Purewal v Medical Council of New South Wales [2026] NSWCATOD 43;

Ghosh v Health Care Complaints Commission [2020] NSWCA 122

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Health Care Complaints Commission v Dr M [2020] NSWCATOD 13

Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Karimi v Medical Council of New South Wales [2017] NSWCATOD 180

Lee v Huo [2026] NSWCA 15

Lindsay v Health Care Complaints Commission [2010] NSWCA 194

Medical Council of New South Wales v Smithson [2021] NSWCA 53

Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34

RJE v Secretary, Department of Justice (2008) VR 526; [2008] VSCA 765

Tung v Health Care Complaints Commission [2011] NSWCA 219

Tillmans Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132

1. By Notice of Appeal filed 31 July 2025 Dr Amanpreet Purewal (the Practitioner) appealed against the decision of the Medical Council of New South Wales (the Council) pursuant to s 150 of the Health Practitioner Regulation National Law (National Law) on 13 February 2025 to impose practice and health conditions on her registration as a medical practitioner. The Practitioner appealed pursuant to s 159 and s 15B of the National Law. Section 159(3) provides for an appeal which proceeds by way of a "new hearing", and "fresh evidence", or evidence "in addition to or in substitution" for the evidence which was before the Council. Section 159B(1) provides for an appeal "with respect to a point of law". Sensibly, the Practitioner has not agitated her s 159B appeal.
2. The Council resisted the Practitioner's appeal and, pursuant to s 159C of the National Law, sought that a condition be placed on the Practitioner's registration that she not practise medicine.
3. The Practitioner also appealed against the decision of the Council of 16 April 2025 requiring her to undergo an examination by a Council appointed psychiatrist pursuant to s 152B of the National Law in order to obtain an independent assessment of the Practitioner's health. By email, the Practitioner informed the Tribunal on the morning the hearing of her appeal was due to commence that she abandoned her appeal against the Council's s 152B decision.
4. The Practitioner did not appear when her appeals were called on for hearing at 10.00 a.m. on 11 February 2026. For reasons which the Tribunal gave orally at 12 noon on 11 February 2026, the Tribunal declined the Practitioner's request that the hearing of her s159 and s 159B appeals be adjourned. In its ex tempore reasons for refusing the adjournment, the Tribunal found that, in all the circumstances, refusing the adjournment did not deny the Practitioner natural justice or procedural fairness.
5. The relief sought by the Council pursuant to s 159C of the National Law, if granted, would not preclude the Practitioner from applying in future to remove the restriction on her registration, provided that she had reasonable grounds for doing so. The Tribunal is mindful of the distinction between the implications of the relief sought by the Council in this case, and the implications of suspension or cancellation of a practitioner's registration.

The Practitioner's absence of legal representation

1. Although legally represented until mid 2025, the Practitioner has not been represented in the appeal proceedings since that time. The Practitioner has filed material in the appeal, which the Tribunal has considered. Having not appeared, the Practitioner has deprived the Tribunal of the opportunity to explain to her how the proceedings are conducted (Lee v Huo [2026] NSWCA 15, at [71]-[72]). The Tribunal is satisfied that the Practitioner has been afforded, but not availed herself of the opportunity to be heard.

1. The Council filed a Court Book (Exhibit MC1) containing relevant background material, including the transcript of the relevant proceedings before the Council and the Council's reasons for its decisions. The submissions of Counsel for the Council became Exhibit MC 2.
2. On 4 February 2026 the Council filed a Tender Bundle of documents which comprised medical reports with respect to the Practitioner, and certificates of capacity/certificates of fitness with respect to her ongoing receipt of workers' compensation benefits (Exhibit MC 3). The Tribunal is satisfied that the Practitioner has been made aware of the Council's intention to rely on the contents of MC 3, most of which are readily identifiable source documents, signed by the Practitioner, or created with her knowledge and consent. The documents are not entirely adverse to the Practitioner's case. Some of them are helpful to her case.

