Level 13, 2-6 Gilmer Terrace, Wellington 6011 PO Box 10509, The Terrace, Wellington 6143, New Zealand

Telephone: 64 4 381 6816 Facsimile: 64 4 381 6770 Email: gfraser@hpdt.org.nz Website: www.hpdt.org.nz

HPDT No. 888/Den16/368P

UNDER the Health Practitioners Competence Assurance Act

2003 (the Act)

IN THE MATTER of a disciplinary Charge laid against a health practitioner

under Part 4 of the Act

BETWEEN A PROFESSIONAL CONDUCT COMMITTEE

appointed by THE DENTAL COUNCIL OF NEW

ZEALAND

Applicant

AND DAVID LYALL EDWIN ZIMMERMAN of

Auckland, Dentist

Practitioner HEARING held at Auckland on 3 – 6 April 2017

TRIBUNAL: Mr D M Carden (Chair)

Dr R East, Dr S Salis, Ms N Stent and Mr J Lee (Members)

Ms G Fraser (Executive Officer)

Ms K O’Brien (Stenographer)

APPEARANCES: Ms A Miller for the Professional Conduct Committee

Dr D L E Zimmerman, the practitioner, in person

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CONTENTS

Introduction .................................................................................................................... 3

The Charge and hearing ................................................................................................. 3

Background .................................................................................................................... 6

The Charge – the parties’ position – general ............................................................... 10

Dr Zimmerman’s position .................................................................................... 13

Charge - general - discussion ............................................................................... 15

Particular No 1 – Ms S ................................................................................................. 19

Discussion ............................................................................................................ 21

Particular No 2 – Master N .......................................................................................... 23

Discussion ............................................................................................................ 26

Particular No 3 – Master O .......................................................................................... 27

Discussion ............................................................................................................ 28

Particular No 4 – Master E ........................................................................................... 29

Particular No 5 – Miss Y ............................................................................................. 31

Disciplinary sanction ................................................................................................... 33

Penalty .......................................................................................................................... 33

Penalty – discussion ..................................................................................................... 34

Costs ............................................................................................................................. 43

Names Suppression ...................................................................................................... 43

Result and orders .......................................................................................................... 44

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Introduction

1. Dr Zimmerman is a dentist who has practised in Auckland.

2. On 11 July 2014 the Dental Council of New Zealand (DCNZ) suspended Dr

Zimmerman from the practice of dentistry as at 17 July 2014. The reasons for

suspension related to Dr Zimmerman’s competence. The order for suspension

was made under section 39 of the Health Practitioners Competence Assurance

Act 2003 (the HPCA Act), the DCNZ having been satisfied that Dr Zimmerman

posed a risk of serious harm to the public by practising below the required

standard of competence.

3. Following a complaint from the Accident Compensation Corporation (ACC)

regarding concerns that Dr Zimmerman had been providing dental treatment

while suspended and also under investigation, a Professional Conduct Committee

(PCC) of the DCNZ laid a Charge against Dr Zimmerman before the Tribunal

under the HPCA Act.

4. The Charge related to the period 24 July 2014 to 2 February 2016 and alleged

performance of services forming part of the scope of practice of dentistry by Dr

Zimmerman when he knew or ought to have known that he had been so

suspended.

5. Five particulars of the Charge were given relating to different dates and periods

during that time and different allegations of alleged services in breach of the

suspension order.

6. The Charge has been found to be made out by the Tribunal and penalty orders

under the HPCA Act are made.

The Charge and hearing

7. The Charge was amended at the time of hearing without opposition from Dr

Zimmerman and the amended Charge read as follows:

“That between on or around the period 24 July 2014 and 2 February 2016

Dr Zimmerman performed services that formed part of the scope of practice

of dentistry when he knew or ought to have known that he had been

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suspended from the practice of dentistry as at 17 July 2014 by way of Order

of the Dental Council of New Zealand …”.

In particular:

1. Between on or around [ ]2014 Dr Zimmerman practised dentistry on Ms

S, including by:

(a) consulting with Ms S; and/or

(b) undertaking a detailed clinical assessment, including tests, x-rays,

tomography and an examination and impressions of her jaw; and/or

(c) diagnosing and providing treatment to Ms S for temporomandibular

joint disorder including, but not limited to, making and fitting an

appliance; and/or

2. Between on or around [ ]2015 Dr Zimmerman provided orthodontic

services to Master N, including by:

(a) consulting with Master N and his mother; and/or

(b) examining and/or monitoring the appliance he fitted on [ ] 2013 and/or

the status of Master N’s baby teeth; and/or

(c) advising Master N’s mother verbally and in writing as to the ongoing

treatment required (including the extraction of 8 teeth); and/or

(d) undertaking orthodontic services including the removal of brackets

and/or cement from Master N’s teeth; and/or

(e) undertaking x-rays; and/or

(f) advising and/or directing his colleague as to the treatment required for

Master N (including the extraction of 8 teeth) and/or managing that

treatment; and/or

3. Between on or around [ ]2015 Dr Zimmerman provided orthodontic

services to Master Master O, including by:

(a) consulting with Master O and his mother; and/or

(b) examining and/or monitoring the appliance previously fitted by him;

and/or

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(c) …

(d) taking … x-rays; and/or

(e) making and/or fitting a retainer and subsequent replacements; and/or

(f) placing Master O on an apparatus to assess his breathing and

providing and advice in that regard; and/or

(g) advising and/or directing his colleague as to the treatment required for

Master O and/or managing that treatment; and/or

4. Between on or around [ ]2016 Dr Zimmerman provided orthodontic

treatment to Master E , including by:

(a) consulting with Master E, his mother and father; and/or

(b) examining and/or monitoring the appliance fitted by him on [ ] 2014;

and/or

(c) from time to time replacing ligatures and/or archwires; and/or

undertaking other orthodontic services; and/or

(d) undertaking an x-ray, discussing the same with Master E’s father and

providing advice as to further treatment required, including the

possible extraction of teeth; and/or

(e) advising and/or directing his colleague as to the treatment required

and/or managing that treatment; and/or

(f) telephoning Master E mother to enquire about progress and to advise

as to ongoing treatment required.

5. Between on or around [ ]2015 Dr Zimmerman provided orthodontic

treatment to Miss Y, including by:

(a) consulting with Miss Y and her mother; and/or

(b) examining and/or monitoring the appliance fitted by him on [ ] 2014;

and/or

(c) from time to time replacing ligatures and/or archwires; and/or

undertaking other orthodontic services; and/or

(d) writing up clinical notes of her treatment; and/or

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(e) providing advice and/or treatment in regard to Miss Y’s breathing

difficulties and sleep related conditions and/or managing her

treatment; and/or

(f) making a retainer and/or other appliances for her.

The conduct alleged amounts to professional misconduct pursuant to section

100(1)(a) and/or 100(1)(b) of the Act.”

8. The Charge was heard over a three-day period with the PCC represented by

counsel and Dr Zimmerman representing himself. There had been an earlier

telephone conference before the hearing when an earlier date for hearing was

ordered adjourned on the basis that in the meantime Dr Zimmerman would do

what he needed to fund any legal representation costs that he needed. Evidence

was given to the Tribunal at the hearing by the individuals involved in the alleged

provision of professional services by Dr Zimmerman on the five occasions in

question with other evidence from witnesses.

9. The evidence for the PCC included two affidavits from Rachel Joy Dunbar, the

Convener of the PCC, one of which produced various documents without

challenge from Dr Zimmerman; and the other certain factual content about PCC

processes and background. Dr Dunbar was not called by the PCC to give

evidence but her affidavits were tendered and Dr Zimmerman did not seek any

opportunity to cross-examine her. Likewise, with an affidavit from Mr Mark

Anthony Charles Rodgers, the Registrar of the DCNZ, concerning

communication between the DCNZ and Dr Zimmerman regarding the interim

suspension order and producing correspondence. An affidavit from him was

tendered without objection from Dr Zimmerman who did not call for any

opportunity to cross-examine Mr Rodgers.

10. Dr Zimmerman himself gave evidence under oath and made submissions.

Background

11. Dr Zimmerman is now aged 70 years and qualified as a Bachelor of Dental

Surgery in New Zealand in 1971.

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12. At all relevant times he was practising as a general dental practitioner at Stanmore

Bay, Auckland.

13. In 2001 a complaint was made to the Health and Disability Commissioner (the

HDC) which was referred then to the DCNZ and in turn to a Complaints

Assessment Committee which expressed concern about the adequacy of Dr

Zimmerman’s patient information and records.

14. In 2005 the HDC Director of Proceedings laid a charge against Dr Zimmerman

with this Tribunal following a complaint received; and a charge of professional

misconduct was established as to two of the five alleged particulars, including

failure to keep adequate records and matters of informed consent.

15. In 2008 the DCNZ received notification from three practitioners regarding Dr

Zimmerman’s advertising where he described himself as a specialist in

craniofacial pain, temporomandibular joint disorder (TMD) and sleep disorders.

Dr Zimmerman apologised to the DCNZ and agreed to alter future advertisements

to comply.

16. In 2009 the DCNZ received notification that Dr Zimmerman was advertising his

“TMJ and Sleep Therapy Centre” and the DCNZ wrote to Dr Zimmerman

concerning this.

17. In August 2009 the DCNZ received a notification from the HDC relating to

extensive restorative work carried out by him and, following an investigation,

compensation to the patient was considered by a Peer Review Panel with findings

that Dr Zimmerman had neglected to treat his patient appropriately and the Panel

was concerned with the lack of clinical judgment shown by Dr Zimmerman.

18. In September 2009 the then Dentist Board (the Board) of the DCNZ resolved to

review Dr Zimmerman’s competence in the general dental scope of practice and

ordered supervision pending completion of a competence review. That

supervision ran from November 2009 to June 2010.

