Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghosh (No 2) [2020] NSWCATOD 90 Hearing dates: 6 August 2020 Date of orders: 17 August 2020 Decision date: 17 August 2020 Jurisdiction: Occupational Division Before: D Cowdroy AO QC ADCJ, Principal Member Dr H Haikal-Mukhtar, Senior Member Dr S Mares, Senior Member Honorary Associate Professor P Macneill, General Member Decision: (1) The stay of orders referred to in order (5) of the orders made on 15 April 2020 and confirmed by the stay order made on 1 June 2020 be terminated forthwith; (2) The orders (1) to (4) referred to in the decision of this Tribunal delivered on 15 April 2020 operate instanter; (3) The Respondent is to pay the costs of this application. Catchwords: OCCUPATIONS – Heath practitioners – Misconduct and discipline – Disciplinary proceedings – leave reserved to Respondent to show cause why the orders should not be made – leave exercised – no material advanced to justify any alteration to the orders proposed Legislation Cited: Civil and Administrative Tribunal Act No.2 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Ghosh v Medical Council of NSW [2018] NSWCATOD 186 Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ratna Ghosh (Respondent) Representation: Counsel: A Britt (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/00251131 Publication restriction: Publication of the identity of the patients described as Patient A to Patient C be prohibited pursuant to Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law. REASONS FOR DECISION 1. On the 15 April 2020, the Tribunal delivered its decision in this matter but granted leave to the Respondent to show cause why the orders set out hereunder should not be made. The reasons for decision of the Tribunal are recorded as follows: Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38. The Tribunal made the orders in view of the fact that the Respondent took no part in the proceedings even though the Tribunal was satisfied that the Respondent was fully aware that the hearing was taking place. 2. The orders made by the Tribunal were: (1) Pursuant to section 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law), the Tribunal decides that if the Respondent were still registered it would have cancelled her registration. (2) Pursuant to section 149C(4)(b) of the National Law the Respondent is disqualified from being registered as a medical practitioner for a period of 18 months from the date of publication of this decision, 15 April 2020. (3) Pursuant to s 163 of the National Law the Tribunal is the appropriate review body for any review of these orders. (4) Dr Ghosh is to pay the Applicant's costs, as agreed or assessed, of these proceedings. (5) Orders (1) to order (4) inclusive are stayed for a period of 28 days from the date of publication of this decision to allow any application to be made by the Respondent to show cause why the orders should not be made. (6) In the event that that the Respondent seeks to show cause any such application is to be filed within 21 days of the date of publication of these orders and is to include any evidence or material upon which the Respondent seeks to rely. (7) In the event the Respondent makes such application the proceedings are to be re-listed for directions and in this event the orders (1) to (4) inclusive are stayed pending further orders. If no such application is made, orders (1) to (4) above will take effect on the 29th day from the date of publication of this decision. 1. The Respondent duly gave notice that she wished to exercise her right to show cause why the proposed orders should not be made, and this hearing relates to that application. Respondent's Submissions 1. The Respondent, when exercising the leave granted to her to show cause why the proposed orders should not be made by the Tribunal, provided the following written submissions. 2. The Respondent states: 1 I seek to Stay the orders of 15 April 2020, amended 6 May and 13 May 2020, and list the proceedings for directions. I rely on the following grounds: 2 The allegations about me are false, in particular I did not say any of the things they allege I said to patients, in circumstances where HCCC blocked a subpoena for medical records to [Dr A] written by the Honourable President of this Tribunal in the 2018 NCAT proceedings 3 All of the matters raised in the NCAT judgment of 15 April 2020, are currently before the Court of Appeal in its reserved judgment of 7 November 2019, rendering the ex parte application by HCCC in NCAT an abuse of process, in a duplicity of proceedings. Submissions of my Counsel to CANSW Francis Douglas QC, and Gabriella Rubagotti are attached. 4 HCCC deliberately MISLED this Honourable Tribunal into believing I was registered throughout the ex parte proceedings, when they knew I never renewed my registration since 30 September 2018 5 Even if I was registered as per HCCC's requested amendment after the 15 April 2020 judgment was published, this Honourable Tribunal still did not have jurisdiction to determine matters currently before the Court of Appeal 6 It is highly irregular that HCCC sought to cancel a doctor's registration in her absence, not only while the same complaints are pending determination by Court of Appeal, but also while the issues raised are in dispute, and there was no former conditions imposed on my unconditional registration 7 This is not the usual or prescribed manner in which HCCC is meant to deal with an impairment, which seems to be their major complaint. Their alleged diagnosis of "psychosis" was not upheld by any of the multiple witnesses. An impairment is meant to be dealt with in a supportive manner. 