Ghosh v Health Care Complaints Commission

Court of Appeal (NSW)|2020-12-04|Before: Bell P, Payne JA, Stevenson J

Background to the Complaints

Dr Ghosh completed a Bachelor of Medicine/Bachelor of Surgery in 1989 at the University of Western Australia and was first registered as a medical practitioner on 17 January 1992.
In 2011, Dr Ghosh became a fellow of the Royal Australian College of General Practitioners and worked as a paediatric registrar in a number of hospitals in Western Australia and New South Wales following her registration.
During 2002-2003, Dr Ghosh started her own general medical practice in Charlestown, NSW where she worked until early 2009.
Dr Ghosh commenced working as a locum GP until 2010 when she again opened her own general practice in Charlestown, NSW where she worked until 2016. From 2010 to 2016 Dr Ghosh also worked as a workplace rehabilitation provider for the Occupational Rehabilitation Services Group in the "Fit for the Job" program.
In February 2017, Dr Ghosh commenced work as a general practitioner at the Wallsend Medical General Practice where she worked until September 2017.

The Complaints

Complaints One to Five were that Dr Ghosh had engaged in "unsatisfactory professional conduct" within the meaning of s 139B of the National Law. We shall set out the relevant parts of that section as we deal with those complaints.

Complaint One

Complaint One was that Dr Ghosh is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law; that is that she engaged in: "conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of general medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
The particulars of Complaint One referred to the allegedly inappropriate prescription of medication to "Patient A" (a one and half year old child) and "Patient B" (a woman 33 weeks pregnant), inappropriate comments made to Patient A's father and to Patient B, failure to perform appropriate medical procedures in relation to Patient B and the making of comments inappropriately criticising Patient B at a hearing conducted by the Council.

Complaint Two

Complaint Two also alleged that Dr Ghosh had engaged in unsatisfactory professional conduct within the meaning of s 139B(1)(a).
This Complaint was directed to Dr Ghosh's conduct in relation to "Patient C", who was described as being a "close relative" of Dr Ghosh and who has been diagnosed with Autism Spectrum Disorder and Anxiety Disorder.
The particulars of Complaint Two referred to the inappropriate prescription of medication to Patient C over a number of years, the failure of Dr Ghosh to refer Patient C to an independent general practitioner for management of his conditions and the failure of Dr Ghosh to make a record of restricted substances prescribed to Patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation 2008 (NSW).

Complaint Three

Complaint Three was that Dr Ghosh had engaged in unsatisfactory professional conduct in that she had engaged in conduct "that is improper or unethical in the practice of general medicine". Reference was made to s 139B(1)(b) of the National Law, which relates to conduct amounting to a contravention (whether by act or omission) of: "a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention."
The particulars of this complaint referred to Dr Ghosh's inappropriate treatment of and prescription of medications to Patient C, the inappropriate devising of a Mental Health Plan for Patient C, the submission of such a plan to Medicare, the inappropriate billing to Medicare for services provided to Patient C in contravention of "G.13.1" of the Medicare Benefits Schedule, the failure to make a record of the schedule 4 restricted substances that she prescribed to Patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation 2008 (NSW), and the prescription of medications for herself and Patient D, in Patient C's name.
The particulars of this complaint refer also to the provision of "deliberately false and/or misleading information": 1. on 12 April 2018, to the Medical Council of NSW, during proceedings under s 150 of the National Law in which the Council sought suspension of Dr Ghosh's registration as a medical practitioner, and when Dr Ghosh told Council delegates that she did not post on a website an anonymous review of two named doctors; and 2. on 17 September 2018, to the Medical Council of NSW and the Tribunal when Dr Ghosh made certain statements in a statutory declaration about her diagnosis and certain recommendations made by a named doctor.

Complaint Four

Complaint Four was that Dr Ghosh was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that she failed to maintain adequate and proper medical records of her appointments with Patients B and C, and treatment of Patient C, and thereby contravened cl 1(2) of schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW).

Complaint Five

Complaint Five was that Dr Ghosh was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(e) of the National Law in that she did not comply with notices from the Commission requiring production of her medical records for Patient C and thereby contravened s 34A(4) of the Health Care Complaints Act 1993 (NSW).

Complaint Six

Complaint Six alleged that Dr Ghosh was guilty of professional misconduct within the meaning of s 139E of the National Law. That section defines "professional misconduct" as: "(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
Complaint Six alleged that Dr Ghosh had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, or had engaged in more than one instance of unsatisfactory professional conduct that, when considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. Complaints One, Two, Three, Four and Five, and the particulars thereof, were "repeated and relied upon both individually and cumulatively",

Complaint Seven

Complaint Seven was that Dr Ghosh has a mental "impairment" within the meaning of s 5 of the National Law that detrimentally affects her capacity to practise medicine. Section 5 relevantly defines an "impairment" in relation to a registered health practitioner as meaning a person who "has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect" the person's capacity to practise the profession.
The complaint is particularised to allege that Dr Ghosh suffers from schizophrenia, or an alternative psychotic disorder due to a medical condition and a neurocognitive disorder, and that such impairment is of a sufficient nature and degree to impair her mental capacity to practise.

Complaint Eight

Complaint Eight is that, by reason of the matters particularised in respect of Complaint Seven, Dr Ghosh is not "competent" to practise medicine for the purposes of s 139(a) of the National Law because she lacks sufficient mental capacity to do so.

