence of others and setting of standards, pointed to a strong response by the Tribunal.
81 Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 10 August 2007.
82 A Professional Conduct Committee appointed by the Dental Council of New Zealand v Gabb, above n 48.
83 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5, at [47].
[108] In terms of Dr Subramani’s prospects of rehabilitation, the PCC submits that this was fully considered by the Tribunal and its decision was properly reasoned and “compelling”. While Dr Subramani places great weight on Dr Shand’s evidence, Mr Coates submits it had the following limitations:
(a)Dr Shand did not give evidence on the matters addressed on the charge.
(b)Dr Shand’s observations were limited to the heavily restricted scope of dentistry that Dr Subramani had been permitted to perform.
(c)Dr Shand said that any expansion of Dr Subramani’s practice to include endodontics or crowns would need to be a managed process, with further education and ongoing supervision. He was not clear when, if at all, Dr Subramani could practice without supervision.
(d)Dr Subramani had two years and nine months of supervision before the events covered by the charge. Dr Rae’s evidence that Dr Subramani performed well under his intense supervision but that “almost straight after” he became a different person was highly relevant. A matter of real concern for the Tribunal was that Dr Subramani seemed to perform satisfactorily when under close observation, but not when he was practicing without such intense supervision.84
(e)Dr Shand’s evidence that Dr Subramani has demonstrated a marked improvement needs to be considered in the context of the years of further education and remedial action taken to get the appellant to a satisfactory standard, including completing the MRACDS programme, before the events which gave rise to the charge.
[109] Mr Coates also points out that the Tribunal members had the benefit of questioning Dr Subramani directly and considering his responses. In particular, he notes:
84 See Tribunal decision, above n 1, at [615]–[617].
(a)Dr Subramani could not provide a substantive response to Dr Salis when he asked why Dr Subramani could not apply the MRACDS programme knowledge to the patients which were the subject of the charge.
(b)Dr Subramani confirmed, to Dr Ma, the wide range of exposure he had to working with different dentists before moving to Greymouth and acknowledged that he would try to complete restoration of a tooth surface in composite resin in half an hour when he was not capable of doing it in that time.
(c)Dr Subramani’s superficial response to the question put by Dr MacKay whether the deficiencies identified had been addressed via the intense supervision he had been under for a long time.
(d)The inadequate explanations Dr Subramani gave to Ms Kinzett’s request to outline what he does in his practice now to ensure the shortfalls identified in the charges did not recur.
(e)His inadequate responses to the numerous questions of the Chair regarding, for example, what he had learnt as a result of the charge.
[110] Mr Coates says the Tribunal also heard Dr Subramani’s inability to say why the personal factors he relied on, such as cultural differences, employment issues, and conflicts with his former colleagues, went some way to explaining his misconduct.
[111] In the circumstances, Mr Coates submits the Tribunal was well positioned to make an assessment of Dr Subramani, what he learnt from the disciplinary proceedings, and his prospects of rehabilitation. In doing that, the Tribunal accepted that Dr Subramani’s attempts to justify his actions through the process demonstrated a lack of insight, and if he was “truly capable of being rehabilitated”, there would be evidence of genuine remorse and insight.85
85 At [633].
[112] In substance, Mr Coates submits the Tribunal was correct to conclude that Dr Subramani’s “rehabilitation” seems to be a “lifelong journey” and that “public safety cannot take second place to Dr Subramani’s ongoing learning on the job, to achieve the level of competence expected of a graduate”.86
[113] Mr Coates also submits the decision to cancel is not inconsistent with other cases. In terms of the cancellation of registration in the case of Patel, Mr Coates points out it is significant that Dr Patel’s misconduct predominantly related to his crown and bridge work.87 It was not a case where, as here, the shortfalls occurred across all areas of general dentistry. Furthermore, the High Court quashed the earlier decision to cancel Dr Patel’s registration because the Dentist Disciplinary Tribunal had not explained why it considered a penalty lesser than cancellation was not appropriate.88 That is plainly not the case here. In the case of Aladdin, the charges he faced related to particular treatments and inadequate documentation.89 However, when the Tribunal decided to cancel his registration, it was because it identified very serious concerns in relation to a wide range of matters. If anything, Mr Coates submits the Tribunal’s decision in Aladdin supports the cancellation of registration in the present case.
