Health Care Complaints Commission v Ghosh

NCAT Occupational|2021-05-21|Before: Prof P, Morris AM

A Britt (Applicant) C Jackson (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/00251131 Publication restriction: Pursuant to Sch 5D cl 7 of the Health Practitioner Regulation National Law (NSW), publication of the names of patients A, B and C and person D is prohibited.

REASONS FOR DECISION

BALLA ADCJ, G YEO and C BERGLUND: The Health Care Complaints Commission has applied to the Tribunal under the Health Practitioner Regulation National Law (NSW) (The National Law) for disciplinary findings and orders to be made in relation to Dr Ratna Ghosh, formerly a registered medical practitioner. The Amended Complaint was filed on 12 May 2021.

Background

Dr Ghosh completed a Bachelor of Medicine/Bachelor of Surgery at the University of Western Australia in 1989. She then worked in various positions in hospitals in Western Australia, New South Wales, South Australia and Queensland.
Dr Ghosh was registered to practise in New South Wales in 1992 and became a fellow of the Royal Australian College of General Practitioners in 2011.
From 2003 until 2009 she worked in her own general practice. For a short time she performed locum work until she again established her own general practice in 2010. She worked in that practice until 2016. Between 2012 and 2016 she also worked part time for the ORS Group, a workplace rehabilitation provider.
Dr Ghosh was then employed as a general practitioner at a Medical Practice (the Practice) from 13 February 2017 until 28 September 2017.
On 17 October 2017 the Health Care Complaints Commission received a mandatory notification from her employer at the Practice, Dr Khan. It said: "I write to advise that I have a reasonable belief that Dr Ratna Ghosh has a mental impairment. I am not Dr Ghosh's treating doctor. I had employed her until 28 September 2017 when I had no choice but to terminate her contract due to an increasing number of patient complaints and troubling behaviour with patients, fellow staff ... I have numerous verbal complaints, I have written complaints from patients and staff which I am not sure to share at this stage without a prior consent from those patients."
Section 150 of the National Law provides that the Medical Council of NSW (the Medical Council) must take steps if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or if it is otherwise in the public interest.
An Inquiry under s 150 was held on 12 December 2017. On that day Dr Ghosh's registration was suspended. Section 150A of the National Law provides that a doctor may apply for a review of a s 150 decision.
Dr Ghosh applied for a review under s 150A of the National Law. On 16 May 2018 the suspension was lifted and a practice condition not to practise medicine was imposed on her registration.
Dr Ghosh appealed to the NSW Civil and Administrative Tribunal (The Tribunal) against that decision. The Tribunal dismissed her appeal on 20 November 2019. On 26 June 2020 the NSW Court of Appeal allowed an appeal from the Tribunal's decision and remitted the matter to the Tribunal to be heard again, by a differently constituted panel.
On 15 April 2020 the Tribunal ordered that, if Dr Ghosh had still been registered, it would have cancelled her registration. On 26 December 2020 the NSW Court of Appeal allowed an appeal from that Tribunal decision and remitted the matter to the Tribunal to be heard again, by a differently constituted panel.
We were informed by counsel for the Health Care Complaints Commission that these proceedings are not a rehearing of either of the matters considered by the NSW Court of Appeal but have been initiated by a separate Complaint.

Orders made and sought

On 17 May 2021 an Order was made prohibiting publication of the name of patients A, B and C and person D pursuant to Sch 5D cl 7 of the National Law.
The parties have agreed that this Tribunal is to make findings in relation to the Amended Complaint and then move on to determine the appropriate protective Orders after a single hearing.
Dr Ghosh is not currently registered. The Health Care Complaints Commission seeks Orders cancelling her registration, if she were still registered, and precluding Dr Ghosh from seeking a review of that order for five years.
Dr Ghosh seeks Orders the effect of which would enable her to practise subject to conditions, if, in the future, she is re-registered.

Outline of the Complaint

The Amended Complaint relied on by the Health Care Complaints Commission raises many issues to be determined by the Tribunal. As the issues raised are complex and, in some cases, interrelated, we have summarised the Eight Complaints, each of which is considered in further detail later in these Reasons.
The First Complaint says that Dr Ghosh prescribed an antibiotic containing penicillin to patient A, a baby, when she had been told by the parents that patient A had a penicillin allergy.
It also says that Dr Ghosh inappropriately refused to give patient B, who was pregnant, the whooping cough vaccine, gave her incorrect advice, made inappropriate comments about the vaccine and did not perform antenatal checks.
Complaint Two relates to Dr Ghosh's treatment of patient C. Patient C is a close relative of Dr Ghosh. In 2007 he was diagnosed with Autism Spectrum Disorder. He is now 16 years old. At all relevant times he resided with Dr Ghosh and person D.
The Health Care Complaints Commission says Dr Ghosh inappropriately prescribed a number of medications, failed to arrange for patient C to consult an independent general practitioner, and failed to make a record of the Schedule 4 restricted substances which she prescribed to patient C.
Complaint Three says that Dr Ghosh treated patient C contrary to the Guidelines of the Medical Council and the Medical Board of Australia, inappropriately submitted a Mental Health Treatment Plan to Medicare, billed Medicare for services to patient C in contravention of the Medicare Benefits Schedule, prescribed medications for herself and person D in patient C's name, and inappropriately provided care and treatment for patient C's general medical, psychiatric, social and psychological diagnoses. It also says that Dr Ghosh provided deliberately false and misleading information to the Medical Council when she: 1. denied she had posted anonymous reviews of two other doctors on the internet; and 2. criticised Dr Newnham, who is a psychiatrist who has provided an expert opinion in these proceedings.
Complaint Four says Dr Ghosh did not maintain an adequate record of her consultation with patient B and did not maintain any record of her treatment of patient C.
Complaint Five says Dr Ghosh did not comply with a Notice served pursuant to s 34A of the Health Care Complaints Act 1993 (NSW) which required her to produce documents relating to her care and treatment of patient C and failed to provide a reasonable excuse for not producing the documents.
Complaint Six says that the conduct in Complaints One, Two, Three, Four and Five individually and cumulatively amount to professional misconduct.
Complaint Seven says that Dr Ghosh has an impairment as defined under s 5 of the National Law.
Complaint Eight says Dr Ghosh lacks the mental capacity to practise as a medical practitioner.

The medical evidence

There are a large number of medical reports in evidence. Some of the doctors gave evidence before this Tribunal.
Dr O'Connell is an addictions and general psychiatrist. He was retained by the Medical Council to provide an expert opinion in relation to the Complaint that Dr Ghosh may have a mental impairment. His report is dated 25 January 2018.
Dr Newnham is a general psychiatrist. She was retained by the Medical Council to provide an expert opinion in relation to Dr Ghosh's current and past psychiatric status and possible impairment. Her reports are dated 4 April 2018 and 6 July 2018.
Dr Samuels is a psychiatrist. He was retained by the Health Care Complaints Commission and provided a report dated 30 April 2021. He gave evidence and was cross-examined.
Dr Kertesz is a general practitioner. He was retained by the Health Care Complaints Commission to provide an expert opinion in relation to Dr Ghosh's treatment of patients A, B and C. His report is dated 23 February 2019. He gave evidence and was cross-examined.
Dr Davies had been, from around 2010 to 2013, Dr Ghosh's treating psychiatrist. There are a number of his reports in evidence including reports dated 26 February 2018 and 17 September 2018.
Dr Bench is a forensic psychiatrist. He examined Dr Ghosh at the request of her solicitor. His reports are dated 28 March 2018 and 30 May 2018.
Dr Robinson is a psychiatrist. He examined Dr Ghosh at the request of her solicitor. His reports are dated 18 June 2018, 12 July 2018 and 30 July 2018.
Dr Saker is a psychiatrist. His reports are dated 27 August 2019 and 25 September 2019. He gave evidence and was cross-examined. On 27 July 2021, that is after the parties had completed their submissions, the Tribunal received a report dated 20 July 2021. We do not consider that the last report raises any new issues or contains and relevant evidence.
There are also many reports and other records in evidence concerning the treatment of patient C.

Onus of proof

The onus is on the Health Care Complaints Commission to establish the various matters raised in the Complaint. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

The Complaint

Set out below are the grounds of each Complaint, the responses of Dr Ghosh, the evidence in relation to each issue and our findings.

Complaint One

The Health Care Complaints Commission says that Dr Ghosh is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. That section defines unsatisfactory professional conduct as conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Particulars of Complaint One - patient A

In particular 1 of Complaint One, the Health Care Complaints Commission says: 1. On 11 July 2017, Dr Ghosh inappropriately prescribed patient A, Amoxil sugar free forte 250mg/5ml syrup, an antibiotic containing penicillin, for otitis media in circumstances where Patient A was allergic to penicillin. Dr Ghosh, in her Reply served in response to the Health Care Complaints Commission's Complaint, does not admit that patient A had an allergy to penicillin. 1. Patient A's mother had informed Dr Ghosh on 10 July 2017 that patient A was allergic to penicillin and had written this on patient A's "New Patient Registration Form". Dr Ghosh, in her Reply, denies that the mother informed her of the allergy and says that the information provided to her by reception staff at the time of her consultation with the patient did not include any allergies. 1. Patient A's father reminded Dr Ghosh during the consultation on 11 July 2017, that patient A had a penicillin allergy. Dr Ghosh, in her Reply, denies that patient A's father reminded her that patient A had a penicillin allergy.
In particular 2 of Complaint One, the Health Care Complaints Commission says Dr Ghosh 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. This is denied by Dr Ghosh in her Reply.
Dr Ghosh does not dispute that she wrote the prescription.

Evidence concerning patient A

It is common ground that Amoxil sugar free forte 250mg/5ml syrup is an antibiotic containing penicillin.
The mother has made a statement. She was not required for cross-examination. The mother said she had taken patient A, who was 20 months of age, to Dr Ghosh on 10 July 2017. She had not previously consulted Dr Ghosh. Patient A had a red ear and a temperature and had been having ongoing issues with ear infections and febrile convulsions and febrile startles.
When patient A had been given penicillin on an earlier occasion, she had come out in a rash and was covered head to toe in splotchy red dots. The mother was told at the time that patient A had experienced a reaction to penicillin.
When she attended the Practice she filled out a new patient form and wrote on it that patient A was allergic to penicillin.
Dr Ghosh physically examined patient A and told the mother that the ear was a bit pink but not at the stage where she needed antibiotics. She recommended the mother come back the following day if the ear became worse and she would then prescribe antibiotics. The mother told Dr Ghosh that the daughter could not have penicillin because when she had it before, she had come out in a rash.
The father also made a statement. He was not required for cross-examination. He had taken his daughter back to Dr Ghosh on the following day, 11 July 2017. The mother had told him to make sure the doctor did not prescribe penicillin because patient A had previously had a reaction. At the appointment he told Dr Ghosh that his wife had brought in patient A the day before, and he had brought her back so she could have another look. After an examination, Dr Ghosh told the father that patient A had an infection and she was going prescribe penicillin. The father told Dr Ghosh that his wife had reminded him to tell her that patient A could not take penicillin because she had had a reaction and had come out in a rash. Dr Ghosh replied "No, it will be fine" and gave him the prescription for penicillin. He said "Okay" because he thought maybe his wife was wrong and the doctor knew better.
When the mother saw the medication she realised it was a form of penicillin. The father told her he had told Dr Ghosh that patient A was allergic to penicillin, but the doctor had brushed it off and said "She will be fine" and still prescribed the penicillin. The mother became angry and phoned the Practice to complain.
Dr Ghosh has made a statement dated 12 May 2021. She also gave evidence before the s 150 Inquiry and at this and the first Tribunal.
In her statement Dr Ghosh said she had an independent recollection of the two consultations, and had also been prompted by her notes. Patient A had attended the Practice with her mother. The mother told her about patient A's symptoms but at no time did patient A's mother say that patient A had an allergy to penicillin. On examination the only abnormality she detected was redness on the right ear drum. Dr Ghosh' provisional diagnosis was a viral upper respiratory tract infection and she advised the mother to bring patient A in for a further appointment on the following day to assess whether her symptoms had worsened.
On the following day, 11 July 2017, patient A attended with her father. Her ear drum was bright red, a lot worse than the day before. Dr Ghosh diagnosed acute right otitis media resulting from an upper respiratory tract infection and prescribed Amoxil. She made a plan to review patient A in three days' time.
Dr Ghosh says that the father did not tell her that patient A had an allergy to penicillin and he did not express any issue with her prescribing Amoxil to patient A. Patient A's father provided her with limited information during the consultation. At no time did she say "No, it will be fine".
In her evidence to this Tribunal, Dr Ghosh suggested that the statements of the parents may have been created by Dr Khan. We have not accepted this evidence as discussed further under the heading "Credit".

Findings - patient A

Later in these Reasons we have not accepted Dr Ghosh's evidence that the statements from the parents may have been created by Dr Khan.
The evidence of the parents and Dr Ghosh as to what occurred at the two consultations cannot be reconciled.
We prefer the evidence of the parents to the evidence of Dr Ghosh and find that that they told her twice that patient A had previously had a reaction to penicillin.
We have arrived at these findings for the following reasons: 1. We have taken into account our findings as to the reliability of the evidence of Dr Ghosh which we have set out later in these Reasons under the heading "Credit". 2. The evidence from the mother and the father is consistent. They were not required for cross-examination. 3. The mother made an immediate complaint which is consistent with the statements of the parents. As we have said, the mother telephoned the Practice. This is confirmed in an email reporting the complaint from a staff member to Dr Khan and the practice manager dated 12 July 2017. The email records that the mother had telephoned that morning and said that she had entered the allergy on the new patient form on 10 July 2017, that the parents had advised Dr Ghosh of the allergy at both consultations, and that Dr Ghosh had insisted on prescribing it even after the father protested and told her that patient A was allergic. 4. The new patient form is in evidence. Under "Allergies" is written "penicillin". This is consistent with the evidence of the mother. 5. Dr Ghosh says she has an independent recollection of the two consultations. However it was clear from the s 150 Inquiry transcript on 12 December 2017 (which was not long after the consultation on 11 July 2017) that she did not remember that the mother had attended with patient A on 10 July 2017. We do not accept Dr Ghosh's explanation that it must be an error in the transcript. The transcript records Dr Ghosh as having said "the mother didn't come in on either day, the father brought the child in …" 6. Counsel for Dr Ghosh submitted that, given Dr Ghosh's provisional diagnosis was a viral infection, it is unlikely the question of antibiotics came up in the first consultation. However it was not suggested that this explanation has ever been given by Dr Ghosh. 7. Counsel for Dr Ghosh then submitted that we should find that it is inherently implausible that Dr Ghosh would prescribe a penicillin based antibiotic after the patient's father had told her that patient A had developed a rash after having used it before. We accept that is difficult to understand why Dr Ghosh did prescribe it after being told about the previous rash, however we do not accept that this displaces the conclusion we have reached from the whole of the evidence.
Dr Ghosh said that she did not have the information which had been entered onto the form by patient A's mother at the time of her consultations with the patient A. The evidence establishes that the information was only entered onto the computer system after the second consultation. However we do not consider this to be relevant, as we have found that the doctor was told twice by the patient's parents.
We decline to find that the Health Care Complaints Commission has established Complaint One particular 1(a) which positively asserts that patient A was allergic to penicillin, as there is no evidence that patient A was in fact allergic to penicillin. The evidence is only that a rash is a common sign of an allergy to penicillin but that is not enough to establish that patient A was in fact allergic to penicillin.
As we accept the evidence of the parents, we find that the Health Care Complaints Commission has established that patient A's mother had informed Dr Ghosh on 10 July 2017 that patient A had, on a previous occasion, developed a rash after using penicillin, and that patient A's father reminded Dr Ghosh during the consultation on 11 July 2017, that patient A could not take penicillin because she had developed a rash after using it and that, in reply, Dr Ghosh said "No, it will be fine".
We accordingly find that the Health Care Complaints Commission has established the facts underlying Complaint One particulars 1(b) and (c) and 2.
Dr Kertesz has said, and we accept, that Dr Ghosh's use of amoxycillin in the treatment of suspected bacterial otitis media was completely inappropriate after she had been told twice that the patient had previously developed a rash after using penicillin which is a common sign of an allergy. Dr Ghosh should have prescribed one of the other medications available for the vast majority of childhood bacterial illnesses. The development of a rash was serious, because there was the potential for anaphylaxis if penicillin was used again.
We consider that Dr Ghosh's statement to the father that "No, it will be fine" augments the inappropriateness of the prescribing.
We find the conduct in particulars 1(b) and (c) and 2 is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Health Care Complaints Commission has accordingly established these particulars.

Particulars of Complaint One - patient B

In particular 3 of Complaint One, the Health Care Complaints Commission says that on 7 August 2017, patient B attended Dr Ghosh when she was 33 weeks pregnant and requested the vaccine against whooping cough. Dr Ghosh: 1. Inappropriately refused to give patient B the vaccine. Dr Ghosh denies she refused to give patient B the vaccine. She says patient B was booked with the practice nurse, who refused to administer the vaccine, and sent patient B to see her (Dr Ghosh) for the sole purpose of providing advice on the vaccine. 1. provided patient B with advice on the effects of the vaccine which were contrary to the current whooping cough/pertussis guidelines, including when she said 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." Dr Ghosh admits, in her Reply, that she gave this advice, but otherwise does not admit the particular, and says that she said that "under the current guidelines, you are given a choice whether you have it in the third trimester of pregnancy, or whether you take it after delivery".
In particular 4 of Complaint One, the Health Care Complaints Commission says Dr Ghosh made the following inappropriate comments in relation to the vaccine, to patient B at the consultation on 7 August 2017: 1. "it could kill babies"; 2. "only people in Western countries get it which is why there are so many deformed babies"; 3. "the chances of getting whooping cough are so low"; and 4. "well it is your choice, but don't blame me if your baby dies".
Dr Ghosh, in her Reply, denies Complaint One, particular 4.
In particular 5 of Complaint One, the Health Care Complaints Commission says that at the consultation on 7 August 2017 Dr Ghosh failed to perform or offer to perform all appropriate antenatal checks on patient B.
Dr Ghosh, in her Reply, says that the opportunity and/or obligation to perform such checks did not arise as patient B expressly stated she was attending solely for the purpose of obtaining the vaccine, and that her antenatal care was being managed elsewhere, and that patient B expressly refused any antenatal examination.
In particular 6 of Complaint One, the Health Care Complaints Commission says that Dr Ghosh also failed to assess or to document, following an assessment, whether there was a need for haematology, biochemistry and other relevant pathology tests for the final trimester as well as any imaging required.
In her Reply, Dr Ghosh repeats her response to Complaint One, particular 5, and says patient B expressly refused any antenatal examination or investigations, stating emphatically that she was only there for the vaccine on an appointment with the nurse only, and that all her antenatal examinations and investigations were being conducted at a Community antenatal clinic, which had sent her to Dr Khan's practice for the sole purpose of getting the vaccine.
In particular 7 of Complaint One, the Health Care Complaints Commission says that at the s 150 Inquiry on 12 December 2017, when answering questions of the delegates about her consultation with patient B, Dr Ghosh inappropriately criticised patient B stating: 1. "[Patient B was having] some psychosis of pregnancy or some anger issue"; 2. "[Patient B became] violently enraged" and "absolutely off her face and enraged"; and 3. "maybe she didn't quite understand what I told her, which is obviously a risk with lay patients."
In her Reply, Dr Ghosh admits that she gave those responses, but says she qualified the statement set out at particular 7(a) as "possibly". She does not admit that it was inappropriate or unsatisfactory professional conduct.

Evidence concerning patient B

Patient B has made a statement. She was not required for cross-examination.
On 7 August 2017 she had been 33 weeks pregnant and attending a Midwife Clinic. A midwife had recommended that she go to a doctor to have a whooping cough vaccine. When she arrived at the Practice, she was seen by a female nurse. The nurse told her to see Dr Ghosh, as Dr Ghosh had to sign off on the vaccine and that, when that had been done, she (the nurse) would give her the injection.
Dr Ghosh gave her advice about her weight and blood pressure and patient B told Dr Ghosh that she wanted the whooping cough vaccine because her midwife had recommended it. Dr Ghosh told her that she should not get it because there was not enough information on the vaccine, there was no evidence it was actually safe and that "it could kill babies". Patient B said she felt stunned and had said to Dr Ghosh "More than half the people in the world get this vaccination". Dr Ghosh had replied "Only people in Western countries get it which is why there are so many deformed babies" and "the chances of getting whooping cough are so low".
Patient B said she replied "I would still like to have it, because my midwife recommended it". Dr Ghosh said "Well it is your choice, but don't blame me if your baby dies". Patient B said she started crying and walked out of the room.
Later that day she went back to the Practice and made a complaint about Dr Ghosh.
Again there is evidence from Dr Ghosh both in written documents and by way of oral evidence at various hearings.
In her statement dated 12 May 2021 Dr Ghosh said she had an independent recollection of the consultation and had also been prompted by her notes. The patient had been booked with the Practice's enrolled nurse. That nurse relevantly noted that patient B was over 33 weeks' pregnant and experiencing weak and irregular Braxton Hicks contractions. The nurse was not confident in administering the whooping cough vaccination without the patient being advised first by a doctor.
Patient B then consulted with her. The patient had been attending a Midwife Clinic for her antenatal care where a midwife had recommended she receive the whooping cough vaccination. She came to the Practice for the sole purpose of obtaining the vaccination from the practice nurse. The only purpose of the consultation with Dr Ghosh was to advise with respect to the vaccine, not to conduct an antenatal examination. Her records indicated that she performed a limited antenatal check, which was all that the patient allowed.
Dr Ghosh had advised patient B that she had the choice of receiving the vaccination at that time or after she had delivered her baby. She also informed patient B that there was no guarantee that the vaccination would be effective at protecting her baby if administered at such a late stage of gestation, as she may deliver the baby before the antibodies formed. After she gave patient B this information, the patient became very aggressive and said "my midwife told me to have it done and I trust my midwife and not you".
Dr Ghosh continued to try and explain to patient B her various options regarding the vaccination but she continued to be aggressive and eventually left the consulting room while yelling "you should NOT be a doctor".
Dr Ghosh denied that she had said that: "it could kill babies"; "Only people in Western countries get it which is why there are so many deformed babies"; "the chances of getting whooping cough are so low"; and "well it is your choice, but don't blame me if your baby dies".
The entry in the Medical Notes relevantly says: "Surgery consultation recorded by Dr Ratna Ghosh on 07/08/2017 PC: 33/40 antenatal check Pt also wants advice on boostrix vaccine, referred by our RN for this Feeling movements daily Pt attending Wallsend Midwife Clinic as a public pt, plans to deliver at JHH Pt is on a centrelink pension O/E: Well Pt is very inappropriately aggressive Wt 83.8kg BP - 137/90, p114 Diagnosis: Normal antenatal check Inappropriately rude and aggressive pt having extreme difficulty understanding plain English Reason for visit: Antenatal visit Management: Pt given extensive advice on boostrix vaccine and having a lot of difficulty understanding it Pt told she is being given the same advice as in JHH antenatal clinic but pt says she is confused despite my repeatedly telling her the same advice Pt given choice of having boostrix vaccine now or after delivery, and told repeatedly the effects on her unborn baby are unknown if given now, but having extreme difficulty understanding this Pt is inappropriately aggressive towards me as a doctor saying "my midwife told me to have it done and I trust my midwife and not you" Pt arguing "what do you mean? I know several newborn babies who got whooping cough" Pt left my consulting room yelling out in the waiting room "you should NOT be a doctor" Pt complaining loudly about me to receptionists in front of other patients."
Dr Ghosh said she had told patient B that, as with any vaccine, the safety is not fully known in pregnancy. She could have the vaccine when 33 weeks pregnant or after the baby had been born. She had told patient B that there was fairly recent evidence that at 33 weeks the vaccine may not be effective. Patient B had replied "I believe my midwife and I don't believe you" and "you shouldn't be a doctor".
At the s 150 Inquiry on 12 December 2017 Dr Ghosh said that patient B had been using the Practice as "a technician service" to get an injection and had been booked for a nursing appointment. The nurse was hesitant to give the vaccination and sent the patient to her. In her role as a general practitioner she had warned patient B of the potential side effects and the risks and benefits and said if she still wanted to proceed then she could go ahead with the vaccine. The patient became violently enraged and stormed out, saying "you shouldn't be a doctor". Dr Ghosh said she had been absolutely professional.
Dr Ghosh told the s 150 Inquiry that it is an optional voluntary vaccine which is at best 60% effective and at 33 weeks she did not think the evidence suggested that it was going to be particularly effective. She had not told patient B but if the vaccine crosses the placenta and the antibodies don't, it may have resulted "in a pre-term delivery or some [indistinct] or illness of the foetus inside in utero".
Dr Ghosh told the s 150 Inquiry that in the late stage of pregnancy with the hormones peaking, women can get very agitated and touchy and that possibly patient B was having some psychosis of pregnancy or an anger issue. Patient aggression had been actively encouraged and solicited at the Practice, whereas other practices had signs up saying aggressive patients would be asked to leave. In her Practice the patients were treated like VIPs, they would be yelling and screaming from the consulting room into the waiting room, they would be ushered to make a complaint and they would line up again to see Dr Khan to get the illegal backdated sick certificate which she had refused to give.
In her evidence to this Tribunal, Dr Ghosh suggested that the statement of patient B may have been created by Dr Khan. We have not accepted this evidence as discussed further under the heading "Credit" .

