Health Care Complaints Commission v Ghosh - [2020] NSWCATOD 38 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Ghosh

[2020] NSWCATOD 38

NCAT Occupational|2020-04-15|Before: Associate Professor P

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-04-15

Before

Associate Professor P

Catchwords

[2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501

Judgment (39 paragraphs)

[1]

Background to all complaints

The first five complaints allege that the Respondent is guilty of unsatisfactory professional conduct pursuant to section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates her knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of general medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The practitioner completed a Bachelor of Medicine/Bachelor of Surgery in 1989 from the University of Western Australia. She was first registered as a medical practitioner on 17 January 1992. In 2011, the practitioner became a fellow of the Royal Australian College of General Practitioners (RACGP).
The practitioner worked as a paediatric registrar in a number of hospitals in Western Australia and NSW following her registration.
In around 2002-2003, the practitioner started her own general medicine practice in Charlestown NSW where she worked until early 2009.
The practitioner commenced working as a locum GP until 2010 when she again opened her own general practice in Charlestown NSW where she worked until 2016. From 2010 to 2016 the practitioner also worked as a workplace rehabilitation provider for the ORS Group in the "Fit for the Job" program.
In February 2017 the practitioner commenced work as a general practitioner at Wallsend Medical General Practice where she worked until September 2017.

The Complaints

The Tribunal sets out the following complaints hereunder: COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of general medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s.139B(1)(a) of the National Law). PARTICULARS OF COMPLAINT ONE Patient A 1. On 11 July 2017, at the Wallsend Medical Practice, the practitioner inappropriately prescribed Patient A (DOB 20/11/15), Amoxil sugar free forte 250mg/5ml syrup, an antibiotic containing penicillin for otitis media in circumstances where: a) Patient A was allergic to Penicillin, b) Patient A's mother had informed the practitioner on 10 July 2017 that Patient A was allergic to penicillin and had recorded this on Patient A's "New Patient Registration Form" c) Patient A's father reminded the practitioner during the consultation on 11 July 2017, that Patient A had a penicillin allergy. 2. The practitioner inappropriately said words to the effect of "No, it will be fine" to Patient A's father when he reminded her of Patient A's allergy. Patient B 3. On 7 August 2017, Patient B attended the practitioner at the Wallsend Medical Practice. Patient B was 33 weeks pregnant and requested the vaccine against whooping cough. The practitioner: a. inappropriately refused to give Patient B the vaccine; b. provided Patient B with advice on the effects of the vaccine which were contrary to the current whooping cough/pertussis guidelines, including that "at 33 weeks it may not be effective at protecting your baby" and "the safety is not a hundred per cent known, and it's very recent evidence." 4. The practitioner made inappropriate comments in relation to the vaccine, to Patient B at the consultation on 7 August 2017, in words to the following effect: a. "it could kill babies"; b. "only people in Western countries get it which is why there are so many deformed babies"; c. "the chances of getting whooping cough are so low"; and d. "well it is your choice, but don't blame me if your baby dies". 5. At the consultation on 7 August 2017 the practitioner failed to perform or offer to perform all appropriate antenatal checks on Patient B including an assessment of wellbeing, abdominal examination for uterine size, foetal presentation and engagement, foetal movements, sonic aid auscultation for foetal heart sounds, urinalysis and blood sugar level, if indicated. 6. The practitioner also failed to assess or to document, following an assessment, whether there is a need for haematology, biochemistry and other relevant pathology tests for the final trimester as well as any imaging required. 7. At a s150 hearing conducted by the Medical Council of New South Wales on 12 December 2017, when answering questions of the s150 delegates about her consultation with Patient B on 7 August 2017 the practitioner inappropriately criticised Patient B stating: a. "(Patient B was having) some psychosis of pregnancy or some anger issue"; b. "(Patient B became) violently enraged" and "absolutely off her face and raged"; and c. "maybe she didn't quite understand what I told her, which is obviously a risk with lay patients." BACKGROUND TO COMPLAINTS TWO and THREE Patient C (DOB 27/10/04) is a close relative of the practitioner. Patient C has been diagnosed with Autism Spectrum Disorder and Anxiety Disorder. At all relevant times Patient C was being treated by Dr Colin Kable, child and adolescent psychiatrist and seeing Ms Kerrie Baker, psychologist. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of general medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s.139B(1)(a) of the National Law). PARTICULARS OF COMPLAINT TWO Patient C 1. During the period 1 January 2013 and 1 June 2018, the practitioner inappropriately prescribed Patient C with a number of medications, including: a. Esomeprazole (antacid) between 26 January 2013 and 2 December 2017 b. Doxycycline (antibiotic/antimalarial) between 31 May 2016 and 3 September 2017 c. Paracetamol and Codeine (strong pain killer) in 2016 d. Acetazolamide (altitude sickness tablet) on 21 October 2016 e. Augmentin (antibiotic) between 29 August 2013 and 10 April 2016 f. Fluconazole (anti-fungal) on 31 March 2015 g. Azithromycin (antibiotic) between 26 January 2013 and 14 September 2016 h. Prochlorperazine on 9 December 2015, 18 December 2015 and 18 November 2016 i. Metoclopramide on 4 May 2016, 18 November 2016 and 25 November 2016 j. Silver Sulfadiazine between 27 February 2015 and 24 November 2016 k. Ondansetron on 16 December 2015. 2. Between 26 January 2013 and 2 December 2017 the practitioner prescribed Patient C Esomeprazole in inappropriate quantities (approximately 5100 esomeprazole tablets). 3. On 25 November 2016 the practitioner prescribed Patient A doxycycline in an inappropriate quantity (approximately 1260 tablets). 4. The practitioner inappropriately prescribed the antipsychotic medications risperidone and olanzapine to Patient C on 31 January 2016, 19 January 2017 and 22 March 2017 in circumstances where: a. he was under the care of a psychiatrist; b. she did not inform the psychiatrist that she prescribed the medication to Patient C. 5. The practitioner prescribed the following medications to Patient C which were clinically and therapeutically inappropriate given Patient C's age and medical diagnoses: a. Lomotil; b. Ponstan. 6. The practitioner prescribed to Patient C, Schedule 4 restricted substances Lomotil and Ponstan, in a quantity and for a purpose that was not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to the Poisons and Therapeutic Goods Regulation 2008 (Division 3, Clause 34). 7. Between January 2013 and June 2018 the practitioner failed to refer Patient C to, or arrange for Patient C to consult with, an independent general practitioner for management of his conditions/diagnoses. 8. The practitioner failed to make a record of the Schedule 4 restricted substances that she prescribed to Patient C, contrary to clause 38 of the Poisons and Therapeutic Goods Regulation 2008. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that is improper or unethical in the practice of general medicine (s.139B(1)(b) of the National Law). PARTICULARS OF COMPLAINT THREE Patient C 1. Between about January 2013 and June 2018 the practitioner inappropriately treated Patient C, a close relative, contrary to the Medical Council of NSW (MCNSW)'s "Guideline for self-treatment and treating family members" dated 4 October 2011 and 2 December 2014 and Part 3.9 of the Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia" dated 2011 and March 2014. 2. The practitioner inappropriately devised and submitted to Medicare a Mental Health Treatment Plan for Patient C in June 2014 and reviewed the plan in August 2014. 3. The practitioner billed Medicare for four services provided to Patient C between 2013 and 2015 which was inappropriate and in contravention of the Medicare Benefits Schedule "G.13.1. Services Which Do Not Attract Medicare Benefits". 4. Between January 2013 and June 2018 the practitioner prescribed medications for herself and Patient D, a close relative of the practitioner, in Patient C's name; a. contrary to MCNSW's "Guideline for self-treatment and treating family members" dated 4 October 2011 and 2 December 2014 and Part 3.9 of the Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia" dated 2011 and March 2014; and b. contrary to the Poisons and Therapeutic Goods Regulation 2008 (Division 3, Clause 35) which requires that prescriptions for Schedule 4 restricted substance must include the name of the patient for whom the prescription is for. 5. Between January 2013 and June 2018 the practitioner inappropriately provided regular and ongoing care and treatment to Patient C for his general medical, psychiatric, social and psychological diagnoses. 6. The practitioner failed to make a record of the Schedule 4 restricted substances that she prescribed to Patient C, contrary to clause 38 of the Poisons and Therapeutic Goods Regulation 2008. Providing false and/or misleading information 7. The practitioner provided deliberately false and misleading information to the Medical Council of NSW during proceedings under s.150 of the National Law in that on 12 April 2018 she told the Council delegates that she did not post the anonymous reviews of Dr Faisal Khan and Dr Kim Newnham on the "Rate MDs" website. 8. The practitioner provided false or misleading information to the Medical Council of NSW and the NCAT in a statutory declaration dated 17 September 2018 and filed in NCAT proceedings 2018/8057, in that she stated that Dr Newnham's diagnoses and recommendations were "wildly different from 4 other psychiatrists" and that "4 other psychiatrists found Dr Ghosh to have no mental illness." COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. Contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed)("the Regulation"). PARTICULARS OF COMPLAINT FOUR 1. The practitioner failed to maintain adequate and appropriate medical records of her appointment with Patient B on 7 August 2017. 2. Between January 2013 and June 2018 the practitioner failed to maintain any medical records of her treatment of Patient C. COMPLAINT FIVE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. Contravened s.34A(4) of the Health Care Complaints Act 1993 (NSW) ("the HCC Act"). PARTICULARS OF COMPLAINT FIVE 1. On 22 January 2019, the Health Care Complaints Commission ("the Commission"), issued the practitioner with a Notice pursuant to s.34A of the HCC Act, to produce documents and/or give information concerning medical records for her care and treatment of Patient C. 2. The practitioner wrote to the Commission on 2 February 2019 stating that she does not have access to Patient C's records. 3. The Commission wrote to the practitioner again on 4 February 2019 advising that she is required to provide a statement of information explaining why she cannot provide the Commission with a complete copy of Patient C's medical records. 4. The Commission has not received a signed statement of information from the practitioner explaining why she cannot provide the Commission with a complete copy of Patient C's medical records. 5. The practitioner failed to comply with a notice issued by the Commission under s34A and failed to provide a reasonable excuse for her failure to comply. COMPLAINT SIX is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT SIX 1. Complaints One, Two, Three, Four and Five, and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT SEVEN has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect her capacity to practice [practise] as a general practitioner. PARTICULARS OF COMPLAINT SEVEN 1. The practitioner suffers from an impairment, namely, schizophrenia as defined in the DSM 5. 2. In the alternative, the practitioner has a psychotic disorder due to a medical condition and a neurocognitive disorder. 3. The practitioner's impairment is of sufficient nature and degree to impair her mental capacity to practice [practise] the profession. COMPLAINT EIGHT is not competent within the meaning of section 139(a) of the National Law in that she lacks the mental capacity to practice [practise] as a medical practitioner. PARTICULARS OF COMPLAINT EIGHT 1. The particulars for Complaint Seven are repeated and relied upon.

