Ghosh v Health Care Complaints Commission

Court of Appeal (NSW)|2022-11-03|Before: Ward P, Adamson J, Prof P, Morris AM, Professor P

Solicitors: HWL Ebsworth (Appellant) Health Care Complaints Commission (Respondent) File Number(s): 2021/314253 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Health Care Complaints Commission v Ghosh [2021] NSWCATOD 162 Date of Decision: 13 October 2021 Before: Balla ADCJ, Principal Member; Dr G Yeo, Senior Member; Prof P Morris AM, Senior Member; Dr C Berglund, General Member File Number(s): 2019/251131

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] By amended complaint filed 12 May 2021, the Health Care Complaints Commission (the Commission) commenced proceedings in the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) seeking disciplinary findings and orders with respect to Dr Ratna Ghosh (the appellant), an unregistered medical practitioner. The Tribunal was constituted by Balla ADCJ (the senior judicial member), Dr G Yeo, Senior Member, Professor P Morris AM, Senior Member and Dr C Berglund, General Member. Two health professionals were required to be on the Tribunal: s 165B(2) of the Health Practitioner Regulation National Law (NSW) (National Law). It was accepted that Dr Yeo, a general practitioner, and Professor Morris, a psychiatrist, fulfilled this statutory requirement. On 13 October 2021, the Tribunal gave reasons and made orders by majority (Balla ADCJ, Dr Yeo and Dr Berglund). The orders included an order cancelling the appellant's registration as a medical practitioner. Professor Morris dissented and found that the appellant should be permitted to practise medicine subject to conditions. His dissenting view was based, to some extent, on impressions he formed of the appellant during the hearing and a diagnosis he purported to make based on those observations. The two principal issues on appeal were: (1) whether the majority of the Tribunal was in error in failing to have regard to, and address in its reasons, the reasons of the dissenting member, Professor Morris; and (2) whether the majority of the Tribunal's finding that the appellant had a "negative attitude to the protective regime" had erroneously influenced its adverse credit findings against the appellant. The Court held (Adamson J, Ward P and Basten AJA agreeing), refusing leave to appeal insofar as it was required, otherwise dismissing the appeal and ordering the appellant to pay the Commission's costs of the appeal: (1) Leave to appeal is not required on the first issue as an alleged failure to consider a mandatory relevant consideration is an error of law: [49] (Adamson J); [1] (Ward P); [3], [7] (Basten AJA). Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 applied. (2) The reasons of Professor Morris were not evidence which the majority was required to take into account or address in their reasons. Reasons for decision of a dissenter are the end product of reasoning and do not constitute evidence. Nothing in s 165M of the National Law requires dissenting reasons to be addressed in the Tribunal's reasons: [53] (Adamson J); [1] (Ward P); [7]-[8] (Basten AJA). (3) The role of the Tribunal is arbitral and adjudicative. It is required to choose between competing arguments and opine on the correctness of medical evidence, not to form its own opinions on medical questions by applying its own medical expertise. Professor Morris' qualifications as a psychiatrist did not give his reasons the status of evidence: [57] (Adamson J); [1] (Ward P); [10]-[11] (Basten AJA). Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 distinguished. (4) It was open to the Tribunal to infer that the appellant's negative attitude explained, at least in part, why she was not being frank and forthcoming to the Commission or the Tribunal. The appellant's attitude to the disciplinary process was germane to her obligation of candour to the Commission and the Tribunal: [65] (Adamson J); [1] (Ward P); [3] (Basten AJA). Lee v Health Care Complaints Commission [2012] NSWCA 80 considered.

JUDGMENT

WARD P: I have had the advantage of reading in draft the reasons of Adamson J with which I agree. I also agree with the orders her Honour has proposed.
BASTEN AJA: The appellant seeks to challenge orders made in the Civil and Administrative Tribunal in upholding various complaints concerning her conduct as a registered medical practitioner. Although she was not registered at the time of the Tribunal's orders, the Health Practitioner Regulation National Law (NSW) (National Law) permitted the Tribunal to cancel her registration, as if she were still registered, in circumstances where it was satisfied that, had she been registered, it would have made such an order: National Law, s 149C(4).
I agree with the orders proposed by Adamson J. Subject to the following observations, which do not derogate from the conclusions, I also agree with Adamson J's reasons.