Finding - patient B

The first issue is to determine the parameters of the consultation.
Dr Ghosh says she only saw patient B to give her advice in relation to her vaccination and was not being consulted for an antenatal check. In her Reply and in the Inquiry she said that patient B expressly stated she was attending solely to obtain the vaccine, and that her antenatal care was being managed elsewhere, and that patient B expressly refused a full antenatal examination.
The records of Dr Ghosh are inconsistent with her evidence - they do refer to an antenatal check.
Dr Ghosh says in her Reply that the practice nurse refused to administer the vaccine. However we note that at a staff meeting on 8 August 2017, Dr Ghosh said that the nurse had not been confident to advise the patient about the vaccination and that Dr Khan had replied that the nurse was an "EEN" and not allowed to give injections without a doctor's order.
These issues were not dealt with expressly by patient B in her statement.
Dr Kertesz agreed that where a patient was under the care of a Midwife Clinic and only attended a general practitioner for a vaccination there could be circumstances in which there was no obligation on the general practitioner to perform an antenatal check.
The onus is on the Health Care Complaints Commission to show that Dr Ghosh should have performed a full antenatal check. We decline to find it has discharged that onus. Accordingly Complaint One particulars 5 and 6 must fail.
There is then the issue of Dr Ghosh's communications about the vaccine during the consultation.
Dr Ghosh does admit she said 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" and also told patient B it was her choice.
This admission is consistent with the Medical Notes where they say "Pt given choice of having boostrix vaccine now or after delivery, and told repeatedly the effects on her unborn baby are unknown if given now, but having extreme difficulty understanding this."
It was clear to us that Dr Ghosh has significant doubts about the vaccine. In cross examination she said: "Q. And then you said, "Look, I told her that - look, as with any vaccine, the safety is not fully known in pregnancy." What did you mean by that? A. Well, look, there's categories of safety in pregnancy. So, they go A, B, C et cetera. But the use of Boostrix vaccine in pregnancy, yes, it was the recommendation by the - the Health Department at the time, but it was fairly new. So, when any drug is being used for a new purpose, without proper trials, and, you know, a long history where it's been observed, for instance, the, you know, side effects that are now being reported with the AstraZeneca COVID vaccine, they're not fully researched and not fully reported. That's what I mean."
Of course all vaccinations have risks and benefits. It is the role of the general practitioner to explain to the patient those risks and benefits.
The National Immunisation Program promotes free whooping cough immunisation in pregnant women in the third trimester to help protect their newborn and themselves by getting immunised during the third trimester resulting in protective maternal antibodies transferring through the placenta. This provides the newborn baby with protection against whooping cough and also protects the baby through the mother's immunity in the post-natal period because babies are too young to be immunised before the age of six weeks.
We accept the evidence of Dr Kertesz who said that the explanation given by Dr Ghosh at the s 150 Inquiry,and again to this Tribunal, showed she had no appreciation of the current guidelines for the vaccination in the third trimester of pregnancy. He described her knowledge and understanding of the principles of whooping cough vaccination as minimal and described the statements that she made to the delegates as incorrect and inaccurate.
The Australian Technical Advisory Group on Immunisation (ATAGI), Australian Immunisation Handbook (2018) unequivocally advises in relation to the use of dTpa vaccine in pregnant women (dTpa is the recommended whooping cough vaccine in Australia): "Vaccination with dTpa during pregnancy does not increase the risk of adverse pregnancy outcomes. Studies have excluded any association with stillbirth, pre-eclampsia, foetal distress, low birth weight or neonatal renal failure."
We accept the opinion of Dr Kertesz that Dr Ghosh's statements in Complaint One particular 3(b) reflect a lack of knowledge and experience and are significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Ghosh denies making the additional comments set out in particular 4. However we do not accept that denial. In making this finding we take the following matters into account: 1. Dr Ghosh has strong views about the level of risk of the vaccine causing complications affecting the baby. 2. Our findings in relation to the reliability of the evidence of Dr Ghosh are set out later in these Reasons under the heading "Credit".
We accept the evidence of patient B and find that Dr Ghosh spoke the words set out in Complaint One particular 4.
Counsel for Dr Ghosh invited us to find that Dr Ghosh was obliged to put the risks and benefits of having the vaccine to the patient even though the risks may have been put with less than optimal tact. We do not accept this submission. We have accepted the version of the conversation recounted by patient B and do not consider it could be described as a professional explanation of the risks and benefits of the vaccination.
Dr Kertesz said, and we accept, that Dr Ghosh's failure to be aware of current guidelines with respect to the whooping cough immunisation in the community - specifically with view to pregnant women in the third trimester, makes her advice to patient B to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct.
We are further satisfied that the intemperate, alarming (to patient B) and incorrect statements made by Dr Ghosh which are set out in particular 4 are also significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
We find that the Health Care Complaints Commission has established Complaint One particulars 3 (b) and 4.
In relation to Complaint One particular 3 (a), Dr Ghosh says she did not inappropriately refuse to give patient B the vaccine - her role was to give advice about the vaccine, it was the role of the nurse to administer the vaccine.
We do not consider that we need to deal with this issue. We do not accept that the evidence of either patient B or Dr Ghosh is to the effect that Dr Ghosh positively advised patient B against having the vaccination - rather she gave her exaggerated and incorrect advice about the risks and did not explain the benefits.
We find that the Health Care Complaints Commission has not established Complaint One particular 3(a).
In relation to Complaint One particular 7, we find that Dr Ghosh said all of the words in the Complaint at (b) and (c) as they appear in the s 150 transcript and find that she said in relation to particular (a) "So maybe she was having some psychosis of pregnancy or some anger issue" as that is what is recorded in the transcript.
Dr Ghosh does not admit that it was "inappropriate" or "unsatisfactory professional conduct" to make those statements in the context of a private hearing directed at whether interim protective orders were required against her.
Counsel for Dr Ghosh conceded that it is not advisable to criticise patients at such hearings, but submitted that the hearing is privileged, so that the only person damaged by such remarks is the practitioner themselves and not the patient. Further, he said, practitioners often say things on the spur of the moment that are immoderate and intemperate under the pressure of such a hearing, particularly when they are first required to consider and respond to an allegation in a complaint. The remarks would legitimately be considered when determining the interim orders at that time because they say something about Dr Ghosh's state of mind as well as perhaps conveying legitimate if poorly expressed information about the patient, but he thought it surprising it had been suggested they would amount to unsatisfactory professional conduct.
Counsel for the Health Care Complaints Commission submitted that the fact that only a small number of persons heard the comments does not make the conduct excusable. There was no evidence to support the submission that "practitioners often say things on the spur of the moment that are immoderate and intemperate under the pressure of such a hearing" not even from Dr Ghosh in her evidence.
We understood Dr Kertesz to say that it was inappropriate for Dr Ghosh to offer these as excuses. He thought that if there had been any emotional or anger issues they could have been dealt with at the consultation. Referring to a possible "psychosis of pregnancy or anger issue" appeared to be demeaning and was, in his opinion, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Counsel for the Health Care Complaints Commission has pointed out that Dr Kertesz was not cross-examined in relation to this opinion.
For a doctor to make an unjustified possible diagnosis of psychosis is a serious matter indeed. We note that this assertion by Dr Ghosh has been made public in an earlier Tribunal decision, although of course the name of patient B has not been published.
We are satisfied that the comments made by Dr Ghosh are significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience because she made statements demeaning the patient and labelling the patient as suffering from a serious psychiatric illness which were without substance and unjustified to an Inquiry in her professional role as a doctor in an attempt to justify her own intemperate remarks to the patient at the consultation.

Complaint Two

In Complaint Two the Health Care Complaints Commission says that Dr Ghosh is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. That section defines unsatisfactory professional conduct as conduct which demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Particulars 1 to 6 of Complaint Two relate to the prescribing of various medications to patient C.
The basis on which the Health Care Complaints Commission says the prescribing is unsatisfactory professional conduct falls into a number of categories.
In relation to all of them, it is said that the prescribing was inappropriate because of Dr Ghosh's relationship to patient C.
Some are said to also have been prescribed in inappropriate quantities.
Some of them are also said not to have been appropriate because they should not have been prescribed to a child.
And lastly, all of the medications in Complaint Two were dispensed through the Pharmaceutical Benefits Scheme (the PBS). The professionally constituted Tribunal is aware that some of the medications should have been written on a private prescription because the PBS did not apply to that medication for the purpose for which the prescription was written. If those prescriptions had been written as private prescriptions, the recipient would have paid more for those medications.
In particular 7, the Health Care Complaints Commission says Dr Ghosh should have referred patient C to, or arranged for patient C to consult with, an independent general practitioner.
In particular 8 the Health Care Complaints Commission says that Dr Ghosh failed to make a record of the Schedule 4 restricted substances which she prescribed to patient C.
In her Reply Dr Ghosh says: "With regard to the whole of Complaint Two, the practitioner does not admit that the prescribing was inappropriate. The practitioner says the prescriptions were for a number of extended overseas trips and cruises to South America and the Panama Canal and to prevent altitude sickness on two trips to Cusco, Peru, during that period, for prophylaxis for malaria or prn use as required in remote areas or on extended cruises."
The Reply then states which of the medications listed in particular 1 were needed for overseas trips.
In cross-examination Dr Ghosh was asked to identify all of the overseas trips she had taken with patient C.
The conduct referred to in Complaint Two is said to have occurred between 26 January 2013 and 2 December 2017. In relation to this period, Dr Ghosh said she had gone on a Pacific Island cruise with patient C and person D at the end of 2015 and early 2016. She had also gone on a trip with patient C and person D to the Americas from 27 November 2016 to 13 January 2017 which included a month long cruise around South America (the last trip).
In cross-examination in these proceedings, Dr Ghosh added that some of the medication had been prescribed by her to take on trips by car to Queensland. For reasons we give later, under the heading "Credit" we do not accept this evidence.
In her Reply, Dr Ghosh also says some of the medications had been prescribed for a severe hip infection for which patient C was hospitalised twice.

The prescribing

The period of prescribing set out in Complaint Two is 1 January 2013 to 1 June 2018. There is a Certificate from the Australian Government, Department of Human Services, setting out the PBS claims history in respect of patient C for that period. Against each entry is the date of the prescription and the date of supply. There is also an email from that Department in evidence confirming, consistently with the Certificate, that Dr Ghosh was the only prescriber to patient C for the whole of that period.
By reference to the PBS claims history, we find that the medications listed in Complaint Two were prescribed for patient C by Dr Ghosh and they were dispensed on the dates set out in the Complaint.
We also find that Dr Ghosh was the only prescriber to patient C from 1 January 2013 to 1 June 2018.

Relationship

The Health Care Complaints Commission says that all of Dr Ghosh's prescribing was unsatisfactory professional conduct because of her relationship to patient C.
As we have said, patient C is a close relative of Dr Ghosh, who is now 16 years old, and at all relevant times resided with Dr Ghosh and person D.
We have found in relation to Complaint Three particular 5, that Dr Ghosh's conduct in providing ongoing care and treatment to patient C was improper and unethical because of their close relationship.
We have found in relation to Complaint Three particular 1, that Dr Ghosh's conduct in treating patient C was contrary to the Medical Council of NSW, Guideline for self-treatment and treating family members (December 2014) and the Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).
As we have found later in these Reasons, this prescribing formed part of Dr Ghosh's treatment of patient C.
We are satisfied that being the sole provider of prescription medication to patient C (other than during hospital admissions) for five and a half years in the context of patient C's complex needs and their close relationship is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Augmentin (Complaint Two particular 1(e)), Fluconazole (Complaint Two particular 1(f)), Prochlorperazine (Complaint Two particular 1(h)), Metoclopramide (Complaint Two particular 1(i)) and Silver Sulfadiazine (Complaint Two particular 1(j))

In relation to these medications, the only basis on which the Health Care Complaints Commission says that Dr Ghosh acted inappropriately is because of her close relationship to patient C. We find that the Health Care Complaints Commission has established the following particulars of Complaint Two: 1. Augmentin (Complaint Two particular 1(e)). Augmentin is an antibiotic. Dr Ghosh prescribed it to patient C between 29 August 2013 and 10 April 2016. 2. Fluconazole (Complaint Two particular 1(f)). Fluconazole is an anti-fungal. Dr Ghosh prescribed it to patient C on 31 March 2015. 3. Prochlorperazine (Complaint Two particular 1(h)). Prochlorperazine is an anti-psychotic medicine that can be used to control nausea and vomiting, and is also known as Stemetil. Dr Ghosh prescribed it to patient C on 9 December 2015, 18 December 2015 and 18 November 2016. 4. Metoclopramide (Complaint Two particular 1(i)). Metoclopramide is used to prevent nausea and vomiting. Dr Ghosh prescribed it to patient C on 4 May 2016, 18 November 2016 and 25 November 2016. 5. Silver sulfadiazine (Complaint Two particular 1(j)). Silver sulfadiazine is a topical antibiotic used on burns to prevent infection. Dr Ghosh prescribed it to patient C between 27 February 2015 and 24 November 2016.

Esomeprazole (Complaint Two particulars 1(a) and 2)

Esomeprazole is an antacid also known as Nexium. Dr Ghosh prescribed it to patient C between 26 January 2013 and 2 December 2017.
We have already found that Dr Ghosh's prescribing of this medication to a close relative, patient C, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The Health Care Complaints Commission also says that the quantity prescribed was inappropriate.
In her reply Dr Ghosh says it was prescribed to stock up for lengthy overseas trips.
In her evidence in these proceedings Dr Ghosh admitted that she had prescribed it in inappropriate quantities but says that she prescribed it at the request of person D. He would lose the repeats she had included on an earlier prescription and ring her at work and ask her for a new prescription.
Esomeprazole is only available on the PBS for either the management of gastro oesophageal reflux disease or the initial management of a peptic ulcer. Dr Ghosh did not suggest that patient C had, at the time she had written the prescriptions, a medical condition for which esomeprazole on the PBS was appropriate.
Dr Ghosh said she assumed that person D was taking it.
Dr Ghosh initially denied in evidence in this Inquiry that she took esomeprazole before 2021. We have not accepted this evidence as set out later in these Reasons under the section entitled "Credit".
Dr Kertesz said that the total number of esomeprazole tablets prescribed by Dr Ghosh to patient C was 2,550. As there was one repeat on each prescription the total dispensed was 5,100 tablets which equated to 14 years of continuous treatment taking one tablet daily. Many times there were two prescriptions for esomeprazole written on the same day. He described the rationale behind this degree of prescribing as unfathomable.
The prescribing occurred. The reason for the prescribing, in our view, remains unclear and unexplained.
The prescriptions should not have been written on the PBS.
We are satisfied that the prescribing was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Doxycycline (Complaint Two particulars 1 (b) and 3)

Doxycycline is an antibiotic and an antimalarial prophylaxis.
The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed it to patient C between 31 May 2016 and 3 September 2017.
In addition the Health Care Complaints Commission says that on 25 November 2016 Dr Ghosh prescribed patient C doxycycline in an inappropriate quantity.
In her Reply Dr Ghosh says she prescribed doxycycline as a malaria prophylaxis for multiple lengthy overseas trips to South America and the Panama Canal.
In these proceedings Dr Ghosh was asked why she had prescribed 1,260 tablets of doxycycline on 25 November 2016, all of which had been dispensed. She said that was two days before they had left on a cruise. It was put to her that the maximum that would have been needed on the cruise (based on her evidence as to the daily dose) was 182 tablets. Dr Ghosh said she thought there must have been an error in the PBS print out.
Dr Kertesz said he suspected the prescriptions must have been written for overseas travel for more than one person. 1,260 tablets would have been sufficient for malaria prophylaxis for three people for approximately seven months of travel to endemic areas.
Dr Ghosh was also asked why she had continued to prescribe patient C with doxycycline after the trip. She said that showed the record was wrong. She thought a prescription in September 2017 would have been for a recurrence of patient C's hip condition.
Dr Ghosh was also asked why she had prescribed doxycycline on the PBS as 28 tablets which was the larger pack, as the standard antibiotic pack is seven. The PBS benefit for the larger pack would only have been available for chronic bronchitis or severe acne. Initially Dr Ghosh said she would have telephoned for an authority to prescribe the larger pack for prophylaxis for overseas travel, but later agreed that PBS benefits were not available for any medication required for travel.
Dr Ghosh was also asked whether she had written a separate private prescription for herself and person D for the doxycycline. At first she replied that none of them had taken it. Then she said she thought she had. Then she said there would have been doxycycline left over, because person D had been travelling.
The level of prescribing is established by the PBS records. The reason for the extent of the prescribing, in our view, remains unclear and unexplained. The prescriptions should not have been written on the PBS. We have already found that Dr Ghosh should not have prescribed medication to a close relative.
We are satisfied that the prescribing was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Paracetamol and Codeine (Complaint Two particular 1 (c))

Paracetamol with codeine is a strong pain killer and is also known as Panadeine Forte. The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed it to patient C in 2016.
In her Reply, Dr Ghosh says that paracetamol with codeine was prescribed and administered by John Hunter Hospital for severe hip pain in 2016 and she continued the prescription as patient C had been discharged early after 24 hours of intravenous antibiotics to be continued as oral therapy for 2 weeks at home.
Dr Ghosh prescribed 20 tablets on 6 April 2016 and said it would be sufficient for five days, taking four a day. She was then asked about a further 20 tablets prescribed two days later, another 20 tablets on 24 April 2016, another 20 tablets on 26 April, another 20 tablets on 29 April 2016, another 20 tablets on 2 May 2016, another 20 tablets on 4 May 2016, another 20 tablets on 12 May 2016 and another 20 tablets on 17 June 2016. She thought they were all for patient C's hip condition.
Dr Ghosh said she prescribed a further 20 tablets of Panadeine Forte on 25 November 2016 to take overseas in case patient C's hip problem or some other problem occurred.
Dr Kertesz says it was fraught with danger to prescribe this strong pain killer for a child and even worse when the child was a close relative.
Dr Hutt, the Medical Advisor to the Medical Council of NSW advises that the Monthly Index of Medical Specialties (MlMs) lists the indications for Panadeine Forte as "relief of moderate to severe pain, and fever" and states that it is "contraindicated for use in patients who are younger than 12 years" and to be used with caution "in children aged 12 to 18 years in whom respiratory function may be compromised". The AMH Pty Ltd, Australian Medicines Handbook (2020) states that the use of codeine is "contraindicated in children <12 years of age". It further specifies that "opioid use in children is usually initiated or recommended by specialists". This prescribing by Dr Ghosh is, according to Dr Hutt, outside usual practice and goes against the recommendations. We accept the evidence of Dr Hutt.
We have already found that Dr Ghosh should not have prescribed medication to a close relative. We also find that the prescribing to patient C who was around then around age 11 was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Acetazolamide (Complaint Two particular 1(d))

Acetazolamide is a diuretic that can also be used for altitude sickness.
The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed it to patient C on 21 October 2016.
In her Reply, Dr Ghosh said she had prescribed acetazolamide for patient C for prophylaxis for altitude sickness for a trip to Cusco, Peru.
Dr Kertesz said acetazolamide is a medication which should only be prescribed for a person under the age of 14 with great caution.
Dr Ghosh did not give any evidence of having used any caution when prescribing acetazolamide. The only evidence was the following: "Q. Now, you prescribed on 21 October 100 tablets of acetazolamide. A. Well, I think that includes the repeats. The repeats were never filled. They were never dispensed. So, there's a difference between what was prescribed as five repeats and what was actually filled …. Q. But you're the one who wrote the scripts with the five repeats. A. Yeah, but the repeats were never filled. So, (person D) would lose the repeats and then ask for another script, so that is where the discrepancy of the large number of scripts you're referring to is coming in."
We have already found that Dr Ghosh should not have prescribed medication to a close relative. We also find that the prescribing to patient C, who was around then under 14, was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Azithromycin (Complaint Two particular 1(g))

Azithromycin is an antibiotic.
The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed it to patient C between 26 January 2013 and 14 September 2016.
In her Reply Dr Ghosh said she prescribed azithromycin for repeated culture proven haemophilus influenza type B infections in purulent phlegm, and septic arthritis of patient C's hip in April 2016 which had been administered by a home visit GP. She had also prescribed it to stock up for holidays.
Dr Ghosh conceded that azithromycin can only be claimed under the PBS for urethritis uncomplicated due to chlamydia or cervicitis in a female uncomplicated due to chlamydia and that patient C could not have had these conditions.
The prescriptions should not have been written on the PBS. We have already found that Dr Ghosh should not have prescribed the medication to a close relative.
We find that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Ondansetron (Complaint Two particular 1(k))

Ondansetron is used alone or with other medications to prevent nausea and vomiting caused by chemotherapy and radiation therapy.
The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed it to patient C on 16 December 2015.
Dr Ghosh said she prescribed ondansetron as an anti-nausea tablet for prophylaxis to take on cruises to the Pacific Islands and South America.
Ondansetron is only available under the PBS for nausea and vomiting from radiotherapy for malignancy or chemotherapy for malignancy. Dr Ghosh said that possibly she had selected the incorrect category when completing the prescription.
The prescription should not have been written on the PBS. We have already found that Dr Ghosh should not have prescribed the medication to a close relative.
We find that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Antipsychotic medications (Complaint Two particular 4)

Risperidone and olanzapine are anti-psychotic medications.
The Health Care Complaints Commission says that Dr Ghosh inappropriately prescribed risperidone and olanzapine to patient C on 31 January 2016, 19 January 2017 and 22 March 2017 when he was under the care of a psychiatrist and Dr Ghosh did not inform the psychiatrist that she had prescribed the medication to patient C.
In her Reply, Dr Ghosh denies particular 4 of Complaint Two. Further, Dr Ghosh does not admit that patient C was under the care of a psychiatrist at that time.
Dr Ghosh says the medication was used after patient C's behaviour deteriorated on the last trip. She was initially asked to prescribe it by a doctor in America, Dr Llinas and later by Dr Kable, a psychiatrist in Australia, in a phone call.
The documents in evidence before this Inquiry show that, during the last trip, Dr Ghosh, patient C and person D went on a cruise. During the cruise, patient C's behaviour deteriorated and he became aggressive and violent. Dr Ghosh was informed that they would be required to disembark in Ushuaia. Shortly afterwards patient C was involuntarily admitted to a hospital in Florida where he came under the care of Dr Llinas.
Dr Ghosh said Dr Llinas had prescribed antipsychotic medications including olanzapine and Abilify and advised them to immediately return to Australia and ensure that patient C continue to be prescribed olanzapine until he was able to be reviewed by an Australian psychiatrist for alternative antipsychotic medications.
An email from that doctor to Dr Ghosh is in evidence. It says "My medical opinion was that it would be safer to release him back to the care of family, initiate medication management (the prescriptions for Risperdal and olanzapine) and obtain psychiatric care as soon as possible on your return home".
Dr Ghosh says that after she returned to Australia there was a delay before she could obtain an appointment with a psychiatrist, so she wrote the prescriptions.
As we have already said, Dr Ghosh says she was asked to write the later prescription by Dr Kable.
There is in evidence a report dated 8 November 2018 from Dr Kable where he said that he had never advised Dr Ghosh to write any prescriptions for patient C. On 15 May 2017, when he first spoke to Dr Ghosh by telephone, patient C had been on a waiting list to see him. In that telephone conversation she told him that she had found olanzapine to be beneficial for patient C. Dr Kable said he told Dr Ghosh that she should ensure patient C consult an independent general practitioner and continue patient C on olanzapine 5mg daily, but to cut back if he experienced any significant side effects.
We are not persuaded that the documentary evidence is entirely consistent with the evidence of Dr Ghosh.
The Health Care Complaints Commission: 1. relies on the opinion of Dr Kertesz in relation to the prescribing of medication to family members; and 2. says that Dr Ghosh has not explained the prescription on 31 January 2016 which was before the last trip.
While we accept there may have been some urgency to prescribe the medication immediately after the return to Australia in 2017, we do not accept that Dr Ghosh has given a satisfactory explanation for the prescribing on 31 January 2016.
We have already found that Dr Ghosh should not have prescribed medication to a close relative.
We find that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Lomotil and Ponstan (Complaint Two particulars 5 and 6)

Lomotil is for diarrhoea and mefanamic acid (Ponstan) is an anti-inflammatory/analgesic.
The Health Care Complaints Commission says that Dr Ghosh's prescribing of Lomotil and Ponstan to patient C: 1. were clinically and therapeutically inappropriate given patient C's age and medical diagnoses. 2. were in a quantity and for a purpose that was contrary to the Poisons and Therapeutic Goods Regulation 2008, cl 34.
Clause 34 of the Poisons and Therapeutic Goods Regulation provides that an authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Dr Ghosh, in her Reply, says that the prescriptions were to stock up for holidays especially lengthy cruises in remote areas where access to doctors and pharmacies was restricted.
Dr Ghosh in her statement says she accepts that her prescribing was inappropriate.
Dr Kertesz says Lomotil is contraindicated in usage for children as it contains atropine.
Dr Hutt said patient C was 11 at the time Dr Ghosh prescribed Lomotil. It is an antidiarrhoeal medication which decreases bowel motility and increases fluid absorption. According to MIMS, it is not recommended to prescribe this medication to children under 12 years old. The Australian Medicines Handbook states "Do not use in children with acute diarrhoea; oral rehydration is the preferred treatment. Loperamide is sometimes used for chronic diarrhoea (eg short gut syndrome) in younger children under specialist supervision". Dr Hutt advised that unless the Lomotil was prescribed under specialist supervision, Dr Ghosh's prescribing is outside recommendations. Dr Ghosh has not suggested it was prescribed under specialist supervision.
There is a prescription for 50 tablets of Ponstan on 21 December 2013, when patient C was 9 years old and on 18 November 2014, when patient C was 10 years old. Dr Hutt advises that this is an anti-inflammatory, analgesic and antipyretic medication, commonly used in the treatment of mild pain in adults. MIMS classifies this medication as "contraindicated in children under 14 years of age". In her opinion, Dr Ghosh's prescribing was outside recommendations.
We accept the opinions and evidence of Dr Kertesz and Dr Hutt.
Ponstan is available as an over the counter medication. It can only be claimed on the PBS for the management of dysmenorrhoea in young menstruating women. In these proceedings Dr Ghosh conceded that it should have been a private prescription.
We have already found that Dr Ghosh should not have prescribed medication to a close relative.
In addition Lomotil and Ponstan should not have been prescribed for a child of the age of patient C unless under specialist supervision and Ponstan should have not been prescribed on the PBS.
We find that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Clause 34 of the Poisons and Therapeutic Goods Regulation 2008 applies to Schedule 4 restricted substances. Counsel for the Health Care Complaints Commission did not take us to any evidence which shows that, at the relevant time, either Lomotil or Ponstan were Schedule 4 restricted substances.
We find that the Health Care Complaints Commission has established Complaint Three particulars 1, 2, 3, 4, and 5 but has not established particular 6.

