Ghosh v Medical Council of NSW

Ghosh v Medical Council of NSW - [2018] NSWCATOD 186 - NSWCATOD 2018 case summary — Zoe

[5]

The Child

Dr Ghosh has a child, referred to as 'AB' in these reasons (rather than XY as originally proposed for ease of reference to relevant medical records). AB is almost 14 years old.
A considerable part of these proceedings have concerned the status and condition of AB and Dr Ghosh's treatment of him as well as related conduct such as prescribing medications for him. That was in the context of her observance or otherwise of the Guidelines in relation to the treatment of family members.
Some of the factual matters in relation to AB appear to be:

He was diagnosed with autism by a psychologist, Kerry Baker, in 2008. That remains as his diagnosis. Dr Newnham said that Dr Ghosh had also said that she had made that diagnosis;
He was treated over the period since 2008 by a number of child psychologists. He also saw various paediatricians at Newcastle Hospital from time to time. Aspects of AB's treatment including his treatment and medical prescriptions prescribed for him by his mother are set out below - [118];
AB does not have a paediatrician looking after him at the moment. He is being seen by a psychologist, Lee Sturgeon, from Warners Bay near Newcastle. He is also seen by Dr Colin Kable as a treating psychiatrist. Dr Kable had organised a psychiatric admission for AB in December 2017 noting that he had autistic spectrum disorder and appeared to have developed a serious mental illness. Further to that his behaviours present a risk to himself and/ or others;
AB was hospitalised at the John Hunter Hospital in Newcastle in April 2016 for left hip pain. At that time Dr Ghosh called for a psychiatric assessment for AB;
He was observed to be psychotic on an occasion at the international airport at Rio de Janeiro on 6 January 2017. He was placed on a plane and then observed to be psychotic at Miami Airport later that day. Dr Ghosh said that he was then prescribed various forms of medication;
His behaviour is very difficult for both his parents. At one stage of her evidence, Dr Ghosh said her husband, AB's father, had abandoned AB and the family in around 2009. Dr Ghosh asserts that, as a consequence, AB suffers from separation anxiety from his father;
AB is being treated by several doctors including Dr V. Selczwyk at the Charlestown Medical Centre. Dr Selczwyk provided a note in June, 2018 stating that Dr Ghosh attended that practice. Dr Ghosh has not provided the Tribunal with any other material from Dr Selczwyk or the Centre;
Dr Ghosh gave very detailed and comprehensive evidence about AB's past history and behaviour - for example, as to his attacks on Dr Ghosh and her husband and the medical regime to which he has been subject. That history and the medical treatment accorded to him over that period has given the Tribunal considerable concern;
Dr Ghosh did not know where she kept the records relating to AB in particular, her prescriptions and other health care plans for him. She thought that they might be at her medical rooms. A subpoena was issued to Dr Ghosh for the medical prescriptions she issued for AB. On 17 October she stated that those records which were on a computer hard drive had been destroyed in an attack on the computer by AB. No such prescriptions nor records were produced;
Similarly medical records as requested from Dr Ghosh by the Tribunal on a number of occasions were not produced apart from some blood tests referred to below para 127 .

Dr Ghosh gave detailed evidence about AB's current situation. She said he had acquired a brain injury after he was removed by FACS and placed in the John Hunter Hospital in Newcastle. That event appears to have precipitated, or been precipitated by, ongoing concerns about AB's treatment including his treatment by Dr Ghosh. She provided the discharge summary regarding AB's recent intervention at John Hunter Hospital but no evidence of any "brain injury".

[11]

Material relied on by Dr Ghosh.

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.
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.
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."
A report from Mrs Nadine Douglas was provided by Dr Ghosh dated 16 May, 2018. Mrs Douglas described herself as a 'Mental Health Co-ordinator' although no formal qualifications were listed. She expressed disagreement with the Medical Council's findings as well as with various psychiatric matters without giving any foundation for her opinions which the Tribunal was prepared to consider. She also said that she had worked with Dr Ghosh for 8 years and not seen any sign of psychiatric disturbance. It is unclear whether Dr Ghosh worked for the same organisation for the totality of that period.
A similar testimonial was also received from Mr Robert Pryde, psychologist, dated 23 February, 2018. He had also worked with Dr Ghosh.
Neither person was called to give evidence and their evidence, essentially testimonial in character, was untested. The Tribunal considers that the additional material provided by Dr Ghosh was not such as to influence its consideration of the psychiatric material provided by both parties to this appeal.

