Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ghosh v Medical Council of NSW [2018] NSWCATOD 186 Hearing dates: 27, 28 September; 17,19 October 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Occupational Division Before: ADCJ Knox SC, Principal Member Dr G Dore, Senior Member Dr L Cotterell, Senior Member Ms S Lovrovich, General Member Decision: (1) Appeal dismissed. (2) The condition on the appellant not to practise as a medical practitioner imposed by the respondent is confirmed. (3) The appellant is to pay the costs of the respondent as agreed or as assessed under the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014.) (4) The Medical Council is authorised to forward copies of the following documents to Dr Ghosh's treating medical and other practitioners and any practitioner appointed by the Medical Council: (a) The Council's decisions under s 150 and s 150A; (b) The reports of Dr Kim Newnham dated 4 April 2018 and her supplementary report of 6 July 2018; (c) This decision. (5) The Medical Council is authorised to notify Medicare Australia and any Pharmaceutical Services Authority of the contents of this decision and the continuation of the condition not to practice including not prescribing. (6) The Medical Council is authorised to consent to any exchange of information between the Medical Council and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. (7) Dr Newnham is not to be approached by any person connected with these proceedings other than the professional representatives of the parties. Catchwords: Professional discipline – application for – Guidelines on treatment of members of family of medical practitioner – Doctor treating her own son – autistic child – appropriate medication – practitioner's observance of guidelines as to treatment of members of own family – attitude to complainants – practitioner's attitude to professional assessment and criticism – defamation proceedings commenced against professional medical witness during proceedings – defamation process served on witness two days ahead of that witness giving evidence –Interpretation of Health Practitioner Regulation National Law as purposive legislation – absence of evidence sufficient for reinstatement – costs on re-registration application. Legislation Cited: Acts Interpretation Act 1901 (Cth) s 15 AA Civil and Administrative Tribunal Act 2013 No 2 (NSW) Health Insurance Act 1973 (Cth) Health Practitioner Regulation National Law (NSW) No 86a Interpretation Act 1987 (NSW) s 33 Legal Profession Uniform Law Application Act 2014 s3A Cases Cited: Ghosh v Miller (no 2) [2018] NSW CA 212 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Karimi v Medical Council of NSW [2017] NSWCATOD 180 Karimi v Medical Council of NSW [2017] NSWCATOD 180 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. Mills v Meeking (1990) 91 ALR 16 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 153 ALR 490 Qasim v Medical Council of NSW [2015] NSWCA 282 Category: Principal judgment Parties: Ratna Ghosh (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: Mr Bolger (Applicant) Direct access Mr Bhalla (Respondent) Solicitors: Medical Council of NSW (Respondent) File Number(s): 2018/00008057 REASONS FOR DECISION 1. This amended appeal by Dr Ratna Ghosh ("Dr Ghosh") is brought under s 159C of the Health Practitioner Regulation National Law (NSW) ("the National Law") effectively seeking the removal of a condition that Dr Ghosh "not practise medicine". The Medical Council of NSW seeks the confirmation of the decision of the Council imposing that decision. Background 1. Dr Ghosh is aged 54 years (born 1964). She received her medical education (MB/BS in 1989) at the University of Western Australia and became a Fellow of the Royal Australian College of General Practitioners in 2011. She was a general medical practitioner in the Newcastle area from about 2003. 2. Her current situation is that she is not, and has not been, working in any capacity since 12 December, 2017. 3. Relevantly, she is married to Dr Bhaskar Bandyopadhyay. He is an engineer. He had provided a report/statutory declaration dated 18 June 2018 on which, initially, Dr Ghosh sought to rely and which formed part of the papers and exhibits before the Tribunal. At the hearing on 27 September 2018, Dr Ghosh's counsel indicated that she no longer sought to rely on that report/statutory declaration. Counsel for the Medical Council relied on aspects of those reports to suggest that inferences might be drawn against Dr Ghosh in that she had considered the matters set out were part of the case she wished to prosecute on this appeal. 4. That relationship between Dr Ghosh and her husband, Dr Bhaskar Bandyopadhyay, became relevant in the context of the evidence that, during the intervening days of the hearing, Dr Ghosh had commenced defamation proceedings against Dr Newnham the consultant psychiatrist engaged by the Medical Council for these proceedings. That action apparently related to the comments and opinions advanced by Dr Newnham as a professional witness. Dr Ghosh had used her husband to serve the originating process for that defamation action on 15 October, 2018, two days ahead of Dr Newnham giving evidence to the Tribunal in circumstances which Dr Newnham said she found to be highly intimidating – see [91]. The Child 1. Dr Ghosh has a child, referred to as 'AB' in these reasons (rather than XY as originally proposed for ease of reference to relevant medical records). AB is almost 14 years old. 2. A considerable part of these proceedings have concerned the status and condition of AB and Dr Ghosh's treatment of him as well as related conduct such as prescribing medications for him. That was in the context of her observance or otherwise of the Guidelines in relation to the treatment of family members. 3. Some of the factual matters in relation to AB appear to be: * He was diagnosed with autism by a psychologist, Kerry Baker, in 2008. That remains as his diagnosis. Dr Newnham said that Dr Ghosh had also said that she had made that diagnosis; * He was treated over the period since 2008 by a number of child psychologists. He also saw various paediatricians at Newcastle Hospital from time to time. Aspects of AB's treatment including his treatment and medical prescriptions prescribed for him by his mother are set out below – [118]; * AB does not have a paediatrician looking after him at the moment. He is being seen by a psychologist, Lee Sturgeon, from Warners Bay near Newcastle. He is also seen by Dr Colin Kable as a treating psychiatrist. Dr Kable had organised a psychiatric admission for AB in December 2017 noting that he had autistic spectrum disorder and appeared to have developed a serious mental illness. Further to that his behaviours present a risk to himself and/ or others; * AB was hospitalised at the John Hunter Hospital in Newcastle in April 2016 for left hip pain. At that time Dr Ghosh called for a psychiatric assessment for AB; * He was observed to be psychotic on an occasion at the international airport at Rio de Janeiro on 6 January 2017. He was placed on a plane and then observed to be psychotic at Miami Airport later that day. Dr Ghosh said that he was then prescribed various forms of medication; * His behaviour is very difficult for both his parents. At one stage of her evidence, Dr Ghosh said her husband, AB's father, had abandoned AB and the family in around 2009. Dr Ghosh asserts that, as a consequence, AB suffers from separation anxiety from his father; * AB is being treated by several doctors including Dr V. Selczwyk at the Charlestown Medical Centre. Dr Selczwyk provided a note in June, 2018 stating that Dr Ghosh attended that practice. Dr Ghosh has not provided the Tribunal with any other material from Dr Selczwyk or the Centre; * Dr Ghosh gave very detailed and comprehensive evidence about AB's past history and behaviour - for example, as to his attacks on Dr Ghosh and her husband and the medical regime to which he has been subject. That history and the medical treatment accorded to him over that period has given the Tribunal considerable concern; * Dr Ghosh did not know where she kept the records relating to AB in particular, her prescriptions and other health care plans for him. She thought that they might be at her medical rooms. A subpoena was issued to Dr Ghosh for the medical prescriptions she issued for AB. On 17 October she stated that those records which were on a computer hard drive had been destroyed in an attack on the computer by AB. No such prescriptions nor records were produced; * Similarly medical records as requested from Dr Ghosh by the Tribunal on a number of occasions were not produced apart from some blood tests referred to below para 127 . 1. Dr Ghosh gave detailed evidence about AB's current situation. She said he had acquired a brain injury after he was removed by FACS and placed in the John Hunter Hospital in Newcastle. That event appears to have precipitated, or been precipitated by, ongoing concerns about AB's treatment including his treatment by Dr Ghosh. She provided the discharge summary regarding AB's recent intervention at John Hunter Hospital but no evidence of any "brain injury". Health Care Complaints Commission: referral to FACS 1. Following these events and references to what medication had been prescribed for AB, an investigation was carried out by the Health Care Complaints Commission (HCCC). That determined that Dr Ghosh had been prescribing medication (including anti-psychotic medication) for AB since 2013. The HCCC then made a report to the Department of Family and Community Services (FACS) under s 99B of the Health Care Complaints Act 1993 due to child welfare concerns. The HCCC is still investigating other issues and complaints. FACS, in turn, then investigated AB's situation. Dr Ghosh referred to this and FACS' subsequent actions as AB's "abduction, imprisonment and over-sedation" in her evidence. She maintains an unremitting hostility towards FACS for what she sees that agency has done to AB. 2. There have been Children's Court proceedings involving AB. The end result has been that AB has been returned to the care of Dr Ghosh. It seems clear that one of the matters which loomed large in those proceedings was the treatment given to AB by his mother, Dr Ghosh, in her capacity as a medical practitioner and particularly her prescriptions of medication for him. 3. AB is currently in the care of Dr Ghosh and her husband. He attends a special needs school in suburban Newcastle where he is in an autism class. Prior hearings and orders 1. An earlier (and differently constituted) Tribunal before which Dr Ghosh's appeal was listed made various procedural orders on two occasions, essentially following Dr Ghosh's application for an adjournment. This hearing was truncated because of the unavailability of Dr Newnham, psychiatrist – see [50]. Panel hearings: s 150 Hearing: 12 December 2017 1. There were proceedings conducted under s 150 of the National Law on 12 December 2017 as a result of which Dr Ghosh was suspended. The gravamen of these complaints is set out below – see [18] - [21]. 2. The Panel in the 2017 proceedings was convinced that there was a high possibility that Dr Ghosh was impaired and in urgent need of proper psychiatric review. (page 11 of the s150 decision) 3. At that time the delegates did not have the benefit of reports from experts regarding Dr Ghosh's mental health. 4. The Panel was also concerned that Dr Ghosh's manner and communication style actively impeded her capacity to communicate effectively with her patients. In their reports, the Panel stated that there was strong evidence that Dr Ghosh had very poor insight into how her manner and style of communication with patients impacts on her capacity to effectively deal with their clinical issues and the capacity of patients to communicate important details of their health. It was noted that this behaviour may result in patients being intimidated and stopped from providing key facts of their physical and mental health. 