19. There were competence reviews of Dr Zimmerman’s practice in January 2010

and September 2010. On both occasions the DCNZ found that Dr Zimmerman

did not meet the required standard of competence.

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20. In August 2010 the Dentist Board of the DCNZ resolved that Dr Zimmerman’s

practice did not meet the standard of competence expected and ordered that he

undertake a competence programme focusing on 7 specific issues to include a

modular educative component and such assessments as were considered

appropriate; and until that was completed to the satisfaction of the DCNZ, Dr

Zimmerman was to practise subject to supervision.

21. After the September 2010 competence review the DCNZ made an interim order

that conditions be placed on Dr Zimmerman’s scope of practice and that an

immediate audit of his radiographic equipment be undertaken.

22. Following legal challenge, the Board met in April 2011 and made orders for Dr

Zimmerman to undertake a competence programme to include a modular

educative component (to be completed during the 2011 academic year); that

conditions be placed on his scope of practice including supervision, prohibiting

him from undertaking sleep therapy diagnosis and treatment while holding

himself out to be a registered general dental practitioner and immediate referral

of patients exhibiting signs and symptoms of sleep apnoea or sleep-disordered

breathing to an appropriate registered medical practitioner.

23. During 2014 there were both a complaint and notifications concerning three

patients of Dr Zimmerman which were referred by the HDC to the DCNZ.

Having considered submissions from Dr Zimmerman, on 7 July 2014 the DCNZ

concluded there were fundamental issues concerning Dr Zimmerman’s

competence across his practice and made an interim order suspending his

practising certificate effective from Thursday 17 July 2014.

24. By letter dated 11 July 2014 the Registrar of the DCNZ, Mr Rodgers, wrote to Dr

Zimmerman advising him accordingly including that:

“…the order of the Council takes effect on Thursday, 17 July 2014, which means you must not practice after the close of business on Wednesday, 16 July 2014.” (emphasis in original)

25. The interim suspension order made was to cease upon Dr Zimmerman’s

satisfactory completion of the competence programme he had been ordered to

undertake and complete and particularly once he had passed the assessment

ordered as part of the programme.

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26. The letter from Mr Rodgers required Dr Zimmerman to surrender his practising

certificate to the DCNZ within 14 days. The signed order of the DCNZ which

accompanied Mr Rodgers’ letter expressly referred to the order of:

“…the interim suspension of Dr David Zimmerman’s practising certificate pursuant to [the relevant section of the HPCA Act]”.

27. There was enclosed with that letter from Mr Rodgers a copy of a notice of

suspension which was also published in two local newspapers which Mr Rodgers

said was “as an additional action to safeguard the public in the area Dr

Zimmerman was practising”. That notice included the following paragraph:

“The practice of dentistry includes consulting with patients, assisting, advising or making a diagnosis, management and treatment of any condition of the orofacial complex. It also includes undertaking orthodontic services or managing conditions associated with the temporomandibular joint or sleep related issues”.

28. For varying periods between 24 July 2014 and 2 February 2016 the persons

named in particulars 2 – 5 of the Charge, Master N (Master N), Master O (Master

O), Master E (Master E), and Miss Y (Miss Y) received orthodontic services at

the dental surgery in Stanmore Bay and details of that is discussed below.

29. In [ ] 2014 Ms S (Ms S), to whom particular 1 of the Charge refers, attended Dr

Zimmerman’s surgery and had treatment from him as is detailed below.

30. On 25 May 2015 the DCNZ received a letter from the ACC advising that it had

identified concerns that Dr Zimmerman had been providing dental treatment

while suspended from practice. The client in question was Ms S.

31. On 15 June 2015 Dr Dexter Bambery (Dr Bambery), who gave evidence to the

Tribunal, visited Dr Zimmerman’s practice at the request of the DCNZ and in due

course reported to the DCNZ on his findings. His evidence is referred to in more

detail below.

32. On 19 August 2015 the DCNZ published a public notice in the local newspaper

giving notice of Dr Zimmerman’s suspension which Dr Dunbar, convener of the

PCC, understood was to protect the public by bringing the suspension to the

attention of the local community. That notice referred to the suspension lasting

until satisfactory completion by Dr Zimmerman of the requirements of the

competence programme he was ordered to undertake and expressly referred to

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matters included in the practice of dentistry. This is the notice referred to by Mr

Rodgers in his letter to Dr Zimmerman referred to in paragraph 27.

33. In August 2015 the DCNZ appointed the PCC to investigate the matter and details

of that investigation were given to the Tribunal by Dr Dunbar. That investigation

included providing Dr Zimmerman with three opportunities to meet but for

various reasons that meeting did not occur and Dr Dunbar expressed the view that

Dr Zimmerman “established a firm and repeated pattern of delay and confusion

during the process that frustrated the work of the PCC and extended the time

taken for the investigation” but Dr Dunbar said that the PCC tolerated this in the

interests of ensuring it afforded Dr Zimmerman natural justice and any frustration

from lack of co-operation was put to one side when making any determination in

this matter.

The Charge – the parties’ position – general

34. The PCC referred to the 5 individual patients to whom the Charge and its

particulars refer but also to the background to the position so far as the suspension

of Dr Zimmerman was concerned. It emphasised that the order of suspension had

been made due to concerns with Dr Zimmerman’s competence to practise. It

referred to the orders in August 2010 to complete the competence programme and

practice under supervision with the academic module to be completed during the

2011 academic year.

35. The PCC referred to the second competence review and the expanded version of

the competence programme to incorporate management of TMD patients and

referrals from registered medical practitioners, again with completion of the

programme during the 2011 academic year. It referred to conditions imposed in

March 2011 prohibiting the undertaking of sleep therapy diagnosis by Dr

Zimmerman whilst holding himself out as a registered dental practitioner; and the

fact that by April 2014 Dr Zimmerman had completed only 1 of the 6 modules of

the competence programme and had not adhered to the supervision requirements

set by the DCNZ.

36. The PCC relied on the evidence of Dr Bambery from his 15 June 2015 visit. Dr

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Bambery in his evidence said that during the visit (when there were none of the 5

individual patients to which the Charge refers present) certain dental work was

being done by Dr Barry Pickens (another dental practitioner at the surgery to

whom reference will be made). Dr Bambery said that he observed Dr

Zimmerman in a chairside role being gloved and in the traditional position of a

chairside assistant with direct vision of what was happening in the mouth. He

said he saw Dr Zimmerman go into the store-room and bring an appliance for the

patient to put in his mouth, carrying it on a paper towel. When 5 minutes later

the patient came back complaining about the fit, Dr Bambery said that Dr

Zimmerman got Dr Pickens to make adjustments.

37. Dr Bambery said that during his visit Dr Zimmerman agreed that he:

37.1. Answered the telephone and discussed treatment options.

37.2. Discussed at length his orthodontic philosophy with patients without

examination, free of charge.

37.3. Had taken radiographs.

37.4. Had taken alginate impressions.

37.5. Placed and replaced orthodontic ligatures.

37.6. Made retainers and appliances and had the patient fit them.

37.7. Discussed Temporomandibular Dysfunction with patients.

38. Dr Bambery said that as a result he concluded that Dr Zimmerman:

38.1. Continued to practise dentistry.

38.2. Believed that his activities were not dentistry as long as he refrained

from undertaking operative dentistry, exodontia, periodontal treatment,

local anaesthesia etc.

38.3. Poorly managed Ms S.

38.4. Remained a risk of serious harm to the public.

39. Dr Zimmerman was, Dr Bambery said, of the view that the only dentistry he could

not do while suspended was “restricted activities”.

40. Dr Bambery said that this was incorrect because Dr Zimmerman had been

12

suspended from the practice of dentistry in general. Dr Bambery said that the

scope of practice for general dental practice, while including restricted activities,

was much broader and referred to the Scope of Practice for General Dental

Practice issued by the DCNZ.

41. As to Ms S, Dr Bambery said that Dr Zimmerman confirmed he provided TMD

treatment to her, including carrying out tests on her and constructing an appliance

for her.

42. Dr Zimmerman told Dr Bambery that he also spoke extensively with other

patients regarding TMD.

43. Specifically in relation to TMD and sleep therapy, Dr Bambery referred to a letter

dated 5 July 2011 that he had written to Dr Zimmerman advising him that his

training and experience in the areas of TMD and sleep therapy were not

recognised by the DCNZ and that it was “imperative” that he practised within his

scope of practice; defining the role of a dentist in the letter as being

“to recognise the signs and symptoms and then to refer patients to an appropriate practitioner (with the necessary recognised training and experience) for a diagnosis and treatment options”.

44. Dr Bambery and Dr Zimmerman discussed other matters:

“I talked to [Dr Bambery] about patients in general, and there had been -- to be quite honest I can't remember the details of all of that conversation.

Q. So you discussed with him patients in general that you had seen since your suspension?

A. Yes, I did. People would come in for, say, an orthodontic consultation, and we'd sit in the waiting room and I'd say this is essentially our philosophy, this is what we do and what we try to do”.

45. Dr Bambery said that he was very clear that when he met with Dr Zimmerman on

15 June 2015 he informed him that he was doing work that fell within the scope

of practice for general dental practice, giving express examples.

46. The PCC also referred to the website for Dr Zimmerman’s practice labelled “TMJ

& Sleep Therapy Centre of Auckland” and the content of it which included

reference to Dr Zimmerman expressly. This was the position, it was said, up until

20 June 2015 and the bundle included screenshots of the website showing that as

13

at 25 May 2015 Dr Zimmerman was portrayed on the front page under the

heading “Meet Dr David” but by 22 June 2015 that had been removed. There

was nothing to indicate, it was submitted, that Dr Zimmerman was then currently

unable to practise dentistry or that there was another dentist working at the

practice.

