Ghosh v Medical Council of New South Wales

Court of Appeal (NSW)|2019-11-07|Before: Brereton JA

Background

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

The complaint

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

The s 150 decision

The Council's delegates identified the relevant questions for them as being: 1. Does the practitioner's behaviour raise a concern that the practitioner could be impaired? 2. If so, what work is the practitioner likely to undertake in the near future where that impairment may impact the practitioner's application of the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected? 3. If it is concluded that the practitioner does pose a risk to the health or safety of the public and/or that the public interest warrants action being taken, then: 1. Are there conditions that could be imposed to minimise that risk? 2. If not, should the practitioner's registration be suspended?
The delegates answered the first question by saying that they were convinced that there was a high possibility that Dr Ghosh was impaired and an urgent need for proper psychiatric review. They noted that Dr Ghosh demonstrated "a reckless disregard for information provided by her patients" and, if the alleged complaints were true, had acted impulsively and aggressively on several occasion in her clinical practice, appearing to "lack judgment in what she says about and to other doctors and her patients". After referring to two specific incidents involving vulnerable patients - one being a child who may have been prescribed amoxycillin when the parents alleged that they had communicated that the child was allergic to penicillin, and the other a pregnant woman whom Dr Ghosh had forcefully counselled against a Boostrix injection when such an injection was regarded as best practice - the delegates said that it was clear to them that Dr Ghosh did not have the capacity to communicate clearly with her patients and her communication style actively impeded that communication; that it was also concerning that she consistently commented on the ethnic, religious, racial and class backgrounds of her patients and colleagues; that she seemed to lack self-awareness; and that her manner and communication style impeded her capacity for safe work practices.
As to the second and third questions, the delegates found that in the light of Dr Ghosh's intention to continue to practise as a general practitioner, which required appropriate communication skills and patient understanding, and her poor insight into how her manner and communication style impacted her capacity to effectively deal with clients' clinical issues, there were no conditions that would minimise the risk, and her registration should be suspended until her mental health was assessed, as there was a strong risk that she may fail to treat a patient with appropriate clinical care due to her poor communication and understanding skills.

The s 150A decision

On Dr Ghosh's application for a review under s 150A, the delegates identified that the central issue was whether there had been a change in Dr Ghosh's circumstances that justified the setting aside or variation of the decision to suspend her registration. Since the s 150 proceedings, Dr Ghosh had been subject to psychiatric reviews by Dr O'Connell (qualified for the Council), Dr Davies (a former treating psychiatrist of Dr Ghosh), Dr Bench (independent expert qualified by Dr Ghosh), and Dr Newnham (appointed by the Council). Oral evidence was given by Dr Ghosh, Dr Newnham (who opined that Dr Ghosh had a psychotic illness), and Dr Bench (who disagreed, but accepted that he had not been provided with all relevant information). The delegates concluded that while there was disagreement among the psychiatrists as to the nature of Dr Ghosh's impairment, a majority did identify significant deficits in her behaviour. They took the view that while not able to conclude (as Dr Newnham provisionally opined) that she had schizophrenia, a majority of views supported some kind of impairment in the form of a personality disorder, and probably suffered from a delusional disorder. The delegates concluded: The question for the delegates, however, is not what kind of impairment does Dr Ghosh have, rather the question was have these psychiatric reports provided evidence that significantly changes the circumstances that led to Dr Ghosh's suspension in December 2017. The answer to that question is no. At the last s150 hearing the order was made with the likelihood of a diagnosis of impairment in mind and since that hearing that diagnosis has, we believe, been confirmed.
Although not satisfied that there was any relevant change in circumstances, the Council substituted the non-practising condition for the suspension because of what was perceived to be a potential lacuna in the operation of a suspension if the matter were referred under to an Impaired Registrants Panel, whereas there was no such potential lacuna in the case of a condition.

The NCAT decision

As has been noted, Dr Ghosh's appeal to NCAT was brought against both the s 150 decision and the s 150A decision, pursuant to both s 159 (merits review) and s 159B (error of law). The Tribunal dismissed the appeal and confirmed the non-practising condition. The relevant parts of its decision are examined in greater detail below. But in broad terms, the Tribunal preferred the evidence of Dr Newnham, who provisionally diagnosed Dr Ghosh with schizophrenia, to that of four other psychiatrists in whose opinion Dr Ghosh did not have a major psychiatric illness; and accepted Dr Newnham's opinion that the public would not be adequately protected if she were permitted to resume practice. As the Tribunal put it, after setting out at length Dr Newnham's opinions and recommendations: 104 The Tribunal agrees with these opinions and recommendations. Against the background of the matters set out above and for these and other reasons set out below, the Tribunal is of the view that the suspension imposed by the s 150 and the s 150A hearings, which effectively lifted the suspension and imposed the condition not to practise, should be continued.
One of the additional matters referred to was Dr Ghosh's medication, particularly with anti-psychotic medication, of her son. The others were, essentially, matters that in the Tribunal's view went to confirm Dr Newnham's opinion; the Tribunal said (at [135]) that "standing back and looking at the totality of the evidence", it was hard to see how Dr Ghosh's behaviour might be characterised as other than paranoid or at least delusional; it referred to her willingness to attack other professionals and make racist generalisations, and her hostility to agencies such as Family and Community Services; it observed that her communication style remained flawed and that she showed a poor attitude towards complaints made against her, including by patients; it noted (at [143]) that she had attended courses on patient communication, an online course and other cultural awareness courses, but that there was little other evidence as to what she had done in internalising whatever messages she may have received; and, in addition, it concluded that she had actively attempted to mislead the Tribunal by altering a transcript of the s 150A hearing (a matter to which it will be necessary to return).

The Supreme Court appeal

Dr Ghosh appealed to the Supreme Court, as of right; she did not (until at the hearing, in circumstances described below) seek leave to appeal. As such, the appeal was confined to questions of law.
Prior to the hearing, the appeal has had an unhappy course, the earlier history of which is set out in the judgment of Barrett AJA on 21 October 2019, [11] on the Council's motion for dismissal of the appeal for want of prosecution and abuse of process, in circumstances where deadlines for Dr Ghosh to file an amended notice of appeal and written submissions had expired unsatisfied on five occasions. Dr Ghosh filed an amended notice of appeal on the morning of the hearing of that motion, and his Honour, noting that in the absence of leave to appeal (which had not been sought) the appeal was limited to a question of law, struck out several grounds as not arguably raising a question of law. [12]
Dr Ghosh (in person) lodged written submissions in connection with the remaining grounds, to which the Council responded to the effect that they amounted, at least in large part, to an attempt to relitigate factual disputes that were resolved, without legal error, by the Tribunal. As the appeal was at that stage presented, that submission appeared to have considerable force. However, when the hearing commenced on 6 November 2019, Dr Ghosh was represented by senior and junior counsel, whom she had retained the preceding day. Their intervention resulted in the distillation from the grounds of appeal of recognisable questions of law, and the focussing of the appeal on them. However, as the hearing proceeded, it became clear that the remaining grounds in the amended notice of appeal did not encompass some genuinely arguable issues, and also that some of those issues might not clearly be questions of law. At the end of the hearing, leave was given to file revised appeal grounds (dated 7 November 2019), including an application for leave to appeal pursuant to cl 29(4)(b) of Sch 5 to the NCAT Act, to the extent that any of those grounds required leave. [13] Directions were made for the exchange of written submissions in connection with the newly formulated grounds. The Council lodged its "Respondent's Submissions on New Grounds of Appeal" on 28 November 2019, and Dr Ghosh lodged "Applicant's Submissions in Response to the Respondent's Submissions on New Grounds of Appeal" on 12 December 2019.
Although Dr Ghosh's counsel referred to the ample powers of the Supreme Court under cl 29(8) of Sch 5 to the NCAT Act, no application was made for the Court to deal with the appeal, under cl 29(7), as a hearing de novo, and the appeal was not conducted on that basis. Accordingly, the question for this Court is whether NCAT erred in any of the respects identified in the revised appeal grounds, and if so, what orders should be made under cl 29(8).

Ground 1: the s 150A review

Ground 1 in the revised appeal grounds was: The Tribunal erred in law by upholding the decision of the Medical Council of New South Wales (the Council) to vary or set aside its determination under s. 150 of the National Law so as to impose a condition on her registration not to practice [sic] medicine, in that, in the facts and circumstances of the case, there was no power in the Council to so vary or set aside its s. 150 decision owing to the provisions of s. 150A(4) of the National Law in light of the findings of the Council at RB 34C-F.
On a s 150A review, the Council may vary or set aside a suspension or condition imposed under s 150 (and substitute any other order it could have made under s 150(1)), only if it is satisfied that there has been a change in the practitioner's circumstances that justifies a variation or setting aside of the earlier s 150 decision. Section 150A(4) provides: A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
As has been noted, in the s 150A decision, the delegates posed for themselves the question whether the psychiatric reports provided evidence that significantly changed the circumstances that led to Dr Ghosh's suspension in December 2017, and answered it in the negative, observing that at the s 150 hearing the order was made with the likelihood of a diagnosis of impairment in mind, and that since that hearing the diagnosis had been confirmed. Then, having observed that other changes that might be relevant were Dr Ghosh's engagement with training and education over the preceding three months, the Council's delegates concluded that they did not evidence a change of circumstances that would lead to a decision to allow her to practise.
However, apparently acting on some advice provided to them, the delegates, having concluded that Dr Ghosh had "a confirmed impairment", lifted the decision to suspend her registration, and substituted the non-practising condition. The reason for this was that, under s 150(2), a suspension ends when a complaint about the practitioner is disposed of, and the delegates were concerned that if an investigation by the HCCC resulted in a referral to an Impaired Registrants Panel, the complaint might thereby be disposed of, for the purposes of s 150(2), and there would be a 'lacuna' between then and any determination of the Panel, during which no suspension would be in force. It was therefore considered that it was preferable to impose a non-practising condition, which (if the matter were referred to an Impaired Registrants Panel) would, under s 150I, remain in effect until removed by the Council.
It seems to me that, having concluded that there had been no relevant change in circumstances, s 150A(4) precluded the Council from varying its earlier s 150 decision under s 150A. However, although it was not referred to in argument, a further relevant power is to be found in s 150C, which relevantly provides as follows: 150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time - (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action.
As was explained in Medical Council of New South Wales v Lee, [14] this power may be exercised at any time and is not conditioned on the medical practitioner lodging an appeal or demonstrating a change in circumstances. Moreover, s 150C(2) would authorise the substitution of a condition, where a suspension was terminated. Accordingly, although there was no change of circumstances, the Council was not precluded from ending the suspension and substituting the non-practising condition.
In any event, the s 159 merits appeal still required NCAT to exercise afresh the power of the Council under s 150, and in so doing it was not constrained by s 150A(4). Moreover, had the s 150A decision been quashed for error of law, that would merely have revived the s 150 decision which it varied. The question for this Court is not whether the Council, on the s 150A hearing, erred in substituting the non-practising condition for the suspension, but whether NCAT erred, upon hearing de novo the s 150 question, in confirming that condition. In those circumstances, it would be of no consequence to the ultimate decision of NCAT if it had wrongly failed to hold that the Council had erred in that respect. This ground, therefore, fails.

Ground 2: the non-practising condition

Ground 2 in the revised appeal grounds was: The Tribunal erred in law in confirming the decision of the Council to impose a condition upon the Appellant's registration as a medical practitioner that she was not to practise, which condition is not a condition within the meaning of s. 150 and/or s. 150A of the National Law.
It is clear that NCAT confirmed the non-practising condition, rather than a suspension, for the same reasons as the Council at the s 150A hearing (emphasis in original): 178 The Tribunal does not accept that submission, rather, accepting the approach of the Medical Council in its Reply. To the extent that there is, or may be, a lacuna in the legislation (as suggested or implied), the Tribunal is of the view as a matter of statutory interpretation that the National Law is purposive legislation for the purposes of s 15AA of the Acts Interpretation Act 1901 (Cth) and s 33 of the Interpretation Act 1987 (NSW). The clear purpose of the legislation is to ensure that a medical practitioner who has been found (as here) to have issues going to her fitness to practice is subject to a regime whereby the Medical Council as the regulatory authority has the flexibility to ensure that she will properly treat the health and safety of members of the public - see generally Mills v Meeking (1990) 91 ALR 16 per Dawson J at 30-31 (with reference to the Victorian Acts Interpretation Act); Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 153 ALR 490 at 509 per McHugh, Gummow, Kirby and Hayne JJ. It is not a situation (if that is what is contended for) where a medical authority should only have the option of letting the practitioner back to practice subject to conditions. The Tribunal accepts that there are good policy, administrative and supervisory reasons why a variety of responses and options might be considered by a regulatory authority in these circumstances, and for different time periods, when different professional opinions are received. It may be, for example, that a practitioner could maintain registration and work in a situation other than direct patient care - such as being a university lecturer. Accordingly the Tribunal rejects that submission that there has been an error of law and what flows from it.
However, resolution of the question raised by this ground does not require determination of whether or not there is any such "lacuna" as the Council and the Tribunal posited. The essential question for this Court is whether such a "condition" was a condition relating to the practice of medicine, within those contemplated by s 150(1). The argument that it was not was, in essence, that because it prohibited practising, it was not a condition relating to practising the profession, but amounted to a suspension rather than a condition.
The conditions which a Council is authorised by s 150(1) to impose are "the conditions relating to the practitioner's practising the health profession the Council considers appropriate". Section 150(1) relevantly provides (emphasis added): (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate.
A condition is imposed on and attaches to the practitioner's registration. Such a condition reduces the freedom of action that the registration would otherwise confer. [15] The only limitation on the types of condition that may be imposed is that the condition must relate to the practitioner's practising the profession. Thus a condition that bore no relation to the practice of medicine would be outside the scope of s 150(1). However, that the scope of conditions is not confined to how the practitioner actually conducts his or her practice is illustrated by s 150(5), which provides: Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
A practitioner can be registered without having a right to practise: Pt 7, Div 5 provides for non-practising registration, and s 75 provides that a registered health practitioner who holds non-practising registration in a health profession must not practise the profession. [16] However, such registration permits the practitioner to retain the title of medical practitioner.
There is a distinction between suspension and a non-practising condition. The former has the consequence that the practitioner is taken not to be registered during the period of the suspension. [17] The latter leaves the practitioner registered, with the associated privileges, other than the right to practise. In effect, it makes the registration equivalent to a non-practising one, so long as the condition remains in place. But unlike suspension, the practitioner remains registered. In that way, it is a more moderate measure than suspension.
I therefore accept that a non-practising condition is a condition relating to the practitioner's practising the profession, within s 150. This ground fails.

