Prasad v Medical Council of New South Wales

Conditions

1. Dr Prasad does not challenge the authority of the Council to impose conditions, but he disputes the imposition of those to which we have referred above.
2. Conditions may be imposed by Council only if satisfied that they are "appropriate" for the protection of health or safety. It need not be satisfied that they are "necessary": see Steel v Medical Council of New South Wales [2020] NSWCATOD 77 at [35].
3. Council must be satisfied that conditions are "otherwise in the public interest". S3A of the National Law makes protection of the public "paramount" in this consideration, and the cases have held that "maintenance of public confidence in the profession is also important": see Pharmacy Council of New South Wales v Ibrahim [2020] NSWSC 708 at [31] to [35].
4. One set of conditions was imposed on 19 April 2021, pursuant to an agreement reached under s152J of the National Law following recommendations made by an Impaired Registrants Panel (IRP), after an Inquiry held on 13 April 2021.
5. A second set was imposed on 26 May 2021, pursuant to s150 of the National Law, following an Inquiry held under that section on 24 May 2021.

The Appellant's Position

1. Dr Prasad has attempted his internship on several occasions, but never completed it.
2. At various times (eg, pp 624 and 727), he has expressed ambitions to work in emergency medicine, pathology, general practice, and clinical research.
3. He has taken the view that having successfully completed several terms of internship and seven weeks of GP placement he has probably "achieved the required standard to go on to general registration" and "positions like a resident" (see transcript of s150 hearing on 24 May 2021 - Ex R1, tab 7, pp 634-5 - and also Ex R1, pp 343 and 355).
4. Dr Prasad had no formal psychiatric history prior to 2009 apart from mild anxiety in late 2008.
5. He is a man of sober habits apart from a historical and serious caffeine habit ("Red Bull"), and he appears to suffer from coeliac disease, sleep apnoea and hay fever.
6. He is certainly very highly motivated to succeed in his medical career.

