SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2023] NZHC 2759

SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCILOF NEW ZEALAND [2023] NZHC 2759 [2 October 2023]IN THE HIGH COURT OF NEW ZEALANDGREYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROAMĀWHERA ROHECIV-2022-418-17[2023] NZHC 2759BETWEEN BHARATH RAJA SUBRAMANIAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE APPOINTED BY THEDENTAL COUNCIL OF NEW ZEALANDRespondentHearing: 4 September 2023Appearances: A H Waalkens KC and S R Courtney for AppellantJ P Coates and A N Lane for RespondentJudgment: 2 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 2 October 2023 at 4 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:ContentsIntroduction ........................................................................................................... [1]Grounds of appeal ................................................................................................. [5]Approach on appeal............................................................................................... [7]Background to the charge .................................................................................... [11]The Tribunal's decision ....................................................................................... [29]Application to adduce further evidence on appeal .............................................. [50]Submissions [59]Discussion [67]The appeal ........................................................................................................... [77]Was adequate regard given to Dr Shand's evidence? .......................................... [79]Discussion [85]Did the Tribunal misdirect itself regarding the length of any condition ofpractice, including supervision, it could impose? ............................................... [87]Discussion [90]Did the Tribunal fail to give appropriate weight to the wider public interest inretaining the services of this dental practitioner? ................................................ [93]Discussion [97]Was the decision to cancel Dr Subramani's registration excessive orunreasonable? ...................................................................................................... [99]Discussion [119]Was the decision to impose a fine appropriate? ................................................ [127]Discussion [133]Result................................................................................................................. [137]Costs .................................................................................................................. [138]Introduction[1] In early February 2022, the appellant, Dr Subramani, a registered dentist,appeared before the Health Practitioners Disciplinary Tribunal (the Tribunal) ona charge of professional misconduct.1 The charge particularised 40 instances ofmisconduct involving 11 patients who received dental treatment from Dr Subramanibetween 6 October 2017 and 11 October 2018.[2] Dr Subramani admitted the charge, and the Tribunal, having heard thesupporting evidence, issued an oral finding of professional misconduct. The balanceof the hearing considered penalty.[3] The Tribunal reserved its decision on penalty. It issued its decision on16 December 2022 and imposed the following penalties:(a) censure;(b) cancellation of registration;(c) a fine of $10,000; and(d) costs of $150,000.[4] The appellant appeals the Tribunal's decision to:(a) cancel his registration; and(b) impose a fine of $10,000.Grounds of appeal[5] Dr Subramani relies on the following grounds to challenge the cancellation ofhis registration:1 A Professional Conduct Committee appointed by the Dental Council of New Zealand1282/Den21/511P [Tribunal Decision].(a) The Tribunal failed to pay adequate regard to the evidence ofDr Subramani's supervisor, Dr Michael Shand, who had beenappointed by the Dental Council (the Council), and who gave evidenceof a marked improvement in Dr Subramani's dental practice andcompetence.(b) The Tribunal misdirected itself in assuming it was only able to imposea suspension and/or conditions (including supervision) for a period ofthree years. This overlooked the power of the Council to continueorders of supervision and other conditions under the HealthPractitioners Competence Assurance Act 2003 (the Act).(c) When all the circumstances of the case are considered, the Tribunal'sdecision to cancel Dr Subramani's registration was excessive orunreasonable.(d) The Tribunal failed to give appropriate weight to the wider publicinterest in retaining Dr Subramani's services given the West Coast wasdesperately short of dental practitioners.[6] Dr Subramani also challenges the imposition of a fine of $10,000 asunreasonable and excessive given the extent to which he has already sufferedfinancially and otherwise from the disciplinary proceedings.Approach on appeal[7] Appeals under the Act proceed by way of rehearing.2 The court may confirm,reverse or modify the decision or order appealed against, and make any decision ororder the Tribunal could have made.3[8] Counsel identified a divergence of approach over whether penalty decisions ofthe Tribunal involve the exercise of a discretion, such that on appeal, the court should2 Health Practitioners Competence Assurance Act 2003, s 109(2).3 Section 109(3).be limited to considering the criteria identified in May v May,4 or alternatively, whetherthey are general appeals which require the appellate court to come to its own view onthe merits, even when that involves an assessment of fact and degree and entails avalue judgement.5[9] While Mr Waalkens KC, for the appellant, says it is now well established thatan appeal such as this is a general appeal, Mr Coates, for the Professional ConductCommittee (PCC), points out that this is not settled law. There are a number of HighCourt cases where an appeal against penalty imposed by a specialist Tribunal has beentreated as discretionary.6 However, both counsel accept that in more recent times, theHigh Court has tended to approach penalty appeals as general appeals,7 despite theJudge in Emmerson v A Professional Conduct Committee appointed by the MedicalCouncil of New Zealand expressing reservations about whether such an approach wasnecessary.8[10] I accept the preponderance of recent authority treats such an appeal as a generalappeal. Furthermore, that is consistent with the broad powers given on appeal to makeany decision or order that could have been made by the Tribunal.9 I therefore adoptthis approach to the appeal, noting that the result in this case is not affected by theapproach adopted.Background to the charge[11] To understand the Tribunal's decision, it is important to set out the chronologyof events which gave rise to the charge. Dr Subramani graduated with a Bachelor ofDental Surgery from a university in India in 2005. He worked in India before movingto New Zealand in 2006. He then studied towards a postgraduate Certificate in HealthSciences from the University of Canterbury and completed the Overseas Trained4 May v May (1982) 1 NZFLR 165 (CA) at 170.5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].6 GS v Professional Conduct Committee [2010] NZAR 417 (HC) at [14]; and Roberts v AProfessional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at[41]–[43].7 Emmerson v A Professional Conduct Committee Appointed by the Medical Council ofNew Zealand [2017] NZHC 2847 at [96]; and Shousha v A Professional Conduct Committee[2022] NZHC 1457 at [68].8 Emmerson, above n 7, at [96].9 Health Practitioners Competence Assurance Act 2003, s 109(3)(b).Dentist Bridging Programme at the University of Otago. While completing thesequalifications, he worked as a dental assistant at Christchurch-based dental practices.[12] In 2012, he became registered as a general dentist in New Zealand after takingthe New Zealand Dentist Registration examinations. He worked as a dentist at GardenCity Dental in Christchurch.[13] In May 2013, Dr Rozeleen Rahiman, another dentist at the practice, notifiedthe Council, under s 34(3) of the Act, of concerns she had about Dr Subramani'sconduct and treatment of patients. The complaints included:(a) invoicing for treatment which had not been carried out;(b) inappropriate invoicing;(c) a patient complaint regarding inadequate root canal therapy;(d) inadequate crown treatment; and(e) endodontic treatment of the wrong tooth including an inadvertentperforation.[14] Inquiries were then made by the Council into the competence issues raised inthe notification.10 A report dated August 2013 by Dr Bambery agreed the informationraised a concern about Dr Subramani's competence in practicing dentistry. Whileexpressing some scepticism about Dr Rahiman's motives for making the complaint,he found the two other dentists at the practice were genuine in their concerns aboutDr Subramani's treatment of patients, and the report was referred to the Council toconsider what action was appropriate.[15] The Council determined it was appropriate for Dr Subramani to undertake anindividual recertification programme (IRP), saying he "was not a risk to public safety"but he did require "upskilling". The Council agreed that Dr Subramani would benefit10 Under s 36 of the Act.from mentoring support and noted he was currently undertaking the modular educationprogramme through the Royal Australasian College of Dental Surgeons (MRACDS)and a Masters in Advanced General Dental Practice through Birmingham University.The Council considered that supervision and mentoring for the duration of theMRACDS programme by a registered practitioner appointed by the Council wasappropriate, in addition to the mentor appointed by the College as part of thatprogramme. When Dr Subramani undertook the IRP, it was anticipated that it wouldbe completed by 30 November 2014. The IRP commenced in October 2013.