[3]

Section 150 Hearing

Pursuant to section 150 of the National Law, proceedings were taken by the Medical Council of New South Wales ("the Medical Council") against the Respondent and a hearing took place on 12 December 2017. Written reasons for the decision were published on 17 January 2018. Those proceedings were instituted following complaints made against the Respondent while she was employed in the practice of Dr F Kahn at Charlestown, NSW. There had been 9 prior complaints, 6 of which resulted in action being taken against the Respondent. Two performance reviews relating to 3 of such complaints had taken place. A tenth complaint initiated by Dr Khan was then received by the Medical Council concerning the potential mental impairment of the Respondent. This was the second complaint alleging potential mental impairment.
In the course of its section 150 hearing of 12 December 2017 the Medical Council delegates made the following observations: "It should also be noted that throughout the hearing, Dr Ghosh commented on everyone's ethnic and/or socioeconomic background including patients, doctors and reception staff. This information was not solicited by the delegates and was irrelevant to the complaints. Nevertheless Dr Ghosh insisted on providing it. The delegates had to draw the conclusion, therefore, that the information was perceived by Dr Ghosh as relevant and played a part in her assessment of the complaints made against her. This was highly concerning."
The Council delegates noted: "…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."
The Council delegates observed that: "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. It was unclear why these facts were relevant and what conclusions Dr Ghosh was drawing from them. 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."
The delegates expressed the opinion that: "If this had been the first time Dr Ghosh had come before the Council then her lack of insight might have been less concerning and the appropriate course of action may have been to advise mentoring and communication skills courses. However, she had been counselled numerous times without any noticeable improvement both by the Council and within the workplace."
Regarding whether or not Dr Ghosh's health was impaired, the delegates expressed the opinion that: "Because of her inability to gain insight when given clear feedback, delegates were concerned that there was a health impairment issue. While we could not come to a conclusive view regarding her mental health, it was clear that her manner and communication style impeded her capacity for safe work practices."
Regarding whether or not this would impact on Dr Ghosh's practice of medicine, the delegates expressed the opinion that: "There is strong evidence that she has very poor insight in relation to how her manner and style of communication with patients impacts on her capacity to effectively deal with their clinical issues. She shows very little understanding of the way her own conduct might impact on the capacity of her patients to communicate important details of their health. Her behaviour may result in patients being intimidated and stopped from providing key facts of their physical and mental health. Dr Ghosh has, it appears, on some occasions dismissed those details, refused to address them or has become aggressive."
The delegates considered whether or not there were conditions that could be imposed to minimise the risk that Dr Ghosh may pose to the public's health and safety and concluded that: "There are no conditions that could be imposed to minimise the risk. Dr Ghosh appears unable to gain insight from counselling and therefore she should not be allowed to see patients until her mental health is assessed and she addresses her communication limitations."
In answering the question 'should Dr Ratna Ghosh's registration be suspended?' the delegates concluded: "Yes. Until Dr Ghosh has her mental health assessed, there is a strong risk that she may fail to treat a patient with appropriate clinical care due to her inability to communicate with the patient and her lack of understanding of the impact of her behaviour. If Dr Ghosh is found not to have a mental impairment there will still need to be significant reskilling in communication and appropriate clinical behaviour before Dr Ghosh can return to practice."
The Medical Council ordered that the Respondent's registration be suspended from 12 December 2017 at 3PM, and that the matter be investigated by the HCCC.