Grounds 3 & 4: denial of procedural fairness

In her amended notice of appeal, the appellant complained of denial of procedural fairness, and failure to afford her a reasonable opportunity to deal with adverse material. Her pre-hearing written submissions on this ground focussed on the proposition that in the NCAT appeal, the focus had shifted from the matters which had been articulated in the s 150 and s 150A hearings, to issues concerning her treatment of her son, which had not been the subject of the earlier hearings. In oral argument, it was submitted that before NCAT, Dr Ghosh and her counsel proceeded on the basis that the real issue was what had been articulated in the Council hearings, and she therefore did not adduce evidence relevant to her treatment of her son; yet the Council adduced a substantial body of evidence on the question, in particular form Dr Hutt, which became the central issue in the NCAT appeal.
While her treatment of her son was certainly a significant issue in the appeal, it is by no means apparent that it was the central issue; indeed, it seems to me that Dr Ghosh's mental health remained the central issue. In any event, however, Dr Hutt's evidence was served in or about July 2018, two months prior to a hearing which commenced on 27 September 2018 for two days, and then resumed on 17 October and concluded on 19 October. No evidence, nor argument, demonstrated how any procedural unfairness to Dr Ghosh was occasioned in this respect. This ground, to the extent that it is still maintained, fails.
However, the complaint of denial of procedural fairness assumed an additional aspect in the course of the hearing and in the revised appeal grounds. Before NCAT there was evidence from five expert psychiatrists: Dr Davies, Dr Bench, Dr O'Connell, Dr Robinson and Dr Newnham. The first four-named of those doctors expressed opinions to the effect that while Dr Ghosh had a difficult and abrasive personality and did not respond well to criticism, and (in some cases) may have a personality disorder, she did not have a psychotic illness or major mood disorder. Dr Newnham, on the other hand, gave her a provisional diagnosis of schizophrenia, with differential diagnoses of psychotic disorder due to a medical condition or a neurocognitive disorder, and opined that the public would not be adequately protected if she were permitted to resume practice. Grounds 3 and 4 in the revised appeal grounds related to the acceptance by the Tribunal of the evidence and opinions of Dr Newnham in preference to those of the other four psychiatrists, who were not cross-examined.
Ground 3 in the revised appeal grounds was: The Tribunal erred in law, in circumstances where: (a) Evidence was admitted on behalf of the Appellant from a number of expert psychiatrists; and (b) That evidence was not cross-examined upon; and (c) That evidence supported the Appellant's case that there was no need to take action under s. 150 and/or s. 150A; and (d) The hearing was one de novo under s. 158(2) of the National Law; and (e) No evidence called by the Respondent or otherwise supporting any finding that it was appropriate to impose a condition upon the Appellant's registration that she not practise for the protection or the health or safety of any person, other than her son; and (f) The Tribunal preferred the evidence of Dr Newnham and Dr Hutt in any area where respective evidence conflicted with that expressed in the reports of Drs Davies, Bench, O'Connell and Robinson, and in so doing imposed such a condition upon the Appellant's registration.
Ground 4 was: The Tribunal erred in law in the circumstances set out in [3] above in that procedural fairness required that the expert witnesses of the Appellant be given an opportunity to respond to the case being advanced by the Respondent before the Tribunal, before determining the matter in favour of the Respondent, especially in circumstances where the reports from the Appellant's witnesses were admitted without objection, including a new witness Dr Robinson, who had not previously been called to give evidence in the s. 150 and s. 150A hearings.
It is necessary to set out in a little more detail the substance of the various psychiatrists' opinions.
Dr O'Connell was appointed by the Council to evaluate Dr Ghosh, for the s 150A hearing. He saw her, for two hours, on 12 January 2018. In a report dated 25 January 2018, he recorded that he had reviewed a (redacted) complaint dated 17 October 2017, identifying 12 complaints from patients and administrative staff dated between March and July 2017, and minutes from three appraisal meetings of 25 May, 20 July, and 8 August 2017, observing that there was "a pattern of Dr Ghosh disagreeing with, rebutting, refuting, dismissing, or deflecting most of the complaints from patients and from the administrative staff". He observed that in the meeting of 25 May, Dr Ghosh kept saying she had been picked on by white people because of her colour and it was not fair, but acknowledged that she had a problem arriving at work late. Subsequently, Dr O'Connell also obtained a copy of the s 150 proceedings of 12 December 2017. Dr O'Connell elicited a history that Dr Ghosh had previously consulted with Dr Russell Davies for a report for a court case; that she was subject to some minor racial bullying whilst at school, and that her son suffered from autism, mental retardation, oppositional defiant disorder, and obsessive-compulsive disorder. He recorded that she presented punctually and neatly attired, somewhat anxious but appropriate. He noted inconsistencies between the history given by Dr Ghosh and that contained in the s 150 proceedings as to the number of previous complaints. Her affect was reactive and congruent, and mood euthymic. Her tone of speech was derogatory and demeaning at times, and thought content had a strong emphasis on race, religion, education, and social standing. He thought she had relatively poor insight into her behaviour, and in particular, "little concern or possibly self-awareness of how she comes across to others". However, Dr O'Connell said: In my opinion Dr Ghosh does not currently display the signs or symptoms of a major mental illness (DSM 5). In particular there is no evidence of a major mood, psychotic, or substance use disorder that might give rise to the alleged behaviours. It is difficult for me to comment on the content of the complaints as I only have Dr Ghosh's side of the story. However at interview she demonstrated a pattern of demeaning others based on race, religion, education and social standing, leading to her comment, "I sound racist but I'm not". This pattern may have been present for a long time as previous complaints had noted problems with her behaviour. These behaviours might be indicative of underlying narcissistic personality traits (DSM 5), (App II), if they have been stable over time.
Dr O'Connell observed that this did not definitively exclude the presence of a mental illness, and that the appearance of new behaviours could be suggestive of some underlying process such as a mood or psychotic disturbance; it was also possible that such behaviours could be due to regression under stress exaggerating underlying personality traits, and Dr Ghosh had been under significant stress. He concluded: This was a difficult assessment due to a lack of collateral and past history, and only Dr Ghosh's history available at the time of the assessment. The history of her behaviour at interview is suggestive of underlying narcissistic personality traits that requires more extensive assessment to accurately diagnose. These personality traits may be exaggerated at present as Dr Ghosh is under extreme stress due to difficulty with her son's mental state.
Dr Davies provided a report dated 26 February 2018, in which he noted that he had treated Dr Ghosh for anxiety in 2013 and thus was providing the report as someone who had previously provided treatment to her as opposed to as an independent expert. He noted that he had previously assessed her, and had access to his previous records. He also had the s 150 proceedings. He assessed her over a period of one hour on 20 February 2018. He obtained a history regarding the complaints at Dr Khan's office. On mental state examination of Dr Ghosh he noted "Her speech was normal in rate, tone, and amount, coherent and spontaneous, although at times she would become fairly expansive and verbose in discussing some of the difficulties associated with her practice at Wallsend. This appears to have been driven somewhat by anxiety rather than by any underlying abnormal mo[o]d state per se ... There was no evidence of any major mood disturbance or other psychotic phenomena on systematic enquiry during this interview. She did not exhibit any signs of psychosis. She was alert and oriented, although I did not conduct a full examination of cognitive functioning." Dr Davies concluded: "As far as I can ascertain, she is not suffering with any mental health disorder per se, although in the past has experienced mild to moderate depression." Dr Davies further noted: I concur with the conclusion from Dr Oliver O'Connell, that Dr Ghosh does not currently display any signs or symptoms of major mental illness. He makes reference to this complaint and also previous complaints with a hypothesis of underlying narcissistic personality traits. This has not been particularly evident to me in my dealings with Dr Ghosh, however, I do recognise that she has a certain strident and outspoken personality style which can at times be perceived as rude or unhelpful. However, it's doubtful as to whether this represents an impairment as defined in the statutory definition.
Dr Bench evaluated Dr Ghosh, at her request, on 20 March 2018. The information with which he was briefed and to which he had regard included the Council's s 150 decision and the aforementioned psychiatric reports. The length of the consultation is not noted, but the comprehensiveness of the history obtained and examinations conducted suggest that it would not have been less than an hour, and may have been more. He elicited and recorded a detailed history. He reported, "In short, I could elicit no grossly psychotic symptomatology". While observing that she had a general tendency to be over-inclusive, he did not consider it a formal thought disorder, but likely secondary to the anxiety of stressful clinical evaluation. In his opinion, notwithstanding that she presents with "very strong ideas including having a predilection to note an individual's ethnicity", there was likely a cultural component to that, given her Indian ethnicity and historical antipathy between Indians and Pakistanis, and "the applicant would not meet diagnostic criteria for any major mood, anxiety or psychotic disorder'. He was of the opinion that "the applicant is not suffering from any major mood, anxiety or psychotic disorder that would prevent her from practicing [sic] medicine", and "there was no evidence during the clinical evaluation to suggest that as a result of any major mood, anxiety or psychotic disorder" that her employment in medicine would pose a risk to the safety or health of the public.
For the purposes of the NCAT appeal, Dr Ghosh retained Dr Geoffrey Robinson, who saw her on 13 June 2018 for an hour. According to his report dated 18 June 2018, she provided "the background material to the Medical Council's decision, as well as further material …" after the interview. The report does not specifically list the material to which Dr Robinson had access, but it refers to "the report of Dr Kim Newnham … of 4 April 2008", and contains the statement "This opinion [his own] appears to be essentially in accord with the reports of psychiatrist Dr Davies and Dr O'Connell, and not in accord with the provisional diagnosis of Dr Newnham." There is no prior reference in his report to Dr O'Connell's report, even in his account of what was related to him by Dr Ghosh, and these statements are indicative of a level of familiarity with the reports mentioned that would be associated with access to them. This is particularly so in relation to Dr Newnham's report, given that its date is cited.
Dr Robinson notes that Dr Ghosh was seeking a second opinion about her diagnosis as she did not agree with the opinion of Dr Newnham that gave her a provisional diagnosis of schizophrenia, which she explained was out of keeping with the opinions of all other psychiatrists who had seen her. Dr Ghosh explained that she was currently not registered to practise medicine following earlier hearings with the Council, and that she felt she should be able to return to practise medicine without any restriction as she did not have a mental illness.
On mental state examination, she was neat and tidy in presentation, maintained appropriate eye contact, and was pleasant and affable in manner. She was articulate, and her speech normal in rate flow and form. Dr Robinson "found her to be somewhat anxious, but considered this to be normal in the context of her concern about her ability to practi[s]e medicine, and the question of having a serious mental illness". Dr Robinson did not consider there to be formal thought disorder, "although she was at times caught up in her story". There were no hallucinations, nor delusions, "although she did clearly have an external locus of blame". Dr Robinson concluded: I formed the opinion that Dr Ghosh is not suffering from a major mental illness. In particular, I could find no evidence from my examination that Dr Ghosh is suffering from schizophrenia; I do not think that she has a Bipolar Mood Disorder; I did not find any other Axis 1 psychiatric disorder. There was insufficient time and information to make a formal Axis 2 (Personality) diagnosis. This is discussed further below. … I note that she has had some severe stressors over recent years. There is the stress of dealing with her 13-year-old son, who is autistic and prone to psychotic episodes. I would suggest that the notifications to the Council reflect difficulties in interpersonal interaction secondary to Dr Ghosh's personality style, rather than to a major psychiatric illness. I note that there may also be transcultural factors at play. I further hypothesise that these issues may have been more problematic in recent years as a result of the major stressors with which Dr Ghosh has been dealing. This opinion appears to be essentially in accord with the reports of psychiatrist Dr Davies and Dr O'Connell, and not in accord with the provisional diagnosis of Dr Newnham.
By way of recommendation, he concluded: "I do not think that Dr Ghosh should be precluded from returning to the practice of medicine", and "I would be pleased to answer any questions that might arise from this report".
All the aforementioned reports were apparently carefully considered professional opinions, based on examination of Dr Ghosh over a period of between one and two hours. The psychiatrists who wrote them were aware of, and had access to, in particular, the Council's s 150 decision, in which its concerns were articulated. Dr Robinson was, at the very least, aware of Dr Newnham's opinion. Dr O'Connell had been retained, not on behalf of Dr Ghosh, but by the Council.
Dr Newnham assessed Dr Ghosh at the request of the Council on 23 March 2018 over a period of two hours, and provided a report dated 4 April 2018. It is radically different to the other reports, not only in its ultimate conclusions, but in many of the observations made about Dr Ghosh's presentation. In the course of recording Dr Ghosh's relating of her son's complex medical issues, Dr Newnham hypothesised: History given today by Dr Ghosh about her son's illnesses has raised my concern about the presence of a factitious disorder by proxy. This of course is unable to be verified without a review of [her son's] medical history and corroborative evidence from those involved in his care.