The procedure adopted by the Tribunal

Dr Ghosh raises eight grounds of appeal. Four of those arise from the procedure adopted by the Tribunal to determine the Complaints.
We turn now to that procedure.
On 22 August 2019, the Commission sent a copy of its application by mail to Dr Ghosh's residential address, together with a Notice of Listing for a directions hearing on 13 September 2019.
The directions hearing took place before Deputy President Boland ADCJ. Dr Ghosh did not appear.
Boland ADCJ set the matter down for hearing for five days commencing on 30 March 2020 and made directions to ready the matter for hearing.
On 16 December 2019, the Commission applied to the Tribunal for an order for substituted service. Boland ADCJ made such an order on 17 January 2020. [7]
No suggestion was made before us that that order was not complied with by the Commission or that Dr Ghosh did not thereby become aware of the Commission's complaint or of the documents it relied upon in support of the complaint. Mr Jackson (counsel for Dr Ghosh) accepted, in particular, that Dr Ghosh knew of the 30 March 2020 hearing date.
On 19 March 2020, the Tribunal sent Dr Ghosh two documents by email addressed to what we will call "the First Email Address".
The first was a document headed "Change to listing procedure". It stated: "In response to government advice regarding Covid 19, the Tribunal is considering alternatives to hearings in person. As you know, your matter has been listed for hearing on 31 [sic: in fact it was 30] March - 3 April 2020. The Tribunal has now listed your matter in a callover on Wednesday 25 March 2020. You are required to be available to take a telephone call from the Tribunal at all times between the hours of 9:30 am - 10:30 am. At the callover, you will be asked to put forward any view you might have in relation to: Whether this matter can be determined by the Tribunal on the papers, Whether this matter can be heard by the Tribunal by telephone or telephone and audio visual link. If the matter cannot be determined by the Tribunal on the papers, or heard by the Tribunal by telephone or telephone and audio visual link, then your views will be sought on the adjournment of the matter until a date after 5 October 2020".
The second document was entitled "Notice of Listing - Directions" and stated: "The case is listed for Directions (Health Practitioners) on 25 March 2020 at 9:30 AM, John Maddison Tower Level 10, 86 - 90 Goulburn Street, SYDNEY NSW 2000. Please arrive at least 15 minutes before the start of the listing. It is important that you are on time as the Tribunal may decide the case in your absence. The decision made will be binding on you".
There is no dispute that Dr Ghosh received these documents. The fact that there was an inconsistency in the two documents, in that the latter called for a personal attendance - "please arrive at least 15 minutes before the start of the listing" - may be put to one side.
Dr Ghosh replied to the Tribunal the following day, 20 March 2020, albeit from a different email address ("the Second Email Address").
Dr Ghosh opened her email by saying "I have been in Sydney since 1 November".
Dr Ghosh explained why she had been in Sydney at that time by reference to a perceived need to deal with matters concerning Patient C.
Dr Ghosh said: "I was in Court of Appeal 6 and 7 November in my appeal to lift my Medical Suspension, which remains reserved".
Dr Ghosh was referring to the appeal to which we have referred at [13] above.
Dr Ghosh then referred to unrelated proceedings and continued: "I have been totally consumed as an unrepresented party in these proceedings, and have not been served anything by [the Commission]. I have not renewed my registration to practice [sic] medicine since 30 September 2018, and remain suspended pending the Court of Appeal reserved judgment, so there is no urgency for [the Commission] to prosecute me at the moment, because I am not practising, and I have asked Court of Appeal to impose conditions requiring leave for [the Commission] or [the Council] to further prosecute me, because of their conduct in the 2018 proceedings. … I am not available for any hearing or directions until May 2020, and have no legal representation, therefore I seek the [Commission] proceedings against me to be struck out as stale and not served, or vexatious, or stayed until the Court of Appeal reserved judgment is published."
On 25 March 2020, the matter was listed for telephone directions before Deputy President Cole DCJ.
Dr Ghosh did not appear. Ms Connors appeared for the Commission.
At this directions hearing, Cole DCJ determined that the 5 day hearing scheduled to commence on 30 March 2020 be "dispensed with" and that the Commission's Complaints against Dr Ghosh be determined on the papers.
As a number of Dr Ghosh's grounds of appeal relate to what occurred on this occasion, we set out the full transcript: "HER HONOUR: (sound starts mid-sentence) the pandemic, we're no longer able to offer a hearing in person in health matters so we've called this matter over to see whether there's some prospect that it can be heard on the papers. Judge Cowdroy is the head of the panel that will be convened to hear the matter and he's of the view that in the event that the HCCC is prepared to serve on Dr Ghosh a document setting out the orders sought the matter should be able to be heard on the papers. Do you have a view on that? MS CONNORS: Your Honour, I've been in contact with Mr Anthony Britt of counsel about this issue. He's indicated that that would be possible. There was a direction for the commission to file its submissions by this Friday and we will be complying with that. The commission has already written to Dr Ghosh advising her of the orders it was seeking in January of this year, on 29 January. Recently, I think the registry received an email from Dr Ghosh in relation to these proceedings. HER HONOUR: Yes. MS CONNORS: That was from a new email address that hadn't previously been advised to the commission and the order for substituted service was [the First Email Address] and that is where documents and correspondence have been sent to. Given that we are now aware of a new email address the commission would be prepared to serve by email the submissions and the previous advice of the orders being sought as soon as possible. In relation to the actual hearing, what Mr Britt has suggested was that counsel and the commission's solicitor could be available by telephone and in the event the tribunal had any queries or sought any assistance, we could be contacted by telephone. HER HONOUR: Thank you. If the matter is to be heard, if the matter is to be determined on the papers though I need to make an order dispensing with the hearing so we wouldn't be able to give you a date and time for any telephone queries. That would have to be arranged spontaneously by the panel. Are you happy with that? MS CONNORS: Yes, your Honour. HER HONOUR: Thank you. So you're happy with me to dispense with the hearing provided that the matter can be heard on the papers. MS CONNORS: Yes, your Honour. HER HONOUR: All right, Very well, thank you, Ms Connors. I'll make some orders. One, that the Health Care Complaints Commission is to serve upon Dr Ghosh by email its written submissions and the advice of orders sought which were previously served on Dr Ghosh on 29 January 2020. Two, the HCCC will provide the documents in order 1 to the tribunal and three, the hearing in this matter is dispensed with. Four, the matter will be determined by the tribunal based upon the written submissions and other material lodged with and provided to the tribunal and I indicate that I make that order having afforded the parties an opportunity to make submissions on the question of whether the issues for determination in this matter can be adequately determined in the absence of the parties, considering any written submissions and any other document or material lodged with or provided to the tribunal and that I have considered the submissions, documents and materials provided on behalf of the HCCC, Dr Ghosh not having availed herself of the opportunity and that I am satisfied that the issues for determination can be adequately determined in the absence of the parties on the papers. Having said that, I have taken into account the email that Dr Ghosh has provided on 20 March 2020 and I note that she would have sought an adjournment but I'm not satisfied that there is a basis for that order to be made. Ms Connors, is that sufficiently clear for you? MS CONNORS: Yes, your Honour, I think that disposes of all the issues. HER HONOUR: Very good, thank you. We'll adjourn the matter to be determined on the papers."
We make a number of observations about what occurred at this directions hearing.
First, Cole DCJ evidently determined that the Commission's Complaints against Dr Ghosh be determined on the papers because: (a) the head of the panel convened to hear the matter, Cowdroy ADCJ, had expressed the view that, if the Commission served on Dr Ghosh a document setting out the orders it sought, the matter "should be able to be heard on the papers"; (b) Ms Connors told Cole DCJ that Mr Britt, who was to appear for the Commission at the hearing of the Complaints, and who appeared for the Commission in this Court, had "indicated that that would be possible" although there may be an issue about whether Mr Britt had been asked about the suitability of the matter being heard on the papers in addition to being asked whether a document setting out the orders sought could be drafted in time; and (c) her Honour was satisfied that the Commission's complaint against Dr Ghosh could "be adequately determined in the absence of the parties on the papers".
Second, Cole DCJ had read Dr Ghosh's 20 March 2020 email as an application for an adjournment of the hearing but was not satisfied that there was a basis for an adjournment. Her Honour's reasons for this conclusion were not exposed beyond a statement to this effect.
The orders pronounced by her Honour were engrossed as "Orders" and were as follows: "1. Ratna Ghosh's application by email dated 20 March for the proceedings to be struck out, stayed or adjourned is refused. 2. The Health Care Complaints Commission is to serve upon Ratna Ghosh its written submissions and advice of the orders it seeks on or before 30 March 2020. 3. The Health Care Complaints Commission is to provide the documents described in Order 1 to the Tribunal on or before 30 March 2020. 4. The hearing in this matter, set down to begin on 31 [sic: 30] March 2020 and continue for four days, is dispensed with. 5. This matter will be determined by the Tribunal based upon the written submissions and other material lodged and provided to the Tribunal."
In effect, these orders vacated the 30 March 2020 hearing date and directed that the Commission's case be determined on the papers.
The Tribunal's orders provided for service on Dr Ghosh of the Commission's submissions and other material but made no provision for service by Dr Ghosh of any material in response to those submissions.
Although in her 20 March 2020 email Dr Ghosh had said that "I have been in Sydney since 1 November", the Tribunal posted these orders to Dr Ghosh at her Charlestown address.
In an application Dr Ghosh made on 29 May 2020 to stay the orders made by the Tribunal on 15 April 2020, Dr Ghosh denied receiving notice that the Commission's complaint "would be on the papers". We return to this below.
On 27 March 2020, Mr Britt prepared the Commission's submissions. The submissions were lengthy and comprised some 41 closely-typed pages.
On the same day, the Commission sent a copy of those submissions, together with the orders sought by the Commission, to Dr Ghosh at the Second Email Address. Delivery to that email address failed.
On the following Friday, 3 April 2020, the Commission sent a copy of the submissions and proposed orders to Dr Ghosh at the First Email Address. As that was the email address to which the Tribunal's 19 March 2020 communications were directed, and as Dr Ghosh received that communication (hence her 20 March 2020 reply), we would infer that Dr Ghosh also received this communication.
