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Fitness to practise: A case review

31 May 2022

The consequences of dishonesty, however seemingly minor, insignificant, unimportant or innocent at the time can have far more significant consequences on our registration that we may realise. Barrister Brad Wright of Bennett Chambers highlights a recent case where the records were amended after the event.

Dental Board of Australia v Hussain (Review and Regulation) [2022] VCAT 467

Much of this decision, which was in response to allegations of professional misconduct, is in relation to clinical performance. However, a particularly interesting aspect is the finding in relation to the non-contemporaneous creation or amendment of patient records.

In late 2016 the Board took immediate action and imposed conditions on Dr Hussain’s registration, restricting his hours of practice and restricting the procedures he could perform. In April 2017 Dr Hussain surrendered his registration.

The sanction or penalty had not been decided as of the date of publication. As a general rule, the ‘sentence’ (or sanction or penalty) is decided later and separately. This can range from a caution through to a reprimand, conditions, suspension or even cancellation of registration for a period.

The offence and allegations

The practitioner had sent records to the Board stating that they were contemporaneous.

The Board found that they had been modified materially after the notification was brought to the attention of the practitioner:

“The sixth allegation was that (he) gave false and/or misleading information to the Board, in that he indicated that a patient’s clinical records were contemporaneous when they had been edited subsequent to the date of treatment.”

It is this finding in relation to this allegation that is notable, if not surprising:


“(vii)    in written submissions to the Immediate Action Committee of the Board dated 24 October 2016, Dr Hussain (via his legal representative), referred to the clinical records as ‘contemporaneous’...”

The Tribunal noted:

“the Dental Board of Australia Code of Conduct (March 2014) provides that:

(A)    good practice involves cooperating with any legitimate inquiry into the treatment of a patient or client and with any complaints procedure that applies to a practitioner’s work (8.10); and

(B)    patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion (1.2).”

At [42]:

It is to be emphasised that in the context of the National Law, we are considering conduct, not character. And we are considering conduct that Dr Hussain engaged in years ago. In Medical Board of Australia v Arulanandarajah [2021] VCAT 85 at [34]ff VCAT noted that the words in paragraph (c) allow for the possibility that while the conduct engaged in was inconsistent with the practitioner being a fit and proper person to hold registration, the practitioner was not in fact unfit at the time. VCAT also noted that the words allow for the further possibility that, while the conduct may have indicated that the practitioner was unfit at the time, that would not prevent the practitioner becoming a fit and proper person to hold registration by the time of the tribunal hearing.

At [43]:

“We are not considering the question whether Dr Hussain was a fit and proper person to hold registration in the profession at the time he engaged in the conduct. And we are not considering whether he is currently a fit and proper person to hold registration. We are not considering whether Dr Hussain was then or is now a person of good character. What we are considering is whether Dr Hussain’s admitted conduct in 2016-2017 is inconsistent with him being a fit and proper person to hold registration in the profession.

At [62] of the decision the Tribunal found:

“We reiterate that Dr Hussain has admitted the allegations. Allegations 3 and 6 do not say that Dr Hussain deliberately provided false or misleading information to his patient or to the Board. Dr Hussain did not give oral evidence to the Tribunal. He was not cross-examined. We would not conclude that Dr Hussain acted fraudulently. But we are unable to conclude that Dr Hussain acted altogether innocently. We consider that especially in relation to the representations made to the Board by him or on his behalf, Dr Hussain failed to take proper care to ensure that the information he provided was true and correct. To that extent, Dr Hussain’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession, in the sense that the conduct was inconsistent with him being a person with the necessary rectitude of character.

Amending clinical records – the right way

If practitioners do modify records after the day or date of treatment, they should do so in a separate dated entry that clearly indicates it was a post-treatment reflection, correction or commentary. It should not be entered as an 'edit' of the original treatment entry.

Alternatively, if the records have been modified and not, as suggested above, in a separate entry, the ‘clinical records audit log’ should be provided.

If records are modified and not dated and explained, questions may arise as to fitness and propriety.

The full decision is available read here

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