Failure to address dissenting reasons

The first matter concerns the status of the reasons of a dissenting member in the Tribunal. The appellant asserted that the majority erred in law in failing to have regard to the reasons of the dissenting member. There was no obligation on the majority to take that step; but why that is so requires reference to the nature of the obligation to provide reasons.
The reasons of the dissenting member formed part, though not the operative part, of the Tribunal's reasons for its orders. Each member of the Tribunal is required to reach a decision with respect to a complaint before it and articulate reasons for that decision. That may be done jointly or individually, but it is not open to a member not to undertake those functions.
The reasons delivered are taken to be the reasons of the member or members. It is not to be assumed by a court conducting an appeal or judicial review that the Tribunal relied on other unarticulated reasons. If the reasons do not support the decision, that decision may be set aside. However, there can in principle be a difficulty where the appeal is limited to legal error, but the reasons do not disclose that a result which appears to be unjustified involved legal error. One solution to that difficulty is that adopted by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation, [1] namely to infer that, if the result appears to be unreasonable on the supposition that the decision-maker addressed the right question, took into account mandatory considerations and no irrelevant considerations, then it may be concluded that the supposition is false and the was decision not in fact made according to law. An alternative approach, where the Tribunal is obliged to give reasons for its decision, is to conclude that, if the reasons do not demonstrate that the Tribunal has properly completed its function according to law, it has failed to provide legally adequate reasons. [2] In this case there was an obligation to give reasons: National Law, s 165M(2). The standard of adequacy of reasons turns upon their relevant purpose, which is to demonstrate that no legal error has been made in reaching the decision. [3]
It is true that the Tribunal would err in law if it failed to take account of a mandatory consideration in reaching its decision. However, the reasons (or part of the reasons) for its decision cannot sensibly be described as a matter to be taken into account in reaching the decision. Rather, the Tribunal is obliged to have regard to the precise nature of the complaint before it, and the evidence and other material presented to it by the parties. While Tribunal members are expected to assess that material, at least in part, by reference to their own training and experience, they are not entitled to rely on other material which may be adverse to one party, without disclosing that fact and giving the parties an opportunity to be heard.
There is no obligation to formulate tentative conclusions which must then be disclosed, potentially creating an endless cycle of procedural fairness obligations. Equally, whilst each member of the Tribunal must have regard to all the evidentiary material and submissions, he or she is not required to have regard to any views, tentative or otherwise, reached by other Tribunal members. Accordingly, the allegation of error on the part of the majority in failing to take into account (and address in their reasons) the views of the dissenting member was based upon a fallacious view as to the function of reasons and the scope of mandatory considerations.
In these circumstances, it is neither necessary nor appropriate for an appellate court (or a court conducting judicial review) to speculate as to whether one member of the Tribunal took into account the views of another. That is not only because there was no obligation to do so, but because the internal workings of the Tribunal are protected from disclosure by Sch 2, cl 4 of the Civil and Administrative Tribunal Act 2013 (NSW), which confers on members of the Tribunal "the same protection and immunities as a Judge of the Supreme Court". Such questions could not arise in relation to the conduct of a collegiate court, as senior counsel for the appellant readily conceded.

