BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL
HPDT NO 1138/Den20/479P
UNDER the Health Practitioners Competence Assurance
Act 2003 (“the Act”)
IN THE MATTER of a disciplinary charge laid against a health practitioner under Part 4 of the Act.
BETWEEN A PROFESSIONAL CONDUCT COMMITTEE
appointed by the DENTAL COUNCIL OF NEW ZEALAND
Applicant
AND DALILA VASCONCELOS PEREIRA GABB of
Whakatane, registered dentist
Practitioner
HEARING held at Auckland on 21 to 24 September 2020
TRIBUNAL Ms M Dew QC (Chair)
Ms A Kinzett, Dr R East, Dr S Salis and Dr N Stent (Members) Ms D Gainey (Executive Officer)
Ms J Kennedy (Stenographer)
APPEARANCES Dr J Coates and Ms B Johns for the PCC
Mr H Waalkens QC and Ms H Stuart for the Practitioner DECISION OF THE TRIBUNAL
9 February 2021
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CONTENTS
Introduction ... 3
Background Facts ... 4
PCC applications regarding evidence ... 9
PCC evidence ... 12
Practitioner’s evidence ... 21
Relevant law ... 23
Tribunal Consideration of the Charge ... 29
Particular 1: Treatment plan ... 29
Particular 2: Informed consent ... 31
Particular 3: Acting outside expertise/experience ... 35
Particular 4: Documentation ... 36
Is professional misconduct established? ... 37
Penalty ... 38
Costs ... 42
Suppression of Name ... 44
Orders of the Tribunal ... 47
Appendix: ... 50
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Introduction
[1] On 5 March 2020, the Professional Conduct Committee (“PCC”) of the Dental Council of New Zealand (“Dental Council”) laid a charge of professional misconduct under sections 100(1)(a) and/or (b) of the Health Practitioners Competence Assurance Act 2003 (“Act”) against Dr Dalila Gabb, a registered dentist of Whakatane (“Practitioner”).
[2] On 3 June 2020, an Amended Notice of Charge (“Charge”) comprising four particulars (“Particulars”) was laid. The Charge and Particulars are set out in full in the Appendix to this decision.
[3] The Charge relates to Dr Gabb’s provision of edentulous dental treatment to her patient, Mr R, between May 2006 and September 2014.
[4] The Charge does not allege any specific treatment failures by Dr Gabb.
However, it is common ground that the outcome of Mr R’s treatment has been unsatisfactory. Instead, the PCC alleges that Dr Gabb failed to act in accordance with acceptable standards of practice in four areas of her dental practice:
(a) failing to have a treatment plan or an adequate treatment plan for Mr R;
(b) failing to obtain Mr R's fully informed consent prior to commencing treatment;
(c) acting outside her professional expertise and/or experience in taking on and/or undertaking Mr R’s case; and
(d) failing to keep adequate clinical notes and documentation in relation to Mr R’s medical history, his presenting complaint, observations, treatment options, the costs, risks and benefits of the treatment plan and the course of treatment.
[5] The PCC alleges that these failures both separately and cumulatively amount to malpractice and/or negligence or conduct that has brought, or is likely to bring, discredit to the dental profession and therefore warrant a disciplinary sanction.
[6] The Practitioner denies the Charge and as a result the matter proceeded by way of a defended hearing over three days. During the hearing, Dr Gabb admitted the factual allegations that form the basis of all four Particulars of the
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Charge, but maintained that her conduct did not amount to professional misconduct. 1
[7] The parties produced an Agreed Bundle of Documents (ABD) in two volumes. The first volume principally comprised correspondence between Mr R (his late wife Mrs R writing on his behalf) and Dr Gabb and/or other health practitioners relating to Mr R’s treatment. The second volume contained the clinical records and invoices of Dr Gabb and other health practitioners relating to Mr R’s treatment.
[8] The Tribunal heard evidence from three witnesses.
(a) The PCC called Mr R as the patient and an expert witness, Dr Catherwood; and
(b) The Practitioner also gave evidence in her own defense.
[9] The Tribunal heard a good deal of evidence about the technical aspects of the dental treatment, including what occurred at various appointments over a period of more than eight years. While this evidence provided helpful context for the Tribunal, it is not necessary to detail this evidence. The Tribunal decision remains focused on the Charge which is limited to discrete issues; alleged failures in the treatment plan itself, informed consent, acting outside a dentist’s expertise and inadequate clinical documentation.
Background Facts
[10] Dr Gabb qualified with a Bachelor of Dental Surgery from the University of Mato Grosso do Sul in Brazil in 1991.
[11] After qualifying, she worked as a dentist in a private practice in Brazil for eight years before immigrating to New Zealand in 1999. She then worked as a dental hygienist for two years while completing the requirements for New Zealand registration. In 2001, Dr Gabb was registered by the Dental Council as a general dentist. She worked for another dentist briefly before she acquired her own dental practice in Takapuna in 2002.
[12] In late 2007, Dr Gabb sold her practice to “Lumino The Dentists” and continued working as the lead dentist in that practice alongside five other practitioners. The business moved to larger premises in 2014. In February 2017, Dr Gabb left Auckland and moved to Whakatane. She now works as an associate
1 Transcript of Evidence, Dr Gabb X Exam, pages 211 – 223.
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in a dental practice in Whakatane.
[13] Mr R lives in the [ ] District and works in [ ]. He was married to Mrs R, but sadly she passed away in [ ]. Mrs R often accompanied Mr R to his dental appointments and she was very involved in email and other correspondence with Dr Gabb and others during his treatment on her husband’s behalf.
[14] Dr Gabb met Mr R and, his then fiancée, Mrs R (“the Rs”) at a [ ] in [ ] in [ ]. The Rs were due to be married in [ ]. During discussions at the course, Dr Gabb explained she was a dentist. Mr R explained to Dr Gabb that he had worn full dentures since he was [ ] years of age, was dissatisfied with them and wanted to explore alternatives.
[15] Dr Gabb suggested implants as a solution and invited the Rs to attend her dental practice in Auckland to discuss it further. Mr R recalls at some point in the early discussions, Dr Gabb promised him a “perfect smile for his wedding”, though this is denied by Dr Gabb.
[16] The Rs attended Dr Gabb’s practice for Mr R’s first consultation on [ ] 2006. Dr Gabb carried out a full examination and took x-rays and impressions.
Mr R explained to Dr Gabb that he was keen on implants because he wanted the roof of his mouth clear of acrylic so he could eat and taste food better, to avoid his dentures falling out and to kiss properly. He also wanted a more natural look and teeth that would not wear as quickly as his dentures did.