5. There was evidence that on some occasions, Dr Ghosh had dismissed details provided by patients, refused to address them or became aggressive (p. 11 s150 report). It was noted that she had been counselled numerous times by the Council, her lawyers in 2017 after the conduct interview, and within her workplace. There had been no noticeable improvement. S 150A hearing on 12 April 2018 1. There was a s 150A hearing on 12 April, 2018 where expert reports commissioned by the Medical Council were presented. One expert, Dr Oliver O'Connell, came to an inconclusive assessment that Dr Ghosh needed to have a more thorough assessment with the assessor having the benefit of the availability of past and current history. Dr O'Connell also queried whether Dr Ghosh suffered from psychosis, a mood disturbance or a psychotic disturbance. 2. Dr Ghosh did not accept at the s 150A hearing that she was impaired. She therefore had not engaged in treatment. 3. What was of particular concern to the Panel in those prior proceedings was that: 1. Dr Ghosh had treated her son, AB, contrary to the Guidelines of the Australian Medical Council published 17 March, 2014; 2. Further, that her treatment of AB had been inappropriate in that she had prescribed him anti-psychotic medication. Details of that medication are set out below – see [118]. AB at that stage had been diagnosed with acute psychosis and autism; 3. The number and kind of complaints to which Dr Ghosh had been subject indicated particular concern about her lack of insight, her methods of communicating with patients and other professionals and her rejection of professional advice given to her; Prior proceedings 1. Following those earlier proceedings, Dr Newnham, a consultant psychiatrist, was then commissioned to provide a report. That became her report of 4 April, 2018 – see [66] ff. Material relied on by Dr Ghosh. 1. Four reports were relied on by Dr Ghosh, one dated 26 February 2018 from Dr Davies, then Dr Ghosh's treating psychiatrist, a report dated 28 March 2018 from Dr Christopher Bench, a report from Dr Oliver O'Connell dated 25 January, 2018 and a report from Dr Robinson of 18 June, 2018. Dr Davies considered that there was no evidence of any major mood disturbance. Dr Bench also came to the same conclusion. Neither doctor had other than limited access to all the relevant historical material. 2. Dr O'Connell's report was qualified in view of the time and material which he had considered. He also said it was a difficult assessment due to the lack of collateral and past history, having only Dr Ghosh's history available at the time of his assessment. He saw Dr Ghosh for two hours in January 2018. Dr O'Connell said in his report of January 2018 that he was not informed of the Panel proceedings of 12 December 2017 nor was he provided with a copy of the report or determination. 3. Dr O'Connell noted the inconsistencies between Dr Ghosh's account and that apparently referred to in the s 150 proceedings. He was unable to comment on the contents of the complaints as he only had Dr Ghosh's version of the story. He also noted (page 10) that "… When confronted with any complaint she does not believe that she has any role in it. She often turned it into a complaint about someone else." He thought "her behaviours might be indicative of underlying narcissistic personality traits" and that "…Given her inappropriate behaviour, it may be that Dr Ghosh needs to be reviewed with regard to standards and or competence." 4. A report from Mrs Nadine Douglas was provided by Dr Ghosh dated 16 May, 2018. Mrs Douglas described herself as a 'Mental Health Co-ordinator' although no formal qualifications were listed. She expressed disagreement with the Medical Council's findings as well as with various psychiatric matters without giving any foundation for her opinions which the Tribunal was prepared to consider. She also said that she had worked with Dr Ghosh for 8 years and not seen any sign of psychiatric disturbance. It is unclear whether Dr Ghosh worked for the same organisation for the totality of that period. 5. A similar testimonial was also received from Mr Robert Pryde, psychologist, dated 23 February, 2018. He had also worked with Dr Ghosh. 6. Neither person was called to give evidence and their evidence, essentially testimonial in character, was untested. The Tribunal considers that the additional material provided by Dr Ghosh was not such as to influence its consideration of the psychiatric material provided by both parties to this appeal. Dr Geoffrey Robinson 1. Dr Ghosh sought to rely on a report of Dr Geoffrey Robinson of 18 June, 2018. Dr Robinson saw Dr Ghosh for an hour after she requested a second opinion about her diagnosis and an urgent psychiatric report. That request was made because Dr Ghosh did not agree with the opinion expressed by Dr Newnham prepared for the NCAT hearing scheduled for 20 June 2018, in particular, Dr Newnham's diagnosis of schizophrenia. 2. Dr Robinson concluded that Dr Ghosh was not suffering from a major mental illness including schizophrenia or bipolar disorder. He noted "insufficient time and information" to make a diagnosis of personality disorder. 3. It appears that Dr Robinson's report was based on a 60 minute interview with Dr Ghosh as well as background material including testimonials provided by Dr Ghosh. Dr Robinson does not list the documents he reviewed when making his assessment other than to say that Dr Ghosh supplied the background material (unspecified) to the Medical Council's decision. He stated that his opinion was "essentially in accord with the reports of psychiatrist Dr Davies and Dr O'Connell and not in accordance with the provisional diagnosis of Dr Newnham" without making clear whether he had received any of the psychiatric reports or read them. 4. The Tribunal is unable to determine whether Dr Robinson had access to the comprehensive suite of independent evidence provided to Dr Newnham and as listed by her in her report – see [69]. Absent the foundational material being made clear to support the opinions advanced by Dr Robinson, the Tribunal prefers the evidence of Dr Newnham over that of Dr Robinson – see [37]- [38]. Appellant's witnesses not called 1. None of the doctors whose reports were tendered by Dr Ghosh were called to give evidence. At the conclusion of the first stage of the hearing on 28 September, 2018, the Tribunal asked if any of those doctors: Dr Davies, Dr Bench, Dr Robinson or Dr O'Connell, were to be called on behalf of Dr Ghosh. The decision was taken at least by 17 October, 2018 that they were not to be called. Medical Council evidence 1. The Medical Council relied on the reports of Drs Newnham and Hutt as well as the other reports in the tender bundles. 2. Both Drs Hutt and Newnham were called and cross-examined. Dr Newnham, in particular, was cross-examined by counsel extensively (and appropriately) over the course of almost the entirety of the last day of evidence. Conflict between psychiatrists 1. There was, and remains, a clear conflict between the opinions of the psychiatrists especially as to their respective diagnoses of Dr Ghosh, and in particular, whether she suffered from schizophrenia or delusional behaviour or any other psychiatric condition and her prognosis. Acceptance of evidence: Drs Hutt and Newnham 1. The Tribunal considers that Dr Newnham was well able to defend all her opinions and prognosis and was unshaken in her evidence as was Dr Hutt. The Tribunal also considered that the evidence of Drs Newnham and Hutt was consistent with much of the other material adduced during the hearing. 2. The Tribunal accepts the evidence and opinions of Drs Newnham and Hutt in any area where their respective evidence conflicts with that expressed in the reports of Drs Davies, Bench, O'Connell and Robinson. Additional witnesses for Appellant 1. The Tribunal also outlined concerns it had in the light of what it saw as the need for evidence to support the overturning of the existing suspension as well as to provide corroborative evidence of Dr Ghosh's intention to work with a mentor. It was proposed by Dr Ghosh that she would call evidence from a Dr Da Silva on 17 October who was available on that date. However, it was determined that he would not be called when it was agreed between counsel for Dr Ghosh and the Medical Council that there were professional medical mentors available for Dr Ghosh. Any such mentor(s) would, if that became appropriate, need to be assessed as suitable for that role before it was assumed by them. That would presumably include an assessment of their awareness of Dr Ghosh's then situation and needs. Interlocutory application and proceedings: material relied on by Dr Ghosh 1. In an amended application filed on 17 September, 2018, Dr Ghosh sought that the Tribunal strike out the reports of Drs Newnham and Hutt and not permit them to give evidence at the hearing against her. That application was supported by a statutory declaration dated and sworn on 17 September 2018. 2. Dr Ghosh further sought in her own application of 17 September, 2018 that each of those two professional witnesses be referred to the Attorney-General for prosecution for making false and misleading statements. That part of the application was not pressed by her counsel on 27 September, 2018. Nevertheless, it remained a very serious application to make and has given the Tribunal concerns - as are dealt with below: [137], [138], [140], [173(1)]; [175]. 3. That application was opposed by the Medical Council. The essence of the Medical Council's overall position was as set out in the Reply filed 24 July, 2018. That strong opposition to the removal of a not-to-practice condition on Dr Ghosh was reiterated by the Council in written submissions filed on 15 October 2018 and in the final submissions of the Council. Personal attacks on Medical Council witnesses and other professionals 1. The essence of the application for disqualification of the two witnesses and that they be referred for prosecution was that Dr Ghosh stated that both witnesses had made false and misleading statements in various respects. Those are set out in these reasons as they indicate not just the basis of her application (which she was entitled to make as part of her appeal) but also the personal nature of the attacks she made on both witnesses in their professional capacities. Relevance of attacks on professional witnesses 1. The Tribunal regards those attacks as being of no substance. However, they are set out here because they inform the Tribunal's additional concerns given the inherent attitude they indicate on Dr Ghosh's part to professional supervising agencies as well as the observations made of her conduct, behaviour and capacity by other professionals. It is also relevant to the Tribunal's assessment as to Dr Ghosh's capacity to have the insight to assess what her personal and professional capacities are, and have been, in order to conduct herself as a medical practitioner - including being aware of what has been happening to her. Further, those matters are relevant to make an assessment as to her capacity to change in the future and, particularly, to accept professional supervision and monitoring. 2. Those criticisms included that: 1. Dr Newnham (reports para 44 ff): 1. made a diagnosis of a 'factitious diagnosis by proxy' of AB which was contrary to all material supplied to her by Dr Ghosh. Dr Ghosh refused to accept that that was a matter raised as a concern rather than a diagnosis; 2. provided these reports falsely and maliciously. Particulars of those 'deliberately false statements' by Dr Newnham in her report of 4 April, 2018 are set out in para 18 of Dr Ghosh's statutory declaration of 17 September, 2018; 3. Dr Ghosh also criticised Dr Newnham's evidence on the basis of her "inappropriate mental state" apparently because of her (Dr Newnham's) attire. 