Functions of medical member of Tribunal

The second matter relates to the opinion of the dissenting member. He appears to have used his psychiatric training and experience to reach a diagnosis as to the mental condition of the practitioner, based upon her presentation in the witness box. Indeed, it was her case in this Court with respect to the obligation of the majority to take into account the opinion of the dissenting member, that he had reached his own diagnosis. But, if that is what occurred, it reveals a mistaken view as to the member's function. While it true that at least two members of the Tribunal were required to be medical practitioners, and their professional training and expertise constituted an institutional characteristic of the Tribunal, that professional expertise was to be put to effect in assessing the evidence and other material placed before the Tribunal by the parties. [4] Whether the appellant suffered an impairment affecting her ability to practise medicine was an element of the case. However, psychiatric diagnosis was a matter to be addressed on the basis of expert evidence. The function of assessing the quality and reliability of an expert opinion is, in principle, different from forming one's own expert opinion based on the presentation of a witness in the course of giving evidence. [5]
Judges may also gain familiarity with particular areas of medicine by hearing similar cases over many years. It is, nevertheless, not appropriate for such a judge to make findings based upon his or her own assessment of the circumstances without relevant expert evidence capable of supporting the conclusion. [6] That principle is not subverted by the circumstance that the dissenting member was a psychiatrist with expertise in forming psychiatric diagnosis. If not a mistaken view of his function, it was certainly wrong in principle for the dissenting member to rely upon such an opinion without giving notice of his intention to the Commission, which had presented evidence supporting a different conclusion. For present purposes, it is sufficient to say that had the majority relied upon the opinion of the dissenting member, it would have been a legal error on its part.
ADAMSON J: Dr Ratna Ghosh (the appellant) is an unregistered medical practitioner. The defendant, the Health Care Complaints Commission (the Commission), commenced proceedings in the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) against the appellant by amended complaint filed on 12 May 2021.
The Tribunal was constituted by Balla ADCJ, Principal Member (the senior judicial member), Dr G Yeo, Senior Member, Professor P Morris AM, Senior Member and Dr C Berglund, General Member. It was common ground that Dr Yeo (a general practitioner) and Professor Morris (a psychiatrist) were the two health professionals; and Dr Berglund was the lay member. It was also common ground that the composition of the Tribunal conformed with the statutory requirements (set out later in these reasons).
On 13 October 2021, the Tribunal gave reasons and made orders (by majority, Balla ADCJ, Dr Yeo and Dr Berglund, Professor Morris contra): Health Care Complaints Commission v Ghosh [2021] NSWCATOD 162. The Tribunal's orders included the following: 1. Pursuant to s 149C(1)(a) and (b) and s 149C(4) of the Health Practitioner Regulation National Law (NSW) (National Law), the registration of Dr Ghosh, if she were still registered, is cancelled. 2. Pursuant to s 149C(7) of the National Law, Dr Ghosh cannot seek a review of the Orders made by the Tribunal for a period three years from the date hereof. 3. Pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these Orders.
Professor Morris' dissenting view was that Dr Ghosh ought be permitted to practise medicine subject to conditions. His view was, to some extent, based on impressions he had formed of her in the course of the three-day hearing and the diagnosis which he purported to make of her as a consequence of his observations.
By further amended notice of appeal filed on 13 July 2022, the appellant appeals, or, if leave be required, seeks leave to appeal to this Court on the following grounds: "1 The tribunal erred in finding that the appellant's 'negative attitude to the protective regime' (reasons at [480] and [512]) impacted on her reliability and on the application of conditions. 2 The tribunal erred in finding (reasons at [494]) that, in the main, the tribunal did not accept the evidence of the appellant. 3 The tribunal erred in finding (reasons at [508]) that the appellant was suffering from an impairment within the meaning of s 5 of the National Law and was not competent to practice. 4 The tribunal erred in finding (at [510]-[511]) that the conditions proposed by the appellant should not be imposed. 5 The tribunal erred in failing to fashion its own conditions for the appellant, such as the conditions set out by the dissentient member (at reasons at [618] to [631]). 6 The tribunal erred (at reasons [511]) in finding that it did not accept that the imposition of the conditions sought by the appellant would have, in any event, adequately protected the public. There was no evidence before the tribunal going to this. 7 The tribunal erred in finding (reasons at [514]) that evidence showed that the appellant's behavioural issues included inappropriate conversations with patients escalating quickly to anger and confrontation and that his would not be addressed or controlled by indirect supervision. This finding was not reasonably open to the tribunal on the complaint before it and there was no evidence before it that supervision would not address it. 8 The tribunal failed to take into account relevant matters it was required to take into account, namely the mitigating circumstances of the complaint (reasons at [524] and [528] to [561]). Alternatively, the tribunal failed to meaningfully engage with these matters. 9 The tribunal erred in finding (reasons at [420]) that the appellant had a personality disorder. The tribunal failed to take into account relevant matters it should have taken into account as set out in the dissent opinion (at [525] and [564] to [614]). 10 The tribunal failed to find that the appellant was suffering an adjustment disorder with disturbance of conduct rather than a personality disorder (reasons at [609])."
The relief sought by the appellant included orders that the appeal be allowed, the whole of the Tribunal's decision be set aside and that the application before the Tribunal be dismissed.
In substance, the appellant made two challenges to the Tribunal's decision: first, that it failed to have regard to, and address in its reasons, the reasons of Professor Morris; and, second, that its finding that the appellant had a "negative attitude to the protective regime" had erroneously influenced its adverse credit findings and that, accordingly, it had erroneously concluded that she was not reliable. The latter challenge was said to affect its fact-finding function. These challenges and the individual grounds will be addressed in more detail later in these reasons.

