Gonzalez v Dental Council [2016] NZHC 2047 (31 August 2016)

Last Updated: 9 September 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-578 [2016] NZHC 2047

IN THE MATTER OF	an application for judicial review
BETWEEN	OSVALDO REYES GONZALEZ Applicant
AND	DENTAL COUNCIL Respondent

Hearing:	18 April 2016
Appearances:	R C Mark for the Applicant A K Miller and C D Boyce for the Respondent
Judgment:	31 August 2016

_{JUDGMENT OF MALLON J}

Table of contents

Introduction ....................................................................................................................................... [1] Statutory provisions .......................................................................................................................... [2] Background...................................................................................................................................... [10] Dental Council review ..................................................................................................................... [31] The current position ........................................................................................................................ [33]

Was the Dental Council’s decision unreasonable ......................................................................... [40] Approach on judicial review ......................................................................................................... [40] The NZDREX ................................................................................................................................ [41] Supervision ................................................................................................................................... [44]

_{Result ................................................................................................................................................ [59]}

GONZALEZ v DENTAL COUNCIL [2016] NZHC 2047 [31 August 2016]

Introduction

[1] Dr Gonzalez, a registered dentist, is subject to an interim suspension pursuant to an order of the Dental Council. That suspension applies pending Dr Gonzalez’s successful completion of a competence programme and passing the NZDREX examination. Dr Gonzalez applies for judicial review of the Dental Council’s decision that he is required to pass the NZDREX examination and that he is suspended from practice until he does so. He contends the Dental Council’s decision on these matters is unreasonable.

Statutory provisions

[2] The Dental Council’s decision was made under the Health Practitioners Competence Assurance Act 2003 (the Act). Protecting the health and safety of the public is the Act’s principal purpose.¹

[3] The Act provides mechanisms intended to ensure that health practitioners are competent and fit to practise their profession.² These include mechanisms for improving the competence of health practitioners and for protecting the public from health practitioners who practise below the required standard of competence.³ The “required standard of competence” is a defined term. It means “the standard of competence reasonably to be expected of a health practitioner practising within that practitioner’s scope of practice”.⁴

[4] The Dental Council is an authority appointed under the Act to regulate the profession of dentistry.⁵ Its functions include reviewing and promoting the competence of dental practitioners, setting standards of clinical competence, authorising the registration of dental practitioners and considering cases of dental

_{practitioners who may be unable to perform their required functions.}⁶

¹ _{Health Practitioners Competence Assurance Act 2003, s 3.}

² _{Section 3.}

³ _{Section 4(3) and Part 3.}

⁴ _{Section 5.}

⁵ _{Section 114.}

⁶ Section 118.

[5] If a dental practitioner has reason to believe that another dental practitioner may pose a risk of harm to the public by practising below the required standard of competence, he or she may give notice to the Dental Council.⁷ It is mandatory for an employer to notify the Dental Council whenever an employee dental practitioner resigns or is dismissed from their employment for reasons relating to incompetence.⁸

[6] The Dental Council is required to make inquiries into, and review, the competence of a dental practitioner when such a notice is received.⁹ In conducting a review, the Dental Council must consider whether, in its opinion, the practitioner’s practice of the profession meets the required standard of competence.¹⁰

[7] The Dental Council has the power to order an interim suspension of the practitioner’s practising certificate or to alter the practitioner’s scope of practice.¹¹ It may do so where the practitioner has been or is being reviewed and there are “reasonable grounds for believing that the [dental] practitioner poses a risk of serious harm to the public by practising below the required standard of competence.”¹² The interim suspension or restriction on their scope of practice ceases to have effect at the later of the completion of the review or passing any examination or assessment specified in an order under s 38(1)(c) of the Act.

[8] Section 38 of the Act sets out the orders which the Dental Council may make after conducting a review. They are as follows:

38 Orders concerning competence

(1) If, after conducting a review under section 36, the authority has reason to believe that a health practitioner fails to meet the required standard of competence, the authority must make 1 or more of the following orders:

(a) that the health practitioner undertake a competence programme:

(b) that 1 or more conditions be included in the health

_{practitioner’s scope of practice:}

⁷ _{Section 34(1).}

⁸ _{Section 34(3).}

⁹ _{Section 36(1) and (2).}

¹⁰ _{Section 36(5).}

¹¹ _{Section 39(2).}

¹² Section 39(1).