The orders sought by the Commission, as notified to Dr Ghosh, were that: 1. pursuant to ss 149C(1)(a) and (b) of the National Law, Dr Ghosh's registration as a medical practitioner be cancelled; 2. pursuant to s 149C(7) of the National Law, Dr Ghosh may not apply for a review of the orders made by the Tribunal for a period of five years from the date of its decision; 3. pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these orders; 4. Dr Ghosh pay the applicant's costs in the proceedings; and 5. the publication of the names of any of the patients referred to in this decision be prohibited.
This was the first time that the Commission had articulated orders in these terms.
On 15 April 2020, the Tribunal published its reasons for deciding that: 1. were Dr Ghosh still registered as a medical practitioner, the Tribunal would have cancelled her registration; 2. Dr Ghosh should be disqualified from being registered as a medical practitioner for 18 months; and 3. those orders should be stayed "to allow [Dr Ghosh] to make an application to show cause why the orders should not be made".
We will return to the Tribunal's reasoning in more detail below but at this point, it is important to reproduce what is contained at [141]-[145] of those reasons: "[141] The Tribunal records that it has been disadvantaged in its deliberations by the fact that the Respondent has chosen not to take any part in these proceedings. Had the Respondent participated, the Tribunal may have been greatly assisted in understanding the reasons for the Respondent's conduct which has brought these matters to notice. In the absence of written submissions from the Respondent answering the complaints, the Tribunal has been required to rely upon the documentation before it in arriving at its conclusions. [142] The Tribunal is mindful that the complaints raised by the Applicant against the Respondent have been considered on the material available to the Tribunal. The Tribunal records the following facts: (1) on 19 March 2020 the Respondent was informed by email that a callover would take place by telephone on 25 March 2020 at 9:30 am. The email requested that the Respondent provide a phone number to the registry prior to this time. (2) on the same day a further notification was forwarded by email to the Respondent. This notification informed the Respondent that the tribunal was considering alternatives to hearings in person because of the Covid 19 pandemic. The notification requested that the Respondent be available to take a telephone call from the tribunal between the hours of 9:30 am and 10:30 am on 25 March 2020. The notice requested that the Respondent provide a telephone number at which she would be available between 9:30 am and 10:30 am on 25 March 2020. The notice also informed the Respondent that she would be asked to provide any view she might have in relation to: (a) Whether this matter could be determined by the Tribunal on the papers: Whether this matter could be heard by the Tribunal by telephone, or telephone and audiovisual link; (b) If the matter could not be determined by the Tribunal on the papers, or heard by the Tribunal by telephone, or telephone and audiovisual link, then the Respondent's views would be sought on the adjournment of the matter until a date after 5 October 2020. (c) Any consequential orders which may be necessary. (3) The Respondent replied to such notice. In the reply, the Respondent stated that she would not be available for the hearing. She explained that she had been involved in litigation in the New South Wales Supreme Court and in the New South Wales Court of Appeal. The Respondent provided information that she had been fully occupied attending to such proceedings which involved a close family member and that she would not be available until May 2020 for a directions hearing. The Respondent sought an adjournment of the proceedings or, alternatively, that an order that the proceedings be stayed or struck out. (4) the Respondent did not provide a telephone number at which she might be contacted for the directions hearing and did not participate in the directions hearing, nor was she legally represented at the directions hearing. (5) the Tribunal refused the application for an adjournment and directed that the proceedings continue to a hearing as set out in the orders referred to earlier in this decision. [143] The Tribunal takes into consideration the matters raised by the Respondent which have apparently contributed to her inability to participate in the proceedings. However, the Tribunal is bound by the orders made on 25 March 2020, and has proceeded on the material before it. [144] Nevertheless, to ensure that no injustice has been, or will be, done to the Respondent, the Tribunal will suspend the making of any orders for a period of 28 days from the date of publication of this decision to enable the Respondent to seek different orders. The Tribunal will direct that in the event that the Respondent seeks to place any material before the Tribunal as to why it should not make the orders proposed, any such application is to be filed within 21 days of the date of this decision. Any such application is to be supported by any evidence upon which the Respondent proposes to rely. [145] In the event that the Respondent makes such application, the proceedings are to be relisted for further directions and the proposed orders set out hereunder will be stayed pending determination of any further directions."
The following matters should be observed in relation to these paragraphs: 1. The statement at [141] that the Respondent had "chosen not to take part in these proceedings" is, at best, only partially correct. True it is that Dr Ghosh had not filed any evidentiary material in response to that which had been filed by the Commission in late 2019 but that was a matter for her and the material that had been filed by the Commission included a detailed statutory declaration made by Dr Ghosh of 17 September 2018 that addressed a number of the matters the subject of the Complaints. Further, none of the evidence that was filed by the Commission contained expert opinions to the effect that she suffered from either of the impairments referred to in Complaint Seven and picked up by reference in Complaint Eight. Insofar as the statement contained in the Tribunal's reasons at [141] referred to a choice by Dr Ghosh "not to take part in these proceedings", that observation wholly overlooks the fact that the proceedings were determined "on the papers". There is no suggestion that the Tribunal ever sought any written response from Dr Ghosh in relation to the written submissions of the Commission. We have already noted (at [58] above) that Cole DCJ made no provision for any filing by Dr Ghosh of written submissions in response to those of the Commission and in answer to its Complaints and the orders it sought. 2. the statement in [142] to the effect that the Tribunal "is bound by the orders made on 25 March 2020" is mystifying. The Tribunal was in control of its own process. It was open at all times to the Tribunal to vary, vacate or supplement the orders that had been made by Cole DCJ on 25 March 2020. There was nothing precluding the Tribunal from making an order that Dr Ghosh respond to the Commission's written submissions within a reasonable time, bearing in mind her lack of any legal representation, the length of the Commission's submissions, the seriousness of the relief that was being sought against Dr Ghosh and the fact, as should have been apparent to the Tribunal (and the Commission for that matter) that the orders of 25 March 2020 by which the Tribunal said it was bound made no provision for any responsive submissions to be filed by Dr Ghosh. 3. the "show cause" procedure contemplated at [144] of the Tribunal's reasons had no direct statutory foundation and was flawed, as demonstrated by subsequent events considered more fully below. As shall be seen, by 15 April 2020, the Tribunal had necessarily predetermined the Complaints and, as acknowledged by the Principal Member, had "already made up its mind". The Tribunal's power to control its own procedure does not extend to the adoption of a procedure which departs from basic requirements of procedural fairness or involves elements of prejudgment.
On 29 May 2020, Dr Ghosh filed an application under the "show cause" order of 15 April 2020, seeking a stay of the 15 April 2020 orders. It was in that application that Dr Ghosh denied receiving notice that the Complaints were to be dealt with on the papers.
Dr Ghosh's application was listed for directions before the Tribunal members, including Cowdroy ADCJ, on 6 August 2020.
On that occasion, the following exchange took place between his Honour and Mr Jackson, who appeared for Dr Ghosh on that occasion as well as on this appeal: "HIS HONOUR: Well, if you look at the orders that were made when the tribunal made its decision it postponed the orders because it was conscious that the, your client had not attended the hearing. MR JACKSON: Yes. HIS HONOUR: You'll see from the reasons that are set out in the decision that the tribunal was satisfied that your client was aware of it and indeed she applied for an adjournment of them which was not granted. MR JACKSON: Yes. HIS HONOUR: But nevertheless we granted a period in which she could show cause why the orders shouldn't be made so really the purpose of today is for us to hear from yourself on behalf of your client as to why the tribunal should not make the orders. It's a very, fairly narrow matter. MR JACKSON: Yes. HIS HONOUR: The tribunal is not embarking upon a rehearing of what it has already heard. MR JACKSON: That's right. It's already made up its mind so I understand that. HIS HONOUR: Yes. MR JACKSON: That's really the problem that I'll be addressing in my oral submissions I anticipate. HIS HONOUR: Yes, well if there was some reasons as to why she would like to put forward as to why the orders should not be made then, of course, we will consider them." (Emphasis added)
And, a short time later: "HIS HONOUR: So Mr Jackson, if you'd be good enough now to be able to state the matters or your submissions which you wish to have us take into consideration. All the panel members can hear you and we look forward to hearing your submissions. MR JACKSON: Yes. Just so that the tribunal is under no misapprehension about our position or my position, my position is that the show cause procedure is an empty gesture in the circumstances and I say that because all of the factual findings have already been made by the tribunal and they've been made, all complaints have been upheld and all particulars have been upheld. HIS HONOUR: No, that's not right. No, not all particulars were upheld. MR JACKSON: Well, the complaint, certainly the complaint was upheld and it was based on the evidence of the [Commission] only. … once those findings had been made the orders which follow are obviously flow from the findings that have been made by the tribunal and both the tribunal this morning and also Mr Britt in his written submissions confirm that the findings are not open, essentially open for debate and that's necessarily so because the reasons have already been published." (Emphasis added)
On 17 August 2020, the Tribunal published its reasons for "terminating" the stay of the 15 April 2020 orders, and its order that the 15 April 2020 orders "operate instanter". We return to the details of these reasons below.
Despite Mr Jackson's exchange with the Presiding Member set out at [71] and [72] above, in its 17 August 2020 reasons, the Tribunal said: [8] "In respect of the submission that this Tribunal foresaw an injustice having been occasioned to [Dr Ghosh] and to rectify that injustice, made the show cause order, the Tribunal states that the order was inserted within its powers as it was still seised of jurisdiction as no final orders had been made."
We turn now to the grounds of appeal.