8 I have no diagnosis of psychosis, and I never have. [Dr D's] hypothetical diagnoses were only provisional, based on a false account of my history to her, and she also recommended a return to work, like the other experts. 9 I have done my best to cooperate with Medical Council and HCCC, attending multiple psychiatrists for assessment, and undertaking courses, but I cannot admit to outrageously false allegations and a wrongful diagnosis of mental illness using a false witness. I even consented to conditions to return to practice, which renders their application even more irregular. 10 This type of unmeritorious attack in NCAT is a typical "knee jerk reaction" to all doctors who take HCCC or Council to Court of Appeal, according to senior members of Counsel including Patrick Griffin SC. For example eminent forensic psychiatrist [Dr B], who has been stalked continuously in non-stop suspensions and attempts to cancel her registration since she took HCCC to Court of Appeal. 11 In my case HCCC are stalking [a close relative], as well as me, and have caused severe injuries to [a close relative] by their false complaints to FACS, which show they have no concerns for the welfare of [a close relative], but are using [a close relative] as a tool in their "witch hunt" against me. 12 The complaints of HCCC to FACS that I was a danger to [a close relative] one year after the same complaint was closed by HCCC itself in 2017, resulted in the traumatic "arrest" of [a close relative] on a police warrant from [a close relative's] home on 28 June 2018, followed by Children's Court proceedings that continued for months requiring my full time preparation and attendance at Children's Court or to [a close relative] throughout 2018 that severely distracted me from preparation for the 2018 NCAT Appeal, which I had to leave up to my legal representative. 13 The continuing unfounded complaints of HCCC to FACS, resulted in a second traumatic assumption of [a close relative] from his school on 21 February 2019, followed by repeated traumatic induced comas for force feeding for [a close relative's] refusal to eat in the care of FACS as an autistic child, and also illegal use of mechanical and chemical restraints for force feeding over a 17 month period of incarceration between 3 different hospitals in NSW, including inappropriate depot antipsychotic injections used as a chemical restraint when [a close relative] is not psychotic, continuing to date, that HCCC has failed to protect [a close relative] from, causing extreme distress to the family. 14 My complaint to HCCC against the two John Hunter Hospital doctors who subjected [a close relative] to repeated induced comas for force feeding was not prosecuted by HCCC, and for giving an extreme drug overdose over a prolonged period of time which the Court of Appeal has found was illegal. 15 Similarly the HCCC failed to even investigate or prosecute the GP whose false complaint of 17 October 2019 led to my "immediate suspension" at s150 proceedings of 12 December 2017, that continue to date, so I have already been "disqualified" for 2.5 years without any charges against me, on an un-investigated complaint, while [Dr A] continues to run 3 practices with free lease from chemists next door in an unethical conflict of interest, using unregistered Pakistani doctors, because HCCC didn't even investigate my complaint with hard evidence he was using totally unregistered doctors and conditionally registered doctors working in breach of their conditions. 16 I was in Sydney with [a close relative] being transferred to Westmead Children's Hospital by FACS for the second time on 1 November 2019, where [a close relative] remains, and have been distracted full time with either attending the hospital every weekday to participate in a Court ordered treatment program, or attending the Children's Court to represent myself to get custody of [a close relative] on 11 to 15 November, 25 and 26 November, and 13 March 2020, the Supreme Court on 28 and 29 November 2019, 17 January, 31 January, 2 and 6 March, 24 April, 2, 6, 11,14, 26, 27 and 28 May 2020 and the Court of Appeal on 10 July and 6 and 7 November 2019, and continuing to date since 25 February 2019. I attach the black book transcripts showing just some of the continuous hearings I have had to represent myself at during these proceedings. 17 I was not served any hard or soft copy of the application by HCCC, and expected to at least be called by telephone for a hearing, because they never served me notice that the decision would be on the papers. 18 I have continued to address all of Medical Council's concerns, and consulted [Dr E], who found no mental illness and that personality disorder cannot be diagnosed in a person during a period of stress. His reports are attached and oral evidence is in Volume 2 of the black book attached at pages 981 – 1003. 