[20]

Relevance of attacks on professional witnesses

The Tribunal regards those attacks as being of no substance. However, they are set out here because they inform the Tribunal's additional concerns given the inherent attitude they indicate on Dr Ghosh's part to professional supervising agencies as well as the observations made of her conduct, behaviour and capacity by other professionals. It is also relevant to the Tribunal's assessment as to Dr Ghosh's capacity to have the insight to assess what her personal and professional capacities are, and have been, in order to conduct herself as a medical practitioner - including being aware of what has been happening to her. Further, those matters are relevant to make an assessment as to her capacity to change in the future and, particularly, to accept professional supervision and monitoring.
Those criticisms included that: 1. Dr Newnham (reports para 44 ff): 1. made a diagnosis of a 'factitious diagnosis by proxy' of AB which was contrary to all material supplied to her by Dr Ghosh. Dr Ghosh refused to accept that that was a matter raised as a concern rather than a diagnosis; 2. provided these reports falsely and maliciously. Particulars of those 'deliberately false statements' by Dr Newnham in her report of 4 April, 2018 are set out in para 18 of Dr Ghosh's statutory declaration of 17 September, 2018; 3. Dr Ghosh also criticised Dr Newnham's evidence on the basis of her "inappropriate mental state" apparently because of her (Dr Newnham's) attire. 1. Dr Kathryn Hutt (Medical Advisor to the NSW Medical Council: reports para 44 ff): 1. was not qualified to comment on the use of anti-psychotic medication in autistic children given that she was, and is, a part-time GP in Mona Vale; 2. had made a deliberately false statement. On the basis of the evidence given by both witnesses, the Tribunal rejects those assertions as being baseless. Moreover, the Tribunal considers that the assertions about both witnesses display a totally inappropriate understanding of the role of a professional witness, and, in the light of the other evidence given by Dr Ghosh, an ongoing hostility to anyone engaged in medical supervisory processes who she perceives as being hostile to her. 1. Dr Kahn and his wife, Ms Farah Fahim. The background to the relationship Dr Ghosh had with Dr Kahn is that she worked at Dr Kahn's practice at Wallsend between February 2017 until her employment was terminated by him in September 2017. That followed numerous written complaints from both staff and patients of the practice. Those complaints related to both her practice of medicine and her treatment of people, both patients and professional and other staff in the practice. Dr Ghosh's criticisms of Dr Kahn both in her statutory declaration of 17 September, 2018 and in her oral evidence were couched in what the Tribunal considers to be totally inappropriate terms, especially in the descriptions given of the Khan's respective racial background and practices as well as their dress. There were similar generalised attacks on the medical and hygienic practices of doctors and staff at Dr Kahn's practice (statutory declaration 17 September, 2018 para. 9) On a number of occasions, Dr Ghosh also gratuitously described Ms Farah Fahim as Dr Kahn's "uneducated practice manager" and someone who had "gone to Pakistan… (apparently seeking a husband) …to get a doctor." The Tribunal has considered the submissions (dated 25 October 2018 paras [23] -[27]; [29]) filed by Dr Ghosh's counsel in this regard but does not propose to re-examine all those allegations which would appear to be what is suggested in those submissions as being required. The way those matters are dealt with are set out below.
An additional thrust of Dr Ghosh's submissions - see [32] - and oral evidence was that she considered that those witnesses were prejudiced against her given that they did not accept what she had said. Further, that they did not accept what she, Dr Ghosh, had told the Medical Council during a hearing by Professor Procopis.

[21]

Professor Procopis

Professor Procopis was one of the hearing members at a Conduct Interview held at the Medical Council of NSW in 2017. This Conduct Interview arose from a complaint from John Hunter Hospital regarding Dr Ghosh's interference in the Hospital's treatment of AB as well as her ongoing treatment of her son regarding his painful left hip in 2016.
Dr Ghosh asserted in her evidence to the Tribunal that Professor Procopis had fully assessed the issue of her treatment of AB and recommended that no further action be taken. She also told the Tribunal that all the prescribing data (specifically that referred to in Dr Katherine Hutt's expert witness report) would have been available to Professor Procopis at that time, thereby maintaining that this had also been assessed. This PBS data does not appear in the Conduct Interview Panel report nor any of the attachments. Absent additional evidence, it is the Tribunal's view that this material was not available for the Conduct Interview Panel at the relevant time as claimed by Dr Ghosh.
The Tribunal notes that Dr Ghosh's view that Professor Procopis made no adverse findings against her by recommending "no further action" be taken is incorrect. The relevant Conduct Interview Report (date of interview 2 June 2017) notes (in part) that "Dr Ghosh's manner during the interview was defensive and at times aggressive. She showed a poor level of insight as to the aetiology of the communication problems and deterioration of the therapeutic relationship with the orthopaedic surgeons involved in caring for her son. Her vigorous defence of her treatment of AB was driven by her strong belief that she saved his life by intervening with antibiotics. The Panel made attempts to get Dr Ghosh to reflect on how to avoid further conflicts in her roles as mother and doctor in the future (emphasis added). Dr Ghosh is advised to revise the standards of practice set out in 'Good Medical Practice. A code of conduct for Doctors in Australia' with particular reference to section 3.14 personal relationships and 4.2 respect for medical colleagues and other healthcare professionals."