1. Dr Kathryn Hutt (Medical Advisor to the NSW Medical Council: reports para 44 ff): 1. was not qualified to comment on the use of anti-psychotic medication in autistic children given that she was, and is, a part-time GP in Mona Vale; 2. had made a deliberately false statement. On the basis of the evidence given by both witnesses, the Tribunal rejects those assertions as being baseless. Moreover, the Tribunal considers that the assertions about both witnesses display a totally inappropriate understanding of the role of a professional witness, and, in the light of the other evidence given by Dr Ghosh, an ongoing hostility to anyone engaged in medical supervisory processes who she perceives as being hostile to her. 1. Dr Kahn and his wife, Ms Farah Fahim. The background to the relationship Dr Ghosh had with Dr Kahn is that she worked at Dr Kahn's practice at Wallsend between February 2017 until her employment was terminated by him in September 2017. That followed numerous written complaints from both staff and patients of the practice. Those complaints related to both her practice of medicine and her treatment of people, both patients and professional and other staff in the practice. Dr Ghosh's criticisms of Dr Kahn both in her statutory declaration of 17 September, 2018 and in her oral evidence were couched in what the Tribunal considers to be totally inappropriate terms, especially in the descriptions given of the Khan's respective racial background and practices as well as their dress. There were similar generalised attacks on the medical and hygienic practices of doctors and staff at Dr Kahn's practice (statutory declaration 17 September, 2018 para. 9) On a number of occasions, Dr Ghosh also gratuitously described Ms Farah Fahim as Dr Kahn's "uneducated practice manager" and someone who had "gone to Pakistan… (apparently seeking a husband) …to get a doctor." The Tribunal has considered the submissions (dated 25 October 2018 paras [23] –[27]; [29]) filed by Dr Ghosh's counsel in this regard but does not propose to re-examine all those allegations which would appear to be what is suggested in those submissions as being required. The way those matters are dealt with are set out below. 1. An additional thrust of Dr Ghosh's submissions – see [32] - and oral evidence was that she considered that those witnesses were prejudiced against her given that they did not accept what she had said. Further, that they did not accept what she, Dr Ghosh, had told the Medical Council during a hearing by Professor Procopis. Professor Procopis 1. Professor Procopis was one of the hearing members at a Conduct Interview held at the Medical Council of NSW in 2017. This Conduct Interview arose from a complaint from John Hunter Hospital regarding Dr Ghosh's interference in the Hospital's treatment of AB as well as her ongoing treatment of her son regarding his painful left hip in 2016. 2. Dr Ghosh asserted in her evidence to the Tribunal that Professor Procopis had fully assessed the issue of her treatment of AB and recommended that no further action be taken. She also told the Tribunal that all the prescribing data (specifically that referred to in Dr Katherine Hutt's expert witness report) would have been available to Professor Procopis at that time, thereby maintaining that this had also been assessed. This PBS data does not appear in the Conduct Interview Panel report nor any of the attachments. Absent additional evidence, it is the Tribunal's view that this material was not available for the Conduct Interview Panel at the relevant time as claimed by Dr Ghosh. 3. The Tribunal notes that Dr Ghosh's view that Professor Procopis made no adverse findings against her by recommending "no further action" be taken is incorrect. The relevant Conduct Interview Report (date of interview 2 June 2017) notes (in part) that "Dr Ghosh's manner during the interview was defensive and at times aggressive. She showed a poor level of insight as to the aetiology of the communication problems and deterioration of the therapeutic relationship with the orthopaedic surgeons involved in caring for her son. Her vigorous defence of her treatment of AB was driven by her strong belief that she saved his life by intervening with antibiotics. The Panel made attempts to get Dr Ghosh to reflect on how to avoid further conflicts in her roles as mother and doctor in the future (emphasis added). Dr Ghosh is advised to revise the standards of practice set out in 'Good Medical Practice. A code of conduct for Doctors in Australia' with particular reference to section 3.14 personal relationships and 4.2 respect for medical colleagues and other healthcare professionals." Adjournment 1. The hearing set down for 27 September, 2018 was delayed because of the unavailability of Dr Newnham to give evidence (as she was overseas) and the inability to take evidence from her. The matter was then adjourned (over Dr Ghosh's objection) to 17 October 2018 to enable that evidence to be taken. It was noted that Dr Ghosh had previously sought an adjournment of the hearing before a differently constituted Tribunal on 21 June and 1 August, 2018. There appeared to have been no prejudice to Dr Ghosh occasioned by the adjournment. The application was rejected and reasons given. Hearing: evidence 1. Dr Ghosh said in her oral evidence that, if the condition preventing her from practicing was removed, she would resume practice in the Newcastle area and that she would be employing other doctors. It would be a group practice which she would control. She thought that would obviate some of the problems to which she had been subject while in Dr Khan's practice. 2. Dr Ghosh said that she did not initiate the prescriptions of anti-psychotic medication for her son; those were initially made by a US doctor in response to a difficult situation which had arisen for AB. On her return to Australia with AB she continued that medication which was then taken over by Dr Colin Kable. This matter was considered in further detail against the documentary evidence – particularly in relation to the record of prescriptions written by Dr Ghosh. Additional evidence 1. The Tribunal received the following reports or statements: 1. Dr Kim Newnham, consultant psychiatrist, dated 4 April, 2018; and 2. Dr Kathryn Hutt, a general practitioner and Medical Advisor to the NSW Medical Council: statement dated 9 July, 2018 as well as the various medical and other reports included in the tender bundle of both parties. Competence of witnesses and compliance with Code of Conduct 1. An objection was made by Dr Ghosh to the receipt of those reports on the basis of their form and validity. Here the report of Dr Newnham contains a statement that she was aware of, and has complied with, the Code of Conduct for expert witnesses. Dr Hutt's report, while not containing a specific statement of compliance, appears to comply with the Code of Conduct in every other material respect. The reports otherwise comply with the matters set out in the NCAT Procedural Guidelines of 28 February 2018. 2. The Tribunal considers that Dr Ghosh's attack based on the alleged compliance with the rules relating to expert witnesses and, in particular, the objectivity and competence of both witnesses, is not made out. 3. Both reports were admitted over the objection of Dr Ghosh. Reasons were given for that ruling. To the extent that the objection was based on non-compliance by each witness and statement with the rules relating to expert witnesses, the Tribunal considers that the provisions of the NCAT Procedural Guidelines of 28 February 2018 have been sufficiently met. 4. As has been set out elsewhere in these reasons, it was, and remains, of concern to the Tribunal that Dr Ghosh's objections to both witnesses (which were contained in documents she had prepared personally) set out highly personal attacks on both professional witnesses and on other Medical Council professionals. Dr Hutt 1. Dr Hutt gave evidence on 28 September, 2018. Amongst other things, she stated in relation to the issue of self-treatment or family treatment (and the Guidelines on that point) that some such actions were of more concern than others. As an example, she thought the assessment and treatment of a patient with a mental health disorder required more objectivity and needed an assessment of the patient's domestic and social circumstances. Dr Hutt thought that an objective assessment by a medical practitioner is unlikely to be possible when assessing or treating a close family member. That is particularly relevant in this case. 2. In Dr Hutt's view the treatment of any patient with a mental health or behavioural disorder, particularly when considering the use of psychoactive drugs, should be undertaken with caution. In many instances the supervision of a specialist is indicated, particularly when the patient is a child. 3. Dr Hutt believed that this becomes even more necessary when the patient is a family member, to guard against the possibility of inappropriate use of such medications by a prescriber who is not objective and whose judgement may be clouded by the personal relationship or other family dynamics. 4. The Tribunal accepts Dr Hutt's view and approach particularly where, as here, the family member concerned was Dr Ghosh's son who had had the long term and serious difficulties which he had – as Dr Ghosh herself made clear. 5. Dr Hutt did not know whether Dr Ghosh was AB's usual doctor at the times she completed the Mental Health Treatment Plan and Review. She also thought that Dr Ghosh would not have been in a position to act as AB's usual doctor nor to adequately perform the mental health assessments because of her close personal relationship with the patient, her son. Further, she thought that Dr Ghosh's objectivity and judgment were likely to have been influenced by the nature of their personal relationship. 6. The Tribunal accepts that view. What makes that of particular relevance in this case is that Dr Ghosh was fully aware of the seriousness of the issues confronting AB which warranted independent medical advice and assistance. This was not a situation of a doctor who was a parent prescribing a medication, for example, for the flu or a headache. Rather, AB's issues were serious and long term and required specialist intervention and ongoing monitoring and advice. 7. Dr Hutt thought that the effect of the prescription of a probably high dose formulation of paracetamol and codeine to a (then) 11-year-old child was not known nor was it known whether this medication was prescribed by Dr Ghosh under specialist oversight. On the current knowledge available, Dr Hutt considered this prescribing to be highly unusual and probably unsafe as it was contra-indicated for AB's age group and was prescribed in quantities which may have been excessive. Dr Newnham: earlier involvement: s 150 hearing 1. Dr Newnham provided oral evidence at the s 150A hearing on 12 April 2018. She noted (in part) that Dr Ghosh had been a "well-functioning" doctor prior to the birth of her son (13 years ago) but her mental health had deteriorated since then. Several key issues from her evidence were identified in the hearing report as follows: "Dr Ghosh's belief that Dr Giuffrida, one of the hearing members had influence over who passed clinical examinations in all specialities. Dr Ghosh's family relationships and in particular Dr Ghosh's belief in her greater medical knowledge in relation to her father's heart condition and her involvement in her son's medical treatment. Dr Ghosh's belief that, 'in the matter involving her Queensland rental property', there was a conspiracy between the neighbours, police and the courts. Dr Ghosh's provision of a complaint allegedly about Dr Khan lodged online by an unidentified author that ticked the box 'lawyer of the patient' that was clearly in the handwriting of Dr Ghosh." Dr Newnham: Reports to Tribunal 1. Dr Newnham's report dated 4 April 2018 and her supplementary report of 6 July 2018 were based on her review of multiple documents provided by the Council and by Dr Ghosh as well as a two hour consultation with Dr Ghosh. She had not seen Dr Ghosh ahead of that consultation. From interjections made by Dr Ghosh during the evidence, it appears that Dr Ghosh disputes this. 2. The material relied on by Dr Newnham is set out in detail as the Tribunal considers that the material considered by her, and the processes she followed, provided a more comprehensive evidentiary basis for her opinions than did the opinions of Drs Davies, Bench, Robinson and O'Connell, which were based on more limited material. 3. Dr Newnham also brought her notes on which she had based her report to supplement her contemporaneous recollections of what was said to her by Dr Ghosh. The call for the production of those notes by Dr Ghosh was not acceded to nor directed by the Tribunal in circumstances where the Tribunal was informed on the last day of the hearing that Dr Ghosh had commenced defamation proceedings against Dr Newnham. That ruling was made to avoid any suggestion of 'fishing' for material relating to what the Tribunal regarded as the extraneous defamation proceedings. However, after some discussion (which is evident on the transcript) a mutually agreeable course was adopted by counsel whereby specific sections of the notes were identified in relation to areas of cross-examination. 