1. The Practitioner is a 38 year old medical practitioner, who completed her medical studies at the University of Wollongong in 2018 and was first registered in New South Wales in 2019. The Practitioner is a General Practitioner Registrar.
2. On 3 January 2025, the Council received a mandatory notification from the Practitioner's General Practitioner Supervisor, Dr Mon Tut, the Practice Principal at Corrimal Family General Practice where the Practitioner was then working. A copy of the notification is found at MC 1, pages 151 to 153. Concerns were raised with respect to the Practitioner's progress as an RACGP Registrar, and particularly in relation to her conduct during an appointment which allegedly proceeded for approximately three hours which the Practitioner had with a patient on 19 December 2024.
3. On 15 January 2025 the Council received a second notification detailing similar concerns to those expressed by Dr Tut (MC1, page 144-150).
4. On 28 January 2025, a Committee of the Council resolved to convene a s 150 hearing. On 13 February 2025 a s 150 hearing was conducted by Delegates nominated by the Council for that purpose. On 17 February 2025, pursuant to its decision of 13 February 2025, the Council imposed practice and health conditions on the Practitioner's registration as a medical practitioner.
5. On 18 March 2025, in its reasons for the s 150 decision, the Council recorded that "Having considered all of the evidence ... the Delegates concluded that it is likely that Dr Purewal suffers from an impairment and this has the potential to affect the health and safety of the public such that it is necessary to take action under s 150 of the National Law. They are of the view that the conditions listed below will sufficiently mitigate this risk" (MC1, page 29). As is not in doubt (Medical Council of New South Wales v Smithson [2021] NSWCA 53) the Council did not make findings in those terms, and the Tribunal "standing in the shoes" of the Council, must determine on the evidence before it whether s 150 of the National Law is enlivened, and, if it is, the protective orders which are necessary and appropriate to protect the health and safety of the public.
6. The practise conditions imposed by the Council were:

"Practise Conditions:

(1) To advise the Medical Council of NSW in writing at least seven days prior to changing the nature of place or practice.

(2) Not to undertake any locum roles.

(3) To treat/consult with no more than four patients in any one hour and no more than twenty patients/clients in any one day:

(a) the Practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated/consulted, their consultation times and hours worked on any dates as specified by the Council.

(4) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions.

Health Conditions:

(5) Not to prescribe for self-medication.

(6) To attend for treatment by a general practitioner of their choice. The frequency of treatment is to be determined by the treating practitioner.

The Practitioner:

(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:

i. failure to attend for treatment;

ii. termination of treatment; or

iii. a significant change in health status (including a significant temporary change);

(b) must provide the Council with the professional details of the treating practitioner/s.

(7) To attend for treatment by a psychiatrist of their choice. The frequency of treatment is to be determined by the treating practitioner.

The Practitioner:

(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:

i. failure to attend for treatment;

ii. termination of treatment; or

iii. a significant change in health status (including a significant temporary change).

(b) must provide the Council with the professional details of the treating practitioner/s.

(8) To take any medication as prescribed by their treating practitioners.

(9) To attend for review by a Council directed health assessor (psychiatrist) on a three monthly basis or as otherwise directed by the Medical Council of NSW.

(10) To attend a Medical Council of NSW's Review Interview on a three monthly basis, or as otherwise directed by the Council.

(11) To authorise the Medical Council of NSW to forward copies of the s 150 decision and any subsequent reports and any other information relevant to their health and treatment to the Council Directed Health Assessors, supervisors and to their treating practitioners."

1. In view of the abandonment of the Practitioner's appeal against the s 152B direction of the Council, other than to the limited extent considered below, it is unnecessary to refer to events subsequent to that direction.
2. On 29 September 2025, having considered that the Practitioner "may" have an "impairment", pursuant to s 152D of the National Law, the Council requested the Practitioner to attend a Council Directed Health Assessment (CDHA), with Dr Anthony Samuels, a Consulting Psychiatrist, on 15 October 2025 by AVL. The Practitioner did not respond to that request and has not attended on Dr Samuels. The Practitioner had failed to attend two other appointments with Council appointed assessors prior to that request.
3. On 15 October 2025, Dr Samuels provided a report to the Council (MC1, 1373-1407). Detailed reference will be made to Dr Samuels' report later in these reasons.
4. The Practitioner filed a reply but did not file evidence in support of her appeal.
5. On 28 November 2025 the Council filed a reply seeking dismissal of the appeal and an order [2] that:

"Pursuant to s 159C(1)(c) of the National Law, in response to the Appellant's Amended Appeal pursuant to s 159 of the National Law, dated 31 July 2025 the Tribunal imposes the following condition on the Appellant's registration:

a. not to practise as a medical practitioner."