47. Dr Zimmerman’s “Linkedin” page also referred to him as having a “spec interest

in TMD, sleep problems and orthodontics”.

48. That background evidence was relied on by the PCC as confirming the position

so far as the 5 individuals named in the Charge were concerned.

Dr Zimmerman’s position

49. Dr Zimmerman had sent, later than had been directed at a telephone conference,

a bundle of written documentation in response to the Charge. He then, at the

commencement of the hearing, produced another significant bundle of

documents. Although disquiet was expressed by the Tribunal at the extreme

lateness of this step, the Tribunal was prepared to look at the material after there

had been time for the PCC and its counsel to consider the material and make any

submission thereon.

50. Having done that, the PCC submitted that the material was completely irrelevant

to the Charge and its particulars as faced by Dr Zimmerman.

51. Having heard the submissions for the PCC, and having looked at the material

provided by Dr Zimmerman, the Tribunal concluded that the submission that the

PCC had made was correct that the issues raised by this material and by Dr

Zimmerman’s reliance on it was irrelevant to the Charge.

52. Essentially, what Dr Zimmerman had attempted to do in his written material was

outline in an extensively academic way certain theories he held on the treatment

for TMD and breathing disorders. He then addressed the three cases in question

which had formed the background to the DCNZ decision to suspend him from

practice. He sought to show from this material that his treatment of these three

patients was in order and appropriate treatment and that any criticism of the

14

treatment or the theories behind it or the suspension by the DCNZ of him because

of them were ill founded.

53. Dr Zimmerman put it to the Tribunal in this way:

“Q. What do you mean by that, what do you expect this Tribunal to find that is helpful to what you're now arguing?

A. That the background of the suspension and the outcome of that was flawed.

Q. Again, I go back to the question, do you mean flawed from a process point of view, or flawed as to content and merits?

A. On both of those, and the reason that I sat down last night and gave consideration to why have I not followed up an appeal, and the first one, opportunity to appeal, was the NZDA report and I was told by DPL, Dr Lewis, he advised that I should not appeal.

Q. So you accepted his advice and did not appeal?

A. Yes, I did”.

54. The Tribunal decided that the evidence was inadmissible for reasons given at the

time. Essentially, this was because what Dr Zimmerman was seeking to do was

challenge the propriety of the DCNZ decision for suspension. This hearing before

the Tribunal is not the proper forum for that.

55. The decision of the DCNZ to suspend Dr Zimmerman in the interim was made

under section 39 of the HPCA Act on the expressed grounds that there were

reasonable grounds for believing that he posed a risk of serious harm to the public

by practising below the required standard of competence.

56. Under section 39(3) the DCNZ could not make an order for interim suspension

unless it had given Dr Zimmerman a reasonable opportunity to make written

submissions and be heard on the question. The Tribunal has no evidence as to

57. the processes followed by the DCNZ in reaching its decision to suspend Dr

Zimmerman in the interim.

58. It is clearly expressed in section 106(1)(d) of the HPCA Act that a person,

including in this case Dr Zimmerman, may appeal to the District Court against a

decision to suspend his practising certificate. That course was open to Dr

Zimmerman to follow, that is by way of appeal; and, if he had any challenges to

processes followed by the DCNZ, he had the right to apply to the courts for

judicial review. Dr Zimmerman did not take any of those steps.

15

59. Dr Zimmerman’s material refers to “funding difficulties”. Although there may be

some sympathy with him in having difficulty in funding any legal processes

available to him, that is not an issue with which the Tribunal can properly concern

itself. Dr Zimmerman may have had entitlement to legal aid and he had rights of

appeal or judicial review process available to him which he did not pursue. It is

not for this Tribunal to gainsay what might have been the outcome of that by any

inquiry into the processes that the DCNZ followed or the propriety of the decision

it reached to suspend Dr Zimmerman in the interim because it believed he posed

a risk of serious harm to the public. If for no other reason, the DCNZ is not a

party to this proceeding and has had no notice of the challenge or the opportunity

to be heard.

60. That decision having been given to the hearing, Dr Zimmerman then proceeded

to address orally the individual particulars of the Charge brought against him. He

also made submissions at the conclusion of the evidence which are referred to

below.

61. As to the evidence which Dr Bambery gave concerning his visit to the surgery

and what he saw there, Dr Zimmerman claimed that this was “simple

entrapment”. He said that in respect of the patient in question he “simply handed

Dr Pickens the requested end-cutters” and he denied that there was any element

of direction as stated by Dr Bambery. The Tribunal does not accept the criticism

of “entrapment”. Dr Bambery was in the premises and entitled to observe what

he did. The Tribunal prefers the version of events as set out by Dr Bambery in

his evidence to that given by Dr Zimmerman on this topic, particularly given that

Dr Zimmerman did not cross-examine Dr Bambery about this at all.

Charge - general - discussion

62. The Charge against Dr Zimmerman is brought under section 100(1)(a) and (b) of

the HPCA Act, namely that he has been guilty of professional misconduct because

of any act or omission that amounts to malpractice or negligence in relation to the

scope of practice in respect of which he was registered at the time; or that has

brought, or was likely to bring discredit, to his profession.

16

63. There is no express ground for a charge of practising while under interim

suspension, unlike section 100(1)(f) and (g) which refer to failure to observe

conditions included in a scope of practice or breach of an order of this Tribunal.

64. If negligence or malpractice is alleged that must be established as behaviour

which falls seriously short of that which is to be considered acceptable and not

mere inadvertent error or oversight or even carelessness. Discredit to the

profession involves a breach of an objective standard with the question to be

asked being whether reasonable members of the public informed and with

knowledge of all the factual circumstances, could reasonably conclude that the

reputation and good standing of the profession in question was lowered by the

behaviour of the practitioner.1

65. Each individual particular of the charge must be considered either separately or

cumulatively and found to be misconduct as alleged. That does not, as noted

above, require an inquiry into the background behind the interim suspension from

practice. This background may be relevant, however, to the extent it is

established, in considering the propriety of the behaviour of the practitioner or, if

the charge is found to be made out, questions of penalty.

66. Generally speaking, where a health practitioner, in this case a dentist, has been

suspended on an interim basis from practising on the ground that he poses a risk

of serious harm to the public by practising below the required standard of

competence, it would be malpractice on his part to practise in any way at all, and

in particular in a way which had any affinity to any methods of practise and any

perceived risks therefrom which had led to his interim suspension.

67. One matter raised by Dr Zimmerman was the role played by him as contrasted

with that played by his locum, Dr Pickens. Apparently, when Dr Zimmerman

had been suspended he had Dr Pickens stand in as a locum who did dentistry work

at Dr Zimmerman’s surgery. The assessment of the Tribunal is that there was a

very vague demarcation line between work that Dr Zimmerman did and work that

Dr Pickens did in the surgery. This is evidenced by the description by Dr

Bambery as to what he observed at the surgery in the context of his visit there and

1 Collie v Nursing Council of New Zealand; [2000] NZAR 74

17

the respective involvement of Dr Zimmerman and Dr Pickens in the work being

done that day. The involvement of Dr Pickens in each of the five individual cases

to which the Charge refers will be considered separately. The Tribunal must

focus on what Dr Zimmerman has done in relation to these patients but in the

context of its assessment that the demarcation line between the two practitioners

was variable and vague.

68. Another issue raised by Dr Zimmerman during the investigation and hearing of

this matter was what he had been suspended from. He referred in his closing

submissions (but not in evidence) to his “… disquiet seen even in going to the

letterbox” and referred to emotional issues faced in clearing his letterbox. He

said in submissions that the documents he saw did not include the detail of what

was included in his suspension. Dr Zimmerman suggested that he thought this

was only a suspension from a restricted activity as described in the Health

Practitioners Competence Assurance (Restricted Activities) Order 2005 which

includes:

“2. clinical procedures involved in the insertion and maintenance of fixed and removable orthodontic or oral and maxillofacial prosthetic appliances”.

69. The Tribunal accepts the submissions from the PCC that the suspension was from

all aspects of the general dentist scope of practice. This scope of practice is

defined by the DCNZ from time to time and currently:

“involves the maintenance of health through the assessment, diagnosis, management, treatment and prevention of any disease, disorder or condition of the orofacial complex and associated structures within the scope of the practitioner’s approved education, training and competence”.

More detail is given in the relevant documents.

70. The PCC also relied on The Principles of Ethical Conduct for Oral Health

Practitioners as applicable at the time in their reference to the upholding of trust

and professional integrity and maintenance of public trust and confidence. The

Tribunal accepts that that is an additional useful guide.

71. Dr Zimmerman can have been under no misapprehension about the matter from

the letter he received from Mr Rodgers and the content of the Notice of

Suspension which was enclosed with it as recorded above. The PCC correctly

18

referred to section 156 of the HPCA Act in its reference to service by pre-paid

post to the last known place of residence or business.

72. What Dr Zimmerman was suspended from was the general scope of practice and

not just any restricted activity. As the Tribunal said in Paltridge2 the subjective

reasoning of the practitioner cannot be considered at the threshold stage (although

it will be relevant to penalty). It is also no defence to a charge of practising while

suspended for the practitioner to rely on his understanding of the extent of the

suspension. Any misunderstanding that Dr Zimmerman had about the parameters

of the work from which he was suspended form no defence to the charge or any

of its particulars. It may be taken into account in penalty to the extent that the

Tribunal accepts that this misunderstanding was genuine.