(c) that the health practitioner sit an examination or undertake an assessment specified in the order:

(d) that the health practitioner be counselled or assisted by 1 or more nominated persons.

...

[9] There is a statutory right of appeal against an order for suspension.¹³

Background

[10] Dr Gonzalez qualified as a dentist in Australia. He obtained a Bachelor of Dental Surgery from the University of Adelaide in December 1995 and practised as a dentist in Adelaide from 1996 to April 2001.¹⁴

[11] In April 2001 Dr Gonzalez’s registration was cancelled following convictions for drink driving, resisting arrest and assault of a police officer and his inaccurate account of them to the Dental Board of Australia. In 2007 he obtained re-registration in South Australia. This was granted subject to conditions. He found these conditions were too strict to enable him to obtain employment. He therefore voluntary renounced that registration in July 2009.

[12] He sought re-registration in 2011. Because he had not practised as a dentist for 10 years, he was granted registration subject to a requirement that he work under supervision. From July to September 2011 he worked as a dentist under supervision in the public service in Western Australia. From May to September 2012 he worked under supervision in Queensland. In December 2012 to February 2013 he worked under supervision in Melbourne. In February 2013 he became fully registered to practice in Australia. From then until June 2013 he continued to practice in Melbourne.

[13] In July 2013 Dr Gonzalez moved to New Zealand. At this time the Australian

Health Practitioner Regulation Agency had received a complaint about him. He did not disclose this or his previous difficulties to the New Zealand Dental Council. He

¹³ _{Secton 106(1)(d).}

14. It appears that during this period he was suspended for 12 months as a result of a conviction, possibly the same conviction that ultimately led to his registration being cancelled in April 2001.

understood it would make its own enquiries with the Australian authorities. A month later Dr Gonzalez received a letter from the Agency advising that the Australian Dental Council had decided to take no action because it considered the complaint lacked substance.

[14] On 18 July 2013 Dr Gonzalez was granted registration by the New Zealand Dental Council (pursuant to the Trans-Tasman Mutual Recognition Act 1997). From that date he worked as a dentist in Kerikeri, at the Lumino dental practice. In August

2013 he was offered the position of lead dentist and was paid a $6,000 bonus.

[15] Lumino began to receive complaints from patients about Dr Gonzalez’s treatment. These complaints reached the point where a meeting was required to address these with Dr Gonzalez. By letter dated 7 October 2013 Dr Gonzalez was advised of the concerns and a meeting to discuss them was arranged. Dr Gonzalez advised that he was resigning as he had bought a dental practice in Paihia. At the meeting Dr Gonzalez was asked to leave immediately rather than working out his three-month notice period. Dr Gonzalez commenced practising in Paihia in October

2013.

[16] In January 2014 Lumino notified the Dental Council of concerns regarding Dr Gonzalez’s practice. The Dental Council inquired into Lumino’s concerns. It appointed a Competence Review Committee (the CRC) to review Dr Gonzalez’s practice. It determined there were reasonable grounds to believe that Dr Gonzalez posed a serious risk of harm to the public by practising below the required standard of competence. It therefore made an interim order that Dr Gonzalez was required to practice under supervision until the CRC’s competence review was complete.

[17] Dr Larkin and Dr Bambery were appointed to carry out that supervision. The supervision involved a review of records provided by Dr Gonzalez on a daily basis. Dr Larkin also had regular meetings with Dr Gonzalez and provided weekly supervision reports to the Dental Council.

[18] The CRC carried out its review of Dr Gonzalez’s practice. The CRC first met with staff at Lumino in the morning of 1 May 2014. The CRC had obtained from

Lumino a folder of material concerning approximately 25 patients from whom Lumino had received complaints about Dr Gonzalez. At the meeting, the CRC had the opportunity to interview some of the patients who had complained. The CRC then visited Dr Gonzalez’s practice in Paihia. They spent the afternoon of 1 May

2014 and the morning of 2 May 2014 observing Dr Gonzalez treating a number of patients undergoing different treatments. They interviewed Dr Gonzalez in the afternoon of 2 May 2014.

