Background

The Director of Proceedings laid a charge of Professional Misconduct against the practitioner relating to the manner in which he treated a patient on 4 October 2003 whilst working as a locum.

The Charge

Particulars

The charge contained three particulars, these were;

1. An allegation he failed to obtain informed consent to the extraction of tooth 26 and that he failed to accurately advise the patient of other options for management of the tooth prior to extraction.
2. An allegation he failed to take a radiograph of tooth 26 prior to extraction.
3. An allegation he prescribed medication without care and skill.  It was claimed the practitioner provided his patient with a prescription pad form containing a pre-printed list of prescriptions without ascertaining the appropriateness of all medications for a patient in the patient's circumstances.

At the commencement of the hearing the third particular of the charge was withdrawn with leave of the Tribunal. The Director of Proceedings alleged that when viewed separately or cumulatively the remaining two particulars of the charge constituted professional misconduct within the meaning of s.100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (“the Act”).

Finding

The Tribunal did not find the charge proven to the requisite standard.  The Tribunal gave reasons for reaching that conclusion.

The first particular of the charge required the Tribunal to ascertain if the practitioner properly informed the patient of the treatment options available before extracting tooth 26 on 4 October 2003.

The Tribunal noted that it had borne in mind that the onus of proof rests with the Director of Proceedings.  In the final analysis the Tribunal was not satisfied the Director of Proceedings has discharged the onus of proof to the requisite standard.  Accordingly the Tribunal concluded that the factual basis for the allegations in the first particular of the charge had not been proven. 

The second particular of the charge required the Tribunal to determine whether or not the practitioners failure to x-ray tooth 26 constituted professional misconduct. 

After carefully evaluating the conflicting views of the expert witnesses the Tribunal has concluded that it would have been highly desirable for the practitioner to have x-rayed tooth 26 on the evening of 4 October 2003; and that having decided that tooth 26 was not salvageable it was not mandatory that tooth 26 be x-rayed before extraction.

The Tribunal concluded that whilst the failure to x-ray tooth 26 was undesirable, it was not an omission that satisfies the test of professional misconduct explained in paragraph 20 of the  Tribunal’s full written decision.

The Tribunal found that in the final analysis, the Director of Proceedings had not established the charge, and it accordingly must be dismissed.

Name suppression

The practitioner subsequently sought permanent name suppression.  In a written decision in June 2006 the Tribunal noted that it was sympathetic to his concerns and stated that it  “believes that there is no overwhelming public interest which justified publication of [ his ] name and photograph in relation to the Tribunal’s decision. The Tribunal has accordingly determined that [ his ] name should not be published.  Nor should anything be published which otherwise identifies [ him ]."