4. That material Dr Newnham considered included: * Copies of the relevant s 150 and s 150A decisions; * Performance Interview reports (11 November 2011, 19 June 2009); * Conduct interview report (2 June 2017), * Redacted complaint (17 October 2017); * Report by Dr Oliver O'Connell (25 January 2018) * Report by Dr Russel Davies (26 February 2018). * Dr Ghosh voluntarily provided Dr Newnham with a number of documents: * Mandatory report against Dr Faisal Khan (author Dr Ghosh); * Statutory Offences Form – "complaint against the Khan Family Trust" (author de-identified); * Affidavit (29 February 2012; author Dr Ghosh); * Statement of a witness (17 January 2010; Charlestown Police Station: witness Dr Ghosh); * Emails from guests of Dr Ghosh at her holiday rental property in Surfer's Paradise. 1. The Tribunal also had the advantage of seeing Dr Newnham give her evidence during her extensive cross-examination which took place for almost the entirety of the third day of the hearing. 2. Prior to commencing her evidence Dr Newnham volunteered that there were some minor chronological errors made in relation to Dr Ghosh's use of anti-psychotic medication in 2017 rather than 2018; importantly, that there had been no prescription of anti-psychotic medication by Dr Ghosh while she had been suspended. That, and some other incorrect dates and details, were readily conceded by Dr Newnham. In the Tribunal's view, those minor corrections were totally appropriate concessions and did not, in any way, impact on the value or validity of Dr Newnham's opinions and observations. In particular, the Tribunal does not accept the suggestion of thematic errors on Dr Newnham's part as is implied in Dr Ghosh's closing submissions at [35] nor the description of Dr Newnham not 'acquitting herself well in her oral evidence' – at [41]. 3. Following an interview with Dr Ghosh, a mental state assessment and a review of extensive documentation, Dr Newnham thought that all of this material pointed to Dr Ghosh as suffering from a psychotic illness and indicated a marked decline in her functioning since the birth of her son AB. Rather than having an inherently critical attitude towards Dr Ghosh, Dr Newnham was at pains to stress in her oral and written evidence that, prior to AB's birth, she, Dr Ghosh, had obviously been a highly functioning and competent individual. That was evident from the qualifications and experience levels Dr Ghosh had attained. The Tribunal considered that that was a manifestation of the professional objectivity Dr Newnham displayed in relation to the entirety of her evidence and assessment of Dr Ghosh. 4. Dr Newnham also said that she would defer in any ongoing diagnostic situation to the opinions expressed by any treating psychiatrist who saw Dr Ghosh over a significant period of time. Dr Newnham: criticisms of Dr Ghosh's treatment of AB 1. Dr Newnham thought it was totally inappropriate for Dr Ghosh, who was a mother as well as a GP, to be treating her son who Dr Newnham described as a boy with considerable and serious medical needs. Further, she thought that it was inappropriate for Dr Ghosh to write a Mental Health Care Plan for her son. In Dr Newnham's view, the preparation of a Mental Health Care Plan required a stable medical practitioner to review it in conjunction with the parents in their capacity as parents – not as a doctor. 2. In Dr Newnham's view, the prescription by Dr Ghosh of anti-psychotic medication for a child/adolescent was a very serious matter which should only have been done by a child and adolescent psychiatrist. That action by Dr Ghosh was totally inappropriate. 3. Further, Dr Newnham thought that Dr Ghosh's diagnosis of AB as having psychosis was something which was rare in a boy of his years. Her prescription of aripipazole was "at best regrettable and at worse, bizarre". She also thought that Dr Gosh's prescription for a period extending over a six month period was highly unusual – as was the suggestion that a 12 or 13 year old would not have been admitted to a public hospital as described by Dr Ghosh. The evidence appears to be that Dr Ghosh wrote two prescriptions with five repeats within a few months of each other but only two single prescriptions were dispensed according to the PBS data. 4. Dr Newnham made the following specific observations in her original report: 5. Unkempt appearance. Dr Ghosh "appeared slightly un-kempt, with knee-length stockings not meeting all the way to her knee-length skirt and her hair appeared to be un-washed. The Tribunal notes that this description of Dr Ghosh's then appearance is at odds with the descriptions of other practitioners. 6. Incongruent affect. Dr Ghosh's "…affect was incongruent to the content of her speech. For example, she did not demonstrate any variation in affect when describing her son's illness or the involvement of the Department of Community Services" 7. Formal thought disorder Dr Ghosh's speech "was loud, rapid, and for at least the first sixty minutes of the interview, quite difficult to interrupt. There was evidence of formal thought disorder. Her thought form was highly circumstantial and greatly over-inclusive of detail, giving multiple names of various doctors and other parties she believed have conspired against her when names were not requested. She would divert widely from the question, eventually coming back to the answer only after several minutes of extraneous detail." 8. The Tribunal observed the same matters in Dr Ghosh's speech and conduct during the hearing, and particularly her tendency to make outspoken interventions even when cautioned about the possible impact of such comments. 9. Presence of multiple persecutory and grandiose delusions Dr Newnham said that: "During this assessment she expressed multiple persecutory self-referential beliefs. These beliefs were at times implausible "to the point of being bizarre. Dr Ghosh also holds numerous grandiose beliefs about her abilities as a doctor. These beliefs at times were sufficiently without rationale basis as to be concluded delusions of a grandiose nature." 1. Conspiracy in areas of life "where Dr Ghosh believes that conspiratorial forces have been working against her". Those included her relationships with other doctors, support staff and patients; her extended family; the involvement of the Department of Community Services with her family; those involved with her Queensland rental property (the tenants, the neighbours, the police and the court system). 2. In this general area, Dr Newnham provided multiple examples to support her opinion, including Dr Ghosh's response to the complaint by her former employer Dr Khan. That response was to make "a counter report" in which Dr Ghosh made multiple serious allegations about Dr Khan's practice, …"none of which were able to be substantiated by the Healthcare Complaints Commission whose response was included in Dr Ghosh's documentation shown to me. Despite none of her allegations being able to be corroborated, Dr Ghosh maintained she continues to believe that they are true. In the report against Dr Khan, she was highly preoccupied with the fact that Dr Khan is a Pakistani and made several references to his race and religious practices. 'He left for five weeks to attend the "Haj" in Saudi Arabia with his head shaved, returning on 911 (11/8/17) with terrorist connections.' (That was qualified by Dr Newnham to be a reference to 'alleged' terrorist connections) This is a particularly serious allegation to be made against a colleague in the absence of evidence, particularly when being put in writing to a professional registration body. In keeping with Dr Ghosh's language used in her Affidavit, as previously mentioned, her language is "over-inclusive, highly dramatic and the content unstructured." 1. Again, the Tribunal observed the same matters and heard the same kind of evidence in the same kind of manner from Dr Ghosh during the hearing. 2. Concerns re: cognition. Dr Newnham considered that: "…Dr Ghosh's cognition was grossly intact but there was evidence that further testing is necessary particularly in relation to frontal/executive functioning. At times her statements revealed a degree of dis-inhibition, such as the degree of detail she went into pertaining to her husband's sexual difficulties in the conception of their son." 1. The Tribunal also observed this dis-inhibition on a number of times during the hearing – particularly after Dr Ghosh was informed on at least four occasions that her loud interjections or instructions were audible to the Tribunal. Further, that she should be cautious in the context that such interventions could be used to draw inferences against her, both in terms of her capacity to control herself, and as demonstrations of a tendency to continue her vehement and obsessive determination to prosecute her views. Nevertheless, and unfortunately, that behaviour continued during the hearing. 2. Dr Newnham considered this behaviour to be both concerning and very important. It was the basis for her recommendation that there be a condition imposed on Dr Ghosh to ensure she has neuro-cognitive testing. 3. Impaired insight. Dr Newnham considered that: "Dr Ghosh demonstrated only minimal insight into the impact of her behaviour on her professional standing and patients, with blame almost entirely deflected externally. She demonstrated no insight into the fact that her account of her son's illnesses – as well as the involvement of the Department of Community Services - was most unusual. She indicated that she believed she was a general practitioner of exceptional ability and that by taking cultural awareness and communication training as recommended by the Council, she now fulfilled her obligations and was now fully fit to practice medicine. However, despite this culture awareness training, she continued to repeatedly make references about Pakistanis and frequently used the term 'unemployed disability pensioner' throughout the assessment when speaking about complainants." The Tribunal accepts this characterisation of Dr Ghosh's insight, behaviour and methods of communication. Retaliatory and Counter allegations 1. While Dr Ghosh dismissed many of the complaints against her as being of the 'tit-for-tat' variety that, in fact, seems to have been an accurate description of what she has done herself on many occasions. Her response to Dr Khan's complaint was to make a series of counter-allegations about his practice of medicine, employment of doctors without suitable qualifications and business dealings, none of which were able to be substantiated. Dr Newnham considered that the extent and nature of those complaints were bizarre and likely to be without foundation. On the material available to the tribunal, Dr Khan and the practice he ran had continued to operate for at least the six month period relevant to when Dr Ghosh's complaints were pertinent. 2. The Tribunal has not been provided with the details or documents relating to the defamation proceedings launched by Dr Ghosh against Dr Newnham. It would not be appropriate for the Tribunal to make any observations in relation to that litigation or whether, even if defamation were to be established, a situation of qualified privilege may be apposite for that action. However, it does appear to be, at least, very coincidental that that action against Dr Newnham was commenced at this stage of these proceedings, and that the originating process relating to that action was personally served by Dr Ghosh's husband two days before she, Dr Newham, was due to give evidence. Dr Newnham's evidence was that she found the process of service and related actions highly intimidating. Dr Newnham has been a consultant psychiatrist including being in private practice for at least seven years. The Tribunal accepted her evidence in that regard as being both genuine and reasonable. Queensland property neighbour dispute 1. Dr Newnham thought that a further issue raising concern about Dr Ghosh's mental health was a situation with a rental property that Dr Ghosh owned on the Gold Coast. In 2009 Dr Ghosh was embroiled in a conflict with neighbours and subsequent legal proceedings where she alleged that her holiday home was repeatedly maliciously damaged by her neighbours, with subsequent conspiracy by the legal system not to find in her favour. That dispute apparently gave rise to other defamation proceedings – see [156]. Persecutory beliefs/ Paranoia 1. Dr Newnham said that Dr Ghosh presented with multiple persecutory beliefs extending into several areas of her life. These persecutory beliefs have led towards complaints about her behaviour towards patients, practice staff and colleagues and have led to involvement in the legal system. In this regard the Tribunal considered that Dr Ghosh was unable to see that a medical professional assessment was not a personal attack on her. 2. Dr Newnham thought that Dr Ghosh also had grandiose beliefs about her abilities as a doctor and these beliefs have influenced her treatment of her family. The beliefs were mostly implausible and were not in keeping with her pre-morbid intelligence, and professional and life experience. 