Relevant statutory provisions

A decision for the purposes of the National Law is, relevantly, a "profession decision": cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
It was common ground that the orders made by the Tribunal on 13 October 2021 constitute a "profession decision". Thus, the appellant may appeal to this Court as of right on any question of law, or with the leave of the court, on any other grounds: cl 29(4)(b). An appeal involving a medical practitioner is a "non-lawyer appeal" within the meaning of cl 29. The following paragraphs of cl 29 apply: "(7) Non-lawyer appeals The court in a non-lawyer appeal may - (a) 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 (b) 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. (8) In determining a non-lawyer appeal, 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 any one or more of the following - (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) 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."
Section 165B(1)(a) of the National Law relevantly provides that if a complaint is referred to the Tribunal, the Tribunal must inform the Council for the health profession of which the practitioner is a member of the referral. The Council for the health profession must select three persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings: s 165B(1)(b) of the National Law.
Pursuant to s 165B(2), the Tribunal in the present case was required to be constituted by a Division member who is a senior judicial officer (which is defined as including a District Court Judge); two health practitioners who are registered in the same health profession as the health practitioner the subject of the inquiry; and a lay person. The term "health profession" is defined to include a recognised specialty in various professions, including "medical": s 5.
Section 165B(3) provides that "if the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner … the subject of the inquiry or hearing."
Section 5 of the National Law defines "division", of a health profession, as a part of a health profession for which a Division is included in the National Register kept for the profession. An evidentiary certificate which was tendered before the Tribunal nominates the category of registration for the appellant as being "Medical Practitioner (General and Specialist - General Practice)" and records that her registration history from 1 July 2010 was that she was registered from 1 July 2010 until 1 November 2018.
Section 3A of the National Law provides: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
The term "professional misconduct" is defined, in New South Wales, by s 139E of the National Law as meaning "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 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."
The term "impairment" is relevantly defined in s 5 of the National Law as meaning that "the [registered health practitioner] 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".
Sections 139B and 139C set out the conduct which constitutes unsatisfactory professional conduct of registered health professionals generally and those in the medical profession.
Section 165M of the National Law requires the Tribunal, after making a decision on an inquiry to give a "statement of decision" to the parties and to the relevant health profession Council, which must "set out any findings on material questions of fact; refer to any evidence or other material on which the findings were based; and give the reasons for the decision."
Section 57 of the CAT Act makes provision for the circumstance where, as in the present case, the Tribunal is not unanimous. It provides: "57 Tribunal divided in opinion (1) If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal. (2) However, a question of law arising in proceedings in which the Tribunal is constituted by one or more members who are Australian lawyers is to be decided in accordance with the opinion of the member or the majority of the members who are Australian lawyers. (3) If the members are equally divided in their opinion, the opinion that prevails is - (a) in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers - the opinion of the presiding member, or (b) in proceedings in which the presiding member is not an Australian lawyer but one or more of the other members sitting are Australian lawyers - (i) on a question of law - the opinion of the member who is an Australian lawyer (or the member with the greatest seniority who is an Australian lawyer), or (ii) on any other question - the opinion of the presiding member. (4) In this section, question of law includes the question whether a particular question is a question of law." [Emphasis in original.]
It follows from this provision that the decision of the majority (which was not a decision on a question of law) is taken to be the decision of the Tribunal: s 57(1).
Schedule 2, cl 4 of the CAT Act provides that "[a] member [of the Tribunal] has, in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court."

The background to the complaint

The amended complaint set out the following background, which was not in dispute: "The practitioner completed a Bachelor of Medicine/Bachelor of Surgery in 1989 from the University of Western Australia. She was first registered as a medical practitioner on 17 January 1992. In 2011, the practitioner became a fellow of the Royal Australian College of General Practitioners (RACGP). The practitioner worked as a paediatric registrar in a number of hospitals in Western Australia and NSW following her registration. In around 2002-2003, the practitioner started her own general medicine practice in Charlestown NSW where she worked until early 2009. The practitioner 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 the practitioner also worked as a workplace rehabilitation provider for the ORS Group in the "Fit for the Job" program. In February 2017 the practitioner commenced work as a general practitioner at Wallsend Medical General Practice where she worked until September 2017."

Previous matters concerning the appellant

It was common ground in this Court and in the Tribunal that previous proceedings in which the appellant was involved (including Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 and Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCCA 353) did not bear on the present complaint or appeal as the amended complaint was a distinct complaint.