19 I am sincerely apologetic and sorry that I was unaware these proceedings continued while I was distracted full time in my child custody matter, and also plagued by hacking into my gmail and dodo email addresses, evidence is attached. I undertake to cooperate with HCCC and NCAT moving forward, but will need a lot of time to put on evidence. Issue 1: Was the Respondent denied procedural fairness? 1. At the hearing of this application Counsel for the Respondent orally submitted that because the Tribunal had made its findings of fact, there was little that could be done to make different findings. For this reason, no evidence was to be proffered to the Tribunal. However, Counsel submitted that there had been a breach of procedural fairness to his client; that his client was previously unrepresented; and was afforded no opportunity to present her case. 2. Counsel for the Respondent submitted that the Respondent; 1. Was denied procedural fairness because her adjournment application made on 20 March 2020 was not granted; 2. That the hearing proceeded on the papers; 3. That the Tribunal's reasons for decision included the (show cause) order in recognition that there had been an injustice caused by proceeding to a hearing; and that the Tribunal had no power to make such order. 1. In her written submissions (see [5] above), the Respondent has alleged that she was not served with either a hard or soft copy of the application; received no phone call from the Tribunal; and did not know the hearing would be conducted on the papers. The Respondent claims that she was distracted by domestic issues and additional legal matters from attending or considering the matter before this Tribunal. Chronology 1. On 13 September 2019, the following orders were made by the Tribunal: 1 Health Care Complaints Commission is to give to the other party, any material on which that party relies on or before 08 November 2019. 2 Ratna Ghosh is to give to the other party the following material: a Reply on or before 13 December 2019. 3 Ratna Ghosh is to give to the other party, any material on which that party relies on or before 13 December 2019. 4 Health Care Complaints Commission is to give to the other party the following material on or before 17 January 2020: all material in reply (if any) 5 Both parties are to give to the Tribunal 5 copies of all their material and 4 USBs containing that material on or before 17 January 2020. 6 The proceeding is listed for directions on 31 January 2020 at 9.30am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney. 7 The proceeding is listed for a Case Conference on 14 February 2019 at 2pm at John Maddison Tower, 86-90 Goulburn Street, Sydney. 8 The proceeding is listed for hearing for five days commencing on 30 March 2020 at 10am at John Maddison Tower, 86-90 Goulburn Street, Sydney. 9 Ratna Ghosh may within 14 days apply in writing to the Registrar, Occupational Division, NCAT with a copy to the Health Care Complaints Commission to set aside or vary the orders made today. 1. On 17 January 2020, a case conference was held and the following directions for substituted service were made by the Tribunal: 1 Pursuant to Rule 15 of the Civil and Administrative Tribunal Rules 2014 that on or before 28 January 2020 the Health Care Complaints Commission (applicant) is to serve: (a) a copy of the General Law Application Form seeking an order for substituted service on Dr Ratna Ghosh (the Respondent) filed on 18 December 2019; (b) 3 folders of documents relied on by the applicant in the disciplinary proceedings as its evidence in chief ; (c) a copy of these orders; and (d) to the Respondent by forwarding the documents by express pre-paid post to the applicant's last known address namely [address removed] and also be emailing the documents to [Respondent's nominated email]. 2 The applicant shall on or before 31 January 2020 file in the Tribunal an Affidavit evidencing compliance with order 1 of these orders. 3 Extempore reasons delivered. 1. On 29 January 2020 the solicitor sent an email to the email address of the Respondent outlining the proposed protective orders sought by the HCCC. Also on 29 January 2020 the solicitor telephoned the Respondent and left a message for her to contact the solicitor. No response was received. A further email was sent on 30 January 2020 to the Respondent. No response was received. 2. On 31 January 2020, the following orders were made by the Tribunal: 1 Orders 1 to 7 inclusive of the orders made 13 September 2019 are vacated. 2 Ratna Ghosh is to give to the other party the following material: a Reply on or before 14 February 2020. 3. Ratna Ghosh is to give to the other party, any material on which that party relies on or before 14 February 2020. 4 Health Care Complaints Commission is to give to the other party the following material on or before 28 February 2020: all material in reply (if any). 5 Both parties are to give to the Tribunal 5 copies of all their material and 4 USBs containing that material on or before 28 February 2020. 