Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mukherjee v Medical Council of NSW [2018] NSWCATOD 124 Hearing dates: 23, 24 May, 24, 25 July 2018 Date of orders: 24 June 2018 Decision date: 06 August 2018 Jurisdiction: Occupational Division Before: Knox SC ADCJ, Principal Member Dr G Smith, Senior Member Dr L Cotterell, Senior Member S Lovrovich, General Member Decision: (1) The Application for a non-publication order is dismissed. (2) The Application for a reinstatement order is dismissed. (3) No further application for re-registration may be brought by Mr Mukherjee for a three-year period commencing 1 August 2018. (4) The Applicant pay the Respondent's costs as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: NON-PUBLICATION ORDER PRINCIPLES RELEVANT – Professional discipline – application for reinstatement – Extensive prior record of substance abuse; inappropriate prescription practices – Assessment of conditions for employment, supervision and monitoring, reporting- absence of evidence sufficient for reinstatement- costs on re-registration application. Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW) Health Insurance Act 1973 (Cth) Health Practitioner Regulation National Law (NSW) No 86a Industrial Relations Act 1996 No 17 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Medical Practice Act 1992 No 94 (NSW) Workplace Injury Management and Workers Compensation Act 1998 No 86 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 448 HCCC v Karalasingham [2007] NSWCA 267 HCCC v Simring (Suppression Order) [2010] NSWMT 6 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Hogan v Hinch (2011) 243 CLR 506 In Re Jason Martin [2010] NSWMT 13 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Ohn v Walton (1995) 36 NSWLR 77 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Qasim v Medical Council of NSW [2015] NSWCA 282 Re Lenehan; [1948] HCA 45; 77 CLR 403 Re Mansoor Haider Zaidi [2006] NSWMT 6 Shah v HCCC [2014] NSWCATOD 94 Walton v Momot [1997] NSWCA 143 Welker v Rinehart (No 6) [2012] NSWSC 160 Zaidi v HCCC [1998] NSWSC 335 Category: Principal judgment Parties: Gopal Chandra Mukherjee (Applicant) Medical Council of NSW (Respondent) Representation: Mr Mukherjee appeared in person (Applicant) Mr Stafford of counsel instructed by Ms Wikeepa, Medical Council of NSW (Respondent) File Number(s): 2017/00352024 Publication restriction: Non-publication order as to names of complainants. Reasons for decision Proceedings 1. This is an appeal by Gopal Chandra Mukherjee ("Mr Mukherjee") brought under s 163A of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") seeking a Reinstatement Order. Background 1. Mr Mukherjee who is aged 62 completed his medical degrees (MBBS) in Calcutta, India in 1983. He came to Australia in 1981. He was registered as a medical practitioner after completing the Australian Medical Council Certificate. 2. He thereafter worked as a general practitioner in Sydney primarily in the western suburbs of Sydney. The events leading to his deregistration occurred over the period 2002 – 2010. 3. Mr Mukherjee needs a reinstatement order if he is to be reinstated to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency ("AHPRA") for the Medical Board of Australia. This is because, in October 2010, an earlier and differently constituted Medical Tribunal of NSW made an order removing his name from the register then in place. That Medical Tribunal also ordered that the applicant could not apply to be re-registered for a period of two years. 4. The earlier Tribunal was clearly concerned by Mr Mukherjee's breaches of the conditions which had been imposed on him following earlier investigations together with an instance of criminal behaviour. These came to a head on 24 November 2009 with a police investigation – see below. The particular instance of criminal behaviour was medical fraud being 64 counts of Medicare fraud for which he was convicted on 25 September 2007. Findings of professional misconduct 1. The particulars of the professional misconduct were, in summary, that Mr Mukherjee, then a general practitioner: 1. Engaged in self-administration of cocaine and Xanax; 2. Illegally prescribed restricted substances to people with drug addiction; 3. Failed to disclose, at a time when he was included in the Impaired Registrants Program, administered by the then Medical Board of NSW, his addiction to those who carried out investigations on behalf of the Board. Basis for application 1. Mr Mukherjee now asserts that he has overcome his drug addiction, and that he is a fit and proper person to resume the practice of medicine. The issue of his consumption of alcohol is dealt with later in these reasons. 2. Mr Mukherjee's application for reinstatement dated 21 November 2017 seeks that he be permitted to return to practice subject to various practice and private health conditions. He accepts that his registration should be subject to conditions. Those conditions are the subject of comments in a supporting report from Dr Benjamin, Mr Mukherjee's psychiatrist. 3. The application also effectively concedes that, due to the time which has elapsed since he was in practice, that there should be appropriate professional learning and supervision requirements imposed on him. Application for a non-publication order 1. Prior to the hearing, Mr Mukherjee's solicitors notified the Tribunal that they would be making an application for an order prohibiting his name from being published pursuant to cl 17 of Sch 5D of the National Law. Relevant principles: publication 1. Tribunal proceedings are normally open and conducted in public. That reflects the principle that the administration of justice is carried on in public – see the decision of the former Medical Tribunal of NSW in HCCC v Simring (Suppression Order) [2010] NSWMT 6 and Walton v Momot [1997] NSWCA 143. There Handley JA, in dealing with an appeal against an order made by a Judge hearing an appeal from the former Chiropractic Tribunal under predecessor legislation to the National Law, said: "The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of (any) complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. "This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. "This of course reflects the general principle that the administration of justice under our system is carried on in public." Role of Tribunal 1. Protecting the interests of the public is an integral part of the Tribunal's role. Its orders have an educative function and there is a deterrent aspect both to the profession and to the public. Orders made where professional misconduct is established are also designed to uphold the maintenance of standards and the dignity of the profession. These principles are set out by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at 35 as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. Disciplinary proceedings have as their ultimate purpose the protection of the public; the public and other members of the profession have an interest in knowing of such proceedings, and their outcome, as well as the process involved and the standards applied. In this case, that becomes particularly relevant in terms of what the Tribunal considers to be the evidence necessary before reinstatement applications are considered. Exceptional circumstances 1. Subsequent decisions of the Supreme Court of NSW and the High Court dealing with the question of open justice have confirmed that departure from that principle should be limited to exceptional circumstances (see Welker v Rinehart (No 6) [2012] NSWSC 160; Hogan v Hinch (2011) 243 CLR 506 at [20]). 2. The authorities dealing specifically with medical practitioners are summarised in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [181]-[185]. 3. The exceptional circumstances relied on by Mr Mukherjee were that there would be shame and embarrassment caused to himself, his wife (who works in a related professional capacity), his children, two of whom are working in professional areas, although one of them is working overseas. 4. The earlier proceedings were dealt with in open proceedings without reporting restrictions. There is no evidence of any adverse impact flowing from the publication of that decision. In particular, there was no evidence of any impact on Mr Mukherjee of the kind referred to in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 warranting a non-publication order being made. 5. Mr Mukherjee is separated from his wife and both she and her children were fully aware of the earlier proceedings. Mr Mukherjee was unable to point to any matters which had caused them, or any of them, any adverse issues or employment consequences. Discussion and conclusions 1. Here the Tribunal considers that exceptional circumstances do not exist. The application is accordingly dismissed. Mr Mukherjee was notified of that decision on the second day of the hearing and that the relevant reasons would be forthcoming. Powers and principles relevant to the Tribunal's Review Function 1. The application is made pursuant to s 163A of the National Law. The nature and scope of the inquiry for these purposes is set out in s 163C. As part of any reinstatement order, the Tribunal is entitled to impose conditions – s 163B (4). Approach of Medical Council 1. The respondent, the Medical Council of NSW ("the Council") opposed the making of registration orders. Its position is that, given the evidence presented by Mr Mukherjee, it remains premature to restore him to the register. The Council further submits that Mr Mukherjee has not presented evidence to this Tribunal showing that he has addressed the various defects in his personal and professional life as identified by the Tribunal at the earlier hearing to: 1. Indicate that he is really aware of what the personal and professional issues as identified as being relevant to him were and are; and 2. To justify any confidence, that if he was re-instated, he would be able to carry out the proper professional role of a medical practitioner. 1. In the event that the Tribunal considered that reinstatement was appropriate, the Council made submissions as to the conditions to be imposed. Hearing/Evidence/Documents 1. The documents before the Tribunal are: Applicant 1. Information/Application dated 21 November 2017. 