3. Further, Dr Newnham considered that Dr Ghosh's continued use of denigrating language towards other professionals particularly was indicative of "not having learnt much at all" from the various conduct/ disciplinary and professional proceedings to date. That was particularly evident in those comments made as recently in the statutory declaration sworn 17 September, 2018. Time period: deterioration 1. In Dr Newnham's opinion, Dr Ghosh's developmental history was not consistent with conditions that would likely lead to the development of a Narcissistic Personality Disorder as has previously been proposed. Dr Newnham observed that Dr Ghosh's interpersonal difficulties which had led to her notification were not matters which had always been apparent in the past. Dr Newnham referred to the fact that Dr Ghosh had maintained several stable friendships since her school days and she was accepted in a Paediatric Training Programme and progressed to the clinical examinations in 1999. In Dr Newnham's view, a person with a severe and enduring disorder of personality was unlikely to have been accepted onto a paediatric training programme, and certainly would be highly unlikely to progress through this programme to the clinical examination phase. The focus of the relevant time period for Dr Ghosh's deterioration was, in Dr Newnham's opinion, likely to have been in the years since AB's birth. Dr Ghosh: Current medical condition 1. The presence of multiple delusions, formal thought disorder and decline in functioning, led Dr Newnham to the provisional diagnosis as per DSM V of Schizophrenia. In Dr Newnham's view a differential diagnosis would include: 1. Psychotic disorder due to a medical condition; and 2. Neuro-cognitive Disorder. 1. In summary, Dr Newnham considered that Dr Ghosh suffered from an impairment as defined in the National Law, in particular, from a chronic mental health condition that has been to date, and continues to be, untreated. 2. Dr Newnham thought that Dr Ghosh had expressed multiple persecutory and self-referential beliefs extending into many areas of her life. She also noted the presence of formal thought disorder. Dr Newnham thought Dr Ghosh had schizophrenia rather than delusional disorder. She thought that Dr Ghosh had an apparent inability to control her impulses and that the presence of an organic mental condition should be considered and investigated. Dr Ghosh's physical health status was unknown to Dr Newnham but she thought it was possible that Dr Ghosh has had poorly-monitored/ controlled blood glucose for many years. On this basis she thought that there was a possibility that Dr Ghosh might be suffering the neurocognitive effects of a poorly controlled metabolic disorder and this possibility should be investigated. 3. Dr Newnham also believed that Dr Ghosh has developed only very marginal insight into the matters that led to the suspension of her registration. However, she has not developed any insight into the other concerns noted elsewhere and that she, Dr Ghosh, was resistant to engaging in any treatment plan as well as any form of professional supervision. Dr Newnham: recommendations for treatment 1. Dr Newnham considered that any such organic mental condition could best be confirmed by cerebral MRI testing and blood testing including thyroid testing. Dr Newnham considered that Dr Ghosh needed regular weekly therapy and multi-modal Cognitive Behaviour Therapy. The Tribunal sought those tests results – see [127]. 2. Dr Newnham said that she had other practicing medical patients who were doctors and who had schizophrenia and/ or other psychotic disorders but their conditions were managed with medication and appropriate weekly supervision. However, what was an essential pre-requisite for any successful treatment was an acceptance by Dr Ghosh for the need for treatment and professional and other supervision. That acceptance was not indicated by Dr Ghosh at the present time. Protection of public 1. Dr Newnham did not believe that the public would be adequately protected if the suspension were lifted and Dr Ghosh was permitted to return to practice. Determination 1. The Tribunal agrees with these opinions and recommendations. Against the background of the matters set out above and for these and other reasons set out below, the Tribunal is of the view that the suspension imposed by the s 150 and the s 150A hearings, which effectively lifted the suspension and imposed the condition not to practice, should be continued. Conditions if suspension lifted 1. Dr Newnham considered that if the suspension were lifted, the conditions that should be imposed should be that: 1. Dr Ghosh undertake to nominate a general practitioner whom she should see on a regular basis; 2. Dr Ghosh be referred to a psychiatrist for treatment and ongoing care; 3. Dr Ghosh undergo neuro-psychological assessment; 4. Dr Ghosh be allocated a supervisor; 5. Dr Ghosh to not be permitted to work in solo practice. 1. However, Dr Newnham reported that Dr Ghosh did not accept that need nor those conditions or the idea of any of them. 2. The Tribunal accepts this evidence and the associated recommendation as to monitoring. Further, that if such independent professionals are appointed, it is suggested that they all be required to report to the Medical Council on a regular basis. Further submissions were made in relation to conditions which might be imposed on Dr Ghosh while she remains subject to a condition not to practice: those are referred to below: see [182] – [183]. Consideration of issues raised in relation to Dr Ghosh 1. The Tribunal considers that the entirety of the evidence indicates concerns about Dr Ghosh in a number of areas. Observation by Dr Ghosh of the Guidelines about treating family members 1. There is no doubt about the severity of AB's ongoing condition and problems. Those, the severity of them, and the need for treatment, must have been clear to Dr Ghosh. She had seen a number of child psychologists since 2008. She told the Tribunal she has also sought advice about AB's management over the phone from an unnamed paediatrician at John Hunter Hospital. In 2016, Dr Ghosh prescribed risperidone for AB then aged 11. She stated that she had discussed her concerns about AB's behaviours (neglecting personal hygiene, not opening his bowels regularly and some delusional thinking) with this paediatrician who recommended risperidone. 2. The Tribunal considers that Dr Ghosh should have sought independent medical advice at both the specialist and general practitioner level, rather than persisting with her own treatment of AB and the prescription of medication for him. 3. Dr Ghosh was asked by the Tribunal why the paediatrician had not provided her with a prescription for risperidone and she responded that he might have and she may have lost this prescription. Dr Ghosh also told the Tribunal that she had trialled the risperidone for only about a fortnight then stopped it. 4. AB was hospitalized in April 2016 in John Hunter Hospital for the investigation and management of a painful left hip. His treating doctors (orthopaedic registrars and specialists) diagnosed transient synovitis. However Dr Ghosh was convinced AB had septic arthritis as he had severe pain. After conflict with hospital staff AB was discharged against medical advice. 5. During this time, Dr Ghosh prescribed strong analgesia and several courses of antibiotics for her son. The hospital doctors made a referral to FACS regarding Dr Ghosh's involvement in her son's treatment. 6. Dr Ghosh also prescribed substantial quantities of anti-psychotic drugs for AB. Those are set out at [118]. 7. In response, Dr Ghosh said that she did not initiate the prescription for him; that was done by a US doctor who gave her additional prescriptions which she later used – see next paragraph. She then filled out additional prescriptions for the same kind of medication. Ultimately that medication was further prescribed by Dr Colin Kable. 8. Dr Ghosh told the Tribunal that in January 2017, whilst returning from a cruise to South America, AB had a psychotic episode at the international airport in Florida. He was admitted into a specialist Child Behaviour Unit in Florida and prescribed anti-psychotic medications. On return to Australia in mid-January 2017, the family attended CAMHS (Child and Adolescent Mental Health Service) in Newcastle on a weekly basis for three months. During this time AB was seen by a psychologist and was not, until the last visit, reviewed by a psychiatrist. 9. Dr Ghosh stated that the service did not prescribe any medications to help with AB's behaviour. Dr Ghosh then wrote two prescriptions of olanzapine in March and May which she states was continuing what had been initiated in the USA. Use of medications for AB 1. A summary of the nature and volume of medications prescribed by Dr Ghosh was contained in Dr Hutt's report as follows: "There are two prescriptions for AB (then aged 12 years) for olanzapine, on 19 January 2017 (quantity of 28 with 5 repeats) and again on 22 March 2017 (quantity 28 with 5 repeats). Olanzapine is an antipsychotic agent, and the AMH lists its indications as schizophrenia and related psychoses, and bipolar disorder (with lithium or valproate). MIMS lists olanzapine as an atypical anti-psychotic, anti-manic, mood stabiliser used for schizophrenia, related psychoses; acute mania in bipolar 1 disorder (short-term therapy, +- Li or valproate); prevention of recurrence of manic, mixed or depressive episodes in bipolar 1 disorder". Use of medications for herself when prescribed for AB 1. Also of particular concern to this Tribunal was the number of times Dr Ghosh had used medications, which she had prescribed for her son, for herself or other members of her family. She agreed that she would not do that in the future although shortly after giving that evidence she qualified it by saying that "…as a mother, I prescribe for my son". 2. Dr Ghosh's accounts of why, on various occasions, she issued prescriptions for her son, when other doctors, hospitals, or medical centres were available, were not convincing in terms of persuading the Tribunal of her personal, professional or medical insights or attitudes. That history is all the more surprising when considering the clear warnings she had received from various doctors and authorities not to treat, nor prescribe for, her son. 3. Also of concern to the Tribunal was the absence of supporting medical material in relation to AB from his treating specialists. It appeared from an annexure to Dr Ghosh's statutory declaration of 17 September, 2018 that AB was examined by Dr Katherine Thomson-Bowe, a specialist paediatrician in August 2018. Her report of 27 August, 2018 indicated that AB was anxious and rigid but made no reference to autism. That report contained a number of deletions and omissions and the Tribunal was unable to rely on it to ascertain what an independent paediatrician considered AB's current situation to be. In that regard, there was no up-to-date report from Dr Kable who is said to be AB's treating psychiatrist. 4. The Tribunal has considerable concerns based on Dr Ghosh's practices in this area in the context of her evidence. On a number of occasions she said that others had issued those prescriptions, or that while she had issued those prescriptions, she had not always used them. 5. Near the conclusion of her evidence, Dr Ghosh undertook not to treat AB other than in emergencies. That was reiterated in her closing submissions at [36]. However, the Tribunal does not accept that statement of future intention and feels considerable unease about accepting that undertaking, given Dr Ghosh's continued view of her own capacity and competence to diagnose and deal with AB's many issues, and particularly those specific issues had been brought to her attention before by a variety of personnel. Clearly AB is a child who warrants, and needs, a great deal of independent, regular medical and other assistance. 