6 The proceeding is listed for case conference on 13 March 2020 at 2pm at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney. 7 The hearing on 30 March 2020 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 5 days is confirmed. 8 Liberty is granted to Ratna Ghosh to apply in writing to the Registrar with a copy to the Health Care Complaints Commission within 7 days of the date of these orders to set aside or vary the orders made today. 1. On 13 March 2020, the following orders were made by the Tribunal: 1 The hearing will commence on Tuesday 31 March 2020 at 10:30am for four days. 2 The registry and the appellant is to notify the Respondent of the hearing by mail and by email [Respondent's nominated email]. 3 Liberty to either party to apply. 1. On 19 March 2020, notice of listing was provided to the Respondent nominating 25 March 2020 at 9.30am for directions. The Respondent was informed that the listing would proceed by telephone and requested the Respondent to provide a telephone number at which she could be contacted by the Tribunal so that she could participate at the directions hearing. Such notification was provided in view of the COVID-19 restrictions and specifically the Respondent was informed as follows in such notification: In response to government advice regarding Covid 19, the Tribunal is considering alternatives to hearings in person. As you know, your matter has been listed for hearing on 31 March - 3 April 2020. The Tribunal has now listed your matter in a callover on Wednesday 25 March 2020. You are required to be available to take a telephone call from the Tribunal at all times between the hours of 9:30 am - 10:30am. At the callover, you will be asked to put forward any view you might have in relation to: Whether this matter can be determined by the Tribunal on the papers, Whether this matter can be heard by the Tribunal by telephone or telephone and audio visual link, If the matter cannot be determined by the Tribunal on the papers, or heard by the Tribunal by telephone or telephone and audio visual link, then your views will be sought on the adjournment of the matter until a date after 5 October 2020, Any consequential orders which may be necessary. Please provide a telephone number upon which you will be available at all times between 9:30 am and 10:30 am on 25 March 2020. 1. On 20 March 2020, the Respondent emailed the Tribunal stating as follows: Dear Registrar, I have been in Sydney since 1 November as my [close relative] was assumed by facs again on 21 February 2019 after the ncat judgement of November 2018, and been held prisoner of facs in hospital for 13 months in induced comas and restraints for force feeding, only because facs can't feed him, and was transferred to Westmead children's hospital on 1 November 2019. It is so extraordinary, the matter has occupied all of my time in the past 13 months. I was in Court of Appeal 6 and 7 November in my appeal to lift my Medical suspension, which remains reserved, in Court of Appeal in the facs matter on 7 November, in Children's Court Parramatta for a 12 day trial on 11 to 15 November daily, 25 and 26 November all day, and 6 to 10 January daily. I was in the Supreme Court in the FACS matter on 28 and 29 November, 17 and 31 January, 2 and 6 March. My Children's Court matter requires major submissions from me by 27 March for another hearing fixed for 3 April. I have been totally consumed as an unrepresented party in these proceedings, and have not been served anything by hccc. I have not renewed my registration to practice medicine since 30 September 2018, and remain suspended pending the Court of Appeal reserved judgment, so there is no urgency for hccc to prosecute me at the moment, because I am not practising, and I have asked Court of Appeal to impose conditions requiring leave for hccc or council to further prosecute me, because of their conduct in the 2018 proceedings. Moreover, hccc is in breach of their statutory obligations to investigate [Dr A] for statutory and mandatory complaints from me for use of unregistered doctors with hard evidence. Hccc also failed to act on my complaints about the highly inappropriate medical treatment of induced comas and restraints for force feeding of [my close relative] without any treatment orders of the Court, which has left [my close relative] blind in his left eye, mentally retarded and speech impaired and lame and wheelchair bound. NCAT should be familiar with or made aware of their continuous stalking of some doctors like [Dr B], who was prosecuted continuously and also wrongfully diagnosed as paranoid schizophrenic by council and hccc, while they let other doctors off scot free for use of unregistered doctors, a criminal offence, such as New Pakistani immigrant [Dr A], and let off [Dr C] for aggravated assault and battery by false imprisonment in hospital for one year of a disabled child without any medical indication or treatment orders of the Court. I am not available for any hearing or directions until May 2020, and have no legal representation, therefore I seek the hccc proceedings against me to be struck out as stale and not served, or vexatious, or Stayed until the Court of Appeal reserved judgment is published. Please send my email to President Wright, who is also Duty Judge in common law in the Supreme Court today, so his Honour is aware of the circumstances, and can decide. I am copying the Supreme Court registrar in to also send a copy of my email to President Wright who is Common Law Duty Judge today Kind regards, Dr Ghosh 1. There is no record that the Respondent provided her telephone number to the Tribunal. On 25 March 2020, the Tribunal made the following orders: 1. Ratna Ghosh's application by email dated 20 March 2020 for the proceedings to be struck out, stayed or adjourned is refused. 