[4]

Section 150A Hearing

A further (the second) hearing was conducted pursuant to section 150A of the National Law on 12 April 2018 following an application dated 1 March 2018 for review of the section 150 decision.
Included in the subject matter of the second hearing were further complaints against Dr Ghosh. One of these related to the refusal to hand over medical results and records. Another complaint concerned harassing and discriminatory behaviour on the part of the Respondent. Three further complaints concerned the Respondent's behaviour as being inappropriate or in failing to diagnose or appropriately treat patients. The most recent complaint received by the Medical Council related to the alleged treatment of Patient C, a close relative.
Regarding the question of whether or not Dr Ghosh was impaired, the Council delegates made the following observations at the conclusion of its section 150A hearing of 12 April 2018: "In answering the question what changes have there been to Dr Ratna Ghosh's circumstances, the delegates concluded that despite the disagreement amongst the psychiatrists as to the nature of Dr Ghosh's impairment, it was clear that a majority of the psychiatric reviews did identify significant deficits in her behaviour. The report provided by Dr Newnham had the benefit of all the documentation and therefore offers the most comprehensive and persuasive account. While the delegates were not able to conclude that Dr Ghosh had schizophrenia, they took the view that there was a majority of views that supported some kind of impairment in the form of a personality disorder and were persuaded by Dr Newnham's firm oral evidence that Dr Ghosh's highly implausible assertions were delusional. [The delegates] did not ask Dr Newnham for a differential diagnosis the implication is that Dr Ghosh probably suffers from a delusional disorder. 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."
What was of particular concern to the Council delegates in the second hearing was that: 1. Dr Ghosh had treated her close relative contrary to accepted guidelines including the Guideline of the Australian Medical Board; 2. Her treatment of her close relative had been inappropriate in that she had prescribed anti-psychotic medication for her close relative. At that stage her close relative had been diagnosed with acute psychosis and autism; and 3. The number and kind of complaints to which Dr Ghosh had been subject indicated particular concern about her lack of insight, her methods of communicating with patients and other professionals and her rejection of professional advice given to her. The kind of complaints to which Dr Ghosh had been subject indicated particular concern about her lack of insight, her methods of communicating with patients and other professionals and her rejection of professional advice given to her.
On 16 May 2018 the Medical Council published its reasons and decision following the second hearing. The following orders were made: "Pursuant to section 150A of the National Law (NSW) we vary the decision of the Council to suspend her registration and impose the following practice condition on your registration: Practice Conditions: 1 Not to practise medicine 2 To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions."
The Respondent appealed such decision to this Tribunal. Following a hearing extending over three hearing days, the Tribunal published its decision on 20 November 2018. The Tribunal dismissed the appeal and confirmed the order that the Respondent not practise as a medical practitioner: see Ghosh v Medical Council of NSW [2018] NSWCATOD 186.

[7]

Patient B

Dr Kertesz considered an examination by the Respondent of the patient on 7 August 2017 when the patient presented for an antenatal check. He observed that from the material supplied, it was apparent that a very minor portion of the required examination was performed and documented in the notes. He also observed that it was recorded that the patient had "inappropriate aggression" and a comment was made "difficulty understanding plain English".
As to vaccination of the patient, Dr Kertesz stated: "Dr Ghosh appears to have no appreciation of the current guidelines as pertain to Pertussis vaccination in the third trimester of pregnancy with respect to the pregnant patient or to the neonate. As outlined in this report earlier the current guidelines encourage a vaccination of pregnant mothers in the third trimester of pregnancy each pregnancy to minimise the possibility of Pertussis in the neonate. This is an unfortunate rebound recommendation due to the failure of the parents to vaccinate their children and thus compromise heard immunity principles."
He considered the Respondent's failure to be aware of the current guidelines to be below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Further, he considered that the advice to the patient was significantly below that standard and invited his strong criticism.
As to the Respondent's knowledge and understanding of the whooping cough vaccine (Pertussis), during the s 150 proceedings the Respondent stated that she did not consider the vaccine to be particularly effective and was at best 60% effective; that if the vaccine "crosses the placenta and the antibodies don't you know it may have resulted in pre-term delivery or some (indistinct) or illness in the foetus inside the utero". With respect to such comment, Dr Kertesz stated that the Respondent's knowledge and understanding of the principles of Pertussis vaccination was minimal; that statements made by the Respondent to the delegates during the s 150 proceedings were incorrect and inaccurate, displayed a lack of knowledge and experience and demonstrated that such departure was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.
With respect to statements made by the Respondent during the s 150 hearing that pregnant women can get "very agitated and touchy. So maybe she was having some psychosis of pregnancy or some anger issue", Dr Kertesz stated that a general practitioner should be skilled in eliciting emotional issues in a patient within a reasonable timeframe and that such issues could be dealt with in subsequent consultations. He considered the remarks to the delegates by the Respondent to be demeaning and that they were below, and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and they invited his strong criticism.
In respect of the documentation made in respect of the patient, Dr Kertesz stated that there seemed to be a personality issue between the patient and the Respondent. He did not consider that the quality of care provided was adequate.

[8]

Patient C

These particulars related to treatment by the Respondent of Patient C, a close relative of the Respondent, who Dr Kertesz observed was a highly intelligent, psychiatrically ill person. He referred to the fact that treating family members was contrary to NSW Medical Council, AHRA, AMA, and RACGP guidelines. He considered that the administration of antipsychotic medications without the patient's knowledge could be construed as performing chemical restraint; that the conduct of the Respondent fell significantly below the standard expected. Further, claims for such treatment made by the Respondent on four occasions to Medicare were inappropriate; and that such conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.
Dr Kertesz stated that the Respondent should have taken Patient C to an independent general practitioner; that her failure to do so fell significantly below the expected standard and invited strong criticism. He rejected the contention of the Respondent, that she had never considered herself to be Patient C's general practitioner, in light of correspondence which she had written which clearly acknowledged that she was writing a referral for him because she had been unable to "get him into our regular GP at Charlestown medical Centre". He found the Respondent's statements to be contradictory and that her conduct in treating Patient C fell significantly below the requisite standard and invited strong criticism. Further, the prescribing of medications for Patient C which were not for his use and therapeutic management, was inappropriate, fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited his strong criticism.
The Respondent was not in possession of any records relating to the management of Patient C. She claimed that the file remained in the practice when it ceased operating in 2009. However, the period of concern for the report of the expert was between 2013 and 2018. In this period, it appeared there were no medical practice notes for the Respondent's treatment of Patient C or management, other than those available from other practitioners. Dr Kertesz considered that the failure to keep any medical notes for Patient C's treatment, and her inability to produce notes, fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.
Dr Kertesz considered that Dr Ghosh's prescribing for a close family member, when the medications were obviously not for that person's use and therapeutic management, was inappropriate and did not conform to a number of guidelines including those of the Medical Council. He found this behaviour to be below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.
Further, it was to be expected that practitioners who have pharmaceutical prescribing rights observe the Prescribing Code of Practice, a key principle of which is that prescriptions be issued in the name of the patient with the patient's knowledge and agreement. The prescribing to Patient C fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited his strong criticism.