Failure to refer to independent general practitioner (Complaint Two particular 7)

The Health Care Complaints Commission says that, between January 2013 and June 2018, Dr Ghosh failed to refer patient C to, or arrange for patient C to consult with an independent general practitioner for management of his conditions/diagnoses.
In her Reply, Dr Ghosh denies this particular and says that she called home visit GPs on a number of occasions.
Counsel for Dr Ghosh relies on the following evidence given by Dr Kertesz to this Inquiry as establishing "the fundamental dilemma" which underlay Dr Ghosh's inability to find an independent general practitioner: "SENIOR MEMBER MORRIS: The child … he's got a substantial problem. I mean, this child has been in hospital and been put under anaesthetic, anaesthetised on three occasions with nasogastric feeding to stop him dying from, loss of weight. Is there - how - what would the - in terms of your knowledge of the general practice community in the Hunter, how many GPs would be comfortable looking after a child of that level of severity of autism? A. Probably very few."
However there is no evidence before us of patient C having this level of disability at any time during the period covered by the Complaint, being January 2013 to June 2018. Until the end of 2016 there were behavioural issues at home but he was regularly attending school and consulting other health care practitioners such as his psychologist, Dr Baker. We do not consider it necessary to recount the details of patient C's issues in detail in these Reasons, but we have a number of reports from Dr Baker and the history taken from Dr Ghosh and person D by the school psychologist in 2017 which are consistent with patient C functioning well eg attending school and performing well in an opportunity class (which is a selective school program for academically gifted primary school aged children in the last two years of primary school) until the very significant deterioration in his presentation after the last trip in early 2017. In addition, those documents do not contain any history or observations of patient C throughout 2017 consistent with the assumption put in the question to Dr Kertesz.
We decline to find that Dr Ghosh would not have been able to find a treating general practitioner for patient C from January 2013 and June 2018.
The evidence we take into account in relation to the use of other general practitioners is the following: 1. The PBS records show that between January 2013 and June 2018 Dr Ghosh was the only prescriber to patient C although he was administered prescription medication when admitted to hospital for his hip infection. 2. On occasions, patient C started to refuse to attend health practitioners from early 2017. 3. Dr Ghosh said that home visit doctors were called a number of times. There is no documentary evidence of this having occurred. Dr Ghosh said they refused to prescribe medications that fell within the responsibility of the regular general practitioner. 4. As mentioned by Dr Kertesz, two or three general practitioners are named in various documents but their involvement with patient C is unclear. 5. From time to time Dr Ghosh has stated to others that patient C consulted other general practitioners. There is no document in evidence confirming this and we do not accept her mere assertion of this fact. 6. Counsel for Dr Ghosh conceded that there was no evidence before the Tribunal of Dr Ghosh making any attempt to find a suitable treating general practitioner for patient C.
We are satisfied that the Health Care Complaints Commission has established that Dr Ghosh failed to refer patient C to, or arrange for patient C to consult with, an independent general practitioner for management of his conditions/diagnoses.
Our findings in relation to Complaint Three particulars 1 - 5 are relevant to the inappropriateness of Dr Ghosh failing to do so.
We are satisfied Dr Ghosh should have referred patient C to an independent general practitioner or at the very least continued over the whole of the five and a half years to make demonstrable and ongoing efforts to find a general practitioner who would have accepted him as a patient.
We find that Dr Ghosh's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
We find that the Health Care Complaints Commission has established Complaint Two particular 7.

Failure to make and keep a record (Complaint Two particular 8)

The Health Care Complaints Commission says Dr Ghosh failed to make a record of the Schedule 4 restricted substances which she prescribed to patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation.
Dr Ghosh denies Complaint Two particular 7 and says she did make a record.
Despite being required to produce her records for patient C, no records have been produced.
Dr Ghosh said she did not make any formal records in relation to patient C because she did not have any formal consultations him. However she entered the information required by the Poisons and Therapeutic Goods Regulation into the practice management software including the reason for the prescription.
Restricted substances are prescribed in the Poisons and Therapeutic Goods Regulation pursuant to the Poisons and Therapeutic Goods Act 1966 (NSW). From 2013 to 2016 the list included these medications which were prescribed by Dr Ghosh - esomeprazole, doxycycline, olanzapine, paracetamol + codeine, diphenoxylate + atropine sulphate monohydrate (Lomotil), azithromycin, acetazolatnide, risperidone and ondansetron.
Clause 38 of the Poisons and Therapeutic Goods Regulation provides: 38 Records to be kept of certain prescriptions (1) An authorised practitioner who prescribes a prescribed restricted substance must make a record of the following particulars - (a) the name, strength and quantity of the substance prescribed and the date on which it was prescribed. (b) if the substance is intended for the treatment of a person, the name and address of the person to be treated. (c) if the substance is intended for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) the maximum number of times the substance may be supplied on the prescription, (e) in the case of a prescription for a special restricted substance, the intervals at which the substance may be supplied on the prescription, (f) the directions for use, as shown on the prescription. (2) The record must be kept at the surgery, hospital or office of the person prescribing the substance.
Counsel for Dr Ghosh submitted we should accept the evidence of Dr Ghosh when she said she had recorded on her practice software the prescriptions that she issued for patient C, but patient C had destroyed the hard drive.
We do not consider it is necessary for us to decide whether we accept Dr Ghosh's excuses for not producing the record. We are satisfied that, even if the record Dr Ghosh described had been kept, it would not comply with the requirements of the Regulation which requires that the information be kept in a record at the surgery. Accordingly we find that Dr Ghosh failed to comply with the Regulation.
We are satisfied that Dr Ghosh's failure was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
We find that the Health Care Complaints Commission has established Complaint Two particular 8.

Complaint Three

In Complaint Three the Health Care Complaints Commission says that Dr Ghosh is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. That section relevantly defines unsatisfactory professional conduct as any improper or unethical conduct relating to the practice of the practitioner's profession.

What is improper or unethical conduct?

The words "improper" and "unethical" are not defined in the National Law.
In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Tribunal held at [30]-[31]: "30. The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. 31. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession"."
In Health Care Complaints Commission v Liu [2016] NSWCATOD 133 the Tribunal held at [54]-[56]: "54 Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55 The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: 'Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: "The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on." In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.' 56 We adopt the discussion of the principles set out Office of Local Government v Toma."

Treating a close relative and the Guidelines (particulars 1 and 5)

Complaint Three particular 1 says that between about January 2013 and June 2018 Dr Ghosh inappropriately treated patient C, a close relative, contrary to the Medical Council of NSW, 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.
The Good Medical Practice: A Code of Conduct for Doctors in Australia says: "Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues". (Section 3.14)
The Guideline for self-treatment and treating family members" says: "2. Medical practitioners should not initiate treatment (including prescribing) for themselves or members of their family. 3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available. 4. Medical practitioners should not serve as primary or regular care providers for members of their family, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment."
These are only Guidelines and it is not illegal to treat family members.
Dr Ghosh does not admit Complaint Three, particular 1.
In Complaint Three particular 5 the Health Care Complaints Commission says that between January 2013 and June 2018 Dr Ghosh inappropriately provided regular and ongoing care and treatment to patient C for his general medical, psychiatric, social and psychological diagnoses.
Dr Ghosh does not admit Complaint Three, particular 5.
We will consider these two particulars together as they are interrelated.

Did Dr Ghosh provide regular and ongoing care and treatment to patient C?

Dr Ghosh denies that she was patient C's general practitioner.
Dr Ghosh says that throughout his childhood patient C had a regular general practitioner at a Medical Centre.
As he became older it became difficult to arrange for him to be seen by his regular general practitioner as he often did not want to attend the Medical Centre. She then arranged for patient C to be seen by home visit doctors however they would not prescribe medications or give any services that were the work of a patient's regular general practitioner. At person D's request, on occasions, she prescribed medications to patient C from 1 January 2013 to 11 December 2017 as this was the best option as he was reluctant to attend his general practitioner. She did not consider that this was treating or providing medical care to patient C. In cross examination she said: "Q. How is that at all relevant to you prescribing medications in 2013? A. Well, again, I'm saying that I agree that, you know, it is preferable to avoid prescribing for any family members and, you know, I would be willing to abide by a condition if the tribunal thinks it's appropriate to impose a condition that I do not prescribe for (them). … A. I was not providing care. I was writing scripts when I could not get scripts from any other doctor. And that was the finding of Professor Peter Procopis in 2017 and he was then head of the Medical Council. Q. Are you seriously suggesting providing a patient with a script is not providing them medical care? A. Well, the script that-- Q. Just answer my question. A. Yes. Q. Yes, it is providing medical care? A. Look, I'm trying to answer your question. So, the script that the tribunal was worried about in 2018-- Q. I haven't asked any question about a script the tribunal was worried about. A. You don't need to be aggressive, Mr Britt. We're asking you to be more professional and not aggressive. Q. You're not asking me to do anything. A. Yeah. Okay. … Q. Then can you answer my question that are you seriously suggesting that providing a patient with a script is not providing them medical care? A. It's not providing medical care when the script was initiated by a treating specialist ... Q. Do I need to repeat the question again, madam? A. My answer is no, it's not providing care. I was continuing scripts that were initiated by treating doctors … Q. Doctor, when you're able to practice, if I walked in complaining of an upper respiratory tract infection and you prescribe me with a script, would that have been you providing me medical care? A. Yeah, but wasn't the case with (patient C).
On Dr Ghosh's own case, very few of the prescriptions dispensed were related to any condition for which patient C was seeing a specialist.
We are satisfied that the writing of the prescriptions is evidence of Dr Ghosh providing regular and ongoing care and treatment to patient C.
There is other evidence consistent with Dr Ghosh providing medical care and treatment to patient C.
Other doctors noted that Dr Ghosh was acting as patient C's treating doctor. Dr Kable noted in his report dated 15 March 2018 addressed to an insurer: "I was asked to complete the Medical Certificate as (patient C) does not have a general practitioner. He was referred to me by … Dr Ghosh, in March 2017."
That referral is in evidence. It says: "Thank you for seeing (patient C), age 12 years for opinion and management of severe behavioural disturbance … I am writing the referral because I have been unable to get him into our regular GP." The referral continues: "He improved without medication, but then deteriorated again, with unprovoked violence …, school refusal, ruminating and paranoids thoughts. I restarted olanzapine 2.5 mg with some improvement by 30 January 2017, and the 3 times I have withdrawn him since, noticed marked deterioration in his behaviour and functioning within a few days."
We consider that this illustrates that Dr Ghosh was acting as patient C's general practitioner.
We note that later in the referral she says "I referred him to CAMHS as a [close relative]".
On 21 April 2016 patient C's treating doctor at John Hunter Hospital wrote to Dr Ghosh: "Dr Tewari and myself have recommended that it is better for Dr Ghosh not to manage [close relatives]. We recommend finding a general practitioner and paediatrician to manage [patient C]."
In addition Dr Ghosh was administering olanzapine to patient C without his knowledge. A file note dated 6 February 2017 in the records of the Child and Adolescent Mental Health Service (CAMHS) where patient C was being treated says: "Phone call from [Dr Ghosh] …she reported a good response to medication. This seemed to be the key reason for her call: she is putting 2.5 mg of Olanzapine in his water each night, so that he does not know he is taking medication: she stressed her role as GP - as his GP - and that the medication had been prescribed by a psychiatrist in Orlando USA."
A further file note dated 20 February 2017 referring to a CAMHS session records: "There were a number of issues of [Dr Ghosh] being "doctor" discussed as muddying the waters … There was a struggle also over the issue of (patient C) having his own GP: my concern was around some of the ethical issues raised to-day and on the phone with Ratna … with patient C apparently wary and suspicious of Dr Ghosh's doctoring role, in addition to which, secret prescribing and dosing has the potential to further undermine this relationship."
A file note dated 21 March 2017 by a psychologist at CAMHS says: "Her repeated insistence on having Olanzapine ratified by CAMHS as the main treatment was countered by Dr Chaudhary's assessment that Fluoxetine would be a more targeted response … the identity of a specific [GP], treating patient C, would need to be notified to CAMHS before a prescription was made to trial this. Ratna claimed that [patient C] has contact with the … Medical Centre but that his GP has left."
A file note on the same day made by the psychiatrist at CAMHS says: "Notifiable concerns … : Dr Ghosh's administration of medication to [patient C] which is unregulated and her refusal to accept expert advice about ceasing this practice and her resistance in assigning, as recommended, a GP for [patient C] rather than treating him herself [as a GP], ordering investigations etc."
The inappropriateness of Dr Ghosh acting as patient C's general practitioner and prescribing medication is shown in these comments made by Dr Tewari, paediatric orthopaedic surgeon at John Hunter Hospital. Dr Ghosh was insisting that patient C had an infection in his hip: "[Patient C] represented 4 April 2016 and was eventually admitted under my care. We proceeded with an MRI which showed a tiny hip effusion. There is no evidence of osteomyelitis or septic arthritis on the MRI. The same afternoon I received a call from the resident and registrar advising me that [Dr Ghosh and person D] are still not happy and they want to discharge him again. I was informed that the child was already given antibiotics at home, which was not an appropriate thing to do. So putting up a drip and giving some antibiotics made sure that the child remains in the hospital. The child improved obviously as was expected and was sent home."
The report dated 21 April 2016 also says: "[Patient C] was seen in Dr Tewari's paediatric outpatient clinic today … It is reported that his pain has improved. [Patient C's] antibiotic treatment has been altered by Dr Ghosh. This has changed from Didoxacilllin which was advised at the time of admission and changed to Rifampicin and Azithromycin."
We do not accept that Dr Ghosh only acted as patient C's general practitioner when she was unable to use another general practitioner or was acting under the supervision of a treating specialist.

An exception?

Dr Ghosh also said that an earlier hearing had accepted that her conduct fell within the various exceptions in the wording of the Guidelines.
That hearing was an Interview conducted by delegates of the Medical Council after it received a complaint from a hospital claiming that Dr Ghosh had not maintained professional boundaries when patient C had been admitted to the hospital with left hip pain. The hospital said Dr Ghosh had disregarded the opinion of hospital doctors who did not think that patient C needed antibiotics but when patient C was at home antibiotics were initiated which hampered the investigation of the hip pain. After a second hospital stay, they said, Dr Ghosh facilitated two further changes to the antibiotic therapy without the supervision of an orthopaedic surgeon. In addition Dr Ghosh had nominated herself as patient C's general practitioner on patient C's hospital record and telephoned a microbiologist during the second hospital stay and led him to believe that she was a treating doctor rather than just a close relative of the patient.
Contrary to Dr Ghosh's assertion that the Medical Council had accepted that she fell within an "exception", the Panel noted that Dr Ghosh had a tendency to blame others for her problems and instructed her to take time to reflect on what part she may have played in the deterioration of the therapeutic relationships in the hospital. They considered that her vigorous defence of her treatment of patient C was driven by her strong belief that she had 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 a close relative and doctor in the future. Importantly, on 2 June 2017 they advised her to revise the standards of practice set out in Good Medical Practice. A Code of conduct for Doctors in Australia with particular reference to sections 3.14 personal relationships and 4.2 respect for medical colleagues and other healthcare professionals.

Findings - particulars 1 and 5

This aspect of the Complaint covers a five and a half year period. We have already found Dr Ghosh has not led reliable evidence in these proceedings of attempts to take patient C to an independent general practitioner or even made inquiries to locate a general practitioner who could accommodate patient C's needs.
We are satisfied that during this period Dr Ghosh was patient C's primary care provider.
The Medical Board's Code of Conduct asks doctors to only provide medical care to anyone with whom they have a close personal relationship where it is unavoidable. We decline to find that Dr Ghosh provided that care only when it was unavoidable.
The Medical Council's Guideline asks doctors to only treat close relatives in emergency situations or isolated settings where there is no help available and even then only until another medical practitioner becomes available. They should not serve as the primary or regular care provider for a close relative. We are satisfied that Dr Ghosh was acting as the primary care provider.
We have already found that the inappropriateness of Dr Ghosh treating patient C had, from time to time, been brought to her attention by other health professionals. Dr Ghosh nevertheless continued as patient C's general practitioner.
We find, as Dr Hutt described, Dr Ghosh's conduct demonstrated poor judgement and was not consistent with good medical practice. The assessment and treatment of a patient with a mental health disorder requires objectivity, and includes an assessment of the patient's domestic and social circumstances. An objective assessment is unlikely to be possible when assessing or treating a close relative.
We are satisfied that Dr Ghosh treated, referred and managed patient C contrary to the Code of Conduct and the Guidelines.
Bearing in mind the legal principles we have set out above, we are satisfied that the conduct in Complaint Three particulars 1 and 5, viewed objectively, would be regarded by reasonable persons as falling significantly below the standard of conduct expected of medical practitioners and was accordingly improper and unethical.
The Health Care Complaints Commission has established Complaint Three particulars 1 and 5.

Claim on Medicare for a Mental Health Treatment Plan (particular 2)

The Health Care Complaints Commission says that Dr Ghosh inappropriately created and submitted to Medicare a Mental Health Treatment Plan (the Plan) for patient C in June 2014 and reviewed the Plan in August 2014.
Dr Ghosh admits she prepared the Plan and billed Medicare. However, she does not admit that it was inappropriate. She says she was asked by a child psychologist to provide a Plan so that patient C could have ten consultations covered by Medicare.
The purpose of a Plan is to set out a strategy to address the mental health issues of a patient. That strategy is managed by the general practitioner who can refer the patient to various sources including a psychologist. According to the Medicare rules: 1. It is the expectation, but not a mandatory requirement, that the general practitioner preparing the Plan would have provided the majority of services to the patient over the previous 12 months, and/or will provide the majority of services over the coming 12 months. 2. The preparation of the Plan includes both an assessment of the patient and the preparation of the document outlining the plan. This should occur in collaboration with the patient or patient's carer if appropriate.
Dr Hutt said she did not consider that Dr Ghosh would have been in a position to adequately perform the mental health assessments of patient C because of their close relationship. Dr Ghosh's objectivity and judgment were likely to have been influenced by the nature of the personal relationship.
In our view, the Plan under Medicare should have been prepared by an independent general practitioner as outlined by Dr Hutt.
The explanation offered by Dr Ghosh only goes to the cost of the treatment. If the psychologist treated patient C pursuant to a Plan, it was paid for by Medicare. There is no suggestion that the psychologist would have refused to provide the treatment without the Plan, nor any evidence that Dr Ghosh could not afford to pay for the treatment.
We are satisfied that preparing the Plan to obtain Medicare benefits viewed objectively, would be regarded by reasonable persons as falling significantly below the standards of conduct expected of medical practitioners and was accordingly improper and unethical.
The Health Care Complaints Commission has established Complaint Three particular 2.

Claim on Medicare (particular 3)

The Health Care Complaints Commission says Dr Ghosh billed Medicare for four services provided to patient C between 2013 and 2015 which was inappropriate and in contravention of the Department of Health, Medicare Benefits Schedule (2021) at Schedule G - "Services Which Do Not Attract Medicare Benefits".
Dr Ghosh admits that she billed Medicare for these services, but does not admit that it was inappropriate and does not admit that patient C was ineligible for the payment of a Medicare benefit.
Schedule G provides that generally medical benefits are not paid for professional services rendered by a practitioner to dependants. A dependant is defined to include a person in the position of patient C. Counsel for Dr Ghosh did not submit that the claims made by Dr Ghosh were permitted by any exclusion to the general principle.
Two of the four claims were for the Plan. The other two claims were for a Level B consultation. Dr Ghosh said that the consultations were for referrals to specialists. She could not recall whether, when she wrote the referral, patient C had come in to the practice and attended a level B consultation. She said if he had not come in, she would not have billed him for a home visit, she just billed the minimum possible so that the specialists could obtain a Medicare fee. She then agreed she could have billed for a level A consultation, for which the rebate is less than level B. She said that the $11 rebate to patient C for a level A consultation would not have reflected the time and effort she had taken to write the referrals.
We do not consider that the explanation answered the Complaint. Counsel for Dr Ghosh did not suggest that it did.
We are satisfied that the unjustified claims on Medicare viewed objectively, would be regarded by reasonable persons as falling significantly below the standards of conduct expected of medical practitioners and were accordingly improper and unethical.
The Health Care Complaints Commission has established Complaint Three particular 3.

