An allegation of dishonesty

By Ravi Gupta, Lead Legal Adviser at Dental Protection

Dr S had worked as an associate for Dr N for 12 years. He entered negotiations to purchase a dental practice from Dr N, who was terminally ill. After lengthy negotiations, Dr S decided against buying the practice and Dr N passed away shortly after that. Almost three years later Dr N’s widow brought a complaint to AHPRA against Dr S, alleging that he had: 

(i) represented to act on behalf of Dr N; 
(ii) claimed on social media that he was the business owner of the practice; 
(iii) advertised Dr N’s practice number on his own website; and 
(iv) took payment directly from a patient that he was not entitled to. 

The complaint alleged that Dr S’s conduct was inappropriate, misleading and dishonest. 
Dr S contacted Dental Protection and a multidisciplinary team of legal advisers, working alongside the dentolegal consultant, was put in place to assist. In our response on Dr S’s behalf, we admitted some of the allegations on the basis that Dr S had simply failed to update his social media accounts, but the allegations in respect of dishonesty were vehemently denied. Given the seriousness of the allegations and the factual dispute between Dr S and Mrs N, AHPRA referred the matter for a hearing a month later.

After lengthy discussion with Dr S, the hearing found the majority of the facts proved but did not determine that they amounted to misconduct. It determined that overall, Dr S’s conduct “whilst unfortunate, inattentive, and careless, cannot be said to reach the threshold for misconduct”.
Had the allegations been found proved it was likely that Dr S would have faced significant consequences for his dental registration. We were successful in arguing that he was not dishonest and that misconduct could not be found. 

How Dental Protection assisted

Dr S provided us with voluminous documentation and much of the case required a careful forensic analysis of the material to reconstruct the original events, which took place three years before. Due to the passage of time, Dr S could not recall details of many of the key facts that would have assisted in his defence. Further, he was supported by a number of professionals at the time of purchasing the practice whom he relied on heavily and therefore had a lack of understanding of some of the key issues.  

This was a particularly emotive matter for all parties in the complaint, revolving as it did, around the declining health and unravelling business relationship with a long-standing colleague (on one side) and a much-loved life partner who passed away in tragic circumstances just as he was to retire (on the other). The Dentolegal Consultant was able to act as a conduit between the cold hard facts of the law, accounts and forensic IT investigations, and the need to acknowledge the difficult and valid emotions on both sides.

This case required multiple meetings with Dr S, the result of which was a lengthy and detailed witness statement to assist him giving evidence. Dr S commented that this provided him with real focus and the ability to provide a response to challenging questions put to him by the panel members. Without the detailed forensic review of all the material in this case, and having to piece together information from a variety of sources, there was a real risk that Dr S could have appeared evasive and, in the worst case, dishonest before the hearing.

Dr S was also immensely reassured that the Dentolegal Consultant who had worked on the matter with him was able to attend the hearing with him as a support person.
Dr S was extremely pleased with the outcome, which in real terms meant he did not have any conditions placed on his registration. There were no restrictions on his practice and he was able to return to his profession without any adverse findings. Dr S expressed his gratitude to the team at Dental Protection for helping him achieve this outcome and commented that it could not have been achieved without our support.

Learning points 

• A careful and thorough forensic review of the documents helped reconstruct for Dr S events that occurred some three years prior.

• We were only able to rebut the allegation regarding financial wrongdoing having carefully traced the money payments at the practice. This was made more difficult given that there was no written agreement in place to ascertain the financial split between Dr S and Dr N.

• Further, the patient at the centre of one of the allegations had attended three different practices for treatment, which made apportioning the fees collected for treatment extremely challenging. Given that this was one of the more serious allegations faced by Dr S, we spent considerable time carrying out this exercise to establish that there was no financial gain and that Dr S was entitled to the money he took directly from the patient.

• An allegation of dishonesty can have significant implications and escalate in scope very rapidly. AHPRA were able to review this particular matter through the lens of many aspects of the Dental Board Code of Conduct, (the document we agree to adhere to every year when we renew our registration):

*Health Practitioner Regulation National Law Act 2009