Ghosh v Medical Council of New South Wales

[2020] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Hearing dates:

6, 7 November 2019 (written submissions closed 12 December 2019)

Date of orders:

26 June 2020

Decision date:

26 June 2020

Before:

Brereton JA at [1]
Emmett AJA at [121]
Simpson AJA at [136]

Decision:

(1) Leave to appeal, insofar as it be required, be granted;

(2) The appeal be allowed;

(3) The decision of NCAT dismissing the appeal to it, confirming the decisions of the Medical Council, and ordering that Dr Ghosh pay the Council’s costs, be set aside;

(4) The matter be remitted to NCAT to be heard again, by a differently constituted panel;

(5) Insofar as any extant costs order does not otherwise provide, the respondent pay 75% of the appellant’s costs.

Catchwords:

ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – Appeal under (NSW) Health Practitioner Regulation National Law s 159 against decision of Council for a health profession under s 150 and 150A – Hearing de novo – The essential task of the Tribunal in such an appeal

ADMINISTRATIVE LAW — Hearing rule — Rules of evidence — Examination and cross-examination – Second aspect of the rule in Browne v Dunn (1894) 6 R 67 – Whether Tribunal erred in failing to have regard to the circumstance that evidence not accepted by Tribunal went unchallenged by cross-examination

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact – Where obvious and innocent explanation not considered in circumstances where findings were grave, devastating and infected the whole decision – Error established

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision not authorised — Statutory construction – Hearing and review of decision under (NSW) Health Practitioner Regulation National Law, ss 150, 150A – Whether Council precluded from varying its earlier s 150 decision under s 150A where there is no finding of a change in circumstances by s 150A(4) – Where s 150C(2) authorises the variation of a decision without such limitation

Legislation Cited:

(Cth) Acts Interpretation Act 1901, s 15AA

(NSW) Civil and Administrative Tribunal Act 2013, Sch 5, cl 29(2), cl 29(4)(b), cl 29(7), cl 29(8)

(NSW) Health Practitioner Regulation National Law, Pt 7, s 5, s 73, s 75, s 83, s 149C(4)(a), s 150, s 150A, s 150C, s 150D, s 150F, s 150H, s 150I, s 159, s 159B, s 159C, s 176D(1)

(NSW) Interpretation Act 1987, s 33

(NSW) Supreme Court Act 1970, s 48(1)(a)(iv), (vii), (b)(ii), (2)(f)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Browne v Dunn (1894) 6 R 67

Bulstrode v Trimble [1970] VR 840

Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115

Ghosh v Medical Council of NSW [2018] NSWCATOD 186

Ghosh v Medical Council of NSW [2019] NSWCA 264

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

Hanna v Medical Council of NSW [2017] NSWCATOD 27

Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38

Karimi v Medical Council of New South Wales [2017] NSWCATOD 180

Kirby v Dental Council of New South Wales [2018] NSWSC 1869

Kirby v Dental Council of New South Wales [2020] NSWCA 99

Medical Council of New South Wales v Lee [2017] NSWCA 282

Narrier v Western Australia [2016] FCA 1519

Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category:

Principal judgment

Parties:

Ratna Ghosh (appellant)
Medical Council of New South Wales (respondent)

Representation:

Counsel:
FM Douglas QC w GR Rubagotti (appellant)
O Jones (respondent)

Solicitors:
Barclay Churchill (applicant)
Medical Council of New South Wales (respondent)

File Number(s):

2018/00389585

 Decision under appeal 

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2018] NSWCATOD 186

Date of Decision:

20 November 2018

Before:

Knox ADCJ; Dr G Dore; Dr L Cotterell; S Lovrovich

File Number(s):

2018/00008057

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant Dr Ghosh was a registered medical practitioner. The respondent Medical Council of New South Wales (“the Council”), in a hearing convened under s 150 of the (NSW) Health Practitioner Regulation National Law (“the National Law”) concluded that the appellant’s registration should be suspended until her mental health was assessed, as there was a strong risk that she may fail to treat a patient with appropriate clinical care due to her poor communication and understanding skills, and that there were no conditions that would minimise that risk.

Upon the appellant’s application for a review under s 150A of the National Law, the Council’s delegates identified that the central issue was whether there had been a change in the appellant’s circumstances that justified the setting aside or variation of the decision to suspend her registration. Although not satisfied that there was any relevant change in circumstances, the Council substituted for the suspension a condition that she not practise medicine.

The appellant appealed against both the s 150 decision and the s 150A decision to the NSW Civil and Administrative Tribunal (“NCAT” or “the Tribunal”). The Tribunal dismissed the appeal and confirmed the non-practising condition essentially on the basis that it preferred the evidence of Dr Newnham (who was cross-examined), who provisionally diagnosed the appellant with schizophrenia, to that of four other psychiatrists (who were not cross-examined) in whose opinion the appellant did not have a major psychiatric illness.

Amongst other matters taken into account by the Tribunal was a conclusion that the appellant had attempted to mislead the Tribunal by altering a transcript of the s 150A hearing, which was devastating for her credit.

The appellant appealed to the Supreme Court.

Held, granting leave to appeal and allowing the appeal:

1. The Council did not lack power to vary its s 150 decision notwithstanding that it did not find a change in the appellant’s circumstances.

(per Brereton JA, Emmett AJA agreeing) Although, as the Council did not find a change in circumstances, s 150A(4) of the National Law precluded the Council from varying its earlier s 150 decision under s 150A, s 150C(2) would authorise the substitution of a condition where a suspension was terminated: at [33]-[34].

Medical Council of New South Wales v Lee [2017] NSWCA 282 applied.

(per Simpson AJA, not deciding) There is, at least potentially, a conflict between s 150A(3) and (4), and s 150C. Since s 150C was not referred to in argument, the relationship between the two provisions should be left to an occasion when it directly arises and when the court has had the benefit of full argument: at [145]-[146].

2. In any event, given this Court is considering whether NCAT erred, upon hearing de novo the s 150 question, it would be of no consequence to the ultimate decision of NCAT if it had wrongly failed to hold that the Council had erred in that respect: [32]-[34].

3. A non-practising condition is a condition relating to the practitioner’s practising the profession, within s 150.

(per Brereton JA, Emmett AJA agreeing) The only limitation on the types of condition that may be imposed is that the condition must relate to the practitioner’s practising the profession: at [39], [42]. A non-practising condition does so.

(per Simpson AJA, contra) A condition relating to a practitioner’s practising a health profession imports that the practitioner practises the health profession, but in the limited way permitted by the proposed condition. It is contradictory to impose a condition that precludes that practise: at [177].

4. The Tribunal erred in taking into account as reasons for preferring Dr Newnham’s evidence, that the professional witnesses whose reports were relied on by the appellant were not called; and in failing to have regard to the circumstance that their evidence went unchallenged by cross-examination: at [68]-[72]. As the other psychiatrists’ reports were tendered and admitted, without objection, in the absence of an indication from the Council that they were required for cross-examination, there was no reason why the appellant should have called them.

Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 applied.

5. The Tribunal’s finding that the appellant was dishonest because she had altered a transcript, which plainly infected the Tribunal’s conclusions as to her credit, character and fitness, was not reasonable having regard to its gravity, in the context of there being an obvious and much more probable innocent explanation, to which the Tribunal did not advert: at [85].

6. On an appeal from a s 150 decision and/or a s 150A decision, the essential task of the Tribunal is to consider whether, on the material before it, allowing the practitioner to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or to the public interest. The Tribunal failed to take the essential step of identifying what the risk was, and whether it was unacceptable. Moreover, despite the requirement that it re-exercise the s 150 discretion afresh, it effectively treated the appellant as bearing some onus to adduce evidence that displaced the need for the non-practising condition. It thus failed to address the essential question which the proper conduct of a hearing de novo required of it: at [97]-[98], [101], [103].

Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 applied.

Judgment

1. BRERETON JA: The appellant Dr Ratna Ghosh was registered as a medical practitioner in Western Australia in 1990, and in New South Wales in 1992; she has practised as such ever since. On 12 December 2017, the respondent Medical Council of New South Wales (“the Council”), by duly appointed delegates, determined, pursuant to s 150(1)(a) of the (NSW) Health Practitioner Regulation National Law (“the National Law”), to suspend Dr Ghosh’s registration as a medical practitioner. Dr Ghosh applied for a review of that decision under s 150A of the National Law, and on that review, the Council on 12 April 2018 substituted for the suspension of her registration a condition on the registration, under s 150(1)(b), that she not practise medicine (“the non-practising condition”). Dr Ghosh appealed, from both the s 150 decision and the s 150A decision, to the NSW Civil and Administrative Tribunal (“NCAT” or “the Tribunal”). On 20 November 2018, NCAT dismissed her appeal, confirmed the non-practising condition, and ordered that Dr Ghosh pay the Council’s costs. [1] From that decision, Dr Ghosh appeals to this Court.