Medication for herself and person D (particular 4)

The Health Care Complaints Commission says that between January 2013 and June 2018 Dr Ghosh prescribed medications for herself and person D, in patient C's name: 1. contrary to the Guideline for self-treatment and treating family members dated 4 October 2011 and 2 December 2014 and Part 3.9 of the Good Medical Practice: A Code of Conduct for Doctors in Australiadated 2011 and March 2014; and 2. contrary to cl 38 of the Poisons and Therapeutic Goods Regulationwhich requires that prescriptions for Schedule 4 restricted substances must include the name of the patient.
Dr Ghosh does not admit Complaint three, particulars 4 a) and (b). She says that at no time did she ever prescribe medications for patient C that were intended to be used by person D or herself. It was possible that person D may have used some of the medication that was prescribed for patient C, but, if this had occurred, it was done without her knowledge.
Counsel for the Health Care Complaints Commission says Dr Ghosh admitted to writing a prescription for person D. He relied on this evidence of Dr Ghosh in cross examination: "Q. The question is about the writing. A. No, I think we had doxycycline left over, because [person D] was going back and forth to India and the plan was to use that, you know, if we used it, but in the end, none of us took it, yes, so it wasn't actually administered. Q. Sorry, the answer to my question was, therefore, did you actually write private prescriptions for yourself and/or [person D] for doxycycline, for travel prophylaxis? A. Yes, I think I did. Q. Are you sure of that? A. Well, I think we had doxycycline left over, because [person D] was going back and forth to India, and we weren't too fussed about myself and [person D]. It was more my so, because he was more vulnerable."
Counsel for the Health Care Complaints Commission relies on this as an admission that the "plan" was that the doxycycline she had prescribed for patient C was also to be used by person D on his trips to India. We do not accept this as the only interpretation of this evidence and decline to find such an admission.
Counsel for the Health Care Complaints Commission then submitted that Dr Ghosh had been prescribing esomeprazole to patient C at least in part for her own reflux. We have discussed this under the heading "Credit" where we have declined to find that Dr Ghosh was prescribing the medication in the name of patient C but intending to use it herself and then using it herself.
The Health Care Complaints Commission has not established Complaint Three particular 4.

Failure to make a record (particular 6)

The Health Care Complaints Commission had said that Dr Ghosh failed to make a record of the Schedule 4 restricted substances that she prescribed to patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation. However this was not pressed.

False and misleading information - reviews (particular 7)

The Health Care Complaints Commission says Dr Ghosh 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.
Dr Ghosh denies Complaint Three, particular 7.
Under the section entitled "Credit" we have found that Dr Ghosh posted the reviews in relation to Dr Khan.
The transcript of the s 150 Inquiry shows Dr Ghosh denied that she had posted the reviews. She maintained that denial in these proceedings.
That denial viewed objectively, would be regarded by reasonable persons as falling significantly below the standards of conduct expected of medical practitioners and was accordingly improper and unethical conduct.
The Health Care Complaints Commission has established Complaint three particular 7 in relation to Dr Khan.

False and misleading information - statutory declaration (particular 8)

The Health Care Complaints Commission says Dr Ghosh provided false or misleading information to the Medical Council of NSW and the Tribunal in a statutory declaration dated 17 September 2018 and filed in the Tribunal 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."
Dr Ghosh does not deny saying those words but denies that she provided false and misleading information and says: 1. It was in effect a submission about the evidence before the Tribunal; 2. It was made in the context of the Tribunal being able to examine that evidence for itself, and the mere making of the submission was not capable of misleading the Tribunal, nor could it have been intended to mislead the Tribunal.
The first issue is whether the statement was false and misleading.
In cross-examination in this Inquiry Dr Ghosh was asked for the names of the four psychiatrists who found, as at 17 September 2018, she had no mental illness. She identified Dr O'Connell, Dr Davies, Dr Bench and Dr Robinson.
In summary their reports say the following about diagnosis. 1. Dr O'Connell 1. 25 January 2018 - The history and her behaviour at interview are suggestive of underlying narcissistic personality traits that require more extensive assessment to accurately diagnose. These personality traits may be exaggerated at present as Dr Ghosh is under extreme stress due to difficulties with (patient C's) mental state. 1. Dr Davies 1. 26 February 2018 - does not fulfil any obvious diagnostic classification of mental disorder. 2. 17 September 2018 - fulfils the diagnostic criteria for a personality disorder as defined within DMS-V. 1. Dr Bench 1. 20 March 2018 - does not meet the diagnostic criteria for any major mood, anxiety or psychotic disorder. 2. 23 May 2018 - fulfils the diagnostic criteria in DSM 5 for an Unspecified Personality Disorder with paranoid and narcissistic traits. 1. Dr Robinson 1. 18 June 2018 - difficulties in interpersonal interaction secondary to Dr Ghosh's personality style, rather than to a major psychiatric illness. There may also be transcultural factors at play. 2. 12 July 2018 - I am now of the view that she is suffering from a Narcissistic Personality Disorder.
Dr Ghosh denies having received the second reports of Dr Davies, Dr Bench and Dr Robinson at the time she swore the statutory declaration.
We were not taken to any evidence which would establish that Dr Ghosh had those reports at that time. Counsel for the Health Care Complaints Commission did submit that it is clear from her evidence in chief that Dr Ghosh was aware of the later reports that were before the Medical Council. This would have been evidence given after the statutory declaration had been sworn.
It is the case that Dr Newnham was the only doctor to make a provisional diagnosis of schizophrenia.
We decline to find that the Health Care Complaints Commission has established that the statements made by Dr Ghosh were false and misleading.
We decline to find that the Health Care Complaints Commission has established Complaint Three particular 8.

Complaint Four

In Complaint Four the Health Care Complaints Commission says that Dr Ghosh is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. That section relevantly defines unsatisfactory professional conduct as a contravention of the National Law, regulations under the National Law or under the NSW Regulations.
The Health Care Complaints Commission says that Dr Ghosh contravened cl 7 and Sch 2 of the Health Practitioner Regulation (NSW) Regulation 2010 which was then in force but subsequently repealed. That Regulation sets out the obligations on a medical practitioner in relation to the keeping of medical records.
The Health Care Complaints Commission says Dr Ghosh: 1. failed to maintain adequate and appropriate medical records of her appointment with patient B on 7 August 2017 (particular 1). 2. failed to maintain any medical records of her treatment of patient C between January 2013 and June 2018.

The Regulation

The Health Practitioner Regulation (NSW) Regulation, cl 7 says that a medical practitioner must ensure that a record is made and kept for each patient. The details which should be in the record are set out in Sch 2 of the Regulation.
Schedule 2 of the Health Practitioner Regulation (NSW) Regulation relevantly says, at cl 1: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, …

Patient B (particular 1)

Dr Ghosh does not admit Complaint Four, particular one.
Counsel for Dr Ghosh submitted that the notes reflecting the consultation as it occurred, are lengthy, and are more than adequate to indicate to another doctor taking over her care what had occurred on that occasion, and are sufficient to allow another practitioner to take over the patient's care. Further the consultation notes should be read in conjunction with the notes from the registered nurse, which, if read together, give a complete record of what transpired.
The notes are in evidence and are set out in our consideration of Complaint One. The first relevant entry at the beginning of the consultation says "PC: 33/40 antenatal check". Then, after the history and examination, under "Diagnosis:" is written "Normal antenatal check".
We are satisfied that these notes would mislead another doctor who may have taken over the treatment of patient B into believing that a full antenatal check had been performed and that the findings had been normal. According to Dr Ghosh, she did not perform the antenatal check. We accept that this means that the note Dr Ghosh made was, bearing in mind the Health Practitioner Regulation (NSW) Regulation, neither adequate nor appropriate.
The Health Care Complaints Commission has established Complaint Four particular 1.

Patient C (particular 2)

Counsel for Dr Ghosh submitted that Dr Ghosh was not patient C's treating doctor.
We do not accept that submission. We are satisfied that patient C met the definition of a "patient" under cl 3(1) of the Health Practitioner Regulation (NSW) Regulation, being a person to whom health care treatment or other health services were provided. This is evidenced by our earlier findings and by Dr Ghosh providing patient C with prescriptions, preparing a Mental Health Plan and conducting consultations.
Counsel for Dr Ghosh then submitted that we should find that Dr Ghosh had not made consultation notes because she did not have formal consultations with patient C. We should also accept that Dr Ghosh did make a record but had been unable to recover it because patient C had destroyed her computer, and she no longer lived with person D who had the backup of the hard drive which had been on the computer.
By email dated 9 October 2018 the Health Care Complaints Commission asked the solicitors then acting for Dr Ghosh to provide the complete medical records for patient C. They advised they no longer acted for her but said they had sent the letter to her.
By email and letter dated 19 October 2018 the Health Care Complaints Commission asked Dr Ghosh to provide the complete medical records for patient C.
As considered further in Complaint Five, on 22 January 2019 the Health Care Complaints Commission served Dr Ghosh personally with a Notice pursuant to s 34A of the Health Care Complaints Act 1993 (NSW), requiring her to produce documents and/or give information concerning medical records for her care and treatment of patient C.
By email dated 2 February 2019 Dr Ghosh said she did not have access to patient C's records.
A letter dated 2 April 2019 sent by the Health Care Complaints Commission to Dr Ghosh refers to an earlier letter dated 4 February 2019 advising that the email response was insufficient under s 34A(1)(a). In the letter dated 2 April 2019, the Health Care Complaints Commission said it still had not received a signed statement of information explaining why she could not provide patient C's medical records.
The only explanation offered by Dr Ghosh is that the records were on the hard drive of her laptop which had been destroyed and could not be repaired. The backup of the hard drive was in the possession of person D.
We do not consider it necessary to decide whether we accept Dr Ghosh's excuses for not producing the backup of the hard drive.
Dr Ghosh said that her records relating to patient C would have been generated by the MedicalDirector software - when she wrote a prescription the software prompted her to enter a reason for the prescribing and she also would have had the Mental Health Care Plan the subject of Complaint Three particular 2.
We find that the limited information which would have been in the record as described by Dr Ghosh, would not have contained most of the information required by Schedule 2, for example a history and a plan of treatment.
The Health Care Complaints Commission has established Complaint Four particular 2.

Complaint Five

In Complaint Five the Health Care Complaints Commission says that Dr Ghosh is guilty of unsatisfactory professional conduct under s 139B(1)(e) of the National Law. That section relevantly defines unsatisfactory professional conduct as a contravention of s 34A(4) of the Health Care Complaints Act.
In summary, s 34A says that, if the Health Care Complaints Commission is investigating a Complaint and is of the opinion that a person is capable producing medical records that would assist in the investigation, the Commission may, in writing, require the person to produce to the Commission the records. A person who is given the notice must not, without reasonable excuse, fail to comply with the requirement.
The relevant history has been set out under our consideration of Complaint Four particular 2.
Dr Ghosh denies Complaint Five and says she provided a statutory declaration to the Health Care Complaints Commission stating her reasons for not being able to produce patient C's records.
We assume that this is a reference to the statutory declaration sworn on 12 May 2021 in which Dr Ghosh said she was not aware that she was required to respond to the Notice by way of a signed statement of information and believed that her email dated 2 February 2019 would be sufficient to comply with the Notice.
As Dr Ghosh responded to the Notice, she must have received it. The Notice itself clearly states that if Dr Ghosh was unable to provide the medical records she was: "required under section 34A(1)(a) of the Health Care Complaints Act 1993 (the Act) to provide a statement from information signed by you, explaining why you cannot provide the Commission with a complete copy of your medical records for [patient C] … Section 34A(4) of the Act creates an offence if you fail to comply with this notice without reasonable excuse and may constitute unsatisfactory professional conduct under the Health Practitioners Regulation National Law (NSW)."
As we have said, in her reply email Dr Ghosh said she did not have access to patient C's records.
The Health Care Complaints Commission then sent one or two letters to Dr Ghosh advising that the email response was insufficient under s 34A(1)(a).
We are satisfied that Dr Ghosh had been informed that she had to provide a signed explanation.
We find both the substance and the form of the excuse provided in the email insufficient. It does not explain why Dr Ghosh did not have access to the records and it is not signed by her.
We also find that the statutory declaration does not provide the reasonable excuse required by the legislation because it is misleading and incomplete. It does add that she had records on her computer but patient C had destroyed it. However in her evidence Dr Ghosh said there was a backup of the hard drive which is now in the possession of person D. This backup is not mentioned in the statutory declaration.
We find that Dr Ghosh failed to comply with a notice issued by the Commission under s 34A and failed to provide a reasonable excuse for her failure to comply.
The Health Care Complaints Commission has established Complaint Five.

Complaint Six

The Health Care Complaints Commission says Dr Ghosh is guilty of professional misconduct under section 139E of the National Law in that Dr Ghosh has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, or 2. 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 her registration.
Complaints One, Two, Three, Four and Five are relied upon both individually and cumulatively.
Dr Ghosh denies Complaint Six.
We find that the conduct established by the Health Care Complaints Commission when considered cumulatively is of a sufficiently serious nature to justify suspension or cancellation of Dr Ghosh's registration, in that she: 1. Placed patients at risk of harm when Dr Ghosh: 1. provided inappropriate treatment to patient A and placed patient A at risk of serious harm, including the risk of anaphylaxis and death, by prescribing penicillin, after having been told the child had developed a rash after having taken penicillin before, 2. provided inappropriate treatment to patient B and placed patient B and her child at risk of catching whooping cough and transmitting it, by not being aware of the then current guidelines for vaccination in the third trimester of pregnancy, and imparting her incorrect beliefs about the risks of vaccination to patient B, and 3. provided inappropriate treatment for a close relative, patient C, which meant that patient C was denied the benefit of treatment by an independent general practitioner for a very lengthy period where there were significant medical and other issues to be managed, patient C was prescribed large quantities of various drugs that were not clinically indicated over that time, and Dr Ghosh failed to keep adequate medical records so posing an additional threat to ongoing care for patient C. 1. Placed the community at risk of harm or harmed the community when Dr Ghosh: 1. did not implement the guidelines on providing vaccination against whooping cough to a patient who was in the third trimester of pregnancy, 2. in addition to the inappropriateness of the medications prescribed for patient C, prescribed large quantities of various medications on the PBS when it should not have been a public prescription, claiming on Medicare in contravention of the Medicare Benefits Schedule, 3. failed to prescribe within recommended guidelines and failed to keep records required by law, so denying the community the expected safeguards that operate to regulate supply and use of restricted substances in the community. 1. Placed the profession and public trust in the profession at risk by further improper conduct: 1. Dr Ghosh demonstrated disregard for codes of conduct, guidelines and regulations in her practice of medicine in conduct that spanned many years, 2. Dr Ghosh prepared false anonymous denigrating reviews of a fellow general practitioner and published her views by posting them on a website designed to assist practitioners to make their professional services known to the public and to assist members of the public looking for a suitable general practitioner, 3. Dr Ghosh did not tell the truth about some matters to this Tribunal and other regulatory bodies which were conducting inquiries.
We find that the Health Care Complaints Commission has established that Dr Ghosh is guilty of professional misconduct under s 139E of the National Law.

Complaint Seven

The Health Care Complaints Commission says that Dr Ghosh has an impairment within the meaning of s 5 of the National Law.
Section 5 of the National Law relevantly defines impairment: 5 Definitions impairment in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or …
The Health Care Complaints Commission says: 1. Dr Ghosh suffers from a mixed personality disorder with paranoid and narcissistic features and/or a chronic mental or personality disorder. 2. Dr Ghosh's thinking is disordered and she has frank delusional beliefs and may well at times meet the criteria for a delusional disorder. 3. Dr Ghosh's impairment is of sufficient nature and degree to impair her mental capacity to practise the profession.
Dr Ghosh denies each of the particulars of Complaint Seven.
This means we must determine whether the Health Care Complaints Commission has established that: 1. Dr Ghosh suffers from an impairment, and, if she does; 2. whether the impairment detrimentally affects, or is likely to detrimentally affect, Dr Ghosh's capacity to practise as a medical practitioner.

The Law

The current edition of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (DSM 5) is used in the medical profession to diagnose and classify mental disorders using a list of criteria.
However the definition of impairment in the National Law does not mean that the Health Care Complaints Commission must show Dr Ghosh has a disorder which has been diagnosed by meeting the criteria in DSM 5 or any other diagnostic tool. The NSW Court of Appeal has held in Grant v Health Care Complaints Commission [2003] NSWCA 73 at [11]-[12]: "11 Finally, there was a complaint that the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged Dr Grant suffered from. They came to a finding that she was suffering from mental impairment but they did not then say what sort of mental illness they relied on to constitute that impairment. 12 In my view they do not have to. Once they came to the conclusion, which they did come to, that whatever it was that she suffered from was prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner, they were entitled to make a finding of impairment even although they did not put a psychological label on that impairment."

Other information

As we have already mentioned in relation to Complaint Three particular 8, some doctors who have provided an opinion in relation to this aspect of the Complaint changed their views about their diagnosis after being provided with additional documents.
Some of the information they received we have already referred to. We set out below an outline of additional information which was provided to some of the doctors and which is in evidence in this Inquiry.
The information was not tested in these proceedings and Dr Ghosh denies most if not all of the incidents. Relevantly however, each of the doctors who has provided an opinion in this Inquiry was provided with some of this information, even if it was indirectly. For example many were provided with the written reasons delivered after the s 150 Inquiry which set out a history.
We accept this information is relevant to indicate whether there was likely to have been a pattern of behaviour which informed the diagnoses of the medical experts.
The chronology prepared for the s 150 Inquiry shows that two separate complaints were made by patients in 2005. The first patient said that Dr Ghosh had been rude. The second patient complained that Dr Ghosh had refused to provide information to his workers compensation insurer.
In 2009 the Medical Board appointed an Interview Panel to inquire into a complaint made by a patient on 9 December 2008. A Performance Interview was held on 19 June 2009. The patient said, in his complaint, that he had consulted Dr Ghosh when he had breathing and chest pain. She diagnosed stress, refused to run tests and repeatedly interrupted him. When he told Dr Ghosh he needed his medical notes for his life insurer, she suggested he may be suicidal. Dr Ghosh left an abusive and threatening voicemail message on his phone, recommending he undergo anger management counselling for his obnoxious and aggressive personality. Dr Ghosh twice stated her intention to complain to his boss, to take legal action and report him to the police if he made any further threats. Subsequently a fraudulent email was sent to the Roads and Traffic Authority purporting to be from him which said "I should not have a drivers licence as I am suicidal, having a nervous breakdown, take sedatives and other illegal drugs purchased in Mayfield, and have seen multiple doctors about my severe mental disorder with aggression and suicidal intent. Please cancel my driver's licence before I kill myself or someone else. .. I will hurt or kill many people unless you cancel my driver's licence."
Dr Ghosh denied the complaint and said he had been a difficult and aggressive patient. When she told them she had not, in the last 6 years, had a patient complaint, the Panel drew her attention to three previous complaints made in 2005, 2006 and 2009.
Another Performance Interview was held on 11 November 2011 to consider two complaints made by patients. The first patient said Dr Ghosh had been unprofessional and racially discriminatory, and complained that the consultation had been inadequate and inappropriate and Dr Ghosh had not addressed the patient's queries. Dr Ghosh said the patient had been angry and may have not been able to understand her due to language issues. Dr Ghosh said she did not respond to the patient's criticisms or engage her in argument. Dr Ghosh agreed that her use of the word "maniac" in her medical record was ill advised, but said the provocation had been extreme.
The second patient claimed that Dr Ghosh had prescribed medication inappropriately to her daughter and had not obtained a history or conducted a physical examination. Dr Ghosh said she had taken a history and undertaken an examination but agreed that prescribing the medication had been inappropriate.
At the s 150 Inquiry Dr Ghosh was asked about an incident which was the subject of a Complaint made in 2009 involving a speaker at a seminar. She said she found his talk extremely racist because he referred to overseas visitors as refugees. She told Medicines Australia that the speaker had been paid an enormous sum of money as a bribe to prescribe Sanofi vaccines and that Sanofi had paid a bribe to Primary Health Care and a named doctor. She said she had obtained this information from pharmaceutical representatives. She did not deny that she had also said that the Sanofi representative was "pot-bellied and obese and that both men were racist and stupid disgrace".
As we have said, Dr Davies has prepared reports for the purpose of the current complaints against Dr Ghosh. However he was first retained on a medico legal basis in 2010 by Dr Ghosh's then solicitor. She was then complaining of considerable stress in the workplace due to bullying by the Practice Manager who was "a single woman dictatorship". Dr Ghosh's complaints included the employment of very junior staff, a failure to provide her with necessary equipment, the disposal of her confidential documents against her wishes, cancelling her appointments and telling patients that she no longer worked there. She said the complaints about her clinical work were from patients with addiction issues, to whom she had declined to give substances of potential abuse.
Dr Davies concluded that, as Dr Ghosh had left the practice, she was fit to work as a sole practitioner.
Dr Khan had received complaints from patients other than patient B and the parents of patient A. Dr Ghosh denies the complaints and says that the practice staff actively encouraged patients to complain about her. 1. One patient said Dr Ghosh had not taken vital signs apart from a temperature check, had not collected any information about their immune compromised system or their allergic reactions to antibiotic. The comment was "Disgusting patient service and care". 2. Another patient said they had seen Dr Ghosh to check an injury. She had refused to check the injury or write a medical certificate and had called her a single childless angry woman. 3. Another patient suggested Dr Ghosh do a course in good manners and reassess how she talked to her patients. She had been unprofessional and rude and had not taken their temperature or blood pressure. 4. In another complaint, staff had recorded that a patient had been happy and talkative before her appointment but after the consultation was in tears saying that Dr Ghosh had been very rude, refused to listen to her and had called her a name. 5. Another patient said she had seen Dr Ghosh who had not let her finish describing her symptoms, had spoken over the top of her and said she would not give her a medical certificate because she was faking an illness to make her do something illegal. When she tried to explain that she had been violently ill all week, Dr Ghosh screamed "GET OUT" continuously. 6. Another patient is recorded as having complained that Dr Ghosh would not address her concerns, that she "brushes over everything" and "doesn't listen to her".