[10]

Dr Kim Newnham

Dr Kim Newnham, also a Council Appointed Psychiatrist, interviewed the Respondent on 23 March 2018. Dr Newnham provided the following synopsis of assessment: "The history obtained at interview, mental state assessment and review of extensive documentation points to Dr Ghosh suffering from a psychotic illness. The history is consistent with a marked decline in functioning that appears to have commenced around […] thirteen years ago" [following a significant event in her family]. "Dr Ghosh believes that a series of negative events have befallen her and her family over many years. The events she describes have impacted several areas of her life. 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 rational basis as to be concluded delusions of a grandiose nature."
Dr Newnham continued: "History given today by Dr Ghosh about her [close relative's] illnesses has raised my concerns about the presence of a factitious disorder by-proxy. . . . Dr Ghosh's assessment today did not demonstrate any awareness that medical and history [sic] given about her [close relative] was in anyway irregular."
Dr Newnham added, in relation to a 'mandatory report' Dr Ghosh had made alleging multiple serious allegations against Dr Khan: "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." Dr Newnham arrived at the following opinion: "Dr Ghosh presents with multiple persecutory beliefs extending into several areas of her life. These persecutory beliefs have led toward complaints about her behaviour towards patients, practice staff, colleagues and have led to 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 are not in keeping with her pre-morbid intelligence, and professional and life experience. In addition, she demonstrated a disorder of thought form. This was evident in both this 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 bloody glucose for many years, hence there is the possibility of that Dr Ghosh is suffering 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 diagnosis include: psychotic disorder due to a medical condition Neurocognitive Disorder."
Dr Newnham considered that the Respondent suffers from an impairment and stated as follows: "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. 2 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 she was permitted to return to practice. 3 If the suspension were lifted, the conditions to consider that should be imposed on Dr Ghosh's registration are as follows: i) Dr Ghosh undertake to nominate a general practitioner; ii) Dr Ghosh be referred to a psychiatrist for treatment and ongoing care iii) Dr Ghosh undergo neuropsychological assessment; iv) Dr Ghosh be allocated a supervisor; v) Dr Ghosh to not be permitted to work in solo practice."
Dr Newnham provided a supplementary report dated 6 July 2018 in which she commented upon the treatment provided by the Respondent to Patient C, and of her billing Medicare. Dr Newnham stated: "PBS data indicate that Dr Ghosh has been repeatedly prescribing medication to [Patient C] during the period of 6 April 2013 - 1 April 2018. The report indicates that she has prescribed for [Patient C] a total of 89 times. On 23 March 2018 Dr Ghosh told me that she does not have an independent regular treating general practitioner for [Patient C] but takes [Patient C] to a local medical centre where [Patient C] sees the first doctor available. The PBS summary does not indicate that any other doctors have prescribed for [Patient C]. Whilst this situation should always raise concerns, it is particularly so in this case, given that Dr Ghosh tells me she believes [Patient C] has had significant mental and physical illness issues throughout [Patient C's] young life, including Autistic Spectrum Disorder, epilepsy, septic arthritis of the hip and a severe psychosis at the age of 11. In my opinion, Dr Ghosh continuing to treat [Patient C] is an indication of impaired judgment."
Dr Newnham, in the supplementary report, also made comment in respect of a report by Dr Geoffrey Robinson, obtained by the Respondent, as follows: "I have perused the report prepared by psychiatrist, Dr Geoffrey Robinson, dated 18 June 2019. I note that Dr Robinson did not feel that Dr Ghosh was suffering any major mental illness and should not be precluded from practising medicine. Dr Robinson did not list his complete sources of information, but did allude to those sourced being an affidavit from Dr Ghosh and various positive testimonials from others. Dr Robinson did not indicate he has access to the various complaints against Dr Ghosh, and the various earlier police statements, affidavits and complaints against other doctors. In [sic] These sources indicate that Dr Ghosh has been exercising impaired judgement in many areas of her life over a period of several years. Dr Robinson did not expand on Dr Ghosh's family and social history in his report. How a person is functioning in these domains is an important aspect of an overall psychiatric history, and should not be overlooked when assessing the psychiatric suitability of a doctor to practice [practise] medicine."

[12]