Factual Chronology

1. Dr Prasad was born in Fiji, of Indian background, in 1983. He came to Australia at age twelve.
2. Once he had settled into the New South Wales education system, he completed his Higher School Certificate, with a UAI score of 97.7, at Sefton High School in 2000 (Ex R1, p 236).
3. He successfully completed two years of a pharmacy degree at the University of Sydney, 2001-2002 (achieving some distinctions), but he withdrew and switched to medical science and medicine/surgery at the University of Tasmania, 2002-2008.
4. He graduated MBBS with First Class Honours and various prizes (tab 6x), was first registered as a medical practitioner on 12 January 2009 (Ex R1, p 846), and commenced work as an intern at Liverpool Hospital (and later Fairfield Hospital) in 2009.
5. By June 2009 he was "noted to be working excessively long hours and was thought to be overwhelmed and not coping well'. A number of clinical errors had been made, and he was noted to be disorganised. The hospital sought to help him and instituted some coping measures, and his performance improved, but his mood deteriorated, and he reported poor sleep. He was referred to a staff psychiatrist, who commenced him on antidepressants, and he essentially ceased working in a hospital setting in November 2009 (Ex R1, p 405).
6. Liverpool Hospital expressed concern about him in a letter to the NSW Medical Board, dated 16 December 2009 (tab 6b), and his registration lapsed during 2010.
7. On 15 February 2010, he first saw Dr Messner, a Board-nominated psychiatrist, and she found him (tab 6c) "impaired" and unfit to return to work. When he attended an IRP Inquiry on 27 April 2010, the delegates arranged urgent medical and psychiatric assessment (tab 6d), and he reluctantly agreed to assessment at Cumberland and/or Westmead Hospital.
8. He did not return to hospital intern work for over three years (Ex R1, p 237), working in a range of non-medical jobs, including HSC tutor and a pharmacy assistant.
9. Dr Messner reviewed him on Council's behalf from time to time (tabs 6e, 6g, 6i and 6k). She noted significant deterioration during 2010, and considered (tab 6e, p 389) that he was then "recovering from a major depressive episode with psychotic features" (under the supervision of his treating psychiatrist, Dr Mayur). On review in July 2011 (tab 6g), Dr Messner found him (see p 502) "less depressed and anxious", but "vulnerable for a relapse". She supported his return to work as an intern, but on conditions - such as limited hours, workplace support and monitoring, regular attendance on his treating psychiatrist, and compliance with prescribed medication.
10. An IRP considered his situation on 16 September 2011 (tab 6h) and found "significant progress" since August 2010 (p 413). However, the Panel had "ongoing concerns about" him, and reservations about his leaving his supportive Sydney environment to advance his medical career (eg, in Rockhampton). It also opined that he lacked insight regarding his vulnerability to any psychiatric relapse. Registration conditions were agreed (pp 414-5).
11. The IRP report was forwarded to Dr Messner, who reviewed him again on 8 November 2011 (tab 6i), after he had commenced part-time work at Liverpool Hospital (in Geriatrics). He was not well, and Dr Messner noted (p 419) that he had a "somewhat limited understanding of the severity of his illness, the risk of relapse and the measures… most appropriate to maintain good health". She opined that he had "continued to recover", but "continues to remain vulnerable".
12. Dr Prasad has had a series of "review interviews" at the Council. At such a hearing on 15 December 2011 (see tabs 4d and 6j), he was still actively looking at relocating to Rockhampton in 2012 to complete his internship requirements, and the Council remained concerned about his "moving away from [his] family support network" (p 428).
13. Dr Prasad maintained that he had "never experienced suicidal ideation", nor was ever at risk of self-harm, nor had he been "psychotic" - he was "just really depressed and into myself", and "dissociation might have been misperceived as psychosis" (p 429). He opined (p 430) that vulnerability to relapse is "part of the natural history of the illness", and that he wanted "to move on and just take the risk of relapse", while taking steps to "minimise it".
14. Although he had been offered, and had accepted, a full-time intern position at Liverpool for 2012, he still preferred to go to Rockhampton, as his mother was able to go there with him. He said he knew what "early warning signs he [needed to] look for".
15. The review noted (p 431) "further significant progress since… September 2011", but "still held significant concerns about Dr Prasad's limited insight", and "the issues involved in a potential move away from all established supports" and recommended no changes to his conditions of registration.
16. His move to Rockhampton in January 2012 proved somewhat disastrous - after about four weeks there he relapsed into depression, fortunately without psychotic symptoms (pp 433-5), and he soon returned to Sydney, where he re-engaged with his treating psychiatrist, Dr Mayur, and his GP, Dr Ong (p 434), but did not secure medical employment.
17. There were further Council review interviews in March and June 2012 (tabs 4e and 4f), and Dr Messner reviewed Dr Prasad (for the fifth time) on 21 May 2012 (tab 6k).
18. Dr Messner noted that Dr Prasad "continued to demonstrate limited insight into his illness", and "failed to acknowledge that he had been warned about the potential risks of going to Rockhampton". She further noted that Dr Prasad "did not acknowledge" that the reason he was in his current work situation was because of the "unwise decision he had made in accepting the position in Rockhampton" and blamed the Council for causing him stress.
19. Dr Prasad did not practise medicine in NSW between June 2012 and the end of 2020. Council understands that he undertook hospital and medical practice observerships in Sydney and Melbourne in 2016 and 2017, and he did not reapply for NSW provisional registration until 2017.
20. In 2017, he complained to "Equal Opportunity Tasmania" that his rejection by Royal Hobart Hospital was discriminatory, because it was based on his not being a "recent graduate", and having a disability (depression) (tab 6l).
21. On 11 December 2017, he saw AHPRA appointed psychiatrist, Dr Peter Miller, and, on 21 December 2017, the Medical Board of Tasmania granted him provisional registration on practising and health conditions to be monitored by AHPRA.
22. The reports from Royal Hobart Hospital during 2018 appear largely supportive/favourable (tabs 6m to 6u, pp 439-70), eg, on 5 July 2018, his supervisor in Geriatrics noted (p 447) that Dr Prasad's "knowledge is above level expected at intern level", and (pp 448-52) that he showed improvement with IT, management and "independence with patient review". However, he was cautioned for breach of his practice hours conditions, and concerns were raised about his "overall performance", and his truthfulness, on 22 November 2018 (tab 6b, pp 471-7).
23. Dr Prasad became very fatigued and did not complete his intern year 2018 at Hobart - the Hospital terminated his employment on 14 January 2019. He brought unfair dismissal proceedings in the Tasmanian Industrial Commission (tab 10), but, in those proceedings, he acknowledged that he was "struggling" (see p 665, par 39) and he took the last seven weeks off, fearing a relapse similar to his 2009 experience at Liverpool. He also had what he has described as "a personality clash" - which we consider an understatement - with Dr Allan Beswick, Hobart's head of Prevocational Education and Training (see tab 6v, pp 538, 555 and 557), and he returned home to his family in Sydney, and spent 2019 largely at home, recuperating.
24. He has remained under the care of his treating psychiatrist, Dr Mayur, and his GP, Dr Ong. He commenced taking Amisulpride in 2015, which appears to be effective in controlling his schizophrenia. Dr Mayur opined in August 2020 that Dr Prasad has been in "stable remission" since 2016.
25. He did not renew his registration in 2019 but sought provisional registration on 17 August 2020. He was granted provisional registration on conditions on 3 November 2020 (see tabs 6y and 6z, pp 481-9). He had some difficulty with supervisors in 2020 (tab 6bb, p 518), but was doing better by April 2021 (tab 6ee, p 535), e.g., in a supervised observership with Dr Manmit Madan in February/March 2021 (see tab 4A, p 267).
26. On 20 January 2021, he saw the Council-appointed psychiatrist, Dr Anthony Samuels, for the first time. From 4 February to 2 March 2021, Dr Prasad satisfactorily completed a four-week full-time observership with Dr Madan's GP practice at Westmead (tab 6ee).
27. On 26 April 2021, following an IRP on 13 April 2021, at the end of which he protested vehemently about proposed conditions, he was notified of conditions to be imposed, effective from 19 April 2021, by the Medical Council (tab 6dd, pp 521-34), which he appealed on 10 May 2021 (tab 4A).
28. He made comprehensive submissions to the Medical Council in May 2021 (tabs 6gg to 6mm, pp 538-58) for a s150 hearing convened on 20 May 2021 (tab 7).
29. The s150 panel published its reasons on 15 June 2021 (tab 5).