Impairment

As we have already indicated, there is large body of expert medical evidence.
Dr Newnham is the only doctor to make a provisional diagnosis of Schizophrenia. Other doctors have considered her diagnosis and have not agreed. The Health Care Complaints Commission has not invited us to find that Dr Ghosh is impaired because she has schizophrenia.
As we have outlined in detail under Complaint Three particular 8, three psychiatrists, Dr Bench, Dr Davies and Dr Robinson said in their first reports, after having had a consultation with Dr Ghosh, that she did not meet the diagnostic criteria for any major mood, anxiety or psychotic disorder (Dr Bench), that she did not fulfil any obvious diagnostic classification of mental disorder (Dr Davies), and that her difficulties in interpersonal interaction were secondary to Dr Ghosh's personality style, rather than to a major psychiatric illness (Dr Robinson).
Each of the three doctors was then provided with additional documents. In addition, Dr Bench and Dr Davies saw Dr Ghosh again before preparing their later reports.
Each of the three doctors revised their opinions in those later reports.
Dr Bench considered Dr Ghosh fulfilled the diagnostic criteria in DSM 5 for an Unspecified Personality Disorder with paranoid and narcissistic traits.
Dr Davies considered that Dr Ghosh fulfilled the diagnostic criteria for a personality disorder as defined within DMS 5.
Dr Robinson diagnosed a Narcissistic Personality Disorder.
Dr Ghosh expressed her view about those doctors changing their minds in cross examination in this Inquiry: "A. …, none of them received, apart from possibly Dr Christopher Bench, none of them were given any new materials on which to change their diagnosis. So, they haven't properly justified and particularised why they made such a dramatic change from no mental illness to confirm diagnosis of personality disorder, except for the fact that Kim Newnham made a provisional diagnosis… So apart from Dr Bench, none of them were given any new material and they've - they've not particularised how the materials justify and fit the diagnostic criteria for personality disorder…"
It is clear from the reports that the doctors did receive new material.
Dr Ghosh believes that the explanation for the doctors having changed their minds is that they all copied each other. As discussed later in these Reasons, there is no evidence of this having occurred.
The evidence establishes that it is difficult for a psychiatrist to arrive at a diagnosis in a case such as this at a single consultation with only limited information.
This was acknowledged by Dr O'Connell who, while he suspected underlying narcissistic personality traits, said he needed a more extensive assessment to accurately diagnose her condition.
It is also shown by Dr Davies, Dr Bench and Dr Robinson changing their minds after receiving further information.
Dr Samuels explained that one of the difficulties with assessing people who have paranoid conditions is that often a single assessment in a medico legal context does not provide much information as they often present quite well and there is often not a lot to find. However the most telling material is in the longitudinal history including any previous psychiatric reports and the kind of complaints which have been made over time.
Counsel for Dr Ghosh asked us to accept the evidence and opinion of Dr Saker.
Dr Ghosh was referred to Dr Saker by a general practitioner. He first saw Dr Ghosh on 27 August 2019 and concluded in his report that "I do not think that Major Psychiatric Illness should be the reason for her not having medical registration".
Dr Saker gave evidence. He said that after that first consultation he had a telephone consultation with Dr Ghosh a month later for around 20 minutes. Subsequently, Dr Ghosh sent him a lot of reports. She had mildly harassed his reception staff by constantly telephoning, faxing and emailing his rooms until six months ago trying to make another appointment, but he did not want to become involved in a medico-legal role. He did prepare two short reports later in which he said Dr Ghosh did not have a clinical diagnosis.
Dr Saker is of the view that Dr Ghosh does not have a true Personality Disorder because it would have been evident from around the age of 18. What had happened was that, later in her life, a constellation of bad things had happened to her causing her personality to deteriorate. This meant that, when those issues resolve in the future, then, with some help, her personality is likely to recover.
Dr Saker said he thought Dr Ghosh had some personality traits that had affected her for her whole life, in particular that she was very defensive and tended to not attribute any blame to herself, but attribute blame to others. At the consultation she had been loud and mildly difficult to interrupt and it had, in some ways, been difficult to keep on track with the consultation.
He concluded by saying: "To be honest since I saw her that first time, I have received lots of paperwork about her, and then paperwork from - from the - the Court as well. So, I have read a number of different opinions about - about her subsequently. So, my - my opinion, I guess, has changed a bit. But there are still some aspects of my opinion that remain the same, that she doesn't have what we call a major or previously axis one psychiatric condition, and that she has some sort of personality flaws which - which make it difficult for her to improve her situation. And that is probably where I am at, at the moment."
The opinion of Dr Saker as to Dr Ghosh not having a disorder is not consistent with that of Dr Samuels, Dr O'Connell, Dr Davies, Dr Bench and Dr Robinson.
The Health Care Complaints Commission retained Dr Samuels to provide a report for this Inquiry. Dr Ghosh did not attend: "Q. … You were asked to attend a consultation with Dr Samuels this year? A. I was. Q. You refused to attend? A. I did, and I think that refusal is justified in that I've attended six or more psychiatrists in three years. … Q. And you were asked earlier to attend your consultation with Dr Samuels too were you not? A. No, never - oh, sorry, in 2018 the council accepted Christopher Bench because they worked together. Dr Giuffrida, Dr Samuels and Dr Christopher Bench, who were both trained by Dr Giuffrida, the three of them work together. Q. You were asked to attend Dr Samuels in December 2019? A. Yeah, but the council then changed their mind. They said it's not - when they accepted Dr Christopher Bench as a substitute for Dr Samuels their criteria changed. When Dr Bench said no mental illness, they said that the only person who can make the one and only diagnosis was Dr Newnham. Now, since then Dr Samuels has revoked Dr Newnham's provisional diagnosis of schizophrenia and yesterday, he failed to uphold or confirm any of the diagnoses. Q. You were asked by the Health Care Complaints Commission, not the Medical Council, in December 2019 to attend upon Dr Samuels? A. I don't recall that, but I have not renewed my registration. Q. I don't think I asked about your registration. A. Yeah, yeah, so I say the Health Care Complaints Commission does not have any jurisdiction over me because I have not renewed my registration, so they can't order me - at the moment they can't order me anything. Q. I didn't actually say they ordered, I said they asked you. A. Yeah. I don't recall them asking me in December 2019. I know they asked me recently … "
Counsel for the Health Care Complaints Commission asked us to accept the opinion of Dr Samuels. Counsel for Dr Ghosh described his opinions as simply a review of the expert evidence.
Dr Samuels acknowledged that his opinion was limited by Dr Ghosh not having attended so he could not exclude the possibility that she is currently depressed, anxious, psychotic or suffering a neurocognitive problem. However, as we have already mentioned, Dr Samuels said that often a single assessment in a medico legal context does not provide much information and the most telling material is in the longitudinal history.
We decline to find that Dr Samuels simply reviewed the expert evidence. It is clear that from all of the documents provided to him - which included the expert evidence - that he arrived at his own opinion.
Dr Samuels concluded that the documents established a very long history of quite disordered behaviour from possibly 2007, but clearly from 2009 and contained very significant evidence of marked personality dysfunction. He thought the deterioration in the behaviour of patient C had caused Dr Ghosh's personality dysfunction to become more evident.
Dr Samuels described Dr Ghosh as having features of a paranoid personality disorder, in that she suspects without sufficient basis that others are exploiting, harming or deceiving her. She reads hidden demeaning or threatening meanings into benign remarks or events, persistently bears grudges and perceives attacks on her character and reputation. She is quick to react angrily or to counter attack. At times her thinking was disordered, she has frank delusional beliefs and she may well at times meet criteria for a delusional disorder.
Dr Samuels also considered that there was evidence of narcissistic personality traits with a grandiose sense of self-importance. She believes she is special, she has a sense of entitlement, she certainly lacks empathy and it is evident that she exhibits arrogant behaviours and haughty attitudes in particular in regard to class and race.
Dr Samuels summarised the information and other psychiatric opinion that he relied on to offer his expert opinion that there was persuasive support for a diagnosis of a severe personality disorder with narcissistic and paranoid traits with the likelihood of there being an underlying delusional disorder.
Section 5 of the National Law requires us to determine whether Dr Ghosh has a mental impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise as a doctor. As we have already said, we are not required to arrive at a psychological label when making this determination, but rather determine whether Dr Ghosh has a mental impairment which is prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner. The weight of the expert evidence, with the exception of Dr Saker, is to describe a constellation of behaviours exhibited by Dr Ghosh which have caused each of the psychiatrists to arrive at varying diagnoses, although the majority lean towards a diagnosis of a Personality Disorder. In the next section of these Reasons, we discuss that constellation of behaviours and how they impact on her capacity to work as a doctor. We do not limit this to behaviour exhibited by Dr Ghosh in her interactions with patients. We find that Dr Ghosh has a mental impairment by reason of these behaviours.

Effect of impairment on Dr Ghosh's capacity to practise

The doctors have identified a number of features on which they have based their diagnoses.
We mention those which we consider will be likely to detrimentally affect Dr Ghosh's capacity to practise as a medical practitioner.
A number of doctors have commented on Dr Ghosh's propensity to suspect, without justification, that others are exploiting, harming or deceiving her.
Dr Bench, Dr Robinson and Dr Samuels have also commented on Dr Ghosh's excessive sensitivity to setbacks and rebuffs and her tendency to bear grudges persistently which are features of a personality disorder. She deflects responsibility for her actions by blaming others. She is quick to react angrily or to counter attack rather than exploring her own role in those incidents.
Dr Samuels described Dr Ghosh as believing that she is special, having a sense of entitlement, lacking empathy and exhibiting arrogant behaviours and haughty attitudes particular in regard to class and race, those being evidence of narcissistic personality traits with a grandiose sense of self-importance.
Dr Samuels said that because of her grandiosity and belief in her own abilities she consistently worked outside of her scope of practice, breached professional boundaries and had provided inappropriate advice and care to patients placing them at risk of serious harm.
We consider that there is ample evidence of Dr Ghosh having exhibited these behaviours over many years. These include matters we have mentioned elsewhere in these Reasons and the following: 1. There are in evidence examples of Dr Ghosh's propensity to suspect a conspiracy and/or bad faith. She believes this Tribunal simply accedes to Orders sought by the Health Care Complaints Commission, that Dr Khan created false statements and then tricked the parents of patient A and patient B into signing them, that the Health Care Complaints Commission had been on a "witch hunt" and was '"stalking her"' and that some of the doctors had conspired to arrive at the same diagnosis as set out in this part of the transcript: "A. I never saw Dr Robinson a second time and as far as I'm aware, he was not given any new material. Now, some time after that, the doctors copied each other and it's because the Medical Council psychiatrist Dr Giuffrida made a confirmed diagnosis of paranoid disorder. Now, none of them knew what that is because it doesn't exist. So, after that, they, you know, that they more or less toed the line and they all copied each other … Q. Now, you said they copied each other. What evidence do you have to make that serious allegation that these psychiatrists are copying each other? A. Well, that was obvious from the second time I went to see Dr Davies and - well, he's the only one - and Dr Bench. Dr Bench actually told me that Dr Kim Newnham had called him, before the second time I saw him, and make comments to him. Q. And that's your evidence, in this witness box, stating that these four psychiatrists are copying each other? A. Well, there was no other explanation for why they changed their diagnosis so dramatically from no mental illness to a confirmed diagnosis of personality disorder. I said before Dr Russell Davies had all of the materials and a lot more because he was involved in producing reports specifically for the Court cases I'd been in earlier, so he had a lot more material and he had never diagnosed any personality disorder until Dr Christopher Bench did and then they all copied each other. Q. And again, you've got no evidence of that other than your own theory? A. No, I was told. I told you when I saw Dr Christopher Bench he said, Dr Kim Newnham had called him and made, you know, assertions about me before my second assessment with him, and Dr Davies said he had communication from Dr Bench … Q. Who did he copy from? A. Well, they all have some discussion. Newcastle's a small place it happens, and they decided it was a personality disorder and not a psychosis, but-- Q. You've got no evidence of all of them sitting around discussing your case and you having a personality disorder, do you? A. Mr Britt, I've repeated my answer some four or five times already that Dr Kim Newnham called Dr Bench. He told me that at my second assessment and Dr Davies told me that Dr Bench had communicated with him. Q. Did he tell you, "We've all sat around and formed a group opinion"? A. I've already answered that, Mr Britt. Q. Did they say that madam? A. You're not registering my answer, can you repeat my answer, please? Q. Madam, I get to ask questions. A. Yes. Did-- Q. Did he tell you they all sat around together and come to a group diagnosis? A. No, he didn't say that, but I should say that Christopher Bench - no, sorry, Dr Russel Davies used to share the same premises as Dr Kim Newnham. They used to sit in the same rooms together so the same practice, yeah. Q. And that's evidence, is it, that both of them discussed your case? A. No, the evidence is they told me. Yeah, I've told you that already, they told me, so Dr Bench said Kim Newnham called him and made allegations about me and but Dr Bench in his - " 1. Dr Ghosh's propensity to read hidden or demeaning or threatening meanings into remarks or events and either going to extreme lengths to retaliate or threatening to do so is shown by the anonymous reviews about Dr Khan (which are set out under the heading "Credit"); contacting the employer of a person she believes has done wrong (the speaker at the conference in 2009), and the three complaints against Dr Khan to the Australian Health Practitioner Regulation Agency (AHPRA). There are many occasions on which she has threatened people with criminal proceedings including filing an application in previous proceedings asking for the Tribunal to make orders referring Dr Newnham and Dr Hutt to the Attorney-General for prosecution for making false and misleading statements (Ghosh v Medical Council of NSW [2018] NSWCATOD 186 at [41]). On 10 November 2019 she called a person involved with the care of patient C "gobby Cessnock trash" twice and threatened to commence Supreme Court proceedings. On 25 November 2019 she called a person involved with patient C "white trash mother" and "a bitch", threatened to have the person sacked and to take legal action against her. She also commenced defamation proceedings against Dr Newnham for making a provisional diagnosis of schizophrenia. 2. Dr Ghosh's propensity to make false statements about others was described by Dr Bench as alarming. One of these was that Dr Ghosh told him that Dr Newnham had been sacked, then, when he told her that was not true, admitted she did not have any evidence for making the statement and said it was her opinion and not a fact. She made the same claim in these proceedings when she said: "They said now the only person who can make "the" diagnosis was Ms Kim Newnham, who I understand is a sacked government psychiatrist." 1. Dr Ghosh, in relation to most if not all of the complaints against her, does not accept personal responsibility for mistakes. She blames others, including the patients. Dr Saker said when he gave evidence: "Senior Member Morris: If we turn our attention to the idea that the patient, Dr Ghosh, might have personality traits - we call them personality traits before we move it to a disorder - do you think that she has any personality traits that you thought were enduring over her whole life? A. Yes. Q. What were they? A. Yeah. I know, look - it's hard to - it's hard to comment in retrospect, because I haven't known her for - for her whole life, but I think she'd probably have some personality traits that have maybe affected her for her whole life, and-- Q. During that interview, or during a consultation, did you get any sense of what those traits might have been? A. I think she was very defensive. She, she tended to not attribute any blame to herself, but attribute blame to others. But that - that'd probably be the main one. 1. Dr Ghosh also has a propensity to respond with abuse when she does not agree with what has been said to her. This is shown in several patient complaints. We have referred to other examples elsewhere in these Reasons. 2. As noted by Dr Bench, in spite of medical evidence to the contrary, Dr Ghosh continues to assert her medical acumen as being superior to that of specialists which he considered indicative of a level of entitlement. He also considered that the transcript of the evidence before the Medical Council hearings evidenced arrogant and haughty behaviours. As noted by Dr Samuels those arrogant and haughty behaviours attitudes are shown in her language when commenting on class and race. Dr O'Connell noted that she demonstrated a pattern of demeaning others based on race, religion, education and social standing, leading to her comment, "I sound racist but I'm not." In the section of these Reasons headed "Credit", we set out some of her many references to Dr Khan being a Pakistani immigrant. She maintained the use of this descriptor throughout giving evidence in these proceedings, saying it was important because it highlighted his inadequate training in that country. This language was not confined to her references to Dr Khan. Dr Ghosh used inappropriate and demeaning descriptors in these proceedings in relation to other staff at the Practice. Dr Ghosh described a health practitioner at a hospital as an "immigrant from Africa". There is in evidence a file note recording a conversation with a hotel manager on 27 December 2017 about Dr Ghosh. The file note records: "She has called the Indian receptionist a black bitch. Ratna has been threatening to sue the manager of the hotel. On Christmas Day Ratna was causing a lot of problems for hotel staff. She was demanding that she be provided with a seafood buffet for dinner when this was not able to be arranged alternative suggestions were provided, she accused the hotel staff of trying to starve her … Ratna has been verbally abusing the cleaners." This arrogant and haughty behaviour was evident in this interchange with counsel for the Health Care Complaints Commission: "Q. What, you forgot what you said two minutes ago? A. Have you been under review by the bar association for the way you conduct yourself, Mr Britt? I've never come across any barrister who conducts himself like you. You're a junior barrister." 1. Lastly we accept the submission made by counsel for the Health Care Complaints Commission that many of the answers given by Dr Ghosh were rambling. They were also repetitive and often failed to engage with the question which had been asked. Dr Saker said: "Senior Member Morris:. Going onto your mental status examination, you say she presented neatly dressed. You didn't mention this so far in the conversations you've had with counsel here, but you've said here that she had an expansive affect. Now as a psychiatrist, expansive affect, we know, has certain meanings, one would be that the patient might be manic. Is that what you meant by that? A. She just seemed, I wouldn't say manic, but she - she was loud and mildly difficult to interrupt. In some ways difficult to keep on track with the consultation. Maybe - maybe impatient with me for sort of slowing the consultation down and structuring it in my own way."
Dr Ghosh does not accept that she blames others rather than reflecting on her own conduct, that there is no basis for her believing without evidence that others are conspiring against her, that it is not appropriate to threaten others with legal action for spurious reasons, that her language is, on occasion, demeaning and racist, that she has a propensity to make false statements without evidence, that she does not accept personal responsibility for any bad outcome in her dealings with others and that she does not bring her mind to bear on the real issues. As Dr Samuels noted, because of her grandiosity and belief in her own abilities she consistently works outside of her scope of practice, breaches professional boundaries and provides inappropriate advice and care to patients placing them at risk of serious harm.
We are satisfied that these behaviours, which have continued over many years, significantly detrimentally affect Dr Ghosh's capacity to practise as a medical practitioner.
In assessing Dr Ghosh's fitness to practice we have taken into account that there is no evidence that Dr Ghosh has taken any steps to improve her understanding of the severity of her conduct in order to prevent such behaviour recurring other than those matters she mentioned to the Medical Council in 2017 which related to communication with patients.
We have taken into account two character references relied on by Dr Ghosh. The referees worked with Dr Ghosh when she had a job as a general practitioner assessing and assisting the return to work of clients on Centrelink for four years up to 2016. 1. The first person was her immediate supervisor who said that during this time there were no patient complaints and she found Dr Ghosh highly professional and competent. She did not observe any communication difficulties and said that Dr Ghosh is not racist. The referee would not hesitate to work with Dr Ghosh again if the opportunity occurred. 2. A psychologist who worked with Dr Ghosh at that same workplace said that he dealt face to face with Dr Ghosh as well as by phone frequently. Although they dealt with very difficult patients, Dr Ghosh never received any complaints. He found her extremely competent. Dr Ghosh had never shown any evidence of mental illness or any personality disorder, and in particular, she had not shown any narcissistic traits. Her communication and behaviour was at all times appropriate and very honest. She did not discriminate against patients or staff on the basis of their race, religion, or socio-economic status. She was extremely popular with patients and staff.
We accept that the authors of these references do provide some evidence of Dr Ghosh functioning well in that particular workplace, but we decline to find they displace the overwhelming evidence from other sources.

Complaint Eight

The Health Care Complaints Commission says that Dr Ghosh is not competent. The particulars for Complaint Seven are repeated and relied upon.
Dr Ghosh denies Complaint Eight.
A finding of impairment does not necessarily lead to a finding that a practitioner lacks competence to practise.
Competence to practise is relevantly defined in s 139(a) of the National Law as follows: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient … mental capacity … to practise the profession...
In these proceedings the Health Care Complaints Commission asks the Tribunal to find that Dr Ghosh is not competent to practise because of the impairment established under Complaint Seven.
In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[170], Sackville AJA drew a distinction between impairment and competence: "168 …There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act … 170 … Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances."
In deciding whether Dr Ghosh is competent to practise, we have taken the following matters into account: 1. Dr Ghosh has said that she does not accept that she has an impairment. She said: "Q. --do you accept that you suffer from any impairment? A. I do not accept it because I don't think it's been properly justified. I think they have to justify how I fit the diagnostic criteria and they have to justify how the materials and the evidence renders me delusional, narcissistic or otherwise personality disorder and how it fits the criteria. There's High Court authority which was referred to by Brereton J in the Court of Appeal hearing that says it's not enough to just diagnose people with mental illness you have to prove that it affected their work. Now, in my 30 years of practise as an Australian trained doctor in leading teaching hospitals and in four different states I've only had one complaint from an employer, who's a new immigrant from Pakistan, who alleged that I have some mental impairment. Now, if I had a personality disorder each and every one of my employers in 30 years would have complained … no-one ever alleged I have personality disorder." And later on: "Q. Are there any other things that you've learnt or that you feel that you have as difficulties in your personality? Are there any other things that you could recognise that might be - that you might say, "Well, look, it can cause problems when I'm dealing with others in the community or with patients."? Are there any things that you've recognised through this process? A. Well, look, I agree with Dr Saker and also all of the other psychiatrists, apart from Dr Newnham, who on the first instance their thought was that it's a personality trait rather than a disorder in that woman with a strong personality, especially from an ethnic background like myself, can be perceived as a personality disordered or difficult. But, you know, I grew up in this country. And for a woman to stand up for herself and her rights, I think in this day and age is usually not perceived as a personality disorder. I don't think I fit the diagnostic criteria because you have to prove sustained long-term impairment in functioning. And my work history, apart from one complaint from Dr Faisal Khan, there's been no recent complaints. And, in fact, the ORS … references were excellent. We consider this evidence to very obviously illustrate Dr Ghosh's lack of insight into the severity of the interpersonal issues which have led to these proceedings. As Dr Bench and Dr Samuels have said, without adequate insight, Dr Ghosh is unlikely to meaningfully participate in treatment. 1. We also accept the evidence of Dr Samuels who said that patients such as Dr Ghosh are notoriously difficult to treat because generally they refuse to accept that there is anything wrong with them. That is certainly the case with Dr Ghosh. Dr Samuels went on to say such patients are difficult to manage because they can be threatening, intimidating and legalistic. Even if she were to consider trialling antipsychotic medication the effects of these medications would be quite limited. Insight orientated therapies tend to provide a little benefit. 2. We would also observe that, although we have not accepted the opinion of Dr Saker as to his diagnosis, he did, as we have said, find that Dr Ghosh's personality had deteriorated under the burden of a constellation of bad life events. He thought that, when those issues resolved in the future, then, with some help, Dr Ghosh's personality was likely to recover. Dr Saker identified three issues causing this stress - the loss of her job in December 2017, the removal of patient C in mid 2018, and the ending of Dr Ghosh's relationship with person D in 2019. These stressors had not occurred when many of the incidents mentioned in these Reasons took place. Importantly, we do not consider that there is any evidence that the two stressors unrelated to these proceedings are likely to ameliorate, much less resolve, in the foreseeable future. Dr Ghosh is engaged in ongoing litigation concerning patient C and her evidence in these proceedings suggests there are still issues between Dr Ghosh and person D, for example: "Q. Where do I find your record? A. In my practice… Q. You can bring that tomorrow, Madam? A. I can't bring it tomorrow because [Person D] held the lease of the practice and he has separated since then, so I've been unable to recover everything - anything from him. Q. Everything or anything? A. Anything. Q. You've lost all of the medical records for your practice? A. Look, I - I think [Person D] would have them on a backup… Q. And you can ask [Person D] for a copy of that document? A. I can't because I have no communication. He's on the Gold Coast in Queensland. Q. He has a telephone? A. He has a telephone, but he doesn't answer it. He's got another partner. Yes, so like 50 per cent of men, he's separated and found another partner and she doesn't allow any communication. Q. You could email him? A. He doesn't answer. He doesn't answer anything."
We have already found that Dr Ghosh has displayed behaviours which significantly detrimentally affect her capacity to practice as a doctor. They also grossly impair her interpersonal relationships, judgment, communication skills and, at least in relation to patients A, B and C, her clinical judgment. There is also a real risk she will not be ethical and trustworthy if she perceives, without justification, that a patient or someone in the workplace is exploiting, harming or deceiving her. Her lack of insight into the appropriateness of her conduct and the potential for harm from her conduct means that she currently is unable to take the first step towards seeking help. When she does gain more insight and chooses to seek assistance, it will take time before it can be determined whether any treatment has been effective. As far as any of this behaviour is caused by or exacerbated by stresses arising from her close relatives, there is no reason to believe this is likely to change in the near future. Accordingly, we consider that the impairment will continue into the foreseeable future.
For these reasons we are satisfied that Dr Ghosh's ability to practice medicine safely and effectively is significantly impaired and is likely to be significantly impaired in the foreseeable future so that she does not have sufficient mental capacity to practise the profession and is accordingly not competent to practise.
The Health Care Complaints Commission has established Complaint Eight.

Credit

The Health Care Complaints Commission invited the Tribunal to find that Dr Ghosh was not a credible witness. In determining this issue we have considered the following matters.