Dr Christopher Bench

Dr Christopher Bench, an independently appointed forensic psychiatrist, provided a report dated 28 March 2018, at the request of HWL Ebsworth Lawyers, who were acting on behalf of Dr Ghosh. In that report he reviewed voluminous documentation. He made the following significant findings: "In answer to your specific questions: 1. A brief summary of your assessment of Dr Ghosh Thee [There] was certainly evidence the applicant presented loquacious and somewhat over-inclusive with regard to those elements specifically revolving around the current and historical complaints. There was a general tendency to be over-inclusive with most of the history. Nonetheless, I would not consider this a formal thought disorder per se. I would agree with Dr Davies that this is likely secondary to the anxiety of a stressful clinical evaluation. It is the evaluator's opinion, the applicant would not meet diagnostic criteria for any major mood, anxiety or psychotic disorder. 2. Whether or not Dr Ghosh suffers from any psychological condition disorders or impairment which affects or is likely to affect her ability to practice [practise] medicine. It's evaluated [sic] opinion, the applicant is not suffering from any major mood, anxiety or psychotic disorder that would prevent her from practicing [practising] medicine. I would reiterate the opinions of Doctors O'Connell and Davies that certainly, the applicant presents with very strong ideas including having a predilection to note an individual's ethnicity. She acknowledged there is certainly some antipathy between Indians and individuals from Pakistan. On the other hand, she seemingly noted that she was wholly aware of Dr Khan's background when she had signed a contract to work for him and subsequently noted having attempted to work with another doctor of Pakistani heritage, which she indicated was a proof of her not being racist. She noted having been raised in Perth at a time when it was particularly homogenous with regard to ethnic backgrounds. She stated her father was the only individual of Indian heritage at the university at the time. She was subjected to some bullying during school based on her ethnicity. This may well have sensitized her to issues around race and ethnicity. However, from the evidence presented, the only suggestion that such issues may have caused any difficulties or dysfunction throughout her life were specifically with regard to those complaints raised by the Medical Council of New South Wales. Clearly, such complaints, including having caused there to be some actions and acted previously [sic] in contrast to that acknowledged by Dr Ghosh (during the evaluation) has caused dysfunction. I could find no other evidence to support a diagnosis of a significant personality disorder. It was certainly noted during the present evaluation the applicant had presented as warm and well-engaged. She did not attempt to control the evaluation. She responded to limit-setting without difficulty. She acknowledged some of her flaws, such as her failure in her paediatric exams and failures in her love life. She certainly did not present [as] arrogant or haughty. She expressed significant empathy, if not sympathy, for her patients who have been left in the lurch following her suspension. In this context, I could not find significant evidence of Narcissistic Personality Disorder or narcissistic personality traits. 3. Please comment on the gravity of any condition disorder impairment as noted above. I could find no significant major mood, anxiety or psychotic disorder during the clinical evaluation or from the collateral materials presented for review. 4. whether or not you would support Dr Ghosh having the suspension of her registration lifted and the basis for your opinion in that regard. As noted above, there was no evidence from the clinical evaluation that the applicant is suffering from a major mood, anxiety or psychotic disorder. It is a matter for the Medical Council of New South Wales to decide whether the applicant's registration will be lifted or not. However, there was no evidence during the clinical evaluation to suggest that as a result of any major mood[,] anxiety or psychotic disorder that the employment would pose a risk to the safety or health of the public. 5. Your comment, if any, upon the matters raised in the Section 150 Inquiry Written Reasons for Decision, dated 7 January 2018. The most significant finding would appear to be that the cause of the apparent difficulties in her manner and communications was not elucidated during the hearing and that the applicant should undergo a comprehensive psychiatric evaluation. It is noted she has now had two previous psychiatric evaluations since the written reasons for decisions by Doctors Oliver O'Connell and Russel Davies, neither of whom found any evidence of a major mood, anxiety or psychotic disorder. 6. Your comment, if any, upon the reports of Dr Oliver O'Connell dated 25th of January 2018 and Dr Russell Davies, psychiatrist, dated 26th of February 2018 in particular recommendations within those reports. Dr Oliver O'Connell noted in his report there was no evidence of a major mood, anxiety or psychotic disorder. I would certainly agree with the same. Dr O'Connell implied that the applicant may well be evidencing some narcissistic personality traits. As noted above, this was certainly not readily apparent during the clinical evaluation. On the other hand, Dr O'Connell noting "It's also possible that such behaviours can be due to regression under stress exaggerating underlying personality traits, and Dr Ghosh had been under significant stress." In this context, I would certainly agree with such a statement that if she indeed had significant personality traits that these may well be revealed or amplified by stressful situations. It will only become clear with regard to whether she has a significant personality disorder with more extensive psychotherapy. Doctor Davies had similarly opined there was no evidence of any major mood anxiety psychotic disorder. He also questioned whether in fact she had any evidence of Narcissistic Personality Disorder. As noted above during the present evaluation, I could find no significant evidence to confirm a diagnosis of Narcissistic Personality Disorder."
Dr Bench provided a supplementary report dated 30 May 2018 in which he concluded: "It is the evaluator's opinion if she does not have an Unspecified Personality Disorder, a Neurocognitive Disorder due to a medical condition needs to be excluded with further investigation and examination, including with neuropsychometric testing."
Dr Bench also commented upon references provided by individuals who had worked with the Respondent and stated: "It is the evaluator's opinion that given it is an underlying personality structure that is provoking the interpersonal difficulties, a positive and supportive work environment has likely allowed a minimisation of any difficulties. On the other hand, where the applicant runs into conflict, be that in her work situation with Dr Khan or the treatment situation with [Patient C], her personality deficits are amplified and magnified. However, it should be noted it is in the evaluator's opinion this is certainly a case for Personality Disorder. If she in fact has Schizophrenia, it is [the] evaluator's opinion her delusional system would be fixed and inflexible, it would be apparent in any situation be that in a supportive working environment or otherwise. As such, it is the evaluator's opinion the very positive references noted above would similarly persuade me that Dr Ghosh does not have an underlying primary psychotic illness such as Schizophrenia."
Medicare records have been produced which confirm the treatment and prescribing ordered by the Respondent for Patient C.

[13]

Dr Geoffrey Robinson

Dr Geoffrey Robinson, psychiatrist, interviewed the Respondent on 13 June 2018 at the request of solicitors Frederick Jordan Chambers. This request was made as a part of their preparation for an appeal to the NCAT against the Medical Council's decision under section 150 of the National Law. Dr Robinson made the following findings: "Diagnosis 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 she has Bipolar Mood Disorder; I did not find any other Axis 1 psychiatric disorder. There was insufficient time in information to make a formal Access 2 (Personality) diagnosis."
Dr Robinson expressed the opinion 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 the psychiatrist Dr Davies and Dr O'Connell, and not in accord with the provisional diagnosis of Dr Newnham."
Dr Robinson's recommendation was as follows: "I do not think that Dr Ghosh should be precluded from returning to the practice of medicine. I note that she has attended courses suggested by the Council."
Dr Robinson provided a supplementary report dated 12 July 2018 in which he concluded: "Further opinion In my earlier report I opined that Dr Ghosh was not suffering from a major mental illness".
However, Dr Robinson's revised his diagnosis in this supplementary report as follows: "Diagnosis 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 did not think that she had a Bipolar Mood Disorder. I did not find any other Axis 1 psychiatric disorder. After reading the further information contained in the 150 hearings, I am now of the view that she is suffering from a Narcissistic Personality Disorder." In his discussion, Dr Robinson noted: "that she [Dr Ghosh] 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 (i.e. DSM-5 Axis I) psychiatric illness. I have noted 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 psychiatrists Dr Davies, Dr O'Connell, and Dr Bench, but not in accord with the provisional diagnosis of Dr Newnham."
Dr Robinson added further: "that Dr Ghosh has attended courses as suggested by the Council. I have noted my opinion that Dr Ghosh has an Axis 2 condition, being Narcissistic Personality Disorder. It does appear that this disorder has resulted in an impairment in her ability to practice [practise] medicine as a General Practitioner. Should the Council see fit, I recommend that Dr Ghosh be referred to the Impaired Registrants' Panel. I would envisage that the Council might see fit to grant registration to practice [practise] medicine under a number of conditions, and these might include supervision by another General Practitioner, with regular meetings to provide that supervision; and regular sessions with a treating psychiatrist, with of course further period review by the Council as the Council sees fit."