[26]

Dr Hutt

Dr Hutt gave evidence on 28 September, 2018. Amongst other things, she stated in relation to the issue of self-treatment or family treatment (and the Guidelines on that point) that some such actions were of more concern than others. As an example, she thought the assessment and treatment of a patient with a mental health disorder required more objectivity and needed an assessment of the patient's domestic and social circumstances. Dr Hutt thought that an objective assessment by a medical practitioner is unlikely to be possible when assessing or treating a close family member. That is particularly relevant in this case.
In Dr Hutt's view the treatment of any patient with a mental health or behavioural disorder, particularly when considering the use of psychoactive drugs, should be undertaken with caution. In many instances the supervision of a specialist is indicated, particularly when the patient is a child.
Dr Hutt believed that this becomes even more necessary when the patient is a family member, to guard against the possibility of inappropriate use of such medications by a prescriber who is not objective and whose judgement may be clouded by the personal relationship or other family dynamics.
The Tribunal accepts Dr Hutt's view and approach particularly where, as here, the family member concerned was Dr Ghosh's son who had had the long term and serious difficulties which he had - as Dr Ghosh herself made clear.
Dr Hutt did not know whether Dr Ghosh was AB's usual doctor at the times she completed the Mental Health Treatment Plan and Review. She also thought that Dr Ghosh would not have been in a position to act as AB's usual doctor nor to adequately perform the mental health assessments because of her close personal relationship with the patient, her son. Further, she thought that Dr Ghosh's objectivity and judgment were likely to have been influenced by the nature of their personal relationship.
The Tribunal accepts that view. What makes that of particular relevance in this case is that Dr Ghosh was fully aware of the seriousness of the issues confronting AB which warranted independent medical advice and assistance. This was not a situation of a doctor who was a parent prescribing a medication, for example, for the flu or a headache. Rather, AB's issues were serious and long term and required specialist intervention and ongoing monitoring and advice.
Dr Hutt thought that the effect of the prescription of a probably high dose formulation of paracetamol and codeine to a (then) 11-year-old child was not known nor was it known whether this medication was prescribed by Dr Ghosh under specialist oversight. On the current knowledge available, Dr Hutt considered this prescribing to be highly unusual and probably unsafe as it was contra-indicated for AB's age group and was prescribed in quantities which may have been excessive.

[28]

Dr Newnham: Reports to Tribunal

Dr Newnham's report dated 4 April 2018 and her supplementary report of 6 July 2018 were based on her review of multiple documents provided by the Council and by Dr Ghosh as well as a two hour consultation with Dr Ghosh. She had not seen Dr Ghosh ahead of that consultation. From interjections made by Dr Ghosh during the evidence, it appears that Dr Ghosh disputes this.
The material relied on by Dr Newnham is set out in detail as the Tribunal considers that the material considered by her, and the processes she followed, provided a more comprehensive evidentiary basis for her opinions than did the opinions of Drs Davies, Bench, Robinson and O'Connell, which were based on more limited material.
Dr Newnham also brought her notes on which she had based her report to supplement her contemporaneous recollections of what was said to her by Dr Ghosh. The call for the production of those notes by Dr Ghosh was not acceded to nor directed by the Tribunal in circumstances where the Tribunal was informed on the last day of the hearing that Dr Ghosh had commenced defamation proceedings against Dr Newnham. That ruling was made to avoid any suggestion of 'fishing' for material relating to what the Tribunal regarded as the extraneous defamation proceedings. However, after some discussion (which is evident on the transcript) a mutually agreeable course was adopted by counsel whereby specific sections of the notes were identified in relation to areas of cross-examination.
That material Dr Newnham considered included:

Copies of the relevant s 150 and s 150A decisions;
Performance Interview reports (11 November 2011, 19 June 2009);
Conduct interview report (2 June 2017),
Redacted complaint (17 October 2017);
Report by Dr Oliver O'Connell (25 January 2018)
Report by Dr Russel Davies (26 February 2018).
Dr Ghosh voluntarily provided Dr Newnham with a number of documents:
Mandatory report against Dr Faisal Khan (author Dr Ghosh);
Statutory Offences Form - "complaint against the Khan Family Trust" (author de-identified);
Affidavit (29 February 2012; author Dr Ghosh);
Statement of a witness (17 January 2010; Charlestown Police Station: witness Dr Ghosh);
Emails from guests of Dr Ghosh at her holiday rental property in Surfer's Paradise.