[114] Mr Coates says the decision in Vatsyayann is not comparable.90 Dr Vatsyayann’s misconduct related to him enrolling fictitious patients in order to receive capitation payments and also breaching his patients’ privacy. However, Mr Coates considers the Tribunal’s conclusion on the role the imposition of penalties could play was relevant:91
… given the range of breaches raised by this charge and the depth of the underlying issues – particularly the lack of insight – the Tribunal could not responsibly deal with those matters by the imposition of conditions. Conditions of the kind raised in the submissions of Counsel could only be directed to isolated issues, but would not deal with the underlying problem disclosed by the present charge, which is that Dr Vatsyayann is not fit to practise.
86 At [639].
87 Patel v Complaints Assessment Committee, above n 81.
88 At [34]–[35].
89 Director of Proceedings v Aladdin, above n 42.
90 Vatsyayann, above n 44.
91 At [96].
[115] Mr Coates also distinguishes the decision in Shousha.92 He submits the High Court quashed the Tribunal’s decision to cancel primarily because the Tribunal did not articulate why options short of cancellation would not protect the public from harm.93 Mr Coates submits that is not the case here.
[116] Mr Coates points to a further professional misconduct decision in Edwards v A Professional Conduct Committee, where the High Court upheld the Tribunal’s decision to cancel Mr Edwards’ registration as a podiatric surgeon.94 In that case, Mr Edwards defended his actions saying he had provided his treatment in good faith, he acknowledged there was room for improvement in his practice, and his supervisor appointed following the allegations of misconduct had provided positive supervision reports.95 However, the High Court upheld the decision to cancel his registration. Given he had operated on a patient without consent, caused harm to three complainants and appeared to show no remorse or contrition for his actions, Lang J concluded that “the only realistic option available to the Tribunal was to cancel Mr Edwards’ registration as a podiatric surgeon”.96
[117] Mr Coates also submits that the case of Director of Proceedings v Dawood, is relevant to the appropriateness of cancellation.97 Mr Dawood was a pharmacist who made a dispensing error and then initially attempted to cover this up. While it was his first appearance before the Tribunal, the Tribunal concluded it was appropriate to cancel his registration because of Mr Dawood’s dishonesty and, secondly, because rehabilitation had not been effective. The Tribunal observed:
[108] Rehabilitation has not been effective. The practitioner was under the review of the Council for the better part of 6 years. The profession’s obligations under the Act do not require indefinite supervision or mentoring of a colleague whose practices pose a risk of harm to the public. A penalty of cancellation under section 101(1)(a) is fair and proportionate in the circumstances.
92 Shousha v A Professional Conduct Committee, above n 7.
93 At [85].
94 Edwards v A Professional Conduct Committee [2022] NZHC 3189.
95 At [370].
96 At [376].
97 Director of Proceedings v Dawood 1236/Phar21/514D.
[118] In conclusion, the PCC submits the admitted misconduct was serious. It repeatedly fell far short of expectations, and cancellation of Dr Subramani’s registration was inevitable.
Discussion
[119] I start by recognising that the Tribunal properly directed itself to the principles applying to penalty and carefully considered each one of them in light of the facts established in this case. This is not a case, such as in Patel or Shousha, where the penalty decision was quashed by the High Court partly because the Tribunal had failed to explain why lesser penalties were not imposed.
[120] Furthermore, as in other cases where registration was cancelled, the range of professional misconduct was extensive and had caused harm to patients. This was not a case as in the charges against Dr Gabb, where the incompetence was confined to the treatment of one patient. Instead, this was treatment of multiple patients within a compressed period of time, where almost all forms of professional misconduct were evident, ranging from inadequate workmanship to charging more than patients were quoted and undertaking work that did not need to be done. There was ample basis for the Tribunal to find not just that the work Dr Subramani did was substandard, but that he had engaged in conduct which was likely to bring discredit to the profession and which was unethical and amounted to malpractice.
[121] I accept, however, that the decision to cancel primarily turned on whether Dr Subramani was “truly capable of being rehabilitated and reintegrated into the profession”.98 Other penalty principles, including deterrence, setting professional standards and punishment, can generally be achieved by penalties of censure and fines.