1. The Tribunal accepts, as submitted on behalf of the Council, that the Practitioner has been on notice since 28 November 2025 that the Council seeks that a condition be imposed on the Practitioner's registration which prevents her from practising.
2. On 4 June 2025 the Tribunal made directions for the preparation of the Practitioner's appeals for hearing. The Practitioner has not complied with those directions. On 17 July 2025, the Practitioner's appeal was set down for hearing on 24 and 25 September 2025. On 17 July the Practitioner undertook to the Tribunal that she would not attempt to practise medicine as a medical practitioner, or otherwise, pending the determination by the Tribunal of her appeals. The Council submits, correctly in the Tribunal's view that, upon determination of the Practitioner's s 159 appeal the Practitioner will no longer be bound by that undertaking.
3. On 10 September 2025 the Tribunal made further directions with respect to the hearing of the Practitioner's appeal on 24 and 25 September 2025. On 15 September 2025, by consent, the Tribunal vacated the hearing scheduled for that date. The Practitioner is not suggested to have caused the adjournment. On that date both appeals were listed for hearing commencing on 11 February 2025.

1. The Council relied on evidence available at the time of the s 150 hearing and further evidence, all of which was known to the Practitioner, being:

(a) QBE Insurance documentation associated with the Practitioner's current WorkCover claim;

(b) Dr Sharat Lal, the Practitioner's treating Psychiatrist, who has diagnosed her with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed medication for her;

(c) Dr Mahesh Ramalingam, the Practitioner's General Practitioner, including for her WorkCover claim;

(d) Dr Sairaah Govindan Haridas, the Telehealth Medical Practitioner who provided a Medical Certificate for the Practitioner on 12 May 2025; and

(e) Dr Muhammad Mohsin, the Telehealth Medical Practitioner who provided a Medical Certificate for the Practitioner on 19 May 2025.

1. The Council submitted that the Tribunal would place substantial weight on Dr Samuels' report. That contention requires careful consideration.

1. QBE produced documents with respect to the Practitioner's workers' compensation claims (MC3, pages 3-72). The documents produced comprised numerous proforma workplace assessment reports provided by the Practitioner to QBE Workers Compensation (NSW) Ltd (QBE), with respect to a workplace injury(ies) assertedly sustained by the Practitioner on, variously, 12 December 2024, 23 December 2024 and 27 December 2024.
2. The Workplace Assessment Report 5 May 2025 (MC3, pages 8-19) with respect to an assessment of the Practitioner on 4 March 2025 by a rehabilitation consultant/provisional psychologist recorded that the Practitioner had "no current work capacity for any employment", that the Practitioner was due for a medical review on 18 April 2025, and reiterated that the Practitioner was "medically unfit to undertake suitable duties" in the medical practice in which she had been employed. None of the QBE or other reports before the Tribunal engages with the capacity for employment of the Practitioner, other than as a medical practitioner. Nor does any other evidence.
3. The report recorded the Practitioner as having asserted that between October 2024 and January 2025 it had become apparent that she was "being mistreated by her workplace manager after several incidents occurring", details of which were then recorded.
4. The Practitioner was reported as having confirmed that she was "highly distressed", and unable to return to work after her last day at work, which was 16 January 2025. The report recorded the Practitioner as saying that she had "managed for a long time", tacitly re-affirming her ADHD diagnosis, and saying that it was something "she had managed for a long time without it impacting her ability to work". During the s 150 proceedings before the Council, the Practitioner referred to her having ADHD whilst studying medicine at university. It appears that the Practitioner's condition was known when she was granted conditional registration, and was clearly known to the Council when it imposed conditions on her registration which did not prevent her from practising. The "predominant symptoms" the Practitioner reported were:

(a) ongoing fatigue and feelings of exhaustion;

(b) negative rumination;

(c) high levels of stress, resulting in impaired sleep and hair loss.

1. The Practitioner reported that Dr Ramalingam was her current GP and that she had "no current treatment" from a psychologist, although she "did not believe now is the appropriate time" to do so. The Practitioner was recorded as saying that "seeing a psychologist would overall prompt her to open up and release her emotions, which she believed would create difficulty in managing her current legal case/demands". The overlap between health and legal demands is a recurring theme in the Practitioner's reported statements.
2. The Practitioner reported having been prescribed Lorazepam, the dosage of which was unknown, the frequency of taking the medication was "as needed". Exhibit MC3 records the dosage, at [20] and [73]. The Practitioner was also recorded as having said that taking Lorazepam when required helped reduce muscle tension.
3. The Practitioner completed the Depression, Anxiety, Stress Scale (DASS-21) tests, the results of which were:

1. The explanatory table accompanying the DASS-21 scores records that a score of 12 is consistent with a severe depression.
2. The report recommended that the Practitioner be referred to a treating psychologist for weekly to fortnightly engagement commencing as soon as possible to assist to "reduce the severity and functional impact of her psychological symptoms".
3. Under the heading "Return to work options", the report recorded the Practitioner as reporting that she was "not currently in a position to consider a return to work, noting she was too overwhelmed with managing medicolegal investigation", that she could "not go back to her current workplace" that she was "upset and overwhelmed", and that she "did not know at this stage what her future may look like".
4. The report reiterated its earlier suggestion that the Practitioner "engage in psychological treatment as soon as possible, engaging in fortnightly treatment to assist with managing current stress and allowing for her to actively focus on her recovery and building capacity for return to some form of work".
5. The Certificates of Capacity/Certificates of Fitness provided in the form prescribed by the State Insurance Regulatory Authority, the monthly reports produced by QBE, and completed by the Practitioner consistently record her assertion, from December 2024, that her pre-existing factors which may be relevant to her current condition were "ADHD, anxiety, depression, prolactinoma needing regular investigations, need to attend medical appointments". Dr Ramalingam was the medical practitioner who usually completed the workplace forms and consistently marked the box "Has no current capacity for any work from" on a monthly basis. The presenting conditions which were reported did not materially alter in any of the reports provided over the course of 2025.
6. The Council relied on the reports in three ways:

(i) As admissions by the Practitioner that she was unfit for work on a continuing basis for a period of more than 12 months,

(ii) Dr Ramalingam's opinion that the Practitioner had no capacity for any work on a month to month basis from the end of 2024, and

(iii) QBE's acceptance that the Practitioner was unfit for work on the grounds consistently confirmed by Dr Ramalingam.

1. The Council relied on the reports of Dr Sharat Lal, the Practitioner's treating Psychiatrist. The Practitioner has been consulting Dr Lal since early 2024. Dr Lal does not consider that the Practitioner is impaired within the meaning of the National Law. In his report of 9 April 2025, Dr Lal recorded his diagnosis that the Practitioner suffers from Attention Deficit Hyperactivity Disorder, Inattentive Type, which he considered was "currently well controlled with medication".
2. Dr Lal confirmed that the Practitioner told him that the Council "may have concerns that she has Bipolar Disorder". Dr Lal stated that he had not "elicited any history or seen any signs of Bipolar Disorder or signs of any other serious illness in the Practitioner. The Council does not contend that the Practitioner's asserted impairment is caused, or contributed to by her having Bipolar Disorder.
3. In his report of 6 May 2025, under the heading "Risk assessment", Dr Lal recorded "No suicidal or homicidal ideation expression". The Practitioner's "treatment plan" included "recommended daily self-care activities and enjoyable pursuits". Dr Lal confirmed that the Practitioner's "current psychotropic medications" were Lisdexamfetamine Dimesilate 70mg 1 mane (commonly known by the brand name, Vyvanse), Dexamphetamine Sulphate 5mg 6 daily, Lisdexamfetamine Dimesilate 70mg 1 mane.
4. In his report of 4 June 2025, Dr Lal largely reiterated the opinions recorded in his previous report dated 9 April 2025, as he did in his report of 20 June 2025.
5. In a number of his reports, Dr Lal refers to the Practitioner's partner "providing support". The Tribunal has not seen or heard evidence from the Practitioner's partner.
6. In his report of 8 September 2025, Dr Lal recorded with respect to the Practitioner's past medical and psychiatric history "ADHD diagnosis mentioned as only other diagnosis apart from allegations".
7. Drs Ramalingam, Haridas and Mohsin provided medical reports stating that the Practitioner was unfit for work. Read in context, the reports assert that the Practitioner was unfit for work as a medical practitioner in a medical practice.