[19] On 30 May 2014 the CRC alerted the Dental Council that, although it was yet to complete its final report, it had unanimously concluded that Dr Gonzalez was practising below the required standard of competence. It wished to alert the Dental Council that there were reasonable grounds to believe that Dr Gonzalez might seriously harm patients under his care even while under supervision. It noted there had been many improvements to Dr Gonzalez’s practice while he was under clinical supervision. However the CRC had concerns regarding the treatment of each of the six patients in the Paihia practice it had observed. It believed the present level of supervision was inadequate to ensure the safety of Dr Gonzalez’s patients. It recommended interim suspension of Dr Gonzalez’s practising certificate.

[20] The Dental Council considered this recommendation at meetings on 3 June and 7 July 2014. Dr Gonzalez made submissions at the 7 July meeting. The Dental Council concluded that interim suspension was the most appropriate option to ensure protection of the public pending the outcome of the competence review. The interim suspension became effective on 17 July 2014.¹⁵

[21] The CRC’s draft report was provided to the Dental Council on 14 July 2014. It was provided to Dr Gonzalez for comment. His comments were considered in finalising the report. The final report was provided to the Dental Council on 30 July

2014. The CRC’s report set out in detail the information obtained during its review.

_{It summarised its views as follows:}

¹⁵ Dr Gonzalez filed an appeal against this decision in the District Court. At a telephone conference with a District Court Judge it was agreed the appeal would be deferred until a final decision was made by the Dental Council once the competence review was complete. I understand the appeal was abandoned when this judicial review proceeding was commenced in August 2015.

Dr Gonzalez has been very cooperative with the CRC. Due to his geographic position and being the only dental practice in town he is the first call for many dental emergencies from the local community and visiting cruise ships. The CRC feels that Dr Gonzalez often treats a patient’s “tooth” (and not necessarily with a correct diagnosis) without consideration of the whole mouth or the patient. Dr Gonzalez has an incomplete understanding of many techniques and shows an inability to assess his own limits. The CRC felt that almost all aspects of dental treatment that Dr Gonzalez undertook when starting practice at Kerikeri Lumino were below the standard required. On the evidence of the case files observed and patients interviewed the CRC was left in no doubt that there was a large degree of “learning on the job.” As time progressed and questions were asked the level of note taking improved markedly however diagnosis, treatment options and actual treatment still continued to be below an acceptable standard. The movement to Paihia resulted in a similar situation but without a hygienist to look after patient’s periodontal problems and a well-educated motivated staff to question treatment options intended. The CRC noted a disproportionate number of endodontic and advanced restorative treatments compared to the total number of patients seen. Surgical procedures of a very complex and adventurous nature were undertaken instead of patients being made aware of the risks and referred.

[22] Its conclusion was as follows:

The conclusion of the CRC under section 36 of the HPCA Act is that Dr Gonzalez does not meet the required standard of competence reasonably to be expected of a dentist practising within the general scope of practice in the following areas:

Understanding current scientific dental related knowledge. With particular reference to adhesion dentistry, advanced restorative dentistry, endodontics, oral surgery, treatment planning and preventive dentistry.

Obtaining adequate patient information. With reference to a general lack of any periodontal data which meant that there was no discussion of this when options were given and limited the data for informed consent.

Analysing patient information and plan an oral health care program. Diagnosis was often not correct and tooth-based rather than whole of mouth- based. There were few evidence-based prioritised treatment plans. Options were limited as they often did not include periodontal issues or referral.

Provide or make provision for oral health care. With particular reference to restorative dentistry, advanced restorative dentistry (including crown and bridge), endodontics, periodontal management and surgery.

Know when to refer. With particular reference to endodontics, surgery and pain diagnosis.

[23] Its recommendation was as follows:

The CRC believes that the present level of supervision for Dr Gonzalez is inadequate to provide the required level of safety for his patients. The CRC

is of the opinion that even with this supervision there are reasonable grounds to believe that Dr Gonzalez may seriously harm one or more patients under his care. For this reason the CRC recommend that Dr Gonzalez complete the final two years of Dental School before commencing private practice.

