Facts
Over a period of several years Dr Ajay Coutinho was subject to two criminal findings:
- driving under the influence of alcohol in 2014 and consequently subject to a good behaviour bond for two years, commencing 23 January 2014; and
- assault occasioning actual bodily harm on a person he had a domestic relationship, and sentenced to a good behaviour bond for twelve months commencing 1 September 2017.
It was held that the practitioner had failed to notify the National Board of his convictions and as such was found guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law). On 30 August 2019 the Health Care Complaints Commission (HCCC) (similar to the Office of the Health Ombudsman in Queensland) applied to the Tribunal for disciplinary orders under the National Law against Dr Ajay Coutinho.
Background
The practitioner was first registered as a dentist in New South Wales on 17 November 2006, having practised in Western Australia between 2005 to 2007. At the time of the offences the subject of the complaints, the practitioner was in practice in several towns in northern New South Wales. His then wife is also a registered dentist, and she was in partnership with the practitioner in some of those practices.
The practitioner’s registration as a dentist was suspended following a hearing held under s 150, ‘Suspension or conditions of registration to protect public’ of the National Law in December 2017.
The practitioner appealed to the Tribunal under s 159(1)(a) of the National Law. Following a hearing of that appeal on 25 May 2018, the Tribunal made an order that the appeal be allowed, and set aside the order to suspend his registration.[1]
In the proceedings before the Tribunal in Health Care Complaints Commission v Coutinho [2020] NSWCATOD 33, HCCC sought the orders that:
- the practitioner be reprimanded under s 149A(1)(a) of the National Law; and
- the practitioner’s registration be suspended for a period of 1 to 3 months under s 149C(1)(c).
The practitioner did not contest the finding of guilt or unsatisfactory professional conduct, but submitted that the appropriate order was a reprimand, not a suspension of his registration.
Tribunal
Failure to Notify the National Board
The HCCC alleged that the practitioner failed to comply with the obligations imposed by s 130 of the National Law, which require a registered health practitioner to give written notice to the National Board within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner. Failing to properly notify the National Board contravened the National Law which constituted unsatisfactory professional conduct under s 139B(1)(b).
HCCC submitted that the practitioner was reckless in not disclosing the offences and charges and had turned a blind eye to his obligations as a medical health practitioner.
The practitioner argued that:
- at the time of the finding of guilt of his drink driving offence, he mistakenly believed that only convictions had to be reported to Ahpra; and
- the day he was convicted of the assault offence he phoned Ahpra and was told he would be required to make full disclosure when his professional registration became due for renewal, and he provided a statutory declaration dated 16 October 2017 outlining all offences charges and convictions and non-conviction.
As such, whether the practitioner failed to notify the conviction for the assault offence depended on the content of the telephone conversation with Ahpra.
Telephone Conversation
The practitioner’s affidavit evidence was that he telephoned Ahpra the same afternoon as the court case and advised them of his conviction. He spoke to a person who identified himself as “Mark” and was informed he would be required to make a full disclosure when his registration became due for renewal. He received notification of the renewal requirements in the first week of October 2017, where he became aware that he was required to disclose all and any arrests/charges as well as non-convictions recorded. Once apprised of his obligations he made full and frank disclosure by statutory declaration. He provided the original statutory declaration to Ahpra on 27 October 2017 when requested to do so by Ahpra. He provided further information to Ahpra when requested on 20 November 2017.
However, in the absence of evidence from the person identified as Mark or a more detailed record of the conversation from the practitioner, the Tribunal was unable to be satisfied that more was discussed than the practitioner’s good behaviour bond. This was unable to satisfy the requirement of s 130 of the National Law to the requisite standard.
Assault offence
The HCCC sought suspension of the practitioner’s registration, based on the fact that he twice breached s 130 of the National Law, and under s 149C(1)(c) of the National Law, that the circumstances of the assault offence rendered him unfit in the public interest to practice in his profession.
The practitioner opposed an order suspending his registration. He submitted that it would be excessive in the circumstances particularly having regard to rehabilitative and protective steps he had taken prior to the hearing, and the 5 months suspension he had already been subjected to. He submitted that and the failure to notify the PCA offence and the assault charge was out of ignorance.
The Tribunal ordered that the practitioner be reprimanded and their registration be suspended for a period of one month.
General Ramifications on Dentists
Obligations
This case highlights the importance of compliance with the reporting obligations for the maintenance of the integrity of the system for disciplining of health practitioners established by the National Law. The Tribunal placed emphasis on the statement in Health Care Complaints Commission v Amalakumar:
...In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners.[2]
In such circumstances, ignorance of the requirements over the years in which the practitioner was registered amounted to recklessness. Such recklessness warranted a protective order.
Record-Keeping
Although any evidence to the contrary may have been unlikely to sway the Tribunal’s decision, the practitioner’s submissions regarding their telephone conversation was extremely limited by the lack of evidence. The Tribunal examined a telephone call log however it was insufficient to satisfy the Tribunal that the practitioner discussed what he claimed to have.
Practitioners should take care to ensure telephone calls are properly recorded via contemporaneous file notes and memos or at least a comprehensive outline of any discussion is described.
Protection of the public
The Tribunal noted the requirement in s 149C(1)(c) of the National Law, that in making a protective order it be satisfied that the circumstances of that offence rendered the practitioner “unfit in the public interest” to practice his profession.
The Tribunal emphasised the seriousness of domestic and family violence in the Australian community and the need for urgent action.[3] The Tribunal was not convinced that the practitioner had reflected on the findings of the court in the assault offence proceedings, had insight into his failings, or taken any rehabilitative steps since the determination. This satisfied the Tribunal that a protective order should be made.
Ultimately, the position of dental practitioners in society necessitates a high standard to meet in holding a practicing certificate. Patients and others need to have confidence that practitioners will both be competent, and exhibit traits consistent with the ‘honourable practice of an honourable profession’.[4]
HALL & WILCOX REGULARLY ASSISTS ADAQ MEMBERS BY REPRESENTING MEMBERS IN QCAT PROCEEDINGS, PREPARING SUBMISSIONS TO EITHER OHO OR AHPRA IN RESPONSE TO PATIENT COMPLAINTS, AND IN CIVIL MALPRACTICE CLAIMS.
[1] Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98.
[2] [2019] NSWCATOD 173 at [34]
[3] The Tribunal noted the comments in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87].
[4] Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98 at [22].