After discussing issues relating to Dr Ghosh's Queensland rental property, and a complaint which she had made in respect of Dr Khan, and observing that each contained serious and implausible allegations, Dr Newnham's mental state examination of Dr Ghosh included that she: … appeared slightly un-kempt, with knee length stockings not meeting all the way to her knee-length skirt, and her hair appeared to be unwashed. She was polite and cooperative throughout the interview and appeared keen to provide me with as much information about her past history as possible. She had with her a very thick folder of documents she had collected herself over several years and offered these to me in order to prepare the report. She denied any abnormality of mood, in particular depression or mood elevation. At times her affect was incongruent to the content of her speech, for example, she did not demonstrate any variation in affect when describing her son's illness or the involvement of the Department of Community Services. Her speech was loud, rapid, and for at least the first sixty minutes of the interview, quite difficult to interrupt. There was evidence of formal thought disorder. Her thought form was highly circumstantial and greatly over‑inclusive of detail, giving multiple names of various doctors and other parties she believed have [sic] conspired against her when names were not requested. She would divert widely from the question, eventually coming back to the answer only after several minutes of extraneous detail. Her thought content revealed a preoccupation with persecutory themes as outlined in the body of this report. There were also themes of grandiosity pertaining to her abilities as a doctor. Both persecutory and grandiose themes were firmly held despite documented evidence to the contrary and were outside the bounds of her culture, education, and experience. Her cognition was grossly intact but there was evidence that further testing is necessary, particularly in relation to frontal/executive functioning. At times her statements revealed a degree of disinhibition, such as the degree of detail she went into pertaining to her husband's sexual difficulties in the conception of their son. Dr Ghosh demonstrated only minimal insight into the impact of her behaviour on her professional standing and patients, with blame almost entirely deflected externally. She demonstrated no insight into the fact that her account of her son's illnesses and the involvement of the Department of Community Services was most unusual. She indicated that she believed she was a general practitioner of exceptional ability and that by taking cultural awareness and communication training as recommended by the Council she now [had] fulfilled her obligations and was now fully fit to practice [sic] medicine. However, despite this cultur[al] awareness training, she continued to repeatedly make references about Pakistanis and frequently used the term 'unemployed disability pensioner' throughout the assessment while speaking about complainants."
Under the heading "Formulation and Opinion", Dr Newnham reported: Dr Ghosh presents with multiple persecutory beliefs extending into several areas of her life. These persecutory beliefs have led towards complaints about her behaviour towards patients, practice staff, colleagues, and they have led to an involvement in the legal system. She also has grandiose beliefs about her abilities as a doctor and these beliefs have influenced her treatment of her family. The beliefs are mostly implausible and not in keeping with her pre-morbid intelligence and professional and life experience. In addition, she demonstrates a disorder of thought form. This was evident in both the assessment and in the documents produced, authored by Dr Ghosh. Her developmental history is not consistent with conditions that would likely lead to the development of a Narcissistic Personality Disorder as has previously been proposed. There is evidence that her interpersonal difficulties that have led to her notification, have not been enduring over time. She has maintained several stable friendships since her school days and she was accepted into a Paediatric Training Programme and progressed to the clinical examinations in 1999. A person with a severe and enduring disorder of personality is unlikely to have been accepted onto a paediatric training programme, and certainly would be highly unlikely to progress through this programme to the clinical examination phase. Dr Ghosh's physical health status is unknown, but it is possible that she has had poorly-monitored/controlled blood glucose for many years, hence there is a possibility of that [sic] Dr Ghosh is suffering [from] the neurocognitive effects of a poorly controlled metabolic disorder. This requires exclusion. The presence of multiple delusions, formal thought disorder and decline in functioning has led me to the provisional diagnosis as per DSM V of Schizophrenia. Differential diagnoses include: Psychotic disorder due to a medical condition Neurocognitive disorder.
Under the heading "Opinion concerning impairment", Dr Newnham concludes: I believe Dr Ghosh suffers from an impairment as defined in the National Law. I believe she is suffering from a chronic mental health condition that has been to date and continues to be, untreated. Dr Ghosh has developed only very marginal insight into the matters that led to her suspension of her registration. She has not however, developed any insight into the other concerns noted in this report. I do not believe that the public would be adequately protected if the suspension were lifted and if she was permitted to return to practice.
Dr Newnham did not elaborate the risk from which she opined that the public would not adequately be protected if the suspension were lifted.
As will appear, the Tribunal preferred Dr Newnham's opinion. That it did so would not of itself involve appellable error, let alone legal error. However, it is the process by which that conclusion was reached that is called into question. The manner in which this evidentiary conflict was addressed and resolved by the Tribunal was as follows: Material relied on by Dr Ghosh. 23 Four reports were relied on by Dr Ghosh, one dated 26 February 2018 from Dr Davies, then Dr Ghosh's treating psychiatrist, a report dated 28 March 2018 from Dr Christopher Bench, a report from Dr Oliver O'Connell dated 25 January, 2018 and a report from Dr Robinson of 18 June, 2018. Dr Davies considered that there was no evidence of any major mood disturbance. Dr Bench also came to the same conclusion. Neither doctor had other than limited access to all the relevant historical material. 24 Dr O'Connell's report was qualified in view of the time and material which he had considered. He also said it was a difficult assessment due to the lack of collateral and past history, having only Dr Ghosh's history available at the time of his assessment. He saw Dr Ghosh for two hours in January 2018. Dr O'Connell said in his report of January 2018 that he was not informed of the Panel proceedings of 12 December 2017 nor was he provided with a copy of the report or determination. 25 Dr O'Connell noted the inconsistencies between Dr Ghosh's account and that apparently referred to in the s 150 proceedings. He was unable to comment on the contents of the complaints as he only had Dr Ghosh's version of the story. He also noted (page 10) that "… When confronted with any complaint she does not believe that she has any role in it. She often turned it into a complaint about someone else." He thought "her behaviours might be indicative of underlying narcissistic personality traits" and that "… Given her inappropriate behaviour, it may be that Dr Ghosh needs to be reviewed with regard to standards and or competence." ... Dr Geoffrey Robinson 29 Dr Ghosh sought to rely on a report of Dr Geoffrey Robinson of 18 June, 2018. Dr Robinson saw Dr Ghosh for an hour after she requested a second opinion about her diagnosis and an urgent psychiatric report. That request was made because Dr Ghosh did not agree with the opinion expressed by Dr Newnham prepared for the NCAT hearing scheduled for 20 June 2018, in particular, Dr Newnham's diagnosis of schizophrenia. 30 Dr Robinson concluded that Dr Ghosh was not suffering from a major mental illness including schizophrenia or bipolar disorder. He noted "insufficient time and information" to make a diagnosis of personality disorder. 31 It appears that Dr Robinson's report was based on a 60 minute interview with Dr Ghosh as well as background material including testimonials provided by Dr Ghosh. Dr Robinson does not list the documents he reviewed when making his assessment other than to say that Dr Ghosh supplied the background material (unspecified) to the Medical Council's decision. He stated that his opinion was "essentially in accord with the reports of psychiatrist Dr Davies and Dr O'Connell and not in accordance with the provisional diagnosis of Dr Newnham" without making clear whether he had received any of the psychiatric reports or read them. 32 The Tribunal is unable to determine whether Dr Robinson had access to the comprehensive suite of independent evidence provided to Dr Newnham and as listed by her in her report - see [69]. Absent the foundational material being made clear to support the opinions advanced by Dr Robinson, the Tribunal prefers the evidence of Dr Newnham over that of Dr Robinson - see [37]- [38]. Appellant's witnesses not called 33 None of the doctors whose reports were tendered by Dr Ghosh were called to give evidence. At the conclusion of the first stage of the hearing on 28 September, 2018, the Tribunal asked if any of those doctors: Dr Davies, Dr Bench, Dr Robinson or Dr O'Connell, were to be called on behalf of Dr Ghosh. The decision was taken at least by 17 October, 2018 that they were not to be called. Medical Council evidence 34 The Medical Council relied on the reports of Drs Newnham and Hutt as well as the other reports in the tender bundles. 35 Both Drs Hutt and Newnham were called and cross-examined. Dr Newnham, in particular, was cross-examined by counsel extensively (and appropriately) over the course of almost the entirety of the last day of evidence. Conflict between psychiatrists 36 There was, and remains, a clear conflict between the opinions of the psychiatrists especially as to their respective diagnoses of Dr Ghosh, and in particular, whether she suffered from schizophrenia or delusional behaviour or any other psychiatric condition and her prognosis. Acceptance of evidence: Drs Hutt and Newnham 37 The Tribunal considers that Dr Newnham was well able to defend all her opinions and prognosis and was unshaken in her evidence as was Dr Hutt. The Tribunal also considered that the evidence of Drs Newnham and Hutt was consistent with much of the other material adduced during the hearing. 38 The Tribunal accepts the evidence and opinions of Drs Newnham and Hutt in any area where their respective evidence conflicts with that expressed in the reports of Drs Davies, Bench, O'Connell and Robinson.
Thus, in circumstances where four of five psychiatrists [18] were of the view that she did not have a major mental illness, the Tribunal accepted the opinion of the fifth, essentially on the basis that: 1. none of the doctors whose reports were tendered by Dr Ghosh was called to give evidence; 2. Dr Newnham was cross-examined and unshaken, and well able to defend her opinions; and 3. Dr Newnham's opinion was consistent with other material that emerged during the hearing.
In response to these grounds of appeal, the Council submitted that: 1. the rule in Browne v Dunn [19] did not apply, because the witnesses relied on by Dr Ghosh were not called to give evidence, and Dr Ghosh was on notice that their opinions would be contradicted and disputed; and 2. the Council's conduct in permitting their reports to be received in evidence without objection did not preclude it from disputing and contradicting their contents.
For the reasons that follow, I accept that the rule in Browne v Dunn did not preclude the Council from adducing evidence, in particular that of Dr Newnham, which was contrary to the opinions in the reports relied upon by the appellant. However, that is not a complete answer to these grounds of appeal.
Although it is not entirely clear by which party the reports of Drs O'Connell, Davies and Bench were tendered before the Tribunal, it is clear that the report of Dr Robinson was tendered on behalf of Dr Ghosh, as part of exhibit 7. While the other reports, which were part of exhibit 5, may have been tendered by the Council as forming part of the record of the s 150A proceedings, they formed part of "Dr Ghosh's Respondent's Material - Volume 1 of 1". In any event, the Tribunal plainly regarded all four as having been tendered on behalf of Dr Ghosh and forming part of her case. [20]
The Tribunal asked Dr Ghosh's counsel whether any of those witnesses were to be called by Dr Ghosh, and the answer was in the negative. The Tribunal appears to have regarded this as detracting from their weight, and the Council submitted in this Court that as the doctors were not "put in the witness box", the rule in Browne v Dunn did not apply. However, their reports having been admitted, without objection or condition, there was no reason why Dr Ghosh should call them, unless they were required for cross-examination. If they were required for cross-examination, and Dr Ghosh did not propose to call them, it was open to the Council to object to the reception of their reports, or to insist that their admission be conditioned on the production of the witnesses for cross-examination. If, having been admitted on an assumption that the witnesses would be called, the Council belatedly learned that they were not to be produced for cross-examination, it could have asked that they be rejected. [21] Although the Council submitted that there was no evidence that it had ever said that they were not required for cross-examination, that is not the point. There is no evidence that the Council ever indicated that they were required for cross-examination, and in the absence of such an indication, there was no reason why Dr Ghosh should call them. [22] In those circumstances, there was no reason why their not being called should have detracted from the credibility or weight of their reports.
The rule in Browne v Dunn [23] has two aspects. The first is a rule of procedural fairness, that unless notice has already clearly been given of a party's intention to rely upon such matters, it is necessary first to put to an opponent's witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of their evidence, and, absent such cross-examination, the party which ought to have cross-examined is precluded from contradicting their evidence. The second is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. This was explained by Hunt J, as he then was, in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation, [24] with reference to the judgment of Newton J in Bulstrode v Trimble, [25] as follows: As Newton J observed (in Bulstrode v Trimble [1970] VR 840, at p 846), there are two aspects to be considered. Firstly, there is a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties; and, secondly, there is a rule relating to the weight or cogency of the evidence. His Honour went on to say (at pp 848-850) that the second rule in or aspect of Browne v Dunn meant no more than that if a witness is not cross-examined in relation to a particular matter upon which he has given evidence, then that circumstance would often be a very good reason for accepting the evidence of that witness upon that matter; there is, however, no requirement in law that the tribunal of fact must accept that evidence, and no basis in law upon which the other party is precluded by this failure to cross-examine from leading evidence in direct contradiction to that evidence. The status of some of these propositions must be considered doubtful in the light of the subsequent decision of the High Court in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, at p 372, per Gibbs J, with whom Stephen and Murphy JJ, agreed; Barwick CJ, contra, at p 365. But this second rule or aspect is not applicable in the present case.
The passage in Precision Plastics Pty Ltd v Demir to which his Honour referred was the following, which suggested that it might be legal error not to accept unchallenged and uncontradicted evidence which was not inherently implausible: [26] The respondent was asked in her examination-in-chief: "How long did you intend to continue working?" and replied: "I like to work very much. Until the age of 55 years old. Of course, until the last day until I died I like to work as far as work is concerned." If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation (cf Browne v Dunn (1893) 6 R. 67 at 76-77), but she was not in fact cross-examined on her answer. The respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five.
I accept that the first aspect of the rule was not offended, because Dr Ghosh was plainly on notice that the Council took issue with the opinions of the doctors upon whom she relied. However, the second aspect of the rule still had work to do. I nonetheless also accept that the second aspect of the rule did not mean that the Tribunal was legally bound to accept the uncross-examined evidence of the doctors relied upon by Dr Ghosh. However, the fact that they were not cross-examined, and that their opinions thus stood unchallenged, though not uncontradicted, should at the least have weighed in their favour - rather than, as the Tribunal appears to have thought, against them. In my judgment, the Tribunal erred in taking into account, as reasons for preferring Dr Newnham, that the professional witnesses whose reports were relied on by Dr Ghosh were not called, whereas Dr Newnham was cross-examined; and in failing to have regard to the circumstance that their evidence went unchallenged by cross-examination.
Were this merely a matter of preferring one expert to another, it would not be an error of law, and would not attract a grant of leave if required. But in this case not only was uncross-examined evidence rejected, and challenged evidence accepted, where there was a strong body of evidence in favour of the unchallenged position, but the Tribunal does not appear to have given any significance to the circumstance that the witnesses favourable to Dr Ghosh were not cross-examined, but, to the contrary, appears to have regarded the circumstance that they were not called as adverse to their acceptance. Subject to granting leave to appeal, if leave be required, I would uphold this ground.