[17] Dr Gabb recommended fixed implant supported bridges with metal stops.
Dr Gabb explained to the Rs that three parties would be involved in the process:
(a) Dr M, a specialist Periodontist, who would carry out surgical work to augment the bone and place the implants;
(b) Mr E, a senior Dental Technician who would provide technical services such as manufacturing the bridges; and
(c) Dr Gabb, who would restore the implants.
[18] Dr Gabb, as the dentist, was responsible for the overall treatment plan and explaining the costs, risks and benefits of various options available, obtaining Mr R’s consent and ensuring that all her clinical documentation was adequate.
Mr R was advised about the risks of his continued smoking and the impact on his dental health. He was advised that he must give up smoking to ensure the success of the treatment. It appears that Mr R was able to give up intermittently but not permanently.
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[19] Mr R later met with Dr M for consultations in [ ] and [ ] 2006. Dr M provided information about his role in the process, the costs involved in the periodontal work and Mr R signed a consent form for this work.
[20] On [ ] 2006, Dr Gabb emailed Mr and Mrs R to wish them well for the first treatment appointment with Dr M in a few days’ time and to wish them well for their wedding [ ]. Dr Gabb stated she would see them next year and referred to the treatment plan that had been sent to her by Dr M “I have your treatment plan that M sent to me and soon I will be able to put your treatment plan with me into place then send it to you”. 2
[21] On [ ] 2006, Mrs R emailed Dr Gabb to request a “rough idea of costs at this stage”. Dr Gabb responded that she would arrange this but indicated that she would need to wait for the implant choice to be made and for Dr M to finish placing all the implants to be accurate. 3
[22] There is no evidence that any written treatment plan, estimate of costs or any signed informed consent document was ever provided to Mr R prior to undergoing the first surgery with Dr M. Dr Gabb maintains that some of her clinical notes and records have been lost from this period and later.
[23] On [ ] 2006, Mr R had his first surgery with Dr M, which involved bone augmentation of his upper jaw and placing [ ] implants in his lower jaw. A period of some months healing was required after each surgery.
[24] Following the first surgery, Dr Gabb adapted Mr R’s existing dentures on a number of occasions (for example, by relining them) to enable him to continue wearing them while the other procedures were taking place and because Mr R was experiencing a lot of discomfort. Dr Gabb also carried out other preparatory work including taking further impressions.
[25] On [ ] 2006, the Rs were married.
[26] On [ ] 2007, Mr R had his second surgery with Dr M to place six implants in his upper jaw.
[27] In [ ] 2007, Dr M advised Dr Gabb that restoration could begin shortly but raised concerns about the suitability of fixed bridges due to Mr R’s smoking habit, the likely difficulty for Mr R in keeping the bridges clean and the resulting risk of implant failure.
2 ABD 1/4
3 ABD 1/4
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[28] After discussions with Dr M and Mr E, Dr Gabb met with the Rs on [ ] 2007 and proposed a new treatment plan: being a gold bar retained overdenture. The treatment would involve gold bars being screwed to the implants with the overdenture to clip on to the bar and be removable for cleaning.
[29] Mr R was initially unsure about the new plan but subsequently agreed. It was during this period, that Dr Gabb did offer Mr R his money back if he wanted to cease treatment or move to another dentist. However, Mr R declined this offer believing that the issues could be resolved. The costs of the treatment were also queried at this time as Mr R was unclear about the figure that Dr Gabb had mentioned of $23,000 being the full costs of treatment, as it was not clear to him if this also covered the costs of the dental technician.
[30] Mr R was offered various alternatives for the material to form the teeth used in the overdenture, but after some consideration Mr R opted for custom porcelain teeth, given the recommendation they would have better wear, strength and appearance.
[31] In [ ] 2008, the Rs met with Dr Gabb to discuss the costs of the new treatment plan with the costs estimated at $28,880. At this point, Mr R raised his concerns at the costs, his on-going discomfort and the lack of progress with his treatment. During this consultation, Dr Gabb did again offer him a full refund and a referral to another dentist. However, Mr R declined this offer and wanted to remain with Dr Gabb.
[32] The restoration process began in [ ] 2008. This involved taking impressions and x-rays, making castings, copings and verification jigs to check that the different parts would be manufactured to fit correctly in Mr R’s mouth.
This work was done by Dr Gabb in collaboration with the dental technician, Mr E.
Based on the preparatory work, the gold bars and teeth were then manufactured by Mr E.
[33] Mr R was having considerable pain during the procedures and so required IV sedation. It was sometimes necessary for Dr Gabb to travel to another practice to do the work as IV sedation was not always available at suitable times at her own practice.
[34] The restoration process took much longer than anyone had anticipated, and the gold bars manufactured by Mr E were not ready until [ ] 2009.
[35] In [ ] 2009, the gold bars were finally screwed into Mr R’s mouth. Further preparatory and assessment work was done to enable Mr E to manufacture the porcelain teeth. At times during this process, the gold bars had to be removed
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and refitted and abutments retightened, which Mr R found very painful. This work was in the main completed by Dr Gabb.
[36] In [ ] 2008, there was email correspondence between Dr Gabb and the Rs in which Dr Gabb acknowledged the on-going concerns the Rs had about the delays and increased costs in the treatment. Dr Gabb acknowledged that she had not provided Mr R with a proper treatment plan for all the changes and she apologized for this, “because you couldn’t understand where we were going and all that was involved in the treatment.” 4 The Rs appeared satisfied with the response from Dr Gabb and they continued with the new planned overdentures.
[37] Mr R continued to wear his old dentures (adapted by Dr Gabb to fit over the bars) until [ ] 2009, when the new overdentures with custom porcelain teeth were delivered.
[38] In [ ] 2009, one of the porcelain teeth broke off the overdenture. This was repaired. There were further breakages in [ ] and [ ] 2010, [ ] 2011 and [ ] 2012. Each time the overdenture was being repaired, which took up to two months, Mr R had to wear his old denture. The old denture itself also needed to be repaired several times.
[39] In [ ] 2011, the Rs met with Dr Gabb, Dr M and Mr E to express their dissatisfaction over the ongoing breakages. Dr Gabb provided a free set of replacement acrylic dentures modified to fit over the gold bar, to be worn when the overdentures were away for repair.
[40] There was correspondence between the Rs, Dr Gabb and Mr E in the second half of 2011 about why the overdentures kept breaking and what the solution might be.
[41] In late 2011 and 2012, Mr E was then unavailable for an extended period for health reasons. By August 2012, Mr R had spent some $94,000.