[16] Dr Subramani took much longer to complete the IRP than was originallyenvisaged because Dr Subramani took longer than expected to complete the MRACDSprogramme. Of the 12 modules he was required to complete, he initially failed theassessments for the following modules: infection control, examination technique anddental imaging, and diagnosis and treatment planning. Indeed, Dr Subramani alsofailed two further reassessments on the diagnosis and treatment planning modulebefore passing it on his fourth attempt in December 2015. His initial case reports forthe operative dentistry, endodontics and periodontics modules also did not meet thenecessary requirements. However, by January 2016 Dr Subramani obtained passresults in the remaining modules.[17] While completing the IRP, Dr Subramani practiced initially under thesupervision of Dr Stuart Johnson and then, from May 2014 onwards, under thesupervision of Dr Garry Rae at his Greymouth practice, Lumino Garry Rae Dental.Dr Rae's evidence was that he entered into a contract with the Council to superviseDr Subramani while he was working for him. This included providing weekly reportsto the Council.[18] Dr Rae said that while he was supervising Dr Subramani, he came across aspolite and courteous. While he would fall behind on components of the MRACDSprogramme for his IRP, this did not raise concerns with Dr Rae at the time. He wrotefavourable reports to the Council. He said while Dr Subramani was under hissupervision, "he appeared to be making an effort to fulfil all his obligations and hisclinical work was viable".[19] On 18 July 2016, Dr Rae was advised by the Council that Dr Subramani hadsuccessfully completed his IRP, and the period of supervision ended. Dr Rae said thatalmost straight after Dr Subramani had achieved his recertification, his attitude andbehaviour started to change. He said he "developed a temper and became aggressivewith staff verbally". Dr Rae was of the view that Dr Subramani's change in attitudeafter he had completed his period of supervision reflected the fact that he "never trulybelieved he even needed supervision". Dr Rae also recalls an incident whereDr Subramani confronted him and told him in a threatening manner that he was goingto be "the number one dentist on the West Coast" and "take over as lead dentist at [his]practice". While Dr Rae accepted in cross-examination that he may havemisinterpreted this comment, which could have been intended to expressDr Subramani's desire to achieve excellence, it is clear the relationship broke down.Dr Subramani left Lumino Garry Rae Dental at the end of September 2017. With thesupport of Lumino, Dr Subramani commenced work at Lumino Greymouth DentalCentre, a newly established dental surgery where he was in sole practice.[20] It was during the period that Dr Subramani was the sole dentist at LuminoGreymouth that the issues which gave rise to the professional misconduct chargearose. Dr Christopher Brooks, a registered dentist, who acts as clinical adviser forLumino, learnt in August 2018 of concerns about the standard of Dr Subramani's care.He travelled to Greymouth to meet with Dr Subramani, and he also undertook a reviewof randomly selected patient files. The outcome of his enquiries confirmed Dr Brooks'concerns regarding the level of care provided by Dr Subramani and the risk of harmto patients. In oral evidence, Dr Brooks said Dr Subramani displayed "a lack of insightinto the harm that had been or may have been caused by his treatment decisions".[21] Lumino terminated Dr Subramani's contract on 15 October 2018, and theCouncil was notified of Dr Brooks' concerns. In the letter to Dr Subramani fromLumino's national operations manager advising of the termination, it was noted thatDr Subramani "didn't appear to understand the gravity of our concerns or how yourapproach didn't meet our clinical standards". Dr Brookes also notified the Council ofthe clinical concerns he had on 12 October 2018. These concerns included:(a) failing to record or inaccurately recording medical history;(b) extracting teeth without appropriate radiographs;(c) inappropriate and/or unnecessary treatment;(d) a lack of informed consent as to both the dental procedures and the costsof treatment;(e) poor clinical records; and(f) poor standard of clinical treatment.[22] In March or April of 2019, Dr Subramani opened his own practice, CoastSmiles Dental Spa.[23] On 9 March 2019, another dentist, Dr Angelo Ioanides, had a former patient ofDr Subramani, Mr C,11 present to him as a patient. Dr Ioanides was "appalled" bywhat he saw, and he asked the patient to request his clinical notes from Dr Subramani.He said these notes were "grossly deficient" and "grossly inaccurate". He formallynotified the Council on 9 March 2019 of the concerns he had about the treatmentDr Subramani had provided to this patient.[24] Since 29 March 2019 Dr Subramani has practiced under a Council-approvedsupervisor, as required by the Council.12 Dr Subramani was first supervised byDr Fred Timmermans in Picton for a short period. The Council also restrictedDr Subramani's scope of practice to only include "basic dentistry". That meant hecould only undertake the following procedures:(a) check up (consultation);(b) cleaning;(c) composite filling;11 The Tribunal suppressed the names of all patients referred to in the charge and referred to them byletter identifiers in its decision. I use the same letter identifiers in this judgment.12 Pursuant to s 69 of the Act.(d) extraction;(e) emergency endodontic dressing; and(f) removable prosthodontics.[25] Dr Subramani was also required to advise each patient that he was undersupervision, his practice was limited to basic dentistry only and their records wouldbe shared with his supervisor.[26] In the latter part of 2019, Dr Subramani finished working underDr Timmermans' supervision. He then had a break of approximately three monthsfrom dentistry because he suffered an injury. He had trouble finding an alternativesupervisor but, on 1 June 2020, Dr Alex Munro commenced supervision for athree-month period.[27] Dr Shand commenced supervision of Dr Subramani in September 2020. On14 April 2021, the disciplinary charge was laid.[28] The charge itself was a lengthy document being 22 pages in length. While italleged only one charge of professional misconduct under s 100(1)(a) and (b) of theAct, it was supported by 39 particulars relating to 11 patients. Many of the particularswere alleged in relation to a number of the patients and included:(a) failing to conduct an adequate examination or diagnostic evaluation ofthe patient;(b) failing to obtain adequate x-rays;(c) failing to obtain informed consent to the treatment implemented and thecost of treatment;(d) failing to document, or adequately document, all aspects of the patient'speriodontal status, medical history, diagnosis, reason for diagnosis andtreatment;(e) implementing treatment which failed in an unreasonable timeframe;(f) undertaking dental work that was not required or appropriate;(g) undertaking work that was defective or not to an adequate standard; and(h) charging excessive fees.The Tribunal's decision[29] The Tribunal convened on 1 February 2022 to hear the charge of professionalmisconduct. The Tribunal comprised the following members:(a) Dr Sergio Salis, prosthodontist;(b) Dr Sunyonng Ma, prosthodontist;(c) Dr Tim MacKay, general dentist;(d) Ms Amanda Kinzett, lay member; and(e) Ms Theo Baker, chairperson.[30] As already noted, the first part of the hearing focused on the question ofliability. The Tribunal was provided briefs of evidence from 10 of the 11 patientssubject to the charge. Evidence was given by Dr Brooks, who first raised some of theissues which led to the charge. The Tribunal also had briefs of evidence fromfive other dentists, each of whom outlined concerns regarding shortfalls inDr Subramani's care of specific patients identified in the particulars to the charge.Finally, the Tribunal heard from Dr Andrea Cayford, an independent expert witness.She provided a comprehensive report reviewing the allegations of misconduct inrelation to all 11 patients. In her report, she detailed the shortcomings inDr Subramani's care, and these were summarised in 25 points in her conclusion.[31] Dr Cayford's conclusions were essentially unchallenged and were accepted bythe Tribunal. They in turn fed into the Tribunal's assessment of the seriousness of themisconduct. The Tribunal concluded that Dr Subramani's misconduct was serious forthe following reasons:13(a) Negligent care was delivered to 11 patients[.](b) For each patient, there was sub-standard care on a number of bases[.](c) For each patient the negligent care occurred at more than oneappointment[.](d) Some of the conduct was unethical. For example over an 11 monthperiod, multiple fillings were placed when not required.(e) [T]he failure to record a patient's medical history [was] a majordeparture from accepted practice and is potentially fatal. He did thisdespite having just completed his education for MRACDS(f) Some of Dr Subramani's patients were vulnerable. The Tribunal feltthat Dr Subramani's overtreatment and overcharging of his patients[Mr and Mrs H] who were superannuitants, was a significant breachof his obligations and of their trust;(g) Dr Subramani's care of [Mr C] was woefully inadequate, extensiveand invasive. The inconvenience for remedial work was extensive.(h) The cumulative effect of all of the shortcomings is very seriousindeed.[32] In assessing the appropriate penalty to impose, the Tribunal referred to therelevant legal principles applying.14 In particular, the Tribunal referred to the decisionin Roberts v A Professional Conduct Committee of the Nursing Council ofNew Zealand, where Collins J said an appropriate penalty is one which:15(a) most appropriately protects the public and deters others;(b) facilitates the Tribunal's "important" role in setting professionalstandards;13 Tribunal decision, above n 1, at [650].14 At [418].15 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5,at [44]–[51] as summarised in Katamat v Professional Conduct Committee [2012] NZHC 1633,[2013] NZAR 320 at [49].(c) punishes the practitioner;(d) allows for the rehabilitation of the health practitioner;(e) promotes consistency with penalties in similar cases;(f) reflects the seriousness of the misconduct;(g) is the least restrictive penalty appropriate in the circumstances; and(h) looked at overall, is the penalty which is "fair, reasonable andproportionate in the circumstances".