Ground 5: the Scottish transcript

Ground 5 in the revised appeal grounds was: The Tribunal erred in law in that it concluded that the Appellant's evidence was not to be accepted in any area where her interests were at stake and where it conflicted with other evidence, because of the conclusions which it drew at RB 86-87 [148]-[154] of its decision in circumstances where those conclusions were readily rebuttable and inconsistent with a more innocent explanation that was consistent with the Appellant's honesty, and in so doing denied the Appellant procedural fairness because those findings infected its other findings.
This ground arises from the following passage in the Tribunal's decision: Veracity and issues of credit 148 At one stage in the hearing, Dr Ghosh submitted a transcript (exhibit 8 page 7) which included the words (attributed to Dr Giuffrida) that he had said of a witness: 'Dr Giuffrida: "She is full of crap:"' It was clear that the underlining to that transcript had been added by Dr Ghosh herself for emphasis. 149 Even when the tape was played back showing that, on the material supplied (including that supplied by Dr Ghosh herself) the words were not said, Dr Ghosh refused to accept that. She went on to effectively accuse the Medical Council of doctoring a transcript and a supporting audio tape of earlier proceedings. She has maintained that denial - see Appellant's submissions [33]. 150 Dr Ghosh admitted on oath on Friday 28 September that she had her own audio copy of the s 150A hearing. Dr Ghosh then compared that version to the Medical Council's audio version (exhibit 15) to emphasise that her copy was authentic, had been prepared by another transcription agency and that the Council's copy was "doctored". The Tribunal does not know how that version produced or relied on by Dr Ghosh came into existence but the form in which it was produced bore no relationship to the authorised version of what had happened in the s 150 proceedings in terms of the added words. 151 Dr Ghosh then asked for a copy of the Medical Council's tape which was subsequently provided to her by the Medical Council. Dr Ghosh thereafter arranged for her own transcript of the audio which she then purported to transcribe. However, on the material before the Tribunal there is nothing to indicate when or by whom or how those words were added. The relevant audio transcript was played three times in Dr Ghosh's presence. She refused to accept that the words she had included in the transcript she provided had not been said. 152 It also appears to the Tribunal that Dr Ghosh altered her version of the transcript for the sole point of attacking Dr Giuffrida, and then separately, Dr Newnham. Her motivation appears to have been simply that they had given evidence or had made findings against her. 153 The Tribunal considers that this alteration of the transcript - and the reliance on it in the Tribunal hearing by Dr Ghosh - indicates considerable premeditation and continuing determination to mislead the Tribunal. It also indicates a determination to persist with her own views regardless of the reality of what has happened. That is quite apart from the available inference that she has sought to mislead the Tribunal in this regard. It is difficult to see any other explanation. 154 Against the background of the matters set out above, the Tribunal is unable to accept Dr Ghosh's evidence in any area where her interests are at stake and where it conflicts with the evidence of other witnesses. The Tribunal considers that Dr Ghosh's oral evidence contained or continued either misrepresentations or untruths and a refusal to engage in the substance of complaints against her. 155 In those circumstances, the Tribunal considers that, not only should the condition remain that Dr Ghosh not practice, but also that the Medical Council needs to be supplied with independent medical reports and assessments before taking any action to permit Dr Ghosh to return to practice. It is clear from the Council's submissions in reply received 29 October 2018 that the Council is alive to this issue. For the reasons set out at [184], the Tribunal does not propose to impose further conditions on Dr Ghosh in addition to the condition not to practice.
Dr Giuffrida was one of the Council's delegates who conducted the s 150 hearing and the s 150A hearing.
The conclusions reached by the Tribunal in the passage set out above were very grave. It is self-evident that they were devastating for Dr Ghosh's credit, character and fitness.
So far as I can ascertain from the transcript, Dr Ghosh explained that she obtained an audio record of the s 150 hearing from the Council, and then sent the media files electronically to a transcription service, called GoTranscript, in Scotland, which transcribed them and provided a transcript - which became known as "the Scottish transcript". Plainly it is not an optimal transcript, and it contains many inaccuracies, presumably due to difficulty in understanding and transcribing a poor quality audio record. However, the relevant passage, which occurs in the context of an exchange between counsel for Dr Ghosh (Mr Jackson) and the delegates concerning their having stopped his cross-examination of Dr Newnham, is as follows (italic emphasis added): Mr. Jackson: … It may not have been the most efficient or most brilliant cross-examination, I accept that, I have the capacity for reflection. Dr Giuffrida: We just couldn't see where it was going. Mr. Jackson: As do we all, but that is also a concern. It's pretty clear in my submission, this report is not the same as any of the other reports, including where I can almost exactly the same point in time end. I'll stop in a minute, I promise, but I just need to get it off my chest. Last off, so it would be quiet for the rest of the day. Okay? Dr Giuffrida: We'll see about that. [laughter] [crosstalk] Dr Giuffrida: Quiet probably, but, those issues are pretty fundamental and I have not heard another so-called independent expert express themselves in that sort of time. Dr Giuffrida: She was very full of crap. Look, I think we gave the impression that she was not going to resign from any of the points that she meant. In fact, when you pursue them, it actually did you no good. If anything, it gave her the opportunity to strengthen her. Dr Giuffrida: That's a matter for submissions.
Dr Ghosh readily accepted that she had bolded and underlined the words attributed to Dr Giuffrida, "She was very full of crap", in order to highlight them for others. But she denied that she had inserted those words.
The Tribunal said that the form of the Scottish transcript as produced to the Tribunal by Dr Ghosh bore no relationship to the authorised version in terms of the added words (presumably a reference to the words "She was very full of crap"), and from that drew the inference that those words had been inserted by Dr Ghosh. [27] The "authorised version", produced by the Council, was as follows (italic emphasis added): MR JACKSON: … and maybe I'm doing the most deficient or the most brilliant cross-examination, I accept that, I have the capacity for reflection but we just couldn't see where it was going and that is also a concern because it's pretty clear in my submission this report is not the same as any of the other reports, including one in almost exactly the same point in time and I will stop in a minute, I promise, but I just need to get it off my chest, and I'll stop and be quiet for the rest of the day. DR GUIFFRIDA: That's fine, yes okay. MR JACKSON: We'll see about that. My instructing solicitor (indistinct) quite probably but those issues are pretty fundamental and I have not heard another so-called independent expert express themselves with such - in that sort of tone and so - - - DR GUIFFRIDA: She was very forthright. MR JACKSON: Very forthright. DR GUIFFRIDA: Look, I think we gave the impression she was not going to resile from any of the points that she made. In fact when you pursued them it actually did you no good, if anything it gave her the opportunity to strengthen them. MR JACKSON: Well that's a matter for submissions.
That version also has multiple inaccuracies: for example, the first passage set out above obviously fails to distinguish words stated by Dr Giuffrida (namely, "But we just couldn't see where it was going") from the balance of the passage attributed to Mr Jackson. It attributes the words "We'll see about that" to Mr Jackson, when they seem more likely, as the Scottish transcript attributes them, to have been spoken by Dr Giuffrida. There is then a passage, attributed (probably incorrectly) by the Scottish transcript to Dr Giuffrida, "Quiet probably, but, those issues are pretty fundamental and I have not heard another so-called independent expert express themselves in that sort of time", and by the "authorised version" to Mr Jackson, in very similar terms, "quite probably but those issues are pretty fundamental and I have not heard another so-called independent expert express themselves with such - in that sort of tone and so - - -".
In the Scottish transcript, that passage is followed by the words: "She was very full of crap". In the "authorised version", it is followed by the words, "She was very forthright". Given the obvious difficulties both transcribers have encountered with the audio record, and the phonetic similarity between "forthright" and "full of crap", there was an available entirely innocent explanation for those words being there, namely that the same sounds on the audio file have been heard by two different transcribers in two different ways.
In cross-examination about the transcript, Dr Ghosh maintained that she - and others - had heard the words "very full of crap" spoken when the audio file was played. The audio record held by the Council was played in the Tribunal. After it was played, the Tribunal noted: HIS HONOUR: I just note for the record that what I heard - and I'll check with the tribunal members - there was a bit of confusion about people speaking over each other in the words before, "Look, I think we gained the impression".
The Chair of the Tribunal informed Dr Ghosh that there would be a submission adverse to her credit and that this was a serious misleading of the Tribunal. Dr Ghosh said that she could produce the audio file that was transcribed by GoTranscript, on which she had heard the disputed words, on 17 October, when the hearing was to resume. However, no such audio file was produced.
Insofar as the Tribunal observed that there was "a bit of confusion about people speaking over each other", it is instructive that the Tribunal does not say that the words spoken were clearly "She was very forthright", as the official transcript records. The obvious and innocent explanation is that two transcribers interpreted the indistinct words on the audio record in different ways. However, neither the transcript nor the decision reveals any consideration having been given to that potential explanation, for what founded most grave and devastating findings against Dr Ghosh, which infected the whole decision of the Tribunal.
In my judgment, in circumstances where the official transcriber had heard words which were thought to be "She was very forthright", and where the Tribunal had heard "a bit of confusion about people speaking over each other", and given the gravity of the finding, it was not reasonably open to the Tribunal to conclude that the disputed words had been inserted by Dr Ghosh. Again, subject to granting leave if leave to appeal be required, I would uphold this ground.