[42] In early 2013, Dr Gabb met with the Rs and Mr E and they discussed the possibility of a replacement overdenture made of an alternative porcelain product called ‘Emax’. Manufacturing the replacement overdenture required a further process of removing the gold bars, impressions, bite verification and various try on sessions. Dr Gabb advised that the procedures would need to be done under oral sedation only.
[43] In July 2013, after discussions with Mr E and Dr M, Mr R agreed to the Emax overdenture remake. The Rs also raised a concern about a gap identified
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on an x-ray between one of the bars and an implant. Dr Gabb and Mr E agreed that the bar would be remade as well as the overdentures, in order to address this issue.
[44] The remake process began in July 2013. This included removing, checking and replacing the bars in late 2013.
[45] In [ ] 2014, the replacement overdentures were ready to be fitted but Mr E advised Dr Gabb that this was not possible because the upper denture was not seated correctly, and the clips weren’t engaging. The upper bar had to be removed again to assess the problem.
[46] This was a case plagued by problems at almost every step of the treatment over eight years. The problems persisted through much of 2014 and for much of the time Mr R had on-going pain with his temporary dentures.
[47] By early October 2014, the acrylic dentures broke again, and this was the final straw for Mr R.
[48] Finally, on [ ] 2014, the Rs advised Dr Gabb in writing that Mr R wished to discontinue treatment. Mr R did not have a resolution for his dentures but the pain and cost of on-going treatment had become too great.
PCC applications regarding evidence
[49] There were two interlocutory applications made by the PCC, which were dealt with by the Tribunal during the hearing.
Timeline document
[50] An application was made by the PCC to admit, as hearsay evidence, a detailed timeline spanning a ten-year period (49 pages) prepared by Mrs R.5 Mrs R died in [ ], but had prepared a timeline of events based on contemporaneous emails and other documentation that has also been produced to the Tribunal.
Mrs R had been closely involved in attending the treatment sessions and documenting Mr R’s treatment over the whole period and attended a PCC interview with Mr R in October 2017. The transcript of that PCC interview was also produced in the Agreed Bundle of Documents.
[51] The PCC submitted that Mrs R’s timeline was admissible under the
4 ABD Vol1/27
5 The timeline was produced to the Tribunal in a redacted form, which the parties consented to the Tribunal reviewing for the purposes of the application, Document 7.
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Evidence Act 2006 as reliable hearsay, where the maker was no longer available to give evidence (s18, Evidence Act 2006) and in any event the Tribunal should exercise its discretion to receive the timeline as evidence under the HPCA Act, Schedule 1, clause 6(1).
[52] The practitioner objected to the timeline being produced in its full unredacted version, on the grounds that there was limited information about when and for what purpose it had been produced. There was an unresolved question as to whether it had been prepared only at the time of the PCC interview in 2017. The timeline also included repetition of documents already produced in the Agreed Bundle and reference to other documents deliberately excluded as irrelevant.
[53] Finally, the practitioner submitted that the timeline included Mrs R’s comments, opinion and interpretation of emails and other documents, which are in dispute. Counsel submitted that this was not therefore a reliable document and should not be admitted.
[54] The Practitioner did consent to the heavily redacted version of the timeline being admitted, produced in Document 7. This document references key dates and events that were not in dispute and on that basis was agreed to be helpful to the Tribunal.
Expert Report January 2018 – Update on Mr R’s dental health
[55] The second application by the PCC was in relation to a report prepared by an expert Dr Paul Morris. The PCC wished to produce this evidence by way of an affidavit from Dr Morris. The report had been prepared in January 2018 and provided details of Dr Morris examination of R’s dental health. The report did not comment on Dr Gabb’s treatment but was to provide the Tribunal with updated information about Mr R’s dental health. The Practitioner objected to this evidence being admitted on the basis that it was irrelevant to the period of, or matters in issue in, the Charge.
Tribunal findings on both applications
[56] The Tribunal dealt with both applications on the basis that has been laid out for it in the recent Court of Appeal decision in PCC v HPDT & W [2020] NZCA 435. In deciding upon admissibility, the Tribunal must follow a two-step assessment: 6
(a) First, assess whether the evidence would be admissible under the
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Evidence Act 2006; and
(b) Secondly, under the HPCA Act, Schedule 1, cl 6(1), consider whether it should exercise its discretion to receive, as evidence, any statement, document or other information which may assist it to deal effectively with matters before it whether or not it would be admissible in a court of law. However, in doing so the Tribunal must also ensure that it observes the rules of natural justice as required by clause 5(3) of the HPCA Act.
[57] In relation to the timeline document, the Tribunal declines the PCC’s application to admit Mrs R’s timeline in its complete unredacted form. The Tribunal is not satisfied that the circumstances relating to the statement provide reasonable assurance that it is reliable to admit in an unredacted form.
[58] We accept the Practitioner’s submission that we do not have sufficient information about when the timeline was produced or for what purpose. The Tribunal was also concerned that both parties acknowledged that it also contained a large number of extraneous comments and observations by Mrs R.
This detail in the timeline will not assist the Tribunal and will risk becoming a distraction at the hearing if the Practitioner then feels bound to address such matters where they are disputed. The Tribunal considers that the contemporaneous evidence of emails and other documents, remain the most relevant assistance in this case. In summary, the timeline is not admissible under the Evidence Act and we do not consider it is of sufficient assistance in its unredacted form to warrant the exercise of the Tribunal’s discretion under the HPCA Act, Schedule 1, cl 6(1).
[59] However, the Tribunal is willing to exercise its discretion to admit the redacted version of the timeline as produced at Document 7, which the Tribunal accepts is of some assistance and is not the subject of any objection by the practitioner or the PCC.
[60] In relation to Dr Morris’ expert report contained in his affidavit, the Tribunal declines to admit this evidence. The report of Dr Morris does not relate to the Particulars of the Charge or the question of liability. It is therefore not relevant under the Evidence Act and as it will not be of any assistance in determining liability, the Tribunal does not consider it should exercise its discretion to admit this evidence during the liability stage of the hearing.
6 PCC v HPDT & W [2020] 435 at [47]
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PCC evidence
Dental Council Codes and Standards
[61] The PCC produced to the Tribunal the following relevant professional standards issued by the Dental Council:
(a) Handbook for the New Zealand Conditions of Practice (8 August 2011) (“Handbook”)
(b) Informed Consent Practice Standard (December 2006) (“IC Standard”)
(c) Patient Information and Records Practice Standard (April 2006) (“Records Standard”).