2. Reports 1. Reports of Dr Samir Benjamin Psychiatrist dated 19 June 2017 and 13 April 2018. 2. Report of Dr Anthony Samuels, Consultant Psychiatrist, dated 14 March 2018 and his earlier report of 17 June 2008. 1. References 1. Dr Antoine Sanki, Medical practitioner, dated 8 December 2016. 2. Pastor Paul Chibuko, Pastor of the Every Nation Church at Liverpool. 3. Dr Hazem Chahoud, Medical Practitioner of Fairfield Heights. 4. Ms Bozica Trkulja, Registered Nurse of the Fairfield District Medical Centre. 1. Witnesses In addition the Tribunal heard evidence from the following witnesses: 1. Dr Samuels, psychiatrist, engaged by the NSW Medical Council; 2. Dr Samir Benjamin on behalf of Mr Mukherjee; 3. Ms Duruchukw, a former patient and fellow Church member; 4. Dr Sanki; 5. Dr Chahoud; 6. Pastor Paul Chibuko. Mr Mukherjee: Family and Personal circumstances 1. Mr Mukherjee was married in 1980, separated in 2005 and divorced in 2007. He says that, although living apart from his wife, he is now in the process of reconciling with her. She was not called to give evidence in support of his application nor in particular, his current personal situation and circumstances. 2. Mr Mukherjee has three adult children with whom he has regular contact. Given the absence of any family witnesses, the Tribunal is unable to make any finding as to how supportive a domestic environment there might be for him in the future. 3. Mr Mukherjee is reported as saying that he goes to church three to four days per week and he says he does counselling at church with people who have depression and drug issues. That counselling appears to take the format of talking to his fellow church members. He says people there know he was, but is no longer, a doctor and that they are aware he is not registered. Chronology of relevant investigations, inquiries and reports 1. Given the matters raised by Mr Mukherjee and the matters for determination by the Tribunal, it is appropriate to set out a general chronology of events which have taken place which informs the Tribunal's decision as to background matters. Investigations: Drug and associated prescription irregularities 1. In 2002, the Pharmaceutical Services Branch ("PSB") investigated Mr Mukherjee's prescriptions of specific drugs and his overall prescription practices. Following various complaints to the Medical Board in the period to 2002, an inquiry was conducted pursuant to s 66 of the Medical Practice Act 1992 No 94 (NSW) ("the Medical Act"). At the first s 66 inquiry, Mr Mukherjee was counselled. He acknowledged that he was also handed relevant literature in relation to prohibited drugs and therapeutic substances for his assistance. 2. There were then further complaints that Mr Mukherjee had engaged in similar conduct for which he was again brought to the attention of the Board in 2006. The gravamen of those complaints was that he was prescribing drugs described in Schs 4 and 8 without prior authority. 3. A further investigation was carried out in 2006 following further, and numerous, complaints alleging inappropriate and/or dangerous prescribing of benzodiazepines and drugs of addiction. The PSB report showed numerous alleged deficiencies in Mr Mukherjee's prescribing records. The PSB completed an investigation report in early June 2006 which contained a recommendation that its report be forwarded to the then Medical Board of NSW (now "the Medical Council"). Failure to comply with practicing conditions 1. On 24 July 2006, in response to the report by PSB, the Medical Board convened proceedings under s 66 of the Medical Act. As a result of these proceedings, conditions were imposed on Mr Mukherjee's registration. Those related particularly to his powers to prescribe drugs. Legal proceedings 1. In proceedings before the Industrial Magistrate's Court in 2007, the prosecution alleged that Dr Mukherjee had attempted to obtain for himself a financial advantage in connection with the NSW Workers Compensation Scheme. 2. The decision of the Chief Industrial Magistrate of 1 March 2007 makes clear that the prosecution had established beyond any reasonable doubt that an invoice was sent by Mr Mukherjee from where he worked at the Fairfield District Medical Centre to Vero Workers Compensation. Pursuant to those invoices he made claims for payment in respect for consultations which never occurred. 3. Mr Mukherjee had also falsely claimed reimbursement for a patient stating that the patient had visited him for consultations on ten occasions. 4. Mr Mukherjee was found guilty of a breach of s 235A(1) of the Workplace Injury Management and Workers Compensation Act 1998 No 86 (NSW). 5. On 25 September 2007 at the Local Court Burwood, Mr Mukherjee pleaded guilty to 63 counts of making a statement he knew to be false or misleading in relation to a claim for a Medicare benefit or payment under the Health Insurance Act 1973 (Cth). 6. Mr Mukherjee was sentenced to perform 100 hours of community service and a three-year good behaviour bond, a condition of which was that he was to be under the care of Dr Sharat Lal, a psychiatrist during the three-year period. In addition Mr Mukherjee was ordered to make reparation to Medicare Australia in the sum of $9,453.70. 7. On 15 July 2008 Mr Mukherjee was also disqualified from receiving Medicare benefits for three months by the Medicare Participation Review Committee ("MPRC"). Appeal: Industrial Court of NSW 1. The conviction was appealed pursuant to s 197 of the Industrial Relations Act 1996 No 17 (NSW) because the patient in question did not attend court and the prosecution could not proceed as it was a de novo hearing. The appeal was upheld. Appeal: AAT; Federal Court 1. Mr Mukherjee sought a review of the decision of the MPRC by the Administrative Appeals Tribunal ("AAT"). The AAT decision was handed down on 30 June 2009 and affirmed the decision of the MPRC. Mr Mukherjee then appealed the decision of the AAT to the Federal Court. On 17 March 2010 the appeal was dismissed. Psychiatric diagnosis and assistance 1. On 24 September 2007 (the day before the Industrial Court proceedings referred to above) Mr Mukherjee was seen by Dr Sharat Lal who prepared a report at Mr Mukherjee's request – report to Dr Andrew Dickson, dated 29 April 2008. The report concluded that Mr Mukherjee suffered from Bipolar II disorder. Dr Lal thought Mr Mukherjee was depressed. He had been prescribed and was taking Zoloft/Sertreline, an anti-depressant medication. Dr Lal made reference to Mr Mukherjee being seen by Dr Doron Samuel. Dr Lal further noted in the report that Mr Mukherjee had problems with gambling and alcohol abuse. 2. On 29 April 2008 Dr Lal wrote a report for the Board which stated that Mr Mukherjee had not returned to see him (a breach of the Good Behaviour Bond – see additional court proceedings below). The report also stated that "…Mr Mukherjee suffered from Alcohol Dependence" which was then in remission. Dr Lal considered Mr Mukherjee an Impaired Practitioner. 3. In response to the report by Dr Lal, the Medical Board engaged Dr Samuels to assess whether Mr Mukherjee should be dealt with via an Impaired Registrant's panel. Dr Samuels provided a report on 17 June 2008 which supported the diagnosis of a Bipolar Disorder made by Dr Lal. Dr Samuels also confirmed that he considered Mr Mukherjee to be an Impaired Practitioner within the meaning of the National Law and thought he should enter the Impaired Program. 4. Mr Mukherjee's entry was then facilitated into the Impaired Registrant's Programme in August 2008. At that stage, he had admitted his use of cocaine. Impaired practitioner determination 1. The Board convened an Impaired Registrant's Panel under s 82 of the Medical Act on 13 August 2008. The Panel determined that the conditions currently imposed on Mr Mukherjee's registration should remain. Those were to supplement the existing conditions with additional practice and health conditions. Further events precipitating professional and police investigation 1. On 24 November 2009, Mr Mukherjee contacted the police to attend his residence to report a break and enter. When the police arrived at his residence Mr Mukherjee advised the police that he did not want them to investigate the break and enter. After receiving his consent, the police entered the residence where they discovered a large amount of prescription medications and numerous prescription pads. Those pads were shown as bearing the name of seven other practitioners. The police also discovered small quantities of cocaine and methyl-amphetamine as well as a collection of pipes consistent with use for the smoking of methyl-amphetamine. The prescription pads were not in the name of Mr Mukherjee. Mr Mukherjee said that he had inadvertently kept the pads. 2. At this point Mr Mukherjee complained of sharp chest pains and was taken to Bankstown Hospital. He was subsequently placed under arrest and cautioned by police at the hospital on 25 November 2009. Mr Mukherjee admitted to using cocaine and methyl-amphetamine. 3. Following information received from the police regarding the incident, the Medical Board convened a second s 66 inquiry on 21 December 2009. 4. The Investigating Officer provided a critical report in relation to Mr Mukherjee actions as follows: 1. Prescribing known drugs of dependence to patients with known addictions; 2. His record keeping; and 3. His prescription practices outside therapeutic guidelines. 1. The Board found that the large quantity of prescription drugs at Mr Mukherjee's residence was a breach of the conditions of his registration. The Board determined in December 2009 that Mr Mukherjee should be suspended from practice for a period of eight weeks. 2. During the period of suspension Mr Mukherjee failed to renew his registration resulting in his name being removed from the register of medical practitioners on 19 January 2010. 