   1. Ghosh v Medical Council of NSW [2018] NSWCATOD 186 (“NCAT decision”).

The statutory architecture

2. The present appeal requires an appreciation of the relationship between and nature of the different stages and levels of decision-making in connection with the interim protective apparatus provided by Subdiv 7 ("Powers of a Council for protection of public [NSW]") of Div 3 ("Complaints [NSW]") of Pt 8 ("Health, performance and conduct") in the National Law.

Section 150 action

3. Section 150(1) of the National Law requires the Council for a health profession – including, relevantly, the Medical Council – to take action by way of suspending, or imposing conditions on, a practitioner’s registration, pending the determination of a disciplinary complaint or an impairment inquiry, if it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or otherwise in the public interest to do so. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission (“HCCC”) to be investigated as a complaint. By s 150F, in a case of impairment, the Council must consult with the HCCC to see if agreement can be reached as to whether the matter should be dealt with as a complaint, or referred to an Impaired Registrants Panel.

4. Under s 150(2), a suspension imposed under s 150(1) continues until “the complaint … has been disposed of” or the relevant Council terminates the suspension. Similarly, by s 150H, a condition imposed under s 150 continues, if the matter is dealt with as a complaint, until the complaint is disposed of, or the conditions are removed by the Council. By s 150I, however, if the matter is referred to an Impaired Registrants Panel, the conditions imposed by the Council have effect until the conditions are removed by the Council (unless, after referral to a Panel, the matter is subsequently dealt with by the Council as a complaint, and the complaint is disposed of, in which case the conditions cease to have effect on disposal of the complaint).

5. The purely protective character of the s 150(1) function, and the interim nature of action taken under it, has been explained in Kirby v Dental Council of New South Wales, [2] where it was held that the touchstone for exercise of the Council’s power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest.

   2. [2020] NSWCA 99.

Section 150A review

6. Under s 150A, a practitioner may apply for a review of a decision under s 150, [3] and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant. [4] Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150, [5] but only if satisfied there has been a change in the practitioner's circumstances that justifies the variation or setting aside of the decision. [6]

   3. (NSW) Health Practitioner Regulation National Law, s 150A(1).

   4. (NSW) Health Practitioner Regulation National Law, s 150A(2).

   5. (NSW) Health Practitioner Regulation National Law, s 150A(3).

   6. (NSW) Health Practitioner Regulation National Law, s 150A(4).

Right of appeal to NCAT

7. Section 159 relevantly provides a right of appeal, on the merits, to NCAT, by way of hearing de novo:

159 Right of appeal [NSW]

(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession—

…

(a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension;

(b) against conditions imposed by the Council for the health profession on the person’s registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council;

…

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

…

(3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.

8. The powers of NCAT on an appeal are defined by s 159C of the National Law, in the following terms:

159C Tribunal’s powers on appeal [NSW]

(1) On an appeal against a decision of a Council, the Tribunal may by order—

(a) confirm the decision; or

(b) set aside the decision; or

(c) set aside the decision and make a new decision (being a decision that the Council could have made).

(2) The Tribunal’s order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.

9. On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150. [7] As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales, [8] the approach required of NCAT on an appeal of this kind is as follows:

   7. Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17]-[18]; Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123].

   8. [2017] NSWCATOD 180 at [123].

[123] … The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows:

(1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal’s task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]).

(2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47])

(3) Consequences of suspension The exercise of the power to suspend can be described as “draconian” and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law)

(4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76])

(5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19])

(6) Pre-conditions on power to suspend The Tribunal must assess whether “it is appropriate for the protection of the health and safety of any person or persons” or “is otherwise in the public interest” to make such orders as are permitted by s 159C. The Tribunal’s task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20])

(a) Scope of “protection of the health and safety of person or persons” The “protection of the health and safety of any person or persons” does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48])

(b) Scope of “public interest” The “public interest” consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56])

(7) No need to determine whether conduct is “professional misconduct” or “unsatisfactory professional conduct” Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes “professional misconduct” or “unsatisfactory professional conduct” or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22])

(8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79])

(9) Council’s separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner’s registration. If satisfied there has been a sufficient change in the practitioner’s circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).

10. In addition to the appeal on the merits provided by s 159, s 159B provides a right of appeal on a point of law:

159B Appeals on point of law [NSW]

(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) Subsection (1) does not limit a right of appeal under section 159.

(3) The Council must not make a decision that is inconsistent with the Tribunal’s decision with respect to a point of law under this section.

(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.

11. Where, as in this case, an appeal to NCAT is brought by a practitioner from both the original s 150 decision and a later s 150A decision, and under both s 159 (merits review) and 159B (appeal on points of law), the real issue for NCAT is, first, whether action under s 150 is to be taken, and if so, secondly, what action – suspension, or imposition of appropriate conditions – is appropriate for the protection of the health or safety of any person or persons or in the public interest. Given the de novo nature of the s 159 appeal, errors of law affecting the Council’s s 150 decision, or its s 150A decision, will usually, though not necessarily invariably, be moot.

Right of appeal to Supreme Court

12. (NSW) Civil and Administrative Tribunal Act 2013 (“NCAT Act”), Sch 5, cl 29(2) provides that a party to proceedings in NCAT in which a professional decision (which includes a decision on appeal from a decision of a Council under s 150 or s 150A of the National Law) is made, may appeal against the decision to the Supreme Court. [9] By cl 29(4)(b), such an appeal may be made as of right on any question of law, or with the leave of the court, on any other grounds.

    9. In the present case, the appeal is assigned to the Court of Appeal because the Tribunal as constituted for the hearing of the matter included a judge of the District Court: (NSW) Supreme Court Act 1970, s 48(1)(a)(iv), (vii), (b)(ii), (2)(f).

13. Clause 29(7) provides that the Supreme Court may decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. By cl 29(8), the Court may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to orders that provide for the decision under appeal to be affirmed or varied, the decision under appeal to be quashed or set aside, the decision under appeal to be quashed or set aside and another decision substituted for it, or the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Court.

14. Unless the Supreme Court decides to deal with an appeal by way of a new hearing, the question for the Court is whether NCAT erred in its fresh exercise of the s 150 discretion. Error of law on the part of a Council, in either the original s 150 decision or any subsequent s 150A decision, would not of itself attract the intervention of the Supreme Court, which will intervene only if NCAT’s own decision is in need of correction. [10] Accordingly, absent a decision to deal with the appeal as a hearing de novo, NCAT’s decision is the focus of an appeal to the Supreme Court.

    10. Cf Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [4] (Barrett AJ).

Background

15. Over the period between 2005 and 2016, Dr Ghosh was the subject of nine complaints. Two were discontinued. Three resulted in “no further action”. One (in 2005) resulted in a “Letter from Board”. Three (one in 2008, one in late 2010 and one in early 2011) resulted in performance interviews. None identified a serious risk to patients or the public.

The complaint

16. As a result of a notification made by Dr Khan, a medical practitioner in whose practice, in the Newcastle area, Dr Ghosh had been employed, to the effect that he believed that Dr Ghosh was suffering from a mental impairment that may place the public at risk of harm, and had terminated her employment on 28 September 2017 due to increasing complaints and troubling behaviour with patients, the Council convened a s 150 hearing and appointed delegates to conduct it, on 12 December 2017.

The s 150 decision

17. The Council’s delegates identified the relevant questions for them as being:

1. Does the practitioner’s behaviour raise a concern that the practitioner could be impaired?

2. If so, what work is the practitioner likely to undertake in the near future where that impairment may impact the practitioner’s application of the necessary standard of practice, knowledge and understanding to ensure the public’s health and safety is protected?

3. If it is concluded that the practitioner does pose a risk to the health or safety of the public and/or that the public interest warrants action being taken, then:

1. Are there conditions that could be imposed to minimise that risk?

2. If not, should the practitioner’s registration be suspended?

18. The delegates answered the first question by saying that they were convinced that there was a high possibility that Dr Ghosh was impaired and an urgent need for proper psychiatric review. They noted that Dr Ghosh demonstrated “a reckless disregard for information provided by her patients” and, if the alleged complaints were true, had acted impulsively and aggressively on several occasion in her clinical practice, appearing to “lack judgment in what she says about and to other doctors and her patients”. After referring to two specific incidents involving vulnerable patients – one being a child who may have been prescribed amoxycillin when the parents alleged that they had communicated that the child was allergic to penicillin, and the other a pregnant woman whom Dr Ghosh had forcefully counselled against a Boostrix injection when such an injection was regarded as best practice – the delegates said that it was clear to them that Dr Ghosh did not have the capacity to communicate clearly with her patients and her communication style actively impeded that communication; that it was also concerning that she consistently commented on the ethnic, religious, racial and class backgrounds of her patients and colleagues; that she seemed to lack self-awareness; and that her manner and communication style impeded her capacity for safe work practices.