[24] The Dental Council met to consider the CRC’s report on 4 August 2014. As to Dr Gonzalez’s competence, the minutes of this meeting refer to a written submission from Dr McCorkindale, a colleague of Dr Gonzalez. They had known each other for 10 months. Dr McCorkindale disputed there was evidence to support the view that Dr Gonzalez may pose a risk of harm to the public. The Dental Council considered that Dr McCorkindale had very little experience in seeing Dr Gonzalez practise and did not have substantive knowledge of his standard of competence. It also considered Dr Gonzalez’s written submissions, Dr Larkin’s supervision reports, the Lumino notification and the CRC final report. The Dental Council’s unanimous view was that Dr Gonzalez failed to meet the required standard of competence. The extent of Dr Gonzalez’s competence deficit was regarded as “significant, occurring across the range of general dental practice”.

[25] As to the remediation alternatives under the Act, the minutes record that:

(a) The Dental Council was mindful the remediation needed to be achievable.

(b) Dr Gonzalez required educative learning and clinical training. The learning programme needed to be broad and all-encompassing.

(c) Inquiries with the Dean of the University of Otago’s school of dentistry indicated the CRC’s recommendation that Dr Gonzalez complete the final two years of the Bachelor of Dental Surgery programme was not achievable. The dental school did not have the capacity or desire to accept Dr Gonzalez into its fourth and fifth year degree programme.

(d) The Dental Council considered Dr Gonzalez’s submission that he complete the University of Otago Bridging Programme and/or the Postgraduate Diploma in Clinical Dentistry (Restorative Dentistry). It

		considered these programmes would not achieve the level of learning required.
	(e)	The Dental Council considered it did not have the capability to establish a tailor-made programme for Dr Gonzalez given the CRC’s
		recommendation that the learning required was vast and all- encompassing.
	(f)	Given the need for Dr Gonzalez to have clinical instruction during his remediation, inquiries had been made with the Northland District
		Health Board’s clinical director as to whether there was potential to offer a supervised remedial work placement. The clinical director
		considered this would not be compatible with his organisation’s mission and values.
[26]	The	Dental Council concluded that Dr Gonzalez could undertake a

programme of learning of his choice. The programme would need to include educative study and clinical instruction and cover the broad range of dental practice. The Dental Council would need to approve the programme. On completion of the programme, Dr Gonzalez would be required to demonstrate his competence by passing all components of the NZDREX exam. In reaching this conclusion it was acknowledged the process would not be rapid. Dr Gonzalez would need to achieve substantial learning and the period of time involved with this was necessary and would be valuable to him.

[27] The Dental Council then considered whether the safety of the public could be protected with measures other than suspension of Dr Gonzalez’s practising certificate. It did not favour restricting his scope of practice as to the tasks he could perform because his shortcomings were vast. It also did not favour imposing a condition that he practise only under the direct supervision of a registered dentist given his extensive shortcomings. It unanimously agreed public safety was best served by continuing Dr Gonzalez’s suspension until he had passed the NZDREX and “thereby demonstrated he had achieved the required standard of competence.”

[28] The Dental Council advised Dr Gonzalez of its decision by letter dated 8

August 2014. This letter advised Dr Gonzalez that he would be required to undertake an approved competence programme (incorporating educational study and clinical practice, covering all aspects of general dental practice, and equivalent to a one-year full-time academic programme) and to sit and pass the NZDREX. It also advised Dr Gonzalez of the proposal to suspend his practising certificate and that he had the opportunity to make submissions and be heard on that matter.

[29] Dr Gonzalez responded with submissions by letter dated 25 August 2014. These submissions set out in detail Dr Gonzalez’s response to each of the patients which the CRC had reported on. He submitted the public could be protected by limiting his scope of practice or having direct supervision, such as by Dr Larkin, and obtaining periodic reports from dentists who worked at his Paihia clinic. He noted he had recruited a dentist who would be shortly commencing work at his Paihia practice. He could learn from this Dentist, exchange knowledge and fill gaps. He asked that the Council allow him to do some work in dentistry. Without work he would not be able pay for the course and examination the Council was requiring him to do.