3. The Council Review Interview report, dated 12 August 2009 noted that Dr Mukherjee was noted to be compliant with his conditions and the results of his CDT tests (Carbohydrate deficient transferrin: blood tests which indicates moderate alcohol consumption) were within the expected range. It was noted that Dr Samuels had had some concerns that he might be elevated in mood but there was no evidence of sustained mood disturbance. Health Care Complaints Commission 1. Arising out of these events, the Health Care Complaints Commission ("HCCC") prosecuted an amended complaint concerning Mr Mukherjee before the Medical Tribunal of NSW. The complaint alleged that he was guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss 36 & 37 of the Medical Act in that he had demonstrated a lack of adequate knowledge, skill, judgement and/or care in the practice of medicine and/or was guilty of unethical or improper conduct relating to the practice of medicine. 2. The complaint also alleged that Mr Mukherjee had contravened a condition imposed on his registration and referenced the conviction in 2007. 3. The Tribunal proceedings concerned prescribing of Sch 8 and Sch 4 drugs without authority, on a long term basis and outside therapeutic guidelines as well as inadequate record keeping in relation to drugs of addiction and prescriptions in general. 4. On 7 October 2010 the Tribunal found Mr Mukherjee guilty of unsatisfactory professional conduct and professional misconduct and made the following orders: 1. Mr Mukherjee's name be removed forthwith from the Register of Medical Practitioners and he not apply for re-registration as a medical practitioner for a period of two years from that date. 2. The respondent (Mr Mukherjee) pays the complainant's costs. 1. Those costs were paid in full by Mr Mukherjee in 2011. Complaint made after deregistration 1. The Tribunal also heard evidence that in 2012 a complaint was made to the regulatory authorities by a person (known as "J.H.") whom Mr Mukherjee had seen prior to his deregistration. The complaint (Exhibit 21) was to the effect that Mr Mukherjee had conducted an unsolicited exorcism on J.H. and that Mr Mukherjee had supplied J.H. with cannabis and that he had solicited cocaine from J.H. It was accepted as a business record subject to weight. 2. In cross examination on 24 July 2018, Mr Mukherjee said that he was aware of the complaint by J.H. in 2012 and the allegation by J.H. that Mr Mukherjee had asked him for cocaine and smoked "weed" with him every day. Mr Mukherjee denied those allegations and said they were "deliberate lies" as well as being false and misleading. 3. The Tribunal is concerned that, if the facts related to that complaint are established, they are very serious allegations going directly to Mr Mukherjee's character and his competence as a doctor. They appear to have taken place after Mr Mukherjee's deregistration and, because of that, were not investigated further by the Medical Council. However, at this stage, the allegations are strenuously denied by Mr Mukherjee and J.H. is not to be called. The state of the evidence is not such that this Tribunal can neither accept nor operate on either the complaint or the allegations made. The Medical Council also submits that the allegation cannot be given great weight. Fraud 1. Mr Mukherjee was found guilty of medical fraud in 2007. That arose from the submission of false Medicare claims. He was convicted on 64 counts. Mr Mukherjee says that he repaid the amount outstanding. Mr Mukherjee: Disability Pension; Circumstances of disability 1. Mr Mukherjee has received the disability pension for some years. He said that that pension was given to him based on his mood disorder and ulcerative colitis. Mr Mukherjee says that all these adverse medical conditions are continuing other than his bipolar disorder which he says is either in remission or no longer in existence. Depression 1. Mr Mukherjee has been diagnosed with depression over a long period of time – apparently initially when he was a student in India in the late 1970's. Over that period he has had a number of depressive episodes. He has been taken off his psychotropic medication now for about six months. Mr Mukherjee also referred to the course he has completed with the Royal Prince Alfred Hospital for the management of his depressive symptoms. 2. The disability pension Mr Mukherjee receives was based on a past diagnosis of bipolar disorder by Dr Sharat Lal and Dr Sharah. Mr Mukherjee hasn't seen either doctor for some years. Mr Mukherjee did not propose to call either of those doctors as part of his case. 3. It appears from Dr Sharat Lal's reports that Mr Mukherjee's major depression had been in existence from his time as a student in India: see report Dr Sharat Lal 24 September 2007 Tab 10: p145-148. Mr Mukherjee said that he had been "quite stable" for the last 10 years and has no underlying mood disorder. While he says that he no longer has that disorder he is still claiming the disability pension based, in part, on the basis of a diagnosis of Bipolar Disorder. He has not notified the Department of Human Services that he no longer has bipolar disorder. 4. His ulcerative colitis has been diagnosed and monitored by Dr Hamish once per year. That is now under control. His other medications are prescribed for him by Dr Girgis who is his treating doctor. Mr Mukherjee saw Dr Girgis in relation to back pain which was diagnosed six years ago. He was also diagnosed with diabetes some years ago. 5. Mr Mukherjee did not propose to call either Dr Girgis or Dr Hamish as part of his case. 6. The absence of evidence from those medical witnesses is of concern in terms of coming to a conclusion as to Mr Mukherjee's capacity to practice. If it is said that either his depression or ulcerative colitis is of such significance or depth to warrant a disability pension, it is also difficult to assess how those disabilities will affect his role and capacity as a doctor. 7. No reason was given as to why these medical practitioners, who saw Mr Mukherjee either in relation to those conditions or recently were not called to give evidence as to Mr Mukherjee's current medical or psychiatric condition. The Tribunal is unable to form any view as to whether there was any continuation of those conditions or any of them given his description of them and the extent of them, from earlier years. This is of particular concern as the thrust of Mr Mukherjee's case is that he has substantially recovered and is fully able to carry out the responsibilities and physical tasks associated with medical practice. If that is the case, it is unclear why he is still receiving the disability pension. 8. Mr Mukherjee is also having urine drug testing. While most of his tests were negative, he did register positively for methadone on 17 May 2017. He denied any knowledge of that positive test nor that he had been taking methadone. His evidence is that he is not taking any illegal drugs and has not since 2010. The Tribunal notes that there is no evidence of his abstention from alcohol (for example, by objective CDT testing results) other than his assertion to that effect. 9. Mr Mukherjee also produced copies of urine tests (exhibit 20). Those related to tests carried out from April 2018 to late June 2018. Significantly, no methadone was detected. Alcohol consumption 1. In relation to the issue of alcohol consumption, Mr Mukherjee said that he had had a low range PCA conviction in 2003 and that his alcohol consumption increased substantially at the time of and after his marriage break-up. He says he went to meetings of Alcoholics Anonymous ("AA") in 2010-2011 and worked through the steps of that programme. However, he did not have a sponsor and stopped his participation because he did not think it was necessary. He saw Dr Sharah a private psychiatrist. He did not attent the "Doctors in Recovery" meetings nor pursue it or any similar programme. 2. Mr Mukherjee told Dr Samuels that he had had a problem with the consumption of alcohol since he had been in Australia. He denied saying that although he had had such a problem after the breakup of his marriage in 2005. He says that he ceased using alcohol in 2007. Applicant's case 1. In his opening statement before this Tribunal, Mr Mukherjee expressed remorse for his conduct and the consequences of that conduct, for his illicit drug use and for failing in his obligations to his patients. He said that he has attempted to give effect to that remorse by assisting his community, particularly his fellow church members. He reiterated that his conduct, behaviour and attitude had changed saying repeatedly that he had "…gained insight which would fortify him in not repeating what he had done". He also said that he has become more disciplined and self-reliant. He no longer has the mood swings that he had before and does not suffer from stress. 2. He said that he now accepts that when he was a participant in the Impaired Registrants' Program that his behaviour was dishonest and admits that he failed to comply with conditions imposed on his registration. 3. Mr Mukherjee's case is essentially that he has undertaken rehabilitation and counselling as well as some professional development and that he is now a fit and proper person to practice medicine. In particular, he says that he has ceased taking illegal drugs (cocaine and methyl-amphetamine) as well as alcohol and has been free of them for at least seven years. He said that he has undertaken on-line CPD education as well as sitting in with a medical practitioner, Dr Chahoud, over what appears to have been an 18-month period to upgrade his skills. He says that his personal issues have been addressed by him undertaking meditation and yoga as well as walking and consultations with Dr Samir Benjamin. Mr Mukherjee's case: Re-entry to medical practice; CPD training 1. Mr Mukherjee's case was that he was carrying out a process of preparing himself for re-entry to general practice with Dr Chahoud. He acknowledged that was not part of an official process but said that they were following the RACGP curriculum. He says he has done his CPD for the 2014 to 2016 triennium. He relied on the documents produced as exhibit 19. 