19. As to the second and third questions, the delegates found that in the light of Dr Ghosh’s intention to continue to practise as a general practitioner, which required appropriate communication skills and patient understanding, and her poor insight into how her manner and communication style impacted her capacity to effectively deal with clients’ clinical issues, there were no conditions that would minimise the risk, and her registration should be suspended until her mental health was assessed, as there was a strong risk that she may fail to treat a patient with appropriate clinical care due to her poor communication and understanding skills.

The s 150A decision

20. On Dr Ghosh’s application for a review under s 150A, the delegates identified that the central issue was whether there had been a change in Dr Ghosh’s circumstances that justified the setting aside or variation of the decision to suspend her registration. Since the s 150 proceedings, Dr Ghosh had been subject to psychiatric reviews by Dr O’Connell (qualified for the Council), Dr Davies (a former treating psychiatrist of Dr Ghosh), Dr Bench (independent expert qualified by Dr Ghosh), and Dr Newnham (appointed by the Council). Oral evidence was given by Dr Ghosh, Dr Newnham (who opined that Dr Ghosh had a psychotic illness), and Dr Bench (who disagreed, but accepted that he had not been provided with all relevant information). The delegates concluded that while there was disagreement among the psychiatrists as to the nature of Dr Ghosh’s impairment, a majority did identify significant deficits in her behaviour. They took the view that while not able to conclude (as Dr Newnham provisionally opined) that she had schizophrenia, a majority of views supported some kind of impairment in the form of a personality disorder, and probably suffered from a delusional disorder. The delegates concluded:

The question for the delegates, however, is not what kind of impairment does Dr Ghosh have, rather the question was have these psychiatric reports provided evidence that significantly changes the circumstances that led to Dr Ghosh’s suspension in December 2017. The answer to that question is no. At the last s150 hearing the order was made with the likelihood of a diagnosis of impairment in mind and since that hearing that diagnosis has, we believe, been confirmed.

21. Although not satisfied that there was any relevant change in circumstances, the Council substituted the non-practising condition for the suspension because of what was perceived to be a potential lacuna in the operation of a suspension if the matter were referred under to an Impaired Registrants Panel, whereas there was no such potential lacuna in the case of a condition.

The NCAT decision

22. As has been noted, Dr Ghosh’s appeal to NCAT was brought against both the s 150 decision and the s 150A decision, pursuant to both s 159 (merits review) and s 159B (error of law). The Tribunal dismissed the appeal and confirmed the non-practising condition. The relevant parts of its decision are examined in greater detail below. But in broad terms, the Tribunal preferred the evidence of Dr Newnham, who provisionally diagnosed Dr Ghosh with schizophrenia, to that of four other psychiatrists in whose opinion Dr Ghosh did not have a major psychiatric illness; and accepted Dr Newnham’s opinion that the public would not be adequately protected if she were permitted to resume practice. As the Tribunal put it, after setting out at length Dr Newnham’s opinions and recommendations:

104 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 practise, should be continued.

23. One of the additional matters referred to was Dr Ghosh’s medication, particularly with anti-psychotic medication, of her son. The others were, essentially, matters that in the Tribunal’s view went to confirm Dr Newnham’s opinion; the Tribunal said (at [135]) that “standing back and looking at the totality of the evidence”, it was hard to see how Dr Ghosh’s behaviour might be characterised as other than paranoid or at least delusional; it referred to her willingness to attack other professionals and make racist generalisations, and her hostility to agencies such as Family and Community Services; it observed that her communication style remained flawed and that she showed a poor attitude towards complaints made against her, including by patients; it noted (at [143]) that she had attended courses on patient communication, an online course and other cultural awareness courses, but that there was little other evidence as to what she had done in internalising whatever messages she may have received; and, in addition, it concluded that she had actively attempted to mislead the Tribunal by altering a transcript of the s 150A hearing (a matter to which it will be necessary to return).

The Supreme Court appeal

24. Dr Ghosh appealed to the Supreme Court, as of right; she did not (until at the hearing, in circumstances described below) seek leave to appeal. As such, the appeal was confined to questions of law.

25. Prior to the hearing, the appeal has had an unhappy course, the earlier history of which is set out in the judgment of Barrett AJA on 21 October 2019, [11] on the Council’s motion for dismissal of the appeal for want of prosecution and abuse of process, in circumstances where deadlines for Dr Ghosh to file an amended notice of appeal and written submissions had expired unsatisfied on five occasions. Dr Ghosh filed an amended notice of appeal on the morning of the hearing of that motion, and his Honour, noting that in the absence of leave to appeal (which had not been sought) the appeal was limited to a question of law, struck out several grounds as not arguably raising a question of law. [12]

    11. Ghosh v Medical Council of NSW [2019] NSWCA 264.

    12. (NSW) Civil and Administrative Tribunal Act 2013 (“NCAT Act”), Sch 5, cl 29(4)(b) gives an appeal as of right "on any question of law", and an appeal, with the leave of the Supreme Court, "on any other grounds". Dr Ghosh did not seek at that stage seek leave, so her appeal was confined to one on a question of law.

26. Dr Ghosh (in person) lodged written submissions in connection with the remaining grounds, to which the Council responded to the effect that they amounted, at least in large part, to an attempt to relitigate factual disputes that were resolved, without legal error, by the Tribunal. As the appeal was at that stage presented, that submission appeared to have considerable force. However, when the hearing commenced on 6 November 2019, Dr Ghosh was represented by senior and junior counsel, whom she had retained the preceding day. Their intervention resulted in the distillation from the grounds of appeal of recognisable questions of law, and the focussing of the appeal on them. However, as the hearing proceeded, it became clear that the remaining grounds in the amended notice of appeal did not encompass some genuinely arguable issues, and also that some of those issues might not clearly be questions of law. At the end of the hearing, leave was given to file revised appeal grounds (dated 7 November 2019), including an application for leave to appeal pursuant to cl 29(4)(b) of Sch 5 to the NCAT Act, to the extent that any of those grounds required leave. [13] Directions were made for the exchange of written submissions in connection with the newly formulated grounds. The Council lodged its “Respondent’s Submissions on New Grounds of Appeal” on 28 November 2019, and Dr Ghosh lodged “Applicant’s Submissions in Response to the Respondent’s Submissions on New Grounds of Appeal” on 12 December 2019.

    13. Contrary to a suggestion in the Respondent’s Submissions on New Grounds of Appeal (filed 28 November 2018), the application for leave to appeal was not at large, but was confined to the grounds otherwise raised, to the extent that they were not questions of law: “To the extent that the grounds raised above do not raise questions of law, the Appellant seeks leave to raise them pursuant to cl 29(4)(b) of Sch 5 to the [NCAT Act]”.

27. Although Dr Ghosh’s counsel referred to the ample powers of the Supreme Court under cl 29(8) of Sch 5 to the NCAT Act, no application was made for the Court to deal with the appeal, under cl 29(7), as a hearing de novo, and the appeal was not conducted on that basis. Accordingly, the question for this Court is whether NCAT erred in any of the respects identified in the revised appeal grounds, and if so, what orders should be made under cl 29(8).

Ground 1: the s 150A review

28. Ground 1 in the revised appeal grounds was:

The Tribunal erred in law by upholding the decision of the Medical Council of New South Wales (the Council) to vary or set aside its determination under s. 150 of the National Law so as to impose a condition on her registration not to practice [sic] medicine, in that, in the facts and circumstances of the case, there was no power in the Council to so vary or set aside its s. 150 decision owing to the provisions of s. 150A(4) of the National Law in light of the findings of the Council at RB 34C-F.

29. On a s 150A review, the Council may vary or set aside a suspension or condition imposed under s 150 (and substitute any other order it could have made under s 150(1)), only if it is satisfied that there has been a change in the practitioner's circumstances that justifies a variation or setting aside of the earlier s 150 decision. Section 150A(4) provides:

A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.

30. As has been noted, in the s 150A decision, the delegates posed for themselves the question whether the psychiatric reports provided evidence that significantly changed the circumstances that led to Dr Ghosh’s suspension in December 2017, and answered it in the negative, observing that at the s 150 hearing the order was made with the likelihood of a diagnosis of impairment in mind, and that since that hearing the diagnosis had been confirmed. Then, having observed that other changes that might be relevant were Dr Ghosh’s engagement with training and education over the preceding three months, the Council’s delegates concluded that they did not evidence a change of circumstances that would lead to a decision to allow her to practise.