[33] The Tribunal also directed itself to the principles which govern a decision tocancel registration. Its decision set out those principles as follows:16(a) An order for cancellation or suspension is not to punish, but to protectthe public because the person is not a fit and proper person to remainregistered as a professional person.(b) Cancellation is more punitive than suspension (albeit the purpose ofneither is to punish).(c) The choice between the two turns on proportionality, and therefore thedecision to suspend implies that cancellation would have beendisproportionate.(d) Suspension is more appropriate where there is a "condition affectinga practitioner's fitness to practice that may or may not be amenable toa cure".(e) Suspension should not be imposed simply to punish.[34] The Tribunal then examined Dr Subramani's history of practice in some detail.It also set out the evidence it heard on penalty, much of which focused on howDr Subramani responded to criticism in the past, the reasons he gave for hisshortcomings, and the success or otherwise of the significant periods spent undersupervision.16 Tribunal decision, above n 1, at [419].[35] The Tribunal then embarked on a fulsome discussion of the appropriate penaltyconsidering each of the principles articulated in Roberts. It referred to the aggravatingfeatures of Dr Subramani's conduct, including the fact he caused physical, financialand emotional harm to patients and breached their trust.17 The Tribunal recognisedthat Dr Subramani had engaged in supervision with Dr Shand, and Dr Shand gaveevidence he had responded well.18 However, the Tribunal noted it was not until thePCC filed all its evidence, including Dr Cayford's report, that Dr Subramani admittedhis wrongdoing, and the Tribunal also found him "inconsistent in his acceptance ofresponsibility".19[36] The Tribunal acknowledged the conduct occurred some four to five yearsearlier.20 However, it noted that concerns were raised over Dr Subramani'scompetence in early 2013 which led to the Council requiring Dr Subramani to undergoan IRP involving further study and a lengthy period of supervision.21 The Tribunalalso noted that when the first event covered by the charge occurred, Dr Subramani hadbeen working in the field of oral health in New Zealand for 12 years and also hadcompleted a range of further study.22[37] The Tribunal then turned to the question of whether, in consideration of theneed to protect the public, suspension or cancellation was the appropriate option. TheTribunal noted that the span of Dr Subramani's negligence was "extensive" and theparticulars in the charges did not relate to "minor shortcomings".23 The Tribunalconsidered Dr Subramani was operating at "the level of a junior dental student",whereas the "public is entitled to expect that when they consult a registered dentist, heor she is able to meet the basic standards of the practice of dentistry".24 The Tribunalidentified that the two principles of protection of the public and the rehabilitativeprospects of Dr Subramani were at the "forefront" of its decision on penalty.2517 At [606].18 At [607].19 At [607].20 At [608].21 At [609]–[611].22 At [612].23 At [616].24 At [617].25 At [620].[38] In terms of Dr Subramani's prospects of rehabilitation, the Tribunal noted thatover the years he had undertaken a significant amount of professional developmentand education. It also noted he had completed over 280 hours of continuingprofessional development from January 2017 to June 2018 "with no evidence of apositive effect on his practice".26 Furthermore, if his periods of supervision wereadded up, between 2013 and 2022 he had at least five years of supervision.27 TheTribunal observed that "the current supervision regime is not sustainable".28Dr Shand had retired from practice and could not continue indefinitely. Furthermore,the Tribunal held the "public is entitled to assume that a dentist who has beenregistered in New Zealand for nearly 10 years does not require the level of supervisionof a dental student".29 The Tribunal also noted that under s 101(1)(c) of the Act, theduration of any condition on practice may not exceed three years. The Tribunal didnot have confidence that a three-year period of ongoing supervision would address therehabilitation that was required and would therefore be adequate to protect thepublic.30[39] The Tribunal observed that while Dr Subramani had responded satisfactorilyto supervision under Dr Shand, he had also apparently responded satisfactorily tosupervision under Dr Rae. However, as soon as he was unsupervised, his practiceslipped well below the standard expected of a registered general dentist.31 TheTribunal went on to note that as Dr Subramani had done 1,000 hours of education inthe last three and a half years, including both face to face and distance learning, heshould not need rehabilitation. The Tribunal's assessment was that if Dr Subramaniwas suspended, he would come back to practice no further ahead.32[40] Finally, the Tribunal referred to the personal characteristics Dr Subramanidisplayed which reinforced its concerns about his amenability to true rehabilitation.The Tribunal said it formed the view "that Dr Subramani says what he thinks one26 At [621].27 At [622].28 At [623].29 At [623].30 At [624].31 At [625].32 At [626].wants to hear".33 He attributed many of his failings to "being out of his depth",34 butthe Tribunal observed there was no reason for him to be out of his depth in performingdental treatment such as fillings and extractions.35 While the Tribunal acknowledgedthat English was not Dr Subramani's first language and he would have been nervousat the hearing, the Tribunal would still have expected him to be able to explain whyhe was out of his depth practicing at Lumino Greymouth despite his extensive trainingand experience.36[41] The Tribunal was critical of Dr Subramani attempting to detract from theallegations against him by suggesting he was the victim of professional jealousybecause he had set up in competition to the Lumino dental practices in Greymouth orthat he was the subject of racial disparagement for which there was no evidence.37 TheTribunal considered his attempts to justify his actions demonstrated a lack of insightand that if he was "truly capable of being rehabilitated" there would be evidence ofgenuine remorse and insight.38 Instead, despite admitting the charge, he did not fullyaccept that his care had been substandard. For example, under cross-examination, hedid not accept that he had given Mr and Mrs H too many fillings.39[42] In the Tribunal's view, someone with the level of supervision Dr Subramanihad should not now require ongoing intensive supervision at that level. The Tribunalconcluded Dr Subramani had "done a lot but achieved little".40 Based on his progressto date, the Tribunal found it difficult to see that, within the foreseeable future, hewould be operating at the standard expected of a reasonable dentist. In the Tribunal'sview, public safety could not take second place to Dr Subramani's ongoing learningon the job to achieve the level of competence expected of a graduate.41[43] The Tribunal then considered consistency with penalties in similar cases. TheTribunal considered the decision in Aladdin v Director of Proceedings, where the33 At [627].34 At [627].35 At [629].36 At [630].37 At [632].38 At [633].39 At [635].40 At [638].41 At [639].Dentists Disciplinary Tribunal cancelled Dr Aladdin's registration as a dentist shortlyafter suspending Dr Aladdin on another charge.42 The Tribunal in that decisionexpressed its reason for electing cancellation rather than supervision as follows:43Dr Aladdin's short comings are so profound and cover so many aspects ofdentistry the Tribunal believes he must be re-trained as a dentist before hepractises in New Zealand again.[44] The Tribunal also considered the penalty decision in Vatsyayann, whichfollowed the High Court's quashing of Dr Vatsyayann's cancellation of registration.44There, Dr Vatsyayann's registration was again cancelled after hearing more extensiveevidence on penalty.45 In that case, the doctor's conduct showed "a generic absenceof insight, and a real doubt as to willingness to learn from past experiences".46 InDr Subramani's case, the Tribunal likewise had serious concerns about his insight.While he had demonstrated a "willingness to learn", it was unclear whether he hadlearned from past experiences, and the Tribunal questioned his ability to do so.47[45] The Tribunal also referred to the decision in A Professional ConductCommittee appointed by the Dental Council of New Zealand v Gabb, where a dentistwas censured and conditions placed on her practice for multiple failings in relation toone patient over an eight-year period.48 While there were similarities between thetreatment in Gabb and the treatment, in particular, of Mr C, the present case was seenas more serious because of the number of complainants and the fact there werefindings of malpractice.49[46] The Tribunal next considered the seriousness of the conduct, saying it relatedto a broad range of failures. These were not isolated lapses, but rather showed a patternof behaviour.5042 At [642] citing Director of Proceedings v Aladdin 13/Den/04/02D at [86].43 At [87].44 Tribunal decision, above n 1, at [645] citing Vatsyayann 479/Med10/152P.45 At [97].46 At [78].47 At [645].48 At [646] citing A Professional Conduct Committee appointed by the Dental Council of NewZealand v Gabb 1138/Den 20/479P.49 At [649].50 At [651].