[30] The Dental Council met on 1 September 2014 to consider Dr Gonzalez’s response. It remained of the view that alternative options to suspension would not afford the necessary level of protection to ensure patient safety given his extensive shortcomings. Dr Gonzalez was advised of this decision by letter dated 4 September

2014.

Dental Council review

[31] On 29 October 2014 counsel for Dr Gonzalez set out a proposal for potentially resolving his appeal against the decision to suspend him (brought following the interim suspension decision).¹⁶ It was submitted that if Dr Gonzalez was able to find work in a larger dental practice he could be subject to ongoing daily supervision. This would be advantageous to his remediation. It would also provide him with an income source. It was also proposed that Dr Gonzalez should not have

to pass the NZDREX because the competency programme he was required to complete involved training and examinations, and the NZDREX was an additional and unnecessary expense.

[32] The Dental Council received legal advice that it was not required to reconsider its decision but it could do so if it wished in light of the appeal which Dr Gonzalez had brought. The Dental Council met by telephone conference on 18

November 2014 to discuss the proposal from Dr Gonzalez. It was noted that Dr Gonzalez was waiting to hear if he had been accepted to the postgraduate diploma in clinical dentistry programme (discussed below). The Dental Council remained “firmly of the view” that a different decision was not justified on the basis of the information received. Its decision to suspend Dr Gonzalez was based on the depth and breadth of Dr Gonzalez’s shortcomings in competence. The competence programme would enhance his learning and ultimately prepare him for the NZDREX. His competence was regarded as being below the standard of a graduating dentist in New Zealand. The NZDREX was an appropriate way to measure his competence following the programme. While it could take two or more years for Dr Gonzalez to complete the competence programme and the NZDREX, Dr Gonzalez would likely have options for earning an income other than practising dentistry.

The current position

[33] Dr Gonzalez researched the courses available in Australia and New Zealand which might satisfy the Dental Council’s requirements. The one course which Dr Gonzalez considered might satisfy those requirements was the postgraduate diploma in clinical dentistry at the University of Otago.¹⁷ The Dental Council confirmed this would meet their competence programme requirement.

[34] Dr Gonzalez had previously applied to do this course to improve his knowledge and skill and to make connections. His first application was declined on

26 November 2013. He applied again the following year. That application was

declined on 18 December 2014. He applied again in 2015. That application was accepted for the 2016 academic year. He is currently undertaking this course.

[35] The course is full time. He attends the University of Otago Dental School from 9 am to 5 pm Monday to Friday. This involves the clinical treatment of patients. He sees patients who come into the clinic. He diagnoses the problem and decides what treatment is required. This is checked with the supervisor. He then carries out treatment under supervision. There are two examinations, one in the middle of the year and the other at the end of the year. Dr Gonzalez will complete the course in December 2016.

[36] The convenor of the course provided a letter in support of Dr Gonzalez’s application in this Court for judicial review. The letter is dated 7 April 2016. The course convenor advises that during the first three months of the course Dr Gonzalez has “demonstrated satisfactory theoretical and clinical skills required for clinical dentistry.” The letter advises that Dr Gonzalez was first required to demonstrate satisfactory restorative dental work on a manikin. He did so, and now most of his course work would involve treating patients. His clinical examinations, diagnosis, treatment plan formulation and restorative work had all been satisfactory. No difficulties had been encountered so far and the course convenor believed Dr Gonzalez would be able to complete the course satisfactorily. Dr Gonzalez was also pleasant and punctual and got along with the staff in the clinics.

[37] The enrolment fee for the course is $35,319. Dr Gonzalez received a student loan to fund the course fees and some of his living expenses. He works at nights and in the weekends to pay the balance of his living expenses. He has found it very challenging financially to complete the course.

[38] The NZDREX is an examination for dentists who have gained their qualifications in countries that New Zealand does not recognise as having training equivalent to that in New Zealand. The fee of the NZDREX is $7,440.20. Dr Gonzalez understands a student loan is not available to fund this. There is no course or training leading up to the NZDREX examination. There are three parts to the examination. The first part covers fundamental knowledge. That examination

can be undertaken in February 2017. The examinations on the other two parts can be undertaken in June 2017. There are other available examination dates later in the year.