30. However, apparently acting on some advice provided to them, the delegates, having concluded that Dr Ghosh had “a confirmed impairment”, lifted the decision to suspend her registration, and substituted the non-practising condition. The reason for this was that, under s 150(2), a suspension ends when a complaint about the practitioner is disposed of, and the delegates were concerned that if an investigation by the HCCC resulted in a referral to an Impaired Registrants Panel, the complaint might thereby be disposed of, for the purposes of s 150(2), and there would be a ‘lacuna’ between then and any determination of the Panel, during which no suspension would be in force. It was therefore considered that it was preferable to impose a non-practising condition, which (if the matter were referred to an Impaired Registrants Panel) would, under s 150I, remain in effect until removed by the Council.

31. It seems to me that, having concluded that there had been no relevant change in circumstances, s 150A(4) precluded the Council from varying its earlier s 150 decision under s 150A. However, although it was not referred to in argument, a further relevant power is to be found in s 150C, which relevantly provides as follows:

150C Power to remove or alter conditions or end suspension [NSW]

(1) A Council may, at any time—

(a) end a period of suspension imposed by the Council under this Subdivision; or

(b) alter or remove conditions imposed under this Subdivision.

(2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action.

33. As was explained in Medical Council of New South Wales v Lee, ^[14] this power may be exercised at any time and is not conditioned on the medical practitioner lodging an appeal or demonstrating a change in circumstances. Moreover, s 150C(2) would authorise the substitution of a condition, where a suspension was terminated. Accordingly, although there was no change of circumstances, the Council was not precluded from ending the suspension and substituting the non-practising condition.

    14. [2017] NSWCA 282 at [91]-[92] (Sackville AJA; Beazley P and Basten JA agreeing).

34. In any event, the s 159 merits appeal still required NCAT to exercise afresh the power of the Council under s 150, and in so doing it was not constrained by s 150A(4). Moreover, had the s 150A decision been quashed for error of law, that would merely have revived the s 150 decision which it varied. The question for this Court is not whether the Council, on the s 150A hearing, erred in substituting the non-practising condition for the suspension, but whether NCAT erred, upon hearing de novo the s 150 question, in confirming that condition. In those circumstances, it would be of no consequence to the ultimate decision of NCAT if it had wrongly failed to hold that the Council had erred in that respect. This ground, therefore, fails.

Ground 2: the non-practising condition

35. Ground 2 in the revised appeal grounds was:

The Tribunal erred in law in confirming the decision of the Council to impose a condition upon the Appellant’s registration as a medical practitioner that she was not to practise, which condition is not a condition within the meaning of s. 150 and/or s. 150A of the National Law.

36. It is clear that NCAT confirmed the non-practising condition, rather than a suspension, for the same reasons as the Council at the s 150A hearing (emphasis in original):

178 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 15AA 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.

37. However, resolution of the question raised by this ground does not require determination of whether or not there is any such “lacuna” as the Council and the Tribunal posited. The essential question for this Court is whether such a “condition” was a condition relating to the practice of medicine, within those contemplated by s 150(1). The argument that it was not was, in essence, that because it prohibited practising, it was not a condition relating to practising the profession, but amounted to a suspension rather than a condition.

38. The conditions which a Council is authorised by s 150(1) to impose are “the conditions relating to the practitioner’s practising the health profession the Council considers appropriate”. Section 150(1) relevantly provides (emphasis added):

(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-

(a) by order suspend a registered health practitioner’s or student’s registration; or

(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or

(c) by order impose on a student's registration the conditions the Council considers appropriate.

39. A condition is imposed on and attaches to the practitioner’s registration. Such a condition reduces the freedom of action that the registration would otherwise confer. [15] The only limitation on the types of condition that may be imposed is that the condition must relate to the practitioner’s practising the profession. Thus a condition that bore no relation to the practice of medicine would be outside the scope of s 150(1). However, that the scope of conditions is not confined to how the practitioner actually conducts his or her practice is illustrated by s 150(5), which provides:

Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.

15. Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [95].

40. A practitioner can be registered without having a right to practise: Pt 7, Div 5 provides for non-practising registration, and s 75 provides that a registered health practitioner who holds non-practising registration in a health profession must not practise the profession. [16] However, such registration permits the practitioner to retain the title of medical practitioner.

    16. Sections 73(b) and 74 require the individual to be a “suitable person” to be eligible for non-practising registration, and unsuitability may arise from the individual’s criminal history, or from the individual being for any other reason not a fit and proper person to hold a non-practising registration.

41. There is a distinction between suspension and a non-practising condition. The former has the consequence that the practitioner is taken not to be registered during the period of the suspension. [17] The latter leaves the practitioner registered, with the associated privileges, other than the right to practise. In effect, it makes the registration equivalent to a non-practising one, so long as the condition remains in place. But unlike suspension, the practitioner remains registered. In that way, it is a more moderate measure than suspension.

    17. (NSW) Health Practitioner Regulation National Law, s 176D(1).

42. I therefore accept that a non-practising condition is a condition relating to the practitioner’s practising the profession, within s 150. This ground fails.

Grounds 3 & 4: denial of procedural fairness

43. In her amended notice of appeal, the appellant complained of denial of procedural fairness, and failure to afford her a reasonable opportunity to deal with adverse material. Her pre-hearing written submissions on this ground focussed on the proposition that in the NCAT appeal, the focus had shifted from the matters which had been articulated in the s 150 and s 150A hearings, to issues concerning her treatment of her son, which had not been the subject of the earlier hearings. In oral argument, it was submitted that before NCAT, Dr Ghosh and her counsel proceeded on the basis that the real issue was what had been articulated in the Council hearings, and she therefore did not adduce evidence relevant to her treatment of her son; yet the Council adduced a substantial body of evidence on the question, in particular form Dr Hutt, which became the central issue in the NCAT appeal.

44. While her treatment of her son was certainly a significant issue in the appeal, it is by no means apparent that it was the central issue; indeed, it seems to me that Dr Ghosh’s mental health remained the central issue. In any event, however, Dr Hutt’s evidence was served in or about July 2018, two months prior to a hearing which commenced on 27 September 2018 for two days, and then resumed on 17 October and concluded on 19 October. No evidence, nor argument, demonstrated how any procedural unfairness to Dr Ghosh was occasioned in this respect. This ground, to the extent that it is still maintained, fails.

45. However, the complaint of denial of procedural fairness assumed an additional aspect in the course of the hearing and in the revised appeal grounds. Before NCAT there was evidence from five expert psychiatrists: Dr Davies, Dr Bench, Dr O’Connell, Dr Robinson and Dr Newnham. The first four-named of those doctors expressed opinions to the effect that while Dr Ghosh had a difficult and abrasive personality and did not respond well to criticism, and (in some cases) may have a personality disorder, she did not have a psychotic illness or major mood disorder. Dr Newnham, on the other hand, gave her a provisional diagnosis of schizophrenia, with differential diagnoses of psychotic disorder due to a medical condition or a neurocognitive disorder, and opined that the public would not be adequately protected if she were permitted to resume practice. Grounds 3 and 4 in the revised appeal grounds related to the acceptance by the Tribunal of the evidence and opinions of Dr Newnham in preference to those of the other four psychiatrists, who were not cross-examined.

46. Ground 3 in the revised appeal grounds was:

The Tribunal erred in law, in circumstances where:

(a) Evidence was admitted on behalf of the Appellant from a number of expert psychiatrists; and

(b) That evidence was not cross-examined upon; and

(c) That evidence supported the Appellant’s case that there was no need to take action under s. 150 and/or s. 150A; and

(d) The hearing was one de novo under s. 158(2) of the National Law; and

(e) No evidence called by the Respondent or otherwise supporting any finding that it was appropriate to impose a condition upon the Appellant’s registration that she not practise for the protection or the health or safety of any person, other than her son; and

(f) The Tribunal preferred the evidence of Dr Newnham and Dr Hutt in any area where respective evidence conflicted with that expressed in the reports of Drs Davies, Bench, O’Connell and Robinson,

and in so doing imposed such a condition upon the Appellant’s registration.

47. Ground 4 was:

The Tribunal erred in law in the circumstances set out in [3] above in that procedural fairness required that the expert witnesses of the Appellant be given an opportunity to respond to the case being advanced by the Respondent before the Tribunal, before determining the matter in favour of the Respondent, especially in circumstances where the reports from the Appellant’s witnesses were admitted without objection, including a new witness Dr Robinson, who had not previously been called to give evidence in the s. 150 and s. 150A hearings.