2. The Health Care Complaints Commission is to serve upon Ratna Gosh its written submissions and advice of the orders it seeks on or before 30 March 2020. 3. The Health Care Complaints Commission is to provide the documents described in Order 1 to the Tribunal on or before 30 March 2020. 4. The hearing in this matter, set down to begin on 31 March 2020 and continue for four days, is dispensed with. 5. This matter will be determined by the Tribunal based upon the written submissions and other material lodged and provided to the Tribunal. 1. The affidavit of Sarah Connors, Legal Manager of the applicant, sworn/affirmed on 22 June 2020 establishes that on 27 March 2020 she forwarded the Applicant's written submissions dated 27 March 2020 to an email address which had been used by the Respondent to contact the Tribunal on 20 March 2020. The email was rejected. Accordingly, Ms Connors arranged for such documentation to be forwarded to a different email address which the Respondent had provided. On 3 April 2020 Ms Connors sent a copy of the written submissions and proposed orders by express post to the Respondent's residential address. Issue 1: Finding 1. The Tribunal refers to the above chronology, summarised at [6]-[14] of its previous decision wherein it considered the evidence concerning the Respondent's awareness of the hearing taking place. 2. Specifically, the Respondent: 1. did not file any Reply nor submissions as directed in the Tribunal's orders dated 13 September 2019; 2. nor did the Respondent file any Reply or submissions as directed by the revised orders 31 January 2020; 3. Further, the Respondent failed to attend a medical appointment arranged for her by the Applicant during February 2020 although she was asked to do so on two occasions; 4. the Respondent states that she "… would have expected to at least be called by telephone for a hearing…": The Tribunal file has no record of any telephone number having being provided to it by the Respondent; 5. although the Respondent asserts: "I was not served with any hard or soft copy of the application…", Such statement cannot be accepted in view of the sworn evidence of Ms Connors. 1. the Respondent states: "… they [the Tribunal] never served me notice that the decision would be on the papers". 1. The Tribunal's email dated 25th of March 2020 was forwarded to the Respondent by email and was not returned. 1. There was no appearance by the Respondent at any of the directions hearings held on 13 September 2019; 17 January 2020; 31 January 2020; at the case conference held on 13 March 2020; nor the directions hearing on 25 March 2020. In each case the listing notices invited the Respondent to attend either in person or by telephone. 2. Specifically, the Tribunal record shows that it sent an email to the Respondent on 19 March 2020 asking for a telephone number to be used by her for the directions hearing fixed for 26 March 2020. No reply was received. 3. In refusing the adjournment application and in directing the matter proceed on the papers, the Tribunal (differently constituted to the present Tribunal) would have had before it the history of the proceedings and would have been mindful of the fact that the Respondent had never taken any part in the proceedings. 4. Further, because of the measures taken to address the COVID-19 issues, the Tribunal was entitled to exercise its power under s 50(2) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). 5. In respect of the submission that this Tribunal foresaw an injustice having been occasioned to the Respondent and to rectify that injustice, made the show cause order, the Tribunal states that the order was inserted within its powers as it was still seised of jurisdiction as no final orders had been made. Further, the Tribunal is invested with power to conduct its own procedures s 38(1) of the NCAT Act which provides: The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. The order was inserted to provide the Respondent with an opportunity to provide any reason why the proposed orders (1) to (4) should not be made. 1. The Tribunal is not satisfied by the Respondent's explanation that she was not aware of the hearing. Nor is there any evidence of any corruption of her email addresses. Further, the fact that the Respondent made application to have the proceedings adjourned on 20 March 2020 demonstrates that the Respondent was clearly aware that the proceedings were taking place. Issue 2: Effect of the Court of Appeal decision 1. On 26 June 2020 the New South Wales Court of Appeal delivered judgment in the matter of Ghosh v Medical Council of New South Wales [2020] NSWCA 122. The Respondent to the proceedings now before the Tribunal was the successful Appellant in those proceedings. 