[39] Dr Gonzalez is concerned that he will not be in a position to undertake the first examination in February, and in which case he would not be ready to undertake the other two examinations in June. Considerable study is required to pass the examinations. Realistically he believes he will not be able to pass the NZDREX until the end of next year.

Was the Dental Council’s decision unreasonable

Approach on judicial review

[40] The Dental Council’s decision is challenged on the ground that it is unreasonable. In this context a decision is unreasonable if a reasonable decision maker in the position of the Dental Council could not have made the decision it did.¹⁸ Deference to the opinion of the Dental Council on matters within their area of expertise is required in approaching this question.¹⁹

The NZDREX

[41] Dr Gonzalez contends it is unreasonable and unfair to require him to sit and pass the NZDREX. He considers it is unreasonable and unfair because he is already a graduate of a dental degree which is recognised in New Zealand. The examination is intended for those who do not have a recognised qualification. The NZDREX is costly and will mean he will not be able to practice for a further year after completing the postgraduate diploma in clinical dentistry.

[42] Dr Gonzalez says the aim of the NZDREX is to provide an assessment of the dentist’s fundamental knowledge, clinical skills and judgment. He considers the postgraduate diploma he is currently undertaking has the same aim. He notes the

_{Dental Council required that he undertake a competence programme which}

¹⁸ See, for example Webster v Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129 and Waitakere City

_{Council v Lovelock [1997] 2 NZLR 385.}

19. Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [139]. See also C v Medical Council of New Zealand [2013] NZHC 825, [2013] NZAR 712 at [43].

incorporated an educational programme of study and a period of clinical practice, covered all encompassing areas of general dental practice, and was equivalent to a one year full time academic programme. The Dental Council approved the postgraduate diploma in clinical dentistry as meeting those requirements.

[43] However the Dental Council’s decision was that Dr Gonzalez needed both to undertake a course that met those requirements and to pass the NZDREX. This was in light of the CRC’s recommendation that Dr Gonzalez complete the last two years of the Bachelor of Dental Surgery degree, which was not available to Dr Gonzalez. The Dental Council reconfirmed its decision when it was reviewed in November

2014. At that time, the Dental Council was aware that the course Dr Gonzalez was intending to undertake was the postgraduate diploma he is currently undertaking. It is within the Dental Council’s expertise to determine the remedial steps which Dr Gonzalez must undertake. The Court is not well placed to second guess the Dental Council about this and accordingly should not do so. The Dental Council’s decision is explained by the need both to undertaking training (the competency programme) and to test that the necessary knowledge and skills have been acquired (the NZDREX). It has not been shown that the decision was unreasonable.

Supervision

[44] Dr Gonzalez submits the decision not to allow him to work under supervision was unreasonable. He submits it is not logical that he is allowed to treat patients under supervision as part of the competence course, but then not allowed to treat patients under supervision until he has sat and passed the NZDREX. He points out that the reports from his previous supervisors were by and large satisfactory. It would be advantageous to his continued learning if he is able to practice the skills he has learned from the competence programme rather than having a further year out of practice. He submits the Dental Council can impose the restrictions and degree of supervision it considers necessary to ensure patient safety.

[45] The Dental Council’s view was that the depth and breadth of shortcomings in Dr Gonzalez’s standard of competence was too great such that restricting his activities was “unsupportable”. For the same reason it had no confidence that

allowing Dr Gonzalez to practise under direct supervision would protect the safety of the public. It is apparent the Dental Council relied on the CRC investigation in reaching this view. The CRC’s view was that the present level of supervision was inadequate to protect the safety of his patients. That view was based on the investigation of the matters raised by Lumino and the CRC’s observations on 1 and 2

May 2014.

[46] The CRC’s report explained in detail the issues raised by the five patients interviewed at Lumino and the six patients observed at Paihia. It was within the Dental Council’s expertise to form the view that the shortcomings in Dr Gonzalez’s practice were too great to enable him to continue working while he undertook the competence programme which the Dental Council regarded as necessary. However it is also apparent the Dental Council contemplated the possibility of remediation while working in a closely supervised work place. The minutes record an approach made to the Northland District Health Board to discuss this possibility. That remediation possibility was not advanced because the Board’s clinical director did not agree to it. The minutes do not indicate that it was rejected by the Dental Council because of concerns about patient safety.

