Charge

On 8, 9 and 10 April 2019, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge laid by a Professional Conduct Committee (PCC) against Dr Nigel Lowry Beer, registered dentist of Auckland (the Dentist).

The charge alleged:

1. Ms S had dental treatment provided by the Dentist, including the extraction of an upper molar and five fillings. It was alleged this was in circumstances where the Dentist changed the agreed treatment plan after sedation. The Dentist disregarded her known financial constraints and advised her after sedation that the treatment price had increased. The Dentist also failed to treat the patient with dignity and respect and/or in a professional manner in relation to her known anxiety and financial constraints.
2. The Dentist failed to cooperate adequately with the investigatory processes of the Health and Disability Commissioner (HDC) and the Dental Council after a complaint had been laid against him by Ms S and failed to provide honest responses to both the HDC and the Council in relation to his delay in responding to the complaint.
3. Ms I underwent a teeth cleaning treatment with the Dentist, after which she raised a complaint with the Dental Council. The Dentist subsequently delivered a 15-page letter responding to her complaint and issued her a tax invoice for $5,290, charging for his time spent in preparing his reply to her complaint. It was alleged that this conduct was unprofessional in respect of the Dentist’s obligation to treat the patient with dignity and respect and to respect her right to complain. The alleged conduct was in breach of Ms I’s rights as a patient and health consumer. 

The conduct alleged above either separately or cumulatively amounted to professional misconduct pursuant to section 100(1)(a) and/or section 100(1)(b) of the Health Practitioners Competence Assurance Act 2003.

Background

Ms S

Ms S first contacted the Dentist in August 2016. She had an appointment for the extraction of a molar tooth booked at another practice. Prior to attending that appointment, Ms S wanted to seek a second opinion from the Dentist as to whether the tooth could be saved rather than extracted. Ms S phoned the Dentist and made an appointment. It was acknowledged by both parties that she had discussed her extreme anxiety and distress at possibly having the molar extracted and concern about costs.

At the first consultation with the Dentist, Ms S was informed that she had some other minor cavities. The Dentist offered to perform fillings at the same time as repairing the molar. The Dentist quoted $2,000 for this. Ms S explained that she could not afford that level of treatment. The Dentist told Ms S that he could repair the molar for $900.

Prior to the procedure, Ms S was given tablets for sedation and pain relief. After taking the sedation, the Dentist asked her to prepay $1,198.30. When Ms S queried the figure, the Dentist explained that the amount was for the $900 repair that he had quoted earlier, plus x-rays and a consultation fee.

Before paying this amount, Ms S stated that she asked the Dentist if he would be able to rebuild the molar. Ms S recalled that the Dentist said he could save the tooth and that she would have a “beautiful outcome.” About half an hour after Ms S had taken the sedation, the Dentist shared the results of the x-ray with her and told her that he could not repair the molar. Ms S was extremely upset to learn this and began to cry.

The Dentist spent some time talking to Ms S about whether she wanted to go ahead with the procedure and to what extent she wanted the filling work undertaken. Ms S was extremely distressed during this period. She was offered further sedation, which she accepted. Once administered, the Dentist again sought Ms S’s consent to extract the molar.

Ms S then agreed to proceed with fillings and extraction of the molar. She agreed to the extraction because she felt she had no option, being under sedation and unable to drive home.

The Dentist undertook five fillings, and finally the extraction of the molar. Ms S did recall she agreed to have the molar extracted and one to two fillings done, but not five fillings.

At the end of the treatment, Ms S requested a partial refund, given that the Dentist removed instead of repaired the molar. Ms S said that it was only then that she learned the Dentist had undertaken 5 fillings and was only willing to return $300 of which she was refunded.

Later that day, Ms S became upset at her treatment and subsequently made a written complaint to the HDC about the treatment she received from the Dentist.

The Dentist denied that he altered Ms S’ treatment plan while she was under sedation or that he otherwise acted unprofessionally towards her, the HDC or the Dental Council.

Ms I

In July 2016, Ms I enquired at the Dentist’s practice whether a hygienist was available to clean her teeth. Ms I was advised that the Dentist could perform the service that afternoon, which he did. Ms I was charged $397.90 for this service, which she paid. The next day, Ms I returned to the practice to challenge the level of the fee charged. The Dentist denied that the charge was too high and declined any refund.

Ms I made a complaint about the Dentist to the Dental Council. In her complaint, she recorded concerns about the level of fee charged, and concern about the manner of treatment being unprofessional and rough.

The Dentist was advised of the complaint on 16 August 2016. On 17 August 2016, he hand-delivered a 15-page written response to Ms I’s home. The Dentist’s response included numerous accusations against Ms I, including that she was dishonest, malicious, vindictive and that she had a major flaw in her character. The Dentist also threatened to take action and seek remedies in relation to her “pre-meditated lies.” The letter was highly emotive, unnecessarily aggressive and confrontational towards the patient who had raised a complaint. Particularly when the dealings between the parties had at that point been relatively minor.

This response was also accompanied by an invoice from the Dentist for $5,290 (including GST) for his time spent preparing his response. The invoice also noted that if it was not paid by 30 September 2016, then he would charge for 30 hours of his time rather than the 20 hours currently charged. The Dentist did not pursue the invoice after he sent it and it was never paid by Ms I.

Ms I was distressed by the fact that the Dentist had visited her home to deliver the letter. She felt intimidated and threatened and was offended by the language the Dentist used to describe her.

The Dentist also sent correspondence to the PCC in March 2018, in which he made similarly offensive remarks about Ms I.

The Dentist denied that he failed to co-operate or act honestly towards the HDC or the Dental Council. While the Dentist accepted that his response letter and tax invoice sent to Ms I was unprofessional, he denied it met the threshold for professional misconduct.

Finding

The Tribunal found that particulars 1 and 3 of the charge were established both separately and cumulatively as sufficiently serious to warrant a finding of professional misconduct. Particular 2 was established as professional misconduct on a cumulative basis only, when taken together with the other particulars of the charge.

Penalty

The penalty decision was made on 5 February 2020.

 The Tribunal:

• Censured the Dentist;
• Fined the Dentist $7,500;
• Ordered the Dentist to pay 50% of the costs amounting to $71,134.00.

The Tribunal directed publication of the decision and a summary.

The full decision relating to this case can be found on the Tribunal website at www.hpdt.org.nz reference no: Den18/428P.

Appeal

On 17 September 2020 Edwards J heard an appeal in the High Court from the practitioner regarding the Tribunals decision declining his application for name suppression, ordering him to pay costs totalling $71,134 and ordering confidentiality as to the basis of the respondent’s costs, including hours spent and hourly rates.

Finding

The appeal was dismissed in its entirety. The Tribunals decision not to grant permanent name suppression was upheld by the High Court. The Court was not persuaded that publication of the practitioners name would lead to identification of his vulnerable family members and therefore there was little need to protect them from the publication. Nor was the Court convinced that publication would cause financial harm to the practitioners business. The figure of costs set by the Tribunal was not disturbed on appeal. The Tribunal correctly took into account all relevant considerations and balanced them appropriately. Edwards J was not convinced that the Tribunal was wrong to limit the disclosure of costs information in the way that they did.