73. The Tribunal considered the question of practising while under suspension in the

case of Moon.3 In that case Dr Moon had been suspended by the DCNZ because

he had not complied with the Code of Practice for Medical Emergencies in Dental

Practice and his suspension was ordered to remain in effect until he satisfied the

requirements of the Recertification Programme on that topic. He did complete

those requirements a short time later but had practised for some 2 weeks during

that suspension. This was found by the Tribunal to have been misconduct as both

malpractice and negligence and as conduct on Dr Moon’s behalf bringing

discredit to the dental profession.

74. In Amarsee4 a pharmacist faced a raft of charges including that he had practised

while under suspension from the Pharmacy Council on one occasion. In relation

to the total situation the Tribunal said that there had been “substantial risks to

public safety and the maintenance of professional standards”. It found

that the charges, including that relating to practising while under suspension, as

amounting to professional misconduct under both sections 100(1)(a) and (b) of

the HPCA Act.

75. Cancellation of registration was also ordered in the case of Singh5 where a nurse

had been suspended for a period of 6 months for forging a prescription but on two

2 382/Med11/172P 3 536/Den12/231P 4 715/Phar14/292P 5 475/Nur12/212P

19

occasions during the period of suspension she worked as a registered nurse where

it was found that she knew or ought to have known of the suspension. There were

other particulars of the charge. The charge was found to be made out, including

that the practising while suspended was misconduct.

76. In Ranchhod,6 a doctor had been suspended for a period of two calendar months

and during that time for the last 5 days of the period he practised medicine. It

was accepted by the parties and found by the Tribunal that there was misconduct

in his having practised while suspended in that way.

Particular No 1 – Ms S

77. This particular of the Charge relates to the seven-day period between [ ] 2014 and

refers to consultation with Ms S, undertaking a detailed clinical assessment, with

specifics, and diagnosing and providing treatment to Ms S for TMD, with specific

reference to the making and fitting of an appliance.

78. Ms S is a [ ] who had two teeth removed by another dentist on [ ] 2014. Because

she had complications from that, namely that she could not open her mouth which

she understood was a “dry socket”, she consulted with Dr Zimmerman on [ ] 2014.

79. She described the advice she received from Dr Zimmerman including a temporary

resting splint with an ice block. Ms S said that Dr Zimmerman advised her to ice

her jaw and take analgesics for the pain. She said that Dr Zimmerman explained

where his surgery was located and to make an appointment if required and

referred her to some websites for information.

80. Ms S made an appointment with Dr Zimmerman on [ ]2014and, having filled out

forms concerning her medical history, previous treatment and consent, she met

with Dr Zimmerman who undertook what she described as “a thorough

assessment”, including asking about symptoms, sleep patterns and pain levels,

looking in her mouth with a probe for signs of infection, measuring the opening

of her jaw, examining and palpating her jaw, neck and shoulders, measuring her

6 410/Med10/161P

20

TMJ joint, checking her neck range of movement, taking impressions of her jaw,

and asking about her history with headaches and the like.

81. Ms S produced a tax invoice that she had been given by the Stanmore Bay Dental

Surgery which she said she obtained to make a claim against ACC. That invoice

listed various items of attention and cost and Ms S confirmed that she had had

most of the items of treatment referred to there.

82. Ms S also outlined the discussion she had had with Dr Zimmerman. On [ ] 2014

Ms S returned to get a splint fitted by Dr Zimmerman; but the splint made did not

fit so Dr Zimmerman advised Ms S, she said, that he would need to make a new

one. Dr Zimmerman took x-rays of Ms S’ mouth in his basement. Although the

clinical records make reference to Dr Pickens fitting the new appliance, Ms S said

she only ever saw Dr Zimmerman and at no time was she treated by anyone else.

83. Ms S said that she had three visits to the surgery in total, then described returning

to get the splint adjusted and refitted. Because she said that her pain was getting

worse and not better, Dr Zimmerman took another tomography/x-ray of her jaw.

84. Dr Zimmerman then suggested that Ms S consult with a specialist oral and

maxillofacial surgeon which she did. When Ms S sought to recover the cost of

her treatment from Dr Zimmerman, $2,000.00, from both Southern Cross

Insurance and ACC this was declined, in the case of ACC because Dr Zimmerman

had been suspended; and Dr Zimmerman then reimbursed Ms S that sum,

$2,000.00.

85. Evidence given to the Tribunal by Ms S on these matters was corroborated by

other documents in the bundle that was produced by Dr Dunbar. The PCC did

rely on the transcript of the interview that Ms S had had with the PCC, but the

Tribunal had the benefit of hearing her evidence direct from her.

86. Dr Zimmerman’s response to this particular came partly from evidence he gave

and partly from closing submissions. In her evidence Ms S had said:

“A. We thought – I went back to [ ], he said I had a dry socket, I Googled it, it said it takes 44 days to get better, I was in intense pain, I went back to my GP when I couldn't open my mouth, and he recommended Dr Zimmerman as a TMJ specialist with several years of experience, not a dentist, TMJ specialist to make a splint.

Q. When you saw Dr Zimmerman you saw him as a TMD specialist?

21

A. Yes, specifically for the purpose of making a splint to rest my TMJ joint”.

87. Without having asked Ms S anything about this, Dr Zimmerman said that he made

an appliance and gave it to Ms S for her to fit for herself in the nature of a

mouthguard. He also said that he handed Ms S the appropriate materials for her

to take an impression inside her mouth;

“Didn't you say earlier that you gave her something to put in her mouth for an impression?

A. Yes. Hopefully I made that clear that I put everything out for her to do, take her own impressions. And I did understand that that was probably beyond the limit or at the limit of what was so-called treatment.

……

Q. … Did you hand her the impression material and say put that in your mouth in the 23 millimetres you've got to put it in or whatever the number was?

A. Yes.

Q. Put that in and take your own impression?

A. That's it”.

88. In response to cross-examination questions, Dr Zimmerman acknowledged that

he had an appointment with Ms S for TMJ treatment and he acknowledged a

number of the things that she had said he had done for her.

89. In his closing submissions but not his sworn evidence, Dr Zimmerman explained

that Ms S was “very unwell” and that it became “apparent that she was not getting

any form of care that was of benefit”. He described the itemised account from

the Stanmore Bay surgery as “taken from a generic form” which he could not

recall having been created and that the “generic nature of the invoice is

misleading as there was some items on there which were not undertaken”. Dr

Zimmerman denied having looked into Ms S’ mouth, he denied having taken

impressions and he denied having fitted appliances.

Discussion

90. The Tribunal finds this particular of the Charge made out as misconduct both as

malpractice and as conduct bringing the profession into disrepute.

22

91. Dr Zimmerman had been suspended from practice by an order of the DCNZ. This

was because of reasonable grounds found to exist that Dr Zimmerman posed a

risk of serious harm to the public by practising below the required standard of

competence. That order remained in effect until Dr Zimmerman had satisfied the

requirements of a competence programme including the attainment of a pass.

92. This had been preceded by the Order in August 2010 for Dr Zimmerman to

complete the competence programme during the 2011 academic year and the

expanded version of the programme ordered in March 2011.

93. In March 2011 a condition had been imposed on Dr Zimmerman’s practice

prohibiting him from undertaking sleep therapy diagnosis while holding himself

out as a registered dental practitioner and for immediate referral of patients

exhibiting signs and symptoms of sleep apnoea or sleep disordered breathing to a

medical practitioner.

94. By April 2014, despite the alleged “major issues” that Dr Zimmerman referred to

as having created difficulties, namely a “Mythical student loan and the blocking

of access to the Dental School Library”, Dr Zimmerman had only completed 1 of

the 6 modules of the competence programme and had not adhered to the

supervision requirements set by the DCNZ.

95. It was in those contexts that Dr Zimmerman had consulted with Ms S as he did

and had participated in the dental treatment that was given to her. That dental

treatment was expressly because of complications arising from extractions of

teeth from Ms S’ mouth. This treatment was not only within the general scope of

practice for a dentist but was directly related to the matters referred to above for

which Dr Zimmerman had been dealt with in a professional capacity.

96. It is not for the Tribunal directly to make any findings as to whether the treatment

he gave to Ms S was of itself malpractice or conduct likely to bring discredit to

the profession as that has not been charged. The Tribunal can take the background

facts into account, however, in its assessment of the misconduct arising from Dr

Zimmerman’s having practised while under suspension.

97. Of particular concern is the significantly compromised situation that Ms S was in

when she consulted with Dr Zimmerman. When she later consulted with the

specialist oral and maxillofacial surgeon, he performed surgery for an infected

23

socket (osteomyelitis). As she described it to the Tribunal it appears that that is

how she must have presented to Dr Zimmerman but the way Dr Zimmerman

sought to deal with the matter was to create a splint for her jaw. In a pain

assessment chart completed by Ms S and produced to the Tribunal she rated her

pain at its worst in the past 24 hours as 8 out of 10. That indicates significant

distress and called for more immediate and different treatment than the creation

of a splint.

98. The Tribunal discerns that Dr Zimmerman may have been distracted by his

preoccupation with TMD and airways passage issues. Although Ms S in her

evidence to the Tribunal said that Dr Zimmerman saved her life,7 the Tribunal

does not accept that that is so and finds that what Dr Zimmerman did for Ms S

not only did not help her then situation but may have in fact placed her at greater

risk.

99. The Tribunal has no hesitation in finding this particular of the Charge made out.

As noted below, it is of sufficient severity to warrant disciplinary sanction.

Particular No 2 – Master N

100. At the time to which this particular of the Charge relates Master N was some [ ]

years old. His mother gave evidence to the Tribunal. She said that around [ ]2014

Dr Zimmerman told her that he had been suspended from practice but, she said,

he continued to treat and look after both Master N and her other son, Master O.