The Tribunal also had the advantage of seeing Dr Newnham give her evidence during her extensive cross-examination which took place for almost the entirety of the third day of the hearing.
Prior to commencing her evidence Dr Newnham volunteered that there were some minor chronological errors made in relation to Dr Ghosh's use of anti-psychotic medication in 2017 rather than 2018; importantly, that there had been no prescription of anti-psychotic medication by Dr Ghosh while she had been suspended. That, and some other incorrect dates and details, were readily conceded by Dr Newnham. In the Tribunal's view, those minor corrections were totally appropriate concessions and did not, in any way, impact on the value or validity of Dr Newnham's opinions and observations. In particular, the Tribunal does not accept the suggestion of thematic errors on Dr Newnham's part as is implied in Dr Ghosh's closing submissions at [35] nor the description of Dr Newnham not 'acquitting herself well in her oral evidence' - at [41].
Following an interview with Dr Ghosh, a mental state assessment and a review of extensive documentation, Dr Newnham thought that all of this material pointed to Dr Ghosh as suffering from a psychotic illness and indicated a marked decline in her functioning since the birth of her son AB. Rather than having an inherently critical attitude towards Dr Ghosh, Dr Newnham was at pains to stress in her oral and written evidence that, prior to AB's birth, she, Dr Ghosh, had obviously been a highly functioning and competent individual. That was evident from the qualifications and experience levels Dr Ghosh had attained. The Tribunal considered that that was a manifestation of the professional objectivity Dr Newnham displayed in relation to the entirety of her evidence and assessment of Dr Ghosh.
Dr Newnham also said that she would defer in any ongoing diagnostic situation to the opinions expressed by any treating psychiatrist who saw Dr Ghosh over a significant period of time.

[29]