The complaints

The Commission made eight complaints against the appellant. Complaints 1-5 made allegations about the appellant's conduct. The remaining complaints alleged that the conduct amounted to professional misconduct (complaint 6), that the appellant has an impairment (complaint 7) and that she does not have the mental capacity to practise medicine (complaint 8).
The eight complaints and the extent to which each was made out are set out in the following table. Number Complaint Finding of Tribunal 1 The appellant prescribed an antibiotic containing penicillin to a baby (patient A) when she had been told by A's parents that A had an allergic reaction to penicillin. Made out except that the Commission failed to prove that patient A was allergic to penicillin, The appellant refused to give patient B, who was pregnant, the whooping cough vaccine, gave incorrect advice, made inappropriate comments about the vaccine and did not perform antenatal checks. Made out except that the Tribunal found that it was unnecessary to determine whether the appellant had inappropriately refused to give patient B the vaccine. The allegation that the appellant was required to perform antenatal checks was not made out. 2 The appellant inappropriately prescribed a number of medications to patient C, one of her close relatives, failed to arrange for patient C to see an independent general practitioner and failed to make a record of the Sch 4 restricted substances which she prescribed to patient C. Made out except that the particular which alleged that Sch 4 restricted substances, Lomotil and Ponstan had been prescribed was not made out as these substances were not shown to be Sch 4 restricted substances. 3 The appellant treated patient C contrary to the Guidelines of the Medical Council and the Medical Board of Australia, inappropriately submitted a Mental Health Treatment Plan to Medicare, billed Medicare for services to patient C contrary to the Medicare Benefits Schedule and provided inappropriate care to patient C. Made out. The appellant prescribed medications for herself and patient D (a close relative) in patient C's name. Not made out. The appellant provided deliberately false and misleading information to the Medical Council when she denied having posted on the internet anonymous reviews of two other doctors and criticised Dr Newnham, a psychiatrist who gave expert evidence before the Tribunal. Made out. 4 The appellant did not make an adequate record of her consultation with patient B and did not maintain any record of her treatment of patient C. Made out. 5 The appellant did not comply with a notice served under s 34A of the Health Care Complaints Act 1993 (NSW) which required her to produce documents relating to her care of patient C and failed to provide a reasonable excuse for not producing those documents. Made out. 6 Complaints 1, 2, 3, 4 and 5 amount to professional misconduct. Made out. 7 The appellant has an impairment as defined by s 5 of the National Law. Made out. 8 The appellant lacks the mental capacity to practise as a medical practitioner. Made out.

Although the appellant challenges the ultimate findings with respect to complaints 6, 7 and 8, no challenge was made to the underlying factual findings which resulted in complaints 1-5 having been made out.

The Tribunal's reasons

A majority of the Tribunal (all members other than Professor Morris) gave joint reasons. Professor Morris published separate reasons for his opinion that the appellant was not guilty of professional misconduct, that her registration ought not be cancelled and that it was sufficient that conditions be imposed on her right to practise. Professor Morris addressed the majority's reasons at length. The majority did not refer to Professor Morris' reasons at all. For the reasons given below in considering grounds 8 and 9, I consider that there was no obligation for the Tribunal (the majority) to refer to, much less address, the minority's reasons in its own reasons.
It is not necessary to do otherwise than summarise the Tribunal's reasons, and that of the dissenter, in so far as they bear on the grounds.
The Tribunal made factual findings relating to complaints 1-5, which are summarised in the table above.
On the question of impairment, the Tribunal reviewed the expert medical opinion which had been before it (and in particular that of Dr Samuels, a forensic psychiatrist relied on by the Commission) and concluded, at [420]: "Section 5 of the National Law requires us to determine whether Dr Ghosh has a mental impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise as a doctor. As we have already said, we are not required to arrive at a psychological label when making this determination, but rather determine whether Dr Ghosh has a mental impairment which is prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner. The weight of the expert evidence, with the exception of Dr Saker, is to describe a constellation of behaviours exhibited by Dr Ghosh which have caused each of the psychiatrists to arrive at varying diagnoses, although the majority lean towards a diagnosis of a Personality Disorder. In the next section of these Reasons, we discuss that constellation of behaviours and how they impact on her capacity to work as a doctor. We do not limit this to behaviour exhibited by Dr Ghosh in her interactions with patients. We find that Dr Ghosh has a mental impairment by reason of these behaviours."
The Tribunal addressed at length (at [443]-[494]) the Commission's submission that the appellant was not a credible witness. The Tribunal concluded, at [494]: "Based on these findings, we do not accept the evidence of Dr Ghosh unless it is corroborated by a contemporaneous document, the evidence of another reliable witness, or evidence given against her own interest."
In arriving at this conclusion, the Tribunal took into account the conduct in the third aspect of complaint 3 (that the appellant provided deliberately false and misleading information to the Medical Council when she denied having posted on the internet anonymous reviews of two other doctors). It said: "462 We are satisfied that Dr Ghosh was the author of the reviews relating to Dr Khan and his Practice. She denied on oath that she had created the reviews or caused them to be created. 463 This is not an insignificant issue - the denial of the posting of the review (on a previous occasion) is a ground of the Complaint. 464 We are satisfied that her denial in these proceedings significantly impacts on the reliability of the whole of her evidence."
In assessing the appellant to be an unreliable witness, the Tribunal also took into account her evidence about medication which she had prescribed before going on holidays; her (false) denial of having sent emails relating to Family and Community Services; and her evidence about prescribing Esomeprazole. When addressing the appellant's attitude to the disciplinary processes (which is the subject of the second main challenge to the Tribunal's orders), the Tribunal said: "Belief in the system 478 Dr Ghosh said in cross-examination to this Tribunal that the Health Care Complaints Commission had cancelled her registration in her absence without a hearing. When she was asked whether she believed that it was the Health Care Complaints Commission which had cancelled her registration, she replied that the Tribunal, in many cases, was just rubber stamping what the Health Care Complaints Commission had asked for. She said that this is the perception amongst doctors. 479 In addition we take into account Dr Ghosh's refusal to attend on Dr Samuels [an expert witness at the Tribunal] at the request of the Health Care Complaints Commission. We have set out the explanation she gave us when we considered Complaint Seven where she ultimately said she did not attend because the Health Care Complaints Commission had no jurisdiction over her as she was not registered. 480 We find that Dr Ghosh's negative attitude to the protective regime in all likelihood contributed to her failure to take seriously her obligation to answer questions fully. This, of course, impacts on the reliability of her evidence."
The Tribunal found that complaints 1-5 amounted to professional misconduct. It found that the appellant was not competent to practise and that there was no real likelihood of her becoming competent within three years. It placed little reliance on the appellant's assertion that she would comply with conditions.