Grounds One and Two: No power to proceed with the inquiry and misplaced reliance on s 50 of the NCAT Act

We will deal with these two grounds together.
On behalf of Dr Ghosh, Mr Jackson submitted that, by reason of non-compliance with provisions of the National Law, the Tribunal had no power to proceed with the inquiry and, in particular, had no power to proceed to deal with the Commission's complaints on the papers.
Section 165I of the National Law provides, relevantly: "165I Notice of time and place of inquiry or appeal [NSW] The Tribunal must give not less than 14 days' notice of an inquiry or appeal under this Law to each of the following - (a) the registered health practitioner or student the subject of the inquiry or appeal; … (d) for an inquiry into a complaint, the Commission; ..."
Section 165J provides, relevantly: "165J Representation before Tribunal [NSW] (1) At an inquiry conducted … under this Law by the Tribunal, the registered health practitioner … and any complainant concerned are entitled to attend and to be represented by - (a) an Australian legal practitioner; … (3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner … concerned, as long as the practitioner … has been given notice of the inquiry or appeal."
Section 165K provides: "165K When hearings may be closed to public [NSW] Despite section 49(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal may make an order that a hearing for proceedings under this Law be conducted wholly or partly in private only if it is satisfied that it is desirable to do so in the public interest for reasons connected with the subject matter of the proceedings or the nature of the evidence to be given."
Section 165K still contemplates a hearing, albeit a private one in certain limited circumstances.
Section 165K refers to s 49(2) of the NCAT Act which is in the following terms: "49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason."
Section 165A of the National Law provides that these provisions: "… apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013". The priority of the National Law in relation to the conduct of hearings is emphasised by the opening words of s 165K.
Section 139G of the National Law has the effect that these provisions (i.e. part 8 of the National Law) apply to a person who was, but is no longer or was not at the relevant time, registered as a health practitioner. For simplicity, we will refer simply to a "health practitioner".
It appears that none of these provisions was drawn to the attention of Cole DCJ on 25 March 2020, when her Honour made the decision that the Commission's application be dealt with on the papers.
The giving of notice to a health practitioner "of" an inquiry required by s 165I necessarily involves giving notice of the time and place where the inquiry will take place. Indeed, the heading of s 165I reads "Notice of time and place of inquiry or appeal". Although that heading does not form part of the National Law, [9] it is material available to construe the section. [10]
Section 165J(1) confers on a health practitioner a right to "attend" an inquiry conducted under the National Law. The section thus does more than entitle a health practitioner to participate in the inquiry. The right is to "attend" the inquiry: that is, actually to be present at that inquiry. That may include being virtually present in the sense of using a platform such as Zoom or Microsoft Teams.
The concomitant entitlement to be legally represented at the inquiry is an entitlement to have a legal representative so present at the inquiry.
A right to attend and be represented at an inquiry necessarily carries with it a right to be heard at that inquiry. As the right to attend is a right to be actually present at the inquiry, that right to be heard must include a right to be heard orally.
Mr Jackson so submitted. [11] Mr Britt agreed, in terms. [12]
Section 165J(3) provides for an exception to that general rule, and provides that the Tribunal may proceed "in the absence of" the health practitioner but only "as long as the practitioner … has been given notice of the inquiry".
The notice referred to in s 165J(3) must be of the kind referred to in the immediately preceding section, s 165I. That is "not less than 14 days' notice" of the time and place of the inquiry.
The effect of s 165J(3) is that it is only if such a notice is given that the Tribunal may proceed "in the absence" of the registered health practitioner, and only if the health practitioner did not exercise his or her right to attend or has foreshadowed not doing so.
Thus the legislative requirement is that a hearing proceed in the absence of a health practitioner only after he or she is first provided with the opportunity to attend in person and with a legal representative.
This reflects the fact that disciplinary proceedings in the Tribunal and under the National Law carry with them the risk of serious consequences for the registered health practitioner.
Section 165J does not authorise a private hearing; it simply authorises the Tribunal to proceed in circumstances where the health practitioner does not appear at the appointed time and/or place of the inquiry.
There is no provision in the National Law for an inquiry to be heard "on the papers". The exception in s 165J(3) is directed to the possibility of the Tribunal proceeding "in the absence of" the health practitioner; that is, ex parte.
It is a very different thing to proceed "on the papers"; that is, in the absence of any of the parties.
The power in s 165K to a conduct a "hearing for proceedings under this Law … wholly or partly in private" is not a power to proceed in the absence of any of the parties. It is a power to conduct a hearing in private. As we have set out at [80] above, s 165K provides that the Tribunal may only proceed to a hearing in private if it is satisfied that it is desirable to do so in the public interest for reasons connected with the subject matter of the proceedings or the nature of the evidence to be given. Section 165K so provides despite s 49(2) of the NCAT Act which, as set out at [82] above, confers on the Tribunal a wider discretion to proceed in private in matters not governed by the National Law.
In any event, there was no suggestion that s 165K was engaged here; that is, there was no suggestion that the Tribunal formed, or could have formed, the view that the "public interest for reasons connected with the subject matter of the proceedings" required this matter to be dealt with in private.
There is provision to "dispense with a hearing" in s 50 of the NCAT Act which, relevantly, provides: "50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account."
This may have been the section on which Cole DCJ relied to make the orders of 25 March 2020, although her Honour did not identify it as such.
In its 15 April 2020 decision, the Tribunal stated that it: [13] "… decided to proceed ex parte to determine the application pursuant to section 165J(3) of the National Law. Further, the Tribunal had ordered on 25 March 2020 that the matter proceed without a hearing: see section 50(1)(c) and section 50(4) of the [NCAT Act]".
But ss 165I and 165J of the National Law, providing for the giving of notice of an inquiry and for a right to attend the inquiry, are inconsistent with, and prevail over, the Tribunal's power under s 50 of the NCAT Act to dispense with a hearing. [14]
The only notice Dr Ghosh received of the time and place of the inquiry into her conduct was the notice she received of the hearing to commence on 30 March 2020. That notice is not before us but we will assume, in favour of the Commission, that it compiled with s 165I.
Assuming, despite her denial, that Dr Ghosh did receive a copy of the Tribunal's 25 March 2020 orders, it was not a notice that complied with the requirements of s 165I. It did not give Dr Ghosh "no less than 14 days' notice" of when the inquiry would be heard. It provided no means by which Dr Ghosh could exercise her right under s 165J of the National Law to "attend" the inquiry and to be legally represented.
The hearing date included in such notice as Dr Ghosh did receive was in effect vacated by Cole DCJ's order of 25 March 2020.
Had the hearing date of 30 March 2020 been maintained, and had Dr Ghosh not appeared at that hearing, it would have been open to the Tribunal, under s 165J of the National Law, to proceed with a hearing in her absence; that is, to proceed ex parte.
As noted above at [104], ss 165I and 165J of the National Law, providing for the giving of notice of an inquiry and for a right to attend the inquiry, are inconsistent with, and prevail over the Tribunal's power under s 50 of the NCAT Act to dispense with a hearing altogether. By reason of s 165J of the National Law, Dr Ghosh had the right to attend the inquiry into her alleged conduct in public and to be legally represented at that inquiry. Dr Ghosh was, by the orders made on 25 March 2020, deprived of that right.
The occasion did not arise for the Tribunal to consider, under s 165J(3) of the National Law, whether to proceed in Dr Ghosh's absence.
As Mr Jackson submitted, the provisions of the National Law are clearly and practically expressed, simple to follow, and prescriptive. The language is mandatory. Their object is to provide the health practitioner with a genuine opportunity to appear and present his or her case at a public hearing into his or her conduct.
We accept Mr Jackson's submission that compliance with these provisions was a precondition to the valid exercise of the Tribunal's power to hear the Complaints.
For that reason alone, the appeal must be allowed and the Tribunal's decisions set aside.