Dr Newnham: criticisms of Dr Ghosh's treatment of AB

Dr Newnham thought it was totally inappropriate for Dr Ghosh, who was a mother as well as a GP, to be treating her son who Dr Newnham described as a boy with considerable and serious medical needs. Further, she thought that it was inappropriate for Dr Ghosh to write a Mental Health Care Plan for her son. In Dr Newnham's view, the preparation of a Mental Health Care Plan required a stable medical practitioner to review it in conjunction with the parents in their capacity as parents - not as a doctor.
In Dr Newnham's view, the prescription by Dr Ghosh of anti-psychotic medication for a child/adolescent was a very serious matter which should only have been done by a child and adolescent psychiatrist. That action by Dr Ghosh was totally inappropriate.
Further, Dr Newnham thought that Dr Ghosh's diagnosis of AB as having psychosis was something which was rare in a boy of his years. Her prescription of aripipazole was "at best regrettable and at worse, bizarre". She also thought that Dr Gosh's prescription for a period extending over a six month period was highly unusual - as was the suggestion that a 12 or 13 year old would not have been admitted to a public hospital as described by Dr Ghosh. The evidence appears to be that Dr Ghosh wrote two prescriptions with five repeats within a few months of each other but only two single prescriptions were dispensed according to the PBS data.
Dr Newnham made the following specific observations in her original report:
Unkempt appearance. Dr Ghosh "appeared slightly un-kempt, with knee-length stockings not meeting all the way to her knee-length skirt and her hair appeared to be un-washed. The Tribunal notes that this description of Dr Ghosh's then appearance is at odds with the descriptions of other practitioners.
Incongruent affect. Dr Ghosh's "…affect was incongruent to the content of her speech. For example, she did not demonstrate any variation in affect when describing her son's illness or the involvement of the Department of Community Services"
Formal thought disorder Dr Ghosh's speech "was loud, rapid, and for at least the first sixty minutes of the interview, quite difficult to interrupt. There was evidence of formal thought disorder. Her thought form was highly circumstantial and greatly over-inclusive of detail, giving multiple names of various doctors and other parties she believed have conspired against her when names were not requested. She would divert widely from the question, eventually coming back to the answer only after several minutes of extraneous detail."
The Tribunal observed the same matters in Dr Ghosh's speech and conduct during the hearing, and particularly her tendency to make outspoken interventions even when cautioned about the possible impact of such comments.
Presence of multiple persecutory and grandiose delusions Dr Newnham said that: "During this assessment she expressed multiple persecutory self-referential beliefs. These beliefs were at times implausible "to the point of being bizarre. Dr Ghosh also holds numerous grandiose beliefs about her abilities as a doctor. These beliefs at times were sufficiently without rationale basis as to be concluded delusions of a grandiose nature."
Conspiracy in areas of life "where Dr Ghosh believes that conspiratorial forces have been working against her". Those included her relationships with other doctors, support staff and patients; her extended family; the involvement of the Department of Community Services with her family; those involved with her Queensland rental property (the tenants, the neighbours, the police and the court system).
In this general area, Dr Newnham provided multiple examples to support her opinion, including Dr Ghosh's response to the complaint by her former employer Dr Khan. That response was to make "a counter report" in which Dr Ghosh made multiple serious allegations about Dr Khan's practice, …"none of which were able to be substantiated by the Healthcare Complaints Commission whose response was included in Dr Ghosh's documentation shown to me. Despite none of her allegations being able to be corroborated, Dr Ghosh maintained she continues to believe that they are true. In the report against Dr Khan, she was highly preoccupied with the fact that Dr Khan is a Pakistani and made several references to his race and religious practices. 'He left for five weeks to attend the "Haj" in Saudi Arabia with his head shaved, returning on 911 (11/8/17) with terrorist connections.' (That was qualified by Dr Newnham to be a reference to 'alleged' terrorist connections) This is a particularly serious allegation to be made against a colleague in the absence of evidence, particularly when being put in writing to a professional registration body. In keeping with Dr Ghosh's language used in her Affidavit, as previously mentioned, her language is "over-inclusive, highly dramatic and the content unstructured."
Again, the Tribunal observed the same matters and heard the same kind of evidence in the same kind of manner from Dr Ghosh during the hearing.
Concerns re: cognition. Dr Newnham considered that: "…Dr Ghosh's cognition was grossly intact but there was evidence that further testing is necessary particularly in relation to frontal/executive functioning. At times her statements revealed a degree of dis-inhibition, such as the degree of detail she went into pertaining to her husband's sexual difficulties in the conception of their son."
The Tribunal also observed this dis-inhibition on a number of times during the hearing - particularly after Dr Ghosh was informed on at least four occasions that her loud interjections or instructions were audible to the Tribunal. Further, that she should be cautious in the context that such interventions could be used to draw inferences against her, both in terms of her capacity to control herself, and as demonstrations of a tendency to continue her vehement and obsessive determination to prosecute her views. Nevertheless, and unfortunately, that behaviour continued during the hearing.
Dr Newnham considered this behaviour to be both concerning and very important. It was the basis for her recommendation that there be a condition imposed on Dr Ghosh to ensure she has neuro-cognitive testing.
Impaired insight. Dr Newnham considered that: "Dr Ghosh demonstrated only minimal insight into the impact of her behaviour on her professional standing and patients, with blame almost entirely deflected externally. She demonstrated no insight into the fact that her account of her son's illnesses - as well as the involvement of the Department of Community Services - was most unusual. She indicated that she believed she was a general practitioner of exceptional ability and that by taking cultural awareness and communication training as recommended by the Council, she now fulfilled her obligations and was now fully fit to practice medicine. However, despite this culture awareness training, she continued to repeatedly make references about Pakistanis and frequently used the term 'unemployed disability pensioner' throughout the assessment when speaking about complainants." The Tribunal accepts this characterisation of Dr Ghosh's insight, behaviour and methods of communication.

[40]

Observation by Dr Ghosh of the Guidelines about treating family members

There is no doubt about the severity of AB's ongoing condition and problems. Those, the severity of them, and the need for treatment, must have been clear to Dr Ghosh. She had seen a number of child psychologists since 2008. She told the Tribunal she has also sought advice about AB's management over the phone from an unnamed paediatrician at John Hunter Hospital. In 2016, Dr Ghosh prescribed risperidone for AB then aged 11. She stated that she had discussed her concerns about AB's behaviours (neglecting personal hygiene, not opening his bowels regularly and some delusional thinking) with this paediatrician who recommended risperidone.
The Tribunal considers that Dr Ghosh should have sought independent medical advice at both the specialist and general practitioner level, rather than persisting with her own treatment of AB and the prescription of medication for him.
Dr Ghosh was asked by the Tribunal why the paediatrician had not provided her with a prescription for risperidone and she responded that he might have and she may have lost this prescription. Dr Ghosh also told the Tribunal that she had trialled the risperidone for only about a fortnight then stopped it.
AB was hospitalized in April 2016 in John Hunter Hospital for the investigation and management of a painful left hip. His treating doctors (orthopaedic registrars and specialists) diagnosed transient synovitis. However Dr Ghosh was convinced AB had septic arthritis as he had severe pain. After conflict with hospital staff AB was discharged against medical advice.
During this time, Dr Ghosh prescribed strong analgesia and several courses of antibiotics for her son. The hospital doctors made a referral to FACS regarding Dr Ghosh's involvement in her son's treatment.
Dr Ghosh also prescribed substantial quantities of anti-psychotic drugs for AB. Those are set out at [118].
In response, Dr Ghosh said that she did not initiate the prescription for him; that was done by a US doctor who gave her additional prescriptions which she later used - see next paragraph. She then filled out additional prescriptions for the same kind of medication. Ultimately that medication was further prescribed by Dr Colin Kable.
Dr Ghosh told the Tribunal that in January 2017, whilst returning from a cruise to South America, AB had a psychotic episode at the international airport in Florida. He was admitted into a specialist Child Behaviour Unit in Florida and prescribed anti-psychotic medications. On return to Australia in mid-January 2017, the family attended CAMHS (Child and Adolescent Mental Health Service) in Newcastle on a weekly basis for three months. During this time AB was seen by a psychologist and was not, until the last visit, reviewed by a psychiatrist.
Dr Ghosh stated that the service did not prescribe any medications to help with AB's behaviour. Dr Ghosh then wrote two prescriptions of olanzapine in March and May which she states was continuing what had been initiated in the USA.