48. It is necessary to set out in a little more detail the substance of the various psychiatrists’ opinions.

49. Dr O’Connell was appointed by the Council to evaluate Dr Ghosh, for the s 150A hearing. He saw her, for two hours, on 12 January 2018. In a report dated 25 January 2018, he recorded that he had reviewed a (redacted) complaint dated 17 October 2017, identifying 12 complaints from patients and administrative staff dated between March and July 2017, and minutes from three appraisal meetings of 25 May, 20 July, and 8 August 2017, observing that there was “a pattern of Dr Ghosh disagreeing with, rebutting, refuting, dismissing, or deflecting most of the complaints from patients and from the administrative staff”. He observed that in the meeting of 25 May, Dr Ghosh kept saying she had been picked on by white people because of her colour and it was not fair, but acknowledged that she had a problem arriving at work late. Subsequently, Dr O’Connell also obtained a copy of the s 150 proceedings of 12 December 2017. Dr O’Connell elicited a history that Dr Ghosh had previously consulted with Dr Russell Davies for a report for a court case; that she was subject to some minor racial bullying whilst at school, and that her son suffered from autism, mental retardation, oppositional defiant disorder, and obsessive-compulsive disorder. He recorded that she presented punctually and neatly attired, somewhat anxious but appropriate. He noted inconsistencies between the history given by Dr Ghosh and that contained in the s 150 proceedings as to the number of previous complaints. Her affect was reactive and congruent, and mood euthymic. Her tone of speech was derogatory and demeaning at times, and thought content had a strong emphasis on race, religion, education, and social standing. He thought she had relatively poor insight into her behaviour, and in particular, “little concern or possibly self-awareness of how she comes across to others”. However, Dr O’Connell said:

In my opinion Dr Ghosh does not currently display the signs or symptoms of a major mental illness (DSM 5). In particular there is no evidence of a major mood, psychotic, or substance use disorder that might give rise to the alleged behaviours.

It is difficult for me to comment on the content of the complaints as I only have Dr Ghosh’s side of the story.

However at interview she demonstrated a pattern of demeaning others based on race, religion, education and social standing, leading to her comment, “I sound racist but I’m not”.

This pattern may have been present for a long time as previous complaints had noted problems with her behaviour. These behaviours might be indicative of underlying narcissistic personality traits (DSM 5), (App II), if they have been stable over time.

50. Dr O’Connell observed that this did not definitively exclude the presence of a mental illness, and that the appearance of new behaviours could be suggestive of some underlying process such as a mood or psychotic disturbance; it was also possible that such behaviours could be due to regression under stress exaggerating underlying personality traits, and Dr Ghosh had been under significant stress. He concluded:

This was a difficult assessment due to a lack of collateral and past history, and only Dr Ghosh’s history available at the time of the assessment. The history of her behaviour at interview is suggestive of underlying narcissistic personality traits that requires more extensive assessment to accurately diagnose. These personality traits may be exaggerated at present as Dr Ghosh is under extreme stress due to difficulty with her son’s mental state.

51. Dr Davies provided a report dated 26 February 2018, in which he noted that he had treated Dr Ghosh for anxiety in 2013 and thus was providing the report as someone who had previously provided treatment to her as opposed to as an independent expert. He noted that he had previously assessed her, and had access to his previous records. He also had the s 150 proceedings. He assessed her over a period of one hour on 20 February 2018. He obtained a history regarding the complaints at Dr Khan’s office. On mental state examination of Dr Ghosh he noted “Her speech was normal in rate, tone, and amount, coherent and spontaneous, although at times she would become fairly expansive and verbose in discussing some of the difficulties associated with her practice at Wallsend. This appears to have been driven somewhat by anxiety rather than by any underlying abnormal mo[o]d state per se ... There was no evidence of any major mood disturbance or other psychotic phenomena on systematic enquiry during this interview. She did not exhibit any signs of psychosis. She was alert and oriented, although I did not conduct a full examination of cognitive functioning.” Dr Davies concluded: “As far as I can ascertain, she is not suffering with any mental health disorder per se, although in the past has experienced mild to moderate depression.” Dr Davies further noted:

I concur with the conclusion from Dr Oliver O’Connell, that Dr Ghosh does not currently display any signs or symptoms of major mental illness. He makes reference to this complaint and also previous complaints with a hypothesis of underlying narcissistic personality traits. This has not been particularly evident to me in my dealings with Dr Ghosh, however, I do recognise that she has a certain strident and outspoken personality style which can at times be perceived as rude or unhelpful. However, it’s doubtful as to whether this represents an impairment as defined in the statutory definition.

52. Dr Bench evaluated Dr Ghosh, at her request, on 20 March 2018. The information with which he was briefed and to which he had regard included the Council’s s 150 decision and the aforementioned psychiatric reports. The length of the consultation is not noted, but the comprehensiveness of the history obtained and examinations conducted suggest that it would not have been less than an hour, and may have been more. He elicited and recorded a detailed history. He reported, “In short, I could elicit no grossly psychotic symptomatology”. While observing that she had a general tendency to be over-inclusive, he did not consider it a formal thought disorder, but likely secondary to the anxiety of stressful clinical evaluation. In his opinion, notwithstanding that she presents with “very strong ideas including having a predilection to note an individual’s ethnicity”, there was likely a cultural component to that, given her Indian ethnicity and historical antipathy between Indians and Pakistanis, and “the applicant would not meet diagnostic criteria for any major mood, anxiety or psychotic disorder’. He was of the opinion that “the applicant is not suffering from any major mood, anxiety or psychotic disorder that would prevent her from practicing [sic] medicine”, and “there was no evidence during the clinical evaluation to suggest that as a result of any major mood, anxiety or psychotic disorder” that her employment in medicine would pose a risk to the safety or health of the public.

52. For the purposes of the NCAT appeal, Dr Ghosh retained Dr Geoffrey Robinson, who saw her on 13 June 2018 for an hour. According to his report dated 18 June 2018, she provided “the background material to the Medical Council’s decision, as well as further material …” after the interview. The report does not specifically list the material to which Dr Robinson had access, but it refers to “the report of Dr Kim Newnham … of 4 April 2008”, and contains the statement “This opinion [his own] appears to be essentially in accord with the reports of psychiatrist Dr Davies and Dr O'Connell, and not in accord with the provisional diagnosis of Dr Newnham.” There is no prior reference in his report to Dr O’Connell’s report, even in his account of what was related to him by Dr Ghosh, and these statements are indicative of a level of familiarity with the reports mentioned that would be associated with access to them. This is particularly so in relation to Dr Newnham’s report, given that its date is cited.

53. Dr Robinson notes that Dr Ghosh was seeking a second opinion about her diagnosis as she did not agree with the opinion of Dr Newnham that gave her a provisional diagnosis of schizophrenia, which she explained was out of keeping with the opinions of all other psychiatrists who had seen her. Dr Ghosh explained that she was currently not registered to practise medicine following earlier hearings with the Council, and that she felt she should be able to return to practise medicine without any restriction as she did not have a mental illness.

54. On mental state examination, she was neat and tidy in presentation, maintained appropriate eye contact, and was pleasant and affable in manner. She was articulate, and her speech normal in rate flow and form. Dr Robinson “found her to be somewhat anxious, but considered this to be normal in the context of her concern about her ability to practi[s]e medicine, and the question of having a serious mental illness”. Dr Robinson did not consider there to be formal thought disorder, “although she was at times caught up in her story”. There were no hallucinations, nor delusions, “although she did clearly have an external locus of blame”. Dr Robinson concluded:

I formed the opinion that Dr Ghosh is not suffering from a major mental illness. In particular, I could find no evidence from my examination that Dr Ghosh is suffering from schizophrenia; I do not think that she has a Bipolar Mood Disorder; I did not find any other Axis 1 psychiatric disorder.

There was insufficient time and information to make a formal Axis 2 (Personality) diagnosis. This is discussed further below.

…

I note that she has had some severe stressors over recent years. There is the stress of dealing with her 13-year-old son, who is autistic and prone to psychotic episodes.

I would suggest that the notifications to the Council reflect difficulties in interpersonal interaction secondary to Dr Ghosh’s personality style, rather than to a major psychiatric illness. I note that there may also be transcultural factors at play. I further hypothesise that these issues may have been more problematic in recent years as a result of the major stressors with which Dr Ghosh has been dealing.

This opinion appears to be essentially in accord with the reports of psychiatrist Dr Davies and Dr O’Connell, and not in accord with the provisional diagnosis of Dr Newnham.