2. Mr Mukherjee said that Dr Chahoud would offer him a job in Leumeah in the future and act as his supervisor. That appears to no longer be the case – see below: Dr Chahoud. Professional development 1. Mr Mukherjee's statement also sets out what he has done over the last 12 months in terms of professional development activities and what is proposed over the next 12 months. The statement addresses various learning needs, prescribing methods and medications. Mr Mukherjee says that he has already been under a similar kind of program since October 2016. 2. Prior to the resumed hearing on 24 July 2018, Mr Mukherjee produced material (exhibit 19) entitled "Medical Studies Journal (Personal Study)". Mr Mukhajee said that he had read all those articles and had discussed those with Dr Sanki and Dr Chahoud. Dr Benjamin: contact, diagnosis and opinions 1. Mr Mukherjee also relies on the report and opinions of his psychiatrist, Dr Benjamin. Dr Benjamin has seen Mr Mukherjee on eight occasions since June 2017. Mr Mukherjee was referred to Dr Benjamin by Dr Sanki. Dr Benjamin diagnosed Mr Mukherjee as having suffered with "Alcohol Dependence Disorder, Stimulant Use Disorder" and, possibly, Substance Induced Mood Disorder, during the period of 2006 to 2010 as a result of using illicit substances, alcohol and benzodiazepines. 2. Dr Benjamin considered that Mr Mukherjee's addiction to alcohol and illicit substances, in addition to the Substance Induced Mood Disorder, significantly contributed to his unlawful conduct between 2006 and 2010. In his view, these psychiatric conditions however, have been addressed and improved. In Dr Benjamin's opinion, those conditions and disorders are no longer impacting on Mr Mukherjee, his behaviour or judgment. 3. Dr Benjamin said that Mr Mukherjee had undergone significant transformation over the past seven years since he was de-registered as a medical practitioner. He has stopped drinking alcohol, using illicit substances or engaging in unlawful behaviour. He joined a Christian Church and he volunteered helping disadvantaged and destitute individuals in the congregation. Dr Benjamin had provided Mr Mukherjee with psychotherapy to develop an understanding that what he did was wrong and to assist him in setting goals. 4. Dr Benjamin said that Mr Mukherjee was happy to work under supervision, not to prescribe Sch 8 medications and to report to his private psychiatrist and the psychiatrist appointed by the Medical Council on a regular basis. 5. Dr Benjamin said that Mr Mukherjee has undergone urine drug testing on a weekly basis with no illicit substance abuse noted. 6. He said that Mr Mukherjee understands that if he were allowed to practise medicine again he would not be allowed to prescribe Sch 8 medications or medications that may result in addiction. He also understands that he would be only allowed to work under supervision and report to his supervisor on a regular basis. 7. Mr Mukherjee would also be required to attend psychiatric follow up appointments to monitor his progress once he returns to work. Given the above safeguards, Dr Benjamin's opinion was that it was highly unlikely that Dr Mukherjee would reoffend. 8. In cross-examination, Dr Benjamin said that he was unaware of Mr Mukherjee's positive result for methadone as tested in June 2017 nor of the history of depression for Mr Mukherjee going back to his time in India as a student in the late 1970s. He agreed that knowledge of those two matters would, if true, change his opinion, in particular, as to Mr Mukherjee's veracity and his prognosis. He thought it was unlikely that there would have been a false positive for the methadone result in June 2017. 9. It is unclear how that result came to be communicated to the Tribunal (having been sent under the hand of Mr Mukherjee's then solicitors) as it was said to have been an attachment to Dr Benjamin's last report. Dr Benjamin denied having any knowledge of it. The tests had been ordered by Dr Girgis. Mr Mukherjee did not propose to call Dr Girgis, who had been his treating doctor for some years. Dr Samuels 1. Dr Samuels was engaged by the Medical Council over a number of years to report on Mr Mukherjee. Dr Samuels has had over 20 years' experience in dealing with impaired practitioners, particularly in the medical and quasi or para-medical fields, and importantly, in dealing with practitioners with drug and alcohol problems. 2. He had seen him and prepared a report in 2008 and a further report in 2018. Dr Samuels had seen Mr Mukherjee on at least 10 occasions. 3. Dr Samuels sat in while Mr Mukherjee gave his evidence in this hearing and was subject to questioning by Mr Mukherjee. At the end of that process he said that his opinions as to Mr Mukherjee's lack of insight, his inability to comprehend what he had been told by various professional advisors over years, was confirmed and fortified. He thought that Mr Mukherjee used terms of "insight" and "having learnt from my mistakes" and "personal growth and change" in a "jargonistic" way which was reflective of his limited capacity for insight and that he should not be regarded as a reliable reporter of his own situation. 4. Notably in this regard, Dr Samuels thought that Mr Mukherjee had the capacity to minimize events in the past and to reframe them according to his own version of events. Further, that Mr Mukherjee had no capacity to really address the issues highlighted by the Tribunal and others, nor to modify his own behaviour. He had no real appreciation of the sentinel events which had occurred leading to his drug habits and abuse. He did not think that Mr Mukherjee would be a successful graduate on the Impaired Practitioner's Programme until he was really prepared to cooperate. 5. Dr Samuels thought that Mr Mukherjee's evidence highlighted areas of his questionable veracity as well as indicating the absence of any real analysis of the issues which had led to his deregistration and what he needed to do to change. He thought that Mr Mukherjee may well be in a situation of remission from the Bipolar Disorder given the medication he was on and the limited support there were in place and available. However, there was a risk of relapse. 6. Dr Samuels thought that if Mr Mukherjee was permitted to return to practice, the choice of a supervisor would be critical. He also thought that Mr Mukherjee had the tendency to ingratiate himself with others which would have implications in selecting a supervising professional who could keep at arm's length from Mr Mukherjee. That person would need to check Mr Mukherjee's prescriptive and diagnostic conduct on an almost daily basis, particularly in the early months. It would be, and need to be, a very time-consuming responsibility. The Tribunal would need to be satisfied that there was a suitable professional who could carry out that task – and who would be prepared to undertake that task - almost to the point of micro-managing Mr Mukherjee. 7. Dr Samuels thought that the evidence presented by or on behalf of Dr Mukherjee was deficient in addressing his psychiatric or clinical approach to treatment. That evidence would need to address his inabilities in all these areas as well as his underlying antisocial personality traits and his mood instability, particularly in the period when he had been diagnosed with Bipolar Disorder – a condition where, as noted, he saw that there was a risk of relapse. 8. When taken to this summary of Dr Samuel's evidence, Dr Benjamin said that he agreed that Mr Mukherjee lacked insight. Mr Mukherjee knew the effect of what had happened to him but not the cause of it nor what he could do about it. He also agreed that Mr Mukherjee had underestimated or underplayed what his issues were and tended to minimize the complaints against him. 9. Dr Benjamin had also seen instances of impulsivity in Mr Mukherjee's approach to issues, having a tendency to deal with problems in a "lumpy", all-inclusive way rather than breaking down the issues into (at least) personal and professional problems and dealing with them appropriately. He also thought that his alcohol use had "crept up" over time but that his drug use had developed from cannabis to cocaine and at least one instance of methyl-amphetamine abuse. Dr Benjamin agreed that the circumstances of the discovery of items at his home raised a lot of issues which had not been dealt with adequately. 10. There was a difference between Dr Samuels and Dr Benjamin as to whether Mr Mukherjee had long term and ingrained anti-social personality traits (Dr Samuels) or mood disorders (Dr Benjamin). 11. To the extent necessary, the Tribunal accepts the evidence and opinions of Dr Samuels over that of Dr Benjamin based on Dr Samuels' longer and more detailed awareness of Mr Mukherjee's history. The Tribunal considers that, in many areas, Dr Benjamin had not been provided with sufficient information to make the observations which were required of him. Supervision order: conditions 1. Against the background of the matters set out above, Dr Samuels said that the conditions of a supervision order should include addressing at least the following areas. Employment 1. Both psychiatrists addressed the issues of ongoing employment and supervision against the headings set out below. While the conditions are not relevant in the light of the conclusions reached by the Tribunal, it should be noted that both psychiatrists thought that there should be conditions imposed. Those would have had clear implications for any employment in which Mr Mukherjee became engaged. 