[62] The Handbook includes the following relevant statements:
(a) Ethical Principle Two: Maintaining effective communication includes the requirement to explain options and provide full information on proposed treatment and costs. (p20)
(b) “A written treatment plan and estimate will avoid misunderstandings and should always be provided for extensive or expensive courses of treatment.” (p44)
(c) Practitioners have an obligation to “refer the patient for further professional advice or treatment if the task is beyond your own skills”. (p42)
(d) Practitioners registered in the general dental scope of practice may practice in all areas of dentistry “subject to the boundaries of your education, training and competence.” (p43)
(e) Practitioner’s offering services in advanced or new areas of practice must:
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(i) be able to demonstrate that they have the requisite knowledge and training to undertake such services/procedures.” (p43)
(ii) make the patient … aware of the methods he or she has been trained in and the other options available to them such as treatment by a specialist or other practitioner; and (iii) understand the nature of the service/procedure and the
possible risks and side effects;
(f) Practitioners should ensure that they are competent to provide the appropriate level of expertise, in the area of dentistry they are undertaking by appropriate case selection, full diagnostic information and treatment planning, and prior clinical and theoretical preparation. (p43).
[63] The IC Standard includes:
(a) A practitioner has an ethical and statutory responsibility to communicate effectively and take reasonable steps to ensure that the patient is given all the information necessary to make an informed choice. (p2)
(b) Where treatment is complex and outside training, qualifications and experience, the dentist is required to “fully and frankly inform a patient of the significance that specialist training and experience may have for the patient’s treatment, along with the availability of such services.” (p4)
(c) The practitioner must give the patient a realistic assessment including “the good news and the bad news. It is the patient’s entitlement to know both sides. The patient must make their decision and give consent on your advice and information – be straightforward”. (p7)
(d) It is important for a dentist to “keep accurate contemporaneous written records of the discussion that has taken place prior to the provision of treatment”.
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(e) Informed consent is a process and not just the signing of a form.
The amount of information and level of detail depends on the treatment being provided.
(f) If in doubt about whether treatment is major or minor, get written consent. If verbal consent only is obtained, it is prudent to make a note in the records.
[64] The Records Standard requires that the treatment record must include:
(a) Clinical notes;
(b) Completed medical questionnaires;
(c) Documents relating to informed consent;
(d) Correspondence with the patient;
(e) X-rays;
(f) Records of any financial transactions; and
(g) A record of any and all treatment or services provided within the dental practice …
[65] It is also best practice for the treatment record to include consents for treatment, costs estimates and quotes.
[66] Rule 9 of the Records Standards, also refers to the mandatory obligation on all dentists to retain a patient’s health information for a minimum of 10 years from the date shown in the treatment record, as provided in the Health (Retention of Health Information) Regulations 1996.
[67] The Code of Health and Disability Services Consumers’ Rights 1996 (Code) is also relevant. The Code provides that every consumer of health and disability services has rights including:
(a) To be treated with respect (Right 1);
(b) To receive effective communication (Right 5);
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(c) To be fully informed (Right 6); and
(d) To make an informed choice and give informed consent (Right 7).
The consent must be in writing if “there is a significant risk of adverse effects on the consumer”.
[68] While a breach of a profession’s standards or the Code will not automatically result in a finding of professional misconduct, it is relevant to consider whether any established conduct will also amount to such a breach.
This can assist the Tribunal in determining whether the conduct has fallen below acceptable standards for the profession and in turn whether the conduct is sufficiently serious to warrant a finding of professional misconduct. The Tribunal regards professional standards as strong evidence of the standards which the public is entitled to expect from health practitioners.7
Mr R’s evidence
[69] Mr R stated that when he first met Dr Gabb he was excited and hopeful that replacing his dentures with implants would provide him with “a smile he could be proud of”. His recollection is that this was something Dr Gabb told him at their first meeting in [ ] in [ ] 2006 and that he would have this new smile for his wedding [ ].
[70] Mr R’s recollection of his first professional consultation with Dr Gabb, at her dental rooms, was that they talked “a little about what was involved” but that he could not recall Dr Gabb going into a lot of detail. His recollection was that Dr Gabb had focused on the positive outcome that she could achieve for him rather than what would be involved. Mr R had believed it would be a straightforward process for him to get functional teeth. He recalls discussion of the need to have Dr M involved to perform the surgery and a bone graft and that this would involve healing time and that there would be a further surgery to put implants into his jaw with further healing time required. However, his recollection was that all of this was to be completed in time for his wedding less than 6 months away.
[71] Mr R’s recollection is there was very little information provided in writing about what the treatment would involve, the likely timeframe or costs and that he and his wife were often left confused by the information that was provided.
When changes were made to the treatment plan in later years, and even when
7 See for example Lakra 714/Den 15/309D at [13]
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the Rs were offered a refund and referral elsewhere, they felt they had come so far that there was no real option to turn back.
[72] At the first appointment with Dr M in [ ] 2006, Mr R says that the extent of the surgery required became more apparent and he was told that the work may not be completed in time for his wedding. He recalls being advised that the costs of surgery would be in the region of $30,000.
[73] In August 2006, a detailed letter setting out the course of work to be undertaken and costs from Dr M was provided to Dr Gabb, though it is unclear if this was ever provided to Mr R.8 There is no record of this in Dr Gabb’s clinical notes or her provision of any written estimate of costs for the other dental work required. Mr R says that it was not until March 2008, that he received any written estimate of costs from Dr Gabb of $28,880.
[74] Mr R also gave evidence that it was only in July 2008 after the dental treatment with Dr Gabb started and concerns were raised, that Dr Gabb had explained that she was not experienced with implant procedures.
[75] Mr R says he has now spent over $100,000 and remains in a “dental wasteland” with a mouth that is worse than when he started this process some 14 years ago.
Dr Catherwood – Expert evidence
[76] Dr Benjamin Catherwood is a general dentist with some 25 years’
experience, having owned and run his own dental practice since 2002. Dr Catherwood does not have any specialist dental training, but routinely treats single and multi-implant cases. He has completed 3 full arch implant cases and is aware of their complexity and the significant challenges they raise.
[77] Dr Catherwood gave evidence as an independent expert subject to the Tribunal’s Code of Code for expert witnesses. He reviewed the correspondence, clinical records and other key documents relating to Mr R’s treatment and the PCC investigation.
[78] As an expert witness, Dr Catherwood provided his opinion on the key issues the subject of the Charge; what would amount to an appropriate treatment plan and informed consent, the decision to undertake a case such as Mr R’s and the clinical documentation required.