[42]

Use of medications for herself when prescribed for AB

Also of particular concern to this Tribunal was the number of times Dr Ghosh had used medications, which she had prescribed for her son, for herself or other members of her family. She agreed that she would not do that in the future although shortly after giving that evidence she qualified it by saying that "…as a mother, I prescribe for my son".
Dr Ghosh's accounts of why, on various occasions, she issued prescriptions for her son, when other doctors, hospitals, or medical centres were available, were not convincing in terms of persuading the Tribunal of her personal, professional or medical insights or attitudes. That history is all the more surprising when considering the clear warnings she had received from various doctors and authorities not to treat, nor prescribe for, her son.
Also of concern to the Tribunal was the absence of supporting medical material in relation to AB from his treating specialists. It appeared from an annexure to Dr Ghosh's statutory declaration of 17 September, 2018 that AB was examined by Dr Katherine Thomson-Bowe, a specialist paediatrician in August 2018. Her report of 27 August, 2018 indicated that AB was anxious and rigid but made no reference to autism. That report contained a number of deletions and omissions and the Tribunal was unable to rely on it to ascertain what an independent paediatrician considered AB's current situation to be. In that regard, there was no up-to-date report from Dr Kable who is said to be AB's treating psychiatrist.
The Tribunal has considerable concerns based on Dr Ghosh's practices in this area in the context of her evidence. On a number of occasions she said that others had issued those prescriptions, or that while she had issued those prescriptions, she had not always used them.
Near the conclusion of her evidence, Dr Ghosh undertook not to treat AB other than in emergencies. That was reiterated in her closing submissions at [36]. However, the Tribunal does not accept that statement of future intention and feels considerable unease about accepting that undertaking, given Dr Ghosh's continued view of her own capacity and competence to diagnose and deal with AB's many issues, and particularly those specific issues had been brought to her attention before by a variety of personnel. Clearly AB is a child who warrants, and needs, a great deal of independent, regular medical and other assistance.
The Tribunal considers that, both personally and professionally, that approach should be both front and central in Dr Ghosh's thinking and conduct. That has not been the case over at least the recent one to two year period. The Tribunal regards that as a fundamental breach of a medical practitioner's obligations - particularly when viewed in conjunction with Dr Ghosh's actions in relation to the Mental Health Treatment Plan she devised for AB and monitored herself - [126].
While the Tribunal has considerable empathy for the ongoing strains and pressures of a parent of a child in AB's circumstances, those pressures are precisely why Dr Ghosh needs to absent herself from her current close involvement with his medical treatment and seek and rely on professional help.

[55]

Veracity and issues of credit

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.
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].
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.
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.
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.
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.
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.
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.

[58]

Earlier complaints: s 150 hearing

The Tribunal does not consider it appropriate or necessary to review the earlier complaints against Dr Ghosh. However, the Tribunal notes the comments from the s 150 hearing that:

Dr Ghosh has been the subject of nine prior complaints, six of which resulted in some kind of action. She has had two performance interviews relating to three of those complaints and this, her tenth complaint, is the second alleging a mental health impairment.
there were several previous complaints made against Dr Ghosh that related to her inappropriate behaviour and raised concerns about her mental health.
The tenth (and de-identified) complaint, reviewed at the s 150 hearing, included "over ten separate individual complaints alleged to be directed at Dr Ghosh". These included four hand-written complaints from patients, eight pages of documented complaints from reception, administrative and nursing staff at Wallsend general practice, one email from a patient and from three consecutive appraisal meetings between Dr Ghosh, Dr Khan and others.