Discussion

1. Since Dr Prasad's early days at Liverpool Hospital in 2009, he is considered to have been recovering from an "episode of major depression with some anxiety symptoms" (tab 6c, p 5), and, therefore, as suffering from "impairment" in terms of the relevant statutory provision (p 6).
2. His condition clearly deteriorated during 2010, and his depression exhibited psychotic features requiring hospitalisation. He was adherent with medication, and continued seeking psychiatric and other medical assistance, and showed further signs of recovery during 2011.
3. Between April 2010 and June 2012, Dr Prasad participated in numerous Council-related reviews, by way of either IRP reports or health interviews/ reviews, but he had no contact with Council, ie, the New South Wales registration authority, between June 2012 and at least late 2017, if not 2020. Then, in 2021, there were the relevant IRP Inquiry - to which Dr Prasad had an aggressive response - and the consequential s150 hearing, which resulted in the contested conditions of registration at the heart of this appeal.
4. Throughout the psychiatric evidence before us, there is consistent medical concern about Dr Prasad, his vulnerability to relapse with depression, anxiety and unfitness for work in the medical profession, and his apparent lack of insight into the difficulties he has experienced and the illness and stressors underpinning them.
5. There is consistent expert support for the contested conditions on his registration in order to protect the public. As Dr Samuels notes, Dr Prasad's cognitive deficits are significant, and there is likely to be fluctuation in his mental state and cognition that could lead to variability in his performance (tab 15, at [27] and [29]).
6. There is little difference between the opinions and assessments of the neuropsychologists, Dr Denehey (2018) and Dr Metcalf (2021), except that Dr Metcalf acknowledged some improvement in his functioning (pp 731 and 759) in the intervening period.
7. Regardless of Dr Prasad's objections to some of their psychometric results, including as to his IQ, both these experts performed comprehensive neuropsychological assessments and found deficits "clearly apparent" in his cognition, not inconsistent with his underlying treatment-resistant schizophrenia and anxiety (see tabs 4j and 12, and p 671 at [49]). IQ testing is only one part of any comprehensive neuropsychological assessment (p 760, par 9.36), and the relationship between schizophrenia and cognitive defects is discussed in the American textbook extracted at tab 14 (see p 806).
8. Although we have every respect for Dr Mayur's evidence as Dr Prasad's treating psychiatrist, we prefer and accept the evidence of the Council's medical experts.
9. Dr Samuels opined, in June 2021, that Dr Prasad's illness has some paranoid persecutory features, which, when coupled with a rigidity and inflexibility in thinking, lead to his regular "difficulties accepting feedback from senior colleagues and those in authority".
10. In some of his submissions, Dr Prasad infers consistent discrimination against him (eg, 18 May 2021 at p 542): "Additionally, the impacts of the attributes of disability and race, as pertinent in my case, cannot be disregarded. I have both the disability of schizophrenia and also the attribute of being Fijian Indian in ethnicity. I submit that these issues, especially disability discrimination, have played a prominent role in my case. I first secured the Tasmanian Health Service (THS) Royal Hobart Hospital internship position after a complaint and interim finding of possible disability discrimination by the THS in 2016. Again, settlement was reached with Dr Lieng [a sometime supervisor] for the discrimination complaint I made. I submit that in the wholistic view of this matter, these attributes and their impact along the decision-making chain should not be disregarded, as considerable bias and stigma, sometimes unconsciously, can be associated with both attributes".