6. The Tribunal considers that, both personally and professionally, that approach should be both front and central in Dr Ghosh's thinking and conduct. That has not been the case over at least the recent one to two year period. The Tribunal regards that as a fundamental breach of a medical practitioner's obligations – particularly when viewed in conjunction with Dr Ghosh's actions in relation to the Mental Health Treatment Plan she devised for AB and monitored herself – [126]. 7. While the Tribunal has considerable empathy for the ongoing strains and pressures of a parent of a child in AB's circumstances, those pressures are precisely why Dr Ghosh needs to absent herself from her current close involvement with his medical treatment and seek and rely on professional help. Establishment and review of her own Mental Health Treatment Plan for AB 1. Part of the Medical Council's concern about the attitude shown to Dr Hutt was that Dr Ghosh had prepared a Mental Health Treatment Plan in June 2013 for AB and then had, herself, carried out a review of that plan in August 2013. She said that she did that under pressure from her husband to enable the treating psychologist to make a Medicare claim in relation to that plan. In retrospect Dr Ghosh agreed that that was inappropriate. Investigations 1. During the hearing and in response to Dr Newnham's diagnosis and potential causes of Dr Ghosh's current medical position, the Tribunal called for blood tests and MRI results relevant to Dr Ghosh personally (which she had stated that she had undertaken). Those were supplied on 25 October, 2018. The Pathology Laboratory results as supplied to the Tribunal do not show a referring GP nor any thyroid function tests nor blood glucose nor HbA1C results. Absent any evidence as to a referring GP, the Tribunal is unable to determine whether those tests were carried out on a self-referred basis and, if so, whether that involves a breach of the current condition not to practice medicine. 2. Further examination of that matter would involve a reconvening of the Tribunal which would necessitate a further adjournment for at least some months. In the circumstances where the determination of that matter does not affect the Tribunal's final decision, the Tribunal considers that that aspect, if it is of concern to the Medical Council, can be the subject of communication between the Council, Dr Ghosh and the HCCC. Personal insight 1. It is clear that many of the matters of concern listed above are well known to Dr Ghosh or, at least, have been brought to her attention. Perhaps the best indication of that is the very careful letter sent to Dr Ghosh after the s 150 conduct proceedings from her then solicitors, Tress Cox, dated 7 August 2018. 2. The Tribunal was surprised that that letter had been provided by Dr Ghosh herself, at a time when she was legally represented. If there was any privilege attaching to that letter, that privilege was (at least implicitly) waived and relied on by Dr Ghosh. 3. The letter gives a detailed and thoughtful account of what Dr Ghosh should be doing in relation to her ongoing concerns. It includes the following: "You will also note that the delegates from the Counselling Interview have recommended that: You find a consistent and regular GP for your son. (We appreciate that there are a limited number of GPs in your local area whom you would want to care for your son. We recommend that you may wish to discuss this issue with other GPs to see whom they would recommend); You reflect on your part in the deterioration of the therapeutic relationships with your son's hospital practitioners; and You take time to reflect and consider on how you may be able to avoid future complaints being made against you." 1. What is more surprising is that, given the context and detail of that advice, Dr Ghosh does not appear to have acted on that advice. As an example, after that advice, she issued a further nine prescriptions for AB. Attitude to other professional views 1. In the course of the hearing it became clear that Dr Ghosh had not accepted the views or opinions of the Medical Council's experts nor the views of the delegates from the s 150 and s 150A hearings. Attitude to professional supervisory agencies 1. When that lack of acceptance or attitude was put to her, she replied that she thought the Council had tampered with the reports and other evidence. She also accused the Council of "doctor-shopping" in searching for a specialist to support their position. Put simply, Dr Ghosh did not deal with the substance and extent of the matters raised against her. Conclusion as to characterization of condition 1. Standing back and looking at the totality of the evidence, it is difficult for the Tribunal (which includes for these proceedings two psychiatric/medical members), to see how that behaviour might be classified as being other than paranoid or at least delusional. 2. Ultimately, Dr Ghosh reluctantly agreed that it might be advisable for her to engage in a form of psychotherapy or other similar treatment. The Tribunal asked Dr Ghosh to reflect on the communication difficulties (including her response to criticism) which were the subject of her suspension as outlined in the s 150 hearing report. However, when the hearing resumed after nearly three weeks, there was no evidence as to whether Dr Ghosh had taken any steps to either inquire into or arrange such treatment or assistance. Attitude to other professionals as working colleagues 1. Dr Ghosh also attacked Dr Newnham personally on the basis of her appearance. The irrelevance and nature of that attack is consistent with the attacks on the dress codes or appearance of other doctors in Dr Kahn's practice. Those descriptions, which were made in the context of professional proceedings, also carried what the Tribunal considers a strong undertone of racist generalizations. Those are to be deplored - particularly coming from anyone holding themselves out as providing a comprehensive general medical service to the community. That has clear implications in terms of considering the protection of the public. Attitude to other professionals as medical supervisory staff 1. The same attitude was apparent in Dr Ghosh's attacks on Dr Giuffrida in his capacity of presiding in the earlier conduct proceedings. Dr Ghosh was clearly angered by the diagnosis (by Dr Newnham) of what she thought was the provision of an opinion of a 'factitious disorder by proxy" (exhibit 5 p108). Even when that error was pointed out to Dr Ghosh, she extended her attack in a personalised way, and stressed that she thought Dr Giuffrida acted unprofessionally in "favouring appointments of his friends" and that "everybody (unspecified) thought so" and that there was likely to be "… a class action brought against the Council or some other medical authority". Attitude to other agencies in the Newcastle area 1. The same attitude of aggression and hostility to agencies operating in the Newcastle/Hunter area was evident in her attitude to FACS, arising from what she sees as the treatment of AB. Those agencies were operating in what were very difficult circumstances – the FACS officials were acting on the basis of a serious matter being referred to the Department by the HCCC, after an examination of (at least) Dr Ghosh's history of prescriptions for AB. Dr Ghosh repeated her descriptions of the apparently lawful and necessary interim actions of FACS as an "abduction" and "an imprisonment." 2. It is difficult for the Tribunal to see how the public would be well-served by a general medical practitioner evincing and maintaining such attitudes to what is an essential agency operating in the field of child welfare. Preparedness to accept assistance and supervision 1. The Tribunal has significant concerns about the capacity for Dr Ghosh to accept professional assistance and supervision given her hostility to the Council generally. That was evident in her preparedness to impute to the Council an intention to alter documents before the Tribunal - see [148] - or, on another occasion, to go "doctor-shopping" to obtain a psychiatric opinion which would support the views of the Council or the professionals appointed by the Council – for example, both Dr Newnham and Dr Hutt. 2. No objective or justifiable reasons were given at any stage for Dr Ghosh's unremitting and personalised attacks on those witnesses. Communication style 1. The Tribunal heard evidence that Dr Ghosh went to courses on patient communication in February 2018. She participated in an on-line course in April 2018 and did other cultural awareness courses. However, there is little other evidence as to what she has done in internalising whatever messages she may have received during those courses, nor what she has done in terms of maintaining her professional competence and awareness. 2. In particular, she has not seen any professional for specific assistance with her (very evident) anger management issues. She said she would be open to doing courses in therapy. Those were not specified. 3. The s 150 hearing indicated considerable concern about Dr Ghosh's communication styles towards staff and patients. That history appears to go back to 2005. There is nothing in the material presented by Dr Ghosh nor in her presentation during the hearing to give the Tribunal any confidence that she has addressed those issues. Attitude to complaints by patients 1. Part of the background to the earlier decision was the assessment of the history of complaints made against Dr Ghosh by former patients since 2005. Those alleged inappropriate and unprofessional behaviour towards patients, practice support staff and medical colleagues. 2. Dr Ghosh's written complaints against those who had complained against her, made either by her or on her behalf, as well as her responses, indicate to the Tribunal that she has maintained her attitudes to the complainants and their complaints against her. Implicitly, her reaction does not accept any room for improvement on her part. Veracity and issues of credit 1. At one stage in the hearing, Dr Ghosh submitted a transcript (exhibit 8 page 7) which included the words (attributed to Dr Giuffrida) that he had said of a witness: 2. 'Dr Giuffrida: "She is full of crap:"' It was clear that the underlining to that transcript had been added by Dr Ghosh herself for emphasis. 1. Even when the tape was played back showing that, on the material supplied (including that supplied by Dr Ghosh herself) the words were not said, Dr Ghosh refused to accept that. She went on to effectively accuse the Medical Council of doctoring a transcript and a supporting audio tape of earlier proceedings. She has maintained that denial – see Appellant's submissions [33]. 2. Dr Ghosh admitted on oath on Friday 28 September that she had her own audio copy of the s 150A hearing. Dr Ghosh then compared that version to the Medical Council's audio version (exhibit 15) to emphasise that her copy was authentic, had been prepared by another transcription agency and that the Council's copy was "doctored". The Tribunal does not know how that version produced or relied on by Dr Ghosh came into existence but the form in which it was produced bore no relationship to the authorised version of what had happened in the s 150 proceedings in terms of the added words. 3. Dr Ghosh then asked for a copy of the Medical Council's tape which was subsequently provided to her by the Medical Council. Dr Ghosh thereafter arranged for her own transcript of the audio which she then purported to transcribe. However, on the material before the Tribunal there is nothing to indicate when or by whom or how those words were added. The relevant audio transcript was played three times in Dr Ghosh's presence. She refused to accept that the words she had included in the transcript she provided had not been said. 4. It also appears to the Tribunal that Dr Ghosh altered her version of the transcript for the sole point of attacking Dr Giuffrida, and then separately, Dr Newnham. Her motivation appears to have been simply that they had given evidence or had made findings against her. 5. The Tribunal considers that this alteration of the transcript - and the reliance on it in the Tribunal hearing by Dr Ghosh - indicates considerable premeditation and continuing determination to mislead the Tribunal. It also indicates a determination to persist with her own views regardless of the reality of what has happened. That is quite apart from the available inference that she has sought to mislead the Tribunal in this regard. It is difficult to see any other explanation. 