Grounds 6 & 7: failure to address critical question

Ground 6 in the revised appeal grounds was: The Tribunal erred in law in that by reason of the matters set forth in [3]-[6] above, it approached the consideration of the question whether the threshold in s. 150 and/or s. 150A had been met in a way which was both unreasonable and irrational.
Ground 7 in the revised appeal grounds was: The Tribunal erred in law in that it failed to identify in its findings at [178]-[181] of its decision, or elsewhere, any coherent reason or reasons why it was appropriate to require the Appellant not to practice for the protection of the health or safety of any person or persons or in the public interest, and why the conditions on her registration consented to by the Appellant were not sufficient in this regard (and see Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [169]-[170]).
At the core of these grounds is the proposition that the Tribunal failed to address the essential question, namely whether there was such unacceptable risk as to require immediate suspension. This requires a more detailed review of the Tribunal's decision.
After deciding (as discussed above) that it accepted the evidence of Dr Newnham and Dr Hutt in any area in which it was in conflict with that of the professional witnesses relied on by Dr Ghosh, [28] the Tribunal referred to and rejected attacks made by Dr Ghosh on Dr Newnham and Dr Hutt, [29] observing that those attacks demonstrated "a totally inappropriate understanding of the role of a professional witness", which was relevant to its assessment of her attitude to professional supervisory agencies, and her insight. Reference was also made to various gratuitous observations made by Dr Ghosh of others, which tended to refer to their lack of education, their unemployment, or their Pakistani background. The Tribunal then referred to Dr Ghosh's overly optimistic interpretation of findings made by a Conduct Interview Panel. [30] After further observations about Dr Ghosh's objections to the witnesses Dr Newnham and Dr Hutt, including personal attacks on them, [31] the Tribunal set out a summary of the evidence of Dr Hutt (which related to Dr Ghosh's treatment of her son), [32] and then, at some length, a summary of Dr Newnham's evidence, [33] including her provisional diagnosis of schizophrenia, and differential diagnoses of psychotic disorder due to a medical condition, and neuro-cognitive disorder, and her opinion that the public would not be adequately protected if Dr Ghosh were permitted to return to practice. [34]
The Tribunal then stated: Determination 104 The Tribunal agrees with these opinions and recommendations. Against the background of the matters set out above and for these and other reasons set out below, the Tribunal is of the view that the suspension imposed by the s 150 and the s 150A hearings, which effectively lifted the suspension and imposed the condition not to practice, should be continued.
The "other reasons" set out below amounted to a finding that the entirety of the evidence indicated concerns about Dr Ghosh in a number of areas, [35] which were categorised as: 1. failure by Dr Ghosh to observe the guidelines about treating family members, essentially in relation to her son; [36] 2. lack of personal insight into the issues raised; [37] and 3. her rejection of the views of the Medical Council's experts and her attitude to professional supervisory agencies. [38]
Then, the Tribunal said: 135 Standing back and looking at the totality of the evidence, it is difficult for the Tribunal (which includes for these proceedings two psychiatric/medical members), to see how that behaviour might be classified as being other than paranoid or at least delusional.
The Tribunal then referred, again, to: 1. Dr Ghosh's attitude to other professionals as working colleagues, with particular reference to comments about their dress codes, appearance or ethnicity; [39] 2. her attitude to other professionals as medical supervisory staff; [40] 3. her attitude to other agencies in the Newcastle area, [41] with particular reference to Family and Community Services ("FACS"). In this respect, the Tribunal said: 139 The same attitude of aggression and hostility to agencies operating in the Newcastle/Hunter area was evident in her attitude to FACS, arising from what she sees as the treatment of [her son]. Those agencies were operating in what were very difficult circumstances - the FACS officials were acting on the basis of a serious matter being referred to the Department by the HCCC, after an examination of (at least) Dr Ghosh's history of prescriptions for [her son]. Dr Ghosh repeated her descriptions of the apparently lawful and necessary interim actions of FACS as an "abduction" and "an imprisonment." 140 It is difficult for the Tribunal to see how the public would be well-served by a general medical practitioner evincing and maintaining such attitudes to what is an essential agency operating in the field of child welfare. Criticism was made of Dr Ghosh's "descriptions of the apparently lawful and necessary interim actions of FACS as an "abduction" and "an imprisonment."" In the light of the observations of this Court in GR v Secretary, Department of Families, Disabilities and Community Services, [42] it is not difficult to see why, in the circumstances of this case, a mother might not unreasonably so perceive the actions of FACS. 1. her lack of preparedness to accept assistance and supervision, [43] with a further observation about her "unremitting and personalised attacks" on Dr Newnham and Dr Hutt; [44] 2. her communication style; [45] 3. her attitude to complaints by patients; [46] 4. her veracity, [47] as has been set out and addressed above; 5. her unduly optimistic interpretation of the outcome of aspects of the Queensland proceedings; [48] and 6. her language and communication with clients. [49]
The Tribunal expressly did not review the earlier complaints against Dr Ghosh, but merely "noted" comments in the s 150 decision, [50] adding only that its own observations confirmed her lack of self-awareness and unwillingness to acknowledge issues. [51] This was repeated in relation to another complaint. [52]
In a conclusionary passage, the Tribunal said: 169 The Tribunal considers that Dr Ghosh's presentation both in her statutory declaration and her oral evidence confirmed the observations and findings of Drs Hutt and Newnham. In particular, Dr Ghosh repeatedly gave over-inclusive or verbose answers which did not come to grips with the questions asked or which ignored the clear thrust of the questions both from her own counsel, counsel for the Medical Council and from the Tribunal members. 170 Dr Ghosh also maintained a dismissive and often contemptuous attitude towards the complaints which had been made against her and a very frequent tendency to attack those who had made complaints against her. That denigration extended to attacking some of the complainants on the basis of their race, ("Dr Khan was from a bad (un-named) university" and that he "…has a sham marriage"), culture and socio-economic status (his "indigenous 15 year old work-for-the-dole receptionist"), age and experience. 171 Dr Ghosh demonstrated a zealous determination to turn complaints against herself into retaliatory complaints against those complainants (which she described as their 'tit-for-tat' practice). That was combined with a very limited capacity to acknowledge fault on her own part, let alone a preparedness to learn or change. That was also indicated in her approach of blaming the HCCC for not investigating Dr Khan and asserting that the agency was in breach of the law for not investigating Dr Khan. 172 Dr Ghosh continued to overemphasise her own level of education and seniority as a justification for her conduct. That was consistent with what the Tribunal finds was an ongoing and dismissive attitude to professional supervisory bodies such as the Medical Council. That does not engender any confidence that she would accept advice nor willingly cooperate with supervisory requirements in the future. 173 Arising out of all the material before the Tribunal both in the previous hearings and as filed in or relied on in this hearing, the Tribunal notes with concern that: (1) rather than dealing with the substance of those complaints, Dr Ghosh has made a series of attacks on the other professionals involved in the earlier proceedings. That has involved, in particular, attributing malice, or lying, on the part of professional witnesses such as Dr Newnham and Dr Giuffrida. In the context of their reports and the evidence, the Tribunal takes the view that those attacks went far beyond the bounds of acceptable adversarial criticism, but rather indicated a degree of paranoia or contempt inconsistent with the professionalism which is to be expected of a doctor effectively applying for re-admission to practice. That is even more concerning given that the context is that one of the primary areas of investigation of Dr Ghosh was as to her behaviour as someone concerned about the health and welfare of a child in the situation of her own son; (2) Dr Ghosh seems to be either unaware of, or contemptuous of, the clear policy behind the AMC Guidelines in relation to medical practitioners treating their own family members, and in particular, the need for objectivity. That concern relates not only to her past actions in relation to her son, [omitted], but also her disregard and open hostility to the ongoing attempts by the Medical Council staff to bring these concerns to her attention; (3) Dr Ghosh has criticised the HCCC for bringing the issue of her medical practices with her son to the attention of FACS - also an agency for which she appears to have little regard. The Tribunal considers that this conflation of her own perceptions and needs with those of her son indicates an alarming lack of insight and preparedness to accept guidance; (4) Dr Ghosh criticised Dr Giuffrida in his capacity as a Panel member on the basis that he '… is someone who controls clinical exams in all specialities…' as well as on the basis of her unconfirmed belief that he was involved in appointing his friends as professional experts for the Medical Council. The Tribunal considers that criticism is not only unsubstantiated but also that it indicates a lack of understanding on Dr Ghosh's part of the processes of medical training and involvement. Further, it suggests a lack of objectivity on her part which is likely to impinge on Dr Ghosh's capacity to seek or accept professional assistance in the future - something which Dr Ghosh would clearly need if she was going to return to medical practice. 174 In the Tribunal's view, all those matters go to confirm the accuracy and validity of the earlier complaints against Dr Ghosh of inappropriate and unprofessional behaviour towards patients, practice support staff and medical colleagues. Rather than dealing with those, Dr Ghosh has adopted the retaliatory approach of simply attacking each witness on what the Tribunal regards as essentially spurious grounds. 175 Similarly Dr Ghosh's comment during the hearing on the issue of the differences in the transcript about the comments attributed by her to Dr Giuffrida, or her assertion that the "Council has a reputation of producing false psychiatric reports" does not engender any confidence that Dr Ghosh would respect the processes of medical regulation supervision, or discipline by the Medical Council.
After rejecting the submission that a condition not to practise was not a permissible condition, [53] the Tribunal said (emphasis added): Consideration and Determination 178 The Tribunal has considered all the evidence and material before it, and the matters set out above including the observations of Dr Ghosh's own evidence and presentation throughout the hearing as well as the submissions made by both parties. Against that background, the Tribunal is of the view that there is no evidence that Dr Ghosh has developed insight into her problematic behaviours which had led to the multiple complaints against her over a number of years. 179 The Tribunal further considers that there is considerable evidence pointing to some degree of impairment on Dr Ghosh's part which includes: (1) A lack of self-awareness regarding her behaviour and the impact of it; (2) An inability to limit, contain or self-regulate inappropriate behaviour. Notable, but not alone, in that respect was her bizarre behaviour in terms of presenting the s 150A amended transcript with the words "She is full of crap" including a misattribution of those comments to Dr Giuffrida; (3) Her allegation that the Medical Council "doctored" or altered the audio recordings of the s 150A hearing and the refusal to accept that her view was wrong when the audio was replayed to her; (4) Her capacity to look for an external locus for blame for any criticism; (5) Her desire to refer professional witnesses, Dr Newnham and Dr Hutt, to the Attorney General for prosecution because they were critical of her; (6) Her initiation of defamation proceedings against Dr Newnham arising out of a medical report in circumstances where Dr Newnham was about to give evidence and the service of the process relating to that litigation on Dr Newnham two days prior to Dr Newnham giving evidence. 180 Further, that given the evidence presented by Dr Ghosh, there is nothing on which the Tribunal could be confident that the history and series of incidents and events detailed would not reoccur and that the public would be protected from any repetition. 181 The Tribunal considers that there is nothing in the material put forward by Dr Ghosh to warrant any alteration of the condition not to practice. Further that for all the reasons set out and described above that, pursuant to s 3A of the National Law, it is necessary for the protection of the public's health and safety that she not be permitted to resume practice. To make it abundantly clear in the other terms of the legislation, the Tribunal determines that, at least at this stage and on the material available, it is not in the public interest that Dr Ghosh be permitted to practice.
Reference has been made above to the approach enunciated in Karimi at [123]. It is worth restating at this point (references omitted): The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest.
As explained in that passage, the essential task of the Tribunal is to consider whether, on the material before it, allowing the practitioner to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or to the public interest. [54] Although the Tribunal expressed a conclusion in terms of s 150, to the effect that it was necessary for the protection of the public's health and safety that she not be permitted to resume practice, and that it was not in the public interest that she be permitted to practise, [55] it did not identify what was the nature or extent of the risk that Dr Ghosh posed. The only expression of any connection between her conduct and risk to patients or the public was the observation that it was difficult for the Tribunal to see how the public would be well-served by a practitioner evincing negative attitudes to Family and Community Services, [56] and a reference to her attitude towards professionals as working colleagues. [57] Beyond that, there was no articulation of what was the unacceptable risk to patients and/or the public, such as to require the termination of Dr Ghosh's right to practise. Insofar as the conclusion that the public would not be adequately protected if Dr Ghosh were permitted to return to practice flowed from acceptance of Dr Newnham's opinion to that effect, Dr Newnham did not herself articulate any relationship between her diagnosis and risk to patients or the public.
Both Dr Newnham and the Tribunal appear to have proceeded on the basis that once a diagnosis of a significant psychotic illness was made, risk followed. They appear to have assumed that if Dr Ghosh had a mental illness, she posed an unacceptable risk, but that does not necessarily follow. Whether that was so would depend on expert evidence, concerning the nature of the mental illness, its manifestations and any medication or other steps taken to control it. Assuming that Dr Ghosh had schizophrenia, it does not follow that she posed an unacceptable risk to patients or the public; whether it did would depend, amongst other things, on whether any delusions related to or impacted on her practice of medicine. However, it is not self-evident that Dr Ghosh's condition was such that she posed an unacceptable risk, and neither Dr Newnham nor the Tribunal explained why she did.
Essentially, the Tribunal's stated concerns amounted to concerns that Dr Ghosh had a difficult personality, responded aggressively to criticism, was contrary and recalcitrant, communicated poorly, and was sometimes offensive in her expressed opinions about others. They were not founded on deficiencies in her treatment of patients. Dr Ghosh's complaints history was not such as to suggest that she posed such an unacceptable risk to patients or the public as required her immediate suspension; in any event, it was not the basis on which the Tribunal acted - it expressly did not review the previous complaints. [58]
Why those concerns posed such an unacceptable risk as to require her immediate exclusion from practising her profession was not explained. That is not to say that they could not have been: the delegates in the s 150 decision, summarised above, did identify and explain the risk. But the Tribunal was required to conduct the exercise afresh, and it did not do so.
My concern that the Tribunal did not address the essential question, on de novo basis, is fortified by repeated suggestions in its reasons that Dr Ghosh bore some onus to show why the non-practising condition should not be continued. Thus in the passage extracted above, the Tribunal said that "there is no evidence that Dr Ghosh has developed insight into her problematic behaviours", [59] and "there is nothing in the material put forward by Dr Ghosh to warrant any alteration of the condition not to practice". [60] Moreover at an earlier stage in its decision, the Tribunal referred to the "need for evidence to support the overturning of the existing suspension": Additional witnesses for Appellant 39 The Tribunal also outlined concerns it had in the light of what it saw as the need for evidence to support the overturning of the existing suspension as well as to provide corroborative evidence of Dr Ghosh's intention to work with a mentor. It was proposed by Dr Ghosh that she would call evidence from a Dr Da Silva on 17 October who was available on that date. However, it was determined that he would not be called when it was agreed between counsel for Dr Ghosh and the Medical Council that there were professional medical mentors available for Dr Ghosh. Any such mentor(s) would, if that became appropriate, need to be assessed as suitable for that role before it was assumed by them. That would presumably include an assessment of their awareness of Dr Ghosh's then situation and needs.
On a hearing de novo, there was of course no need for evidence to support the overturning of the condition; the Tribunal had to be satisfied for itself that "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" [61] that conditions be imposed on her practice of medicine, or that she not be permitted to practise at all. In my view, the Tribunal has assumed that unacceptable risk flows from a diagnosis of a psychotic illness, without turning its mind to the nature and extent of the risk. It failed to take the essential step of identifying what the risk was, and whether it was unacceptable. Moreover, despite the requirement that it re-exercise the s 150 discretion afresh, it effectively treated Dr Ghosh as bearing some onus to adduce evidence that displaced the need for the non-practising condition. It thus failed to address the essential question which the proper conduct of a hearing de novo required of it, namely whether allowing Dr Ghosh to practise, or to practise with certain conditions, involved an unacceptable risk to the health and safety of the public, or otherwise involved an unacceptable risk to the public interest.