[47] In considering the least restrictive penalty appropriate in the circumstances, theTribunal concluded that nothing short of cancellation was appropriate given its lack ofconfidence in Dr Subramani's ability to reach and maintain the standard required of adentist. It was not satisfied that he could work without supervision, even after a furtherthree years, which is the longest period of supervision the Tribunal could order. Forthat reason, a term of suspension followed by conditions that he work undersupervision would provide no long-term protection for the public.51[48] The Tribunal concluded that "[b]oth the public and the profession are entitledto have confidence that any person being a registered dentist is able to practiceautonomously".52 It considered temporary periods of supervision and support wereappropriate where there was a prospect of rehabilitation, something it was notpersuaded was the case here. For that reason, cancellation under s 101(1)(a) wasconcluded to be a fair, reasonable, and proportionate penalty.[49] The Tribunal also ordered censure under s 101(1)(d) and imposed a fine of$10,000 under s 101(1)(e).53 Dr Subramani was also required to pay $150,000, beingaround 37.5 per cent of the total costs incurred in the PCC's investigation andprosecution and the Tribunal's costs.54Application to adduce further evidence on appeal[50] Shortly before the appeal hearing, Dr Subramani applied to adduce furtherevidence on appeal. The application initially included all the affidavit evidenceadduced for the application seeking to stay the cancellation decision whileDr Subramani pursued his appeal.[51] To provide some context, when the Tribunal's decision issued on16 December 2022, Dr Subramani promptly applied to the High Court for a stay of thedecision pending determination of his substantive appeal. On 23 December 2022,Osborne J ordered an interim stay but required Dr Subramani to file an on-notice51 At [652].52 At [653].53 At [654]–[655].54 At [664].application for the stay to be heard on 7 February 2023.55 When that application washeard, the interim stay in relation to penalty was rescinded (the stay judgment).56[52] Dr Subramani then filed an interlocutory application for leave to appeal thestay judgment and for a stay of the stay judgment itself. In a decision dated5 April 2023, Osborne J granted leave to appeal the stay judgment.57 In the samedecision, he continued the stay on conditions, including that Dr Subramani retain theservices of Dr Susan Gorrie as a supervisor of his practice in accordance with thesupervisory arrangements that were previously in place with Dr Michael Shand.[53] The Court of Appeal heard the appeal in late July 2023 and issued its decisionon 18 August 2023. It dismissed the appeal against the refusal to grant a stay.58[54] As the stay application progressed through these various hearings, furtherevidence was filed by both parties. This included updating evidence onDr Subramani's supervision arrangements and reports on the same, as well as evidenceabout the shortage of dentists on the West Coast. There was also an affidavit fromDr Beata Migda, a dentist, confirming she had recently joined Dr Subramani'spractice. There was also evidence from Dr Andrew Gray, the Deputy Registrar of theCouncil, about the supervision arrangements which were in place after Dr Shand'sannual practising certificate lapsed. Dr Gray also referred to a complaint beingreceived from a staff member at Coast Smiles which was ultimately not pursued.There was also evidence from Dr Rae, advising that he is still seeing patients whoclaim to have received substandard treatment from Dr Subramani and outliningtwo specific cases. Dr Subramani filed an affidavit in reply rejecting any problemswith the staff member and responding to the claims about the two patients referred toin Dr Rae's affidavit.55 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand[2022] NZHC 3619.56 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand[2023] NZHC 189.57 Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand[2023] NZHC 757.58 Subramani v A Professional Conduct Committee of the Dental Council [2023] NZCA 375.[55] Dr Subramani subsequently modified his application to adduce furtherevidence. Instead of incorporating all the further evidence heard by the High Courtand Court of Appeal on the application for a stay, he limited it to evidence whichupdated the Court with regards to his supervision arrangements and performanceunder supervision. The evidence was variously omitted or redacted to focus on thisissue as was explained in a memorandum dated 16 August 2023.[56] The application was opposed by the PCC on the grounds that there was nospecial reason for admitting the evidence and it did not add anything relevant to thedetermination of the appeal.[57] It was hoped that the application could be determined in advance of the appeal.However, when the proceedings were called before Mander J on 24 August 2023, headvised that no hearing time was available and the issue would have to be dealt withwhen the substantive appeal was heard. Mander J did observe, however, that updatinginformation is commonly admitted, at least on a provisional basis.[58] On 1 September 2023, the PCC also filed an additional affidavit from Dr Grayon the basis that if the evidence Dr Subramani sought to adduce was admitted, thePCC's evidence opposing the application should also be included. This evidenceincluded redacted versions of Dr Gray's affidavit dated 27 January 2023 and Dr Rae'saffidavit of the same date, as well as (for completeness) Dr Subramani's affidavit inreply and Dr Shand's affidavit, both dated 3 February 2023. Dr Gray also sought toadduce evidence of Dr Subramani purchasing an interest in a dental practice inChristchurch and of two further complaints being referred to the Council from theHealth and Disability Commissioner.59 One of the complainants, Mr L,60 raisedconcerns about treatment received over six visits between 6 December 2021 and27 January 2022 which were very similar to the complaints which were the subject of59 While at para [15] Dr Gray refers to three complaints, the only information about the complaintsshows that two complaints were referred to the Council from the Health and DisabilityCommissioner on 10 March 2022. There are further complaints received by the Council aboutDr Subramani's compliance with his conditions of supervision at his newly acquired Hoon Haypractice but that originated from anonymous members of the public and not the Commissioner.60 During the hearing I ordered suppression of the name of any new complainant and I continue theuse of letters to identify complainants.the charge. Dr Gray also describes the lack of detailed supervision reports fromDr Subramani's subsequent supervisors, Dr Gorrie and Dr Lester Settle.Submissions[59] Mr Waalkens, for Dr Subramani, says the purpose of the application is simplyto provide updating evidence to the High Court for the appeal. He argues that theupdating evidence is clearly relevant. Both before the Tribunal, and on appeal,Dr Subramani focused on the success of the intensive supervision arrangement thathas been in place for some years now. This was done to support the submission thatthe appropriate penalty was censure, a fine, conditions and costs.61 The progressachieved through supervision with Dr Shand must be taken into account as well as thepublic interest in enabling his rehabilitation to be achieved. Mr Waalkens argues thatgiven the 10 months it took the Tribunal to issue its decision on penalty, during whichDr Subramani continued to receive and engage in the supervision from Dr Shand, thisfurther period of successful supervision should be taken into account in the appealagainst penalty.[60] The PCC opposes the application for leave to adduce new evidence. Ms Lane,addressing the Court on this issue, submits this was not a simple case of adducingrelevant updating evidence. The evidence of Dr Subramani performing successfullyunder supervision was already before the Tribunal, and Mr Shand's further reports tothe same effect do not add anything of relevance.[61] Ms Lane says this application could be compared with the application inBainbridge v A Professional Conduct Committee, where the High Court declined anapplication to adduce further evidence which included additional mental healthrecords about the complainant, saying "new medical records do not add in any materialway to the medical evidence that was before the Tribunal".62 Gordon J went on tosay:63The information in the new records is effectively "more of the same" whenconsidered alongside the medical records that were before the Tribunal 61 See Tribunal decision, above n 1, at [575].62 Bainbridge v A Professional Conduct Committee [2022] NZHC 3289 at [69].63 At [80].That the records may have some relevance is not sufficient to satisfy the testfor fresh evidence.[62] Ms Lane also refers to the decision in Zimmerman v Director of Proceedings,where there was an application to adduce an affidavit from Dr Zimmerman setting outhis career goals since the Tribunal's decision, including the limitations he made to hispractice and the courses he completed.64 In declining the application, Clifford Jstated:65I also note the general reluctance of Courts to accept further evidence onappeal I note further that the proposed additional evidence, in substance,addresses matters similar to those that were before the Tribunal, that is, mattersrelating to Dr Zimmerman's undertaking. The further evidence is ofsubstantially the same nature as that undertaking, although I accept it takes itfurther as a matter of fact. It does not introduce, however, any further categoryof consideration.[63] Finally, Ms Lane refers to the Court of Appeal's decision in Foundation forAnti-Aging Research v Charities Registration Board, where the Court observed:66The court will be guided by the usual criteria of freshness, relevance andcogency. Material that would merely elaborate or improve upon the evidencealready available in the record of proceedings at the first instance is unlikelyto meet the test.[64] Applying those observations to the present case, Ms Lane submits that the factsupervision has continued apparently satisfactorily does not add to the evidence aboutthe supervision arrangements that were before the Tribunal. Ms Lane points out thatDr Shand was questioned carefully and fully by the panel and Dr Shand's furtheraffidavit merely revisits this evidence, reiterating that he does not regard Dr Subramanias a dentist who is unable to be rehabilitated, but without providing any furtherexplanation. For that reason, his affidavit is neither substantially helpful nor cogent.