She said he did this either directly or through the direction of his colleague, Dr

Pickens.

101. Ms N said that when Dr Pickens did work on the boy’s teeth Dr Zimmerman was

always standing next to the boys looking in their mouths and telling Dr Pickens

what to do. She described it thus:

“Dr Pickens was the fingers and eyes doing the job, but Dr Zimmerman was the one making the decisions and telling Dr Pickens what needed to happen”.

102. Dr Zimmerman had put braces on Master N’s teeth on [ ] 2013 (before the order

for suspension had been made).

7 Transcript page 36

24

103. Ms N said that she consulted with Dr Zimmerman about Master N a couple of

times around [ ] 2014 “as there had been little progress”. She said that Dr

Zimmerman examined Master N’s teeth and advised that they would need to wait

for the baby teeth to come out before any further treatment.

104. In [ ] 2015 Master N had his bottom braces removed, which also involved the

removal of residual cement. Ms N said she was certain that it was Dr Zimmerman

and not Dr Pickens who removed the cement from Master N’s teeth; which she

remembered because Dr Zimmerman told her he was not allowed to do it but that

he was going to help Master N and take it off “because it’s not very nice to have

it left on his teeth”. Dr Zimmerman suggested in his evidence that it was the 3

brackets that he removed rather than the cement; but the Tribunal does not find

anything of significance hinges on this disparity and prefers, in any event, the

evidence of Ms N on the matter.

105. Ms N said that at the [ ] 2015 appointment Dr Zimmerman recommended that

Master N’s remaining baby teeth should be taken out but that Master N was really

reluctant to have this done. Ms N said that Dr Zimmerman explained to them the

process for the removal of teeth and that, after this was done, he would put the

braces back on Master N’s teeth at no charge. Dr Zimmerman followed this up

with written advice including:

“So I think it is time to make the decision and remove the remnants of the last few baby teeth and place bands on again”.

106. Dr Zimmerman confirmed in his evidence that he had advised Ms N to have

Master N’s teeth removed at that stage.8

107. Master N’s remaining 8 baby teeth were removed by Dr Pickens on 26 March

2015. Ms N said she spoke with Dr Zimmerman over coming months both by

telephone and in person and during those discussions Dr Zimmerman told her,

she said, that, because there were no new teeth visible, nothing could be done

other than to wait. Ms N said that Dr Zimmerman explained to her that the

treatment:

“…was not just about [Master N’s] teeth but also with his airway and breathing”.

8 Transcript page 101

25

108. Ms N said that Master N’s braces did not get put back on and that his teeth were

now as they were before he was Dr Zimmerman’s patient. She produced a letter

she had written to Dr Zimmerman and a reply in his name.

109. Dr Zimmerman did not cross-examine Ms N on the evidence she gave concerning

this.

110. In evidence, he accepted that he gave advice and he accepted that he took the

radiograph. He accepted that he was party to the discussions.9 He accepted that

he put his hands in Master N’s mouth and he said that he removed three of the

brackets.

111. In relation to the appointment book which had three separate columns headed “Dr

Pickens [Dr Pickens]”, “Russell [Dr Ward]” , and “DZ [Dr Zimmerman]”, Dr

Zimmerman said that the entries under “DZ” were not necessarily to see him but

rather indicated the spare room usages. Where there was a duplication between

entries for Dr Pickens and those for Dr Zimmerman, he said that that meant that

the two rooms were being used and Dr Pickens was able to go from one to the

other. The Tribunal simply does not accept that explanation which goes to the

heart of Dr Zimmerman’s credibility.

112. In his closing submissions Dr Zimmerman first explained that it was not clear to

him what the parameters of his suspension had been and that he was only aware

of the “truncated version”. The Tribunal does not accept this given the express

reference to the suspension order in the letter from Mr Rodgers referred to above

at paragraphs 24 and 25.

113. Dr Zimmerman acknowledged that he had taken three brackets off the teeth

(although that was in conflict with the evidence from Ms N who said that Dr

Zimmerman removed the cement, but nevertheless it was treatment). He referred

to the pain experienced by Master N and that he was suffering from this. He

acknowledged that it is “not ideal to place brackets on one so young”. He sought

to expand on his theories concerning the best treatment for night bruxing with

sleep and clenching and acknowledged that he had taken the x-rays. He denied

that he had acted as chairside “although I did for extractions”, he said. He

9 Transcript pages 129 and 130

26

submitted that what had occurred did not amount to professional misconduct as

there had been no adverse outcome, the therapy undertaken was “both applicable,

minor and reversible”, there was no directing of Dr Pickens as to what was to be

done and, to some degree, Ms N “demanded” what should occur.

Discussion

114. To the extent that there is any conflict in evidence between that of Dr Zimmerman

and that of Ms N, the Tribunal prefers the evidence of Ms N. The evidence that

Dr Zimmerman had given on this matter was ambiguous and unclear and any

evidence that he presented had not been put to Ms N in cross-examination. He

had not provided any proposed witness statement to the Tribunal or the PCC so

that it could put any matters to Ms N for response in her evidence.

115. Again, the primary focus for the Tribunal is on whether there was misconduct by

Dr Zimmerman in what he did for Master N to the extent this was in breach of

the interim suspension order that had been made (taking into account the

background context to that order).

116. On the evidence the Tribunal is quite satisfied that Dr Zimmerman had an

involvement in Master N’s treatment during the period referred to in the Charge

in each and all of the six particulars alleged, namely, that he consulted with

Master N and his mother, that he advised Ms N verbally and in writing of the on-

going treatment required, that he removed the brackets or the cement from the

teeth which was orthodontic services, that he x-rayed the teeth, and that he

advised Dr Pickens as to the treatment required and managed that treatment.

117. This is malpractice as that term is understood from the authorities and it is conduct

bringing discredit to the dentistry profession insofar as this was done in breach of

the suspension orders.

118. The Tribunal finds this particular of the Charge made out in all its sub-particulars

and, as noted below, is of sufficient severity to warrant disciplinary sanction.

27

Particular No 3 – Master O

119. The 6 sub-particulars of this particular of the Charge refer to a period from 21

August 2014 to November 2015. At that time Master O was around [ ] years of

age.

120. Again, evidence in the matter was given by Master O’s mother, Ms N. She said

that Dr Zimmerman had put braces on Master O’s teeth but could not recall the

exact date (before the period in question in the Charge).

121. She said that she was “pretty confident that it would have been” Dr Zimmerman

who examined Master O’s teeth on both [ ] 2014 and [ ] 2014 as he had done for

Master N on those dates.

122. Ms N said that Master N had his braces removed around [ ] 2015 but, because her

mother took him to that appointment, she was not able to say by whom.

123. She said that since then Master N went through about six plates as they were

flimsy and kept breaking and each time Dr Zimmerman made a new plate

downstairs and fitted it into Master N’s mouth.

124. Ms N said that towards the end of 2015 (and she was unsure exactly when) Dr

Zimmerman took an x-ray of Master N’s mouth and put him on a machine on the

computer to check his breathing, talking to them about his windpipe not being

open enough and why this was important, she said. She placed the time for this

in her interview with the PCC on 1 December 2015 at some three weeks

previously.

125. In his evidence Dr Zimmerman admitted having taken the x-ray of Master O’s

mouth; and, while initially denying the other evidence, did ultimately accept this.

Dr Zimmerman admitted having made retainers in his onsite laboratory on [ ]

2015. He referred to the taking of x-rays for comparison purposes as a “routine

procedure” and acknowledged not having asked Dr Pickens to do this. He

referred to his current radiation licence.

126. Dr Zimmerman acknowledged Master O’s “exceptionally high damage rate to

the retainers” and did not deny having made or inserted these as stated by Ms N.

28

He argued that retainers of this kind “are typically made by non-registered staff”

and it was acknowledged by the PCC that this was not regulated under the HPCA

Act.

Discussion

127. Again, to the extent that there is any conflict in evidence between that of Dr

Zimmerman and that of Ms N, the Tribunal prefers the evidence of Ms N.

128. The Tribunal accepts on the evidence that:

128.1. Dr Zimmerman consulted with Master O and his mother.

128.2. Dr Zimmerman examined and monitored the appliance previously fitted

by him.

128.3. Although the only documentary evidence10 is a computer screen shot of

appointments, the four appointments are shown as having been with Dr

Zimmerman and the Tribunal accepts the evidence of Ms N as to his

involvement in the treatment for Master O on these occasions.

129. The evidence from Ms N concerning the respective involvement of Dr

Zimmerman and Dr Pickens is mentioned above and that is accepted as fact by

the Tribunal despite Dr Zimmerman’s denial. Dr Zimmerman took x-rays of

Master O’s mouth. Dr Zimmerman made and fitted a retainer and subsequent

replacements.

130. Dr Zimmerman advised Dr Pickens to the extent of his involvement as to the

treatment required for Master O and managed that treatment.

131. The Tribunal does not accept as sufficiently established the allegations:

131.1. That Dr Zimmerman placed Master O on an apparatus to assess his

breathing or provide advice in that regard. While this would be in breach

of the suspension order, particularly as described by Mr Rodgers in his

letter to Dr Zimmerman, and although Dr Zimmerman appears to admit

this in his evidence and closing submissions, the Tribunal is not satisfied

that there is sufficient direct evidence of this having occurred.

10 Bundle page 197

29

131.2. That Dr Zimmerman directed Dr Pickens as to treatment required for

Master O. The evidence on this is unclear.

132. Apart from those two sub-particular items, the Tribunal finds this particular made

out in respect of the remaining sub-particulars. These activities related to practice

within the scope of dentistry and were in breach of the interim suspension order.