The Contested Conditions

1. The Council argues, in respect of the challenged condition 5d (Ex R2, pp 6, 7 and 10), that: "In order to carry out any meaningful supervision and monitoring function however, any supervisor will need to be appraised of the context and reasons for the imposition of the conditions, and will thus need to be provided with a copy of the decision that imposed the conditions. Without a copy of the decision, the supervisor would not be aware of the circumstances and issues that lead to the imposition of the conditions, and thus will not be in a position to take particular care, and offer appropriate support, should similar circumstances and issues arise. In this context, a supervisor's role includes the provision of positive support to Dr Prasad, which in turn serves a protective role".
2. The Tribunal accepts that argument, despite Dr Prasad's concerns about his privacy. In various of his submissions (eg, at p 623) he seeks that his medical issues be accepted as a basis for special consideration, and this condition will work to his advantage in that regard - supervisors need to be aware of his mental health issues.
3. We turn, therefore, to the other contested conditions.
4. We, like the s 150 panel, remain concerned, in terms of public safety, about the appellant's aggressive reaction to the IRP in April 2021, at a time when his schizophrenia was seen as stable (see tab 5, pp 334-5, tab 7, p 618, and tab 11, p 672).
5. Dr Prasad's behaviour at the end of that hearing was "unprofessional, threatening and aggressive, and extremely unusual in a formal regulatory setting". The s 150 hearing up to that point had been cordial, polite and relaxed, without any evidence of any tension or distress, and this incident raised serious concerns about his insight, and self-awareness about interpersonal communications and the safety of people who may have to give him honest feedback about his performance. Unfortunately, this behaviour was seen as consistent with that reported by some previous supervisors and highlights the difficulties he appears to have in accepting criticism and managing any difference of opinion (Dr Samuels at tab 11, p 672, "tab 7").
6. Dr Prasad angers easily when things do not appear to go well for him, and that reaction has led him into litigation against various people and organisations.
7. We acknowledge that he is perfectly entitled to litigate any concerns, as he has in these appeals, but aggression of the type he showed at the IRP is a cause for disquiet.
8. Leaving that aside, however, we are left with Dr Prasad's recurring history of precarious and deteriorating mental health when working full-time. As time goes on, any increasing workload becomes overwhelming for him, and deterioration in his health has already been detrimental to his practice of medicine.
9. While we accept his plea that no harm has been shown, we believe that the risk of harm is high, while noting his record of compliance with conditions since 2018.
10. We, therefore, conclude that he needs a close supervisory environment, such as in a major public or teaching hospital, and a limitation on his hours, in terms of their number, spread and overtime.
11. Accordingly, we will dismiss these two appeals.

Costs

1. The appellant having lost his appeals in their entirety, the Council asks the Tribunal to order him to pay its costs, pursuant to clause 13 of Schedule 5D of the National Law.
2. The appellant also seeks an order for costs (submissions 18 October 2021, pp 13-14).
3. The cases establish that "ordinarily costs should follow the event unless there are reasons to conclude otherwise": see Qasim v Health Care Complaints Commission [2015] NSWCA 282, at [85].
4. There have been no such countervailing reasons advanced by the appellant, in response to the respondent's request for costs and its written submissions advanced at the hearing, so the Tribunal believes its costs discretion should be exercised in favour of the respondent.

Orders

1. The Tribunal therefore orders: 1. The two appeals brought by Dr Prasad are dismissed, and the relevant decisions made by the Medical Council of New South Wales under s 152J and/or s 150 of the Health Practitioner Regulation National Law (NSW) are confirmed; 2. The appellant is ordered to pay the Council's costs of the two appeals.

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: 19 September 2022