8 Letter dated 22 August 2006, Dr M to Dr Gabb, ABD Vol2/33.
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[79] Dr Catherwood noted that Dr Gabb remained the lead clinician throughout the period of the Charge from 2006 to 2014. He explained this was a complex and high- end solution designed to give Mr R the outcome he wanted i.e.: to be free of dentures, with a dental solution that allowed better taste by not covering the roof of his mouth and avoiding the embarrassment of loose dentures in social situations.
[80] The expert noted that while the cost of $100,000 spent on the treatment was at the higher end, the degree of complex surgery and costly technical work meant that these costs while at the higher end, were not out of line with the norm for this extent of work.
The treatment plan
[81] Dr Catherwood was clear that because of the size and complexity of this case, a “clearly documented treatment plan” should have been prepared by Dr Gabb at the outset. He referred to the requirements in the Handbook for treatment planning in advanced or new areas of practice. In his opinion, a detailed plan was needed in order for Dr Gabb to assess her own competency to carry out this level of work.
[82] Dr Catherwood said that a treatment plan, together with a detailed written record of the initial consultation, ought to have included:
(a) A thorough medical history;
(b) The presenting complaint;
(c) Findings on examination;
(d) A list of options available and what each involved;
(e) The option chosen by Mr R;
(f) The rough cost for all options, but particularly the one chosen;
(g) The risks and benefits of the option consented to; and
(h) The approximate timeframe for the treatment.
[83] Dr Catherwood said Dr Gabb should have prepared a further written treatment plan when the treatment plan changed in late 2007. Both treatment
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plans should also have been provided to Mr R. Even if discussed verbally in the first instance, Dr Gabb should have followed up with a letter setting out the treatment plan and seeking Mr R’s agreement to it. Dr Catherwood expressed the opinion that a verbal treatment plan was inadequate and unacceptable due to the complex nature of this case.
[84] Dr Catherwood said he was not able to identify in the clinical notes any records of: a treatment plan; notes about the proposed treatment; discussions with Mr R about the proposed treatment, the likely costs or the likely timeframe;
or Mr R’s agreement to go ahead with the treatment. He described what notes there were as “minimal and inadequate”.
[85] Dr Catherwood noted that the treatment plan and revised treatment plan Dr Gabb set out in her detailed evidence to the Tribunal would have constituted good treatment plans had that information been recorded in writing at the time.
[86] Dr Catherwood stated that Dr M’s treatment plan for surgery should have been incorporated into Dr Gabb’s own treatment plan, and that it remained her responsibility to discuss the overall plan, including Dr M’s treatment plan, with Mr R and obtain his agreement to it.
[87] In Dr Catherwood’s opinion, Dr Gabb’s failure to prepare a written treatment plan for such a complex treatment was a clear failure of her professional obligations and fell seriously below what is expected from a general dentist.
Informed consent
[88] Dr Catherwood provided a helpful summary of a dentist’s obligations in relation to informed consent:9
“Dentists must give patients the information they need or request, in a way they can understand, so they can make informed decisions. Dentists must ensure informed consent remains valid at all times; they provide an explanation of the existing condition; an explanation of the options available including an assessment of the expected risk, side effects, benefits, and costs of each option; and advice of timeframes.”
[89] Dr Catherwood said that in his opinion, the informed consent process for this complex case should have included both verbal discussion and written
9 Catherwood witness statement, para 40
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documentation covering the different choices for treatment. This should have included information on:
(a) fixed implant bridges vs removable bridges/dentures;
(b) the type of teeth to be used (porcelain vs acrylic);
(c) the way the bridges/dentures would be retained (screws, magnets, plastic or metal clips, or silicone cups); and
(d) in relation to each option, an assessment of the process, expected risks, side effects, benefits and costs.
[90] Having reviewed the clinical records, Dr Catherwood expressed the opinion that Dr Gabb had failed to obtain fully informed consent from Mr R.
There were no documents provided to the Rs setting out the information above, no record of the necessary discussions having taken place and no record of Mr R providing his consent.
[91] Dr Catherwood said if he had been in the same situation, he would have told Mr R that the process would take around 18 months, would cost between
$50k - $80k, and would be painful and that it carried a high risk of failure.
[92] In Dr Catherwood’s view, it was essential for Mr R to have provided his written consent, given the complex and extensive nature of the proposed treatment. Dr Catherwood concluded that Dr Gabb’s failure to obtain fully informed consent from Mr R was a significant failure and fell well below the standards expected of a general dentist in the circumstances of this complex case.
Decision to undertake Mr R’s case
[93] Dr Catherwood referred to the requirements in the Dental Council’s Handbook to refer work in advanced or new areas of practice to another practitioner if the task is beyond the practitioner’s own skills. In assessing their own competency, the practitioner should undertake “appropriate case selection, full diagnostic information and treatment planning, and prior clinical and theoretical preparation”.
[94] Dr Catherwood says this was a complex case for a general dentist with Dr Gabb’s level of experience. In his opinion, Dr Gabb was obliged to seek advice from a specialist dental prosthodontist or referred Mr R to a more experienced practitioner.
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[95] Dr Catherwood says that because of her inexperience, Dr Gabb:
(a) Failed to do adequate due diligence prior to commencing the work, including a full assessment of Mr R’s medical and dental history and the identification of his [ ], in order to determine his suitability for implants; and
(b) Was unable to manage complications as they arose.
[96] Although it was appropriate for Dr Gabb to rely on specialist input from Dr M and Mr E, Dr Catherwood said that:
“Dr Gabb did not seem to understand what was required of her as a lead clinician, nor did she have sufficient knowledge to understand a lot of the technical procedures that she needed to do and to coordinate the treatment required by others.”
[97] Dr Catherwood said Dr Gabb should certainly have referred the case on in 2010 when the issue of the ill-fitting bar arose. Dr Catherwood expressed his opinion that “This was four years into treatment and had been long enough. At this point she should have admitted she was out of her depth and transferred his care. The failure to recognise at this point that Mr R should be referred to an expert and to remain the lead clinician for a further four years is unacceptable.”
[98] The expert concluded that these failures demonstrated that Dr Gabb was acting outside her professional expertise and experience and was conduct that fell below the acceptable standard for a general dentist.
Clinical documentation
[99] Dr Catherwood also noted the lack of key clinical documentation that in his opinion was well below acceptable standards for a general dentist. The key documentation he noted as missing included:
(a) The lack of any records for treatments provided by Dr Gabb at Dentistry for Chickens premises in June, September and November 2008;
(b) The lack of detailed clinical records relating to options for treatment, the costs benefits and risks of each option and which option was chosen, Mr R’s consent, estimates or quotes for fees, complaints as treatment unfolded and pain experienced by Mr R;
(c) The lack of clinical records in the lead up to the referral to Dr M.
