Court sets aside dentist's suspension

A DENTIST who was sanctioned by the Dental Council for breaching its regulations and advisories against advertising has won his appeal against the decision.

Dr Dion Koonoolal was found guilty of unprofessional conduct in June last year.

He was suspended from practice for two weeks or until he removed the offending material from his Facebook and Instagram pages.

Koonoolal engaged provisions of the Dental Professional Act which allowed him to appeal the council’s decision.

In a decision delivered on Thursday, Justice Carol Gobin set aside the findings of the council’s disciplinary panel and the notice of suspension, dated July 9, 2020.

She also declared him not guilty of the allegations against him and ordered the council to pay his legal costs both at the appeal and before the disciplinary panel.

Gobin said guidelines must be explicitly clear and leave no room for uncertainty.

To keep up with its regulatory and supervisory responsibility, the council appointed an investigator to monitor the websites and social media pages of dentists who would gather evidence and contact the offending professional.

The offender would be asked, if admitting to the breach, remove the offending material and would receive a non-punitive reprimand. Where guilt was denied, formal charges would be laid and sent to a panel to inquire into and make a determination. It allows informational advertising.

“The difficulty it has encountered is that in its attempt to soften its approach and to allow for some flexibility it may have just left enough room for uncertainty,” Gobin said.

"Where a breach of the advertising guidelines is intended to found a charge, in my opinion, the offensive conduct, has to be alleged with sufficient particularity and it must be established on the evidence to be for the purpose of obtaining patients or promoting the dentist’s professional advantage," she added.

In Koonoolal’s case, he was told he had breached regulations, and was reprimanded. He was accused of continued breaches on his dentistry’s Facebook account and the disciplinary process engaged.

He was found guilty of three of the four charges against him.

Gobin said before the disciplinary panel, the failure to present evidence or even the case investigator deprived Koonoolal of a fair hearing and shifted the burden of proof to him, resulting in the process being fundamentally flawed and rendering illegal all the findings which flowed from it.

“Advertising is prohibited under sections 28 and 29 of the act, but no penalty is prescribed in them. The regulations which create the offence under section 33 (g) qualifies the general prohibition against advertising.

“If it is to found a charge it must be advertising of the specific kind and with the specific purpose identified in the regulations. In other words, advertising which does not fall within the parameters of section 33 might well be actionable but it cannot constitute grounds for a charge of unprofessional conduct,” the judge held.

“If dentists are prohibited from crossing a line, the line must be clear.”

On the allegation Koonoolal breached regulations by “offering attractions or promotions” – he gave away face masks – Gobin said the council could not be genuinely concerned that because of this, patients would go to his practice for anything other than the masks.

“The giveaway of masks early on in the pandemic demonstrated Dr Koonoolal’s generosity and I daresay foresight. His actions did not fall within the council’s definition of a prohibited promotion.”

He was also accused of posting promotional material relating to his practice – he kept photos of his booth at a health fair in 2018 on his pages and photos of a celebrity visiting his practice.

“The finding that the posting of a celebrity visit is permissible and posting of a picture of a health fair booth is not, is in my opinion irreconcilable. There is no evidence on the face of the photograph of the health fair booth of puffery or flamboyancy.”

In her ruling, Gobin pointed out the original regulations governing dental practice were effected in 1982, well before legislators, or the council, contemplated the modernisation of technology which allows for dissemination of information on the Internet, or the development of social media.

“Not very much if anything is considered private or indeed mundane. Every human experience no matter how ordinary and every thought in our digital culture is routinely documented, videoed, shared and ‘reviewed’ on platforms and chats with any and everyone who cares to access a forum,” she said.

Admitting “we are all steeped in it,” Gobin said the benefit of this type of connectivity, particularly in the time of the covid19 pandemic, could not be overstated.

“It has provided human contact, connections and comfort and has spared us the worst effects of the unnatural isolation that the covid19 virus has inflicted. It has contributed to our very survival.”

However, she acknowledged this culture posed serious challenges for regulators, such as the council, which are statutorily bound to apply and enforce “anachronistic” rules.

Gobin said digital platforms were now used by dentists to communicate with clients, allowing them to receive feedback, and inform about services or events.

“This new method of communicating assists in building and maintaining a relationship with their client base in what has no doubt become a commercially competitive business environment for dentists.

“There is nothing inherently objectionable in this but the potential for abuse is real. Digital spaces afford opportunities for dentists who wish to unfairly advertise and promote their practices and services and products to believe that they can do so with impunity.”

She said it was important to remember that while prohibitions against advertising were aimed primarily protecting the public, regulations also served to promote the dignity and reputation of the profession.

At the hearing, the council submitted it has become increasingly concerned about the issue of advertising in the digital age.

In her orders, Gobin granted a 14-day stay of execution.

Koonoolal was represented by attorney Christopher Seuichand. Anthony Vieira, Anil Maraj and Nicole de Verteuil-Milne represented the Dental Council.