2. The Court of Appeal proceedings resulted from a finding by the New South Wales Civil and Administrative Tribunal ("NCAT") reported as Ghosh v Medical Council of NSW [2018] NSWCATOD 186 ("2018 Tribunal"). The 2018 Tribunal upheld a decision of the Medical Council of NSW convened under s 150 of the (NSW) Health Practitioner Regulation National Law ("the National Law"). The Medical Council concluded that the Respondent's registration should be suspended until her mental health was assessed, as there is a strong risk that she may fail to treat a patient with appropriate clinical care due to her poor communication and understanding skills, and there were no conditions that would minimise that risk. 3. The Respondent applied for a review of such decision under s 150A of the National Law. The Medical Council's delegates considered that the central issue was whether there had been a change in the Respondent's circumstances to justify the setting aside or variation of the decision to suspend her registration. Although it was not satisfied that any such change existed, the Medical Council substituted a condition that the Respondent should not practise medicine for the suspension of her medical registration. 4. The Respondent appealed both decisions to NCAT. The 2018 Tribunal confirmed that the Respondent should be prevented from practising medicine. It reached its decision upon the basis that it preferred the evidence of a psychiatrist who had been cross-examined and who provisionally diagnosed the Respondent as suffering from schizophrenia. In doing so the 2018 Tribunal did not accept the expert opinion from other psychiatrists who opined that the Respondent did not have a major psychiatric illness. Further, the 2018 Tribunal considered, in its decision-making, that the Respondent had attempted to mislead the Tribunal by altering a transcript of the s 150A hearing. 5. The NSW Court of Appeal found that the 2018 Tribunal erred in accepting the evidence of the only psychiatrist who was cross-examined and that the 2018 Tribunal failed to have regard to the unchallenged expert evidence of four other psychiatrists. As their evidence is unchallenged, the Respondent was not obliged to call them for cross-examination. 6. In relation to an allegation of altering a transcript, the NSW Court of Appeal found that the 2018 Tribunal's finding that the Respondent was dishonest, was unreasonable, having regard to the fact that there was a much more probable innocent explanation which that Tribunal did not consider; and that its finding of dishonesty infected its conclusions. Further, that Tribunal was required to consider whether, on the material before it, allowing the practitioner to practise, or to practise with certain conditions, involved an unacceptable risk to the health and safety of the public, or to the public interest; that Tribunal failed to take the essential step of identifying such risk, and whether it was unacceptable. Further, that Tribunal had treated the Respondent as bearing an onus to adduce evidence which displaced the need for a non-practising condition: it thus failed to address the essential question which the proper conduct of a hearing de novo required of it. Issue 2: Finding 1. The Respondent relies upon the decision of the NSW Court of Appeal in support of her application that the orders proposed by this Tribunal should be set aside, and that no orders should be made against her by this Tribunal. 2. The issues considered in the proceedings before the Medical Council, and before the initial 2018 Tribunal and the New South Wales Court of Appeal are quite separate and distinct to the proceedings which this Tribunal has considered, and the proceedings involved different parties. The Medical Council proceedings resulted from the provisions of s 150 and of s 150A of the National Law. The proceedings before this Tribunal arise under s 149 of the National Law. 3. In the proceedings now before this Tribunal, initiated by the Health Care Complaints Commission, eight Complaints arose for determination concerning specific conduct of the Respondent in the course of her practice as a medical practitioner. No such issues arose in the proceedings initiated by the Medical Council. 4. The submissions of the Applicant to this Tribunal succinctly state the difference between the proceedings as follows: 11. The role of the Tribunal in these proceedings is markedly different. The Tribunal in these proceedings must consider whether, as a matter of evidence, some or all of the particulars of the amended Complaint are made out. Second, the Tribunal is then to determine whether the established particulars amount to 'unsatisfactory professional conduct' (Complaints One-Five), 'professional misconduct' (Complaint Six) per s139B or s139E of the National Law, whether the Respondent is impaired within the meaning of s5 of the National Law (Complaint Seven) and whether the Respondent is not competent within the meaning of s139(a) of the National Law (Complaint Eight). Only if the Tribunal is satisfied of one or more of the above findings will it need to consider what, if any, protective orders are to be made pursuant to ss149, 149A, 149B and 149C of the National Law. 12. Additionally, the subject matter of these proceedings when compared with those in the Tribunal decision appealed in Ghosh v MC differed. Although in the appealed proceedings the Respondent's treatment of Patient [sic] was certainly a significant issue in the appeal, it is by no means apparent that it was the central issue; indeed, the Respondent's mental health remained the central issue [Ghosh v MC at [44]]. In these proceedings it was one of a number of matters. 