[65] Ms Lane also submits that Dr Migda's affidavit, which says Dr Subramani'swork was "entirely appropriate and to a satisfactory standard", does not advancematters for the appeal. She was only at the practice briefly and it is unclear on whatbasis she was in a position to assess Dr Subramani's standard of practice. Similarly,64 Zimmerman v Director of Proceedings HC Wellington CIV-2006-485-761, 29 May 2007.65 At [41].66 Foundation for Anti-Aging Research v Charities Registration Board [2015] NZCA 449, (2015) 4NZTR 25-022 at [51] (footnotes omitted).the affidavit by Dr Subramani, which attaches his (then) current supervision protocoland a report from Dr Settle, is not relevant to the determination of the appeal andsimply comprises more evidence of the same nature as that before the Tribunal.[66] Finally, the evidence gives rise to factual disputes, and that, too, points againstits admission. As identified in Dr Gray's evidence, there is a question over whetherDr Subramani has been performing satisfactorily under supervision, particularly giventhe evidence of subsequent complaints, in particular, that of Mr L which bearssimilarities to the complaints heard by the Tribunal. As those factual disputes cannotbe resolved on appeal, the evidence is not helpful in determining whether theTribunal's decision was correct.Discussion[67] The question of whether further evidence should be adduced is governed byr 20.16(3) of the High Court Rules 2016. Leave is required and may only be grantedif there are "special reasons" for hearing the evidence. An example of a special reasonis that the evidence relates to matters that have arisen after the date of the decisionappealed against that are or may be relevant to the determination of the appeal. Inother words, not all updating evidence will be admissible. It must still meet amateriality threshold.[68] In exercising my discretion as to whether to grant leave to file new evidenceon the appeal, I have regard to the following factors:67(a) whether the evidence could have been obtained with reasonablediligence for the trial (this requirement is satisfied where the evidenceis updating evidence);(b) whether the evidence appears to be cogent and credible;67 LH v PH HC Auckland CIV-2006-404-5799, 2 March 2007 at [18]; Cornwall Park Trust Board(Inc) v Chen HC Auckland HC55/98, 11 June 1998 at 4–6; and Cromwell Corporation Ltd vSofrana Immobilier (NZ) Ltd [further evidence] (1991) 5 PRNZ 180 (CA) at 182.(c) whether the evidence would have an important influence on theoutcome of the case; and(d) whether admitting the evidence would require further evidence fromparties in cross-examination.[69] The overarching consideration, however, will be the importance of doingjustice in the particular case.[70] Here, the evidence sought to be adduced is fresh in the sense it was notavailable at the disciplinary hearing. It comprises further, apparently satisfactory,reports from Dr Subramani's supervisors.[71] On their face, the reports appear cogent and credible, although having readDr Gray's evidence, questions arise, particularly as to the extent to which some of thedeponents could attest to the issues they address.[72] Of more doubt is whether the evidence is material in the sense that it wouldhave an important influence on the outcome of the case. The Tribunal already hadbefore it evidence of Dr Shand's supervision for around a year and a half. He wascross-examined on that and, while he identified shortcomings in Dr Subramani'scommunication style which still needed work, he was firm in saying Dr Subramani'stechnical skills on the basic dentistry work he did were sound.[73] Another factor which points against the further evidence being admitted is thefact it is contested by the PCC. Questions are raised over whether unsatisfactory workwas done during the period of supervision, both in respect of patients that Dr Raesubsequently saw and patients who are the subject of complaints to the Health andDisability Commissioner. There are also recent complaints which the Dental Councilhas received about whether Dr Subramani was complying with his terms ofsupervision.[74] I accept entirely, as Mr Waalkens says, that where complaints have been madebut the investigation has not concluded, I can draw no adverse inferences aboutDr Subramani's conduct. However, the fact they have been made brings into questionwhether I can take the satisfactory supervision reports at face value.[75] More importantly, though, the further evidence would be unlikely to materiallyassist in determining whether the Tribunal erred in concluding that cancellation wasthe appropriate penalty. Pointing against this outcome is the history of successfulsupervision under Dr Shand. I do not consider that further evidence of ongoingsatisfactory supervision reports would alter the fundamental question that needed tobe addressed by the Tribunal and now, by this Court, which is whether Dr Subramaniis able to practice competently and ethically when not under close supervision.[76] Accordingly, the application to adduce further evidence is declined.The appeal[77] As already noted, there are four grounds of appeal against the decision tocancel registration. These are:(a) the Tribunal failed to pay adequate regard to the implications ofDr Shand's evidence in deciding to cancel Dr Subramani's registration;(b) it misdirected itself in saying it was only able to impose suspension andconditions for a period of three years because the Council also has thepower to continue orders of supervision and other conditions on adental practitioner's practice under pt 3 of the Act;(c) in any event, the decision to cancel Dr Subramani's registration wasexcessive or unreasonable; and(d) the Tribunal failed to give appropriate weight to the wider publicinterest in retaining the services of this dental practitioner when theWest Coast was desperately short of dentists.[78] I deal with each of these issues in turn.Was adequate regard given to Dr Shand's evidence?[79] At the time of the hearing, Dr Shand had been supervising Dr Subramani foralmost a year and half. The extent of that supervision was outlined in the decision andincluded Dr Shand spending the day with Dr Subramani, usually twice a month, wherehe sat in on consultations and observed what was going on through an intraoralcamera.68 Dr Shand spoke positively about Dr Subramani's technical skills, but notedcommunication difficulties, saying:His dental work itself was fine, I didn't have a problem with that, it was I justwanted to get him quietly improving. I hadn't realised initially it wasn't amechanical issue with him, it was more a, perhaps call it attitude issue. Andso, that's what we worked on. [80] The Tribunal recorded Dr Shand's firm view that Dr Subramani understandswhat to do and his clinical decisions are satisfactory.69 In Dr Shand's opinion,Dr Subramani had demonstrated a marked improvement and taken on board allfeedback. Dr Shand said he would be comfortable with Dr Subramani having someof his restrictions eased.70[81] In Mr Waalkens' submission, of all the evidence received by the Tribunal,Dr Shand's evidence was "the most persuasive" and it was hard to imagine morepersuasive evidence being able to be obtained on Dr Subramani's ability to berehabilitated and serve the local community. Furthermore, he points out that theTribunal accepted Dr Shand's evidence, saying that it "recognises that Dr Subramanihas engaged in supervision and accepts Dr Shand's evidence that he has respondedwell".71 Dr Shand's evidence was not challenged either in cross-examination or byany member of the Tribunal. In Mr Waalkens' submission, the Tribunal focusedinappropriately on Dr Subramani's historical conduct without recognising the markedimprovement that had taken place. Furthermore, Dr Subramani was clearly whollycommitted to his own rehabilitation, having spent some $87,000 on supervision up tothe date of the Tribunal's hearing and obviously more following the hearing date.68 Tribunal decision, above n 1, at [517].69 At [520].70 At [522].71 At [607].[82] Mr Coates, for the PCC, however, does not accept that Dr Shand's evidencewas "the most persuasive" evidence received by the Tribunal. In that regard, he notesthat Dr Shand did not give evidence on the conduct that was the subject of the charge,nor had he seen Dr Cayford's report and the extent of her criticisms.[83] In any event, Mr Coates notes that even Dr Shand's evidence indicated someshortcomings in Dr Subramani's practice. Dr Shand observed that Dr Subramani'sdentistry was "a bit like dentistry in New Zealand 50 years ago", and that he wouldbenefit from a supervisor on an ongoing basis to ensure "he stayed on track and wasaware of it". Dr Shand also alluded to mistakes that Dr Subramani made undersupervision but reassured the Tribunal he would bring these mistakes toDr Subramani's attention. Dr Shand was also clear that if Dr Subramani was to expandhis scope of practice, he would have to do it with some sort of further education to"get back into some good habits and what was required".[84] The Tribunal had to consider Dr Shand's evidence alongside all the otherevidence which included evidence that when Dr Subramani was not under supervision,significant problems arose.Discussion[85] Having considered the Tribunal's decision, I am satisfied it gave full andappropriate weight to the evidence of Dr Shand. It did not dismiss it, indeed itaccepted it, but then had to reconcile it with all the other evidence which it accepted.This included the extent of supervision and further education Dr Subramani had, andthe subsequent regression into deficient practices after the IRP supervision. It alsoneeded to consider it in light of the limited level of insight and understanding thatDr Subramani appeared to have gained during his period of supervision underDr Shand.