2. Dr Samuels considered that if contrary to the primary thrust of his recommendations that Mr Mukherjee not be re-registered, it should be a condition of any employment of Mr Mukherjee that he be subject to various conditions. Notwithstanding the final conclusions reached by the Tribunal, these are set out to assist any future Tribunal and in the event that the Tribunal's decisions are considered elsewhere or at a later date. 3. The thrust of the recommendations proposed by Dr Samuels are that: 1. Mr Mukerjee has close clinical supervision. Dr Samuels thought that in early months, that supervision would need to be conducted on "…almost a micro-managing level" which would be very exhaustive; 2. Any such (independent) supervisor report regularly on his progress to the Medical Council; 3. A mentor be allocated for him with whom he has constant and regular contact and who should carry out an evaluation of his practice; 4. He be restricted to a certain number of patients per day and per week; 5. He only works in a group practice and all members of that practice, and senior administration should be aware of the conditions on his registration; and 6. He be chaperoned when interviewing female patients. Monitoring 1. Objective forms of monitoring should be established including: 1. CDT - Carbohydrate deficiency transferrin testing; 2. Urine drug testing; and 3. Liver function testing. Restrictions and conditions on practice 1. Mr Mukherjee should not have his Schs 4 and 8 prescribing rights returned in any form. 2. Mr Mukherjee should: 1. Continue to see Dr Benjamin on a more regular basis – at least monthly; 2. Begin some formal psychological treatment on a regular basis to explore and better understand what has happened; 3. Be reviewed by the Impaired Registrant's Panel on a three-monthly basis; and 4. Be reviewed by the Council appointed psychiatrist on at least a three-monthly basis. Mr Mukherjee's revised Plan 1. On 11 May 2018, Mr Mukherjee submitted a Plan for professional development and re-entry to practice as a general practitioner to comply with those recommendations over a twelve-month period. He said that he had developed that plan after contact with the College of General Practitioners in 2016 and 2017. He could not recall to whom he had spoken nor did he have any documentation about the contact nor the advice he had received about his professional development. 2. The employer originally proposed by Mr Mukherjee was Ozzie Health Pty Ltd and the organisation with which Mr Mukherjee proposed to work was the Fairfield District Medical Centre. Mr Mukherjee has had a long association with that Centre going back to 1984 when he moved from Melbourne to Sydney. The extent of that association and Mr Mukherjee's familiarity with the practitioners involved becomes relevant when considering Dr Samuel's concern that there would need to be an independent monitoring/supervisory role carried out by any professional employer. 3. In accordance with what he had been told by Mr Mukherjee, Dr Benjamin had prepared his opinion on the basis that the proposed supervisors for Mr Mukherjee would be Dr Soheir Sanki (principal supervisor) and Dr Antoine Sanki (secondary supervisor). Further, that their supervision of Mr Mukherjee will be onsite at the Fairfield Centre. It subsequently became clear that Dr Chahoud would become the supervisor in his practice at Campbelltown. For the reasons set out below, the Tribunal does not consider that either Dr Sanki nor Dr Chahoud would be appropriate supervisors for Mr Mukherjee. Objection to opinion evidence 1. Objection was taken at the outset of the hearing to the receipt of opinion evidence from both Drs Sanki and Chahoud on the basis that they had not complied with the expert witness code of conduct nor had the basis of their opinions been established. While both those objections were legally sound, the Tribunal determined to receive the evidence subject to the weight to be given to each of their opinions as well as the evidence actually led from those witnesses as to their knowledge, professional and otherwise, of Mr Mukherjee and their proposals for their future involvement with him. Dr Antoine Sanki 1. Dr Sanki, who is a general surgeon, has known Mr Mukherjee for 25 years. Dr Sanki had provided two references for Mr Mukherjee (exhibits 6 and 7). He prepared those references before seeing the 2010 decision of the Tribunal. He has also expressed the view that Mr Mukherjee has "miraculously recovered completely". It was noted in earlier proceedings that he "…has a personal relationship with Mr Mukherjee". It is clear that they have had a close personal relationship. 2. The evidence of Dr Sanki was that he had not discussed with Mr Mukherjee any of his plans for dealing with particular patients nor with his plans for record keeping or compliance. He was aware of the complaints which had been made but not of Mr Mukherjee's history of alcohol consumption. 3. Dr Sanki was aware that "…there had been some problems with Mr Mukherjee when he was at Campbelltown" but he had made no enquiries as to what those issues or problems were. He was not aware of the Impaired Practitioner Programme. 4. Dr Sanki said he would be prepared to be the supervisor of Dr Mukherjee notwithstanding that he was a surgeon and Dr Mukherjee a general practitioner and their professional work and focus could be quite different. Dr Sanki appeared to have only very recently considered what might be needed as far as supervision was concerned. He said his wife would be the primary supervisor. His wife was not called to give evidence 5. Dr Sanki conceded that it would be likely that Mr Mukherjee would be working long hours and that the pressures both would be under could affect the quality of the supervision which might be necessary. 6. Dr Sanki had a limited understanding of what the Impaired Practitioner Programme was or involved. He was of the view that Mr Mukherjee did not have a current mood disorder nor depression although he is not a psychiatrist. He was simply agreeing with what he was told by or read from Dr Samuels' reports. It was news to Dr Sanki that Mr Mukherjee had had a history of depression. 7. The Tribunal did not feel confident that neither Dr Sanki nor Mr Mukherjee had really considered the implications, time and other demands of the supervision which would be needed for Mr Mukherjee nor had they made a detailed assessment of the ongoing needs Mr Mukherjee would have if he returned to practice. Dr Hazeem Chahoud 1. Dr Chahoud is a general practitioner who was previously practising in Fairfield then in Lumeah, NSW. He now practices as an employed doctor at Campbelltown. While Dr Chahoud had said in the past that he would be prepared to employ Mr Mukherjee, he had not discussed with the owner of the Campbelltown medical practice where he now works whether Mr Mukherjee would be employed as a doctor in that centre. 2. Mr Mukherjee had asked him to assist him in his re-registration application. Dr Chahoud provided an undated reference (exhibit 22) for Mr Mukherjee who, he said, had been his patient over a period of about four years. 3. Dr Chahoud had been seeing Mr Mukherjee primarily for treatment of his ulcerative colitis. He wasn't treating him nor had he treated him for any psychiatric condition. 4. Dr Chahoud was not aware that Mr Mukherjee was seeing other general practitioners, such as Dr Girgis for other conditions nor that drug testing was being undertaken by another doctor. 5. Dr Chahoud did not know the specifics of why Mr Mukherjee had been deregistered but recalled that Mr Mukherjee had told him that the basis included his use of heroin (on one occasion only) and alcohol in abusive quantities. 6. Dr Chahoud also said that he didn't know at the time when he provided his reference that the allegations and findings of the previous Tribunal included Mr Mukherjee making false claims to Medicare and carrying out inappropriate prescribing practices. 7. Dr Chahoud said he had discussed CPD and professional matters with Mr Mukherjee over about 20 occasions. That included him seeing patients with a variety of conditions with Mr Mukherjee. These discussions and consultations had occurred about two years ago while he was working at Liverpool. They had discussed cases together. Following that process, he thought Mr Mukherjee's medical knowledge was good, that he was competent and that he had a good, kind relationship with patients. Availability of time for supervision 1. Dr Chahoud works about 50 hours a week which involved him seeing about 30 patients a day. If Mr Mukherjee worked with him at Campbelltown he estimated that he, Mr Mukherjee would also be working about 50 hours a week. He thought he would be able to supervise Mr Mukherjee by looking at his prescriptions and notes. 2. The Tribunal did not consider that the possibility of Dr Chahoud working with Mr Mukherjee, as a doctor requiring close supervision, had been thought through, if at all. 3. During the giving of Dr Chahoud's evidence there was a dispute between Mr Mukherjee and Dr Chahoud about the factual basis for Dr Chahoud's recollection. That dispute included Mr Mukherjee's very vehement denials that he had ever said that he had taken heroin and Dr Chahoud's clear recollections that that was what he had been told. Dr Chahoud was also concerned that he had not been told of the false claims to Medicare and Mr Mukherjee's inappropriate prescribing practices. 4. Dr Chahoud said that, now knowing those details, in particular, the making of false claims to Medicare and Mr Mukherjee's inappropriate prescribing practices, that he would be more cautious in his offer to employ him or to assist him in gaining employment. While Dr Chahoud had said in the past that he would be prepared to be a supervisor, he was clearly troubled about the details of problems in Mr Mukherjee's past and his lack of awareness of what the earlier Tribunal proceedings had involved. 5. Dr Chahoud did not give the Tribunal any confidence that he understood the extent and demands of what would be needed to properly supervise Mr Mukherjee. 6. Dr Chahoud also didn't think there was any reason for concern arising out of the fact that he had been Mr Mukherjee's treating doctor and was then proposing that he would then go on to be his professional supervisor. 7. While Dr Chahoud said he knew of Mr Mukherjee's usage of heroin he didn't ask Mr Mukherjee for details of that usage. He thought that had happened some time ago. He thought that that may have implications if there was a restriction on Mr Mukherjee's ability to give SA8 prescriptions. 8. As set out above, it became clear from Dr Chahoud's evidence that he had not discussed the issue of Mr Mukherjee's employment with his employer, the owner of the medical centre in which he worked. Nor had there been discussion or consideration of the issues of supervision including the time to be taken and costs which would be likely to be incurred with that supervision to any significant extent. In that regard, the Tribunal accepts Dr Samuels' evidence that, if there was to be supervision, it would need to be almost to the extent of micro-managing Mr Mukherjee, at least in the early stages. 