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Regulators gonna regulate?

10 August 2023
This sounds very comforting; however, the reality of this protection can leave registered practitioners feeling less than comfortable. Moreover, the strain of the process on practitioners cuts deep, with Ahpra’s own findings showing 16 practitioners subject to the scrutiny Ahpra requires to afford that ‘safety’ took their own lives, and a further four attempted suicide or self-harm. It is then entirely understandable that colleagues will look to us, the bodies who protect them to ask the simple but critical question ‘what ARE you going to do if they come for me?’ Dr Annalene Weston, Dentolegal Consultant at Dental Protection considers some recent cases, not through our usual risk management optics of what went wrong, but rather though what WE did to support that practitioner through the darkest days of their career.


Anyone can make a complaint, and anyone can receive one. Naturally, there are some best practice behaviors we can implement to minimize the risks, both to us and our patients, but nevertheless, we cannot wholly eliminate all risk from our inherently high-risk roles.


Case one

"Of all the gin joints in all of the towns in the world, she walks into mine"

Dr P was a reasonably recent graduate, of 4 years post grad and a competent and well-liked clinician. Consequently, the practice principal felt very comfortable leaving Dr P to work in the practice’s regional satellite clinic alone, in fact it essentially became Dr P’s clinic to manage as he wished.

One Saturday, towards the end of clinic, a distressed patient came in from the rain. She had driven for many kilometres to see Dr P as he had a good reputation among the community and was one of very few practices open on a Saturday. She had not rung ahead and was visibly in a high level of pain, so Dr P dutifully added her to the end of his session.

Dr P assessed her and found tooth 46, the source of the pain to be root filled, crowned, having fractured roots and to be heavily infected. Dr P assessed this tooth to be just on the edge of the envelope of what he felt comfortable to treat, but felt he had no choice by to proceed. Ms Q gave a tearful consent and acknowledged that he could only do his best and Dr P proceeded with the extraction. It did not go well, and after 2 hours, several cartridges of local anaesthetic, a flap and 4 attempts at sectioning the tooth and removing bone, Dr P took the decision that he needed to stop the procedure and refer Ms Q to the nearest specialist, some 100kms away for the remainder to be removed. He issued a prescription for some antibiotics and pain medication and his mobile number in case of post operative issues, along with the referral, and Ms Q accepted this graciously, and happily handed over her Health Fund card as Dr P decided to charge her rebate only as he felt bad about not having successfully extracted the entire tooth.

Ms Q did not respond to the TLC calls made on Monday and Tuesday, or reply to any messages asking after her wellbeing, so Dr P could only assume she was OK and attending the specialist as planned.

Dr P had forgotten all about Ms Q when the complaint from the regulator came, packed with allegations from Ms Q stating she had suffered at the hands of poor treatment and a lack of care. She alleged Dr P was surely working outside of his scope of practice, claimed he did not manage her pain during the procedure, liking it to torture and claiming she had cried out for him to stop several times. He alleged that he had failed to diagnose her life threatening infection and capped the complaint off with an allegation of fraudulent billing and inappropriate use of her Health Fund card. It seemed that Ms Q had experienced significant enough post operative pain to warrant a visit to the hospital, where she stayed overnight, and was administered some heavy-duty pain medications and IV antibiotics.

Dental Protection assessed the matter and assisted Dr P in drafting his response, also recommending some pre-emptive CPD that Dr P may wish to undertake as there were some deficiencies in his records. Essentially, the Dentolegal Consultant (DLC) assisting Dr P advised him that by doing this he would be demonstrating reflection to the regulator and an acknowledgement that there were areas in which he could improve. The took the matter very seriously and summoned Dr P to attend a Performance Interview. Dental Protection instructed a lawyer to assist Dr P in his submissions and worked with the lawyer to prepare him for the day. Dental Protection also facilitated the use of the confidential counselling service for Dr P, who by now was acutely distressed and neither sleeping nor eating.  

Prior to the interview, the regulator provided a full copy of the papers on which they had made their decision, which included a previously unseen scathing report from the SHO who had admitted Ms Q. The report claimed that Dr P had not acted appropriately by failing to recognise that this patient was medically vulnerable, and ought to have been provided with better pain relief and post operative antibiotics. The SHO also claimed that the wound was ‘dirty’ and drew inferences to Dr P’s standards and levels of infection control. The reason for the Performance Interview then become crystal clear – this matter at heart was not just about treatment and standards which Dr P had explained well in his submission, but due to an allegation of infection control breach. Regretfully, Dr P had not undertaken any recent infection control CPD and it was too late to find a course.  So all that could be done was an in-house refresher of his knowledge, to ensure that when this critical topic came up for discussion, he was not found wanting.