[122] Some of the factors going to this decision have already been discussed. As already noted, Dr Shand’s evidence was relevant, but had to be weighed against the evidence of how successful the previous period of supervision and rehabilitation training had been. Significantly, Dr Subramani could not explain why the extensive
98 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5, at [47].
education programme involved in the MRACDS, along with over two and a half years of supervision, had not better equipped him to practice successfully on his own. I agree his explanation that he was “out of his depth” was no answer. At that time, he had been working in oral health practices for approximately 12 years and seen a range of dentists at work. He had also completed an extraordinary number of additional hours of educational training. When no reason was identified for Dr Subramani still showing such significant shortcomings when practicing unsupervised, the Tribunal was entitled to be sceptical about his prospects of rehabilitation.
[123] The Tribunal was also entitled to be sceptical of his expressed remorse and acceptance of responsibility. In response to a question from Mr Coates about whether some of his treatment of patients was unethical, he denied it was, and simply repeated his explanation he was “out of [his] depth”. In response to a question from the Chair as to what he considered was the worst aspect of his conduct, he simply answered that he had not explained the treatment clearly enough and did not space treatments out. He denied he had ever cut corners in the care provided to patients and still considered the reaction to his patients’ complaints was “disproportionate”. When questioned about the work that was the subject of the charges, he was still prepared to defend some of it. For example, when it was put to him he had put in too many fillings in Mr and Mrs H, he denied that he had.
[124] The Tribunal went on to say their members formed the view that “Dr Subramani says what he thinks one wants to hear”.99 That, too, was a reason to question his amenability to true rehabilitation. An example of this appeared when he was questioned on his treatment of Mr C. When Mr Coates asked him whether Dr Timmermans told him the way he treated Mr C was okay, he answered “no” and “definitely needed improvements”. However, when Mr Coates then asked him why he had previously told the Council that Dr Timmermans had thought the treatment was appropriate, Dr Subramani changed his answer and said Dr Timmermans did say it was of an acceptable standard. The incongruity of these answers, side by side to the same question, made it difficult to know which answer could be relied on.
99 Tribunal decision, above n 1, at [627].
[125] In summary, there was ample evidence to suggest that despite the serious findings against him, and the extensive education and supervision he had received, Dr Subramani demonstrated almost no insight into what was wrong with his practice or how he could prevent these shortcomings in the future. In light of this evidence, it was reasonable for the Tribunal to find there was no real prospect of him being rehabilitated. The decision to cancel registration was therefore fair, reasonable and proportionate. I have come to the same conclusion having regard to the evidence and the principles governing the imposition of penalties.
[126]This ground of appeal is dismissed.
Was the decision to impose a fine appropriate?
[127] The second challenge to the penalty imposed by the Tribunal was a challenge to the imposition of a $10,000 fine. The Tribunal’s reasoning on this was as follows:
[655] The Tribunal has also decided a fine is appropriate. This reflects Dr Subramani’s total disregard for the wellbeing of his patients in providing and charging for treatment that was not necessary, and embarking on treatments such as implants that he knew or ought to have known he was not competent to perform. He has demonstrated that he knows what is required when he is under supervision, but once there is no oversight, he ignores the standards expected of a reasonable dentist. The Tribunal orders him to pay a fine of $10,000 under section 101(1)(e) of the Act.
[128] Mr Waalkens submits the Tribunal’s decision to impose a fine of $10,000 was neither analysed nor explained and was, in all the circumstances, unreasonable.
[129] He points out that in none of the cases referred to by the Tribunal where the practitioner had his or her registration cancelled was the practitioner also fined. Furthermore, the direct financial consequences of the disciplinary proceedings on Dr Subramani were significant. In supervision costs alone he had spent more than
$87,000 through to February 2022, along with another $30,000 of other direct financial expenditure or costs. There had then been continued costs of supervision since February 2022. Furthermore, his loss of income as a consequence of already having been out of practice for in excess of eight months should be taken into account. No reason is given by the Tribunal for imposing a fine on top of cancellation and on top of all the other financial consequences of the disciplinary proceedings.