9. The Tribunal has some concerns after hearing evidence as to whether Dr Chahoud would be able to provide or fulfil an independent supervisory and monitoring role for Mr Mukherjee in any event. That is both because of his lack of any detected knowledge of Mr Mukherjee's issues and past conduct as well as the lack of consideration by him of the demands on the time of both supervisor and supervisee if Mr Mukherjee was to return to practise with Dr Chahoud. 10. The Tribunal also has specific concerns about Dr Chahoud's awareness of the responsibilities of professional supervision given that he, Dr Chahoud, had told patients for more than five months they had seen patients together that Mr Mukherjee was a doctor. He said he didn't know at that stage that Mr Mukherjee was not a doctor. If that was the case, the Tribunal does not understand why Dr Chahoud was seeing patients with Mr Mukherjee present in some sort of co-consultative capacity. 11. This area of evidence was subject to dispute as Mr Mukherjee said at least in the course of his final address that he had told Dr Chahoud that he was not a doctor and that he had told that to the relevant patients. 12. The Tribunal raised its concerns in this regard with the legal representatives of the Medical Council during submissions given the provisions of s 116 of the National Law. Counsel informed the Tribunal that the issue had been raised with the Medical Council. There will apparently be an examination of the transcript of what was said before considering what action will be taken. In those circumstances – and given that Dr Chahoud is not strictly a party to these proceedings – all the Tribunal can do at this stage is to reiterate its concern as to Dr Chahoud's beliefs and practices in this instance. Pastor Chibuka 1. Mr Chibuka, the Pastor of the Every Nation Church at Liverpool, gave evidence for Mr Mukherjee and provided a reference for him dated 15 December 2016. 2. Mr Chibuka said that Mr Mukherjee joined the church in 2011 and had been "born again". He now came to the Church every day. 3. Mr Mukherjee was primarily involved in bible studies and being an usher. He was involved in helping people who had "come to Jesus" to assist them when they were in the Church to be more strong in their faith. That was mainly done by him talking to them and listening to them rather than counselling them. 4. He had never seen Mr Mukherjee being drunk or under the influence of drugs. References provided on behalf of Mr Mukherjee 1. There were a series of references provided on behalf of Mr Mukherjee, all of which suffered from the apparent defect that, on the face of them, while the referees said that they were aware that Mr Mukherjee had been de-registered, they did not indicate any detailed knowledge of the earlier Medical Tribunal determinations nor the problematic issues identified. 2. One referee, Ms Eucharia Duruchukw, a former patient of Mr Mukherjee, gave evidence by telephone. She said she was also a member of Mr Mukherjee's Church. She was not aware of the other complaints against him. She would not accept that Mr Mukherjee would have prescribed drugs to addicts. Law 1. The relevant legislative provisions governing this Tribunal inquiry make it clear that the focus of the inquiry is to determine whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. The issue is to be determined as to what is appropriate at this point in time. The onus and standard of proof 1. The onus or burden of proof is on the applicant for re-registration. As was said in Ex parte Tziniolois; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at [461] per Walsh JA: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. "If a man has exhibited some serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show some years later he has established himself as a different man." 1. This and related principles have been adopted and been followed by the Tribunal consistently – see Shah v HCCC [2014] NSWCATOD 94. 2. Relevantly, given that this is a reinstatement application, it has been stated in Re Mansoor Haider Zaid [2006] NSWMT 6 at [42] that: "[A]n applicant for reinstatement…is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness." 1. It is well established, due to the protective nature of the jurisdiction as well as the interests of both the practitioner and the public in determining the seriousness of the complaints, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. Objects of the National Law 1. The objects of the National Law, found in s 3 and particularly in NSW in s 3A, guide and direct the Tribunal in its decision making. At the heart of all proceedings is the mandate to ensure decisions protect the health and safety of the public. Also relevant is that a Tribunal ensure only those practitioners who are fit to practise are registered if a claim of not suitable to practise is established. 2. Against the reference to the objects of the legislation, it is relevant at this point in these reasons that the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). Professional misconduct and Unsatisfactory professional conduct 1. Here the Medical Council submits that there has been professional misconduct, and in the alternative, unsatisfactory professional conduct as defined in s 139B (1) (a) and (l) of the National Law. Those provisions are as follows: Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported Professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Impairment 1. The earlier Medical Tribunal found that Mr Mukherjee was impaired. Impairment is defined in s 5 as follows: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or … Competence 1. The Tribunal needs to consider whether the practitioner is competent to practise the profession under s 139 of the National Law. Section 139 (a) relevantly provides: A person is "competent" to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; Not suitable to hold registration 1. Section 144 of the National Law sets out the grounds on which a complaint may be made. Section 144 (e) provides as follows: The following complaints may be made about a registered health practitioner: … (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. Powers 1. The Tribunal's powers on review are found in s 163B. That section relevantly provides as follows: (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; ... (c) make a reinstatement order; (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. The Tribunal's obligations in conducting the inquiry for review of the earlier order are found in s 163C. That section now provides: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. Objectives and Guiding principles 1. Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. As in all applications in which the Tribunal in NSW is involved under the National Law, the guiding principle and object in s 3A applies. That section provides as follows: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 1. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. Exercise of power 1. The High Court has made it plain that the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds". Clearly the Tribunal needs to exercise its discretion having regard to the facts of the case - see generally Re Lenehan; [1948] HCA 45; 77 CLR 403; per Latham CJ, Dixon and Williams JJ at [33]; Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 448; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at [15]; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58. It was also noted by Kirby J in Dawson (in a dissenting judgment) that: "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance." 1. In In Re Jason Martin [2010] NSWMT 13, the Medical Tribunal also noted that the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. Further that, it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future." 2. That Tribunal noted the difficulty associated with predicting how a practitioner will behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". The Tribunal explained "in making that assessment [the tribunal] may draw inferences from what has happened in the past and in particular, what led to him [her] being removed from the Register". Good character 1. When considering the issue of "good character" the principles set out in HCCC v Karalasingham [2007] NSWCA 267 in the reasons of Basten JA are instructive. His Honour, at [45] explained the words " 'not of good character' do not bear a special or technical meaning." His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character. Subsequent complaints to HCCC 1. The Medical Council tendered a summary of complaints made against Mr Mukherjee in the period 2000 – 2012 pursuant to s 163C (3). All except one were prior to his deregistration. The 2012 complaint was dismissed or not proceeded with because at that stage, Mr Mukherjee was no longer a medical practitioner. 2. Mr Mukherjee's response to that (2012) complaint by the person referred to as "J.H." was that his allegations were "… a total lie and deliberately misleading". 3. Given the seriousness of the allegations and the consequences to Mr Mukherjee, the Tribunal determined that it would require proof of those allegations and that Mr Mukherjee be given the opportunity to challenge them. However, as the Tribunal does not take that complaint nor the allegations on which it was based any further, the Tribunal does not take them into account in this determination. Submissions 1. In submissions, the Medical Council criticises Dr Benjamin's evidence on the basis that he has not really addressed the issues of Mr Mukherjee's honesty or capacity to understand the nature of the concerns that have been raised and which have and had resulted in the complaints which were made against him. 2. Counsel also submitted that the evidence showed that Mr Mukherjee even on this second hearing after having had some eight years to consider the position, either minimized or justified much of his prior conduct in ways which reflected on his character and credit. Examples were in relation to his consumption of medication, the use of one prescription pad when there were clearly others involved ("which I probably forgot") raising a more systemic failure, the paucity of evidence as to the drug paraphernalia as well as the falsification of receipts. 