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While Dr Gabb did refer to Mr R as a Class III type patient in the referral letter, there was no further reference to this in any clinical notes or planning for this complexity, in correspondence with the dental technician;
(d) When the change in treatment to overdentures and the gold bar solution was recommended by Dr M there is no clinical record of this change in plan option or the costs and risk or a record of Mr R’s consent to this revised plan.
(e) Finally, Dr Catherwood noted there was no evidence of any record of advice given to Mr R about Dr Gabb’s limited experience with such complex dental work prior to the work commencing in 2006.
[100] In Dr Catherwood’s words given the evidence that there were more than 50 appointments over the eight-year period, the clinical records spanning less than 10 pages were “woefully inadequate”. He concluded that Dr Gabb’s clinical records do not meet the Practice Standard and fall very seriously short of acceptable conduct by a general dentist.
Practitioner’s evidence
[101] Dr Gabb gave evidence about Mr R’s treatment. While Dr Gabb denied the Charge during cross examination Dr Gabb did admit each of the factual allegations set out in the Particulars of the Charge.
[102] However, the practitioner maintained throughout that she was not guilty of professional misconduct, as she did everything, she could to treat Mr R well and never left him without a functional pair of dentures.
[103] Dr Gabb referred to the complications with the treatment plan as unexpected and that Mr R’s continued smoking had meant the initial plan had to change. Dr Gabb said this was the most difficult case she had ever had. She accepted that she was out of her depth, particularly once the treatment plan changed, but said that this did not make her a bad person. She deeply regrets what occurred and had tried hard to resolve the situation over a long period.
[104] Dr Gabb says she did have a treatment plan in place at the outset, and a revised plan when the treatment changed due to Mr R’s failure to cease smoking.
Dr Gabb stated that both of these plans were discussed verbally with the Rs.
She pointed to some references to a treatment plan in her clinical notes and in [ ] 2006, says she provided a cost estimate of $28,880 in relation to the original plan
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for fixed bridges to the Rs, which included her costs and Mr E’s but excluded Dr M’s.
[105] However, Dr Gabb accepts that she did not provide a written treatment plan to the Rs and that this was inadequate.
[106] Dr Gabb also accepted that she had only obtained verbal consent to treatment. Dr Gabb maintained that she did spend time with Mr R and his wife explaining the treatment proposed and the likely costs and obtaining his consent over at least two appointments in 2006. Dr Gabb noted she had since altered her practice to make better clinical notes and obtain written consent from patients.
[107] Dr Gabb accepted that her recordkeeping in this case was poor and that she failed to maintain notes of every appointment and that her clinical notes lacked detail. Dr Gabb did refer to her belief that some of her early records were lost in or about July 2007, when she sold her practice to Lumino. Dr Gabb also gave evidence that other notes may have been lost in or about 2012 when there were software changes at the practice. However, ultimately Dr Gabb did not deny that based on the clinical notes that had been produced they did not contain adequate details of the treatments provided.
[108] In relation to Dr Gabb’s qualifications and experience to carry out the treatment, Dr Gabb stated that she never lied or mislead Mr R as to her experience.
[109] Dr Gabb had previously completed two implant overdentures with acrylic teeth and the support of her two experienced colleagues, Dr M and Mr E, so Dr Gabb believed she was well equipped to undertake the work.
[110] Dr Gabb accepts that she did not advise the Rs of her experience at any of the initial consultations. However, she did provide this advice to them once there was the change in treatment plan in 2008, with the addition of the gold bar work, which Dr Gabb had not previously undertaken.
[111] Dr Gabb also referred the Tribunal to a number of training courses related to complex dental restorations, which she undertook both prior to 2006 and over the course of 2007 to 2009, particularly.
[112] Dr Gabb stated in evidence that she was deeply sorry and saddened that the treatment she provided was unsuccessful, but that it was always her intention to provide an effective treatment. Dr Gabb expressed her regret that she had not done a better job of her clinical note taking and with the provision of
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an itemised treatment plan.
Relevant law
[113] The charge of professional misconduct is laid under section 100(1)(a) and/or section 100(1)(b) of the Act. The relevant provisions of s100 are as follows:
“100 Grounds on which health practitioner may be disciplined (1) The Tribunal may make any 1 or more of the orders
authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that –
(a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred.”
[114] The role of the Tribunal is to conduct an objective analysis of the charge measured against the standards of responsible professional peers taking into account patient interests and community expectations. The Tribunal is mindful of the direction provided in the judgment of Elias J in B v Medical Council of New Zealand:10
“The structure of the disciplinary processes set up by the Act, which rely in large part upon judgment by a practitioner’s peers, emphasises that the best guide to what is acceptable professional conduct is the standards applied by competent, ethical and responsible practitioners. But the inclusion of lay representatives in the disciplinary process and the right of appeal to this court indicates that usual professional practice, while significant, may not always be determinative: the reasonableness of the standards applied must ultimately be for the court to
10 [2005] 3 NZLR 810.
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determine, taking into account all the circumstances including not only usual practice but also patient interests and community expectations, including the expectation that professional standards are not to be permitted to lag. The disciplinary process in part is one of setting standards.”
[115] The Tribunal and the Courts have considered the term “professional misconduct” under s100(1)(a) and (b) of the Act on numerous occasions. The Tribunal draws on the guidance now available in those cases.11 In Collie v Nursing Council, Gendall J states at paragraph [21]:
“Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, oversight or for that matter carelessness.”
[116] The Tribunal has also consistently adopted common usage definitions of
“malpractice” as being:12
“the immoral, illegal or unethical conduct or neglect of professional duty. Any incidence of improper professional conduct”; and
“Improper treatment or culpable negligence of a patient by a physician or of a client by a lawyer… a criminal or illegal action: common misconduct.”
[117] In Nuttall13, the Tribunal discussed the test as to negligence under section 100(1)(a) of the Act, as requiring “… a determination of whether or not, in the Tribunal’s judgment, the practitioner’s acts or omissions fall below the standards reasonably expected of a practitioner in the circumstances of the person appearing before the Tribunal. Whether or not there has been a breach of the appropriate standards is measured against the standards of a responsible body of the practitioner’s peers.”
[118] It is also for the Tribunal to determine, whether the conduct has or is likely to bring discredit on the dental profession under s100(1)(b) of the Act. In Collie, Gendall J discussed the meaning of this provision and stated:
“To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard with the
11 PPC v Nuttall, (8 Med04/03P), Collie v Nursing Council of New Zealand, [2001] NZAR 74, Aladdin (12/Den05/04 and 13/Den04/02D) and Dale (20/Nur05/09D).