56. By way of recommendation, he concluded: “I do not think that Dr Ghosh should be precluded from returning to the practice of medicine”, and “I would be pleased to answer any questions that might arise from this report”.

57. All the aforementioned reports were apparently carefully considered professional opinions, based on examination of Dr Ghosh over a period of between one and two hours. The psychiatrists who wrote them were aware of, and had access to, in particular, the Council’s s 150 decision, in which its concerns were articulated. Dr Robinson was, at the very least, aware of Dr Newnham’s opinion. Dr O’Connell had been retained, not on behalf of Dr Ghosh, but by the Council.

58. Dr Newnham assessed Dr Ghosh at the request of the Council on 23 March 2018 over a period of two hours, and provided a report dated 4 April 2018. It is radically different to the other reports, not only in its ultimate conclusions, but in many of the observations made about Dr Ghosh’s presentation. In the course of recording Dr Ghosh’s relating of her son’s complex medical issues, Dr Newnham hypothesised:

History given today by Dr Ghosh about her son’s illnesses has raised my concern about the presence of a factitious disorder by proxy. This of course is unable to be verified without a review of [her son’s] medical history and corroborative evidence from those involved in his care.

59. After discussing issues relating to Dr Ghosh’s Queensland rental property, and a complaint which she had made in respect of Dr Khan, and observing that each contained serious and implausible allegations, Dr Newnham’s mental state examination of Dr Ghosh included that she:

… appeared slightly un-kempt, with knee length stockings not meeting all the way to her knee-length skirt, and her hair appeared to be unwashed.

She was polite and cooperative throughout the interview and appeared keen to provide me with as much information about her past history as possible. She had with her a very thick folder of documents she had collected herself over several years and offered these to me in order to prepare the report.

She denied any abnormality of mood, in particular depression or mood elevation.

At times her 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.

Her 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 [sic] 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.

Her thought content revealed a preoccupation with persecutory themes as outlined in the body of this report. There were also themes of grandiosity pertaining to her abilities as a doctor. Both persecutory and grandiose themes were firmly held despite documented evidence to the contrary and were outside the bounds of her culture, education, and experience.

Her 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 disinhibition, such as the degree of detail she went into pertaining to her husband’s sexual difficulties in the conception of their son.

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 and 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 [had] fulfilled her obligations and was now fully fit to practice [sic] medicine. However, despite this cultur[al] awareness training, she continued to repeatedly make references about Pakistanis and frequently used the term ‘unemployed disability pensioner’ throughout the assessment while speaking about complainants.”

60. Under the heading “Formulation and Opinion”, Dr Newnham reported:

Dr Ghosh presents 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, colleagues, and they have led to an involvement in the legal system. She also has grandiose beliefs about her abilities as a doctor and these beliefs have influenced her treatment of her family. The beliefs are mostly implausible and not in keeping with her pre-morbid intelligence and professional and life experience.

In addition, she demonstrates a disorder of thought form. This was evident in both the assessment and in the documents produced, authored by Dr Ghosh.

Her developmental history is not consistent with conditions that would likely lead to the development of a Narcissistic Personality Disorder as has previously been proposed. There is evidence that her interpersonal difficulties that have led to her notification, have not been enduring over time. She has maintained several stable friendships since her school days and she was accepted into a Paediatric Training Programme and progressed to the clinical examinations in 1999. A person with a severe and enduring disorder of personality is 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.

Dr Ghosh’s physical health status is unknown, but it is possible that she has had poorly-monitored/controlled blood glucose for many years, hence there is a possibility of that [sic] Dr Ghosh is suffering [from] the neurocognitive effects of a poorly controlled metabolic disorder. This requires exclusion.

The presence of multiple delusions, formal thought disorder and decline in functioning has led me to the provisional diagnosis as per DSM V of Schizophrenia.

Differential diagnoses include:

Psychotic disorder due to a medical condition

Neurocognitive disorder.

61. Under the heading “Opinion concerning impairment”, Dr Newnham concludes:

I believe Dr Ghosh suffers from an impairment as defined in the National Law. I believe she is suffering from a chronic mental health condition that has been to date and continues to be, untreated.

Dr Ghosh has developed only very marginal insight into the matters that led to her suspension of her registration. She has not however, developed any insight into the other concerns noted in this report. I do not believe that the public would be adequately protected if the suspension were lifted and if she was permitted to return to practice.

62. Dr Newnham did not elaborate the risk from which she opined that the public would not adequately be protected if the suspension were lifted.

63. As will appear, the Tribunal preferred Dr Newnham’s opinion. That it did so would not of itself involve appellable error, let alone legal error. However, it is the process by which that conclusion was reached that is called into question. The manner in which this evidentiary conflict was addressed and resolved by the Tribunal was as follows:

Material relied on by Dr Ghosh.

23 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.

24 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.

25 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.”

...

Dr Geoffrey Robinson

29 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.

30 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.

31 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.

32 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

33 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

34 The Medical Council relied on the reports of Drs Newnham and Hutt as well as the other reports in the tender bundles.

35 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

36 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

37 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.

38 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.

64. Thus, in circumstances where four of five psychiatrists [18] were of the view that she did not have a major mental illness, the Tribunal accepted the opinion of the fifth, essentially on the basis that:

1. none of the doctors whose reports were tendered by Dr Ghosh was called to give evidence;

2. Dr Newnham was cross-examined and unshaken, and well able to defend her opinions; and

3. Dr Newnham’s opinion was consistent with other material that emerged during the hearing.

   18. Dr Hutt is not a psychiatrist, but a medical advisor at the Council. Her evidence related to the appropriateness of Dr Ghosh’s treatment of family members, in particular her son.

65. In response to these grounds of appeal, the Council submitted that:

1. the rule in Browne v Dunn [19] did not apply, because the witnesses relied on by Dr Ghosh were not called to give evidence, and Dr Ghosh was on notice that their opinions would be contradicted and disputed; and

2. the Council’s conduct in permitting their reports to be received in evidence without objection did not preclude it from disputing and contradicting their contents.

   19. (1894) 6 R 67.

66. For the reasons that follow, I accept that the rule in Browne v Dunn did not preclude the Council from adducing evidence, in particular that of Dr Newnham, which was contrary to the opinions in the reports relied upon by the appellant. However, that is not a complete answer to these grounds of appeal.

67. Although it is not entirely clear by which party the reports of Drs O’Connell, Davies and Bench were tendered before the Tribunal, it is clear that the report of Dr Robinson was tendered on behalf of Dr Ghosh, as part of exhibit 7. While the other reports, which were part of exhibit 5, may have been tendered by the Council as forming part of the record of the s 150A proceedings, they formed part of “Dr Ghosh’s Respondent’s Material – Volume 1 of 1”. In any event, the Tribunal plainly regarded all four as having been tendered on behalf of Dr Ghosh and forming part of her case. [20]

    20. NCAT decision at [23], [33].

68. The Tribunal asked Dr Ghosh’s counsel whether any of those witnesses were to be called by Dr Ghosh, and the answer was in the negative. The Tribunal appears to have regarded this as detracting from their weight, and the Council submitted in this Court that as the doctors were not “put in the witness box”, the rule in Browne v Dunn did not apply. However, their reports having been admitted, without objection or condition, there was no reason why Dr Ghosh should call them, unless they were required for cross-examination. If they were required for cross-examination, and Dr Ghosh did not propose to call them, it was open to the Council to object to the reception of their reports, or to insist that their admission be conditioned on the production of the witnesses for cross-examination. If, having been admitted on an assumption that the witnesses would be called, the Council belatedly learned that they were not to be produced for cross-examination, it could have asked that they be rejected. [21] Although the Council submitted that there was no evidence that it had ever said that they were not required for cross-examination, that is not the point. There is no evidence that the Council ever indicated that they were required for cross-examination, and in the absence of such an indication, there was no reason why Dr Ghosh should call them. [22] In those circumstances, there was no reason why their not being called should have detracted from the credibility or weight of their reports.

    21. This was the approach taken in respect of the Council’s witness, Dr Newnham, as to whose availability there appears to have been some issue: the presiding member said: Accordingly, the Tribunal has determined that the matter will proceed, the report of Dr Newnham and his acceptance by the Tribunal will depend on her availability. That availability should be for her to be present in person and available for cross-examination.

    22. In respect of Dr Ghosh’s witness Dr Davies, Mr Bhalla, who appeared for the Council, said to NCAT: Your Honour, the Council understood from discussions that my instructing solicitor had here today that Dr Davies was not available. That's a matter for the appellant. He is her treating psychiatrist. His report forms part of the materials, which is proper, because it's part of the materials which was before the council. I'm not sure if an effort has been made to have his attendance.