[14]

Principles

Section 3A of the National Law states that the objective and guiding principle is "the protection of the health and safety public must be the paramount consideration".
The Court of Appeal in Richter v Walton [1993] NSWCA 233 explained that the disciplinary power exercised by a tribunal is to protect the public, not to discipline the practitioner. Kirby P and O'Keefe AJA state that the nature of the order is "entirely protective". Their Honours also wrote that: "Punishment is not the purpose of the proceedings. That purpose remains, from first to last, the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour …"
However the Tribunal also has a public interest in upholding the standards of the profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA said (inter alia) at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In a more recent case of the NSW Civil and Administrative Tribunal, Health Care Complaints Commission v Silberberg [2019] NSWCATOD 56, the Tribunal affirmed both purposes: protecting the health and safety of the public; and secondly, upholding public confidence in the standards of the profession.
Where the conduct is regarded as sufficiently serious to warrant deregistration or suspension from practice, an element of punishment may be required to remind the practitioner of his or her professional duties: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
This Tribunal is of the view that, in addition protecting the health and safety of the public, the public interest in upholding the standards of the profession is relevant in this case.

[15]

Unsatisfactory Professional Conduct

Conduct which may result in the imposition of a disciplinary sanction may constitute unsatisfactory professional conduct as defined in section 139B of the National Law. That section broadly defines such conduct as conduct "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". However it is not confined to mere clinical expertise. If the conduct of a Respondent is not in conformity with standards of professional conduct and practice, it may be regarded as "improper": see R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 at 514-515; see also Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41].
Improper conduct may include "unethical conduct". In Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and [87], the Tribunal observed that improper or unethical conduct is to be determined by reference to the views of reasonable members of the profession. Generally, conduct which has a tendency to bring into disrepute, or does bring a profession or calling into disrepute, is conduct which, by reasonable standards, is seen as falling below the standard of conduct expected of that class of persons: see Office of Local Government v Toma [2015] NSWCATOD 21. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7, said at [29]: "The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal."

[16]

Professional Misconduct

Professional misconduct is defined in s 139E of the National Law as meaning: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The definition of professional misconduct has been stated in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Relevantly, Basten JA said: "Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice [practise] medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice [practise] medicine: s 64(1)."
In Health Care Complaints Commission v Iskander [2015] NSWCATOD 30, the Tribunal said at [174]: "Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the practitioner is probably currently unfit to practice [practise] and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014) NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56)."
The HCCC bears the onus of persuading the Tribunal that the complaints should be upheld. In FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [33]-[36], Hayne J in the High Court of Australia referred to the misnomer of applying common law standards of evidence to proceedings in a Tribunal . The Tribunal has traditionally adopted the standard of proof described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66; Rejfek v McElroy (1965) 112 CLR 517 at [521]; Bannister v Walton (1993) 30 NSWLR 699 at [711]-[712]; Lindsay v Health Care Complaints Commission [2005] NSWCA 356.
The standard remains the civil standard of proof: the authorities make it plain that there is no higher standard than the balance of probabilities when considering the gravity of the conduct involved: see Gianoutsos v Glykis (2006) 65 NSWLR 359 at [548]-[549]; Re Sophie [2008] NSWCA 250 at [50] and [67].

[18]

Complaint One

This complaint alleges that the respondent is guilty of professional misconduct under section 139B of the National Law in that she engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of general medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a) of the National Law). The complaint itemises a number of particular instances in:

inappropriately prescribing Patient A (DOB 20/11/15) 11 July 2017, an antibiotic containing penicillin for otitis media in circumstances when Patient A was allergic to penicillin, Patient A's father reminded the practitioner during the consultation on 11 July 2017, that Patient A had a penicillin allergy, and Patient A's mother had informed the practitioner on 10 July 2017 that Patient A was allergic to penicillin;
inappropriately saying (in effect) "No, it will be fine" to Patient A's father when he reminded her of Patient A's allergy;
inappropriately refusing to give Patient B (who was 33 weeks pregnant) a vaccine against whooping cough when requested by the patient;
providing Patient B with advice on the effects of the vaccine which were contrary to the current whooping cough/pertussis guidelines, including that "at 33 weeks it may not be effective at protecting your baby" and "the safety is not a hundred per cent known, and it's very recent evidence."
making inappropriate comments in relation to the vaccine, to Patient B at the consultation on 7 August 2017;
failing to perform or offer to perform all appropriate antenatal checks on Patient B consultation on 7 August 2017;
failing to assess for Patient B or to document whether there was a need for haematology, biochemistry and other relevant pathology tests for the final trimester as well as any imaging required; and
inappropriately criticising Patient B in answering questions at a s150 hearing conducted by the Medical Council on 12 December 2017.

[20]

Patient B

The Tribunal concurs with the expert evidence provided by the Applicant with respect to Particulars 3, 4, and 7.
With respect to the vaccination advice, the Respondent's lack of an up-to-date knowledge of the readily accessible recommendations to Boostrix vaccine in pregnancy (Particular 3), the Respondent's inflexible and rigid approach to the patient's concerns, and the Respondent's inability to address them (Particular 4), demonstrated that the Respondent's knowledge in this area of expertise, her attitude to patients and her communication skills, were significantly below the standard expected of a general practitioner of an equivalent level of training or experience and amount to unprofessional conduct.
In relation to Particulars 5 and 6 the Tribunal did not have before it the full medical records for Patient B including correspondence from the hospital with the results of those investigations. Nor did the Respondent provide oral evidence concerning the real nature of the consultation by this patient on 7 August 2017. In addition the Tribunal considers that it may not have been necessary to provide routine antenatal care at the visit at 33 weeks gestation; nor order relevant investigations especially as the patient had been seen by another general practitioner three weeks earlier on 13 July 2017. On this occasion it was noted that the patient had an appointment to be seen in the hospital on that day with pathology to be organised through the hospital. In addition, the patient was attending Wallsend midwife clinic as a public patient. The Respondent was not the patient's regular general practitioner providing the antenatal care as is evidenced by the medical record of the patient, including the record of consultations provided by other practitioners in the practice.
For these reasons the Tribunal makes no adverse finding with respect to Particulars 5 and 6 against the Respondent.
With respect to statements made by the Respondent during the s 150 hearing criticising Patient B (Particular 7) the Tribunal finds that they were significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and amount to unprofessional conduct.

[22]

Patient C

The Tribunal concurs with the expert evidence provided by the Applicant that the conduct of the Respondent in treating this patient, who was a close family member, fell significantly below the expected standard for a general practitioner of relevant training or experience. The Tribunal acknowledges the difficulty and the challenge for the Respondent with respect to this patient having regard to the patient's existing chronic medical condition and special needs. However, because the Respondent did not refer the patient to another medical practitioner, the patient was not afforded the opportunity of receiving independent and expert medical care. Further, the Respondent's overall prescribing to a close family member, and in particular the prescribing of anti-psychotic medications, in the absence of an objective and arm's length assessment and diagnosis of any mental health issue, is fraught with danger and is in breach of the Guidelines of the Medical Council for self-treatment and treating family members (see Medical Council of NSW, Guideline for self-treatment and treating family members (2014, Ref: 97/008)).
Complaint Two, Particular 3 erroneously refers to Patient A. This Particular relates to Patient C. The expert witness, Dr Kertesz, made the following observation in relation to the quantity of doxycycline (an antibiotic/ antimalarial medication) prescribed: "The reasons for these prescriptions may cross over to overseas travel for more than one person e.g. on 25/11/2016 Dr Ghosh wrote a prescription for 1260 tablets of Doxy. Used for sinusitis or bronchitis this would amount to approximately two years of constant therapy. Used for malaria prophylaxis for say three persons that quantity would suffice for approx. seven months of protection before during and after travel to endemic areas. Hence the rationale behind this prescribing in the patient's name is puzzling". There is no reasonable clinical indication to support the prescribing of such a large quantity (1260 doxycycline tablets) to one patient at any one time.
The Tribunal agrees with the expert that the conduct of the Respondent demonstrates that her knowledge, skill, judgment, and/or care exercised in treating Patient C falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and such conduct constitutes unsatisfactory professional conduct.