[86] The Tribunal clearly reached the view that Dr Subramani was capable ofpractising adequately while under close supervision, which was supported byDr Shand's and Dr Rae's evidence, but was unable to apply what he had learned topractice when unsupervised.72 This was a conclusion that was readily available to theTribunal on the totality of evidence before it and I reject the ground that the Tribunalhad inadequate regard to Dr Shand's evidence in reaching its decision.Did the Tribunal misdirect itself regarding the length of any condition of practice,including supervision, it could impose?[87] Mr Waalkens submits that one of the reasons the Tribunal chose the penalty ofcancellation was because it wrongly understood that supervision of the practitionercould only be imposed for a period of three years. Specifically the Tribunal said:[624] Furthermore, under s 101(1)(c), the duration of any condition ofpractice may not exceed 3 years. Dr Subramani has already practisedunder supervision for over 5 years. The Tribunal does not haveconfidence that a three-year period of ongoing supervision willaddress the rehabilitation that is required and is therefore adequate toprotect the public.[88] Mr Waalkens submits the Tribunal was wrong to assume that supervision couldonly continue for three years. Under pt 3 of the Act, the Council has all the powersand ability to impose continued terms and conditions on any practitioner at theconclusion of any penalty orders imposed.73 If, at the end of three years, it wasconsidered Dr Subramani required further supervision, the Council could impose that.[89] Mr Coates says the Tribunal was correct to identify there was a statutory limiton the duration of conditions it can impose. While further conditions can be imposedunder pt 3 of the Act, Mr Coates points out that part of the Act is unrelated toprofessional disciplinary findings and any new conditions imposed would involve anentirely separate process. It is for the Tribunal, under pt 4 of the Act, to impose apenalty that meets the various objectives of the disciplinary regime. In any event,Mr Coates says the Tribunal was correct to observe that "[t]he public is entitled toassume that a dentist who has been registered in New Zealand for nearly 10 years doesnot require the level of supervision of a dental student".7472 See at [652]–[653].73 Health Practitioners Competence Act, ss 5(1) definition of "authority", 36(2)(a) and 38(1)(b).74 Tribunal decision, above n 1, at [623].Discussion[90] I am satisfied the PCC's submissions are correct. The Tribunal must considerthe powers available to it under pt 4 of the Act to select the most appropriate penalty.If it is not satisfied that conditions imposed for a three-year period would be sufficientto protect the public, it cannot choose that option in reliance on the Council, underpt 3, continuing such supervision to ensure the public is adequately protected.[91] Furthermore, the Tribunal was entitled to have regard to the implicitassumption in s 101(1)(c) that three years should be a sufficient time to complete therehabilitation required in order to protect the public. If it did not have confidence thatrehabilitation could be completed in that timeframe, it was entitled to imposecancellation of registration instead.[92] For these reasons, I am satisfied the Tribunal did not misdirect itself in respectof the duration of any condition of practice it could impose or on its relevance topenalty.Did the Tribunal fail to give appropriate weight to the wider public interest inretaining the services of this dental practitioner?[93] Although this consideration is the fourth ground of appeal, I consider it next asit is relevant to the last ground of appeal which is whether, in all the circumstances,the Tribunal's decision to cancel registration was excessive or unreasonable.[94] There was evidence before the Tribunal of the shortage of dentists on the WestCoast. Furthermore, Dr Subramani gave evidence that he operated an after hoursservice and was the only emergency dentist available in the area.[95] Mr Waalkens submits that given the shortage of dentists on the West Coast, theTribunal's decision adversely affects the public on the West Coast by removingDr Subramani's ability to provide any dental services at all. This should have beentaken into account when deciding penalty.[96] Counsel for the PCC rejects the suggestion that the Tribunal failed to considerthe risk of harm to the West Coast community if cancellation was ordered. Indeed, theTribunal expressly acknowledged the submission in its decision.75 However, theTribunal concluded that the "population of the West Coast is entitled to dental care bysuitably qualified and competent dentists".76 In Mr Coates' submission, it could notsensibly be argued that a community is "harmed" by removing a dentist who wasperforming woefully below the necessary standards.Discussion[97] In my view, the public interest in maintaining dental services in anunder-serviced area like the West Coast can only sensibly be taken into account wherethe Tribunal is satisfied the practitioner in question can be rehabilitated. If so, then itis appropriate that the practitioner be assisted to return to practice, particularly in anarea where the practitioner's services are needed. However, it could never be the casethat someone be allowed to continue to practice simply to meet a shortfall where thereis no confidence that person can be rehabilitated to the point where they can delivertheir services without ongoing intensive supervision.[98] The correctness of the Tribunal's decision to put no weight on this factor reallyturns on the correctness of the Tribunal's decision that Dr Subramani was not likely tobe rehabilitated within a realistic timeframe so he could practice independently. If theTribunal's finding that Dr Subramani had no real prospect of rehabilitation is right,then it can not be criticised for ignoring the impact this would have on the level ofdental services available on the West Coast.Was the decision to cancel Dr Subramani's registration excessive orunreasonable?[99] Mr Waalkens submits that cancellation of a practitioner's registration is anorder of last resort. The Tribunal, therefore, needed to satisfy itself that the lesserpenalty of suspension would not be adequate. In advancing that argument,Mr Waalkens cites this Court's decision in Shousha v A Professional ConductCommittee where Gordon J observed:77 "Suspension (rather than cancellation) is75 At [592] and [597].76 At [606].77 Shousha v A Professional Conduct Committee, above n 7, at [135].appropriate where there is a prospect of rehabilitation and the practitioner's fitness topractice may be remedied."[100] Again, Mr Waalkens points to Dr Shand's evidence as clearly demonstrating amarked improvement and realistic prospects of rehabilitation. Furthermore,Dr Subramani himself accepts he is in no position to repeat the conduct which wassubject of the charge and has learnt a salutary lesson. Although the Tribunalacknowledged that the purpose of disciplinary proceedings is not to punish thepractitioner (albeit acknowledging it may have that effect),78 the orders made heresuggest the Tribunal was in fact punishing the practitioner.[101] Furthermore, Mr Waalkens suggests that if Dr Subramani was only ever ableto undertake dental practice on the basis of restrictions, that should not preclude himpracticing dentistry at all. Many dental practitioners practice under conditions, orvoluntary undertakings, which restrict their ability to practice.[102] Mr Waalkens also submits that too little regard was had to consistency withother cases when deciding to cancel Dr Subramani's registration. In the decision ofAladdin, Dr Aladdin had previously been the subject of findings of professionalmisconduct and had previously been suspended.79 He did not even bother to attendthe Disciplinary Tribunal hearing. Furthermore, unlike Dr Subramani's case, therewas no evidence of reassuring reports from a Council-appointed supervisor confirmingthe dentist was practicing safely. In summary, Aladdin was a much more serious casethan the present and it was unsurprising Dr Aladdin's registration was cancelled.[103] Similarly, Mr Waalkens submitted the allegations in Vatsyayann were moreserious than Dr Subramani's.80 Dr Vatsyayann had prior Tribunal findings ofprofessional misconduct. There were also findings of dishonesty on his part, notinghe had wrongly claimed capitation payments. He gave combative evidence in thehearing before the Tribunal. He was also charged with having his wife, not a healthpractitioner, undertake medical attendances on numerous occasions, despite being78 Tribunal decision, above n 1, at [620].79 Director of Proceedings v Aladdin, above n 42.80 Vatsyayann, above n 44.warned not to do this. There was also no evidence, as in this case, that he was nowpracticing satisfactorily. Again, it was unsurprising his registration was cancelled.[104] In Patel v Complaints Assessment Committee, the dental practitioner hadprevious periods of suspension and a large number of previous adverse disciplinaryfindings before his registration was finally cancelled.81[105] Finally, in Gabb, although it involved only one patient, it involved substantialand gross incompetence over a period of eight years. The practitioner was notsuspended, but simply received an order of censure and conditions on her practice.82[106] Mr Waalkens also argues the Tribunal did not adequately direct itself to theimportant principle of imposing the "least restrictive penalty" which was appropriatein the circumstances. Furthermore, this factor was wrongly influenced by a belief thatsupervision could only ever continue for three years and by ignoring the evidence ofDr Shand. In Mr Waalkens' submission, the Tribunal was wrong to cancel theappellant's registration and ought to have more carefully assessed the option ofsuspension.