12 Collins English Dictionary, 2nd Edition and the New Shorter Oxford Dictionary, 1993 Edition.
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question to be asked by the Council being whether reasonable members of the public, informed and with the knowledge of all the factual circumstances, could reasonably conclude that the reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.”
[119] There is a well-established two stage test for determining professional misconduct in this jurisdiction.14 The two steps are:
(a) First, did the proven conduct fall short of the conduct expected of a reasonably competent health practitioner operating in that vocational area? This requires an objective analysis of whether the practitioner’s acts or omissions can reasonably be regarded by the Tribunal as constituting malpractice, negligence or otherwise bringing, or likely to bring, discredit on the profession; and
(b) Secondly, if so, whether the departure from acceptable standards has been significant enough to warrant a disciplinary sanction for the purposes of protection of the public and/or maintaining professional standards?
[120] In relation to the second stage “threshold”, the Tribunal notes Courtney J’s statements of principle in Martin v Director of Proceedings in which her Honour noting that whether the threshold had been reached involves a
“straightforward assessment of whether the departure from acceptable standards has been significant enough to warrant sanction.” 15 Her Honour went on to state (at [32]):
While the criteria of “significant enough to warrant sanction”
connotes a notable departure from acceptable standards, it does not carry any implication as to the degree of seriousness. Given the wide range of conduct that might attract sanction, from relatively low-level misconduct to misconduct of the most reprehensible kind, the threshold should not be regarded as unduly high. It is certainly a threshold to be reached with care, having regard to both the purpose of the HPCAA and the implications for the practitioner, but the measure of seriousness beyond the mere fact that the conduct warrants sanction is a matter to be reflected in penalty. The degree of seriousness does not form part of the Tribunal’s enquiry at the second stage of the two step process.”
13 8/Med04/03P, para 62.
14 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), as applied in Johns v Director of Proceedings [2017] NZHC 2843.
15 [2010] NZAR 33 (HC) at [31].
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[121] The practitioner’s personal circumstances, including the subjective reasons for their conduct, are not relevant at the threshold stage, but instead go to the question of penalty.16
[122] In PCC v R,17 the Tribunal determined that a physiotherapist’s inappropriate relationship with a patient was not sufficiently serious to warrant a disciplinary sanction. In overturning the Tribunal’s finding, the High Court said:18
It is after all a threshold rather than a substantive hurdle, and it is not necessary to show that the respondent’s conduct was as serious as that of others that have received penalties. I note in particular that in addition to protecting the public and punishing the practitioner, a penalty can provide clarity to the profession and assist the practitioner through the imposition of conditions on practice.
[123] Equally, the High Court has also reminded the Tribunal that the threshold question is one that ought to be considered with care having regard to the purposes of the Act and the fact that a finding of professional misconduct is a significant matter for a health professional and should be reserved for serious cases. 19
[124] The burden of proof is on the PCC. The PCC must produce evidence that establishes the facts on which the Charge is based to the appropriate civil standard of proof.
[125] The standard of proof is the civil standard of proof; that is proof which satisfies the Tribunal that on the balance of probabilities the particulars of the Charge are more likely than not. The Tribunal must apply a degree of flexibility to the balance of probabilities considering the seriousness of the allegation, and the gravity of the consequences flowing from a particular finding.20
Case law
[126] Counsel for the PCC referred the Tribunal to the following relevant cases in which professional misconduct was found:
16 McKenzie v MPDT [2004] NZAR 47 at [71]; Cole v PCC [2017] NZHC 1178, [128] – [130];
Paltridge 382/Med11/172P at [118]
17 [2018] NZHC 2531
18 Above at [31]
19 Cole v PCC [2017] NZHC 1178 at [45] and Johns v Director of Proceedings [2017] NZHC 2843 at [86].
20 Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (SC) at [112].
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(a) Treatment plans: In Gouse,21 a doctor failed to keep accurate and detailed records of consultations with patients on at least five occasions, including a failure to document the diagnosis and treatment of a patient. The Tribunal found that “detailed notes including the treatment plan and the reason for that treatment plan were imperative”.
(b) Informed consent: In Lakra,22 a dentist admitted that he had failed to adequately inform a patient about treatment options and had not obtained the patient’s informed consent before proceeding with treatment. Similarly, in Zimmerman,23 a dentist failed to obtain informed consent because he had not warned the patient about specific risks of three unsplinted implants into her maxilla.
This shortcoming was held to be serious failure on the part of the dentist. His records were also described as “grossly inadequate”.
(c) Inadequate recording keeping: In D 24 a disciplinary finding was made against the practitioner to “reinforce to the profession the need for adequate records to be kept by all dentists”. In Gouse, thorough note taking was described as “the cornerstone of safe and effective medical practice….”
[127] Counsel for the PCC was not able to refer the Tribunal to any case in which acting outside expertise (but within the scope of practice) had amounted to professional misconduct. In the case of Harman25, a surgeon had avoided an adverse finding on a similar charge, because he had performed 40 to 50 similar surgical procedures each year and attended workshops on the topic. However, the PCC submit that the present case can be distinguished given the lack of experience Dr Gabb’s had at the time of Mr R’s treatment.
[128] Counsel for the Practitioner submits that this case does not warrant a finding of professional misconduct. In summary, the grounds relied upon by the practitioner are:
(a) That not every breach of professional standards will be sufficient to meet the threshold for a disciplinary finding. Rather the Codes
21 30/Med05/11D.
22 714/Den15/309D at 25.
23 Zimmerman 19/Den 05/05D.
24 D 19/Den05/05D; Gouse 30/Med05/11D. See also Williams 909/Med16/371P and N 543/Med12/224P.
25 107/Med06/37D, 31 May 2007
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and Standards should be regarded as a guide to be taken into account when the Tribunal is exercising its judgment; 26
(b) The threshold for professional misconduct should be considered with care given the adverse consequences for the practitioner and as a result any finding of professional misconduct should be reserved for serious cases;27
(c) There were factors in Dr Gabb’s case that are relevant to threshold and when combined do not require a finding of professional misconduct. Counsel for the practitioner noted the following;
(i) that this was unintentional conduct by Dr Gabb where she relied too heavily on other experienced practitioners;
(ii) Dr Gabb was plainly a caring and genuine practitioner who was caught up in a one off isolated case where everything had gone wrong; and
(iii) there is no prospect of any repetition or any lack of insight that requires discipline.
