Those folks at VCAT sure get some… interesting cases. Dental Practice Board of Victoria v Gardner (Occupational and Business Regulation)  VCAT 908 is the first ever case to be decided by VCAT under the (kinda) new Health Professions Registration Act 2005. It involves Highton dentist Paul Gardner:
In 2006 Dr Gardner came to the attention of the Board following a complaint by a patient. In brief, the conduct complained of was an inappropriate and unsolicited advice made to the patient suggesting that he could assist her condition of paranoid schizophrenia. He suggested to her that she was possessed by evil spirits, suggested she should attend his church for spiritual healing, and suggested once this had occurred she could discontinue the medication prescribed for her.
Dr Gardner explained to the Board that the complaint concerned the use of his religious beliefs in his dentistry:
One of the reasons my practice is building at such a rate is that we successfully deal with the spirit of fear that oppresses so many patients (2 Timothy 1:7). This spirit of fear is the cause of behaviours such as needle phobia, non-attendance leading to a mutilated dentition, gagging, anxiety, crying and vomiting. I say a simple command prayer and the behaviour ceases and does not return. The patient leaves feeling different and knowing that they have been touched by Jesus Christ. Please note that this is offered, never forced, and rarely rejected, and that I have been quietly serving my patients in this manner for 2 ½ years.
Alas, this letter didn’t settle the issue. Indeed, the Dental Practice Board ordered Dr Gardner to attend counselling about the dangers of ‘dual relationships’, applying its own Code of Practice on Professional Boundaries, which contains some surprisingly mild guidelines encouraging dentists to think twice about entering into various non-dental relationships with dental clients:
In situations such as these, it is reasonable to think that a person’s professional judgement could be clouded if, for instance, treatment did not go well or if the personal relationship was in some way altered.
Think of the teeth! Dr Gardner didn’t respond well to the counselling suggestion, initially demanding a counsellor who shared his religious beliefs, then issuing ‘unrelated’ demands and, finally, seeking $175,000 compensation from the Board with $7,000 accruing for each additional week. The Board responded by inviting VCAT to determine that this non-compliance with the Board’s order was misconduct.
Dr Gardner claimed that the Boards determination breached the Charter of Human Rights and Responsibilities. It was difficult to follow the way in which the Charter was said to apply in this case. We asked Mr Peter Olney to explain this to us on Dr Gardner’s behalf. It appeared that he relied on the rights to freedom of expression and freedom of religion protected by the Charter. He said that the fact that the Respondent had been required to undergo counselling limited his right to speak with patients about other matters in his surgery. In our view the Charter argument is misconceived. The Charter was not operative at the time of the Panel’s determination.
Even if the Charter did apply, we record our view that the Professional Boundaries document issued by the Board does not appear to contravene any of the terms of the Charter. None of the rights enshrined in the Charter are absolute. Each right must be assessed in context. No dentist has an unfettered right to say what he likes to a patient or to express his religious views to a patient without restriction. The Respondent is obliged to attend for counselling as a condition of the determination that has been made. The requirement imposed by the Board is consistent with the Code of Practice C008 or the Professional Boundaries document. It is not in our view a breach of the Charter. It simply reflects the reasonable limit demonstrably justified by the need for the Board to carry out its statutory role of protection of the public.
The argument is in any event premature, as there have been no restrictions placed on the Respondent during counselling which need to be analysed in accordance with the provisions of the Charter.
Once again, I’m unimpressed.
First para: It’s certainly correct that the Charter didn’t apply to the Dental Practice Board’s determinations, as they all happened before 1/1/8 (Charter s. 49(3)). But that doesn’t mean that the Charter can’t affect VCAT’s determination. Presumably, VCAT wasn’t bound by the conduct mandate on the basis that it was excersing non-adminstrative functions (Charter s. 4(1)(j)). However, what about an argument based on interpretation of the Health Professions Registration Act, in particular the crucial definition of ‘professional misconduct’ as ‘conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute and competency’? The right to freedom of expression at least raises the issue of whether mere imparting of information can meet such a standard.
Second para: Again, we see VCAT applying limitations within the Charter (seemingly both Charter ss. 7(2) and 15(3)) to conduct, not laws. I continue to have misgivings about this. Isn’t the relevant issue whether (a) for the interpretation mandate, whether the Health Professionals Registration Act, to the extent that it’s definition of professional misconduct may infringe rights to expression or religion, is either a reasonable limit on those rights or can’t be interpreted to be consistently with the law’s purpose (Charter s. 32(1))?; and (b) for the conduct mandate, whether the Health Professionals Registration Act – or any other applicalbe legislation – makes it reasonable for VCAT or the Dental Practice Board to act incompatibly with Gardner’s rights (Charter s. 38(2))? VCAT’s approach seems to collapse these two stages into a generalised assertion that what the Dental Practice Board did was reasonable. This case shows how such collapsed analysis amounts to almost no analysis.
Third para: Perhaps things will become clearer when the conditions of counselling emerge. But Gardner’s objection is to the whole idea of being counselled for expressing his religious beliefs. Given that counselling is plausibly a form of discipline or restriction on Gardner, it seems like the argument could have been resolved now.
Now, of course, it’s hard to disagree with VCAT’s final conclusion: that Gardner’s reaction to the Board was professional misconduct. He was reprimanded, cautioned and fined. And I’m not planning to get him to do my fillings. But all this non-analysis of the Charter is starting to make my teeth ache.