[107] Mr Coates, for the PCC, submits the decision to cancel Dr Subramani'sregistration was not excessive or unreasonable, but was appropriate. Mr Coatesacknowledges the issue of amenability to rehabilitation is central, pointing out that oneof the principles relating to penalty is whether the practitioner is "truly capable ofbeing rehabilitated and reintegrated into the profession".83 However, he points outthat the capacity of the practitioner to be rehabilitated is just one of the principlesrelating to penalty articulated in Roberts. The other principles, such as protection ofthe public, deterrence of others and setting of standards, pointed to a strong responseby the Tribunal.81 Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 10 August 2007.82 A Professional Conduct Committee appointed by the Dental Council of New Zealand v Gabb,above n 48.83 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5,at [47].[108] In terms of Dr Subramani's prospects of rehabilitation, the PCC submits thatthis was fully considered by the Tribunal and its decision was properly reasoned and"compelling". While Dr Subramani places great weight on Dr Shand's evidence,Mr Coates submits it had the following limitations:(a) Dr Shand did not give evidence on the matters addressed on the charge.(b) Dr Shand's observations were limited to the heavily restricted scope ofdentistry that Dr Subramani had been permitted to perform.(c) Dr Shand said that any expansion of Dr Subramani's practice to includeendodontics or crowns would need to be a managed process, withfurther education and ongoing supervision. He was not clear when, ifat all, Dr Subramani could practice without supervision.(d) Dr Subramani had two years and nine months of supervision before theevents covered by the charge. Dr Rae's evidence that Dr Subramaniperformed well under his intense supervision but that "almost straightafter" he became a different person was highly relevant. A matter ofreal concern for the Tribunal was that Dr Subramani seemed to performsatisfactorily when under close observation, but not when he waspracticing without such intense supervision.84(e) Dr Shand's evidence that Dr Subramani has demonstrated a markedimprovement needs to be considered in the context of the years offurther education and remedial action taken to get the appellant to asatisfactory standard, including completing the MRACDS programme,before the events which gave rise to the charge.[109] Mr Coates also points out that the Tribunal members had the benefit ofquestioning Dr Subramani directly and considering his responses. In particular, henotes:84 See Tribunal decision, above n 1, at [615]–[617].(a) Dr Subramani could not provide a substantive response to Dr Saliswhen he asked why Dr Subramani could not apply the MRACDSprogramme knowledge to the patients which were the subject of thecharge.(b) Dr Subramani confirmed, to Dr Ma, the wide range of exposure he hadto working with different dentists before moving to Greymouth andacknowledged that he would try to complete restoration of a toothsurface in composite resin in half an hour when he was not capable ofdoing it in that time.(c) Dr Subramani's superficial response to the question put by Dr MacKaywhether the deficiencies identified had been addressed via the intensesupervision he had been under for a long time.(d) The inadequate explanations Dr Subramani gave to Ms Kinzett'srequest to outline what he does in his practice now to ensure theshortfalls identified in the charges did not recur.(e) His inadequate responses to the numerous questions of the Chairregarding, for example, what he had learnt as a result of the charge.[110] Mr Coates says the Tribunal also heard Dr Subramani's inability to say whythe personal factors he relied on, such as cultural differences, employment issues, andconflicts with his former colleagues, went some way to explaining his misconduct.[111] In the circumstances, Mr Coates submits the Tribunal was well positioned tomake an assessment of Dr Subramani, what he learnt from the disciplinaryproceedings, and his prospects of rehabilitation. In doing that, the Tribunal acceptedthat Dr Subramani's attempts to justify his actions through the process demonstrateda lack of insight, and if he was "truly capable of being rehabilitated", there would beevidence of genuine remorse and insight.8585 At [633].[112] In substance, Mr Coates submits the Tribunal was correct to conclude thatDr Subramani's "rehabilitation" seems to be a "lifelong journey" and that "publicsafety cannot take second place to Dr Subramani's ongoing learning on the job, toachieve the level of competence expected of a graduate".86[113] Mr Coates also submits the decision to cancel is not inconsistent with othercases. In terms of the cancellation of registration in the case of Patel, Mr Coates pointsout it is significant that Dr Patel's misconduct predominantly related to his crown andbridge work.87 It was not a case where, as here, the shortfalls occurred across all areasof general dentistry. Furthermore, the High Court quashed the earlier decision tocancel Dr Patel's registration because the Dentist Disciplinary Tribunal had notexplained why it considered a penalty lesser than cancellation was not appropriate.88That is plainly not the case here. In the case of Aladdin, the charges he faced relatedto particular treatments and inadequate documentation.89 However, when the Tribunaldecided to cancel his registration, it was because it identified very serious concerns inrelation to a wide range of matters. If anything, Mr Coates submits the Tribunal'sdecision in Aladdin supports the cancellation of registration in the present case.[114] Mr Coates says the decision in Vatsyayann is not comparable.90Dr Vatsyayann's misconduct related to him enrolling fictitious patients in order toreceive capitation payments and also breaching his patients' privacy. However,Mr Coates considers the Tribunal's conclusion on the role the imposition of penaltiescould play was relevant:91 given the range of breaches raised by this charge and the depth of theunderlying issues – particularly the lack of insight – the Tribunal could notresponsibly deal with those matters by the imposition of conditions.Conditions of the kind raised in the submissions of Counsel could only bedirected to isolated issues, but would not deal with the underlying problemdisclosed by the present charge, which is that Dr Vatsyayann is not fit topractise.86 At [639].87 Patel v Complaints Assessment Committee, above n 81.88 At [34]–[35].89 Director of Proceedings v Aladdin, above n 42.90 Vatsyayann, above n 44.91 At [96].[115] Mr Coates also distinguishes the decision in Shousha.92 He submits theHigh Court quashed the Tribunal's decision to cancel primarily because the Tribunaldid not articulate why options short of cancellation would not protect the public fromharm.93 Mr Coates submits that is not the case here.[116] Mr Coates points to a further professional misconduct decision in Edwards v AProfessional Conduct Committee, where the High Court upheld the Tribunal's decisionto cancel Mr Edwards' registration as a podiatric surgeon.94 In that case, Mr Edwardsdefended his actions saying he had provided his treatment in good faith, heacknowledged there was room for improvement in his practice, and his supervisorappointed following the allegations of misconduct had provided positive supervisionreports.95 However, the High Court upheld the decision to cancel his registration.Given he had operated on a patient without consent, caused harm to three complainantsand appeared to show no remorse or contrition for his actions, Lang J concluded that"the only realistic option available to the Tribunal was to cancel Mr Edwards'registration as a podiatric surgeon".96[117] Mr Coates also submits that the case of Director of Proceedings v Dawood, isrelevant to the appropriateness of cancellation.97 Mr Dawood was a pharmacist whomade a dispensing error and then initially attempted to cover this up. While it was hisfirst appearance before the Tribunal, the Tribunal concluded it was appropriate tocancel his registration because of Mr Dawood's dishonesty and, secondly, becauserehabilitation had not been effective. The Tribunal observed:[108] Rehabilitation has not been effective. The practitioner was under thereview of the Council for the better part of 6 years. The profession'sobligations under the Act do not require indefinite supervision ormentoring of a colleague whose practices pose a risk of harm to thepublic. A penalty of cancellation under section 101(1)(a) is fair andproportionate in the circumstances.92 Shousha v A Professional Conduct Committee, above n 7.93 At [85].94 Edwards v A Professional Conduct Committee [2022] NZHC 3189.95 At [370].96 At [376].97 Director of Proceedings v Dawood 1236/Phar21/514D.[118] In conclusion, the PCC submits the admitted misconduct was serious. Itrepeatedly fell far short of expectations, and cancellation of Dr Subramani'sregistration was inevitable.Discussion[119] I start by recognising that the Tribunal properly directed itself to the principlesapplying to penalty and carefully considered each one of them in light of the factsestablished in this case. This is not a case, such as in Patel or Shousha, where thepenalty decision was quashed by the High Court partly because the Tribunal had failedto explain why lesser penalties were not imposed.[120] Furthermore, as in other cases where registration was cancelled, the range ofprofessional misconduct was extensive and had caused harm to patients. This was nota case as in the charges against Dr Gabb, where the incompetence was confined to thetreatment of one patient. Instead, this was treatment of multiple patients within acompressed period of time, where almost all forms of professional misconduct wereevident, ranging from inadequate workmanship to charging more than patients werequoted and undertaking work that did not need to be done. There was ample basis forthe Tribunal to find not just that the work Dr Subramani did was substandard, but thathe had engaged in conduct which was likely to bring discredit to the profession andwhich was unethical and amounted to malpractice.[121] I accept, however, that the decision to cancel primarily turned on whetherDr Subramani was "truly capable of being rehabilitated and reintegrated into theprofession".98 Other penalty principles, including deterrence, setting professionalstandards and punishment, can generally be achieved by penalties of censure and fines.