Anonymous reviews

In Complaint Three particular 7 the Health Care Complaints Commission says that Dr Ghosh posted anonymous reviews of Dr Khan and Dr Newnham on the Rate MDs website.
Dr Khan was Dr Ghosh's employer in 2017. There are in evidence the minutes of three meetings between them (and other employees) in which complaints made by several patients about Dr Ghosh were discussed. Dr Ghosh disputed the complaints. At the last meeting on 8 August 2017 she was told that if the number of complaints continued her contract would be terminated.
There is in evidence an email from Dr Khan to Dr Ghosh dated 28 September 2017 in which Dr Khan informed Dr Ghosh that her employment contract was terminated with immediate effect for her breach of the minimum professional standards. Their concerns were listed as including innumerable verbal complaints raised by patients in regards to her inappropriate, unprofessional and discriminating behaviour, her unprofessional and rude behaviour in criticizing her colleagues' qualifications and experience due to their cultural and ethnic beliefs and inappropriate, insulting and disrespectful behaviour towards practice staff which led to many staff members refusing to work with her. She was formally advised that if she continued to send malicious messages to any member of staff or a contractor the police would be contacted. Defamation proceedings would be pursued if she did not desist from making malicious and untrue statements.
Dr Ghosh continues to deny the issues raised by Dr Khan in his correspondence and in the minutes and says that the termination of her employment was unjustified.
The website posts the subject of Complaint Three particular 7 concerning Dr Khan include the following: "Isn't it illegal to claim exaggerated rent from onsite pathology, as well as all of the supplies for his surgery, when he doesn't pay any rent and gets illegal free lease, shop fit out and all expenses paid from the lovely chemist next door at Simply Pharmacy? Doesn't he need to know a bit of medicine to be practising in Australia, rather than subjecting the Australian public to Pakistani butchery, with examination beds facing the wrong way because he doesn't know anything at all? Do respectable men marry trashy, vulgar and uneducated women who they would not marry if they were in the same Country, solely for the purpose of immigration, to scam Medicare and the Australian Public to get rich overnight by committing medicare fraud?" "He nearly killed our Aussie Post manager at Stockland Wallsend by deliberately leaving her on high dose duromine with a BP over 200/120 discovered by the chemist next door, from whom Dr Faisal Khan gets illegal free lease. Dr Ratna Ghosh saved her life by ceasing the duromine after she collapsed and nearly died at work, while Dr Khan ran to "The Haj" in Saudi Arabia with his head shaved as a fanatical and radicalised moslem to fraternise with terrorists from 15/9/17 - 11/9/17 (911). He didn't have the decency to inform Dr Ghosh, the only doctor left to work in the medical centre, that he was leaving and would be overseas for 5 weeks. We thank Dr Ghosh for saving our manager's life, and turning up to work everyday when no other doctor was in the centre, despite Dr Khan not having the minimal decency to warn her that he was leaving and there was no other doctor rostered on, and maintaining her excellent professionalism despite the terrible environment she was made to work in, with no equipment in the unclean room, and unprofessional teenage staff working for the dole." "I learned the doctor I saw in his surgery was unregistered, [name omitted], working every Saturday alone and unsupervised in contravention of condition 4 of her expired registration. She prescribed an estrogen cream for my 6yo daughter's vaginal thrush, and the chemist refused to prescribe it. I saw Dr Khan 1 week later, and he did an unnecessary vaginal examination on my 6yo daughter. The bed hadn't been changed since a week ago, and had a torn off white sheet on it with body odour, blood stains and footprints I couldn't understand his very heavy Pakistani accent. I complained to Medicare and the Health Care Complaints Commission about the practice, and learned Dr Khan is about to be deregistered, as unfit to practice in Australia." "He looks at least 30 years older than his stated age, was grossly incompetent and also overbilled me on medicare for services he never provided. The very trashy staff change every 6 months, because they are working for the dole, and get sacked as soon as he gets the government payout for them. Don't put complaints in the faded wooden "complaints box' in the waiting room, because they get thrown in the bin. Complain to the generous chemist next door (Simply Pharmacy) who pays his rent and shop fitout. Complain to the Health Care Complaints Commission. Complain to AHPRA." "He is a very dodgy and incompetent doctor from the worst medical school in Pakistan, who got VR by FRAUD without passing any exams and by sitting in a chemist's shop for free in Clarence Town for 4 years. He gets illegal free lease next door to chemists in all 3 of his medical centres, which are mostly operated by illegal and unregistered 3rd world trained dodgy doctors and exceptionally trashy work for the dole staff. The surgery was filthy with rubbish overflowing from bins, beds facing the wrong way in consulting rooms, and barbaric Burqa clad doctors running around butchering women's private parts without proper sterilisation or insurance. Dr Khan did an unnecessary vaginal and breast exam on me, and overbilled me for services he had not provided. I got called by both the Health Department and Medicare investigators after who are investigating him for FRAUD, OVERBILLING, and the PUBLIC HEALTH CONCERN his filthy premises are despite getting illegal free lease and shop fit out from the chemist next door. They asked if I had drank water from the cooler in his waiting room, because it was overflowing with black mould and caused a public health outbreak. I couldn't find a single registered or Australian trained doctor at any of his 3 illegal medical centres, and I heard that's because he has a terrible name in town. I wont be going there again. It's a public health risk." "It's a sham clinic run by incompetent Pakistani trained Dr Faisal Khan, a recent immigrant from Pakistan via a forced marriage. He claims exaggerated illegal rent from onsite pathology while he gets illegal free lease and all expenses paid from the chemist next door. He underpays, abuses and badly mistreats doctors, who have all walked out on him except the ones who can't get work anywhere else because they are unregistered or incompetent or bound as slavery to him as sponsored doctors payed almost nothing. D Khan as well as underpaying his doctors, makes false and malicious complaints to the Medical Board against them, caused (names omitted) to be deregistered for 3 months. He even forces his work for the dole staff to sign bogus complaints against his own doctors. Dr Khan has sued every doctor who left him to prevent them working anywhere else in Newcastle. Dr Faisal Khan is currently being prosecuted by the health care complaints commission for being a dangerously incompetent doctor from a sham medical school in Pakistan, use of unregistered doctors, maintaining filthy premises, using trashy work for the dole staff who are sacked every 6 months so he gets a new lot of Government wage incentive, lack of proper sterilisation putting the public at risk, as well as the algae contaminated water in his water filter in the waiting room. If you have been to his surgery as a patient, make sure you get an HIV, hepatitis B and hepatitis C blood test, as you may be at risk of these. Dr Faisal Khan is also being sued for criminal defamation and any staff who put their name to complaints against his miserable doctors will also be sued. Don't waste time putting complaints against him in the Pakistani wooden box in his waiting room. Put the complaint online or by post to the Health Care Complaints Commission, who are already prosecuting him." "He came to our Haj in Saudi Arabia this year, with his head shaved balder than his hairy arse and begged us to join our terror group. He said "brothers, I want to join your cause." But we rejected him, because he failed the IQ test to be a terrorist, and we don't take DUD Pakistani doctors. The brothers never heard of the University he is from. So we said "we have some minimum standards and you don't meet them. You will give our group a bad name like your sham medical centres in Australia with unlucky 13 bad reviews on internet. Aussies are dumb to pass you as a doctor but we fail you, because we aren't dumb." "Is he really a doctor? I went this week and all the doctors have run away because he doesn't pay them, despite getting free lease and all his expenses paid by the chemist next door. Isn't it illegal for him to claim rent from onsite pathology, when he has no lease and doesn't pay any rent? I disagree with slave labour, so I refused to see the one overseas trained doctor left working for free under bogus supervision, as Dr Khan isnt a real doctor, and he isnt there TO supervise most of the time." "I called all day and no one answered the phone, and their website was faulty, so I had to drive in to book an appointment. The receptionist, (name omitted), had a moronic expression on her face, didnt know how to smile or talk politely, and didn't understand plain English. She was bickering the whole time with the Aboriginal minor working there, (name omitted). She spelt my name wrong on the computer, and put my age as "zero". I was kept waiting 2 hours, because she was too incompetent to enter my name in the computer waiting room. I finally got to see Dr Faisal Khan. He wreaked of sperm and halal goat meat curry, and I couldn't understand a word of his very thick Pakistani accent. I asked for a adated sick certificate for 6 months ago, and he gave it to me although I had never seen him before. I also asked for a commercial driver's medical and he said to book a bulk bill "double appointment for it". I complained about (name omitted) and his other staff and he said "don't worry, she will get sacked like the rest of them in 6 months, as soon as I get paid the wage subsidy from the Government". The premise was filthy, with sharps overflowing from the sharps bin. I didn't return for the drivers medical, even if it was free." "I was BANNED with my whole family, including 3 small children, by Dr Faisal Khan from his Maryland practice because I complained the unregistered overseas trained doctors (name omitted) were incompetent there. So I went to Wallsend Medical Practice and found a doctor who was excellent with children, Dr Ratna Ghosh, who was happy to take on my whole family. But Dr Faisal Khan banned me from there too for no reason. I then drove all the way to Clarence Town Medical Practice with my 3 children, and found both of the doctors there working for Dr Khan are unregistered (names omitted). I was called by a medicare investigator later as medicare has fraud charges against Dr Faisal Khan." "I had a large painful burn on my leg, and was made to wait 4 hours in the waiting room, because all the computers in the surgery had crashed, they had no backup, and no paper to work with. The receptionist (name omitted) didnt look at all like a doctor's secretary, in fact she looked positively moronic, like a school dropout working for the dole. Dr Khan's wife barged in to spy on him, wearing bizarre clothes for an uneducated practice manager, a black lace top, with her hair blown up in an above the head 60's Pakistani bun. She barked at all the receptionists as their boss. I finally got to see Dr Ghosh, who was efficient and good, but was made to wait a further 40 minutes because she asked the receptionists for burns cream, and they eventually brought out a tube of long expired lubricating jelly. The bed sheet was filthy, it was a torn off half a sheet, with sperm, pus, blood and black footprints on it, and the receptionists refused to change it for Dr Ghosh, so she had to remove it and put it under the bed. I got Pakistani style amoebic dysentery from drinking the water from the water cooler in the waiting room. The head receptionist confirmed it was removed later as a health hazard, as Dr Khan had never changed the filter; and it was overflowing with thick, black mould." "He was telling off the burqa clad Pakistani doctor loudly for stealing a pile of paper from the printer, and the AIN he fraudulently claims registered nurse Government PIP incentives for, saying "I have expenses of $4000.00 per week you know". But the generous chemist next door said Dr Khan has no expenses at all, because the chemist is nice enough to pay all of his rent, shop fitout, insurances, and all expenses, and he still claims fraudulent rent and all supplies from onsite pathology, although he has no lease. So I gave the AIN a couple of extra bandages. He billed me for services he didnt provide, and a Medicare investigator called me after to check on him. I had to get a real doctor to fix up the botched minor surgery he did on me after. I gave the burqa clad doctor some free paper, because I heard he pays her almost nothing." "The staff didnt look like doctors surgery staff, and were bickering unprofessionally. One was an Aboriginal minor working for the dole (name omitted). I am a nurse who went with an eye injury and he didnt examine properly, had no fluorescein, no blue light and not even an opthalmoscope. I had to see an optometrist later who diagnosed and treated my large corneal abrasion that he missed. I wont be going there again. There was a bizarre faded wooden box marked "complaints" in the waiting room, but no "Health Care Complaints Commission" poster as the other surgeries have. I put a complaint in the box but no one ever contacted me. The examination couches were facing the wrong way, so patients were examined from their left, and not their right. Is that the Pakistani way? If I wanted Pakistani medicine I would go to Pakistan, and not to Wallsend." "Our friend (name omitted) got struck off for 3 months because he failed to supervise him, ran to the Haj for 5 weeks, was at brothels every afternoon when he should have been at work, and LIED to the Medical Board." "He killed our unborn child by injecting my pregnant wife with dangerous vaccines without warning her of the side effects. Is this how medicine is practised in Pakistan?"
As we have said, Dr Newnham is a psychiatrist who was retained by the Medical Council to provide an expert opinion in relation to Dr Ghosh's psychiatric status. She made a provisional diagnosis of Schizophrenia.
Dr Ghosh vehemently does not agree with this diagnosis. Dr Newnham's report is dated 4 April 2018.
As we have already said, on 18 September 2018 Dr Ghosh filed an application in the Tribunal the effect of which was to prevent Dr Newnham from giving evidence. She also sought to have the doctor referred to the Attorney General for prosecution under the Civil and Administrative Tribunal Act 2013.
The Application says, inter alia that: "Ms Newnham has made deliberately false and misleading statements in both of her reports … to arrive at a wrongful diagnosis of mental illness to force continued suspension of Dr Ghosh based on false evidence, and to severely prejudice her appeal and all of her expert witnesses. This warrants referral to the Attorney General for criminal prosecution pursuant to s71 and s73 of the Civil and Administrative Tribunal Act 2013. Ms Newnham is in breach of r31.23 of the UCPR, Code of conduct of expert witnesses, in not only making deliberately false and misleading statements in both of her reports, but also failing to disclose that Dr Ghosh referred patients to her numerous times since 2003, which creates a conflict of interest, and a breach of the Code of conduct of expert witnesses. Ms Newnham's report is not only in breach of the Code of conduct of expert witnesses, but also incompetent and "wild" in falsely alleging that she was right and every other psychiatrist was wrong because she had "more evidence and material than any other psychiatrist", without identifying what material she had and the other psychiatrists were lacking. This in itself was wrong, because Dr Russel Davies had more material, including all of the material that Ms Newnham had, as well as the benefit of chronological history and examination for over 6 years, and found that Dr Ghosh has no mental illness. .. The circumstances under which Miss Newnham wrote a ridiculously false and malicious report warrant referral to the Attorney General for criminal investigation for contempt of court, perjury, and criminal defamation."
In proceedings before the Tribunal on 28 September 2018 Dr Ghosh said she stood by her statement of 17 September 2018 that Dr Newnham constantly made deliberately false statements and should be referred to the Attorney-General for prosecution. Dr Ghosh's application, in other proceedings, to prevent Dr Newnham from giving evidence was unsuccessful.
The relevant posts concerning Dr Newnham were made on 4 April 2018 and include the following: "Terribly incompetent. Don't waste your time and money on the bat. I agree with the QUACK comment below." "She is truly a quack, and known to be so in the Newcastle community, so she must have published her own repetitive and almost identical posts below, which do not adequately describe the QUACK service she provides, except the 1st post about her incompetence in handling work cover cases."
Dr Ghosh denies she posted any of the reviews.
Subpoenaed documents from Dr Ghosh's Internet Service Provider and Vocus Communications, the operator of that website have shown that the review of Dr Khan commencing "I was BANNED with my whole family" was created from a fixed IP address and that Dr Ghosh was the holder of that fixed IP address.
The other reviews posted to RateMDs do not match Dr Ghosh's fixed IP address. Subpoenaed documents show that a number of these reviews (if not all) were created through a VPN host. A VPN host is a service which provides its users with a secure and private network, enabling users to access websites anonymously, as the user's identity is hidden and location falsified. When a user initiates their VPN connection, the user's actual IP address is replaced with a false IP address by the VPN provider. For example, if a user in NSW Australia initiates their VPN connection, they can appear to live in another country, such as India or New Zealand, and are given a different IP address.
Using an IP network diagnostic tool, the Health Care Complaints Commission obtained the geographical locations and contact data for all the relevant IP addresses. With the exception of the review matching Dr Ghosh's fixed IP address, none of the IP address geographical locations were in Australia. Instead, the locations included the Bahamas, New Zealand, Brunei and Lebanon.
In deciding whether the reviews relating to Dr Khan were made from the same computer we have taken the following into account: 1. The 17 reviews posted about Dr Khan were made between 2 December 2017 and 17 February 2018. This includes multiple complaints made on the same day and at times, within a one hour period. 2. The reviews about Dr Khan were posted following his notification to the Commission concerning Dr Ghosh on 18 October 2017. 3. One of the reviews was made from a fixed IP address held by Dr Ghosh. 4. Dr Khan practices in NSW, Australia. The VPN addresses show the posters as coming from other countries including the Bahamas, New Zealand, Brunei and Lebanon. We accept that it is highly unlikely that patients who saw Dr Khan and Dr Ghosh in a short period in 2017, then travelled internationally and when overseas, wrote very similar sounding reviews on the RateMDs website. It is more likely that the VPN provider replaced the user's actual IP address with a false address. 5. Further, the creator user agent details are the same for all reviews except one. That creator user agent shows that all but one of the reviews were made from a Windows 8.1 computer running IE11. The expert evidence establishes that this type of computer agent string is not common, with only 4.31% of web traffic in Australia using any form of IE at this time and only 3.21% of web traffic worldwide using IE11. In addition, Windows 8.1 only had a worldwide market share of 5.64% in December 2017.
For the reasons above, we are satisfied that all the Rate MDs reviews, with the possible exception of one, were made from the same computer.
In addition, in deciding whether the reviews relating to Dr Khan were written by Dr Gosh, we have taken the following into account: 1. The language used in all of the reviews and the substance of the complaints are very similar. 1. Some of the reviews refer to the ethnicity of Dr Khan, the fact that he had been poorly trained and that he obtained registration in Australia by fraud. They say: 1. "Doesn't he need to know a bit of medicine to be practising in Australia, rather than subjecting the Australian public to Pakistani butchery", 2. "an incompetent doctor from the worst medical school in Pakistan, who got VR by FRAUD without passing any exams", 3. "It's a sham clinic run by incompetent Pakistani trained Dr Faisal Khan, a recent immigrant from Pakistan via a forced marriage", 4. "The brothers never heard of the University he is from" and "I finally got to see Dr Faisal Khan. He wreaked of sperm and halal goat meat curry, and 5. "I couldn't understand a word of his very thick Pakistani accent". Dr Ghosh has made very similar complaints on other occasions. She sent a Complaint to AHPRA about Dr Khan on 29 September 2017. It relevantly said: "Dr Khan got registration without sitting any exams like Australian doctors have to, and is practising with a high level of incompetence, dishonesty and lack of ethics." Dr Ghosh sent another Complaint to AHPRA on 13 October 2017. It relevantly said: "Dr Khan is a new immigrant from an unknown university of bad reputation in Pakistan, immigrated by a sham marriage. He obtained VR illegally by sitting alone and unsupervised … dishing out Pakistani medicine, and without passing any exam." Dr Ghosh sent another Complaint to AHPRA on 19 October 2017. It relevantly said: "Dr Khan is from an unknown college of bad reputation in Pakistan … Dr Khan allegedly obtained VR without passing any exams, and without undertaking the necessary training period in Australia under supervision of an Australian trained or approved GP, by sitting alone and unsupervised … Dr Khan has not undergone any adequate supervised training in Australia, is grossly incompetent, dishonest and unethical, UNFIT to run any practice, UNFIT to supervise any doctor let alone overseas trained doctors, and UNFIT to practice medicine in Australia." Dr Ghosh wrote to Dr Davies on 1 December 2017. She relevantly described Dr Khan as: "Pakistani trained Dr Khan". In a statutory declaration dated 17 September 2018 Dr Ghosh referred to: "new Pakistani immigrant, Dr Faisal Khan". In these proceedings Dr Ghosh referred to Dr Khan being a new immigrant and Pakistani in the one phrase on three separate occasions. In cross-examination she said Dr Khan had been trained at an unknown university because person D had told her that the university was not one of the good ones. She did not dispute that she had said Dr Khan had not passed the Australian exams but added he may have used a rural pathway without sitting exams. She later said the fact that he had obtained his registration by fraud and without sitting the exams was commonly known in Newcastle. 1. The reviews also commented on conditions at the Practice including the state and position of the examination couch, the complaints box and the sharps bin: 1. "Doesn't he need to know a bit of medicine to be practising in Australia, rather than subjecting the Australian public to Pakistani butchery, with examination beds facing the wrong way because he doesn't know anything at all?", 2. "The bed hadn't been changed since a week ago, and had a torn off white sheet on it with body odour, blood stains and footprints", 3. "Don't put complaints in the faded wooden "complaints box' in the waiting room, because they get thrown in the bin.", 4. "The surgery was filthy with rubbish overflowing from bins, beds facing the wrong way in consulting rooms … They asked if I had drank water from the cooler in his waiting room, because it was overflowing with black mould and caused a public health outbreak.", 5. "maintaining filthy premises … as well as the algae contaminated water in his water filter in the waiting room ... Don't waste time putting complaints against him in the Pakistani wooden box in his waiting room.", 6. "The premise was filthy, with sharps overflowing from the sharps bin." "The bed sheet was filthy, it was a torn off half a sheet, with sperm, pus, blood and black footprints on it, and the receptionists refused to change it for Dr Ghosh, so she had to remove it and put it under the bed. I got Pakistani style amoebic dysentery from drinking the water from the water cooler in the waiting room. The head receptionist confirmed it was removed later as a health hazard, as Dr Khan had never changed the filter; and it was overflowing with thick, black mould.", 7. "There was a bizarre faded wooden box marked "complaints" in the waiting room, but no "Health Care Complaints Commission" poster as the other surgeries have. I put a complaint in the box but no one ever contacted me. The examination couches were facing the wrong way, so patients were examined from their left, and not their right. Is that the Pakistani way? If I wanted Pakistani medicine I would go to Pakistan." Again, these statements mirror complaints Dr Ghosh has made to many others. In many cases the language used was, in our opinion, unusual, for example stressing that the complaints box was from Pakistan and made of wood. It also refers to facts which we consider would be unlikely to known by patients, such as the receptionists refusing to change the bed sheets. For example in the complaints Dr Ghosh made to AHPRA in relation to Dr Khan she said "[he] has a faded Pakistani wooden box instead marked "complaints" which he handles himself, so complaints against him get thrown out …He had a 2nd hand water filter unit in the Wallsend waiting room that receptionist (name omitted) had to remove as overflowing with thick black mould inside. He had the same tatty old torn white bed sheet on an examination couch for 1 year. When a doctor asked for it to be changed he yelled at the doctor to not harass the staff. … His sharps bins are overflowing onto the floors of consulting rooms." "he holds meetings to unprofessionally manage complaints himself, obtained by a wooden box marked "complaints" in the waiting room … The premises are filthy, NOT cleaned professionally and regularly. In my consulting room at Wallsend, the same tatty old torn white bed sheet was on the bed for 7 months without being changed. One day, 3 children of a patient trampled all over it, leaving black shoeprint marks. I asked reception to change the bed sheet and was rebuked by Dr Khan that I should NOT "harass" the receptionists but should change the bed sheet myself. The sharps bins in the rooms were regularly overflowing onto the floor, and again Dr Khan rebuked me that I should NOT "harass" the receptionists but should fix it myself, so I had to scoop sharps off the floor and replace the lid … The beds are in the wrong orientation in his rooms, with patients having to be examined from their LHS. A water cooler in the waiting room was removed by (name omitted) of reception as it was overflowing with thick, black mould, the filter never having been changed by Dr Khan." Dr Ghosh repeated these issues in correspondence (eg the wooden box in her letter to Dr Davies dated 1 December 2017 and the history taken by Dr Bench), in her statutory declaration dated 17 September 2018: "staff actively seeking complaints from aggressive patients on scraps of paper put into a wooden box on a stand marked "complaints" in the waiting room … the filthy state of the premises, as described in Dr Ghosh's mandatory and statutory complaints" Meetings were held at the Practice to discuss several complaints which had been made in relation to Dr Ghosh. The minutes of the meeting on 28 July 2017 records: "Dr Khan- receptionists are telling me that you are asking them to do jobs that they feel are putting a lot of stress on them. Dr Ghosh- kids are jumping on the bed and leaving grubby black marks on the sheets. Dr Khan- we can remove the sheet and use the paper bed rolls Drs are to clean and sanitise their beds and workspaces between pts. Dr Khan- We have had complaints from reception staff." Dr Ghosh maintained all of these complaints in these proceedings. She said the examination bed was facing the wrong way because Dr Khan didn't even know which way Australian doctors examine patients. She said the bed sheet, which hadn't been changed the whole time she was there was torn so that it was half a bed sheet with a jagged edge. Dr Khan said it was her job to wash and change the sheets and not the job of the receptionist. She then said that the bed sheet had not been changed for six months during which kids had stomped all over it so that there were black footprint marks on it. Eventually she folded up the sheet, put it under the bed and used disposable coverings. An employee had told her the water cooler went had been removed because it was full of black mould inside the filter, which had never been changed. She had observed the bins and sharps bins were always overflowing onto the floor. Dr Khan would deliberately deflect complaints made against him through his wooden box marked "complaints" by throwing them in the bin. She had described it as a faded Pakistani wooden box, she said, because Dr Khan went to Pakistan frequently and brought it back. She had never seen that type of box in Australia. She said she referred to it as a Pakistani wooden box because it demonstrated how unprofessional Dr Khan was compared to other surgeries as he was effectively operating a Pakistani ghetto. 1. Dr Ghosh also believes that Dr Khan did not pay for the premises in which his practices were located because he had "illegal" arrangements with three chemists. The reviews say: 1. "he doesn't pay any rent and gets illegal free lease, shop fit out and all expenses paid from the lovely chemist next door … Complain to the generous chemist next door who pays his rent and shop fitout." 2. "He gets illegal free lease next door to chemists in all 3 of his medical centres" "he gets illegal free lease and all expenses paid from the chemist next door." 3. "… despite getting free lease and all his expenses paid by the chemist next door. Isn't it illegal for him to claim rent from onsite pathology, when he has no lease and doesn't pay any rent?" 4. "he fraudulently claims registered nurse Government PIP incentives for, saying "I have expenses of $4000.00 per week you know". But the generous chemist next door said Dr Khan has no expenses at all, because the chemist is nice enough to pay all of his rent, shop fitout, insurances, and all expenses, and he still claims fraudulent rent and all supplies from onsite pathology, although he has no lease." Dr Ghosh has repeated these claims on many occasions. They are in the complaints she lodged against Dr Khan ("Dr Khan gets illegal free Lease and shop fitouts from chemists next door to all 3 of his practices.") and in her 2018 statutory declaration ("Dr Ghosh complained to the chemist next door who paid for all of Dr Khan's lease and expenses, in an unethical conflict of interest"). In these proceedings she explained she did not mean that the lease was illegal but there was an unethical conflict of interest in terms of acceptable conduct by doctors. In her next answer she said that the chemist had paid for a state-of-the-art fit-out worth half a million dollars which was definitely an illegal kickback, an unethical conflict of interest. We consider that it is extremely unlikely that patients who posted reviews in that short time frame would be aware of Dr Khan's leasing or other financial arrangements. 1. We accept that the language in the reviews also contains other very specific and detailed information that would not be known to someone who did not have intimate knowledge of the Practice. For example, a number of the reviews reference staff members by name or their racial origin. 2. Additionally, a number of the reviews made about Dr Khan reference Dr Ghosh, "I finally got to see Dr Ghosh, who was efficient and good..." and "... found a doctor who was excellent with children, Dr Ratna Ghosh, who was happy to take on my whole family".
We are satisfied that Dr Ghosh was the author of the reviews relating to Dr Khan and his Practice. She denied on oath that she had created the reviews or caused them to be created.
This is not an insignificant issue - the denial of the posting of the review (on a previous occasion) is a ground of the Complaint.
We are satisfied that her denial in these proceedings significantly impacts on the reliability of the whole of her evidence.
We decline to make a finding in relation to the posts naming Dr Newnham as there are only two short reviews in evidence which we consider insufficient to be able to compare them to the statements made by Dr Ghosh to others.