Ground 8: additional conditions

Ground 8 in the revised appeal grounds was: The Tribunal erred in law in considering that the costs orders to be made in the proceedings and the financial burden of the additional conditions that the Appellant was prepared to submit to as a condition of her right to practice were a reason not to accept the additional conditions.
This ground arises from the following passage in the Tribunal's decision: Additional conditions 185 The Tribunal has considered whether additional conditions should be imposed on Dr Ghosh while she remains a medical practitioner - albeit while she is not permitted to practice. Both counsel submitted that the Tribunal had that power in these circumstances. 186 In particular, the Tribunal considered whether conditions should be imposed that Dr Ghosh engage in appropriate health and psychiatric treatment for herself and her apparent impairment. However, having regard to the submissions of both counsel for Dr Ghosh and the Medical Council, the Tribunal has formed the view that such additional conditions would impose a substantial financial burden on Dr Ghosh which is not warranted, particularly bearing in mind the costs order to be made in these proceedings.
In that passage, the Tribunal was plainly considering whether additional conditions - such as that Dr Ghosh engage in appropriate health and psychiatric treatment - might be imposed, albeit while she is not permitted to practise. The Tribunal was not there considering alternative conditions offered by Dr Ghosh which would have permitted her to continue to practise. This ground is misconceived.

Conclusion

My conclusions may be summarised as follows:
Although it found no relevant change of circumstances, the Council was entitled, under s 150C, to end the suspension imposed under s 150A, and to substitute the non-practising condition. But even if in point of law the Council's s 150A decision were erroneous, that would be of no consequence, as the correct legal consequence would have been that the suspension remain in place, and moreover because the Tribunal, on the hearing de novo of the s 150 question, was not constrained by s 150A(4).
It is unnecessary to decide whether or not there is any such "lacuna" as the Medical Council and the Tribunal thought in the operation of a suspension if a matter is referred to an Impaired Registrants Panel. Whether or not there is any such lacuna, a condition that a registered practitioner not practise the profession is within the scope of a condition that can be imposed on a practitioner's registration.
While the Tribunal was not legally bound to accept the uncross-examined evidence of the professional witnesses relied on by Dr Ghosh, nor to reject the evidence of Dr Newnham (who was cross-examined), it ought at least have had regard to the circumstance that the witnesses relied on by Dr Ghosh were not cross-examined as a factor weighing in favour of their acceptance - rather than treating the circumstance that they were not called as adverse.
The Tribunal's finding that Dr Ghosh was dishonest because she had altered the Scottish transcript - which plainly infected the Tribunal's conclusions as to her credit, character and fitness - was not reasonable, having regard to its gravity, in the context of there being an obvious and much more probable innocent explanation, to which the Tribunal did not advert. [62]
The Tribunal failed to undertake the essential task of identifying the nature and extent of any risk posed by Dr Ghosh to patients or the public, so as to determine the critical issue, namely whether there was such unacceptable risk as to require immediate suspension. It does not necessarily follow from a diagnosis in a medical practitioner of a significant mental illness that there is such a risk, and there was no clear evidence in this case that there was such a risk. Moreover, the Tribunal effectively required Dr Ghosh to adduce evidence to displace the need for the non-practising condition, when on a hearing de novo it was for the Tribunal to be satisfied that it is appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest to suspend her registration or impose the non-practising condition.
Although arguments were advanced as to the extent of the appeal as of right "on any question of law", it is in my view unnecessary to resolve that question. That is because the errors identified above together leave me with a deep sense of unease that Dr Ghosh did not receive the full and fair hearing de novo to which she was entitled in the Tribunal. If they do not involve a question of law, leave to appeal should be granted to permit the grounds referred to in the revised appeal grounds to be agitated.
The appeal should be allowed, and the orders of the Tribunal dismissing Dr Ghosh's appeal to it, confirming the imposition of the non-practising condition, and ordering Dr Ghosh to pay the Council's costs, quashed.
For Dr Ghosh, it was submitted that, in that event, this Court should, in exercise of its powers under cl 29(8), substitute an order imposing on her registration a number of specified conditions, including conditions to the effect that she practise under supervision, adhere to the Council's guideline for self-treatment and treatment of family members, undertake training in patient communication, not provide treatment to her son except in case of emergency, attend for treatment by a general practitioner and a psychiatrist of her choice and comply with their treatments, and attend for review by a Council-appointed psychiatrist on a 6-monthly basis.
For this Court to conclude that that outcome was appropriate would involve it proceeding to re-exercise, on a rehearing, the function of NCAT, which was to conduct a hearing de novo. It is not possible for this Court, without conducting a hearing de novo, which as has been noted was not the basis on which the appeal was conducted, to conclude that a proper hearing in NCAT must have resulted in Dr Ghosh succeeding - save insofar as the decision to impose a condition that she not practise was wrong in law, which would only revive the initial suspension. While it is true that there was a substantial body of evidence to the effect that she was not impaired to an extent that rendered her an unacceptable risk to patients or the public, and that there was no urgent or immediate need to suspend her, before the matter could be properly investigated and adjudicated, it is also the case that the original s 150 decision demonstrates at least an arguable basis for thinking that Dr Ghosh should not be permitted to practise. In circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis, would be imprudent. Subject to the effect of a supervening development, referred to below, the appropriate course would be for the appeal from the s 150 decision to be remitted to the Tribunal, differently constituted, to be heard again, and the consequence of orders to that effect would be that the non-practising condition imposed after the s 150A hearing would remain in effect, pending any further decision of the Tribunal.
As to costs, the Council submitted that, given the manner in which the appeal evolved, it should not be required to pay Dr Ghosh's costs, if she succeeded, as she has, on grounds that emerged only upon the hearing of the appeal. However, for most of the pendency of the appeal, Dr Ghosh was self-represented and would not be entitled to costs, other than out-of-pocket expenses, in any event. Those out-of-pocket expenses would have been, predominantly if not exclusively, the filing fee and the preparation of the appeal books, to which she should be entitled in any event. Once she had lawyers acting for her, the appeal became focussed on real issues, and ultimately, she has succeeded. An interlocutory costs order was made by Barrett AJA in connection with the dismissal motion, which will not be disturbed. I accept that the Council was put to some unnecessary additional costs, not encompassed by that order, in particular in connection with responding to Dr Ghosh's pre-hearing submissions. In my view, a fair apportionment of responsibility for the costs of the appeal, bearing in mind that the interlocutory costs order in favour of the Council will be undisturbed, and that Dr Ghosh will not be able to recover costs other than disbursements for the period while she was self-represented, is that the Council should pay 75% of her costs.
Accordingly, subject to the impact of the supervening event referred to below, I would propose orders that: 1. Leave to appeal, insofar as it be required, be granted; 2. The appeal be allowed; 3. The decision of NCAT dismissing the appeal to it, confirming the decisions of the Medical Council, and ordering that Dr Ghosh pay the Council's costs, be set aside; 4. The matter be remitted to NCAT to be heard again, by a differently constituted panel; 5. Insofar as any extant costs order does not otherwise provide, the respondent pay 75% of the appellant's costs.
The supervening development is that since these reasons were drafted, the Court has become aware (not as a result of any notification by either party) of a decision of NCAT, upon a complaint by the HCCC in respect of Dr Ghosh. [63] NCAT found that she had engaged in conduct constituting professional misconduct and unsatisfactory professional conduct (at [139]), and that she had an impairment under s 5 of the National Law (on the basis that her impairment was of a sufficient nature and degree to impair her mental capacity to practise the profession, rather than that she had schizophrenia or a medical condition or neurocognitive disorder). NCAT ordered, pursuant to section 149C(4)(a) of the National Law, that if Dr Ghosh were still registered, it would have cancelled her registration, and disqualified her from being registered as a medical practitioner for a period of 18 months from the date of publication of its decision, being 15 April 2020. NCAT dealt with the complaint in the absence of Dr Ghosh, who did not appear, and the orders were stayed for 28 days to allow any application to be made by Dr Ghosh to show cause why the orders should not be made. This Court is unaware of whether any such application was made.
In those circumstances, it may be that the complaint has now been "disposed of" for the purposes of s 150H(2)(a) of the National Law, with the consequence that the conditions imposed at the s 150A hearing, which are the subject of these proceedings, have no ongoing effect. If that be so, there would be no utility in Dr Ghosh's appeal being heard again by NCAT, given that it is to conduct a hearing de novo on the evidence and circumstances at the time of that hearing. In such circumstances, it might be appropriate for to NCAT to stay the proceedings on Dr Ghosh's remitted appeal, rather than to hear the appeal again. The remitter of the appeal to NCAT, to be heard again, should not be regarded as precluding NCAT from taking that course, if it is otherwise appropriate.
EMMETT AJA: This appeal is concerned with decisions of the Medical Council of NSW (the Medical Council), first, to suspend the registration of Dr Ratna Ghosh as a medical practitioner under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) and then, to vary that decision under s 150A of the National Law by imposing a condition on the registration of Dr Ghosh as a medical practitioner that she not practise medicine. Dr Ghosh appealed to the Civil and Administrative Tribunal of New South Wales (the Tribunal) from the decisions made by the Medical Council. The Tribunal confirmed the decisions of the Medical Council. Dr Ghosh now appeals to this Court from the decision of the Tribunal.
Section 150(1) of the National Law is in Subdiv 7 of Div 3 of Pt 8, which confers powers on the Medical Council for the protection of the public. Section 150(1) relevantly provides that the Medical Council must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or if satisfied the action is otherwise in the public interest, suspend a registered practitioner's registration or impose on a registered practitioner's registration the conditions relating to the practitioner's practising the health profession that the Medical Council considers appropriate. Section 150A relevantly provides that a registered practitioner may apply to the Medical Council for review of a decision of the Medical Council under s 150 to suspend the practitioner's registration or impose conditions on the practitioner's registration.
Section 150A(2) provides that on receiving an application for review, unless the Medical Council refuses to reconsider its decision because the application is frivolous, the Medical Council must reconsider its decision and, in so doing, must consider any new evidence or material submitted by the practitioner that the Medical Council reasonably considers is relevant. Upon reconsideration, the Medical Council may affirm or vary the decision or set it aside and take any action the Medical Council has the power to take under s 150. However, under s 150A(4), the Medical Council may not vary or set aside a decision unless the Medical Council is satisfied that there has been a change in the registered practitioner's circumstances that justifies the variation or setting aside of the decision.
Under s 159 which appears in a different Division of Pt 8 of the National Law, a registered practitioner may appeal to the Tribunal against a suspension by the Medical Council or against conditions imposed by the Medical Council on the practitioner's registration. Under s 159(3), the appeal is to be dealt with by way of a new hearing. Fresh evidence or evidence in addition to or in substitution for the evidence that was before the Medical Council, may be given. Under s 159B, a registered practitioner who is the subject of action taken by the Medical Council under s 150 or s 150A may appeal, with respect to a point of law, to the Tribunal. A registered health practitioner may not make an application to the Supreme Court for judicial review of action taken by the Medical Council under s 150 or s 150A, being an application alleging any error of law, until an appeal under s 159B in respect of the point of law concerned has been made and disposed of. Under s 159C, on an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. The Tribunal's order must not cause a suspension or conditions imposed by the Medical Council to have effect beyond a day in which a related complaint about the person is disposed of.
On 12 December 2017, for reasons published on 17 January 2018, delegates of the Medical Council suspended Dr Ghosh's registration with effect from 3 pm on that day. Dr Ghosh applied to the Medical Council for review of that decision under s 150A. On 16 May 2018, delegates of the Medical Council concluded that the evidence provided by Dr Ghosh had not significantly changed the circumstances that led to the suspension on 12 December 2017. However, purportedly pursuant to s 150A, the delegates varied the decision of the Medical Council to suspend Dr Ghosh's registration and imposed a condition on her registration that she not practise medicine and that she authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with the condition.
Dr Ghosh appealed to the Tribunal, under s 159 (merits review) and s 159B (error of law) of the National Law, against the decision of the Medical Council under s 150A and, to the extent necessary, against the earlier decision of the Medical Council made under s 150 of the National Law. On 20 November 2018, for reasons published on that day, the Tribunal ordered that Dr Ghosh's appeal be dismissed and that the condition not to practise imposed by the Medical Council on her registration as a medical practitioner be confirmed. The Tribunal also ordered Dr Ghosh to pay the costs of the Medical Council.
On 18 December 2018, Dr Ghosh filed and served a notice of intention to appeal from the orders of the Tribunal, on 8 February 2019 she filed a notice of appeal and on 21 October 2019 she filed an amended notice of appeal. She filed a further amended notice of appeal by leave during the course of the hearing. The appeal to this Court is brought pursuant to cl 29 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act). Clause 29(2) of Sch 5 relevantly provides that a party to proceedings in which a "profession decision" is made by the Tribunal may appeal against the decision to the Supreme Court of NSW. The term "profession decision" includes a decision for the purposes of the National Law. Clause 29(4) provides relevantly that an appeal to Supreme Court may be made as of right on any question of law. The appeal is assigned to this Court by the operation of s 48 of the Supreme Court Act 1970 (NSW) because the Tribunal, as it was constituted for the relevant hearing, included a judge of the District Court.
The grounds raised by the further amended notice of appeal may be summarised as follows:
Having regard to the provisions of s 150A(4) of the National Law and the findings of the Medical Council that there was no relevant change of circumstances, there was no power in the Medical Council to vary or set aside its determination under s 150.
A condition that Dr Ghosh not practise as a medical practitioner is not a condition within the meaning of s 150 or s 150A of the National Law. 3&4. Dr Ghosh was not afforded procedural fairness by the Tribunal and was not given adequate opportunity to respond to the case being advanced for the Medical Council.
The Tribunal denied Dr Ghosh procedural fairness in concluding that her evidence was not to be accepted in any area where her interests were at stake and where it conflicted with other evidence.
The Tribunal approached the question of whether the threshold in s 150 and s 150A had been met in a way that was both unreasonable and irrational.
The Tribunal failed to identify any coherent reason or reasons why it was appropriate, for the protection of the health or safety of any person or persons or in the public interest, to require Dr Ghosh not to practise medicine and why the conditions on her registration that she offered to consent to were not sufficient in that regard.
The Tribunal erred in considering that the costs orders made in the proceedings and the financial burden of the additional conditions to which Dr Ghosh was prepared to submit were a reason not to accept those additional conditions.