The day of the Performance Interview came, and the DLC travelled interstate to attend with Dr P. The questions progressed as anticipated, with Dr P expressing well why he had made the decisions he had made. The infection control questions swiftly followed, and fortunately Dr P had prepared well for this section, clearly setting out what happened in his sterilization room every day and acknowledging that he understood that regardless of the hands that undertook these important processes, the responsibility for infection control lay with him and him alone. 

The regulator dismissed the matter with no further action.


Breaking it down

In this matter, Dr P was assisted throughout by the same experienced DLC, who was also a registered dentist. They undertook an assessment of Dr P’s vulnerability and provided a targeted plan of CPD intended to address any shortcomings. Much of this CPD was freely available to Dr P at no charge through Dental Protection’s online learning platform. So too the counselling service, which is a service available to Dental Protection members at no charge, 24 hours per day. The policy, underwritten by MDA National was called upon to cover the costs of a lawyer to assist Dr P, and the DLC travelled interstate to be with Dr P as he went through the performance interview. 


Case two

"Where there is great power there is great responsibility, where there is less power there is less responsibility"

Dr A was dating a medical student, Mr B and they both liked to party. Mr B was prescribed dexamphetamines for his ADHD and Dr A and Mr B found what they believed to be a far better use for this, fuelling their Friday nights. Life was good, right up until it wasn’t, and when their relationship deteriorated, Mr B quickly made a notification to the regulator about Dr A’s drug issue, alleging she was unfit to practice.

The regulator immediately scheduled a section 150 interview, which is best thought of as a formal hearing, and in keeping with the severity of the allegation and the process, Dr A had 3 days to prepare. The DLC assessed the matter and promptly instructed a lawyer to assist Dr A, as an allegation of this nature could end her career. They recommended Dr A undertook some targeted CPD on ethics and put her in touch with the confidential counselling service, and also sought out a local branch of Narcotics Anonymous that Dr A could attend, prior to the s150 – again, all intended to support and demonstrate insight and reflection.

Dr A undertook all of these activities, and on the day of the hearing was able to demonstrate that she understood if she wanted to belong to the profession the time for recreational drugs lay behind her. Nevertheless, in keeping with the requirement that they protect the public, the regulator considered what steps would be appropriate, and what conditions ought to be placed on Dr A’s registration. Ultimately, they directed Dr A to undertake urine testing thrice weekly, at her own expense, until such a time that she could be moved on to random urine testing.  The regulator directed Dr A to be assessed by their appointed psychiatrist, and to consider with their counselling. Finally, Dr A was directed to find a mentor. On this point it is worthy of note that Dr A did not practice alone, had she been a single practitioner, she may well have been placed in supervised practice.

After a bumpy 10 months of testing, which carried with it all manner of issues of dilute samples and missing the clinic hours (both of which are breaches in the conditions, necessitating a further s150 – Dr A had four s150s in total during the course of this matter), Dental Protection assisted Dr A in communicating with the regulator to request that the conditions be removed, and this was done.


Breaking it down

The DLC, who was experienced in working with drug and alcohol affected practitioners, and also a registered dentist, assisted Dr A in preparing for the s150 and, due to the potential severity of outcome, the policy, underwritten by MDA National was called upon to cover the costs of a lawyer to assist. Dr A was able to access ethics CPD through the online learning platform provided by Dental Protection at no charge, and also accessed the confidential counselling service after hours. The DLC travelled interstate to attend the s150 hearing with Dr A and found an appropriate Narcotics Anonymous branch and encouraged Dr A to attend. Dr A found the experience quite confronting, and it enabled her to tell the regulator ‘I now understand that the trip to addiction is short, but the recovery lasts a lifetime.’ The DLC attended all four s150s with Dr A.

Finally, the DLC assisted Dr A in finding a suitable mentor who not only would be appropriately supportive but also would be prepared to write the monthly reports to the regulator. The DLC then helped Dr A finalise their paperwork to the regulator to have the conditions removed.





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