6. Against the background of the matters set out above, the Tribunal is unable to accept Dr Ghosh's evidence in any area where her interests are at stake and where it conflicts with the evidence of other witnesses. The Tribunal considers that Dr Ghosh's oral evidence contained or continued either misrepresentations or untruths and a refusal to engage in the substance of complaints against her. 7. In those circumstances, the Tribunal considers that, not only should the condition remain that Dr Ghosh not practice, but also that the Medical Council needs to be supplied with independent medical reports and assessments before taking any action to permit Dr Ghosh to return to practice. It is clear from the Council's submissions in reply received 29 October 2018 that the Council is alive to this issue. For the reasons set out at [184], the Tribunal does not propose to impose further conditions on Dr Ghosh in addition to the condition not to practice. Queensland litigation 1. Dr Ghosh's evidence on 27 September, 2018 contained references to a decision of the NSW Court of Appeal in relation to her ongoing litigation concerning the Queensland property and apparently related defamation proceedings concerning her neighbours. Her evidence was to the effect that that decision (reported at Ghosh v Miller (no 2) [2018] NSW CA 212) justified, if not vindicated, her approach and actions. She gave that evidence on 27 September, 2018 while the decision was pending. The decision was handed down and became available in electronic form on 28 September. Without going into that decision which is not otherwise relevant to these proceedings, it appears that the Court of Appeal decision remitted the proceedings for a new trial. When cross-examined about that, and her perception of what had occurred, Dr Ghosh had great difficulty in accepting the reality of the situation and would not accept that it did other than justify her own position. Language and Communication with clients 1. When Dr Ghosh was asked why she had made specific comments to or about patients and staff at Dr Khan's practice, she agreed that her language was completely inappropriate. However, she said that, if it was written by her, that it was an emotional reaction to the way she had been treated. When cross-examined as to why she had left an inappropriate phone message for a patient, she said that was in the context of the complaint which had been made against her. She was angry at the treatment she had received and what she had observed. 2. The Tribunal is unable to determine whether that anger was or was not justified. However, the Tribunal considers that this reaction, along with other material referred to above including most recently her attacks on, and threats of legal proceedings against, Drs Newnham and Hutt, is completely inappropriate for a medical practitioner. Further, that it displays a continuing inability to control her reactions and emotions in both a professional and personal context. It very much supports the evidence and diagnosis given by Dr Newnham. Earlier complaints: s 150 hearing 1. The Tribunal does not consider it appropriate or necessary to review the earlier complaints against Dr Ghosh. However, the Tribunal notes the comments from the s 150 hearing that: * Dr Ghosh has been the subject of nine prior complaints, six of which resulted in some kind of action. She has had two performance interviews relating to three of those complaints and this, her tenth complaint, is the second alleging a mental health impairment. * there were several previous complaints made against Dr Ghosh that related to her inappropriate behaviour and raised concerns about her mental health. * The tenth (and de-identified) complaint, reviewed at the s 150 hearing, included "over ten separate individual complaints alleged to be directed at Dr Ghosh". These included four hand-written complaints from patients, eight pages of documented complaints from reception, administrative and nursing staff at Wallsend general practice, one email from a patient and from three consecutive appraisal meetings between Dr Ghosh, Dr Khan and others. 1. The s 150 delegates concluded (in part) that "Dr Ghosh demonstrates a reckless disregard for information provided by her patients and, if the alleged complaints are true, has acted impulsively and aggressively on several occasions in her clinical practice. She appears to lack judgment in what she says about and to other doctors and her patients…". 2. Further: "…It was clear to the delegates that Dr Ghosh does not have the capacity to communicate clearly with her patients and her communication style actively impedes that communication. It was also very concerning that Dr Ghosh consistently commented on the ethnic, religious, racial and class backgrounds of her patients and her colleagues." 3. The Panel also noted that "Dr Ghosh also seemed to lack self-awareness. Rather than reflect on the extraordinary number of complaints made in relation to her approach to patient communication, she either attributed the complaints to a culture of complaining engendered by the practice or to patient instability… At no point did she reflect that she herself could have handled things differently." 4. When taken to the history of other complaints, Dr Newnham also said that Dr Ghosh had repeatedly either denied the complaints, or justified the actions of concern, with her only acknowledgement of a failure of standards being that she requires improvement in interactional skills with disadvantaged, difficult and vulnerable patients. 5. The Tribunal considers that Dr Ghosh's presentation and evidence at this hearing only confirmed those observations of both the earlier Panel hearing and Dr Newnham. Further, that there was no indication that Dr Ghosh had either accepted or learnt from those observations. Complaint: Mr Brosz 1. The same indication of problematic communication and inappropriate responses was evident from the complaint involving Mr Brosz. The background to that was that Dr Ghosh admitted to seeking to charge over $300 for an insurance report based on a single consultation; deliberately delaying providing Mr Brosz with a compliant Tax Invoice because she wasn't "particularly sympathetic to him"; altering the original handwritten Tax Invoice after he had returned it to her; charging him for more than double her usual fee for provision of medical records due to "the aggravation factor" and leaving him what the Panel consider to be a threatening message on his phone, terminating his treatment. Although she denied threatening to call his boss, she does not deny stating that she had commenced legal action against him, threatening that he would be "arrested by security" or stating that he has a mental problem. 2. There was no documentation by Dr Ghosh in Mr Brosz's medical records of any threating phone calls or letters of his care having been terminated. These admitted facts alone raise serious concerns about Dr Ghosh's judgment and professional conduct. 3. Of particular concern to the Panel was Dr Ghosh's dismissive attitude regarding this matter and her attempts to denigrate the patient by stating that he was "uneducated" and was seeking services for free. Further, her repeated statements about the frequency and persistence of phone calls, particularly from insurance companies, are difficult to believe. Also of concern were her statements to the Panel regarding "twenty years as a GP" and having had no patient complaints since she had been in practice in Newcastle. Both statements were, if not misleading, inaccurate in not providing a full picture of what had happened over the later stages of that period. 4. That same attitude was clear in the evidence given before this Tribunal concerning the complaints made against her. 5. The Tribunal considers that Dr Ghosh's presentation both in her statutory declaration and her oral evidence confirmed the observations and findings of Drs Hutt and Newnham. In particular, Dr Ghosh repeatedly gave over-inclusive or verbose answers which did not come to grips with the questions asked or which ignored the clear thrust of the questions both from her own counsel, counsel for the Medical Council and from the Tribunal members. 6. Dr Ghosh also maintained a dismissive and often contemptuous attitude towards the complaints which had been made against her and a very frequent tendency to attack those who had made complaints against her. That denigration extended to attacking some of the complainants on the basis of their race, ("Dr Khan was from a bad (un-named) university" and that he "…has a sham marriage"), culture and socio-economic status (his "indigenous 15 year old work-for-the-dole receptionist"), age and experience. 7. Dr Ghosh demonstrated a zealous determination to turn complaints against herself into retaliatory complaints against those complainants (which she described as their 'tit-for-tat' practice). That was combined with a very limited capacity to acknowledge fault on her own part, let alone a preparedness to learn or change. That was also indicated in her approach of blaming the HCCC for not investigating Dr Khan and asserting that the agency was in breach of the law for not investigating Dr Khan. 8. Dr Ghosh continued to overemphasise her own level of education and seniority as a justification for her conduct. That was consistent with what the Tribunal finds was an ongoing and dismissive attitude to professional supervisory bodies such as the Medical Council. That does not engender any confidence that she would accept advice nor willingly cooperate with supervisory requirements in the future. 9. Arising out of all the material before the Tribunal both in the previous hearings and as filed in or relied on in this hearing, the Tribunal notes with concern that: 1. rather than dealing with the substance of those complaints, Dr Ghosh has made a series of attacks on the other professionals involved in the earlier proceedings. That has involved, in particular, attributing malice, or lying, on the part of professional witnesses such as Dr Newnham and Dr Giuffrida. In the context of their reports and the evidence, the Tribunal takes the view that those attacks went far beyond the bounds of acceptable adversarial criticism, but rather indicated a degree of paranoia or contempt inconsistent with the professionalism which is to be expected of a doctor effectively applying for re-admission to practice. That is even more concerning given that the context is that one of the primary areas of investigation of Dr Ghosh was as to her behaviour as someone concerned about the health and welfare of a child in the situation of her own son; 2. Dr Ghosh seems to be either unaware of, or contemptuous of, the clear policy behind the AMC Guidelines in relation to medical practitioners treating their own family members, and in particular, the need for objectivity. That concern relates not only to her past actions in relation to her son, AB, but also her disregard and open hostility to the ongoing attempts by the Medical Council staff to bring these concerns to her attention; 3. Dr Ghosh has criticised the HCCC for bringing the issue of her medical practices with her son to the attention of FACS – also an agency for which she appears to have little regard. The Tribunal considers that this conflation of her own perceptions and needs with those of her son indicates an alarming lack of insight and preparedness to accept guidance; 4. Dr Ghosh criticised Dr Giuffrida in his capacity as a Panel member on the basis that he '… is someone who controls clinical exams in all specialities…' as well as on the basis of her unconfirmed belief that he was involved in appointing his friends as professional experts for the Medical Council. The Tribunal considers that criticism is not only unsubstantiated but also that it indicates a lack of understanding on Dr Ghosh's part of the processes of medical training and involvement. Further, it suggests a lack of objectivity on her part which is likely to impinge on Dr Ghosh's capacity to seek or accept professional assistance in the future – something which Dr Ghosh would clearly need if she was going to return to medical practice. 