The reasons of Professor Morris (who dissented)

Professor Morris, at [523]-[633] set out his reasons for not joining with the orders made by the majority. The reasons for his view are summarised at the commencement of his reasons, as follows: "523 P MORRIS AM: I gratefully adopt Acting Judge Balla's summary of the issues and the evidence in the majority report. However, I respectfully disagree with the majority on the interpretation of that evidence and the assessment of the fitness of Dr Ghosh to practise medicine. 524 First, in my view, and with respect, the majority has paid insufficient attention to the mitigating circumstances in this matter. Based on all the evidence, and taking into account those mitigating circumstances, I am unable to join in a finding of professional misconduct. In my opinion, the conduct amounts to unsatisfactory professional conduct but does not reach the higher threshold. 525 Second, in my view, and with respect, the majority has made an error in accepting that Dr Ghosh has a personality disorder and an underlying delusional disorder. In my view, and based on the psychiatric evidence presented, Dr Ghosh has a chronic adjustment disorder with disturbance of conduct (an exacerbation of personality traits) (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (DSM-5) at 309.3). This is a remediable condition that should respond to appropriate treatment. 526 I further conclude that because her psychiatric impairment is not nearly as great as the majority find, Dr Ghosh is capable of practising under certain conditions. 527 Therefore, I do not agree that her registration is cancelled for three years. I believe her medical registration should be reinstated and that Dr Ghosh could practise under a set of conditions as outlined later in this report."
In substance, Professor Morris agreed with all the findings of primary fact made by the majority. His use of the term "mitigating circumstances" reflects his opinion that the conduct as found by the majority was not as bad as the majority considered it to be. This is the type of difference of opinion which is contemplated by s 57 of the CAT Act.
Professor Morris was critical of Dr Samuels' opinion, and in particular that it had been arrived at notwithstanding that Dr Samuels had not assessed the appellant (as she had refused to attend the consultation). Professor Morris said, of present relevance: "609 As the only psychiatrist on the panel, I consider I am bound to dissent from their conclusions in this respect. In my view the evidence, in this case, supports a diagnosis of adjustment disorder with disturbance of conduct rather than a personality disorder. This has significant implications for treatment and the capacity of Dr Ghosh to continue to practise under conditions. 610 I consider that Dr Ghosh does have an impairment at this time. This is due to her adjustment disorder with disturbance of conduct and the way that it has resulted in the exacerbation of personality traits that interferes with her interpersonal relationships with patients and professional colleagues. 611 I do not consider her impairment permanent or unresponsive to treatment. …"

Whether leave is required

The failure to take into account a mandatory relevant consideration is an error of law and therefore an alleged failure is an appeal on a question of law: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 (Mason J); [1986] HCA 40 (Peko-Wallsend). Thus, leave to appeal is not required in respect of ground 8 and the second part of ground 9. Otherwise, the grounds raise factual matters which can only be raised with leave.

Ground 8 and the second part of ground 9: alleged failure to take into account the reasons of Professor Morris