3. The Tribunal was also concerned about Mr Mukherjee's evidence about the circumstances of how he came to be in possession of the sum of $490,000 which he had allowed a "friend" to store in his own home. It appears that that evidence was not led in that detail before the earlier Tribunal and remains largely unexplained. Mr Mukherjee still appears to be minimizing this aspect of his behaviour. 4. The essence of Mr Mukherjee's case is that his actions over the period 2002 to 2010 were the result of substance abuse which flowed from his (then) psychiatric condition. Further, that both those circumstances have either changed or been brought under control and that he is a changed person as a result of his Church membership, experiences and beliefs. He relies on the reports of Dr Benjamin to support that view. 5. The Tribunal considers that there is little or no evidence to support that submission other than Mr Mukherjee's assertions. As an example of that absence or paucity of evidence, Mr Mukherjee asserts that he has attended AA meetings but was unable to clarify what was involved in that process nor what the impact on him had been on him. 6. Further, that the CPD records lately produced did not show any kind of sustained commitment to future professional education. 7. Further, the Tribunal considers that Mr Mukherjee's submissions were very selective, consistently either minimising or ignoring different views contained in Dr Benjamin's evidence as well as the qualifications he made when giving his oral evidence. He also sought to invoke Dr Samuels' earlier evidence in support of his case – for example, on the issue of being able to return to work while supervised while ignoring Dr Samuel's oral evidence and the clear evidence about the absence of proper supervision being available. 8. The Tribunal accepts the submissions of the Medical Council in the areas set out elsewhere in this decision, in particular that Mr Mukherjee's evidence contained little to show or identify what he had done to address issues and problems identified in the past and that it was an accurate description that he was saying "This is what I will do" not "This is what I have done" nor, for example, his inability to reconcile his stated desire to comply with any conditions to be imposed on him with his history of non-compliance. 9. The Tribunal does not accept Mr Mukherjee's reliance on Dr Benjamin's opinions in that many of those opinions were based on what Dr Benjamin had been told by Mr Mukherjee which were either wrong or not the full story. Examples of that were his lack of knowledge about the extent and history of Mr Mukherjee's depression as well as the extent of his relationship with alcohol. Unfortunately that seems to be consistent with the inadequacy of the information given to other witnesses such as Dr Chahoud, Dr Sanki and some of his referees. 10. During his evidence, Dr Samuels expressed heightened concerns over Mr Mukherjee's poor level of insight, veracity and integrity of Mr Mukherjee. He also expressed concern about Mr Mukherjee's ability to manipulate others for his own ends. The Tribunal accepts and endorses that concern. 11. The Tribunal also has concern about Mr Mukherjee's evidence of his dealings with Dr Chahoud, in particular, in relation to the issue of his introduction to patients or the absence of full information being given to Dr Chahoud about the nature of his previous misconduct. The Tribunal accepts the evidence of Dr Chahoud in that respect as to what he was told by Mr Mukherjee and when. The same concern was raised by the evidence of Dr Sanki as to what he was told by Mr Mukherjee. Consideration 1. This is an application for re-registration which effectively seeks that the determinations of the earlier Tribunal be set aside on the basis that Mr Mukherjee is now reformed and that that means that he can be trusted to go back to practice and be re-registered with the concomitant entitlement to practice as a medical practitioner. 2. It is clear that the first Tribunal viewed Mr Mukherjee's conduct and credit very adversely and that view, and the basis for that view, was known to Mr Mukhejee. That conduct includes multiple breaches of conditions of practice commencing from the second s 66 Inquiry in 2006. It was noted in the earlier proceedings that the Tribunal did not accept some of Mr Mukherjee's explanations for his conduct. 3. The Tribunal accepts the opinions and descriptions of Dr Samuels set out at pars 93-95 which were, in part, agreed to by Dr Benjamin. Having listened to the evidence and observed Mr Mukherjee throughout the hearing the Tribunal agrees with those observations. They are in accordance with the Tribunals observation as to Mr Mukherjee's credibility. 4. It is also clear that, despite intervention from the Medical Board on a number of occasions prior to the first Tribunal hearing, and despite the assistance sought to be rendered to the respondent to facilitate his continuing in practice, Mr Mukherjee either could not, or would not, comply with his conditions over an extended period of time. There is nothing in the evidence - apart from Mr Mukherjee's assertions that he would be compliant and Dr Benjamin's qualified evidence in that respect which became more guarded in giving his oral evidence – to give the Tribunal any confidence that Mr Mukherjee would be compliant. 5. The view taken then by the earlier Tribunal is shared by this Tribunal, namely, that Mr Mukherjee's conduct, at least between July 2009 and 24 November 2009 after he was taken into, and formed part, of the Impaired Practitioner Programme, was more than a relapse. Rather, it showed a complete failure to appreciate or recognise the importance of discharging the responsibilities attendant upon his practice and the importance of abiding by the high professional standards to which every medical practitioner is expected to conform. 6. Of even greater significance was the potential adverse impact of his conduct on members of the public, namely his patients, for whom he was responsible and to whom he had an abiding obligation to act in their best interests. 7. That overall conduct in that period displayed serious deficiencies in Mr Mukherjee's professionalism, his conduct of his practice and, very directly, his character. Those deficiencies were evident in particular, in the pattern of behaviour he exhibited in that period in terms of: 1. His taking of drugs and prohibited substances of a very serious nature; 2. His medical conduct in prescribing substances to people known to suffer from addiction. Mr Mukherjee said that he was aware that he was helping patients when he now realizes that he was simply giving in to them; 3. His prescription practices and record keeping. The Tribunal regarded Mr Mukherjee's explanation of the evidence concerning his possession and apparent use of the prescription pads of other doctors as unsatisfactory, inconsistent and illustrative of his tendency to minimize matters. He asserted that they belonged to another individual; 4. The absence of any explanation for the positive test by him for methadone in June 2017. That positive test was brought to his attention on 23 May 2018 when he denied having taken methadone. Mr Mukherjee had no explanation for that positive test other than to assert that it could have been a false positive result. 5. Mr Mukherjee's business practices and his criminal conduct as highlighted in the various criminal prosecutions which were conducted. In that regard, the evidence about the collection of ice-smoking pipes and the $490,000 found at his home (which he denied were his) and his administration of prescription of drugs to other individual(s) at his home. His attitude seemed to be simply that those incidents indicated a lack of judgment for which he was "really, really sorry"; 6. His failure to observe restrictions on his practice as imposed by the regulatory authorities. It is also clear that Mr Mukherjee did not avail himself of the considerable assistance that the medical regulatory authorities rendered him – for example, in facilitating his entry into the Impaired Practitioners' Programme. 7. In this regard, the Tribunal notes that there is a structure which has been devised by the professional and other bodies over many years designed to assist doctors and others in the para-medical and related fields who have been under stress and related consequences. In the Tribunal's view, it is incumbent on those who wish to re-enter the profession to show that, at the very least, they respect those systems and opportunities, if they wish to establish their bona fides in terms of their preparedness to change and to fulfil the professional responsibilities inherent in re-registration. 1. Mr Mukherjee's behaviour occurred against a background of a number of investigations when the deficiencies in his conduct were clearly brought to his attention. He received considerable advice and support including psychiatric assistance. He was clearly aware of relevant standards and the literature both available and given to him as part of the earlier disciplinary proceedings. 2. This background has been set out as the Tribunal considers that the evidence adduced by Mr Mukherjee needs to be assessed against the seriousness of the issues to be faced and the evidence and material to be presented in considering the application for reinstatement. The entire history detailed in the chronology outlined above extended over a period from at least 2002. It was not a "one-off" or isolated incident but was, rather, systemic and multi-faceted. The totality of the conduct and the personality traits it exemplified needed to be addressed in a substantial way – and not just by expressions of regret, remorse and a desire to change Evidence not presented or unavailable 1. Mr Mukherjee was present when both Dr Benjamin and Dr Samuel gave evidence as to the conditions which would be necessary if Mr Mukherjee was to be reinstated. The hearing was adjourned on 23 May because two of Mr Mukherjee's witnesses, namely Dr Sanki and Dr Chahoud, were not then available. Mr Mukherjee said that they were overseas and uncontactable despite the application having been made nine months ago and the hearing having been set down for some months. Accordingly the hearing had to be adjourned to July 2018 to accommodate all parties. It was only during that adjourned period that substantial sections of Mr Mukherjee's evidence was provided, and then, inadequately. 