1. In the Tribunal's view, all those matters go to confirm the accuracy and validity of the earlier complaints against Dr Ghosh of inappropriate and unprofessional behaviour towards patients, practice support staff and medical colleagues. Rather than dealing with those, Dr Ghosh has adopted the retaliatory approach of simply attacking each witness on what the Tribunal regards as essentially spurious grounds. 2. Similarly Dr Ghosh's comment during the hearing on the issue of the differences in the transcript about the comments attributed by her to Dr Giuffrida, or her assertion that the "Council has a reputation of producing false psychiatric reports" does not engender any confidence that Dr Ghosh would respect the processes of medical regulation supervision, or discipline by the Medical Council. Submissions by counsel for Dr Ghosh 1. Comprehensive written submissions from counsel for Dr Ghosh dated 25 October 2018 were received and considered by the Tribunal. Without setting those out in detail, the central thrust of those submissions were to the effect (submissions paras 6-14 and ff) that there was a difference between the power to suspend and a power to impose conditions. It was submitted that those were mutually exclusive, that there was no limitation on the condition imposed "not to practise medicine". Further, that the imposition of that condition was an error of law as such a condition was for all purposes a suspension and a prohibition on practice. 2. The Tribunal does not accept that submission, rather, accepting the approach of the Medical Council in its Reply. To the extent that there is, or may be, a lacuna in the legislation (as suggested or implied), the Tribunal is of the view as a matter of statutory interpretation that the National Law is purposive legislation for the purposes of s 15 AA of the Acts Interpretation Act 1901 (Cth) and s 33 of the Interpretation Act 1987 (NSW). The clear purpose of the legislation is to ensure that a medical practitioner who has been found (as here) to have issues going to her fitness to practice is subject to a regime whereby the Medical Council as the regulatory authority has the flexibility to ensure that she will properly treat the health and safety of members of the public – see generally Mills v Meeking (1990) 91 ALR 16 per Dawson J at 30-31 (with reference to the Victorian Acts Interpretation Act); Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 153 ALR 490 at 509 per McHugh, Gummow, Kirby and Hayne JJ. It is not a situation (if that is what is contended for) where a medical authority should only have the option of letting the practitioner back to practice subject to conditions. The Tribunal accepts that there are good policy, administrative and supervisory reasons why a variety of responses and options might be considered by a regulatory authority in these circumstances, and for different time periods, when different professional opinions are received. It may be, for example, that a practitioner could maintain registration and work in a situation other than direct patient care – such as being a university lecturer. Accordingly the Tribunal rejects that submission that there has been an error of law and what flows from it. Consideration and Determination 1. The Tribunal has considered all the evidence and material before it, and the matters set out above including the observations of Dr Ghosh's own evidence and presentation throughout the hearing as well as the submissions made by both parties. Against that background, the Tribunal is of the view that there is no evidence that Dr Ghosh has developed insight into her problematic behaviours which had led to the multiple complaints against her over a number of years. 2. The Tribunal further considers that there is considerable evidence pointing to some degree of impairment on Dr Ghosh's part which includes: 1. A lack of self-awareness regarding her behaviour and the impact of it; 2. An inability to limit, contain or self-regulate inappropriate behaviour. Notable, but not alone, in that respect was her bizarre behaviour in terms of presenting the s 150A amended transcript with the words "She is full of crap" including a misattribution of those comments to Dr Giuffrida; 3. Her allegation that the Medical Council "doctored" or altered the audio recordings of the s 150A hearing and the refusal to accept that her view was wrong when the audio was replayed to her; 4. Her capacity to look for an external locus for blame for any criticism; 5. Her desire to refer professional witnesses, Dr Newnham and Dr Hutt, to the Attorney General for prosecution because they were critical of her; 6. Her initiation of defamation proceedings against Dr Newnham arising out of a medical report in circumstances where Dr Newnham was about to give evidence and the service of the process relating to that litigation on Dr Newnham two days prior to Dr Newnham giving evidence. 1. Further, that given the evidence presented by Dr Ghosh, there is nothing on which the Tribunal could be confident that the history and series of incidents and events detailed would not reoccur and that the public would be protected from any repetition. 2. The Tribunal considers that there is nothing in the material put forward by Dr Ghosh to warrant any alteration of the condition not to practice. Further that for all the reasons set out and described above that, pursuant to s 3A of the National Law, it is necessary for the protection of the public's health and safety that she not be permitted to resume practice. To make it abundantly clear in the other terms of the legislation, the Tribunal determines that, at least at this stage and on the material available, it is not in the public interest that Dr Ghosh be permitted to practice. Imposition of additional conditions 1. The Medical Council submits (written submissions 15 October 2018) that the Tribunal has the power to set aside the Council's s 150A decision to impose a not-to-practice condition and to permit Dr Ghosh to return to practise under conditions or otherwise. The Tribunal's power was considered in Karimi v Medical Council of NSW [2017] NSWCATOD 180 where it was held that the Tribunal, having confirmed the suspension of the appellant in that case, did not have the power to impose or vary conditions on a practitioner's registration not imposed by the Council. However, this is a different situation. 2. For the reasons set out, the Tribunal does not propose to lift or vary the not-to-practise condition. Additional conditions 1. The Tribunal has considered whether additional conditions should be imposed on Dr Ghosh while she remains a medical practitioner – albeit while she is not permitted to practice. Both counsel submitted that the Tribunal had that power in these circumstances. 2. In particular, the Tribunal considered whether conditions should be imposed that Dr Ghosh engage in appropriate health and psychiatric treatment for herself and her apparent impairment. However, having regard to the submissions of both counsel for Dr Ghosh and the Medical Council, the Tribunal has formed the view that such additional conditions would impose a substantial financial burden on Dr Ghosh which is not warranted, particularly bearing in mind the costs order to be made in these proceedings. 3. However, the Tribunal would use this opportunity to emphasise that Dr Ghosh should not minimize the concerns about her impairment which are inherent in Dr Newnham's reports and evidence (and whose opinions have been accepted by the Tribunal) nor persist with any reluctance to accept medical and other supervision by the Medical Council and its delegated officers. The Council has a clear responsibility to the public to ensure medical practitioners are fit to practice on all levels and that must be respected and observed. 4. At the conclusion of submissions on 18 October, 2018, Dr Ghosh was invited to make submissions as to any conditions to be imposed by 23 October 2018. Those submissions were received on 25 October 2018 and, along with the submissions in reply received from the Medical Council on 29 October, were considered by the Tribunal during the course of an electronic exchange. The Tribunal endorses the continuation of the 'not-to-practise' condition proposed by the Medical Council. Decision 1. For the reasons set out above the Tribunal determines that the appeal be dismissed. Costs 1. The Medical Council seeks a costs order against Dr Ghosh. 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]. The relevant cost provision under the National Law is cl 13 of schedule 5D. 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. The Tribunal does not consider that there are any such reasons. See also Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 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. The Tribunal considers that such special circumstances exist being the conduct of the proceedings in the absence of evidence as to the compliance with the prior s 150 and s150A Panel determinations and in the absence of any evidence meeting the real concerns expressed in the reports of Drs Hutt and Newnham, particularly about Dr Ghosh's medical, professional and personal capacities and deficiencies in terms of addressing the public interest and Dr Ghosh's capacity to act as a medical practitioner. In that regard the Tribunal does not consider that it is an answer to say that Dr Ghosh was relying on the evidence of Drs Davies, Bench, Robinson and O'Connell given the very different – and much more extensive - material relied on by Dr Hutt and particularly Dr Newnham. It is the responsibility of those seeking to rely on expert evidence and opinion to ensure that the relevant experts are fully briefed with all relevant material. 5. In so finding, the Tribunal has taken into account the conduct of the proceedings and the costs to the Medical Council. To the extent relevant in the light of the decision in HCCC v Philipiah, there is limited evidence as to the financial circumstances of Dr Ghosh and her family, including that she has not been working for the last year, the costs she and her husband are most likely to have, and to have had, with their son, balanced against their ownership of their home and, apparently, the Queensland investment property. The Tribunal has considered the matters set out in paras [19]-[21] of Dr Ghosh's closing submissions. 6. The Tribunal also notes that significant professional effort and expense has been incurred in dealing with this application with the chronology of matters set out above in addition to the costs and expenses of the prior s 150 and s 150A proceedings. Those costs have had to be met both by the community and the Medical Council as the relevant professional body. Such proceedings should not be instituted, nor maintained, without a realistic assessment of whether there is sufficient evidence to mount the application. Accordingly in this instance and in these circumstances, the Tribunal determines that costs should follow the event. Orders 1. For the reasons set out, the Tribunal orders: 1. Appeal dismissed. 2. The condition on the appellant not to practice as a medical practitioner imposed by the respondent is confirmed. 3. The appellant is to pay the costs of the respondent as agreed or as assessed under the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014.) 4. The Medical Council is authorised to forward copies of the following documents to Dr Ghosh's treating medical and other practitioners and any practitioner appointed by the Medical Council: 1. The Council's decisions under s 150 and s 150A; 2. The reports of Dr Kim Newnham dated 4 April 2018 and her supplementary report of 6 July 2018; 3. This decision. 1. The Medical Council is authorised to notify Medicare Australia and any Pharmaceutical Services Authority of the contents of this decision and the continuation of the condition not to practice including not prescribing. 2. The Medical Council is authorised to consent to any exchange of information between the Medical Council and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 3. Dr Newnham is not to be approached by any person connected with these proceedings other than the professional representatives of the parties. ********** 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: 20 November 2018