As noted below this is of sufficient severity in itself to warrant disciplinary

sanction.

Particular No 4 – Master E

133. Again, the aspect of the Charge concerning this child then aged [ ] years focuses

on what was done in the context of the suspension order and there is no charge of

misconduct in relation to the dentistry provided in itself.

134. There are 6 sub-particulars of this particular of the Charge and the Tribunal has

considered each of them.

135. Evidence was given from both of Master E’s parents, Ms L, his mother, and Mr

E, his father. Ms L described how Master E was a patient of Dr Zimmerman’s at

the Stanmore Bay Dental Surgery. He had also provided orthodontic treatment

to Master E’s brother, Master M.

136. Ms L said that Master E consulted with Dr Zimmerman for the first time on [ ]

2014 and separators were fitted on [ ] 2014, these being checked the following

week, [ ] 2014. Ms L said that on [ ] 2014 Master E had an appointment with Dr

Pickens and Dr Zimmerman was also present consulting with Dr Pickens and

chatting with him about Master E’s treatment.

137. Ms L said she took Master E back on [ ] 2014 as the bands had come off and Dr

Zimmerman “definitely replaced those”. Dr Zimmerman also took a mould of

Master M’s mouth.

138. Master E was seen again at the surgery on [ ] 2014 and was taken there by his

father, Mr E. Mr E said that Dr Zimmerman tried to find the moulds for Master

M. When Mr E mentioned that Master E’s wire was broken and he needed a new

one, Dr Zimmerman looked into Master E’s mouth, Mr E said, and told him that

another wire was not needed as his new teeth were not coming through. Mr E

said that Dr Zimmerman also took Master E downstairs to have an x-ray which

30

was printed at reception and discussed with Mr E. Mr E said he made a note of

what Dr Zimmerman had told him on the x-ray and took this home to show his

wife, Ms L. Mr E produced a copy of the x-ray to the Tribunal hearing and

referred to comments and marks on it made by Dr Zimmerman. Mr E said that

Dr Zimmerman put a cross on two molars and said these might need to be

removed and that “he would need to put in a stronger lower arch-wire to keep the

gap once the teeth were removed”. Mr E produced a note which his wife had

written containing 4 points and included notes that Mr E had himself made

following the consultation with Dr Zimmerman.

139. Ms L said that two months later on [ ] 2014 Master E was seen by Dr Pickens

who provided no explanation of what was happening. Ms L further said that on

[ ] 2015 Dr Zimmerman called her at home to inquire about progress with Master

E’s teeth and later that day Master E consulted with Dr Pickens; but that during

the appointment Dr Zimmerman “stood nearby and chatted”. When Ms L

questioned Master E’s treatment it was Dr Zimmerman, she said, who would

answer, not Dr Pickens, who did not offer any advice.

140. In evidence Dr Zimmerman said:11

“That was very similar in many ways, the wires, the teeth, the second teeth coming through were slow and father wanted to know why. So we took an x-ray, I took an x-ray, and gave some indication of that. I don't agree that I put marks on the paper. That's a very minor point in the scheme of things. But I thought they deserved some clarity on that and so I offered it. I'm trying to think. ]Master M] was quite unproblematic, routine in his orthodontics with a good result. Master E his baby teeth were very slow to come through. And I thought that I would be -- was being genuinely helpful. There was no intention to defraud or be mean or go against the Dental Council. I had no malevolence in it, that was not my wish, I wanted to get all this thing sorted and resolved. I didn't want to compound it. And the history as I've said has proven very, very problematic.

141. In his presentations, Dr Zimmerman argued that some of the evidence given by

Ms L and Mr E was not consistent with the record. One instance related to [ ]

2014 when he said there was no entries for that date but did acknowledge that the

record did show this.12 Dr Zimmerman’s other explanations in response to the

evidence given was vague and the Tribunal does not accept his allegation that

11 Transcript page 102 12 Bundle page 155

31

there were “a few too many incongruities to make certain that these assertions

are supportable”.

142. Dr Zimmerman referred to vagaries in the testimony but did concede that this was

“a judgment call” for the Tribunal.

143. The Tribunal’s judgment call on the conflicting evidence is that it prefers the

evidence of Ms L and Mr E which was clear and precise and supported by such

documentary evidence of his practice as Dr Zimmerman was able to give. It

accepts that each of the sub-particulars of Particular 4 of the Charge are made out

except as to the allegations that Dr Zimmerman “directed” Dr Pickens as to

treatment. This last item is not supported by the evidence given.

144. This particular of the Charge is made out and is of sufficient severity in itself to

warrant disciplinary sanction.

Particular No 5 – Miss Y

145. Particular No 5 of the Charge has seven sub-particulars referring to this patient

aged [ ] years at the time. Dr Zimmerman had fitted braces to Miss Y’s teeth on

[ ] 2014 and her mother confirmed that Dr Zimmerman examined and monitored

the braces for the first “couple of appointments” after [ ] 2015 which included

checking the braces and replacing wires and bands as required. Dr Zimmerman

did not deny having done this for this young lass.

146. Ms Y said that Dr Zimmerman continued to provide advice to her as to Miss Y’s

progress and said that he “would discuss with [her] the treatment [Miss Y] needed

for her sleep conditions and how this was related to the orthodontic treatment she

needed”. Ms Y did say that after the initial appointment Dr Pickens “came on

board and provided treatment to [Miss Y]”. She also said that Dr Pickens and the

other locum, Dr Russell Ward, would consult with Dr Zimmerman for a second

opinion and they would collectively agree on progress.

147. Again, Dr Zimmerman chose not to cross-examine Ms Y on matters to be given

in evidence; but he did not in his evidence deny having given assistance to Miss

Y.

148. To the extent there is any conflict between the evidence of Dr Zimmerman and

Ms Y concerning this matter, the Tribunal prefers the evidence of Ms Y. Dr

32

Zimmerman’s evidence was throughout disjointed and imprecise and appeared to

be coloured by his preoccupation with his TMD and breathing difficulties issues

and the fact that these have not been accepted by the DCNZ. That made him

appear to the Tribunal to be very defensive about the matter.

149. Not only that, but the evidence of Ms Y was not challenged by Dr Zimmerman

by cross-examination despite his having been told several times that that was what

he needed to do; and he chose not to give contrary evidence himself. Ms Y’s

evidence was amended from her original brief and that reduced the extent to

which her evidence implicated Dr Zimmerman.

150. She did describe Dr Zimmerman, however, as “chairside assistant” and she did

say that when she challenged Dr Zimmerman about local gossip that she had

heard concerning his suspension he responded to the effect that this may not

include “orthodontistry”.

151. The entries in the notes for Miss Y for the period covered by the Charge, [ ] 2014

to early [ ] 2015,13 all show the login as Dr Pickens. Some entries14 show Dr

Pickens and some show Dr Ward while the remainder show Dr Zimmerman as

the dentist providing the treatment. There is a clinical note post-dated [ ] 201415

reading “DZ [referring to Dr Zimmerman] when you write up the notes for [ ].14

– do not charge as she has paid twice in [ ] – so she will be in credit for Jan”.

That entry certainly suggests that it was Dr Zimmerman who was expected to

write up the notes for the [ ] 2014 appointment and that in itself would indicate

treatment that was anticipated that he would give M.

152. The clinical notes entry for [ ] 201516 include:

“[Ms Y] phoned wanting to know when plate will be ready –left her message that I have booked in for 5.30 pm [ ] July –asked her to confirm please She remade appt for [ ] as [Dr Zimmerman] didn’t have plate ready … “

153. In respect of the 6 sub-particulars of Particular 5 of the Charge, the Tribunal finds

all 6 made out, that is:

153.1. That Dr Zimmerman consulted with Miss Y and Ms Y.

13 Bundle pages 218 - 226 14 such as Bundle page 226 15 Bundle page 221 16 Bundle page 225

33

153.1 That he examined and monitored the appliance that had been fitted by

him on [ ] 2014.

153.2 That Dr Zimmerman replaced ligatures and archwires from time to time

and undertook other orthodontic services.

153.3 That he wrote up clinical notes of Miss Y’s treatment.

153.4 That he provided advice and treatment in regard to Miss Y’s breathing

difficulties and sleep related conditions and managed her treatment.

153.5 That he made a retainer and other appliances for her.

154 The Tribunal finds particular 5 made out as to all its sub-particulars and that this

is misconduct warranting disciplinary sanction.

Disciplinary sanction

155 It is required in any charge of misconduct brought before the Tribunal that there

are also be a finding that the particulars of the charge either separately or

cumulatively warrant disciplinary sanction for the purpose of maintaining

standards, for the protection of the public, and/or, to the extent necessary, for

punishment of the practitioner.

156 The Tribunal has no hesitation in finding that that is the case with each of the 5

particulars and each of the sub-particulars in the Charge found made out.

Primarily, the focus has been on what has been done by Dr Zimmerman in his

practice of dentistry contrary to the interim suspension order that had been made

against him, particularly in the context of his history as outlined in this decision.

157 It is only by a finding of misconduct against Dr Zimmerman in this case that

standards can be maintained in the profession and that the public, in respect of

whom the finding had earlier been made that Dr Zimmerman posed a risk of

serious harm by practising below the required standard of competence, may be

protected.

Penalty

158 The decision having been advised to the hearing submissions were then made as

to appropriate orders to be made.

34

159 Having outlined matters of principle, the PCC encouraged the Tribunal to “give

careful consideration” to the making of an order cancelling Dr Zimmerman’s

registration as a dentist and imposing conditions that must be met before he

applied for registration in the future. The PCC also sought censure and a

contribution to costs. It emphasised the relevance of the earlier suspension due

to concerns about confidence and the unsatisfactory position concerning

completion of the competence programme that had been ordered in 2011. The

PCC submitted that Dr Zimmerman knew he was suspended from practice and

showed flagrant disregard for the DCNZ’s order and the DCNZ’s concerns as to

his competence. The breach of the order, it was submitted, seriously undermined

its purpose. Reference was made to statements of principle by the Tribunal in

other decisions including references to a lack of insight and a deliberate breach

of orders.