Ground 8 and the second part of ground 9 can be addressed together. In substance, Mr Robinson SC, who appeared with Mr Jones for the appellant, submitted that the dissenting reasons constituted a mandatory relevant consideration and that the Tribunal was in error for not taking them into account and not addressing them expressly in its reasons. He relied on the circumstance that Professor Morris was a qualified psychiatrist and, as indicated by his reasons, had made a diagnosis of the appellant in the course of the hearing (notwithstanding that he had not had a consultation with her). He submitted that it was an error of law for the majority not to give express consideration to Professor Morris' reasons in its own reasons.
Mr Robinson accepted that there was nothing in the CAT Act or the National Law which required the Tribunal to have regard to dissenting reasons, much less was there a requirement that the majority was required to address the dissenting reasons in the majority reasons. However, he relied on Peko Wallsend at 39-41 in support of the proposition that both of these requirements were met in the present case because they were necessarily implied by the subject matter, scope and purpose of the CAT Act and the National Law. He submitted that there was little point in having a psychiatrist as a member of the Tribunal if the other members of the Tribunal were not obliged to take account of that psychiatrist's expertise.
Mr Robinson also referred to the passage in Mason J's judgment in Peko Wallsend at 44-45 where his Honour said: "Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."
I regard Mr Robinson's submissions as at odds with principle. In substance, Mr Robinson has elided the distinction between evidence, which the Tribunal must take into account and, if significant, address in its reasons, and the reasons for decision of a dissenter, which are not evidence but which are, rather, the end-product of the process of hearing and coming to a decision. While I can accept that the majority was obliged to have regard to the reasons of Professor Morris (and I infer that it did), it was not obliged to address them in its reasons since they constituted neither evidence before the Tribunal nor submissions made by the parties. Section 165M of the National Law does not identify, expressly or by necessary implication, dissenting reasons as something which is required to be addressed in the Tribunal's reasons.
Professor Morris' impression of the appellant was a matter which he was entitled to express in his reasons insofar as it bore on the issues in the case. That Professor Morris happened to be a psychiatrist did not qualify him to add to the expert evidence before the Tribunal by his own assessment or purported diagnosis of the appellant.
Indeed, in purporting to make a diagnosis of the appellant, it would appear that Professor Morris had stepped outside his role as a member of the Tribunal, which was confined to a consideration of the evidence and submissions before the Tribunal for the purpose of determining whether the complaints had been made out and, if so, the appropriate disciplinary action which ought be taken to protect the public.
The role of a medical practitioner on the Tribunal is to be distinguished from the role of medical assessors under different legislation, such as was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot). Where the decision-making body is a Medical Panel, such as that constituted under Part IV of the Accident Compensation Act 1985 (Vic) (as in Wingfoot), its role is, as described by the High Court at [47], as follows: "The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." [Footnotes omitted.]
By contrast with the Medical Panel in Wingfoot, the Tribunal in the present case is "arbitral and adjudicative". It is to "choose between competing arguments" and "to opine on the correctness of other opinions on the medical question". It is not "to form and give its own opinion on the medical question by applying its own medical experience and its own medical expertise." Once it is accepted that Professor Morris' reasons are no more than that, the majority was not required to address them in its reasons. His qualifications did not convert his reasons into the "most current material available to the decision-maker", in the sense in which those words were used by Mason J in the passage set out above from Peko Wallsend.
This is sufficient to address Mr Robinson's submissions on this question. Further, the consequences of accepting his submission provide a further reason for rejecting it. He accepted that, before the majority could take into account the reasons of the minority, procedural fairness would require the reasons of the minority (or the gist of these reasons) to be provided to the parties to give them an opportunity to be heard, particularly on the in-Tribunal diagnosis which Professor Morris purported to make. This would lead to another hearing in the course of which it may be necessary to recall expert witnesses, such as Dr Samuels, in order that Professor Morris' diagnosis could be put to him for his response. There would also be a risk of an application that Professor Morris recuse himself on the grounds of apprehension of bias.
The present case is to be distinguished from a case where an impression formed by a tribunal of fact in the course of a hearing may be required to be put to the parties as an aspect of procedural fairness: Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 267-269 (Brennan, Dawson, Toohey and Gaudron JJ); [1992] HCA 36; see also, Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [2]-[4] (Giles JA). An expert diagnosis of a mental illness is in a separate category from such impressions.
For these reasons, while leave is not required for ground 8 or the second part of ground 9, these grounds have not been made out and are based on an incorrect premise.

The challenge to the Tribunal's assessment of the appellant's credibility based on her "negative attitude to the protective regime": the basis of grounds 1 and 2