[23]

Complaint Three

This complaint alleges that the Respondent is guilty of professional misconduct under section 139B of the National Law in that she engaged in conduct that is improper or unethical in the practice of general medicine in:

treating Patient C, a close relative, contrary to various relevant guidelines between about January 2013 and June 2018;
devising and submitting a Mental Health Treatment Plan to Medicare for Patient C in June 2014 and reviewing the plan in August 2014;
billing Medicare for four services provided to Patient C between 2013 and 2015 inappropriately and in contravention of the Medicare Benefits Schedule G.13.1 'Services which do not attract Medicare Benefits';
prescribing medications for herself and Patient D, a close relative of the practitioner, in Patient C's name contrary to various guidelines and contrary to the Poisons and Therapeutic Goods Regulation 2008 (Division 3, Clause 35);
providing regular and ongoing care and treatment to Patient C for his general medical, psychiatric, social and psychological diagnoses. between January 2013 and June 2018;
providing deliberately false and misleading information to the Medical Council of NSW during proceedings under s 150 of the National Law in that on 12 April 2018 she told the Council delegates that she did not post the anonymous reviews of Dr Faisal Khan and Dr Kim Newnham on the "Rate MDs" website; and
providing false or misleading information to the Medical Council of NSW and the NCAT in a statutory declaration dated 17 September 2018 and filed in NCAT proceedings 2018/8057, in that she stated that Dr Newnham's diagnoses and recommendations were "wildly different from 4 other psychiatrists" and that "4 other psychiatrists found Dr Ghosh to have no mental illness."

As is discussed above, the expert general practitioner witness Dr Emery Kertesz provided an opinion on the appropriateness of Dr Ghosh's treatment of Patient C. As is apparent from his report, Dr Ghosh:

Treated a close and vulnerable family member over several years in breach of NSWMC, AHPRA, AMA and RACGP guidelines for good practice.
Prescribed for Patient C in ways that deviated from normal prescribing.
Administered medications to Patient C without that person's knowledge or consent.
Wrote prescriptions in the name of Patient C that were in fact for herself or her husband.
Failed to keep medical records for Patient C for the years 2013-2018, or failed to produce, at the request of the HCCC, records that were kept for Patient C.
Billed Medicare for her treatment of Patient C in contravention of the Medicare Benefits Schedule (see G13.1. "Services which do not attract Medicare Benefits").

Further, the findings made with respect to the treatment of Patient C, the providing false and misleading information to the Medical Council delegates during the section 150 inquiry constitutes professional misconduct.
The conduct of the Respondent relates to failures both with regard to aspects of competence and also of ethics. Section 139B of the National Law sets out the meaning of "unsatisfactory professional conduct" as including: "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (see s 139B (1)(l)).
The definition of "improper" and "unethical" conduct in the context of the National Law has been considered: see for example Health Care Complaints Commission v Liu [2016] NSWCATOD 133. In this matter the Tribunal observed at [51] that such terms were not defined in the National Law and accordingly reliance was placed upon the definition in The Macquarie Dictionary. Such definitions included: "1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular."
"Unethical" was defined at [52] as: "1. Contrary to moral precept; immoral. 2. in contravention of some code of professional conduct."
For further examples of the definition of "improper" and "unethical", see Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31] and Health Care Complaints Commission v Little [2016] NSWCATOD 146; and with regard to the interpretation of such words generally, see R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 at 514-515; Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5].
The Tribunal concurs with the expert opinion provided by the Applicant. Since none of the facts alleged in Particulars 1 to 6 are disputed, the Tribunal finds each those Particulars to be established.
With respect to Particulars 7 and 8 (provision of false and/or misleading information) the material before the Tribunal satisfies it that both Particulars are established. In In re Dr John Shashati [2006] NSWMT 2, a pattern of lies and deception was found by the Tribunal to be inimical to fitness to practise and demonstrated that the practitioner lacked good character. In this instance provision of false and/or misleading information by the Respondent shows a disregard for the ethical standards of her profession and disregard for the law.
The Tribunal finds that the conduct of the Respondent satisfies such definition. In respect of the findings made against the practitioner where the conduct has been found to fall significantly below the expected standard, and taken together (see s 139E of the National Law), such conduct constitutes unsatisfactory professional conduct. There has clearly been a departure "from proper standards": see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.

[29]

Complaint Seven

This complaint alleges that the Respondent has an impairment within the meaning of section 5 of the National Law in that she (1) suffers from schizophrenia; or (2) has a psychotic disorder and a neurocognitive disorder; or (3) has an impairment that is of sufficient nature and degree to impair her mental capacity to practise the profession.
The Tribunal observes that all expert psychiatric assessors, with the exception of Dr O'Connell (who only saw the Respondent on one occasion and did not provide a supplementary report) reached the conclusion that the Respondent is suffering a chronic mental or personality disorder resulting in impairment of her capacity to practise safely as a medical practitioner. Further, whilst not diagnosing a disorder, Dr O'Connell notes that: "History and behaviour at interview are indicative of underlying narcissistic personality traits that require more extensive assessment".
There is no agreement between the experts as to whether the Respondent suffers a DSM - 5 Axis 1 Mental Disorder, or an Axis 2 Disorder of Personality with narcissistic and/or paranoid traits. However there is agreement that the patterns of thought and behaviour that have led to a series of complaints concerning the Respondent are pervasive, persistent and have had negative consequences for her professional, personal and family life.
All expert psychiatrists noted that her speech was circumstantial and over-inclusive, that she expressed fixed persecutory and grandiose beliefs including conspiratorial beliefs that her insight was impaired or lacking and that she had failed to substantially benefit from CPD activities intended to improve her communication skills and insight.
The Tribunal also concludes that the Respondent has behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the Applicant, the Medical Council of New South Wales or the Tribunal. The Respondent had also initiated legal actions against certain of these colleagues.
As to the Particulars of Complaint Seven, the Tribunal finds in relation to the following:

[34]