The Nature of the Appeal to the Tribunal

While s 159 and s 159B of the National Law speak in terms of "appeal" to the Tribunal, s 159(3) makes clear that an "appeal" under s 159 is to be dealt with as a new hearing and that fresh evidence may be given or that evidence in addition to and in substitution for the evidence that was before the Medical Council may be given. Thus, the hearing before the Tribunal is a hearing de novo. It is not a matter for the Tribunal to determine whether or not the decision of the Medical Council was erroneous. Rather, the Tribunal must consider all of the material and make its own decision on the basis of the evidence before it.
One preliminary question is whether the Tribunal, in the light of the provision of s 159(3) properly undertook "a new hearing". The language of the Tribunal's reasons is not that of a hearing de novo but is suggestive of a review of the decision of the Medical Council.
The Tribunal began its reasons by observing that Dr Ghosh was "effectively seeking the removal" of the condition imposed by the Medical Council and that the Medical Council "seeks the confirmation" of its decision imposing the condition. The Tribunal expressed the view that there was no evidence that Dr Ghosh had developed insight into her problematic behaviours that led "to multiple complaints against her" over a number of years. The Tribunal also considered that there was considerable evidence pointing to some degree of impairment on the part of Dr Ghosh. The Tribunal held that, given the evidence presented by Dr Ghosh, the Tribunal could not be confident that the history and series of incidents and events detailed in its reasons would not reoccur and that the public would be protected from any repetition. The Tribunal considered that there was nothing in the material put forward by Dr Ghosh "to warrant any alteration of the condition not to practise". The Tribunal determined, in order "to make it abundantly clear", that, on the material available, "it is not in the public interest that Dr Ghosh be permitted to practise".
The Tribunal said that, for the reasons given, it did not propose "to lift or vary the not to practise condition". The Tribunal said that it considered whether additional conditions should be imposed that Dr Ghosh engage in appropriate health and psychiatric treatment for herself and her apparent impairment. However, the Tribunal formed the view that such additional conditions would impose a substantial financial burden on Dr Ghosh that was not warranted, particularly bearing in mind the costs order to be made in the proceedings.
The Tribunal emphasised that Dr Ghosh should not minimise the concerns about her impairment that were inherent in the opinion before it. The Tribunal then said that it "endorses the continuation of the 'not-to-practise' condition proposed by the Medical Council" and for the reasons set out determined "that the appeal be dismissed".
The Tribunal then made, relevantly, the following orders:
Appeal dismissed.
The condition on [Dr Ghosh] not to practise as a medical practitioner imposed by [the Medical Council] is confirmed.
[Dr Ghosh] is to pay the costs of [the Medical Council].
I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour, for the reasons proposed, that the Tribunal failed to undertake the essential task of identifying the nature and extent of any risk posed by Dr Ghosh to patients or the public, so as to determine the critical issue, namely whether there was such unacceptable risk as to require immediate suspension. Accordingly, the appeal should be allowed, and the orders of the Tribunal should be quashed. I also agree with his Honour that, in circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, it would be imprudent for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis. The appeal from the s 150 decision must therefore be remitted to the Tribunal, differently constituted, to be heard again. I agree with the orders proposed by Brereton JA, including the order as to costs. I also agree with his Honour's observations consequent upon the subsequent disqualification of Dr Ghosh by the Tribunal.
SIMPSON AJA: I have had the advantage of reading in draft the judgment of Brereton JA. The following assumes familiarity with the background facts comprehensively stated by his Honour, the relevant legislation to which he has referred, and the participants and the terminology used to refer to them (which I will generally adopt).
I agree with Brereton JA that the errors identified by grounds 3, 4, 5, 6 and 7 have been established and that ground 8 was misconceived. I therefore agree with the orders proposed.
There remain two aspects of his Honour's reasoning with which I have difficulty. These are: (i) the conclusion that s 150C of the (NSW) Health Practitioner Regulation National Law ("the National Law") permitted the Council to vary the order it had previously made under s 150; (ii) the conclusion that the condition imposed following the s 150A review was a condition within, and permitted by, s 150(1)(b).
It is convenient here to set out the relevant parts of s 150 and s 150A. "150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioners' practising the health profession the Council considers appropriate; or (c) … 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under s 150 to- (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration (2) … (3) Following its reconsideration of a decision, a Council may- (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under s 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justify the variation or setting aside of the decision."
As explained by Brereton JA, in initially dealing with the complaint against Dr Ghosh under s 150, the Council, by order under s 150(1)(a), suspended her registration. On review under s 150A, it purported to vary that decision by setting aside the suspension order and imposing in its place a condition that Dr Ghosh not practise the medicine. This purported to be a condition imposed under s 150(1)(b). The Council did this notwithstanding that it found, expressly, that there had been no change in Dr Ghosh's circumstances, and notwithstanding the prohibition imposed by s 150A(4).

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

On its face the variation of the original order, in light of the express finding that there was no change in Dr Ghosh's circumstances, was prohibited by s 150A(4).
Brereton JA considers that the variation was, nevertheless, authorised by s 150C. Section 150C provides as follows: "150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time- (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under s 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time taking the original action. (3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned."
No reference was made in this Court to s 150C and no argument was addressed to that relationship. I am unpersuaded that s 150C provides a route, alternative to s 150A(3), to variation of orders under s 150(1). The relationship between s 150A(3) and (4) and s 150C is obscure. Certainly, s 150C(3) suggests that the power may be exercised by the Council, other than on review under s 150A.
The issue in Medical Council of NSW v Lee [2017] NSWCA 282, referred to in the judgment of Brereton JA, was whether the NSW Civil and Administrative Tribunal ("the Tribunal") had jurisdiction to grant a stay of a suspension ordered under s 150(1)(a) pending an appeal to the Tribunal under s 159 of the National Law. The court held that it did not, except where the appeal is in respect of a point of law. It was in that context that Sackville AJA referred to the effect of s 150C. His Honour was not called upon to consider the relationship of that provision to s 150A. No such question arose.
There is, at least potentially, a conflict between s 150A(3) and (4), and s 150C, if the latter provision is to be given the wide ranging effect inherent in the approach taken by Brereton JA. Since this was not raised in this Court, and the court has not had the benefit of argument, I would prefer to leave the determination of the relationship between the two provisions to an occasion when it directly arises and when the court has had the benefit of full argument.
The issue arises only indirectly in this appeal because, as Brereton JA has explained, the Tribunal was not subject to the constraint of s 150A(4). While it may be that the Council was in error in purporting to vary the s 150(1)(a) order in the absence of a change in Dr Ghosh's circumstances, that error does not infect the Tribunal's decision which is the subject of this appeal.

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

As set out above, s 150(1)(b) permits the Council, when the threshold circumstances have been established to: "…by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate."
The simple proposition advanced on behalf of Dr Ghosh is that the condition that she not practise medicine is not a condition "relating to [her] practising [medicine]". I agree. Whether the proposition is correct depends upon the construction of s 150(1)(b).
The starting point in any question of statutory construction is the text of the relevant legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41. Construction of s 150(1)(b) depends, also, upon the statutory context in which the relevant provision appears: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. That calls attention to what is meant, and what is involved, in the registration of a health practitioner. A "registered health practitioner" is defined in s 5 of the National Law as an individual who: "(a) is registered under this Law to practise a health profession, other than as a student; or (b) holds non-practising registration under this law in a health profession."
The essence of registration as a health practitioner is that the registration authorises the individual to practise the health profession, in this case, the profession of medicine.
Part 7 of the National Law provides for a number of categories of registration of health practitioners:

general registration (ss 52-56);
specialist registration (ss 57-61);
provisional registration (ss 62-64);
limited registration (ss 65-72); and
non-practising registration (ss 73-76)