Mr Robinson submitted that the Tribunal's finding that the appellant had a "negative attitude to the protective regime" (which was not disputed) skewed its assessment of the appellant's credit and impugned its fact-finding. He contended that a "practitioner should be judged on what they say and what they do, but not on any so-styled 'negative attitude'." Mr Robinson further submitted that it was, in all the circumstances, "hardly surprising" that the appellant had such a negative attitude given the previous decisions made by the Tribunal (which have been overturned by this Court) referred to above.
This submission forms the basis of grounds 1 and 2. It does not amount to a question of law and therefore the grounds associated with this challenge require leave.
Mr Robinson submitted that there was a denial of procedural fairness as the Tribunal at no stage warned that this alleged attitude would sound in an adverse finding as to the appellant's credit or affect its view about whether she would comply with conditions of practice. When it was pointed out to him that no such ground had been alleged, I understood that this submission was not pursued. In any event, no application was made for leave to amend the grounds of appeal.
As set out above, the Tribunal's consideration of the appellant's credit was detailed, considered and addressed several factors, of which her negative attitude to the protective regime was only one. Mr Robinson did not challenge the finding that the appellant had a negative attitude. Indeed, he sought to justify it by reference to her earlier successes on appeal (referred to above).
It was open to the Tribunal to infer that the appellant's negative attitude explained, at least in part, why she was not frank and forthcoming to the Commission or the Tribunal. Far from being irrelevant to the Tribunal's consideration, the appellant's attitude to the disciplinary processes was germane to her obligation of candour to the Commission and the Tribunal: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [62] (Barrett JA, Macfarlan JA and Tobias AJA agreeing); see also Bowen-James v Walton [1991] NSWCA 29, where the Court of Appeal (Samuels, Meagher and Handley JJA), when rejecting the proposition that a medical practitioner had a right to silence in disciplinary proceedings referred, at 7, to the "public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients."
I am not persuaded that this challenge warrants leave being granted for grounds 1 and 2.

The remaining grounds

My reasons for refusing leave in respect of the remaining grounds can be shortly stated.
As to ground 3, the Tribunal explained in the reasons extracted above, why it considered the appellant to suffer from an impairment, as defined by the National Law. It was not necessary for the Tribunal to select a formal diagnosis as the basis for its finding since this was not required by the National Law. The finding was open to the Tribunal and no error in fact-finding has been demonstrated.
As to grounds 4, 5 and 6, the Tribunal's finding that the appellant was not fit to practice and that conditions on her practice would not make her fit was open to the Tribunal. As no error has been shown, there is no warrant to grant leave to appeal. I note for completeness that although ground 6 appeared to raise a "no evidence" ground (which is a question of law), properly construed it does not, since the Tribunal's conclusion that conditions would be insufficient was not a matter of fact about which there could be evidence, but rather an evaluative judgment by the Tribunal itself, arrived at as a result of a consideration of the evidence as a whole.
It is plain from the Tribunal's reasons that it was very concerned about the appellant's conduct, particularly with respect to her patients and disciplinary processes and was conscious of the need to protect the public from the appellant. As this Court said in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] (Meagher JA, Basten JA and Emmett JA agreeing): "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
As to ground 7, Mr Robinson argued that if the appellant obtained treatment from a psychiatrist, this would be sufficient, together with indirect supervision to overcome the appellant's behavioural issues. The Tribunal's view that such conditions would not be sufficient was a conclusion open to the Tribunal on the basis of its unchallenged findings as to the appellant's conduct, including with respect to her patients. The order to be made following a finding of professional misconduct is a discretionary one and can therefore only be challenged on the basis of error in the sense of House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85] (Basten JA), approved in Lee v Health Care Complaints Commission at [19].
The first part of ground 9 requires leave. Contrary to the wording of the ground, the Tribunal did not find that the appellant had a personality disorder, as appears from [420] of its reasons, extracted above. The Tribunal merely found that the weight of the evidence was to that effect. For the reasons given above, in finding "impairment", the Tribunal was not obliged to make a finding of a definitive diagnosis and did not do so.
Ground 10, in effect, involves the contention that the Tribunal was in error in not accepting the in-Tribunal purported diagnosis made by Professor Morris. For the reasons given above, it was not bound to make a definitive diagnosis. Further, none of the evidence before the Tribunal supported such a diagnosis. In these circumstances, it would have been an error for the Tribunal to make the finding for which the appellant contended in ground 10.

Proposed orders

For the reasons given above, I propose the following orders: 1. Refuse leave to appeal in respect of grounds 1, 2, 3, 4, 5, 6, 7, 10 and the first sentence of ground 9. 2. Otherwise dismiss the appeal. 3. Order the appellant to pay the respondent's costs of the appeal.

Endnotes

(1949) 78 CLR 353 at 360; [1949] HCA 26.
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [28].
Wingfoot at [55].
Kalil v Bray [1977] 1 NSWLR 256 at 262 (Street CJ, Moffitt P and Glass JA agreeing).
Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [41] (Meagher JA, McColl and Ward JJA agreeing) (practitioner appearing for himself).
Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 at [34]-[37], [62]-[65] (Beazley JA).

Amendments 11 November 2022 - Citations inserted - coversheet 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: 11 November 2022

(2020) 104 NSWLR 107

(2020) 102 NSWLR 303

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