Discussion

The Applicant has sought an order that the Respondent be prohibited from making an application for re-registration for a period of five years.
As is discussed above (under 'Principles'), the Tribunal is mindful that the power exercised by a tribunal is to protect the public, not to discipline the practitioner.
The Tribunal considers that a prohibition on applying for re-registration for a period of five years is excessive and would constitute a penalty when the main function of the Tribunal is protection of the public. However, as is also discussed above, the Tribunal is mindful of the public interest in maintaining public confidence and upholding the reputation of the profession.
In relation to some of the complaints against the Respondent before us, which have been established, the Tribunal finds that the Respondent has engaged in unethical conduct of a serious nature. These include: boundary crossing in treating a close and vulnerable family member over several years; prescribing, in the name of a close relative, medication that was intended for her own or another's use; prescribing excessive doses of doxycycline; and misleading or deceiving the delegates in Medical Council hearings.
Whilst impairment may be a factor to some extent in explaining these behaviours, the Tribunal is of the view that these behaviours also demonstrate that the Respondent has acted unethically. Of further concern is that the Respondent appears to have been resistant to recognising her own shortcomings. As was discussed in Health Care Complaints Commission v Do [2014] NSWCA 307 by Meagher JA: "Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The Tribunal considers that it is in the public interest to signal to the Respondent and to the profession that the Respondent's behaviour, referred to above, fails to meet the required standards. For this reason, the registration of Dr Ghosh is cancelled, and the Tribunal imposes a prohibition on application for re-registration of 18 months. In determining this period, the Tribunal takes into consideration that the Respondent has already been suspended from practice for a period of eighteen months. Such period, together with a further period of 18 months during which the Respondent cannot seek a review of the Tribunal's orders, will have the consequence that the Respondent will have been precluded for practising for a minimum of three years. These orders are intended to protect the public, and are also imposed in the interest of maintaining public confidence in, and upholding the reputation of, the profession.

[36]

Summary and Comment

The Tribunal finds by reason of the undisputed facts contained in the particulars to the complaints: 1. the Respondent has engaged in conduct which constitutes professional misconduct within s 139E of the National Law; 2. the Respondent has engaged in conduct which constitutes unsatisfactory professional conduct pursuant to s 139B of the National Law.
The Tribunal finds by reason of the undisputed facts contained in the particulars to the complaints: 1. the Respondent has engaged in conduct which constitutes professional misconduct within s 139E of the National Law; 2. the Respondent has engaged in conduct which constitutes unsatisfactory professional conduct pursuant to s 139B of the National Law.
The Tribunal records that it has been disadvantaged in its deliberations by the fact that the Respondent has chosen not to take any part in these proceedings. Had the Respondent participated, the Tribunal may have been greatly assisted in understanding the reasons for the Respondent's conduct which has brought these matters to notice. In the absence of written submissions from the Respondent answering the complaints, the Tribunal has been required to rely upon the documentation before it in arriving at its conclusions.
The Tribunal is mindful that the complaints raised by the Applicant against the Respondent have been considered on the material available to the Tribunal. The Tribunal records the following facts: 1. on 19 March 2020 the Respondent was informed by email that a callover would take place by telephone on 25 March 2020 at 9:30 am. The email requested that the Respondent provide a phone number to the registry prior to this time. 2. on the same day a further notification was forwarded by email to the Respondent. This notification informed the Respondent that the tribunal was considering alternatives to hearings in person because of the Covid 19 pandemic. The notification requested that the Respondent be available to take a telephone call from the tribunal between the hours of 9:30 am and 10:30 am on 25 March 2020. The notice requested that the Respondent provide a telephone number at which she would be available between 9:30 am and 10:30 am on 25 March 2020. The notice also informed the Respondent that she would be asked to provide any view she might have in relation to: 1. Whether this matter could be determined by the Tribunal on the papers: Whether this matter could be heard by the Tribunal by telephone, or telephone and audiovisual link; 2. If the matter could not be determined by the Tribunal on the papers, or heard by the Tribunal by telephone, or telephone and audiovisual link, then the Respondent's views would be sought on the adjournment of the matter until a date after 5 October 2020. 3. Any consequential orders which may be necessary. 1. The Respondent replied to such notice. In the reply, the Respondent stated that she would not be available for the hearing. She explained that she had been involved in litigation in the New South Wales Supreme Court and in the New South Wales Court of Appeal. The Respondent provided information that she had been fully occupied attending to such proceedings which involved a close family member and that she would not be available until May 2020 for a directions hearing. The Respondent sought an adjournment of the proceedings or, alternatively, that an order that the proceedings be stayed or struck out. 2. the Respondent did not provide a telephone number at which she might be contacted for the directions hearing and did not participate in the directions hearing, nor was she legally represented at the directions hearing. 3. the Tribunal refused the application for an adjournment and directed that the proceedings continue to a hearing as set out in the orders referred to earlier in this decision.
The Tribunal takes into consideration the matters raised by the Respondent which have apparently contributed to her inability to participate in the proceedings. However, the Tribunal is bound by the orders made on 25 March 2020, and has proceeded on the material before it.
Nevertheless, to ensure that no injustice has been, or will be, done to the Respondent, the Tribunal will suspend the making of any orders for a period of 28 days from the date of publication of this decision to enable the Respondent to seek different orders. The Tribunal will direct that in the event that the Respondent seeks to place any material before the Tribunal as to why it should not make the orders proposed, any such application is to be filed within 21 days of the date of this decision. Any such application is to be supported by any evidence upon which the Respondent proposes to rely.
In the event that the Respondent makes such application, the proceedings are to be relisted for further directions and the proposed orders set out hereunder will be stayed pending determination of any further directions.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Ghosh

Legislation Cited (3)

Health Care Complaints Commission Act 1993(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Health Care Complaints Act 1993(NSW)

Cases Cited (37)

CATOD 146 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Health Care Complaints Commission v Philipia [2013] NSW 342 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Health Care Complaints Commission v Silberberg [2019] NSWCATOD 56 In re Dr John Shashati [2006] NSWMT 2 Latoudis v Casey (1990) 170 CLR 534 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 NSW Medical Board v Dinakar [2009] NSWMT 8 Office of Local Government v Toma [2015] NSWCATOD 21 Ohn v Walton (1995) 36 NSWLR 77 Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Re Sophie [2008] NSWCA 250 Rejfek v McElroy (1965) 112 CLR 517 Richter v Walton [1993] NSWCA 233 Slezak, Dr Peter [2011] NSWMPSC 10 Texts Cited: Medical Council of NSW, Guideline for self-treatment and treating family members (2014, Ref: 97/008) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ratna Ghosh (Respondent) Representation: Counsel: A Britt (Applicant)

[1992] HCA 66

(1993) 30 NSWLR 699

(1938) 60 CLR 336

(2009) 74 NSWLR 523

(2006) 65 NSWLR 359

(1997) 41 NSWLR 630

(1990) 170 CLR 534

(1992) 110 CLR 445

(1995) 36 NSWLR 77

(2009) 83 ALJR 494

(1995) 183 CLR 501

(1965) 112 CLR 517