Ground Three: Error in the application of s 50 of the NCAT Act

Mr Jackson submitted that, in the alternative and even if the Tribunal was entitled to rely upon s 50 of the NCAT Act to make an order that the matter be heard on the papers, the Tribunal erred in law by failing to consider and apply the requirements of s 50.
Even if s 50 applied in the present case, the Tribunal could only dispense with a hearing under that section if satisfied, pursuant to sub-section (2): "… that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal." [15]
Cole DCJ expressed such a satisfaction but gave no reasons for doing so.
As the nature of the Complaints made by the Commission make clear, there was likely to be a considerable amount of factual dispute requiring resolution by the Tribunal, particularly concerning Dr Ghosh's allegedly inappropriate treatment of her "close relative", Patient C, and her alleged mental impairment and consequent incompetence to practise.
Before this Court, Mr Britt accepted that the Tribunal was faced with contested matters of fact and opinion. Even if Dr Ghosh did not seek to cross-examine any of the doctors whose evidence was being relied upon by the Commission (a matter that was unlikely given Dr Ghosh's challenge in the Court of Appeal to the earlier decision of the Tribunal suspending her registration to practise), it would ordinarily be the case that the medical members of the Tribunal, at the very least, may also have had questions they wished to ask the Commission's witnesses, especially given the serious consequences for Dr Ghosh if the Complaints were upheld.
It was also likely that issues as to Dr Ghosh's credit would be required to be determined, particularly in relation to the Commission's complaint that Dr Ghosh had provided deliberately false and misleading information to the Council. [16]
The brevity of Cole DCJ's consideration of the question in s 50(2), and her Honour's failure to give reasons other than by reference to what Cowdroy ADCJ and Mr Britt were reported to have said (see [52] above), leads us to doubt, with respect, that her Honour properly or fully engaged with the question as to whether the matter could be adequately determined in the absence of Dr Ghosh. In certain cases, this may amount to an error of law, although care must be taken in the use of the formula of "failure to give proper, genuine and realistic consideration" [17] as deployed by Mr Jackson in light of more recent authority. [18]
In view of our conclusions in relation to grounds one and two, it is not necessary to reach a concluded view in relation to this ground. It does not strictly arise.

Grounds Four and Eight: Consequences of errors in Grounds One and Two for the decisions of 15 April 2020 and 17 August 2020

It follows from our conclusions in relation to grounds one and two that the Tribunal had no power to proceed with the inquiry because of non-compliance with the provisions of the National Law.
That consequence, and the lack of procedural fairness so far as Dr Ghosh is concerned, of the Tribunal proceeding as it did, could not be cured by the "show cause" procedure in which the Tribunal invited Dr Ghosh to participate. This is the subject of both grounds 4 and 8 of the Amended Notice of Appeal and they can conveniently be dealt with together.
In its reasons of 15 April 2020, the Tribunal made findings with respect to each Complaint and ordered that, were Dr Ghosh still registered as a health practitioner, it would have cancelled her registration, and ordered that she be disqualified from being re-registered for 18 months. The die was cast. Nothing Dr Ghosh could say or do thereafter could affect the outcome, except perhaps as to penalty.
As the Tribunal acknowledged on 6 August 2020, it was "not embarking upon a rehearing of what it has already heard" and had "already made up its mind". [19]
In these circumstances, as Mr Jackson put to the Tribunal [20] and to this Court, the "show cause" procedure, even if open under the NCAT Act, was an empty gesture. It was quite incapable of curing any injustice occasioned to Dr Ghosh and was not an available or appropriate substitute for her right to participate in a public hearing.

Ground Five: Errors with respect to the substantive reasoning of the Tribunal

This ground directs attention to two errors that Mr Jackson submitted the Tribunal had made with respect to its substantive reasoning in relation to certain aspects of the Complaints. Whilst it is strictly unnecessary to deal with this ground in light of our conclusions on grounds one and two, there is still utility in so doing. [21]