Medication prescribed for holidays

As we have discussed in relation to Complaint Two, Dr Ghosh says that several medications were prescribed so that patient C could take them if he needed them when they went on a holiday. We have already made findings in relation to the substance of the Complaint.
However we consider that one aspect of the evidence given by Dr Ghosh in respect of the medication affects her credibility.
Dr Ghosh, patient C and person D went on overseas holidays twice in 2010 and again at the end of 2011 and early 2012, the end of 2015 and early 2016 and lastly from 27 November 2016 to 13 January 2017. Some of the holidays involved a cruise. The trips to South America involved travel to high altitude on day trips.
In these proceedings Dr Ghosh said she stocked up on anti-nausea and anti- diarrhoea agents for extended cruises in case of sea sickness.
However when she was cross examined about the large quantity of medications she had prescribed which had been dispensed, Dr Ghosh said she had also needed them for their many holidays to Queensland. They would drive there and they needed to take the medication with them because there were hardly any doctors or other facilities when they took the New England Highway, only potholes. On the Pacific Highway they were more likely to find a doctor. She agreed there were doctors in Queensland.
Dr Ghosh conceded that she had not, in her Reply, mentioned stocking up on medications for travel to Queensland but said it was an inadvertent omission. She could not recall which prescriptions she had written for travel up the New England Highway to Queensland.
We consider the evidence fanciful. It was volunteered after lengthy cross-examination about the medication she had prescribed more than two months before an overseas trip. As was put to Dr Ghosh, there are many towns along the New England Highway which would have doctors and chemists. We do not accept her evidence, and find it impacts on the reliability of the whole of the evidence of Dr Ghosh.

Family and Community Services

In her evidence before this Tribunal Dr Ghosh was very critical of actions taken by employees of Families and Community Services (FACS).
There are a number of emails in evidence. We will not recount their contents as those contents are not directly relevant to any issue before this Tribunal.
Dr Ghosh did not concede that she had sent those emails.
The emails were sent from the email address of Dr Ghosh. The underlying facts set out in the emails were at least partially volunteered by Dr Ghosh while being cross-examined before this Tribunal. However she would not admit having sent the emails. We are satisfied she did send them.
We consider that denial on oath reflects on the reliability of the whole of the evidence of Dr Ghosh.

Belief in the system

Dr Ghosh said in cross-examination to this Tribunal that the Health Care Complaints Commission had cancelled her registration in her absence without a hearing. When she was asked whether she believed that it was the Health Care Complaints Commission which had cancelled her registration, she replied that the Tribunal, in many cases, was just rubber stamping what the Health Care Complaints Commission had asked for. She said that this is the perception amongst doctors.
In addition we take into account Dr Ghosh's refusal to attend on Dr Samuels at the request of the Health Care Complaints Commission. We have set out the explanation she gave us when we considered Complaint Seven where she ultimately said she did not attend because the Health Care Complaints Commission had no jurisdiction over her as she was not registered.
We find that Dr Ghosh's negative attitude to the protective regime in all likelihood contributed to her failure to take seriously her obligation to answer questions fully. This, of course, impacts on the reliability of her evidence.

Esomeprazole

Complaint Two particulars 1(a) and 2 relate to the prescribing of esomeprazole for patient C.
In her Reply, Dr Ghosh said that she prescribed esomeprazole to patient C for lengthy overseas trips.
In evidence, Dr Ghosh did not suggest that patient C had, at the time she wrote the prescriptions, a medical condition for which esomeprazole on the PBS was appropriate which is only for either the management of gastro oesophageal reflux disease or the initial management of a peptic ulcer. She said she assumed that person D was taking it.
In cross-examination Dr Ghosh denied that she had used the esomeprazole which had been prescribed up to December 2017.
Dr Ghosh was asked why Dr Saker had recorded that she was taking esomeprazole. Dr Ghosh replied that she did take esomeprazole but had only started using it in 2021. Dr Ghosh was then reminded that the doctor's report was dated 27 August 2019. Dr Ghosh said she had given the doctor a computer-generated referral from a general practitioner and the computer software would have inserted into the referral everything they had previously prescribed. So, if she had been given one prescription of esomeprazole in the past, it would have appeared in the referral.
Dr Ghosh was then asked why she had told Dr O'Connell in January 2018 that she was suffering from gastroesophageal reflux disease. She said that her PBS record would show she had not filled any regular prescriptions for esomeprazole until this year. She may have taken intermittent treatment, but had not been on any regular prescription until 2021.
We note that Dr Ghosh also told Dr Bench on 20 March 2018 that she suffered from gastroesophageal reflux disease and was currently taking esomeprazole. She also told Dr Newnham on 4 April 2018 that she was taking 20 milligrams of esomeprazole daily but said she had not seen a doctor for the prescriptions since she relied on free samples from her practice.
The history taken by four doctors is that Dr Ghosh was taking esomeprazole before 2021. We accept the history in the reports of the doctors which is contrary to the oral evidence of Dr Ghosh on oath.
We decline to positively find that Dr Ghosh herself took the esomeprazole she prescribed to patient C. However her failure to initially disclose her use of esomeprazole before 2021 when giving evidence to this Inquiry and then admit it, but try to minimise it, after being confronted with evidence to the contrary shows that she was not being candid. We are satisfied that this impacts on the reliability of the whole of her evidence.

Statements of patient B and the parents of patient A

In these proceedings Dr Ghosh has suggested the statements made by patient B and the parents of patient A could have been created by Dr Khan and his wife. She gave this evidence: "Q. And you then said, "It could kill babies". A. No, I've already denied that in my written statement and reply. I assume this is the source of a second complaint from Khan which I was never given a copy of or how you obtained a second complaint from Khan, but it's probably Khan's statement and not the patient's statement, that is what I allege. Q. And that's your allegation sitting here in the witness box on oath? A. Correct, correct. What's so funny about it, Mr Britt? You find that funny? Q. She told you more than half the people in the world get that vaccination? A. No, she never said that. Yeah, so I've already answered these questions in your reply. If you're to persist in this line of questioning I need a copy of the statement that alleges I said all of these things and who wrote it. I assume it's Mr and Mrs Khan who drafted it for the patient. …. Q. Are you saying patient A's parents are lying? A. I'm saying that I don't believe they even said that. Like you've made a lot of false statements for patient B, I don't know the source of those statements so possibly they were drafted by Mr and Mrs Khan after they altered the record months later, which is what Khan's own handwriting says. Q. Do you say that patient B was lying? A. Patient B wasn't lying. I'm saying I don't know the source of your complaint, how you obtained evidence so the obtaining of evidence determines its admissibility in a Court, as you would know. If they were given a statement to sign and made to sign a Medicare voucher during a consultation with Khan, they may have just signed it as one of the documents put in front of them next to a Medicare voucher without reading it."
We find the evidence fanciful and again note that those people were not required for cross-examination.
We decline to find that Dr Khan created the statements.
We consider this reflects on the reliability of the whole of the evidence of Dr Ghosh.

Finding - Credit

Based on these findings, we do not accept the evidence of Dr Ghosh unless it is corroborated by a contemporaneous document, the evidence of another reliable witness, or evidence given against her own interest.

Protective Orders

As we have said, an Order has previously been made for the Tribunal to make findings in relation to the Complaint and then move on to determine the appropriate protective Orders after a single hearing.

The Law

The disciplinary powers of the Tribunal are set out at ss 149A, 149B and 149C of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner-- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless-- (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. … 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or … (4) If the person is no longer registered, the Tribunal may-- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
The purpose of disciplinary orders is protective rather than punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, at 637.
The protection of the health and safety of the public is a paramount consideration: s 3A of the National Law).
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the Court held: "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 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] the Court held: "As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: see, eg, Ziems v The Prothonotary of the Supreme Court (NSW) [1957] HCA 46 ; 97 CLR 279 at 286 (Dixon CJ), 289 (Fullagar J, quoting Jordan CJ); Clyne v NSW Bar Association [1960] HCA 40 ; 104 CLR 186 at 201-202; Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 201 (Kirby P). That is not to deny that such orders may be punitive in effect…Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. … Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."

The Health Care Complaints Commission

The Health Care Complaints Commission seeks an Order the effect of which would be that Dr Ghosh would not be able to apply for re-registration for five years.

Dr Ghosh

Dr Ghosh seeks to have the following conditions placed on her registration should she be re-registered: 1. The Respondent is ordered to seek psychiatric treatment from a psychiatrist of her choice, and to attend for psychiatric treatment and counselling at a frequency determined by the treating psychiatrist pursuant to s 149A(1)(c) of the National Law. 2. The Respondent: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Medical Council of NSW with the professional details of the treating practitioner. 1. The Respondent is to practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time), pursuant to s 149A(1)(b). 2. The Respondent is not to prescribe any medication to Patient C, or any close family member, or herself. 3. The appropriate review body with respect to these conditions and orders pursuant to s 163 of the National Law is the Medical Council of NSW.

Professional Misconduct

We have made findings as to the seriousness of the conduct established in relation to Complaints One to Five when we determined Complaint Six.
The fact that we have found that Dr Ghosh's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration does not mean it must be cancelled.
However, we are not persuaded that making the Orders sought by Dr Ghosh would be appropriate, bearing in mind the purposes of making such Orders.
An Order for cancellation (if Dr Ghosh were still registered) protects the health and safety of the public, protects the public from the similar misconduct or incompetence of other practitioners, upholds public confidence in the standards of the profession, denounces what we have found to be serious misconduct and operates as a deterrent to Dr Ghosh, as well as to the general body of practitioners.
If Dr Ghosh were still registered we would have cancelled her registration.

Impairment and Competence

We have also found that Dr Ghosh is suffering from an impairment within the meaning of s 5 of the National Law and is not competent to practice.
Dr Ghosh's deficits affect her ability to provide the core features of the professional values which doctors must exercise, including good communication, which underpins every aspect of good medical practice.
The first step in addressing these issues is for Dr Ghosh to develop sufficient insight into her behaviour and its causes. She will then need to decide to seek treatment and then commence and continue undergoing treatment until she can demonstrate that the issues identified in our Reasons are being successfully addressed. This will be a complex and lengthy process in the context of ongoing stressors. We are satisfied that, with respect to her impairment, there is no real likelihood of Dr Ghosh becoming competent to practise in less than three years. Accordingly we find that, if Dr Ghosh were still registered, we would have cancelled her registration because she is currently not competent to practise her profession.

Appropriateness of conditions

We have determined that the appropriate Order is the cancellation of Dr Ghosh's registration. We would add however for completeness that we do not accept that that the imposition of the conditions sought by Dr Ghosh, (if she were to be re-registered) would have, in any event, adequately protected the public.
We have already found that Dr Ghosh has a negative attitude to the protective regime. While she has said that she would comply with any conditions on her registration, we place little reliance on this assertion.
Counsel for Dr Ghosh asked for category B supervision. This means that the supervisor would practise at the same location. His or her role would be to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required. There would also be fortnightly meetings with Dr Ghosh to discuss matters such as case presentations and case and record reviews.
The documents in evidence show that Dr Ghosh's behavioural issues include inappropriate conversations with patients escalating quickly to anger and confrontation on the part of Dr Ghosh. This would not be addressed or controlled by indirect supervision.
In addition the interactions considered in these Reasons show the many occasions on which Dr Ghosh has not accepted any personal responsibility for her disagreements with others, be they patients or others in the workplace. We consider it extremely unlikely that, until Dr Ghosh gains some insight into the issues giving rise to this Inquiry, she would volunteer details of these types of incidents to the supervisor at the fortnightly review meetings.
Lastly we observe that not all of the conduct would necessarily occur at the workplace, such as the posting of anonymous reviews of fellow medical practitioners.

Application for re-registration

By s 149C(7) of the National Law we may order that Dr Ghosh cannot apply for a review of our decision to cancel her registration until after a specified time.
In all the circumstances we are of the opinion that a period of three years is appropriate, as it both signifies the seriousness with which we view her conduct and gives Dr Ghosh an opportunity to address the issues raised by our decision before applying for reregistration.

Costs

The Health Care Complaints Commission applied for an order that Dr Ghosh pay its costs of the proceedings.
Counsel for Dr Ghosh agreed that costs should follow the event.
In circumstances where almost of the grounds in the Amended Complaint have been established, we Order Dr Ghosh to pay the costs of the Health Care Complaints Commission.

Orders

The Tribunal orders: 1. Pursuant to s 149C(1)(a) and (b) and s 149C(4) of the Health Practitioner Regulation National Law (NSW) (National Law), the registration of Dr Ghosh, if she were still registered, is cancelled. 2. Pursuant to s 149C(7) of the National Law, Dr Ghosh cannot seek a review of the Orders made by the Tribunal for a period three years from the date hereof. 3. Pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these Orders. 4. Dr Ghosh pay the applicant's costs as agreed or assessed.

DISSENTING OPINION

P MORRIS AM: I gratefully adopt Acting Judge Balla's summary of the issues and the evidence in the majority report. However, I respectfully disagree with the majority on the interpretation of that evidence and the assessment of the fitness of Dr Ghosh to practise medicine.
First, in my view, and with respect, the majority has paid insufficient attention to the mitigating circumstances in this matter. Based on all the evidence, and taking into account those mitigating circumstances, I am unable to join in a finding of professional misconduct. In my opinion, the conduct amounts to unsatisfactory professional conduct but does not reach the higher threshold.
Second, in my view, and with respect, the majority has made an error in accepting that Dr Ghosh has a personality disorder and an underlying delusional disorder. In my view, and based on the psychiatric evidence presented, Dr Ghosh has a chronic adjustment disorder with disturbance of conduct (an exacerbation of personality traits) (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (DSM-5) at 309.3). This is a remediable condition that should respond to appropriate treatment.
I further conclude that because her psychiatric impairment is not nearly as great as the majority find, Dr Ghosh is capable of practising under certain conditions.
Therefore, I do not agree that her registration is cancelled for three years. I believe her medical registration should be reinstated and that Dr Ghosh could practise under a set of conditions as outlined later in this report.

Mitigating Circumstances

The mitigating circumstances concern Complaint One relating to the particulars of patients A and B, as well as Complaint Two and Complaint Three relating to patient C, and Complaint Four relating to patient B.

Patient A

An important element of the conduct of Dr Ghosh concerning patient A is that she did not recognise that this young 18-month-old child had a possible allergy to penicillin. In the practice she was working at the time (Wallsend Medical Practice) the usual practise was for the office staff to ask new patients (or their parents if a child) to fill out a basic history form including allergies. The office staff would usually transcribe this information onto the practice electronic record for the patient and this would be made available to the doctor on the doctor's computer. It transpired that the information about the penicillin allergy of patient A was not placed on the electronic file by the office staff. The practice principal, Dr Khan, acknowledged this at a later date when he wrote a note about the allergy into the file in a long hand version at a date after the consultation. In my view, the lack of this information about an allergy in the electronic record misled Dr Ghosh to think that the patient did not have an allergy and she did not investigate this matter further.

Patient B

Patient B was a woman 33 weeks into her pregnancy. She was planning to have her delivery at the main regional public hospital obstetric unit (John Hunter Hospital). The midwives at a local public health service midwife clinic affiliated with the hospital referred her to the Wallsend Medical Practice for pertussis vaccination. The patient was assessed by the practice nurse and found to be outside the window of opportunity for the administration of the pertussis vaccine, which is up to 32 weeks gestation. The practice nurse declined to administer the vaccine until a doctor had seen the patient and advised about whether the vaccine was appropriate. Patient B was put in as a brief unscheduled visit to Dr Ghosh. Dr Ghosh took a brief history and made some basic observations of the patient and described the pros and cons of the vaccine to the patient. The patient possibly did not comprehend this information.
The patient was expecting to be just given the vaccine without question. The consultation with Dr Ghosh was found to be unacceptable by the patient and the clinical interaction between Dr Ghosh and the patient deteriorated from there. The patient left the consultation and the practice before being vaccinated.
Particulars 5 and 6 of Complaint One allege that Dr Ghosh failed to perform an appropriate and fully detailed antenatal examination of the patient on this occasion.
The pregnant patient was not a patient of Dr Ghosh's. The patient was having her antenatal care provided by the midwives at the local public midwife clinic. These nurses provide regular examinations and antenatal checks. She was told to get the pertussis vaccine at the Wallsend Medical Practice, as it would be free there (this practice bulk-billed patients).
The patient was outside the usual window of receiving this vaccine (up to thirty-two weeks antenatal) and the Wallsend Medical Practice nurse would not give the vaccine without the doctor speaking to the patient about it. The patient had been seeing another doctor at the Wallsend Medical Practice and Dr Ghosh only saw the patient to advise her about the vaccine.
A full antenatal visit would not have been expected in this situation. Shared-care arrangements are often made between public antenatal services and general practices but it is not clear that a shared care arrangement was in place between the Wallsend Medical Practice and the local midwife clinic.
The general practice expert called by the Health Care Complaints Commission, Dr Emery Kertesz, in his report of 23 February 2019 was critical of Dr Ghosh for not performing a full antenatal visit.
However, during his testimony at the tribunal hearing on 18 May 2021 Dr Kertesz agreed that a full antenatal visit examination was not necessary for this situation. In his evidence, Dr Kertesz agreed that he did not know what the shared-care role of the midwives was with the Wallsend Medical Practice.
The pregnant patient took offence at the information provided about the vaccine by Dr Ghosh. This led to a heated discussion between the two. The patient then left the consultation. I do not consider that Dr Ghosh refused to give the vaccination. Rather, the patient left the consultation and the practice before vaccination could have been given.
As a result, I do not believe that the Health Care Complaints Commission has established that Dr Ghosh failed to perform an adequate and appropriate antenatal check at the time she consulted with the patient concerning the vaccine, nor do I agree that Dr Ghosh refused to vaccinate the patient.
In Complaint One, Particular 7, the Health Care Complaints Commission alleges comments made by Dr Ghosh at the s 150 hearing on 12 December 2017 about patient B were inappropriate. She commented that the patient was "very agitated and touchy so maybe she was having some psychosis of pregnancy or some anger issue". These comments were made in response to cross-examination in a hearing of the Medical Council of NSW (the Medical Council).
Dr Ghosh was under pressure to defend herself in that hearing and would have been quite anxious. She was not speaking in front of the patient or the patient's relatives. Her comments were harsh, but not dogmatic in the sense that Dr Ghosh raised the possibility of various explanations of the patient's behaviour. I do not consider the remarks were inappropriate given the setting that Dr Ghosh was in and that the patient was very distressed and angry at the time of the consultation.
As a result, I do not consider the Health Care Complaints Commission has established Complaint One, Particular 7.

Complaint Two and Complaint Three

Complaints 2 and 3 concern the treatment by Dr Ghosh from 2013 to 2018 of a family member, patient C. This family member suffers from severe autism. He was born in 2004 and from 2013 to 2018 he was nine to fourteen years of age. His behavioural problems intensified dramatically as he reached puberty and he became oppositional, argumentative and very difficult to manage at home. He refused to see general practitioners for medical care and Dr Ghosh took it on herself to provide him with medical attention and medications.
Dr Ghosh should not have provided regular medical attention to patient C herself and rather should have insisted that he be under the care of another general practitioner. In doing so she would have practised consistently with the guidelines provided to doctors about treating family members.
However, it was difficult for Dr Ghosh to do this because patient C refused to see other doctors, and when after-hours doctors were called to the home, they were reluctant to prescribe medications for the child. Further, the severity of this child's autism disorder would have made it very unlikely that a general practitioner in the Newcastle region would have been comfortable taking on the care of this child, particularly after the deterioration in his condition and behaviour from 2016.
In Dr Kertesz's report of 23 February 2019 (page 20) he is critical of Dr Ghosh not taking Patient C to a general practitioner. He says: "there does appear to be an inappropriately long phase between [patient C]'s referral and his being seen by Dr Kable, however, this is no excuse for Dr Ghosh not taking [patient C] to the GP of her choice for assessment and treatment whilst awaiting the specialist appointment to occur. There are numerous highly capable experienced general practitioners in the Newcastle area who could and would have accepted the role of [patient C]'s GP and had he been taken to one of them by Dr Ghosh".
However, in his testimony to the Tribunal on 9 May 2021 Dr Kertesz indicated it would be very difficult for Dr Ghosh to get an appointment for patient C to see a private psychiatrist in the Newcastle area. Dr Kertesz also agreed, that because of the substantial autism and behaviour disturbance of the child, there would be very few general practitioners in the Newcastle region that would be comfortable looking after him.
In Complaint Three the Health Care Complaints Commission alleges that Dr Ghosh inappropriately devised and submitted to Medicare a Mental Health Treatment Plan for patient C in June 2014 and reviewed the plan in August 2014. To get psychological care for a patient a general practitioner has to fill out a Mental Health Treatment Plan otherwise the medical benefit for the sessions of treatment by the psychologist would not be paid by Medicare.
Dr Kertesz in his Tribunal testimony on 19 May 2021 agreed that a Mental Health Care Plan would be necessary for the child to be able to get another ten sessions of Medicare-funded care in terms of counselling.
I agree it was inappropriate for Dr Ghosh to be looking after patient C other than for emergencies during the time from 2013 to 2018. However, to get patient C psychological care relevant to his needs as suffering from autism, it would be necessary for her to complete a Mental Health Treatment Plan to get the Medicare item subsidy for the psychologist sessions.
In Complaint Two, particular 4 the Health Care Complaints Commission alleges that Dr Ghosh inappropriately prescribed antipsychotic medications risperidone and olanzapine to patient C on 31 January 2016, 19 January 2017 and 22 March 2017. Dr Ghosh acknowledges that she wrote those prescriptions. However, she said that she did so under the instructions of specialist doctors.
In 2016 Dr Ghosh said patient C had deteriorated substantially in terms of his mental health and by the end of 2016 he was quite disturbed. She said that she consulted a paediatrician at the John Hunter Hospital and he recommended the risperidone medication. This was given as verbal advice and she thought the paediatrician could have been Dr Michael Lonergan. Dr Lonergan is a paediatrician in Newcastle.
Dr Ghosh, patient C and person D went on an overseas trip at the end of 2016 into early 2017. They were on a cruise in South America and during that time patient C became very disturbed. The ship was put into a port in Florida and patient C was assessed and taken under an involuntary treatment order to a child psychiatry unit. He was cared for there by a psychiatrist, Dr Llinas. Patient C was put on the antipsychotic medications olanzapine and risperidone. The email from the doctor treating patient C in the United States, Dr Llinas, says "my medical opinion was that it would be safer to release him back to the care of family, initiate medication management (the prescriptions for Risperdal and olanzapine) and obtain psychiatric care as soon as possible on their return home".
Dr Ghosh took this psychiatrist's advice and the family returned to Australia. Dr Ghosh's prescription of the olanzapine on 19 January 2017 was consistent with the advice given by the American psychiatrist. Dr Ghosh tried to get patient C into the care of a child psychiatrist in the Newcastle area. First, he was placed in the care of the Child and Adolescent Public Mental Health Service and he initially received care from non-physician practitioners in that service.
She later obtained the services of Dr Kable who is a private child and adolescent psychiatrist in the region. She claims that he advised her to continue the olanzapine. This led to her prescribing olanzapine on 22 March 2017. Dr Kable said that the patient should continue on olanzapine 5 mg daily but that an independent general practitioner should do this. As mentioned earlier, getting a general practitioner to look after this disturbed adolescent would have been difficult in the Newcastle area. The prescription of the antipsychotic medication by Dr Ghosh was an interim measure in these circumstances.
In Complaint Three, particular 8 the Health Care Complaints Commission says that Dr Ghosh provided false and misleading information to the Medical Council and the NSW Civil and Administrative Tribunal (the Tribunal) in a Statutory Declaration dated 17 September 2018 and filed in the Tribunal proceedings 2018/8057. Dr Ghosh stated that Dr Newnham's diagnosis of schizophrenia was "wildly different" from four other psychiatrists and that the "four other psychiatrists found Dr Ghosh to have no mental illness".
In reviewing the reports of the psychiatrists in this case it is only Dr Newnham who suggests that Dr Ghosh suffers from schizophrenia. In the initial reports of the four other psychiatrists who examined Dr Ghosh in person (Dr Oliver O'Connell, Dr Russell Davies, Dr Christopher Bench, Dr Geoffrey Robinson) none of these psychiatrists indicated that the patient had a mental disorder. On the supplementary reports of Dr Russell Davies, Dr Christopher Bench and Dr Robinson, they changed their opinion to view Dr Ghosh as suffering from a personality disorder.
Likely, Dr Ghosh did not know about the views of the doctors in the supplementary reports when she made her statements to the Medical Council and the Tribunal.
Therefore, in my view, the Health Care Complaints Commission has not established that she provided false and misleading information.