129. One preliminary question is whether the Tribunal, in the light of the provision of s 159(3) properly undertook “a new hearing”. The language of the Tribunal’s reasons is not that of a hearing de novo but is suggestive of a review of the decision of the Medical Council.

130. The Tribunal began its reasons by observing that Dr Ghosh was “effectively seeking the removal” of the condition imposed by the Medical Council and that the Medical Council “seeks the confirmation” of its decision imposing the condition. The Tribunal expressed the view that there was no evidence that Dr Ghosh had developed insight into her problematic behaviours that led “to multiple complaints against her” over a number of years. The Tribunal also considered that there was considerable evidence pointing to some degree of impairment on the part of Dr Ghosh. The Tribunal held that, given the evidence presented by Dr Ghosh, the Tribunal could not be confident that the history and series of incidents and events detailed in its reasons would not reoccur and that the public would be protected from any repetition. The Tribunal considered that there was nothing in the material put forward by Dr Ghosh “to warrant any alteration of the condition not to practise”. The Tribunal determined, in order “to make it abundantly clear”, that, on the material available, “it is not in the public interest that Dr Ghosh be permitted to practise”.

131. The Tribunal said that, for the reasons given, it did not propose “to lift or vary the not to practise condition”. The Tribunal said that it considered whether additional conditions should be imposed that Dr Ghosh engage in appropriate health and psychiatric treatment for herself and her apparent impairment. However, the Tribunal formed the view that such additional conditions would impose a substantial financial burden on Dr Ghosh that was not warranted, particularly bearing in mind the costs order to be made in the proceedings.

132. The Tribunal emphasised that Dr Ghosh should not minimise the concerns about her impairment that were inherent in the opinion before it. The Tribunal then said that it “endorses the continuation of the ‘not-to-practise’ condition proposed by the Medical Council” and for the reasons set out determined “that the appeal be dismissed”.

133. The Tribunal then made, relevantly, the following orders:

1. Appeal dismissed.

2. The condition on [Dr Ghosh] not to practise as a medical practitioner imposed by [the Medical Council] is confirmed.

3. [Dr Ghosh] is to pay the costs of [the Medical Council].

   135. I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour, for the reasons proposed, that the Tribunal failed to undertake the essential task of identifying the nature and extent of any risk posed by Dr Ghosh to patients or the public, so as to determine the critical issue, namely whether there was such unacceptable risk as to require immediate suspension. Accordingly, the appeal should be allowed, and the orders of the Tribunal should be quashed. I also agree with his Honour that, in circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, it would be imprudent for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis. The appeal from the s 150 decision must therefore be remitted to the Tribunal, differently constituted, to be heard again. I agree with the orders proposed by Brereton JA, including the order as to costs. I also agree with his Honour’s observations consequent upon the subsequent disqualification of Dr Ghosh by the Tribunal.

   136. SIMPSON AJA: I have had the advantage of reading in draft the judgment of Brereton JA. The following assumes familiarity with the background facts comprehensively stated by his Honour, the relevant legislation to which he has referred, and the participants and the terminology used to refer to them (which I will generally adopt).

   137. I agree with Brereton JA that the errors identified by grounds 3, 4, 5, 6 and 7 have been established and that ground 8 was misconceived. I therefore agree with the orders proposed.

   138. There remain two aspects of his Honour’s reasoning with which I have difficulty. These are:

1. the conclusion that s 150C of the (NSW) Health Practitioner Regulation National Law (“the National Law”) permitted the Council to vary the order it had previously made under s 150;

2. the conclusion that the condition imposed following the s 150A review was a condition within, and permitted by, s 150(1)(b).

   139. It is convenient here to set out the relevant parts of s 150 and s 150A.

   “150 Suspension or conditions of registration to protect public [NSW]

   (1)   A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest–

   (a)   by order suspend a registered health practitioner’s or student’s registration; or

   (b)   by order impose on a registered health practitioner’s registration the conditions relating to the practitioners’ practising the health profession the Council considers appropriate; or

   (c)   …

   150A   Review of certain decisions [NSW]

   (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under s 150 to–

   (a)   suspend the practitioner’s or student’s registration; or

   (b)   impose conditions on the practitioner’s or student’s registration or alter conditions imposed on the practitioner’s or student’s registration

   (2)   …

   (3)   Following its reconsideration of a decision, a Council may–

   (a)   affirm or vary the decision; or

   (b) set it aside and take any action the Council has the power to take under s 150.

   (4)   A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner’s or student’s circumstances that justify the variation or setting aside of the decision.”

   140. As explained by Brereton JA, in initially dealing with the complaint against Dr Ghosh under s 150, the Council, by order under s 150(1)(a), suspended her registration. On review under s 150A, it purported to vary that decision by setting aside the suspension order and imposing in its place a condition that Dr Ghosh not practise the medicine. This purported to be a condition imposed under s 150(1)(b). The Council did this notwithstanding that it found, expressly, that there had been no change in Dr Ghosh’s circumstances, and notwithstanding the prohibition imposed by s 150A(4).

(i) the variation of the s 150(1)(a) order for suspension

141. On its face the variation of the original order, in light of the express finding that there was no change in Dr Ghosh’s circumstances, was prohibited by s 150A(4).

142. Brereton JA considers that the variation was, nevertheless, authorised by s 150C. Section 150C provides as follows:

“150C   Power to remove or alter conditions or end suspension [NSW]

(1)   A Council may, at any time–

(a)   end a period of suspension imposed by the Council under this Subdivision; or

(b)   alter or remove conditions imposed under this Subdivision.

(2) A Council may, at any time after taking action under s 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time taking the original action.

(3)   The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned.”

143. No reference was made in this Court to s 150C and no argument was addressed to that relationship. I am unpersuaded that s 150C provides a route, alternative to s 150A(3), to variation of orders under s 150(1). The relationship between s 150A(3) and (4) and s 150C is obscure. Certainly, s 150C(3) suggests that the power may be exercised by the Council, other than on review under s 150A.

144. The issue in Medical Council of NSW v Lee [2017] NSWCA 282, referred to in the judgment of Brereton JA, was whether the NSW Civil and Administrative Tribunal (“the Tribunal”) had jurisdiction to grant a stay of a suspension ordered under s 150(1)(a) pending an appeal to the Tribunal under s 159 of the National Law. The court held that it did not, except where the appeal is in respect of a point of law. It was in that context that Sackville AJA referred to the effect of s 150C. His Honour was not called upon to consider the relationship of that provision to s 150A. No such question arose.

145. There is, at least potentially, a conflict between s 150A(3) and (4), and s 150C, if the latter provision is to be given the wide ranging effect inherent in the approach taken by Brereton JA. Since this was not raised in this Court, and the court has not had the benefit of argument, I would prefer to leave the determination of the relationship between the two provisions to an occasion when it directly arises and when the court has had the benefit of full argument.

146. The issue arises only indirectly in this appeal because, as Brereton JA has explained, the Tribunal was not subject to the constraint of s 150A(4). While it may be that the Council was in error in purporting to vary the s 150(1)(a) order in the absence of a change in Dr Ghosh’s circumstances, that error does not infect the Tribunal’s decision which is the subject of this appeal.

(ii) was the non-practising condition a condition admitted by s 150(1)(b)?

147. As set out above, s 150(1)(b) permits the Council, when the threshold circumstances have been established to:

“…by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate.”

148. The simple proposition advanced on behalf of Dr Ghosh is that the condition that she not practise medicine is not a condition “relating to [her] practising [medicine]”. I agree. Whether the proposition is correct depends upon the construction of s 150(1)(b).

149. The starting point in any question of statutory construction is the text of the relevant legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41. Construction of s 150(1)(b) depends, also, upon the statutory context in which the relevant provision appears: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. That calls attention to what is meant, and what is involved, in the registration of a health practitioner. A “registered health practitioner” is defined in s 5 of the National Law as an individual who:

“(a)   is registered under this Law to practise a health profession, other than as a student; or

(b)   holds non-practising registration under this law in a health profession.”

150. The essence of registration as a health practitioner is that the registration authorises the individual to practise the health profession, in this case, the profession of medicine.

151. Part 7 of the National Law provides for a number of categories of registration of health practitioners:

• general registration (ss 52-56);

• specialist registration (ss 57-61);

• provisional registration (ss 62-64);

• limited registration (ss 65-72); and

• non-practising registration (ss 73-76)

152. Only non-practising registration disentitles the registered health practitioner to practise the profession. It is inherent in all other categories of registration that the health practitioner is entitled to practise the profession, subject to whatever restrictions are involved in the relevant category of registration.