[122] Some of the factors going to this decision have already been discussed. Asalready noted, Dr Shand's evidence was relevant, but had to be weighed against theevidence of how successful the previous period of supervision and rehabilitationtraining had been. Significantly, Dr Subramani could not explain why the extensive98 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 5,at [47].education programme involved in the MRACDS, along with over two and a half yearsof supervision, had not better equipped him to practice successfully on his own. Iagree his explanation that he was "out of his depth" was no answer. At that time, hehad been working in oral health practices for approximately 12 years and seen a rangeof dentists at work. He had also completed an extraordinary number of additionalhours of educational training. When no reason was identified for Dr Subramani stillshowing such significant shortcomings when practicing unsupervised, the Tribunalwas entitled to be sceptical about his prospects of rehabilitation.[123] The Tribunal was also entitled to be sceptical of his expressed remorse andacceptance of responsibility. In response to a question from Mr Coates about whethersome of his treatment of patients was unethical, he denied it was, and simply repeatedhis explanation he was "out of [his] depth". In response to a question from the Chairas to what he considered was the worst aspect of his conduct, he simply answered thathe had not explained the treatment clearly enough and did not space treatments out.He denied he had ever cut corners in the care provided to patients and still consideredthe reaction to his patients' complaints was "disproportionate". When questionedabout the work that was the subject of the charges, he was still prepared to defendsome of it. For example, when it was put to him he had put in too many fillings inMr and Mrs H, he denied that he had.[124] The Tribunal went on to say their members formed the view that"Dr Subramani says what he thinks one wants to hear".99 That, too, was a reason toquestion his amenability to true rehabilitation. An example of this appeared when hewas questioned on his treatment of Mr C. When Mr Coates asked him whetherDr Timmermans told him the way he treated Mr C was okay, he answered "no" and"definitely needed improvements". However, when Mr Coates then asked him whyhe had previously told the Council that Dr Timmermans had thought the treatment wasappropriate, Dr Subramani changed his answer and said Dr Timmermans did say itwas of an acceptable standard. The incongruity of these answers, side by side to thesame question, made it difficult to know which answer could be relied on.99 Tribunal decision, above n 1, at [627].[125] In summary, there was ample evidence to suggest that despite the seriousfindings against him, and the extensive education and supervision he had received,Dr Subramani demonstrated almost no insight into what was wrong with his practiceor how he could prevent these shortcomings in the future. In light of this evidence, itwas reasonable for the Tribunal to find there was no real prospect of him beingrehabilitated. The decision to cancel registration was therefore fair, reasonable andproportionate. I have come to the same conclusion having regard to the evidence andthe principles governing the imposition of penalties.[126] This ground of appeal is dismissed.Was the decision to impose a fine appropriate?[127] The second challenge to the penalty imposed by the Tribunal was a challengeto the imposition of a $10,000 fine. The Tribunal's reasoning on this was as follows:[655] The Tribunal has also decided a fine is appropriate. This reflectsDr Subramani's total disregard for the wellbeing of his patients in providingand charging for treatment that was not necessary, and embarking ontreatments such as implants that he knew or ought to have known he was notcompetent to perform. He has demonstrated that he knows what is requiredwhen he is under supervision, but once there is no oversight, he ignores thestandards expected of a reasonable dentist. The Tribunal orders him to pay afine of $10,000 under section 101(1)(e) of the Act.[128] Mr Waalkens submits the Tribunal's decision to impose a fine of $10,000 wasneither analysed nor explained and was, in all the circumstances, unreasonable.[129] He points out that in none of the cases referred to by the Tribunal where thepractitioner had his or her registration cancelled was the practitioner also fined.Furthermore, the direct financial consequences of the disciplinary proceedings onDr Subramani were significant. In supervision costs alone he had spent more than$87,000 through to February 2022, along with another $30,000 of other directfinancial expenditure or costs. There had then been continued costs of supervisionsince February 2022. Furthermore, his loss of income as a consequence of alreadyhaving been out of practice for in excess of eight months should be taken into account.No reason is given by the Tribunal for imposing a fine on top of cancellation and ontop of all the other financial consequences of the disciplinary proceedings.[130] The PCC, however, argues that the Tribunal correctly exercised its discretionunder s 101(1)(e) to impose a fine that ensures that the standards of the profession aremaintained. The scale of fines ordered by the Tribunal can range from $500 forrelatively minor offences through to $25,000 in a serious case of misconduct.Mr Coates submits that, alongside cancellation, the $10,000 fine is appropriatelypositioned at the lower to middle end of that scale. While there are cases where theHigh Court has reduced a fine because that was necessary "to maintainproportionality",100 or because the fine was "clearly out of line" with comparabledecisions,101 there is no basis for a similar conclusion here.[131] When compared with other cases, the amount of the fine was proportionate andappropriate. For example, in A Professional Conduct Committee appointed by theDental Council of New Zealand v Beer, the Tribunal imposed a fine of $7,500 and acensure as a result of Dr Beer's failure to obtain informed consent and his otherwiseunprofessional behaviour.102 The Tribunal also noted that if it were not for Dr Beer'sundertaking not to practice again, it would have given "serious consideration tocancellation".103 Similarly, in the case of Director of Proceedings v Stubbs, a surgeonwas fined $20,000, censured and conditions placed on his practice as a result of hisfailure to obtain informed consent before undertaking surgery.104[132] Here, the Tribunal considered matters relating to penalty in the round andimposed the fine to reflect Dr Subramani's "broad range of failures".105Discussion[133] In my view, the Tribunal has not clearly articulated why the penalty ofcancellation of registration was insufficient in this particular case to meet theobjectives relevant to penalty, as articulated in Roberts. The starting point must bethat cancellation of registration is inherently punitive, particularly where, as here, itoccurs part way through an individual's professional career. If cancellation of100 Harman v Director of Proceedings HC Auckland CIV-2007-404-3732, 12 March 2009 at [162].101 E v Director of Proceedings (2008) 18 PRNZ 1003 (HC) at [58].102 A Professional Conduct Committee appointed by the Dental Council of New Zealand v Beer1025/Den18/428P.103 At [30].104 Director of Proceedings v Stubbs 316/Med 09/113D.105 Tribunal decision, above n 1, at [651].registration is considered appropriate, it must then be asked whether an additionalpenalty is required to punish the practitioner, to deter others, or to reflect theseriousness of the misconduct. In my view, the need for further punishment has notbeen established in this case.[134] Furthermore, I accept Mr Waalkens' submission that in almost all the othercases referred where registration has been cancelled, no fine was imposed inaddition.106 In the case referred to by Mr Coates of Beer, Dr Beer was at the end ofhis practicing life and chose to retire. I consider in those circumstances, there wereproper reasons for imposing a penalty by way of fine to punish the practitioner and todeter others.[135] However, in the present case, I accept that cancellation of registration is, inpractical terms, a highly punitive outcome. I also accept that Dr Subramani hasincurred significant costs as a consequence of the disciplinary proceedings. It has notbeen demonstrated that the imposition of a further cost penalty is required to achieveany of the principles relating to penalty. Furthermore, in the interests of consistencywith other decisions, it does not appear that a fine has often been imposed in additionto cancellation of registration. An exception is in Dawood, where extensive dishonestywas involved, including attempting to blame a colleague for the dishonesty and whenhe had also tried to cover up his shortcomings in the past.107 While there will be caseswhere a fine is warranted in addition to cancellation of registration, here, whereDr Subramani will lose a career he has invested years of his life to train for and hasexpended significant sums on supervision, I do not consider any additional penaltywas warranted.[136] Accordingly, the penalty of a $10,000 fine is quashed.Result[137] The appeal is allowed in part. The fine of $10,000 is quashed. In all otherrespects the Tribunal's decision stands.106 No fine was imposed on Dr Vatsyayann, Dr Aladdin or Mr Edwards, but a fine of $5,000 wasimposed on Mr Dawood in addition to cancellation of registration.107 Director of Proceedings v Dawood, above n 97.Costs[138] Costs are reserved. My preliminary view is that the PCC has been successfuland is entitled to 2B costs with perhaps a modest discount to reflect the factDr Subramani has succeeded in setting aside the fine (although very little of theargument focused on this issue). If costs cannot be agreed, any application for costsmust be made within 20 working days of the date of this decision.Solicitors:Wotton + Kearney, WellingtonClaro Law, WellingtonCopy to: A H Waalkens KC, Barrister, Auckland