[47] The minutes also record the Dental Council considered the work place remediation possibility “given the need for Dr Gonzalez to have clinical instruction during his remediation.” The Dental Council decided instead to require Dr Gonzalez to undertake a suitable clinical programme (subject to its approval) and to pass the NZDREX. At this time, therefore, it was not known what programme Dr Gonzalez would undertake to fulfil the competency requirements. It is not apparent that any consideration was given to whether, depending on the competence programme he undertook and his performance in that programme, Dr Gonzalez might then be permitted to work as a dentist subject to restrictions and supervision while studying for the NZDREX. In other words, it is not apparent the Dental Council considered whether a staged approach to his return to dental practice might be appropriate.

[48] Additionally, insofar as the CRC’s report was based on Dr Gonzalez’s work at Lumino, that work was not carried out under restrictions or supervision. In so far as it was based on the CRC’s observations in Paihia, it appears that Dr Gonzalez was

feeling stressed by the competence review to which he was subject. Both the CRC and Dr Larkin considered Dr Gonzalez had been cooperative in the process and his performance with supervision had improved. For most of the time Dr Gonzalez was working under Dr Larkin’s supervision, Dr Gonzalez’s performance (in terms of clinical knowledge, clinical judgment, communication and professional attitude and behaviour) was regarded as satisfactory. By June 2014 Dr Gonzalez’s performance had declined in some areas, but it was not until Dr Larkin’s 14 July 2014 report that Dr Gonzalez’s performance was regarded as being “unsatisfactory requires urgent attention” in a number of areas. Dr Larkin noted Dr Gonzalez was “obviously under a lot of stress” at this time.

[49] There was also information before the Dental Council that Dr Gonzalez had some level of competence. For example, Dr Larkin provided a report summarising his supervision for the three month period between 15 March and 13 June 2014. In that report Dr Larkin described Dr Gonzalez as showing a consistent technical competence in his work. This view was entitled to some weight given that Dr Larkin had attended Dr Gonzalez’s practice for 30 hours. For some of this time Dr Larkin was in Dr Gonzalez’s surgery with patients present. Mostly he was in an adjacent area where he could see and hear what was happening. Dr Larkin also had lengthy discussions with Dr Gonzalez as well.

[50] The concerns raised by Dr Larkin were in the following areas. First, Dr Larkin had detected deficiencies in Dr Gonzalez’s diagnosis and treatment on three occasions and there had been several instances of charting errors. These continued to occur after Dr Larkin had pointed them out, which could lead to errors in treatment. Secondly, he felt Dr Gonzalez was ambitious in tackling procedures in an isolated rural practice which may be better referred to specialists. Dr Larkin also commented in his 30 June 2014 report that Dr Gonzalez had “demonstrated an improved awareness of his deficiencies in diagnosis and treatment planning and ha[d] shown a willingness to participate in continuing education in this area.” Dr Larkin further noted that Dr Gonzalez was willing to accept a restricted practice and that “post operative xrays of completed RCT (multi-rooted) were competently accomplished and patients were satisfied with treatment”.

[51] The Dental Council also received reports about Dr Gonzalez’s performance under supervision in Australia. It had received a letter from Dr Patil who had supervised Dr Gonzalez in Melbourne. This letter described the supervision he had provided and concluded that Dr Gonzalez was “a competent practitioner and can work by himself.” It had also received a letter from Dr Raval who had worked with Dr Gonzalez in Queensland. The letter advised that Dr Gonzalez was supervised by the principal dentist. Dr Raval considered Dr Gonzalez gave good treatment and was gentle and caring.

[52] Further information was provided in Dr Gonzalez’s affidavit filed in support of his judicial review application. This affidavit attached a report from his supervisor in Queensland, Dr Molloy. The report detailed the level of supervision provided to Dr Gonzalez. Dr Molloy considered Dr Gonzalez was a capable dentist and had good skills, especially when it came to oral surgery and extractions. Some issues were encountered and Dr Molloy considered Dr Gonzalez was “best suited to working in a very structured and organised environment where systems and processes are in place to monitor the above issues.”