(d) Finally, counsel also referred to the multi-disciplinary team decision making that took place in this case. It was submitted for the practitioner, that care must be taken when an allegation of misconduct is made against a member of a multiple disciplinary team of health practitioners due to the responsibilities of others in the team and the entitlement of practitioners to rely on each others’ expertise.28 Counsel referred the Tribunal to DP v A, where France J addressed this issue :29
“The anaesthetist’s performance is rightly assessed within the context of what the team as a whole were doing and saying, and what communication there was to him of the problems. He was entitled to expect to be alerted to matters that he may not himself have seen.”
26 Staite v Psychologists Board & Anor (1998) 18 FRNZ 18 at [34] and Tiller 425/Phar11/195P at [20].
27 Vatsyayann v PCC HC Wellington CIV 2009-485-259, 14 August 2009 at [8], Cole v PCC [2017]
NZHC 1178 at [45] and Johns v Director of Proceedings [2017] NZHC 2843 at [86],
28 F v MPDT CA213/04 and Seidenfaden 760/Med15/323D (on appeal in DP v A [2016] NZHC 2299).
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Tribunal Consideration of the Charge
Particular 1: Treatment plan
[129] Particular 1 of the Charge alleges that “Dr Gabb failed to have a treatment plan or an adequate treatment plan for Mr R”.
[130] This is not an allegation that Dr Gabb failed to have a “written” treatment plan, so the fact that the treatment plan may not have been written, could not in itself be sufficient to establish the particular.
[131] However, the Tribunal accepts Dr Catherwood’s evidence that a written treatment plan was required in this case due to the complexity of the case. The Tribunal agrees that as this case was at the highest end of complexity for any general dentist, a verbal plan was inadequate and unacceptable. It follows that Dr Gabb’s failure to prepare a written treatment plan, whether or not, it was then provided to the Rs, amounted to a failure to have an adequate treatment plan.
[132] At the least Dr Gabb should have written up her own treatment plan once she received Dr M’s treatment plan for the surgical work in [ ] 2006. Dr Gabb should also have prepared a revised treatment plan in writing when the treatment plan changed in late 2007.
[133] Dr Gabb was also required to provide adequate information to Mr R, including the treatment plan. While the adequacy of the information provided to the patient by Dr Gabb is addressed under Particular 2, Dr Gabb’s evidence confirms that she knew she ought to have provided a written treatment plan to the Rs and her own email to the Rs in [ ] 2006 confirmed that she intended to do so.
[134] The Tribunal is satisfied that on the balance of probabilities, Dr Gabb’s failure to provide a written treatment plan to the Rs also confirms that she did not herself have an adequate plan. In particular:
(a) On [ ] 2016, Dr Gabb promised to send the Rs her treatment plan:
“I have your treatment plan that [M] sent to me and soon I will be able to put your treatment plan with me into place then send it to you”. (ABD 1/3)
29 DP v A [2016] NZHC 2299 at [21].
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(b) The Rs stated that they had not received a treatment plan from Dr Gabb in an email to Dr M on [ ] 2008 (ABD 1/22).
(c) On [ ] 2008, Dr Gabb admitted in an email to the Rs “I didn’t provide you with the proper treatment plan for all the changes and I apologise for that, because you could not understand where we were going and all that was involved in the treatment’ (ABD 1/27).
[135] Dr Catherwood acknowledged that Dr Gabb’s detailed evidence to the Tribunal of her original and revised treatment plans would have constituted good treatment plans. However, there is no evidence in the clinical notes that either plan was prepared in writing at the time. The clinical notes only included brief references to the work undertaken at some appointments. Dr Gabb said that some records must have been lost when she sold the business to Lumino, but she could not explain how other notes from prior to the sale had survived. Given Dr Gabb’s apology to the Rs in [ ] 2008 for the lack of a “proper treatment plan”, the Tribunal does not accept that Dr Gabb prepared an adequate written treatment plan that was subsequently lost. This is confirmed by the lack of any written plan available in the R’s records when they otherwise kept detailed records of emails and correspondence with Dr Gabb.
[136] There was also inadequate planning of the costs of the treatment. The Rs asked for an estimate on [ ] 2006. There was a written estimate for the fixed bridges provided at some stage, although the date is disputed. There was also a separate quote provided for the gold bars once the treatment plan changed.
However, the Rs were left unclear as to the likely overall costs at the outset of the treatment.
[137] The Tribunal accepts that the correspondence between the Rs and Dr Gabb over the course of 2006 through much of 2008, shows that Mr R was left confused by various aspects of the proposed treatment including the timeframe, cost and what would be involved. This simply reinforces the importance of a written treatment plan being provided in such a complex case.
[138] Dr Gabb also admitted during the hearing that she did not have knowledge of all the complexity involved in Mr R’s treatment and so could never have produced an adequate treatment plan in any event.
[139] Dr Gabb did have a limited treatment plan in place which she explained to the patient. However, Dr Gabb failed to have an adequate treatment plan in place at the outset of the treatment in [ ] 2006 and throughout the period of Mr R’s treatment. The plan needed to be in writing for such a complex case.
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[140] As the lead dentist, Dr Gabb could not rely on others to produce this plan she needed to have a comprehensive and clear treatment plan that was properly documented. Particular 1 is established as negligence in relation to the scope of Dr Gabb’s practice in general dentistry and is a breach of professional standards that is, in our assessment, likely to bring discredit to the profession of dentistry.
Particular 2: Informed consent
[141] Particular 2 of the Charge alleges that “Dr Gabb failed to obtain Mr R's fully informed consent prior to the commencement of treatment. In particular, Dr Gabb failed to provide Mr R with any information, or adequate information, about:
(a) the treatment plan; and/or
(b) the treatment being provided and the risks and/or benefits of such treatment; and/or
(c) her experience and suitability to provide the treatment; and/or (d) the likely outcomes of the treatment; and/or
(e) the likely timeframe for the treatment; and/or (f) the cost of the treatment.”
[142] Mr R’s evidence was that he was provided with some information about the proposed treatment but was sometimes left uncertain or confused. Mr R says he was never asked to sign anything. Ultimately, he and his wife placed their trust in Dr Gabb as an expert.
[143] Dr Gabb has admitted at the hearing that she did not provide Mr R with adequate information about what was involved in the proposed treatment or obtain his informed consent.
[144] As lead dentist, it was Dr Gabb’s responsibility to ensure that Mr R was informed about what was involved throughout the process (i.e. the treatment plan), the risks and benefits, the likely outcomes, the expected timeframes, and the likely costs. It was also her responsibility to then obtain Mr R’s consent before commencing treatment. This same obligation arose each time the treatment plan changed. As is reflected in the Code, informed consent is “a corner stone of the practice of medicine” and other health professions. Even as