2. Without binding any subsequent Tribunal, this Tribunal considers that at the very least, Mr Mukherjee should have presented evidence to deal with the concerns expressed in the last Tribunal hearing and its findings and judgment, in particular in the areas set out below. 3. Those advising applicants for reinstatement or re-registration should be aware of relevant Registration Standards, in particular, the "Recency of Practice Standards" and the "Criminal History Standards" as well as being able to address the concept and definitions of "suitability" under the National Law. 4. In this case the Tribunal considers that a professional supervisor(s) should have been put forward who would have had: 1. An awareness of Mr Mukherjee's professional and medical history including the circumstances of why he had been de-registered; 2. The competence and experience to supervise Mr Mukherjee's prescription and record-keeping practices, his prescription practices, in particular, his prescription of steroids and drugs of dependence; 3. The ability to either establish or comment on Mr Mukherjee's current medical knowledge and his understanding of professional practices – particularly given the eight years which have elapsed since Mr Mukherjee was de-registered; 4. The knowledge of the personality and character issues identified from the previous hearing and decision of the Medical Tribunal, especially: 1. Mr Mukherjee's failure to disclose what his drug habits and financial misdeeds were; 2. The long history of matters, in particular the drug abuse and financial dishonesty in which he had been involved. 1. The Tribunal accepts the Medical Council's criticisms that Mr Mukherjee's evidence did not contain a "road map" or evidence as to what Mr Mukherjee had done prior to bringing his application to provide a solid platform to justify his assertions as to what he would do in the future as to specific CPD and other training nor as to how he would treat or deal with drug seeking patients. 2. The Tribunal considers that there should also have been evidence from a treating psychiatrist as to Mr Mukherjee's abstinence from drugs and alcohol as well as confirmatory testing – for example, by monthly CDT testing as well as urine drug testing. 3. Until that kind of evidence is presented, it is unlikely that any Tribunal will be able to assess: 1. The validity of Mr Mukherjee's assertion that he has overcome his drug addiction and what psychological or psychiatric conditions including depression that he has or has had and whether that is in remission; 2. What safety or other measures are necessary going forward to ensure, so far as possible, that Mr Mukherjee remains drug free and psychologically stable; 3. Whether practice and health conditions be crafted that can be appropriately monitored to enable Mr Mukherjee to practise safely and competently; 4. Whether Mr Mukherjee demonstrates insight into his conduct and true remorse for his actions, and accordingly whether he can engage in appropriate professional and personal supervision. 1. The Tribunal has had difficulty in accepting the constant reiteration of Mr Mukherjee's desire to change, his new insights, the absence of any mood swings and that he had changed without any evidence to support those assertions. He asserted that he has a "desire to learn" without providing evidence of that other than by providing a very generalised list of topics and articles. There was little supportive evidence as to what he had learnt from them or elsewhere nor what he had observed or proposed to do with that material on a personal or professional level to show that he could carry out the responsibilities of a medical practitioner. 2. Mr Mukherjee's changes to his personal life and self-improvement seemed to be limited to walking every day, doing yoga, meditation, being involved in his church community and their functions as well as his recent and compressed online CPD readings. 3. It became clear in evidence that Mr Mukherjee had not discussed any future plans for his CPD or other professional or personal planning with either of the proposed professional supervisors, Dr Sanki or Dr Chahoud either at all or to any significant extent. 4. While those self-improvement activities may be commendable, they were no substitute for presenting evidence to show that he had changed both personally and professionally to a situation where he could discharge the responsibilities as a medical practitioner. This was not a situation where the Tribunal was dealing with a "one-off" instance of drug–taking or substance abuse. The evidence in the prior Tribunal was of a systematic and long-term series of drug and alcohol abuse and associated personality traits and problems particularly of the nature outlined by Dr Samuels. 5. All those issues go to the overall consideration of whether Mr Mukherjee is a fit and proper person to engage in the practice of medicine. This Tribunal is not so satisfied on the basis of the evidence before it and considers that Mr Mukherjee has not discharged the onus on him to establish the basis for his re-registration. Accordingly, having considered all the matters set out above the Tribunal determines that the application be refused and makes the orders set out below. Future applications for re-instatement 1. Given the totality of the evidence and Mr Mukherjee's responses during the hearing, the Tribunal is concerned that after the eight years which has elapsed since the last Tribunal hearing and decision, Mr Mukherjee still has not accepted the gravity of his previous conduct nor made the necessary personal changes. In that regard the Tribunal accepts Dr Samuels' evidence. 2. The imposition of a three-year period barring an application for re-registration be would enable Mr Mukherjee: 1. To receive appropriate insight-oriented therapy as suggested by Dr Samuels; 2. To show the necessary personal changes as well as his understanding of what has occurred; and 3. To demonstrate abstinence of alcohol through monthly CDT testing and drugs through chain of custody urine testing and three monthly hair testing. Costs 1. The Medical Council seeks a costs order against Mr Mukherjee. The relevant principles to be applied in this jurisdiction have recently been re-affirmed by the NSW Court of Appeal by Meagher JA in Qasim v Medical Council of NSW [2015] NSWCA 282 at [85] as follows: 2. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. 3. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) 4. Here the Tribunal considers that such special circumstances exist being, in particular: 1. The absence of evidence to support the application from recent and relevant treating health professionals in the areas set out above; 2. The absence of evidence to establish that Mr Mukherjee had either accepted or developed strategies to deal with the complaints which the earlier tribunal had accepted and made the decisions it did; 3. The fact that the adjournment to the July hearing was made necessary by the absence of Mr Mukherjee's witnesses for the May hearing (being relevant only to the costs of the July hearing). 1. Here Mr Mukherjee has given evidence that his income is that of a disability support pensioner. It is not clear what has happened to the substantial amounts of cash found in his premises in 2009 i.e., the sum of $450,000. The Tribunal notes that Mr Mukherjee asserts that those were not his monies but owned by someone else (who was unidentified). 2. Mr Mukherjee has apparently had legal advice from Brydens, Solicitors, for a significant period of time, that firm representing him at various interlocutory matters and hearings and apparently just up to or prior to the hearing date. It appears from the chronology of the procedural orders made by the Tribunal that that legal representation was current during the time period when Mr Mukherjee's case was to be prepared and his evidence filed. 3. As the Tribunal has observed, Mr Mukherjee's case was deficient in terms of the evidence which would have been needed to deal with all the issues raised in the earlier proceedings and to qualify him to be considered for supervised re-entry to practice. That deficiency was brought to his attention at the end of the first hearing, over two months before the resumed hearing. It may be that such matters should not be set down until such matters have been addressed with the Medical Council being charged with the responsibility of bringing those issues to the attention of the Tribunal at an interlocutory or listing stage. 4. The Tribunal also notes that significant public and professional effort and expense has been incurred in dealing with this application in addition to the prior costs and expenses of the prior proceedings to both the community and to the professional body. 5. Costs orders are the main sanction where there is an absence of appropriate evidence but there are always additional costs and demands on public recourses when applications are made and pursued to the hearing stage which are not substantiated. Costs orders may have limited impact where an applicant is impecunious or of limited means. The Tribunal wishes to express its concern at applications being commenced or continued without a proper evidentiary basis addressing matters which are clear from earlier determinations of the Tribunal. Orders 1. The Application for a non-publication order is dismissed. 2. The Application for a reinstatement order is dismissed. 3. No further application for re-registration may be brought by Mr Mukherjee for a three-year period commencing 1 August 2018. 4. The Applicant pay the Respondent's costs as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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 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: 06 August 2018