13. In these proceedings, the Tribunal had different medical evidence before it compared to the appealed proceedings and took a different approach to that evidence when compared to the appealed proceedings [See Ghosh v MC at [63]-[72]]. Further, the Tribunal made a different finding on the medical evidence to that in the appealed proceedings. 14. Unlike the appealed proceedings, these proceedings did not consider the issue of alleged deliberate misquoting from the s150 transcript and/or draw an adverse finding on credit based upon this issue [Ghosh v MC at [73]-[85]]. 15. Unlike the appealed proceedings, these proceedings did not consider the question as to whether there was such unacceptable risk as to require immediate suspension [Ghosh v MC at [88]-[104]]. 16. Unlike the appealed proceedings, the Tribunal recognised at all times the Applicant bore the onus of establishing the particulars [Ghosh v MC at [102]-[103]]. 1. In the proceedings which have been heard in this Tribunal, evidence has been provided which has satisfied the Tribunal that each of the specific complaints, but not every particular, was established. The Tribunal concluded that, as a result of its findings the Respondent was not a fit and proper person to practise medicine. The Tribunal's findings included both unsatisfactory professional conduct, professional misconduct and impairment. 2. The Tribunal acknowledges that because the Respondent did not provide written submissions and declined to attend medical examinations arranged for her by the Applicant prior to the hearing, it was deprived the benefit of having the Respondent state her response to the 8 Complaints, and of updated medical evidence in relation to the issue of impairment. Nevertheless, the Tribunal was entitled to proceed it: it is not open to a party to unilaterally dictate when that party might find it convenient to participate : see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [25] and following. Further, no material has been provided in answer to the 8 Complaints even though the Tribunal afforded that opportunity by its show cause order. 3. The Tribunal observes that material adduced before the Medical Council hearings was provided by the Applicant in the proceedings before this Tribunal, namely the evidence relating to the possible impairment of the Respondent due to psychiatric illness. The Tribunal determined each of the Complaints on the material filed in these proceedings relevant to the Complaints. 4. Significantly, in contrast to the 2018 Tribunal decision which has been set aside by the Court of Appeal, this Tribunal made findings: * that the Respondent lacked clinical care and communications skills (with respect to Patient A: see finding at [88]; * that statements were made criticising Patient B and that such conduct was significantly below the standard reasonably expected of a practitioner :see finding [93]; * that the administration of antipsychotic medications to Patient C, a close relative, and the quantity of such prescription when there was no reasonable clinical indication to support such prescribing, demonstrated that the Respondent's knowledge, skill, judgment and/or care exercised in respect of this patient fell significantly below the standard reason expected of a practitioner :see finding [97]; * that the provision of deliberately false and misleading information to the Medical Council concerning the qualifications of another practitioner and providing false and misleading information in a statutory declaration to the Medical Council concerning the differing views of psychiatrists demonstrated lack of good character and disregard for the ethical standards of the Respondent's profession and disregard for the law: see finding [106]; * that the failure to maintain any medical records for Patient C fell below the appropriate standard required of a general practitioner and constituted unsatisfactory professional conduct :see finding [110]; * that the failure of the Respondent to comply with the notice issued under section 34A of the National Law and failing to provide any reasonable excuse for failing to produce records demonstrated a disregard for the ethical standards expected of a medical practitioner, and of the law and constituted unsatisfactory professional conduct: see finding at [112]; * that the failure to provide information concerning medical records for the care and treatment of Patient C when requested by the Applicant to do so,and failing to provide any reason for so doing constituted unsatisfactory professional conduct: see finding [114]. 