First Error

The first error alleged is in respect of the Tribunal's conclusions concerning Complaint Six.
Section 165M of the National Law provides: "165M Tribunal to provide details of decisions [NSW] (1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to-- (a) the parties; and (b) .... (2) The statement of a decision must- - (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision."
Section 62(3) of the NCAT Act also provides that a written statement of reasons for the purposes of this section must set out the following: "(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made."
As Bell P said in New South Wales Land and Housing Corporation v Orr ("Orr"): [22] "… even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess."
As we have set out above at [16], Complaints One to Five were of unsatisfactory professional conduct. Complaint Six was that, by reason of the unsatisfactory professional conduct alleged in Complaints One to Five, Dr Ghosh also guilty of professional misconduct.
It is clear from the face of its reasons that the Tribunal made a number of errors on the way to, and in its consideration of, Complaint Six.
First, in relation to each of Complaints One to Five, the Tribunal wrongly described the Commission's complaint as being one of professional misconduct. [23] That was incorrect. Each complaint was of unsatisfactory professional conduct and, subject to what follows in the next paragraph, the Tribunal so held.
Second, in relation to Complaint One, which was upheld otherwise than in respect of particulars 5 and 6, the Tribunal concluded that Dr Ghosh had engaged in "unprofessional conduct" (at [93]) rather than "unsatisfactory professional conduct" as was the complaint, or professional misconduct, as the Tribunal had wrongly characterised the complaint.
Third, the Tribunal, although purporting to do so at [113]-[114], did not address what was alleged in Complaint Six.
In relation to Complaint Five, the Tribunal had stated: [24] "This complaint alleges that the Respondent is guilty of professional misconduct under section 139B of the National Law and has contravened s 34A(4) of the Health Care Complaints Act 1993 (NSW) in that she that she [sic] failed to provide information concerning medical records for her care and treatment of Patient C when requested by the HCCC to do so; failed to inform the HCCC why she could not provide the Commission with Patient C's medical records; and failed to provide a reasonable exclude for not complying."
Then, in relation to Complaint Six the Tribunal held: "[113] This complaint alleges that the Respondent is guilty of professional misconduct under section 139E of the National Law in that she that she [sic] failed to provide information concerning medical records for her care and treatment of Patient C when requested by the HCCC to do so; failed to inform the HCCC why she could not provide the Commission with Patient C's medical records; and failed to provide a reasonable excuse for not complying. [114] The Tribunal considers that the conduct of the Respondent in relation to Patient C, and the failure to produce records constitutes unsatisfactory professional conduct." (Emphasis added)
It can immediately be seen that rather than set out and address Complaint Six as actually made by the Commission (see at [28] above), the Tribunal repeated, in the words that we have emphasised, the words of Complaint Five; including the repetition of the words "that she" in [111] and [113].
Further, at [114] the Tribunal concluded that Dr Ghosh's conduct amounted to unsatisfactory professional conduct, rather than professional misconduct which is what Complaint Six alleged.
Then, at [139] of its reasons, under the heading "Summary and Comment", the Tribunal expressed its ultimate conclusion: "The Tribunal finds by reason of the undisputed facts contained in the particulars to the complaints: (1) the Respondent has engaged in conduct which constitutes professional misconduct within s 139E of the National Law; (2) the Respondent has engaged in conduct which constitutes unsatisfactory professional conduct pursuant to s 139B of the National Law."
The Tribunal then repeated those conclusions, word for word, in the following paragraph. [25]
Mr Britt submitted that this Court should conclude that these matters were all a result of a "word processing, cut and paste error" and that "[m]inor errors of this type although less than ideal do not vitiate the Tribunal's decision".
We do not agree.
It was unsatisfactory and regrettable that the Tribunal dealt with Complaint Six in this way. In truth, it did not deal with Complaint Six at all, although purporting to do so.
Complaint Six was the only complaint that alleged professional misconduct as opposed to unsatisfactory professional conduct. It was the most serious of the complaints made against Dr Ghosh. The Tribunal's erroneous treatment of it cannot be passed off as an unfortunate typographical error, and in fairness to Mr Britt, this submission was pressed but lightly. It is moreover deeply regrettable and difficult to understand how all four members of the Tribunal failed to detect these various errors in relation to Complaint Six, and failed to consider the complaint as formulated and advanced by the Commission.
Further, no attention can have been given as to how the publication of a judgment in this form exposed the Tribunal's process of reasoning in relation to Complaint Six.
Even a cursory consideration of the reasons in draft form would have made it apparent that whoever was their principal author had not addressed the correct and most serious complaint, that of professional misconduct, and, in any event, to the extent that he or she had purported to do so, had not exposed any reasoning process whatsoever. A similar observation can and should be made in relation to the absence of reasoning in relation to the matters dealt with at [173]-[185] below.
As Mr Jackson submitted, the statutory regime constituted by the National Law is disciplinary in nature and bears potentially very serious consequences for both the medical practitioner and the general public. Complaints in relation to the National Law are prosecuted by an independent prosecutorial body, the Commission, that particularises the complaints made against the practitioner with care.
Such complaints should be treated with great care. That, regrettably, did not occur in the present case. Our criticism of the Tribunal exists at a number of levels: 1. the correct complaint was not dealt with; 2. this should have been obvious to the principal author of the reasons; 3. the basic errors, whether they be characterised as "word processing errors" or otherwise, should have been obvious to the other members of the Tribunal who should not join in reasons without carefully reading and considering them even if they have not had principal carriage of drafting them; 4. albeit relating to the wrong complaint, the purported "reasoning" process was quite inadequate.
If it were necessary to do so, we would have upheld Dr Ghosh's appeal against the Tribunal's decision in respect of Complaint Six on this basis alone.

Second Error

The second error for which Mr Jackson contended arose from the Tribunal's conclusion concerning Complaint Seven.
To repeat [29]-[30] above, that Complaint was that Dr Ghosh has an "impairment" within the meaning of s 5 of the National Law, being a: "… mental impairment, disability, condition or disorder … that detrimentally affects or is likely to detrimentally affect … [her] capacity to practise [as a general practitioner]".
Complaint Seven was particularised by the Commission as follows: "1. The practitioner suffers from an impairment, namely, schizophrenia as defined in the DSM 5. 2. In the alternative, the practitioner has a psychotic disorder due to a medical condition and a neurocognitive disorder. 3. The practitioner's impairment is of sufficient nature and degree to impair her mental capacity to practice [sic] the profession."
As so particularised, Complaint Seven was that Dr Ghosh suffered an impairment, either schizophrenia (particular 1), or a psychotic disorder due to a medical condition and a neurocognitive disorder (particular 2), and that such impairment was of a sufficient nature and degree to impair Dr Ghosh's mental capacity to practise the profession (particular 3).
The Tribunal mischaracterised that complaint as follows: [26] "This complaint alleges that the Respondent has an impairment within the meaning of section 5 of the National Law in that she (1) suffers from schizophrenia; or (2) has a psychotic disorder and a neurocognitive disorder; or (3) has an impairment that is of sufficient nature and degree to impair her mental capacity to practise the profession." (Emphasis added)
Thus, the Tribunal misconstrued Complaint Seven to allege that Dr Ghosh had an impairment because of any one of the three matters particularised.
The Tribunal was not satisfied that Dr Ghosh suffered from schizophrenia (particular 1), [27] nor that Dr Ghosh suffered from a psychotic disorder due to a medical condition and/or a neurocognitive disorder (particular 2) [28] .
Nonetheless, the Tribunal held that particular 3 was established, evidently because it was satisfied that Dr Ghosh was "suffering a chronic mental or personality disorder" [29] and that Dr Ghosh had "patterns of thought and behaviour" that were "pervasive, persistent and had negative consequences for her professional, personal and family life". [30] That was not the basis on which the Commission made this complaint.
As particularised by the Commission, Complaint Seven could only be made out if one or other of particular 1 or particular 2 was established.
If, as the Tribunal found, particulars 1 and 2 were not established, then the Tribunal could not be satisfied as to particular 3.
As Mr Jackson submitted, it was not open to the Tribunal, without notifying Dr Ghosh in advance, to reject the "impairment" alleged and yet find another unspecified impairment not particularised by the Commission.
Mr Britt drew attention to authority to the effect that the Tribunal in health practitioner disciplinary matters is not confined to particulars and the wording of a complaint in the way that a court hearing a criminal charge would be. [31] But as Mr Britt acknowledged, this was "subject to any requirement to provide the parties with procedural fairness". The authority to which he referred made the same point. [32]
Here, the provision of procedural fairness to Dr Ghosh required that she be given an opportunity to answer a complaint not made by the Commission.
In those circumstances, it was not open to the Tribunal to find Complaint Seven made out on the basis that it did.
Further, because Complaint Eight was contingent upon Complaint Seven, it was also not open to the Tribunal to uphold that Complaint either.
There is a further matter.
In the course of its reasoning concerning Complaint Seven, the Tribunal offered this observation as part of its reasoning leading to its conclusion that particular 3 had been established: "The Tribunal also concludes that the Respondent has behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the Applicant, the Medical Council of New South Wales or the Tribunal. The Respondent had also initiated legal actions against certain of these colleagues." [33]
These were not matters that the Commission had alleged in its Application for Disciplinary Findings and Orders.
The Commission alleged, in relation to Complaint Three, that Dr Ghosh had provided deliberately false and misleading information to the Council. The Tribunal accepted those complaints, although it gave inadequate reasons for so doing. [34] But the Commission had not made any allegation to the effect set out by the Tribunal in [168] above.
The conclusion expressed by the Tribunal was about matters which did not arise from any complaint made by the Commission. Dr Ghosh was given no opportunity to meet the charge. The conclusion was not explained by reference to any evidence before the Tribunal. The "reasons" do not even set out what the behaviour in question was which the Tribunal was addressing.
The conclusion was grossly unfair to Dr Ghosh.
No Court or Tribunal should ever conclude that a person has "behaved in a dishonest, vindictive and retaliatory manner" without such matters being clearly alleged and closely particularised, and without fully exposing the Court or Tribunal's reasoning process. In the present case, as we have observed, apart from the absence of notice to Dr Ghosh, the Tribunal neither identified with any particularity the behaviour it was referring to nor did it give any reasons for reaching the damning conclusions it did in the paragraph we have set out at [168] above. This is not an observation as to "best practice". It goes to a basic duty and obligation imposed on Tribunal members. [35]
The Tribunal's inclusion of this paragraph in its reasons in the above circumstances was another deeply regrettable aspect of this decision.

