Conduct: Dental practitioner + Covid-19 failure to quarantine.

Dental Board of Australia v Nairn [2022] WASAT 86 (on JADE).

With thanks to Enore Panetta for noting this matter., where a dental practitioner had been convicted of offences under the Emergency Management Act 2005 (WA) for failing to self quarantine during the Covid-19 pandemic. That failure appears to have followed periods of interstate travel (see [68]). That failure also appears to have given rise to prosecution and a period of imprisonment (see [43]). The Tribunal suspended the dentist’s registration for 7 months with a period of mentoring to follow thereafter.

At [50] the Tribunal noted the following in relation to Dr Nairn, the respondent’s failure to quarantine.

On six separate occasions during May 2020 – namely on 21, 22, 25, 27, 28 and 29 May 2020 – Dr Nairn left the Respondent’s residence in breach of the first direction, and treated patients, and in doing so, also acted in breach of the Code of Conduct. On another occasion, on 17 June 2020, she left the Respondent’s residence in breach of the second direction, and treated patients, and in doing so, acted in breach of the Code of Conduct. On a further occasion, on 18 June 2020, she left the Respondent’s residence in breach of the second direction, and treated patients, and subsequently misled police officers when she participated in a record of interview later that evening (in so far as she claimed to have complied with the first direction), and in doing so, acted in breach of the Code of Conduct.

On the issue of infection (or the lack thereof), the Tribunal said at [54]:

….We are mindful that, as events transpired, Dr Nairn did not, in fact, have  COVID-19, nor did she infect any of her patients.  However, at the time Dr Nairn engaged in the Conduct, there was nevertheless a risk that she may have contracted COVID-19 during her interstate travel, and if that had occurred, there was a risk that she could also infect her patients with COVID-19.  It was in that way that the Conduct posed a potential risk to the health of Dr Nairn’s patients.  We find that, at the time, that was a not insignificant potential risk, having regard to the number of patients involved (41 in total); the fact that the potential risk was not confined to Dr Nairn’s patients, but extended to each of the people with whom those patients might come in contact; and to the fact that when Dr Nairn engaged in the Conduct, the body of scientific and public health knowledge of the health risks of COVID-19 was still developing, and no COVID-19 vaccine was available to the Australian public.

On the issue of remorse, the Tribunal commented on a radio interview and a Go Fund Me statement, saying at [95] – [96}.

Viewed in isolation, the comments made by Dr Nairn in the Radio Interview might be characterised as thoughtless or careless agreement with the questions of an interviewer who was clearly prosecuting an agenda of opposition to the government’s COVID-19 response. However, the same cannot be said for the Go Fund Me Statement, which was prepared very shortly after the Radio Interview. There was nothing to suggest that the Go Fund Me Statement reflected anything but Dr Nairn’s own view of her situation. The contents of the Go Fund Me Statement suggest a complete lack of appreciation, on Dr Nairn’s part, of the seriousness of the Conduct and what was expected of her as a dental practitioner. Consequently, we find that at the time she participated in the Radio Interview and prepared the Go Fund Me Statement, Dr Nairn did not demonstrate an appreciation of the seriousness of the Conduct, and of why the Conduct constituted a substantial departure from the conduct that would reasonably be expected of a dentist of an equivalent level of training or experience.

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