1. In respect of psychiatric issues, this Tribunal observed that there was no agreement between the medical experts as to whether the Respondent suffered from a DSM–5 Mental Disorder such as schizophrenia or other psychotic disorder (formerly classified as Axis 1 Disorders in DSM-IV), or a Personality Disorder (formerly Axis II Disorders) with narcissistic and/or paranoid traits. The Tribunal also observed that there was agreement in either the initial or supplementary reports of all medical experts that the patterns of thought and behaviour which had led to a series of complaints concerning her conduct had impacted adversely on her professional, personal and family life: see finding [117]. 2. However, this Tribunal did not consider that the nature of the impairment had been established (allegedly schizophrenia); nor was the Tribunal satisfied that the Respondent was suffering from a psychotic disorder due to a medical condition and/or a neurocognitive disorder: see findings at [121]-[122]. The Tribunal did find that the Respondent's impairment was of a sufficient nature to impair her mental capacity to practise as a medical practitioner: see finding [123]-[125]. Accordingly the Tribunal found that the Respondent suffered from an impairment that impacted upon her capacity to practise safely as a medical practitioner and upheld complaint eight. Further, she lacked the mental capacity to practise medicine: see findings [126]-[130]. 3. The 2018 Tribunal preferred one psychiatric opinion over others. This Tribunal considered all the psychiatric opinions as set out in [123] of its decision. 4. No issue arises before this Tribunal concerning the preference of one psychiatric opinion over others. 5. Further this Tribunal's conclusion to cancel Dr Ghosh's registration, was not only based on a finding of impairment, but included the following about Dr Ghosh's behaviours: Whilst impairment may be a factor to some extent in explaining these behaviours, the Tribunal is of the view that these behaviours also demonstrate that the Respondent has acted unethically. Of further concern is that the Respondent appears to have been resistant to recognising her own shortcomings. [Para 135] The Tribunal considers that it is in the public interest to signal to the Respondent and to the profession that the Respondent's behaviour, referred to above, fails to meet the required standards. For this reason, the registration of Dr Ghosh is cancelled, and the Tribunal imposes a prohibition on application for re-registration of 18 months. [Para 136] 1. Accordingly, there are clear distinctions between the proceedings before this Tribunal and the issues considered in the previous NCAT Tribunal. This Tribunal is not prevented from making orders by virtue of the decision of the Court of Appeal. Further, this Tribunal has not been persuaded by anything which the Respondent has advanced as to why the orders which were proposed to be made by the Tribunal in its decision published on 15 April 2020 should not be made. Remaining issues 1. The Respondent submits that the Tribunal was not aware that she had not been in practice as a medical practitioner since 30 September 2018. Even if this were correct, it does not prevent the Tribunal from making orders in relation to her registration; see s 149A(3) of the National Law. 2. The Respondent also asserted that the Tribunal was prevented from hearing the proceedings because of the NSW Court of Appeal proceedings. The existence of the latter proceedings does not prohibit the Tribunal from hearing matters which were separate and distinct from the issues raised and considered by the Court of Appeal. 3. The written submissions of the Respondent raise issues concerning other medical practitioners which are not relevant to this Tribunal. Conclusion 1. Order 6 of this Tribunal's orders required the Respondent to provide any evidence or material upon which she relied in her show cause application to be filed within 21 days of the date of the Tribunal's decision. No material has been produced by the Respondent in support of her assertions that the allegations against her are false. 2. The Respondent has not produced any information or material which is relevant to the Complaints. It follows that the Respondent has not shown cause why the orders proposed by this Tribunal in its decision should not be made, and the Tribunal confirms those orders. Costs 1. The Applicant applies for an order that the Respondent pay the costs of this application. Since the application has been unsuccessful, the usual principle will apply and the Respondent is to pay the costs of the Applicant of this application: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].5D Orders 1. The Tribunal orders that: 1. The stay of orders referred to in order (5) of the orders made on 15 April 2020 and confirmed by the stay order made on 1 June 2020 be terminated forthwith; 2. The orders (1) to (4) referred to in the decision of this Tribunal delivered on 15 April 2020 operate instanter; 3. The Respondent is to pay the costs of this application. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 17 August 2020 - fixed formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2020