Ground Six: Alleged error of law with respect to "unfitness to practise"

This ground relates to Complaint Eight which, to repeat, is that Dr Ghosh is not "competent" within the meaning of s 139(a) of the National Law in that she lacks "sufficient … mental capacity … to practise the profession".
The Tribunal dealt with this matter at [126]-[130] as follows: "[126] This complaint alleges that the respondent is not competent within the meaning of s 139 (a) of the National Law in that she lacks the mental capacity to practise as a medical practitioner. [127] The Tribunal is satisfied that the Respondent does suffer from an impairment that impacts upon her capacity to practise safely as a medical practitioner and accordingly concludes that this complaint is established. [128] Section 139 (a) and (b) of the National Law defines competence in the following terms: 'A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession including an adequate command of the English language.' [129] The Tribunal considers that the Respondent does not fulfil the requirements of s 139 (a) in that she lacks the mental capacity to practise medicine. Such requirement was considered in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]. In that decision the Tribunal made it plain that impairment can manifest itself in conduct, as has been demonstrated in the matter presently before the Tribunal. [130] The Tribunal finds that Dr Ghosh is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental capacity to practise as a medical practitioner. Accordingly she is unfit to practise as a medical practitioner."
These five paragraphs do not satisfy the "minimum characteristics that a Tribunal's reasons must possess". [36] They do nothing more than repeat the complaint, assert without reasoning that it has been made out, refer to the statutory provision, again assert that the charge has been made out and further repeat this conclusion in the words of the statutory provision. Ipse dixit reasoning of this character does not constitute a proper discharge of the Tribunal's statutory obligations under either s 165M of the National Law, s 62 of the NCAT Act or the general law.
We accept Mr Jackson's submission that the Tribunal failed to give adequate reasons for its conclusions at [129]-[130].
In our opinion, Mr Jackson was correct to submit that the Tribunal made no attempt to analyse what it was in Dr Ghosh's conduct, or in her medical reports, that led to the conclusion that she was unfit to practise medicine. We agree that it is not possible, from the matters stated by the Commission, to understand the basis upon which the conclusion was reached.
In any event, Complaint Eight is particularised by reference to the particulars of Complaint Seven. As we have found that the Tribunal's decision in respect of Complaint Seven should be set aside, its decision in relation to Complaint Eight cannot stand.

Ground Seven: Alleged insufficiency of reasons in respect of Complaint Three

As we have set out, Complaint Three concerned a number of allegedly inappropriate treatments administered by Dr Ghosh to Patient C.
It also alleged, under the heading "Providing false and/or misleading information", that in relation to Patient C Dr Ghosh had provided deliberately false and misleading information to the Council during a hearing conducted under s 150 of the National Law on 12 April 2018, and again in the form of a statutory declaration filed in the Tribunal on 17 September 2018.
These are very serious allegations.
The Tribunal dealt with these matters at [106]-[107] of its reasons as follows: "[106] With respect to Particulars 7 and 8 (provision of false and/or misleading information) the material before the Tribunal satisfies it that both Particulars are established. In In re Dr John Shashati [2006] NSWMT 2, a pattern of lies and deception was found by the Tribunal to be inimical to fitness to practise and demonstrated that the practitioner lacked good character. In this instance provision of false and/or misleading information by the Respondent shows a disregard for the ethical standards of her profession and disregard for the law. [107] The Tribunal finds that the conduct of the Respondent satisfies such definition. In respect of the findings made against the practitioner where the conduct has been found to fall significantly below the expected standard, and taken together (see s 139E of the National Law), such conduct constitutes unsatisfactory professional conduct. There has clearly been a departure 'from proper standards': see Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638."
These paragraphs are also bereft of reasoning in relation to the allegations made. They do not set out or analyse what the alleged deliberately false and misleading information provided to the Council was, explain why it was false or misleading (if it was), and then go on to consider whether or not, to the extent that there was any misleading material, it was deliberately misleading. We repeat the observations we have made at [173] above.
It was neither sufficient nor satisfactory for the Tribunal simply to recite that it was satisfied, on the material before it, that the Complaint and matters referred to in the particulars were made out. This inadequacy was not cured by the reference to two authorities. What Dr Ghosh was entitled to was what was required by s 165M of the National Law. [37]
Our conclusions concerning Grounds Six and Seven are further reasons to allow the appeal.

Conclusion

Such is the nature of the errors we have found that it is necessary that the entire decision of the Tribunal be set aside. Having regard to the errors we have found the matter must be remitted to be determined by a differently constituted Tribunal.
For these reasons, we make the following orders: 1. Leave to appeal, insofar as it is required, is granted; 2. The appeal is allowed; 3. The decisions of New South Wales Civil and Administrative Tribunal of 25 March 2020, 15 April 2020 and 17 August 2020 are set aside; 4. The matter is to be remitted to the New South Wales Civil and Administrative Tribunal to be re-heard, by a differently constituted panel; and 5. The respondent is to pay the appellant's costs of the appeal and of the hearing before the Tribunal.

Endnotes

Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38.
Health Care Complaints Commission v Ghosh (No 2) [2020] NSWCATOD 90.
Governing the Tribunal's Occupational Division.
Ghosh v Medical Council of New South Wales [2018] NSWCATOD 186.
Ghosh v Medical Council of New South Wales [2020] NSWCA 122.
The National Law applies to a person who was, but is no longer registered as a medical practitioner: s 139G.
Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7.
At [24].
See sch 7, cl 4(4) of the National Law.
"The section in the group of sections under a heading must be read in connection with the words of the heading and interpreted in the light of them": Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521; [2000] FCA 579 at [51] (Mansfield J), citing Inglis v Robertson [1898] AC 616, 630. See also P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [5.110].
Submissions in chief at [16].
Submissions at [38].
At [14].
See s 165A.
Section 50(2).
See [24] above, regarding Complaint Three made by the Commission.
See Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [26] (Gummow J).
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [26]-[36]; [2010] HCA 48. See, also, Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 at [45] and M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at [5.150].
See [71] above.
See [72] above.
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12].
(2019) 100 NSWLR 578; [2019] NSWCA 231 at [71].
At [87]; [94]; [98]; [108]; and [111].
At [111].
At [140].
At [115].
At [121].
At [122].
At [116].
At [117].
See Liu v Health Care Complaints Commission [2018] NSWSC 315 at [30] (Wilson J).
Ibid [43].
At [119].
See [182]-[188] below.
See s 165M of the National Law, s 62(3) of the NCAT Act and [129]-[131] above.
See [131] above, quoting Orr at [71].
See [129] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020

Health Practitioner Regulation (New South Wales) Regulation 2010(NSW)

HWL Ebsworth (Appellant) Health Care Complaints Commission, Legal Services (First Respondent) Crown Solicitor's Office (Second Respondent) (Submitting appearance) File Number(s): 2020/273676; 2020/316017; 2020/317663 Publication restriction: N/A Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: [2020] NSWCATOD 38; [2020] NSWCATOD 90 Date of Decision: 25 March 2020; 15 April 2020; 17 August 2020 Before: Cole DCJ (25 March 2020); Cowdroy ADCJ AO QC, Dr Haikal-Mukthar, Dr Mares, P Macneill File Number(s): 2019/00251131