The s 150 delegates concluded (in part) that "Dr Ghosh demonstrates a reckless disregard for information provided by her patients and, if the alleged complaints are true, has acted impulsively and aggressively on several occasions in her clinical practice. She appears to lack judgment in what she says about and to other doctors and her patients…".
Further: "…It was clear to the delegates that Dr Ghosh does not have the capacity to communicate clearly with her patients and her communication style actively impedes that communication. It was also very concerning that Dr Ghosh consistently commented on the ethnic, religious, racial and class backgrounds of her patients and her colleagues."
The Panel also noted that "Dr Ghosh also seemed to lack self-awareness. Rather than reflect on the extraordinary number of complaints made in relation to her approach to patient communication, she either attributed the complaints to a culture of complaining engendered by the practice or to patient instability… At no point did she reflect that she herself could have handled things differently."
When taken to the history of other complaints, Dr Newnham also said that Dr Ghosh had repeatedly either denied the complaints, or justified the actions of concern, with her only acknowledgement of a failure of standards being that she requires improvement in interactional skills with disadvantaged, difficult and vulnerable patients.
The Tribunal considers that Dr Ghosh's presentation and evidence at this hearing only confirmed those observations of both the earlier Panel hearing and Dr Newnham. Further, that there was no indication that Dr Ghosh had either accepted or learnt from those observations.

[59]

Complaint: Mr Brosz

The same indication of problematic communication and inappropriate responses was evident from the complaint involving Mr Brosz. The background to that was that Dr Ghosh admitted to seeking to charge over $300 for an insurance report based on a single consultation; deliberately delaying providing Mr Brosz with a compliant Tax Invoice because she wasn't "particularly sympathetic to him"; altering the original handwritten Tax Invoice after he had returned it to her; charging him for more than double her usual fee for provision of medical records due to "the aggravation factor" and leaving him what the Panel consider to be a threatening message on his phone, terminating his treatment. Although she denied threatening to call his boss, she does not deny stating that she had commenced legal action against him, threatening that he would be "arrested by security" or stating that he has a mental problem.
There was no documentation by Dr Ghosh in Mr Brosz's medical records of any threating phone calls or letters of his care having been terminated. These admitted facts alone raise serious concerns about Dr Ghosh's judgment and professional conduct.
Of particular concern to the Panel was Dr Ghosh's dismissive attitude regarding this matter and her attempts to denigrate the patient by stating that he was "uneducated" and was seeking services for free. Further, her repeated statements about the frequency and persistence of phone calls, particularly from insurance companies, are difficult to believe. Also of concern were her statements to the Panel regarding "twenty years as a GP" and having had no patient complaints since she had been in practice in Newcastle. Both statements were, if not misleading, inaccurate in not providing a full picture of what had happened over the later stages of that period.
That same attitude was clear in the evidence given before this Tribunal concerning the complaints made against her.
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.
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.
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.
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.
Arising out of all the material before the Tribunal both in the previous hearings and as filed in or relied on in this hearing, the Tribunal notes with concern that: 1. rather than dealing with the substance of those complaints, Dr Ghosh has made a series of attacks on the other professionals involved in the earlier proceedings. That has involved, in particular, attributing malice, or lying, on the part of professional witnesses such as Dr Newnham and Dr Giuffrida. In the context of their reports and the evidence, the Tribunal takes the view that those attacks went far beyond the bounds of acceptable adversarial criticism, but rather indicated a degree of paranoia or contempt inconsistent with the professionalism which is to be expected of a doctor effectively applying for re-admission to practice. That is even more concerning given that the context is that one of the primary areas of investigation of Dr Ghosh was as to her behaviour as someone concerned about the health and welfare of a child in the situation of her own son; 2. Dr Ghosh seems to be either unaware of, or contemptuous of, the clear policy behind the AMC Guidelines in relation to medical practitioners treating their own family members, and in particular, the need for objectivity. That concern relates not only to her past actions in relation to her son, AB, but also her disregard and open hostility to the ongoing attempts by the Medical Council staff to bring these concerns to her attention; 3. Dr Ghosh has criticised the HCCC for bringing the issue of her medical practices with her son to the attention of FACS - also an agency for which she appears to have little regard. The Tribunal considers that this conflation of her own perceptions and needs with those of her son indicates an alarming lack of insight and preparedness to accept guidance; 4. Dr Ghosh criticised Dr Giuffrida in his capacity as a Panel member on the basis that he '… is someone who controls clinical exams in all specialities…' as well as on the basis of her unconfirmed belief that he was involved in appointing his friends as professional experts for the Medical Council. The Tribunal considers that criticism is not only unsubstantiated but also that it indicates a lack of understanding on Dr Ghosh's part of the processes of medical training and involvement. Further, it suggests a lack of objectivity on her part which is likely to impinge on Dr Ghosh's capacity to seek or accept professional assistance in the future - something which Dr Ghosh would clearly need if she was going to return to medical practice.
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.
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.