160 The conditions suggested to be ordered on any application for restoration referred

to undertaking a specific course of education or training to satisfy the DCNZ of

Dr Zimmerman’s competence to practise and his understanding of his

professional obligations as a registered health professional.

161 In his submissions, Dr Zimmerman referred first to the difficulties he had had in

meeting the conditions imposed by the DCNZ as preconditions to the conclusion

of his suspension. He referred to his stupidity and the emotions involved. He

said that, although he is now 70 years of age, he loves his professional work and

wishes to continue doing it. He gave some detail of his means.

Penalty – discussion

162 The available penalties for the Tribunal are17:

162.1 That registration be cancelled.

162.2 That registration be suspended for a period not exceeding 3 years.

162.3 That the health practitioner be required, after commencing practice

following the date of the order, for a period not exceeding 3 years, to

17 Section 101 of the HPCA Act

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practise his or her profession only in accordance with any conditions as

to employment, supervision, or otherwise specified.

162.4 Censure.

162.5 A fine of up to $30,000.00 (but not if he or she has been convicted of a

relevant offence or damages have been awarded against him or her – not

the case here).

162.6 Costs.

163 The eight factors normally taken into account on the basis of authorities18 are:

163.1 What penalty most appropriately protects the public

163.2 The important role of setting professional standards.

163.3 A punitive function.

163.4 Rehabilitation of the health professional.

163.5 That any penalty imposed is comparable to other penalties imposed upon

health professionals in similar circumstances.

163.6 Assessing the health practitioner’s behaviour against the spectrum of

sentencing options that are available and trying to ensure that the

maximum penalties are reserved for the worst offenders.

163.7 An endeavour to impose a penalty that is the least restrictive that can

reasonably be imposed in the circumstances.

163.8 Whether the penalty proposed is fair, reasonable and proportionate in the

circumstances presented.

164 In A v Professional Conduct Committee19 the High Court, having considered the

range of sanctions available to the Tribunal, cited with approval the decision in

Taylor v The General Medical Council20 and said that four points could be

expressly and a fifth impliedly derived from the authorities namely:

18 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC

3354; Katamat v PCC [2012] NZHC 1633 at paragraph 49 and Joseph v PCC; [2013] NZHC 1131 at [65] – [66]; Singh v Director of Proceedings, [2014] NZHC 2848 (esp. paragraphs [56] – [60] and [66])

19 [2008] NZHC 1387; Auckland HC; 5/9/08; Keane J para 81 20 [1990] 2 All ER 263

36

“First, the primary purpose of cancelling or suspending registration is to protect the public, but that ‘inevitably imports some punitive element’. Secondly, to cancel is more punitive than to suspend and the choice between the two turns on what is proportionate. Thirdly, to suspend implies the conclusion that cancellation would have been disproportionate. Fourthly, suspension is most apt where there is ‘some condition affecting the practitioner’s fitness to practise which may or may not be amenable to cure’. Fifthly, and perhaps only implicitly, suspension ought not to be imposed simply to punish.”

165 The Court went on:21

“Finally, the Tribunal cannot ignore the rehabilitation of the practitioner: B v B (HC Auckland, HC 4/92, 6 April 1993) Blanchard J. Moreover, as was said in Giele v The General Medical Council [2005] EWHC 2143, though ‘… the maintenance of public confidence … must outweigh the interests of the individual doctor’, that is not absolute – ‘the existence of the public interest in not ending the career of a competent doctor will play a part.’

166 The Tribunal also takes account of the remarks of Randerson J in Patel v Dentists

Disciplinary Tribunal.22 That case involved an appeal by a dentist whose name

had been removed from the register by the Dentists Disciplinary Tribunal in

relation to Charges arising from his treatment of an elderly couple for whom he

carried out crown and bridge work, accepted by the Court as being “…grossly

incompetent and completely unacceptable.”23

167 In discussing the purpose of disciplinary proceedings, the Court said:

“[28] The Dentists Act does not provide any guidance on this subject but I am satisfied that the following statement of principle by Eichelbaum CJ in Dentice v Valuers Registration Board [1992] 1 NZLR 720, 724-725 is apposite in this case:

Although, in respect of different professions, the nature of the unprofessional or incompetent conduct which will attract disciplinary charges is variously described, there is a common thread of scope and purpose. Such provisions exist to enforce a high standard of propriety and professional conduct; to ensure that no person unfitted because of his or her conduct should be allowed to practise the profession in question; to protect both the public and the profession itself against persons unfit to practise; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them; see, generally, Re A Medical Practitioner [1959] NZLR 784 at pp 800, 802, 805 and 814. In New Zealand, such provisions exist in respect of

21 Para 82 22 Auckland HC; AP 77/02; 8/10/02; 23 Paragraph 32

37

medical practitioners, barristers and solicitors, dentists, architects, pharmacists, real estate agents and a number of other professions and callings, as well as valuers; …

[29] In the light of those general purposes, it is also relevant to consider the purpose of the removal of a practitioner’s name from a professional register. There is authority for the proposition that removal from a professional register has a protective purpose and is not designed to punish the professional concerned: Re A Medical Practitioner [1995] 2 QBR 154, 164. Plainly, removal from the register does serve to protect the public but it also serves the function identified in Dentice of maintaining professional standards and maintaining public confidence in the standing of the profession. It also acts as a deterrent to the individual concerned and others in the profession.

[30] The consequences of removal from a professional register are ordinarily severe and the task of the Tribunal is to balance the nature and gravity of the offences and their bearing on the dentist’s fitness to practise against the need for removal and its consequences to the individual: Dad v General Dental Council at 1543. As the Privy Council further observed:

Such consequences can properly be regarded as inevitable where the nature or gravity of the offence indicates that a dentist is unfit to practise, that rehabilitation is unlikely and that he must be suspended or have his name erased from the register. In cases of that kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of the penalty to the individual.

[31] I respectfully adopt the observations of the Privy Council and would add that it is incumbent on the Tribunal to consider carefully the alternatives available to it short of removal and to explain why the lesser options have not been adopted in the circumstances of the case. As well, while absolute consistency is something of a pipe dream, and cases are necessarily fact dependent, some regard must be had to maintaining reasonable consistency with other cases. That is necessary to maintain the credibility of the Tribunal as well as the confidence of the profession and the public at large.”

168 In PCC v Martin,24 Gendall J stated that although the cancellation of a

practitioner’s registration had a punitive effect, that is not why the order should

be made. At paragraph 23 he said:

“It was made for the primary purpose of protecting the public and community by upholding proper professional standards, deterrence (both specific and general), ensuring only those who are fit in the widest sense, to practise are given that privilege.”

169 The Tribunal should not order cancellation of Dr Zimmerman’s registration if

24 27 February 2007, High Court Wellington CIV-2006-485-146

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there are other ways in which the matter can be adequately dealt with. It is

essential that there be proportionality in considering the different competing

factors. The important factors are protecting the public and maintaining standards

in the profession. All prospect of rehabilitation should be explored.

170 Other options to cancellation are suspension for a period, and the imposition of

conditions. The Tribunal has considered carefully whether any period of

suspension or any conditions in combination with that would adequately meet the

concerns that there are.

171 In this case, the Tribunal is confronted with a practitioner who has had a history

with his profession, the dental profession. That history included conditions that

had been imposed including requirements for completion of competency

programmes. Those conditions were not met and the competency programmes

not fulfilled. That culminated in the orders that were made suspending Dr

Zimmerman from practice on the stated grounds, namely that there were

reasonable grounds for believing that Dr Zimmerman posed a serious risk of harm

to the public by practising below the required standard of competence.

172 The terms of the suspension were conveyed to Dr Zimmerman by Mr Rodgers on

behalf of the DCNZ in clear and unambiguous terms. The Tribunal finds that Dr

Zimmerman knew what the suspension meant and does not accept his explanation

that it only have limited application. Even if that explanation were accepted, that

would indicate a significant lack of understanding by him of what he had been

expressly told. Professional obligations in the context of a formal advice from

the responsible authority must be weighed up carefully and given significant

priority to.

173 Despite the clear advice and despite the suspension, Dr Zimmerman embarked on

at least the 5 occasions of treatment of patients in direct contravention to the

suspension. In doing so, he appears to have acted inappropriately in relation to

the patients in any event. It would be a sufficiently serious matter for Dr

Zimmerman to have practised perfectly competently if that was in contravention

of an order for suspension.

39

174 The evidence before the Tribunal, however, indicates there were aspects of the

treatment given to at least some of the 5 patients in question that was

inappropriate and could have compromised their position, if not placed them in

significant jeopardy. In particular, Ms S had had the tooth extraction from another

dental practitioner and she was in significant distress with the infection that she

had. Rather than address that infection head on and refer her to someone

adequately placed to deal with that infection, Dr Zimmerman sought to treat her

himself including the making of some device that he applied. Fortuitously for Ms

S, the outcome was not compromised but there was the significant risk, despite

what she herself may think, that things could have turned out a lot worse for her.

175 In relation to Master N, the treatment he had from Dr Zimmerman included

extraction of teeth at an age when it could be said he was too young to have this.