[130] The PCC, however, argues that the Tribunal correctly exercised its discretion under s 101(1)(e) to impose a fine that ensures that the standards of the profession are maintained. The scale of fines ordered by the Tribunal can range from $500 for relatively minor offences through to $25,000 in a serious case of misconduct. Mr Coates submits that, alongside cancellation, the $10,000 fine is appropriately positioned at the lower to middle end of that scale. While there are cases where the High Court has reduced a fine because that was necessary “to maintain proportionality”,100 or because the fine was “clearly out of line” with comparable decisions,101 there is no basis for a similar conclusion here.
[131] When compared with other cases, the amount of the fine was proportionate and appropriate. For example, in A Professional Conduct Committee appointed by the Dental Council of New Zealand v Beer, the Tribunal imposed a fine of $7,500 and a censure as a result of Dr Beer’s failure to obtain informed consent and his otherwise unprofessional behaviour.102 The Tribunal also noted that if it were not for Dr Beer’s undertaking not to practice again, it would have given “serious consideration to cancellation”.103 Similarly, in the case of Director of Proceedings v Stubbs, a surgeon was fined $20,000, censured and conditions placed on his practice as a result of his failure to obtain informed consent before undertaking surgery.104
[132] Here, the Tribunal considered matters relating to penalty in the round and imposed the fine to reflect Dr Subramani’s “broad range of failures”.105
Discussion
[133] In my view, the Tribunal has not clearly articulated why the penalty of cancellation of registration was insufficient in this particular case to meet the objectives relevant to penalty, as articulated in Roberts. The starting point must be that cancellation of registration is inherently punitive, particularly where, as here, it occurs part way through an individual’s professional career. If cancellation of
100 Harman v Director of Proceedings HC Auckland CIV-2007-404-3732, 12 March 2009 at [162].
101 E v Director of Proceedings (2008) 18 PRNZ 1003 (HC) at [58].
102 A Professional Conduct Committee appointed by the Dental Council of New Zealand v Beer
1025/Den18/428P.
103 At [30].
104 Director of Proceedings v Stubbs 316/Med 09/113D.
105 Tribunal decision, above n 1, at [651].
registration is considered appropriate, it must then be asked whether an additional penalty is required to punish the practitioner, to deter others, or to reflect the seriousness of the misconduct. In my view, the need for further punishment has not been established in this case.
[134] Furthermore, I accept Mr Waalkens’ submission that in almost all the other cases referred where registration has been cancelled, no fine was imposed in addition.106 In the case referred to by Mr Coates of Beer, Dr Beer was at the end of his practicing life and chose to retire. I consider in those circumstances, there were proper reasons for imposing a penalty by way of fine to punish the practitioner and to deter others.
[135] However, in the present case, I accept that cancellation of registration is, in practical terms, a highly punitive outcome. I also accept that Dr Subramani has incurred significant costs as a consequence of the disciplinary proceedings. It has not been demonstrated that the imposition of a further cost penalty is required to achieve any of the principles relating to penalty. Furthermore, in the interests of consistency with other decisions, it does not appear that a fine has often been imposed in addition to cancellation of registration. An exception is in Dawood, where extensive dishonesty was involved, including attempting to blame a colleague for the dishonesty and when he had also tried to cover up his shortcomings in the past.107 While there will be cases where a fine is warranted in addition to cancellation of registration, here, where Dr Subramani will lose a career he has invested years of his life to train for and has expended significant sums on supervision, I do not consider any additional penalty was warranted.
[136]Accordingly, the penalty of a $10,000 fine is quashed.
Result
[137] The appeal is allowed in part. The fine of $10,000 is quashed. In all other respects the Tribunal’s decision stands.
106 No fine was imposed on Dr Vatsyayann, Dr Aladdin or Mr Edwards, but a fine of $5,000 was imposed on Mr Dawood in addition to cancellation of registration.
107 Director of Proceedings v Dawood, above n 97.
Costs
[138] Costs are reserved. My preliminary view is that the PCC has been successful and is entitled to 2B costs with perhaps a modest discount to reflect the fact Dr Subramani has succeeded in setting aside the fine (although very little of the argument focused on this issue). If costs cannot be agreed, any application for costs must be made within 20 working days of the date of this decision.
Solicitors:
Wotton + Kearney, Wellington Claro Law, Wellington
Copy to: A H Waalkens KC, Barrister, Auckland
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