[53] The Dental Council cannot be criticised for not taking the letter from Dr Molloy into account, as it was not before them when it made its decision. However it does provide further support, in addition to the information from Dr Larkin, Dr Patil and Dr Raval that Dr Gonzalez did respond well to supervision even though, when the CRC observed Dr Gonzalez, his performance remained of concern. It is also clear from the CRC report that his Paihia practice presented particular issues because of its geographic isolation and it was the only dental practice in town. Dr Gonzalez’s rural practice was also an issue identified by Dr Larkin.

[54] The Chair of the Dental Council filed an affidavit in this proceeding. He said the deficiencies in Dr Gonzalez’s practise “are the worst that I have seen in my time at the Council.” He considered Dr Gonzalez’s scope of practice would need to be restricted to polishing and scaling teeth and even that would need to be under direct supervision which was not feasible in Paihia. There are dangers with affidavit

evidence from a decision maker of ex post facto justification of the decision.²⁰ The Chair’s reasoning does not appear in the minutes of the Dental Council decision or the letter to Dr Gonzalez advising him of the decision.

[55] In any event, the affidavit from the Chair does not address the issue of whether, depending on the competence programme Dr Gonzalez undertook and his performance in that programme, the Council might consider whether there was some scope for Dr Gonzalez to put his knowledge and skill into practice in a safe way while studying for the NZRDEX. Dr Gonzalez might have difficulty in obtaining work with the level of oversight the Dental Council was likely to require. But it is not clear why he should be prevented from having that opportunity. The Northland District Health Board had not been interested in circumstances where this work placement was being considered as an alternative to a competence programme, but that did not mean no suitable employer would be willing to employ Dr Gonzalez in some restricted capacity after successful completion of the competence programme.

[56] Given all of the information before the Dental Council, I consider the Dental Council ought to have considered whether Dr Gonzalez might have been permitted to work after successful completion of the competence programme in some capacity and subject to the Dental Council’s approval. The Dental Council’s decision does not address why this would not protect the safety of the public. In this limited respect the Dental Council’s decision is questionable.

[57] Counsel for the Dental Council submitted it would be open to the Council to revisit its decision in light of fresh information after Dr Gonzalez has completed the competence programme. She notes the Dental Council was prepared to reconsider the matter when invited to do so in October/November 2014.²¹ On balance I

_{consider this is the appropriate course. This is for three reasons:}

²⁰ Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR

_{1648 at [33].}

²¹ Refer [31]-[32] above.

(a) First, it is difficult for this Court to conclude the Dental Council’s decision made at the time was a decision which no reasonable decision maker in its position could have made.²²

(b) Secondly, counsel for the Dental Council considers the Council would be prepared to reconsider its decision on this aspect in light of new evidence, which could include Dr Gonzalez’s performance during the course and any specific employment proposal he is able to put forward. It would be necessary for the Dental Council to do so with an open mind and taking into account this judgment.²³

(c) Thirdly, the Dental Council’s decision is better reconsidered at the time of and in light of the new evidence. Any reconsideration at this time is likely to be premature.

[58] I conclude that, while the Dental Council’s decision may have been overly cautious in preventing Dr Gonzalez from any form of practice following the successful completion of the competence programme, I am not satisfied it was unreasonable in a judicial review sense. I am satisfied that the Dental Council is likely to be willing to reconsider its decision on this aspect afresh in light of new information that is presented to it after the competence programme has been completed. If it does not do so Dr Gonzalez can pursue his rights arising out of that.

Result

[59] Dr Gonzalez’s application for judicial review is therefore dismissed. As he is subject to a grant of legal aid no order for costs is appropriate. Had that not been the case, there would have been no basis for any order in excess of 2B costs. Arguably there would have been a case reduced costs, given the question mark over one aspect of the Dental Council’s decision.

_{Mallon J}

22. If I am to direct a reconsideration of this aspect of the decision it is first necessary that I be satisfied that Dr Gonzalez has established his ground of review: Judicature Amendment Act

1972, s 4(5). See Thames Valley Electric Power Board v NZ Forest Products Pulp and Paper

_{Ltd [1994] 2 NZLR 641 (CA) at 647-648.}

²³ And in particular [55]-[56].