HEADNOTE [This headnote is not to be read as part of the judgment] On 13 August 2019, the Health Care Complaints Commission (the Commission) applied to the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) for an order, pursuant to s 149C of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law), to cancel the registration of the appellant, Dr Ratna Ghosh, as a health practitioner, on grounds of unsatisfactory professional conduct, professional misconduct, impairment detrimentally affecting her capacity to practise the profession, and incompetence. These grounds were particularised in eight separate complaints made by the Commission against Dr Ghosh. Complaints one to five concerned the alleged unsatisfactory professional conduct, culminating in the allegation of professional misconduct in complaint six. Complaint seven addressed Dr Ghosh's alleged "impairment", whilst complaint eight was to the effect that if complaint seven was made out, then Dr Ghosh was not competent to practise the medical profession. Although Dr Ghosh was not a registered medical practitioner as at the time the complaints were filed and the appeal was heard, she remained subject to the application of the National Law. The hearing of the complaint in the Tribunal was initially set down for a period of five days, from 30 March to 3 April 2020. At a directions hearing on 25 March 2020 and conducted by telephone, Cole DCJ, sitting as Deputy President of the Tribunal, determined that the hearing should be "dispensed with" and that the matter would be determined on the papers, with formal orders made to that effect. Dr Ghosh did not appear at this hearing, and no written reasons for the decision were published by her Honour. Based on the transcript of the hearing, Cole DCJ determined that the complaints could be heard on the papers in view of the expression of an opinion to that effect by the head of the panel convened to hear the matter, in addition to counsel for the Commission. The orders made by Cole DCJ provided for the service on Dr Ghosh of the Commission's submissions and evidentiary material but made no provision for the service by Dr Ghosh of any responsive submissions or material in reply. Further, Dr Ghosh denied receiving notice of the orders made on 25 March 2020. On 15 April 2020, the Tribunal published its reasons for deciding that: (1) if Dr Ghosh was still registered as a medical practitioner, it would have cancelled her registration; (2) that Dr Ghosh should be disqualified from being registered as a medical practitioner for 18 months; and (3) that those orders should be stayed to "allow [Dr Ghosh] to make an application to show cause why the orders should not be made". In view of order (3), on 29 May 2020 Dr Ghosh filed an application seeking a stay of the 15 April 2020 orders. On 17 August 2020, the Tribunal published its reasons for terminating the stay of its original orders such that the 15 April 2020 orders "operate[d] instanter". The Tribunal considered that the "show cause" procedure was within its powers and its jurisdiction, as opposed to a pre-emptive attempt at rectifying a perceived lack of procedural fairness to Dr Ghosh. In its reasons of 15 April 2020, the Tribunal also held that Dr Ghosh had "behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the Applicant, the Medical Council of New South Wales or the Tribunal." This was not alleged in any of the complaints made by the Commission. Dr Ghosh brought an appeal against Cole DCJ's decision of 25 March 2020, and both of the Tribunal's decisions on 15 April 2020 and 17 August 2020, pursuant to s 29(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), with the matter assigned to the Court of Appeal under s 48 of the Supreme Court Act 1970 (NSW). The principal issues on appeal were: 1. whether the Tribunal had power to proceed with the inquiry into the complaints on the papers; 2. whether the Tribunal erred in law by misapplying s 50 of the NCAT Act; 3. whether the Tribunal's "show cause" procedure was capable of curing any legal error in its conduct of the hearing; 4. whether the Tribunal erred in its substantive reasoning in respect of the complaints against Dr Ghosh; 5. whether the Tribunal erred in its consideration of "competence" to practice the medical profession; and 6. whether the Tribunal provided sufficient reasons in respect of complaint three. The Court held (Bell P, Payne JA and Stevenson J), granting leave to appeal insofar as it was required, allowing the appeal with costs and remitting the matter to the New South Wales Civil and Administrative Tribunal to be re-heard by a differently constituted panel: 1. Sections 165I and 165J of the National Law, providing for the giving of notice of an inquiry and for a right to attend and to be legally represented at the inquiry, are inconsistent with, and prevail over the Tribunal's power under s 50 of the NCAT Act to dispense with a hearing altogether. By reason of s 165J of the National Law, Dr Ghosh had the right to attend the inquiry into her alleged conduct in public and to be legally represented at that inquiry. Dr Ghosh was, by the orders made on 25 March 2020, deprived of that right. Compliance with these provisions was a precondition to the valid exercise of the Tribunal's power to hear the complaints: [109]-[112]). 2. The "show cause" procedure contemplated by the Tribunal's orders of 15 April 2020 had no express statutory foundation and was flawed. The die was cast and the Tribunal had already made up its mind. The show cause procedure was quite incapable of curing any injustice occasioned to Dr Ghosh and was not an available or appropriate substitute for her right to participate in a public hearing: [124]-[126]. 3. The statutory regime constituted by the National Law is disciplinary in nature and bears potentially very serious consequences for both the medical practitioner and the general public. Complaints in relation to the National Law are prosecuted by an independent prosecutorial body that particularises the complaints made against a medical practitioner with care. Such complaints should be treated with care. That did not occur in the present case: 1. In respect of complaint six, the correct complaint was not dealt with; 2. this should have been obvious to the principal author of the reasons; 3. the basic errors, whether they be characterised as "word processing errors" or otherwise, should have been obvious to the other members of the Tribunal who should not join in reasons without carefully reading and considering them even if they have not had principal carriage of drafting them; 4. albeit relating to the wrong complaint, the purported "reasoning" process was quite inadequate: [149]-[150] 1. It was not open to the Tribunal to find complaint seven made out on the basis that Dr Ghosh was "suffering a chronic mental or personality disorder", without being satisfied that she suffered from schizophrenia or a psychotic disorder due to a medical condition and/or a neurocognitive disorder. The requirements of procedural fairness required that Dr Ghosh be given an opportunity to answer the complaint as characterised by the Tribunal. No such opportunity was given: [156]-[165] (the Court). New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 213, referred to. 1. The Tribunal's conclusion that Dr Ghosh behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the Applicant, the Medical Council of New South Wales or the Tribunal did not reflect a complaint made by the Commission and Dr Ghosh was given no opportunity to meet this allegation. The conclusion which was without notice and not supported by any reasoning was grossly unfair: [171]-[172]. 2. No Court or Tribunal should ever conclude that a person has "behaved in a dishonest, vindictive and retaliatory manner" without such matters being clearly alleged and closely particularised, and without fully exposing the Court or Tribunal's reasoning process. This is not an observation as to "best practice". It goes to a basic duty and obligation imposed on Tribunal members by s 165M of the National Law: [173]. 3. The Tribunal's reasons for its conclusion in respect of complaint 8, that Dr Ghosh was "not competent … to practise as a medical practitioner", did not satisfy the minimum characteristics that a Tribunal's reasons must possess. They did nothing more than repeat the complaint, assert without reasoning that it had been made out, referred to the statutory provision, repeated the assertion that the charge had been made out and further repeated the conclusion in the words of the statutory provision. Ipse dixit reasoning of this character does not constitute a proper discharge of the Tribunal's obligations under s 165M of the National law, s 62 of the NCAT Act or the general law: [177]. New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 213, referred to. 1. In respect of the allegation in complaint three that Dr Ghosh had provided "false and/or misleading information", it was neither sufficient nor satisfactory for the Tribunal simply to recite that the material before it led to its satisfaction that the complaint was made out. Dr Ghosh was entitled to details of the Tribunal's decision as required by s 165M of the National Law: [183].

(2019) 100 NSWLR 578

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