176 There was no direct evidence before the Tribunal about breach of standards by

Dr Zimmerman in these regards and Dr Zimmerman has not been charged with

misconduct in relation to either of these patients. The Tribunal has made its own

tentative assessment from the facts before it. It suffices to say, however, that this

concern exacerbates the significant concern that the Tribunal has arising from the

fact that Dr Zimmerman practised dentistry when under suspension on the

grounds that he posed a risk of serious harm to the public by practising below the

required standard of competence.

177 Although those 5 cases are the only ones which the Tribunal can focus on, it can

also take into account what Dr Bambery said about the time that he visited the

practice on another occasion when Dr Zimmerman was involved in the treatment

of another patient

178 There seems no point in the Tribunal considering orders for suspension or

imposition of conditions when the record shows that Dr Zimmerman has already

disregarded orders of that kind made against him by the DCNZ. What point is

there in ordering suspension if Dr Zimmerman has already practised while under

suspension? What point is there in ordering conditions if Dr Zimmerman has

already shown that he cannot comply with conditions already ordered?

40

179 On top of all this is the very evident preoccupation that Dr Zimmerman has with

his own theories about temporomandibular joint disorder, and sleep and breathing

difficulties. The way in which Dr Zimmerman approached the whole of the

hearing before the Tribunal indicated that preoccupation. His significant material

presentation focused on those theories. He did not even seem to appreciate that

his focus should have been on the matters at issue. Apparently, he had had legal

advice about this. It is not for this Tribunal to pass judgment on the theories

advanced by Dr Zimmerman. It may be that they have some professional

credibility.

180 The simple fact of the matter is, however, that Dr Zimmerman had tried some of

these theories on other patients and that had apparently been the background to

the order for interim suspension and the DCNZ decision that he posed a risk of

serious harm to the public. Furthermore, in relation to the 5 patients in question

in this Charge, there is evidence before the Tribunal that Dr Zimmerman’s

theories were interfering with his proper and professional objective analysis and

treatment of these patients at least to some extent.

181 The Tribunal must take into account other cases to the extent they have some

similarities so that there is consistency in its decisions. The primary question,

however, is what order should be made to protect the public and maintain

standards in the profession.

182 Of the cases referred to earlier:

Moon,25 whose case went on appeal to the High Court was ultimately censured,

fined $5,000.00, and had conditions on his practice for two years for attendance

at a course of ethics and for mentoring.

Amarsee,26 and Singh,27 both had their registration cancelled for the various

misconduct in question.

25 See paragraph 72 above 26 See paragraph 73 above 27 See paragraph 74 above

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Ranchhod,28 was suspended for a period of 7 months with conditions for 3 years

on his practice to work in a group practice, for supervision, and meeting with

peers in a group practice weekly.

183 The aggravating factors present in this case include:

183.1 The background and history to Dr Zimmerman’s professional practice

and steps that have been taken by the DCNZ in respect of that.

183.2 The apparent compromise that Dr Zimmerman placed the individual

patients under, particularly the two expressly mentioned, Ms S and

Master N.

183.3 The preoccupation that Dr Zimmerman appears to have with his theories

and the extent to which he perceives these are relevant to the practice of

proper dentistry and is therefore distracted from professional practice.

184 Mitigating factors include:

184.1 That Dr Zimmerman genuinely (but misguidedly) believes that what he

was doing for the patients were in their best interests.

184.2 That Dr Zimmerman’s motivation appears to be not a selfish one but

rather to benefit those patients.

185 There are significant factors militating against rehabilitation for Dr Zimmerman

in this case. First is his apparent preoccupation with the topics which form part

of his initial thesis-like presentation to the Tribunal in his defence to the Charge.

It is apparent that the topics involved are significantly to the forefront of Dr

Zimmerman’s professional thinking and approach to treatment of many patients

with problems and conditions which require other treatment. In the Tribunal’s

view, Dr Zimmerman has had sufficient opportunity to come to grips with the

necessary training and education to keep those theories in their proper perspective

and to focus on other treatment that patients need. The Tribunal can find no

prospect that further training or opportunity for rehabilitation by a period of

suspension will remedy that situation. Dr Zimmerman cannot be rehabilitated

into the dental profession until he has come to grips with the recognised

professional views on these topics which are preoccupations of his and he has

28 See paragraph 75 above

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learned to keep them in perspective. No period of suspension has any foreseeable

prospect of that occurring. No number of conditions are seen to have any prospect

of bringing that objective about.

186 Secondly, this offending comes at the end of a long period of practice concerns

for Dr Zimmerman. Disciplinary processes have been brought against him. He

has had directions and orders from the DCNZ. This is a case where the protracted

history of difficulties and concerns significantly exacerbates the concerns from

the matters of the Charge itself.

187 Having weighed up all of the competing factors and the submissions of the

parties, and having taken into account the other cases where relevant, the

conclusion is that there is no option for the Tribunal other than to order

cancellation of Dr Zimmerman’s registration and this is ordered below.

188 The Tribunal does consider that imposition of proposed conditions on application

for re-registration should be ordered. Under section 102 of the HPCA Act the

Tribunal may impose conditions before application for re-registration.

Subsection (2) specifies what those conditions may include and subsection (4)

expressly states that those do not limit the conditions that may be imposed.

189 The PCC sought that the condition read:

“…that Dr Zimmerman is required to complete a course of education or training, as determined by the Dental Council, to satisfy the Dental Council of his competence to practise and his understanding of his professional obligations as a registered health practitioner”.

190 The Tribunal considers that the focus should be on the 8 elements of the

Competence Programme that were directed by the DCNZ in April 2011 and the

condition ordered below expressly focuses on those. The Tribunal wants to

ensure that, in light of the matters to which this decision refers, should Dr

Zimmerman apply for re-registration, the DCNZ will expressly address the

competence issues raised by this decision and the background matters to which

there is reference.

191 This is a case where there should be an order for censure to express the Tribunal’s

significant disquiet about the whole matter.

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Costs

192 The PCC sought an order for costs, estimating the costs that it had incurred at

some $96,716.00. The Tribunal must also consider the costs that it has incurred

estimated at some $59,407.00 all excluding GST. That makes a total of some

$156,123.00.

193 The PCC relied on evidence from Dr Dunbar about Dr Zimmerman’s failure to

fully co-operate with the PCC’s investigation. Also to be taken into account is

the cost there was to the PCC and to the Tribunal in an earlier adjournment of this

hearing which had been ordered to enable Dr Zimmerman to fund proper legal

advice; something which apparently did not occur.

194 Dr Zimmerman gave some evidence about his means. He referred to the equity

in his home as having a value between $280,000.00 and $350,000.00 and two cars

worth $4,000.00 each. His income is from his permitted involvement in the dental

practice and from selling wood, together with the pension that he receives. He

alluded to personal family issues.

195 The normal starting point where a charge is defended in full is to order a

contribution of 50% to the costs involved. Regard must, however, be had to what

evidence and information is given regarding the practitioner’s means. There has

been no co-operation on Dr Zimmerman’s part in disposal of this Charge.

Although he is quite entitled to defend it, the way he has defended it has made

the hearing protracted; he has produced voluminous material which has proven to

be irrelevant; he did not comprehensively address in the evidence detail of the

Charge in fact brought against him and he did so by oral evidence and

submissions which made matters more difficult to follow.

196 Taking all matters into account it is the Tribunal’s assessment that the proper

contribution to order from Dr Zimmerman towards the costs of this matter

approximate 15%, that is the sum of $22,500.00. That is ordered below.

Names Suppression

197 At the commencement of the hearing the Tribunal made interim orders for

suppression of the names and identifying details of the patients referred to in the

Charge. Dr Zimmerman had no objection to that then. At the conclusion of the

44

hearing there has been no change in that position. Those are appropriate orders

to be made. Identifying those persons intrudes on their privacy and adds nothing

to this decision. Orders accordingly are made below. Dr Zimmerman himself

made no application for name suppression.

Result and orders

198 The Charge and all its 5 particulars against Dr Zimmerman is found to be made

out in respect of all sub-particulars except those expressly noted.

199 Each of the 5 particulars of the Charge separately and all of them cumulatively

are found to be misconduct both as malpractice and as conduct bringing discredit

to the dentistry profession.

200 Dr Zimmerman’s registration as a dental practitioner is cancelled.

201 Dr Zimmerman is censured.

202 Before Dr Zimmerman may apply for re-registration as a dental practitioner he is

ordered to be required to complete a course of education or training, as

determined by the DCNZ, to satisfy the DCNZ of his competence to practise and

his understanding of his professional obligations as a registered health

practitioner and in particular his understanding of:

202.1 The diagnosis and treatment of periodontal disease.

202.2 The diagnosis of caries, especially by radiographs.

202.3 The prognosis of teeth when deciding on treatment possibilities and

treatment options to present to patients.

202.4 Adequate record keeping and Informed Consent.

202.5 The use of rubber dam.

202.6 General principles of endodontics.

202.7 General principles and detail in the provision of crown and bridge

treatment, including design, preparation, impressions and outcomes.

202.8 The management of patients with TMD and sleep-disordered breathing,

including the management of referrals from registered medical

practitioners.

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203 Dr Zimmerman is ordered to pay the sum of $22,500.00 to be divided as to 60%,

$13,500.00, to the PCC and 40%, $9.000.00, to the Tribunal.

204 An order for non-publication of the names and identifying details of the patients

named in the Charge and their relatives who gave evidence is made.

205 The Tribunal directs the Executive Officer:

205.1 To publish this decision, and a summary, on the Tribunal’s website;

205.2 To request the DCNZ to publish either a summary of, or a reference to,

the Tribunal’s decision in its next available publication to members, in

either case including a reference to the Tribunal’s website so as to enable

interested parties to access the decision.

DATED at Auckland this 15th day of May 2017 ................................................................ David M Carden Chairperson Health Practitioners Disciplinary Tribunal