Only non-practising registration disentitles the registered health practitioner to practise the profession. It is inherent in all other categories of registration that the health practitioner is entitled to practise the profession, subject to whatever restrictions are involved in the relevant category of registration.
In some cases (for example, with respect to provisional registration) the legislation envisages that conditions may be imposed on the registration. Section 83 also envisages that, in respect of any category of registration, conditions may be imposed. These conditions do not nullify the right to practise that is carried by registration, but limit the manner in which practice is permitted.
Non-practising registration is, as I have indicated, distinct from other forms of registration in that the holder of non-practising registration is not permitted to practise. By s 73 non-practising registration is available to certain individuals, essentially those who hold or have previously held registration. Although it is not stated, it is an obvious and reasonable inference that non-practising registration is intended to be available to health practitioners who have retired from practice. By s 75(1) a registered health practitioner who holds non-practising registration must not practise the profession. No other category of registration has an equivalent prohibition.
Non-practising registration is not here material. At relevant times Dr Ghosh held general registration as a health (medical) practitioner, and that registration authorised and entitled her to practise medicine. That entitlement was, of course, subject to any conditions imposed on the practice of medicine under s 83 or s 150(1)(b) or otherwise.
In my opinion a condition that a registered health practitioner not practise the profession is antithetical to, contradictory of, and incompatible with the concept of registration. Such a condition is not a condition "relating to the health practitioner's practising the health profession" it is the negation of "the health practitioner's practising the profession".
In written submissions filed on behalf of the Council in response to Dr Ghosh's amended grounds of appeal six "key reasons" were advanced in opposition to Dr Ghosh's proposition that a condition that precludes the practice of medicine is not a condition "relating to [her] practising [medicine]". I found none of the six "key reasons" persuasive.
The first "key reason" was expressed simply, as: "… On its face, the condition imposed by the Council falls within the scope of a condition 'relating to the practitioner's practising the health profession'.'" (italics in original)
Support for that proposition was said to be drawn from the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [95]. The issue before Barrett AJ was whether suspension of registration or the imposition of conditions was "a penalty or forfeiture" of the kind that would attract the privilege against "self-exposure" (that is the entitlement to decline to provide information). In passing, Barrett AJ referred to "conditions that reduce the freedom of action that registration would otherwise confer".
Barrett AJ was not purporting to define what is meant by conditions imposed under s 150(1)(b). Nevertheless, the description is apt enough, although I would prefer to say that the imposition of conditions under s 150(1)(b) reduces the health practitioner's freedom to practise his or her profession in the way that he or she would, absent the conditions, choose to practise (subject, of course, always, to the regulatory context).
Reference was also made to Narrier v State of Western Australia [2016] FCA 1519 in which Mortimer J considered the meaning of the words "relating to" when used in a statute. The words denote, simply, a relationship or connection between one subject matter and another.
I have no difficulty with the proposition that there is a relationship between conditions that may be imposed under s 150(1)(b) and the practice of medicine. The question is whether such a relationship can exist where the condition involves, effectively, nullification of the right to practise.
Reduction of the freedom to practise a profession in a preferred manner is a concept vastly different from the denial of the right to practise the profession at all. Contrary to the Council's argument, the "non-practise condition" did not "reduce" Dr Ghosh's freedom to practise medicine; it abrogated that right, and, effectively, negated the effect of the registration that she held.
The second "key reason" given on behalf of the Council was that: "..there is utility in a health practitioner retaining registration but being prohibited from practicing [sic]." Reference was made to s 75 which (as set out above) prohibits the practice of the profession by the holder of non-practising registration. It was put that: "This form of registration permits practitioners to maintain the privilege of registration and use the protected title 'medical practitioner', without committing an offence …"
Far from supporting the Council's argument, s 75 contradicts it. Non-practising registration is a specific category of registration that expressly excludes the practice of the profession. Dr Ghosh did not hold non-practising registration and the condition imposed by the Council did not convert her general registration to non-practising registration.
The third "key reason" given on behalf of the Council was that: "…a condition not to practice [sic] medicine is not equivalent to a suspension." Reference was made to s 176D(1) which provides that: "If a person's registration as a health practitioner … is suspended under this Law, the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part." Section 176D appears in Pt 8, which is concerned with "Health, Performance and Conduct". The submission was then made: "This makes clear that the existence of a power to suspend is not rendered redundant by a construction pursuant to which a condition not to practice [sic] medicine falls within the scope of s 150(1)(b)."
The logic of this argument is not apparent to me. The argument appears to anticipate a potential contrary argument (that was not put) that, if a non-practising condition may be imposed under s 150(1)(b), the power conferred by s 150(1)(a) to suspend would be superfluous. But the question is not whether paras (a) and (b) of s 150(1) provide for different and independent orders that may be made in response to a complaint, but whether a condition that negates the right to practise consequent upon or inherent in registration is a condition within the meaning and intent of s 150(1)(b). In my opinion it is not.
The fourth "key reason" drew on the objects stated in s 3A of the National Law. Section 3A provides that: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
The provisions of the National Law, it was argued, must be interpreted in accordance with that provision and with other statutory provisions requiring interpretation in a way that would best achieve the object or purpose of the statute under consideration as a whole: Acts Interpretation Act 1901 (Cth), s 15AA and Interpretation Act 1987 (NSW), s 33. The power to impose conditions conferred by s 150(1)(b) must, therefore, the argument ran, be construed broadly "even if that means different remedial options for the Council might overlap."
I accept the basic proposition (leaving aside the reference to Commonwealth legislation). But even a liberal approach to the construction of s 150(1)(b) does not, in my opinion, accommodate a conclusion that contradicts the effect of registration.
That there are occasions that restraining a registered practitioner from practising is in the public interest is undoubted. That is why the suspension power exists. There is no need to widen the scope of conditions permitted under s 150(1)(b) to encompass a restraint on practice; s 150(1)(a) expressly provides such a power. The power to impose conditions under s 150(1)(b) is provided to permit an order less restrictive than suspension of registration.
The fifth "key reason" given was that "no detriment" was caused to Dr Ghosh by the imposition of the condition as distinct from suspension of registration. It is difficult to see how that is so. It was earlier pointed out that while, under s 176D, suspension carries with it temporary loss of registration (during the period of suspension), registration subject to conditions preserves the benefits of registration. The only specific benefit mentioned was the entitlement to use the title "Doctor".
It may be true that, in at least some perceptions, conditional registration is a lesser and less onerous penalty than suspension. That does not answer the construction argument.
The sixth and final "key reason" was that suspension "may have a more limited remedial effect" in achieving the goals of the National Law to protect the health and safety of the public than a condition not to practise. This appeared to be a reference to the "lacuna" to which Brereton JA refers and which was posited as the explanation for the decision of the Council on the s 150A review. The perceived "lacuna" comes about because disposition of a complaint in respect of which the suspension is imposed brings about the termination of the suspension.
It may be correct that, in the circumstances of this case, the imposition of a non-practising condition would have been a more efficacious remedy than suspension. That, like the fifth "key reason", does not answer the construction question.
Suspension was an option open to the Council when it made its decision under s 150; it was the option it then chose. Leaving aside s 150A(4), it appears that the Council then sought to avoid the "lacuna" by setting aside the suspension and imposing a condition that had the effect of suspension. The Tribunal adopted that approach. It was, in my opinion, an erroneous approach. The language of s 150(1)(b) cannot be ignored: it permits the imposition of conditions "relating to the practitioner's practising the health profession". A condition that precludes the exercise of the right to practise conferred by registration is not a condition relating to the practice of the health profession. It denies the effect of the registration on which the condition purports to be imposed. While the condition did not have the effect, under s 176D, as suspension would have had, of depriving Dr Ghosh of all benefits of registration, it denied her the essential attribute of registration - the right to practise. It was not a condition "relating to [Dr Ghosh's] practising [medicine]".
A condition relating to a practitioner's practising a health profession imports, to my mind, that the practitioner practises the health profession, but in the limited way permitted by the proposed condition. It is contradictory to impose a condition that precludes that practise.
The consequence of this reasoning is that, in my opinion, the Tribunal ought not to have adopted the course taken by the Council, but ought, instead, have set aside the order purportedly made under s 150A(3). That would have revived the order for suspension as originally made under s 150; Dr Ghosh was entitled to appeal against that order to the Tribunal. The Tribunal did not address the question of suspension, although it may reasonably be inferred that it would have taken the same approach, had suspension been maintained, as it did to the imposition of the non-practising condition.
Since the errors identified by Brereton JA warrant the setting aside of the orders made by the Tribunal it is unnecessary to determine what orders ought to be made consequent upon my approach.

Endnotes

Ghosh v Medical Council of NSW [2018] NSWCATOD 186 ("NCAT decision").
[2020] NSWCA 99.
(NSW) Health Practitioner Regulation National Law, s 150A(1).
(NSW) Health Practitioner Regulation National Law, s 150A(2).
(NSW) Health Practitioner Regulation National Law, s 150A(3).
(NSW) Health Practitioner Regulation National Law, s 150A(4).
Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17]-[18]; Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123].
[2017] NSWCATOD 180 at [123].
In the present case, the appeal is assigned to the Court of Appeal because the Tribunal as constituted for the hearing of the matter included a judge of the District Court: (NSW) Supreme Court Act 1970, s 48(1)(a)(iv), (vii), (b)(ii), (2)(f).
Cf Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [4] (Barrett AJ).
Ghosh v Medical Council of NSW [2019] NSWCA 264.
(NSW) Civil and Administrative Tribunal Act 2013 ("NCAT Act"), Sch 5, cl 29(4)(b) gives an appeal as of right "on any question of law", and an appeal, with the leave of the Supreme Court, "on any other grounds". Dr Ghosh did not seek at that stage seek leave, so her appeal was confined to one on a question of law.
Contrary to a suggestion in the Respondent's Submissions on New Grounds of Appeal (filed 28 November 2018), the application for leave to appeal was not at large, but was confined to the grounds otherwise raised, to the extent that they were not questions of law: "To the extent that the grounds raised above do not raise questions of law, the Appellant seeks leave to raise them pursuant to cl 29(4)(b) of Sch 5 to the [NCAT Act]".
[2017] NSWCA 282 at [91]-[92] (Sackville AJA; Beazley P and Basten JA agreeing).
Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [95].
Sections 73(b) and 74 require the individual to be a "suitable person" to be eligible for non-practising registration, and unsuitability may arise from the individual's criminal history, or from the individual being for any other reason not a fit and proper person to hold a non-practising registration.
(NSW) Health Practitioner Regulation National Law, s 176D(1).
Dr Hutt is not a psychiatrist, but a medical advisor at the Council. Her evidence related to the appropriateness of Dr Ghosh's treatment of family members, in particular her son.
(1894) 6 R 67.
NCAT decision at [23], [33].
This was the approach taken in respect of the Council's witness, Dr Newnham, as to whose availability there appears to have been some issue: the presiding member said: Accordingly, the Tribunal has determined that the matter will proceed, the report of Dr Newnham and his acceptance by the Tribunal will depend on her availability. That availability should be for her to be present in person and available for cross-examination.
In respect of Dr Ghosh's witness Dr Davies, Mr Bhalla, who appeared for the Council, said to NCAT: Your Honour, the Council understood from discussions that my instructing solicitor had here today that Dr Davies was not available. That's a matter for the appellant. He is her treating psychiatrist. His report forms part of the materials, which is proper, because it's part of the materials which was before the council. I'm not sure if an effort has been made to have his attendance.
(1894) 6 R 67.
[1983] 1 NSWLR 1 at 18.
[1970] VR 840 at 846.
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-1; [1975] HCA 27 (Gibbs J, with whom Stephen and Murphy JJ agreed).
NCAT decision at [151].
NCAT decision at [38].
NCAT decision at [40]-[46].
NCAT decision at [47]-[49].
NCAT decision at [57].
NCAT decision at [58]-[64].
NCAT decision at [65]-[103].
NCAT decision at [103].
NCAT decision at [108].
NCAT decision at [109]-[128].
NCAT decision at [129]-[132].
NCAT decision at [133]-[134].
NCAT decision at [137].
NCAT decision at [138].
NCAT decision at [139]-[140].
[2019] NSWCA 277 at [16]-[18].
NCAT decision at [141].
NCAT decision at [142].
NCAT decision at [143]-[144].
NCAT decision at [146]-[147].
NCAT decision at [148]-[155].
NCAT decision at [156].
NCAT decision at [157]-[158].
NCAT decision at [159]-[163].
NCAT decision at [164].
NCAT decision at [165]-[167].
NCAT decision at [176]-[178].
Although there may be some ambiguity in this respect in Karimi, it is only an unacceptable risk that could justify s 150 action, whether to the health and safety of the public (or particular members of the public), or to the public interest. I do not consider that NCAT was intending to state a different (lesser) test in the case of the public interest; an acceptable risk could not justify s 150 action. This view accords with Hanna, in which it was said (at [20]) that: "… We need to consider whether there is an unacceptable risk to the public in allowing the practitioner to continue in practice for the time being."
NCAT decision at [181].
NCAT decision at [140].
NCAT decision at [137].
NCAT decision at [159].
NCAT decision at [178].
NCAT decision at [182].
Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123]; Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [18].
Cf (NSW) Evidence Act 1995, s 140, which reflects the common law of evidence that in deciding whether it is satisfied of a matter, it must take into account the gravity of the matters alleged.
Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38. 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: 26 June 2020

Medical Practice Act 1992(NSW)

f New South Wales [2017] NSWCATOD 180 Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Kirby v Dental Council of New South Wales [2020] NSWCA 99 Medical Council of New South Wales v Lee [2017] NSWCA 282 Narrier v Western Australia [2016] FCA 1519 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Ratna Ghosh (appellant) Medical Council of New South Wales (respondent) Representation: Counsel: FM Douglas QC w GR Rubagotti (appellant) O Jones (respondent)

Solicitors: Barclay Churchill (applicant) Medical Council of New South Wales (respondent) File Number(s): 2018/00389585 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2018] NSWCATOD 186 Date of Decision: 20 November 2018 Before: Knox ADCJ; Dr G Dore; Dr L Cotterell; S Lovrovich File Number(s): 2018/00008057

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant Dr Ghosh was a registered medical practitioner. The respondent Medical Council of New South Wales ("the Council"), in a hearing convened under s 150 of the (NSW) Health Practitioner Regulation National Law ("the National Law") concluded that the appellant's registration should be suspended until her mental health was assessed, as there was a strong risk that she may fail to treat a patient with appropriate clinical care due to her poor communication and understanding skills, and that there were no conditions that would minimise that risk. Upon the appellant's application for a review under s 150A of the National Law, the Council's delegates identified that the central issue was whether there had been a change in the appellant's circumstances that justified the setting aside or variation of the decision to suspend her registration. Although not satisfied that there was any relevant change in circumstances, the Council substituted for the suspension a condition that she not practise medicine. The appellant appealed against both the s 150 decision and the s 150A decision to the NSW Civil and Administrative Tribunal ("NCAT" or "the Tribunal"). The Tribunal dismissed the appeal and confirmed the non-practising condition essentially on the basis that it preferred the evidence of Dr Newnham (who was cross-examined), who provisionally diagnosed the appellant with schizophrenia, to that of four other psychiatrists (who were not cross-examined) in whose opinion the appellant did not have a major psychiatric illness. Amongst other matters taken into account by the Tribunal was a conclusion that the appellant had attempted to mislead the Tribunal by altering a transcript of the s 150A hearing, which was devastating for her credit. The appellant appealed to the Supreme Court. Held, granting leave to appeal and allowing the appeal:

The Council did not lack power to vary its s 150 decision notwithstanding that it did not find a change in the appellant's circumstances. (per Brereton JA, Emmett AJA agreeing) Although, as the Council did not find a change in circumstances, s 150A(4) of the National Law precluded the Council from varying its earlier s 150 decision under s 150A, s 150C(2) would authorise the substitution of a condition where a suspension was terminated: at [33]-[34]. Medical Council of New South Wales v Lee [2017] NSWCA 282 applied. (per Simpson AJA, not deciding) There is, at least potentially, a conflict between s 150A(3) and (4), and s 150C. Since s 150C was not referred to in argument, the relationship between the two provisions should be left to an occasion when it directly arises and when the court has had the benefit of full argument: at [145]-[146].
In any event, given this Court is considering whether NCAT erred, upon hearing de novo the s 150 question, it would be of no consequence to the ultimate decision of NCAT if it had wrongly failed to hold that the Council had erred in that respect: [32]-[34].

Right of appeal to NCAT

Section 159 relevantly provides a right of appeal, on the merits, to NCAT, by way of hearing de novo: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - … (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; … Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
The powers of NCAT on an appeal are defined by s 159C of the National Law, in the following terms: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order - (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150. [7] As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales, [8] the approach required of NCAT on an appeal of this kind is as follows: [123] … The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).

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