Complaint Six

While I agree with the majority that Dr Ghosh has been guilty of unsatisfactory professional conduct on many occasions, the mitigating circumstances explained above lead me to not agree that she breaches the higher threshold of professional misconduct.
As a result, it is my view that the Health Care Complaints Commission has not established that Dr Ghosh is guilty of professional misconduct as alleged in Complaint Six.

Complaint Seven

Complaint Seven concerns whether Dr Ghosh has an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW) (The National Law). Impairment would be a physical or mental impairment, disability, condition or disorder, which is likely to detrimentally affect her capacity to practice as a general practitioner.
The majority finds that Dr Ghosh has a condition that can be described as a personality disorder with paranoid and narcissistic features with the likelihood of there being an underlying delusional disorder and that this is considered an impairment under s 5 of the National Law.
In my view, and with respect, the majority has erred in their assessment of Dr Ghosh's condition. It is relevant to note that none of the six psychiatrists who were asked to assess Dr Ghosh face-to-face during the period 2018 to 2019 diagnosed delusional disorder on any occasion and none diagnosed personality disorder on their first assessment.
Dr O'Connell (report 25 January 2018) formed the opinion that Dr Ghosh was not suffering from a major mental illness and found no evidence she was suffering from schizophrenia and did not think she had a bipolar mood disorder or any other Axis 1 disorder. Dr O'Connell did not mention a diagnosis of personality disorder.
Dr Newnham in her initial report (4 April 2018) thought Dr Ghosh suffered from schizophrenia. Dr Newnham was clear to explain that Dr Ghosh did not have a history consistent with a personality disorder. Dr Newnham says: "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 program and progressed to the clinical examinations in 1999. A person with a severe and enduring disorder of personality is unlikely to have been accepted into a paediatric training program, and certainly would be highly unlikely to progress through this program to the clinical examination phase".
Dr Davies in his initial report (26 February 2018) thought that Dr Ghosh did not currently display any signs or symptoms of mental illness. He noted the previous mention of the possibility of underlying narcissistic personality traits but stated that these features had not been particularly evident in his dealing with Dr Ghosh.
Dr Bench in his initial report (28 March 2018) noted that Dr Ghosh's first mental health contact was in 2007 in the context of relationship problems. She had contact with psychiatrist Dr Davies in 2012 concerning difficulties she was having with neighbours on the Gold Coast. However, he noted that there were no other mental health issues present.
Dr Robinson in his initial report (18 June 2018) found no evidence that Dr Ghosh was suffering from a major mental illness, schizophrenia or bipolar mood disorder. He had insufficient time and information to make a formal Axis 2 diagnosis of a personality disorder.
Dr Stuart Saker examined Dr Ghosh in person on 27 August 2019 and again by video on 24 October 2019. His clinical impression from the 27 August 2019 examination was that she was a 54-year-old woman who appears mildly eccentric but has no clear major psychiatric illness. In his letter following the video consultation dated 25 September 2019, he notes that Dr Ghosh: "does not appear to have any mental illness or any incapacity that would prevent her from caring for [Patient C]".
Dr Newnham was the only psychiatrist to suggest that Dr Ghosh had a diagnosis of schizophrenia. All the other psychiatrists who examined her in person and the psychiatrist that did not see her in person but reviewed the documentation of the other psychiatrists, Dr Anthony Samuels, repudiated the diagnosis of schizophrenia made by Dr Newnham. The diagnosis of schizophrenia was ultimately dropped as part of the Complaint of the Health Care Complaints Commission in the Amended Complaint of 12 May 2021. In the particulars of Complaint Seven the impairment of "schizophrenia as defined in DSM-5" was removed.
None of the other psychiatrists who saw Dr Ghosh in person initially made a diagnosis of personality disorder.
However, four of the psychiatrists were later provided additional material. I understand that the information provided was previous complaints about Dr Ghosh to the Medical Council for the period between 2005 and 2016.
After reviewing this material, Dr Newnham, Dr Davies, Dr Bench and Dr Robinson put in supplementary reports.
In her supplementary report (6 July 2018) Dr Newnham does not refer to a diagnosis of personality disorder. This is consistent with her assessment of Dr Ghosh in her earlier report (4 April 2018).
In his supplementary report (17 September 2018) Dr Davies said that on review of correspondence dating back to 2010 he has changed his view and now thinks that Dr Ghosh has a diagnosis of personality disorder, probably paranoid personality disorder.
Dr Bench in his supplementary report (30 May 2018) did not agree with Dr Newnham that Dr Ghosh had schizophrenia or any evidence of abnormal thought processes or delusional thought content. He could not find significant evidence for narcissistic personality disorder or any evidence of other significant psychiatric conditions such as major mood, anxiety or psychotic disorders. He thought that if Dr Ghosh had significant personality traits these would be made obvious or exacerbated by stressful situations, but it would only become clear with more extensive psychotherapy assessment whether she had a significant personality disorder.
In his supplementary report (30 July 2018) Dr Robinson felt that after reading the further information that he considered Dr Ghosh was now suffering from a personality disorder but he raised the caveat that it is not often possible to make a diagnosis of personality disorder in a single interview.
Two of these four psychiatrists revised their diagnosis to personality disorder; two psychiatrists did not.
A summary of the complaints to the Medical Council for the period 2005 to 2016 was made by Brereton JA, Emmett AJA, and Simpson AJA in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122. At [15], under the heading "Background" the decision sets out the following: "15. Over the period between 2005 and 2016, Dr Ghosh was the subject of nine complaints. Two were discontinued. Three resulted in "no further action". One (in 2005) resulted in a "letter from the Board". Three (one in 2008, one in late 2010 and one in early 2011) resulted in performance interviews. None identified a serious risk to patients or the public."
This summary in the Court of Appeal's decision does not raise serious concerns about the behaviour of Dr Ghosh in her medical practice during this period.
I note that between 2005 and 2016 Dr Ghosh was between 41 to 52 years of age. It is clear that these complaints, which were not felt to be a serious risk to patients or the public by the Court of Appeal, were during a middle-aged period of Dr Ghosh's life. They were not related to earlier periods of her life.
As explained by Dr Newnham in her 4 April 2018 report, personality disorders represent an enduring or habitual pattern of behaviour present throughout the individual's life. This view of personality disorders is consistent with the description of personality disorders that is well outlined in the DSM-5. This manual describes personality disorders as an enduring pattern of inner experience and behaviour that deviates from the expectations of the individual's culture. The pattern is stable and of long duration and its onset can be traced back at least to adolescence or early adulthood.
There is no evidence from the earlier history of Dr Ghosh that she suffered from a personality disorder in her adolescence or through her early adulthood up to middle age.
She came to Australia with her parents at age three and then completed high school with an academic performance that enabled her to enter medical school at the University of Western Australia. She successfully negotiated medical school and graduated in 1989.
Dr Ghosh then entered the profession in intern and resident positions in public sector hospitals. She worked as a registrar trainee in the paediatric departments of public teaching hospitals across several states and later joined the general practice training program and qualified as a Fellow of the Royal Australian College of General Practitioners in 2011. She would have been supervised and observed in these training positions for 21 years.
I am not aware of any complaints being made against her behaviour or practice of medicine during this extended period. It is highly unlikely that, if she had a personality disorder, features of it would not have been detected during this period. The fact that there is no history of personality or behaviour problems leading to complaints during this period is strong evidence against her having a diagnosis of personality disorder.
I observed Dr Ghosh during her extended testimony to the Tribunal over three days (19 - 21 May 2021). I did not note any evidence of psychotic features in terms of formal thought disorder, delusional thinking or perceptual disorders. She showed no obvious cognitive impairment although when put under intense questioning by the Health Care Complaints Commission's counsel she had times when she found it hard to remember specific historical details. When she was responding to challenging, searching and intense questioning by the Health Care Complaints Commission's lawyer she often became defensive and reverted to repeating previous answers or attacking the credibility of the lawyer. During these times she appeared anxious and vigilant and frequently made a grunting sound that seemed to be an anxious clearing her throat. I did not find her answers rambling. On the other hand, when she was questioned calmly and respectfully she demonstrated the capacity to answer responsively, coherently and concisely and was able to be redirected easily to the next topic.
Personality traits are different to personality disorders. Personality traits are an individual's characteristic pattern of thoughts, feelings and behaviours but do not by themselves cause problems with functioning or distress. Personality traits can be exacerbated during periods of stress and become more prominent and can then cause both distress and dysfunction. This exacerbation usually recedes when the period of stress abates.
Dr Ghosh has been under extreme stress over the past six years. Patient C's autism and associated behaviour deteriorated in late 2016 and early 2017. Since 2017, patient C has required hospitalisation and repeated anaesthetic-level sedation so he could be force-fed to avoid death. Her relationship with person D has broken down; in part in response to the difficulties she and Person D were having controlling Patient C's behaviour. And since December 2017 she has had to face the added stress of defending herself against allegations of inappropriate professional conduct in two hearings before the Medical Council (December 2017 and May 2018), two hearings before the Tribunal (November 2019 and April 2020) and an NSW Court of Appeal hearing (December 2020) as well as the current 2021 Tribunal hearing.
During this period of severe stress, Dr Ghosh has demonstrated amplified personality traits characterised by features of questioning the motives of others, being easily offended when challenged, making judgements about people based on educational or socio-economic or ethnic status, and a self-righteous sense of her importance. These personality traits have been exacerbated to the point they have become an impediment to her practising as a physician. The magnification of these personality traits has made it difficult for her to deal with patients who question her authority and to take advice from professional colleagues.
Dr Anthony Samuels was commissioned by the Health Care Complaints Commission as an expert witness to provide a psychiatric report. Dr Samuels provided his psychiatric report dated 30 April 2021. Dr Samuels did not see Dr Ghosh for this report. She failed to attend the appointment. His report is based on a review of the documentation that he was sent plus the reports of the five other psychiatrists (Dr O'Connell, Dr Newnham, Dr Davies, Dr Bench, and Dr Robinson) who had seen Dr Ghosh in person at their respective psychiatric consultations. Neither had Dr Samuels heard or seen any audio or video interview with Dr Ghosh. His impressions of the way Dr Ghosh conducted herself in responding to the examinations by the other psychiatrists was based on his reading of their reports.
Dr Samuels acknowledges his opinion is limited by the fact that he did not see Dr Ghosh. Dr Samuels' view is that Dr Ghosh has a "severe personality disorder with narcissistic and paranoid traits with the likelihood of there being an underlying delusional disorder". In his opinion, the delusional disorder has features of grandiose and persecutory thinking. In his view, apart from these conditions, Dr Samuels thought Dr Ghosh's functioning was not otherwise markedly impaired although she does have interpersonal conflicts that impact her clinical practice. He finds no evidence that she has been manic or severely depressed and she does not use substances.
I note that Dr Samuels is the only psychiatrist other than Dr Newnham who considers Dr Ghosh to suffer from a psychotic condition. The other five psychiatrists that examined her in person (Dr O'Connell, Dr Davies, Dr Bench, Dr Robinson and Dr Saker) did not find that she had a major psychotic disorder such as delusional disorder or schizophrenia. While Dr Samuels thought Dr Ghosh had an underlying delusional disorder he did not consider Dr Ghosh suffered from schizophrenia, which had been the diagnosis of Dr Newnham.
Dr Samuels thought that the personality disorder and underlying delusional disorder were impairments and had the potential to affect her professional practice. He regarded both conditions as notoriously difficult to treat because patients with these conditions generally refused to accept that there is anything wrong with them. He also thought that Dr Ghosh would be unlikely to comply with treatment and lacks insight into her treatment needs.
Dr Samuels was called to give testimony before the Tribunal on 17 May 2021. In his testimony, Dr Samuels retreated from his view in his report that Dr Ghosh had a "likelihood of there being an underlying delusional disorder". In his testimony, he said, "it's possible that she has a delusional disorder or a schizophrenic disorder but I don't have enough evidence to say that". When pressed further, his view was that she must have some sort of mental impairment because what else could be causing her professional problems? He said "and if it's not a mental impairment, well then, what is it that is causing all of her professional problems?" This acknowledged lack of specificity in the assessment of Dr Ghosh's potential psychiatric problems makes it difficult for me to accept the opinion of Dr Samuels regarding the impairment that Dr Ghosh suffers from. Further, Dr Samuels did not offer any specific history from Dr Ghosh's earlier life that would support a diagnosis of personality disorder.
I have reviewed the medical evidence provided in this case and have taken note of the testimony to the Tribunal given by Dr Samuels, Dr Saker and Dr Kertesz. I consider that Dr Ghosh has personality traits that have become prominent during the time she has been under significant stress concerning her failed relationship, the care patient C who has suffered from extreme levels of autism behaviour disturbance, and the litigation threatening her ability to practise medicine.
These features of interpersonal or personality difficulties form the conduct component of the psychiatric disorder I believe she suffers from. This condition is an adjustment disorder with disturbance of conduct with a prolonged duration (DSM-5: 309.3). While she continues to suffer from this adjustment disorder the personality traits mentioned will remain apparent. With the resolution of the adjustment disorder, the personality traits are likely to recede and no longer be clinically problematic.
Adjustment disorders are psychiatric conditions that usually respond to treatment. In the case of Dr Ghosh, treatment would be directed at helping her reduce her anxiety about the stressors that have led to the adjustment disorder and to help her develop more functional and positive ways of dealing with stress and finding alternate ways of responding to circumstances and challenges than with the current exaggerated personality traits she exhibits. An intensive psychotherapy approach would be the most appropriate way of treating her difficulties. Psychotropic medication in the form of antidepressant medication may also be of assistance.
The overall management of her condition should be under the care of a specialist psychiatrist familiar with treating patients with this type of problem. A regular psychiatric review by a consultant psychiatrist should be monthly for a year and then reviewed.
The psychotherapy component of the treatment should be undertaken by a clinical psychologist or psychotherapist with experience in dealing with patients who have difficulty coping with stress and who have personality traits that cause distress and impair the individual's effective interaction with others, including patients and professional colleagues. A review of her interactions with patients and professional associates would form part of the content of therapy. Psychotherapy should be intensive and sustained over a period long enough to establish and maintain change. Therapy consultations should be for one hour each on a weekly to fortnightly frequency for a year and then reviewed.
I expect treatment of this type should resolve the adjustment disorder and its associated personality problems.
I note that the majority of psychiatrists (Dr O'Connell, Dr Davies, Dr Bench, Dr Robinson, Dr Saker) who have seen Dr Ghosh in person have not diagnosed any major psychiatric disorder including schizophrenia or delusional disorder. Dr Newnham was the only psychiatrist to suggest a diagnosis of schizophrenia but this was dropped in the Amended Complaint of the Health Care Complaints Commission (12 May 2021). Dr Samuels in his report suggested Dr Ghosh may suffer from a delusional disorder but in his testimony, he largely withdrew from that opinion. Therefore, I find it very unlikely that Dr Ghosh suffers from an underlying delusional disorder or psychotic disorder.
Three of the psychiatrists who saw Dr Ghosh in person (Dr O'Connell, Dr Newnham and Dr Saker) did not diagnose a personality disorder at any stage. Two of the other psychiatrists who saw Dr Ghosh only diagnosed personality disorder after they had received further information that outlined the complaints made against the doctor before the index complaint in 2017. As mentioned previously, the NSW Court of Appeal in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 found that none of the earlier complaints identified a serious risk to patients or the public.
Overall, there is little to support a diagnosis of personality disorder even taking into consideration the behaviour that was outlined in those earlier complaints. There is no longitudinal history related to her earlier adult life that would justify a diagnosis of a personality disorder. In my view, Dr Ghosh does not suffer from a personality disorder.
The majority accepted the opinion of Dr Samuels that there was "pervasive support for a diagnosis of severe personality disorder with narcissistic and paranoid traits with the likelihood of there being an underlying delusional disorder."
I am respectfully unable to accept that conclusion. A significant difficulty in accepting Dr Samuel's diagnosis is that he never saw Dr Ghosh for an examination in person. Not one of the other six psychiatrists who examined Dr Ghosh in person suggested a diagnosis of a delusional disorder. Furthermore, Dr Samuels also felt able to diagnose a severe personality disorder when there is no evidence of a long and stable pattern of behaviour that can be traced back to adolescence or early adulthood. This is, to say the least, surprising.
I consider that the majority members of the Tribunal should have given great weight to the fact that Dr Samuels did not have the benefit of seeing Dr Ghosh and that he adopted a diagnosis (delusional disorder) which was not shared by those psychiatrists who were much better placed to make a considered diagnosis. Furthermore, in my view, the majority ought to have placed significant weight on the absence of a pattern of behaviour that can be traced back to adolescence or early adulthood and the significance of that in terms of the reliability of Dr Samuel's opinion concerning the diagnosis of personality disorder.
As the only psychiatrist on the panel, I consider I am bound to dissent from their conclusions in this respect. In my view the evidence, in this case, supports a diagnosis of adjustment disorder with disturbance of conduct rather than a personality disorder. This has significant implications for treatment and the capacity of Dr Ghosh to continue to practise under conditions.
I consider that Dr Ghosh does have an impairment at this time. This is due to her adjustment disorder with disturbance of conduct and the way that it has resulted in the exacerbation of personality traits that interferes with her interpersonal relationships with patients and professional colleagues.
I do not consider her impairment permanent or unresponsive to treatment. The uncertainty surrounding her relationship with person D has now been clarified as she and person D have formally separated. The clinical condition of patient C has improved, relieving one of the significant stresses on her. Finalisation of the litigation surrounding the complaints made against her and clarification of her medical registration status will also reduce the levels of stress that she has been facing over the past three to four years. All these factors will help improve the likelihood of a successful course of treatment and a positive prognosis.
In her testimony to the Tribunal on 21 May 2021, it is evident that Dr Ghosh realises it is not appropriate to prescribe for herself or her family. She is aware that others can perceive her personality as disordered or difficult. She agreed she needed treatment by a psychiatrist and would accept conditions on her practice including supervision and mentoring. She said she would comply with conditions placed on her as she had done with the previous directions imposed by the Medical Council. These acknowledgements provide some assurance that Dr Ghosh has insight into her problems and accepts treatment and would comply with conditions placed on her practice.
This need for treatment and supervision was formally accepted in the Proposed Orders submitted by Dr Ghosh to the Tribunal at the end of the hearing.
I do not believe the Health Care Complaints Commission established Complaint Seven. I do not consider that Dr Ghosh has a mixed personality disorder with paranoid and narcissistic features and/or a chronic mental or personality disorder and neither does she have frank delusional beliefs or delusional disorder.

Complaint Eight

The Health Care Complaints Commission claims that Dr Ghosh is not competent within the meaning of s 139(a) of the National Law in that she lacks the mental capacity to practise as a medical practitioner. In my view, Complaint Eight has not been established.
Dr Ghosh does have difficulties arising from the adjustment disorder and this leads to impairments as outlined above. However, they do not reach the level of lacking mental capacity to practise as a medical practitioner. Her psychiatric impairment is not nearly as great as the majority find and her condition is remediable with treatment. I conclude that Dr Ghosh is capable of practising under certain conditions as set out below. As a result, I do not agree that her registration should be cancelled for three years.
Her medical registration should be reinstated with conditions.

Conditions

I recommend that Dr Ghosh be allowed to return to medical practice under treatment and supervision conditions.
The treatment conditions with a psychiatrist and clinical psychologist have been set out previously. Her progress in therapy should be assessed regularly and reports provided to the Medical Council. At the end of the first year, a review of Dr Ghosh's progress should inform the need for further treatment. This review of therapy should include information from her medical practice supervisor and mentor.
A condition of medical practice should be that Dr Ghosh does not treat or prescribe for herself, patient C or any other members of her family. She should engage the services of an independent general practitioner for herself and arrange for the same thing for patient C and any other members of her family.
Dr Ghosh should undertake courses to improve her knowledge of vaccination protocols and their rationale, and improve her history taking, particularly concerning the recognition and assessment of allergies to drugs.
During the first year when Dr Ghosh is under more intense psychiatric treatment, she should practise medicine under a Level 1 (direct supervision) supervision arrangement. Level 1 supervision is where all aspects of practice would occur as similar to an intern or a PGY2 position, the supervisor must be at the same location as the supervised doctor at all times and these positions are generally only obtainable in a public hospital setting, although a private hospital or large group teaching general practice may be an alternate location. The nature of supervision would include observed practice, case presentation, regular structured meetings, case reviews, recorded interviews and regular reports to the Medical Council.
Dr Ghosh must nominate a mentor to the Medical Council who is a senior medical colleague in general practice. Dr Ghosh should meet with the mentor regularly and the mentoring must focus on compliance with practice conditions, compliance with health and treatment conditions, clinical issues, work-life balance, professional development and any other work-related issues. The mentor should report regularly to the Medical Council on the status of Dr Ghosh.
At the end of the first year, the Medical Council should undertake a review of Dr Ghosh's progress using the reports of the psychiatrist, the clinical psychologist, the clinical work supervisor and the mentor. If positive results have been seen in treatment and Dr Ghosh has not caused any concern regarding practise at the Level 1 supervision, then a move to Level 2 (indirect, on-site supervision) supervision arrangements for the second year should be considered.
If during the second year Dr Ghosh performs well under the Level 2 supervision arrangements and the reports from treatment are positive, then in the third year she could practise under Level 3 (indirect supervision) arrangements. If Dr Ghosh performs satisfactorily during the year of Level 3 supervision, she could return to independent practice in the fourth year.
These conditions must protect the public and act as a disincentive for other doctors to behave as Dr Ghosh has done.
In my view, these recommendations satisfy the requirement of protecting the public.
The safety of the public would be ensured by the conditions of not allowing Dr Ghosh to treat or prescribe for herself or any members of her family. She should undertake a course in the rationale and role of immunisation for all levels of medical practice including pregnancy. She should do a course on identifying the basic elements of medical history taking including the recognition and assessment of past allergic responses.
The supervision conditions protect the public by first making it a condition of practise that she is under Level 1 supervision arrangements and can only move to lesser levels of supervision after she successfully negotiates Level 1 and then Level 2 and then Level 3 supervision conditions.
The treatment conditions ensure that Dr Ghosh has treatment directed towards her psychiatric problem and her personality difficulties resulting from this.
All together, these conditions on treatment and practise are likely to protect the public from adverse experiences with Dr Ghosh. Any problematic or non-compliant behaviour that did occur would be easily identified and be the subject of remediation or censure.
The conditions recommended are likely to result in Dr Ghosh returning to effective medical practice as she did for many years before the recent complaints.
I do not consider that there is an additional penalty to be given to Dr Ghosh to deter other doctors from behaving in the way that she has. Other doctors would see the serious problems that she has experienced as a result of her behaviour and this would be enough to discourage doctors from engaging in behaviour of this type.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2021

(2020) 102 NSWLR 303

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