[60]

Submissions by counsel for Dr Ghosh

Comprehensive written submissions from counsel for Dr Ghosh dated 25 October 2018 were received and considered by the Tribunal. Without setting those out in detail, the central thrust of those submissions were to the effect (submissions paras 6-14 and ff) that there was a difference between the power to suspend and a power to impose conditions. It was submitted that those were mutually exclusive, that there was no limitation on the condition imposed "not to practise medicine". Further, that the imposition of that condition was an error of law as such a condition was for all purposes a suspension and a prohibition on practice.
The Tribunal does not accept that submission, rather, accepting the approach of the Medical Council in its Reply. To the extent that there is, or may be, a lacuna in the legislation (as suggested or implied), the Tribunal is of the view as a matter of statutory interpretation that the National Law is purposive legislation for the purposes of s 15 AA of the Acts Interpretation Act 1901 (Cth) and s 33 of the Interpretation Act 1987 (NSW). The clear purpose of the legislation is to ensure that a medical practitioner who has been found (as here) to have issues going to her fitness to practice is subject to a regime whereby the Medical Council as the regulatory authority has the flexibility to ensure that she will properly treat the health and safety of members of the public - see generally Mills v Meeking (1990) 91 ALR 16 per Dawson J at 30-31 (with reference to the Victorian Acts Interpretation Act); Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 153 ALR 490 at 509 per McHugh, Gummow, Kirby and Hayne JJ. It is not a situation (if that is what is contended for) where a medical authority should only have the option of letting the practitioner back to practice subject to conditions. The Tribunal accepts that there are good policy, administrative and supervisory reasons why a variety of responses and options might be considered by a regulatory authority in these circumstances, and for different time periods, when different professional opinions are received. It may be, for example, that a practitioner could maintain registration and work in a situation other than direct patient care - such as being a university lecturer. Accordingly the Tribunal rejects that submission that there has been an error of law and what flows from it.

[61]

Consideration and Determination

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.
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.
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.
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.

[65]

Costs

The Medical Council seeks a costs order against Dr Ghosh. The relevant principles to be applied in this jurisdiction have recently been re-affirmed by the NSW Court of Appeal by Meagher JA in Qasim v Medical Council of NSW [2015] NSWCA 282 at [85]. The relevant cost provision under the National Law is cl 13 of schedule 5D.
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. The Tribunal does not consider that there are any such reasons. See also Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. This position is in contrast to that under s 60 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".
The Tribunal considers that such special circumstances exist being the conduct of the proceedings in the absence of evidence as to the compliance with the prior s 150 and s150A Panel determinations and in the absence of any evidence meeting the real concerns expressed in the reports of Drs Hutt and Newnham, particularly about Dr Ghosh's medical, professional and personal capacities and deficiencies in terms of addressing the public interest and Dr Ghosh's capacity to act as a medical practitioner. In that regard the Tribunal does not consider that it is an answer to say that Dr Ghosh was relying on the evidence of Drs Davies, Bench, Robinson and O'Connell given the very different - and much more extensive - material relied on by Dr Hutt and particularly Dr Newnham. It is the responsibility of those seeking to rely on expert evidence and opinion to ensure that the relevant experts are fully briefed with all relevant material.
In so finding, the Tribunal has taken into account the conduct of the proceedings and the costs to the Medical Council. To the extent relevant in the light of the decision in HCCC v Philipiah, there is limited evidence as to the financial circumstances of Dr Ghosh and her family, including that she has not been working for the last year, the costs she and her husband are most likely to have, and to have had, with their son, balanced against their ownership of their home and, apparently, the Queensland investment property. The Tribunal has considered the matters set out in paras [19]-[21] of Dr Ghosh's closing submissions.
The Tribunal also notes that significant professional effort and expense has been incurred in dealing with this application with the chronology of matters set out above in addition to the costs and expenses of the prior s 150 and s 150A proceedings. Those costs have had to be met both by the community and the Medical Council as the relevant professional body. Such proceedings should not be instituted, nor maintained, without a realistic assessment of whether there is sufficient evidence to mount the application. Accordingly in this instance and in these circumstances, the Tribunal determines that costs should follow the event.

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Judgment (67 paragraphs)

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