153. In some cases (for example, with respect to provisional registration) the legislation envisages that conditions may be imposed on the registration. Section 83 also envisages that, in respect of any category of registration, conditions may be imposed. These conditions do not nullify the right to practise that is carried by registration, but limit the manner in which practice is permitted.

154. Non-practising registration is, as I have indicated, distinct from other forms of registration in that the holder of non-practising registration is not permitted to practise. By s 73 non-practising registration is available to certain individuals, essentially those who hold or have previously held registration. Although it is not stated, it is an obvious and reasonable inference that non-practising registration is intended to be available to health practitioners who have retired from practice. By s 75(1) a registered health practitioner who holds non-practising registration must not practise the profession. No other category of registration has an equivalent prohibition.

155. Non-practising registration is not here material. At relevant times Dr Ghosh held general registration as a health (medical) practitioner, and that registration authorised and entitled her to practise medicine. That entitlement was, of course, subject to any conditions imposed on the practice of medicine under s 83 or s 150(1)(b) or otherwise.

156. In my opinion a condition that a registered health practitioner not practise the profession is antithetical to, contradictory of, and incompatible with the concept of registration. Such a condition is not a condition “relating to the health practitioner’s practising the health profession” it is the negation of “the health practitioner’s practising the profession”.

157. In written submissions filed on behalf of the Council in response to Dr Ghosh’s amended grounds of appeal six “key reasons” were advanced in opposition to Dr Ghosh’s proposition that a condition that precludes the practice of medicine is not a condition “relating to [her] practising [medicine]”. I found none of the six “key reasons” persuasive.

158. The first “key reason” was expressed simply, as:

“… On its face, the condition imposed by the Council falls within the scope of a condition ‘relating to the practitioner’s practising the health profession’.’” (italics in original)

159. Support for that proposition was said to be drawn from the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [95]. The issue before Barrett AJ was whether suspension of registration or the imposition of conditions was “a penalty or forfeiture” of the kind that would attract the privilege against “self-exposure” (that is the entitlement to decline to provide information). In passing, Barrett AJ referred to “conditions that reduce the freedom of action that registration would otherwise confer”.

160. Barrett AJ was not purporting to define what is meant by conditions imposed under s 150(1)(b). Nevertheless, the description is apt enough, although I would prefer to say that the imposition of conditions under s 150(1)(b) reduces the health practitioner’s freedom to practise his or her profession in the way that he or she would, absent the conditions, choose to practise (subject, of course, always, to the regulatory context).

161. Reference was also made to Narrier v State of Western Australia [2016] FCA 1519 in which Mortimer J considered the meaning of the words “relating to” when used in a statute. The words denote, simply, a relationship or connection between one subject matter and another.

162. I have no difficulty with the proposition that there is a relationship between conditions that may be imposed under s 150(1)(b) and the practice of medicine. The question is whether such a relationship can exist where the condition involves, effectively, nullification of the right to practise.

163. Reduction of the freedom to practise a profession in a preferred manner is a concept vastly different from the denial of the right to practise the profession at all. Contrary to the Council’s argument, the “non-practise condition” did not “reduce” Dr Ghosh’s freedom to practise medicine; it abrogated that right, and, effectively, negated the effect of the registration that she held.

164. The second “key reason” given on behalf of the Council was that:

“..there is utility in a health practitioner retaining registration but being prohibited from practicing [sic].”

Reference was made to s 75 which (as set out above) prohibits the practice of the profession by the holder of non-practising registration. It was put that:

“This form of registration permits practitioners to maintain the privilege of registration and use the protected title ‘medical practitioner’, without committing an offence …”

165. Far from supporting the Council’s argument, s 75 contradicts it. Non-practising registration is a specific category of registration that expressly excludes the practice of the profession. Dr Ghosh did not hold non-practising registration and the condition imposed by the Council did not convert her general registration to non-practising registration.

166. The third “key reason” given on behalf of the Council was that:

“…a condition not to practice [sic] medicine is not equivalent to a suspension.”

Reference was made to s 176D(1) which provides that:

“If a person’s registration as a health practitioner … is suspended under this Law, the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.”

Section 176D appears in Pt 8, which is concerned with “Health, Performance and Conduct”. The submission was then made:

“This makes clear that the existence of a power to suspend is not rendered redundant by a construction pursuant to which a condition not to practice [sic] medicine falls within the scope of s 150(1)(b).”

167. The logic of this argument is not apparent to me. The argument appears to anticipate a potential contrary argument (that was not put) that, if a non-practising condition may be imposed under s 150(1)(b), the power conferred by s 150(1)(a) to suspend would be superfluous. But the question is not whether paras (a) and (b) of s 150(1) provide for different and independent orders that may be made in response to a complaint, but whether a condition that negates the right to practise consequent upon or inherent in registration is a condition within the meaning and intent of s 150(1)(b). In my opinion it is not.

168. The fourth “key reason” drew on the objects stated in s 3A of the National Law. Section 3A provides that:

“In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.”

169. The provisions of the National Law, it was argued, must be interpreted in accordance with that provision and with other statutory provisions requiring interpretation in a way that would best achieve the object or purpose of the statute under consideration as a whole: Acts Interpretation Act 1901 (Cth), s 15AA and Interpretation Act 1987 (NSW), s 33. The power to impose conditions conferred by s 150(1)(b) must, therefore, the argument ran, be construed broadly “even if that means different remedial options for the Council might overlap.”

170. I accept the basic proposition (leaving aside the reference to Commonwealth legislation). But even a liberal approach to the construction of s 150(1)(b) does not, in my opinion, accommodate a conclusion that contradicts the effect of registration.

171. That there are occasions that restraining a registered practitioner from practising is in the public interest is undoubted. That is why the suspension power exists. There is no need to widen the scope of conditions permitted under s 150(1)(b) to encompass a restraint on practice; s 150(1)(a) expressly provides such a power. The power to impose conditions under s 150(1)(b) is provided to permit an order less restrictive than suspension of registration.

172. The fifth “key reason” given was that “no detriment” was caused to Dr Ghosh by the imposition of the condition as distinct from suspension of registration. It is difficult to see how that is so. It was earlier pointed out that while, under s 176D, suspension carries with it temporary loss of registration (during the period of suspension), registration subject to conditions preserves the benefits of registration. The only specific benefit mentioned was the entitlement to use the title “Doctor”.

169. It may be true that, in at least some perceptions, conditional registration is a lesser and less onerous penalty than suspension. That does not answer the construction argument.

170. The sixth and final “key reason” was that suspension “may have a more limited remedial effect” in achieving the goals of the National Law to protect the health and safety of the public than a condition not to practise. This appeared to be a reference to the “lacuna” to which Brereton JA refers and which was posited as the explanation for the decision of the Council on the s 150A review. The perceived “lacuna” comes about because disposition of a complaint in respect of which the suspension is imposed brings about the termination of the suspension.

171. It may be correct that, in the circumstances of this case, the imposition of a non-practising condition would have been a more efficacious remedy than suspension. That, like the fifth “key reason”, does not answer the construction question.

172. Suspension was an option open to the Council when it made its decision under s 150; it was the option it then chose. Leaving aside s 150A(4), it appears that the Council then sought to avoid the “lacuna” by setting aside the suspension and imposing a condition that had the effect of suspension. The Tribunal adopted that approach. It was, in my opinion, an erroneous approach. The language of s 150(1)(b) cannot be ignored: it permits the imposition of conditions “relating to the practitioner’s practising the health profession”. A condition that precludes the exercise of the right to practise conferred by registration is not a condition relating to the practice of the health profession. It denies the effect of the registration on which the condition purports to be imposed. While the condition did not have the effect, under s 176D, as suspension would have had, of depriving Dr Ghosh of all benefits of registration, it denied her the essential attribute of registration – the right to practise. It was not a condition “relating to [Dr Ghosh’s] practising [medicine]”.

173. A condition relating to a practitioner’s practising a health profession imports, to my mind, that the practitioner practises the health profession, but in the limited way permitted by the proposed condition. It is contradictory to impose a condition that precludes that practise.

174. The consequence of this reasoning is that, in my opinion, the Tribunal ought not to have adopted the course taken by the Council, but ought, instead, have set aside the order purportedly made under s 150A(3). That would have revived the order for suspension as originally made under s 150; Dr Ghosh was entitled to appeal against that order to the Tribunal. The Tribunal did not address the question of suspension, although it may reasonably be inferred that it would have taken the same approach, had suspension been maintained, as it did to the imposition of the non-practising condition.

175. Since the errors identified by Brereton JA warrant the setting aside of the orders made by the Tribunal it is unnecessary to determine what orders ought to be made consequent upon my approach.

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Endnotes

Decision last updated: 26 June 2020