1. The Council urged the Tribunal to place substantial weight on the opinion evidence of Dr Samuels. It is not in issue that the Practitioner has not been prepared to attend an appointment with Dr Samuels. The Practitioner has for some time been unrepresented. Whilst some inferences could possibly be drawn from her refusal to attend an appointment with Dr Samuels, the Tribunal could not permissibly infer that the Practitioner's refusal to attend on Dr Samuels, or the other psychiatrists previously nominated by the Council constituted an admission by the Practitioner that she suffers from an impairment (Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34). The Practitioner's frequent references to legal and medico-legal concerns suggest that it would be unfair to draw adverse inferences in reliance upon her refusal to engage with the s 152B direction, or the refusal to see Dr Samuels which might be drawn in the case of a represented party. The Practitioner has for some time known that the Council was seeking findings that she was impaired in accordance with the National Law. Whilst a report from Dr Samuels may have been exculpatory in that regard, it may have had the opposite effect.
2. The Tribunal evaluates the weight to be given to Dr Samuels' report in accordance with the well established principles relating to the evaluation of expert opinion evidence (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21), notwithstanding that the rules of evidence do not apply in these proceedings.
3. Dr Samuels was referred to such relevant documentation as the Council was able to provide to him, which was essentially the documentation to which the Tribunal has referred. Dr Samuels considered it "noteworthy" that the Practitioner "has adopted a rather adversarial, legalistic approach to these matters, providing lengthy submissions suggesting fraud and malfeasance in the practice in which she worked, and also irregularities and abuses within the Health Regulatory framework". For the reasons recorded above, the Tribunal takes a more benign view of the Practitioner's approach to these proceedings. As will be seen, doing so does not prejudice the council's case.
4. Dr Samuels referred to the reports of Dr Lal and, fairly, recorded that, not having had the opportunity to assess the Practitioner, and better understand the issues raised in the proceedings, he could only make "limited" observations. Dr Samuels asserted that it seemed "clear" that the Practitioner "does have an impairment in the form of Attention Deficit Hyperactivity Disorder which is well documented". The latter suggestion is correct, and not in dispute. The former requires careful consideration. Dr Samuels said that there are "certainly suggestions from her behaviours in the materials I have reviewed, that Dr Purewal may have some personality dysfunction and pattern of interpersonal difficulties". Dr Samuels was well able to express that opinion, and it is entitled to significant weight.
5. After further apparent criticisms of the Practitioner [149]-[150], Dr Samuels recorded [151] that he would need to undertake a comprehensive psychiatric assessment before giving a definite opinion but stated that his "preliminary impression is that attentional problems have been impacting upon Dr Purewal's work performance, and personality factors have aroused concerns in the workplace, both perhaps resulting in inappropriate clinical interactions and led her not engaging with health regulatory authorities appropriately and fulfilling her professional obligations". Save for the reference to not engaging with regulatory authorities, those opinions are entitled to significant weight.
6. The matters to which Dr Samuels referred at [152] as possibly being "part of a mental disorder" are relevant to an assessment of whether, in all the circumstances, the Tribunal can find that the Practitioner is impaired, or, if the Practitioner is not found to be not impaired, whether, in all the circumstances, the health and safety of the public require that a condition preventing her from practising is placed on the Practitioner's registration. Dr Samuels referred [155] to the definition of impairment in s 5 of the National Law and reiterated his opinion [156] that the Practitioner "does have an impairment within the meaning of the National Law in regard to the diagnosis of ADHD, which has been confirmed by her treating psychiatrist and which does seem to impact upon her professional functioning. Personality issues and possibly pituitary issues may also be contributing to her impairment but these factors would need further evaluation." Given that appropriate qualification, the issue requiring determination is whether the Practitioner suffers from a physical or mental impairment, disability, condition or disorder which "detrimentally affects or is likely to detrimentally affect the person's capacity to practise the profession".

1. As is not in doubt, the Practitioner's appeal proceeds by way of hearing de novo, and is an external appeal pursuant to s 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The Practitioner is entitled to appeal against the Council' s 150 decision as of right. Section 159(1)(b) of the National Law invests the Tribunal with jurisdiction to hear and determine an appeal against a s 150 decision.
2. Section 150C(1)(b) of the National Law provides that a Council may at any time alter or remove conditions imposed pursuant to Subdivision 7 of Division 3 of the National Law. Subdivision of Part 3 of the National Law is concerned with "disciplinary powers of Tribunals". Section 149C which finds expression in Subdivision 6 - disciplinary powers of Tribunals provides for suspension of registration. The Tribunal is unable to identify, and the Council has not suggested, the source of the Tribunal's power to grant relief pursuant to s 150C of the National Law.
3. Section 159C(1) of the National Law provides that, on an appeal against a decision of a Council the Tribunal may (a) confirm the Council's decision, (b) set it aside, or (c) set the decision aside and make a new decision "being a decision that the Council could have made". The Tribunal is satisfied that, if the protection of the health and safety of the public is found to so require, the Practitioner having appealed pursuant to s 159 of the National Law, the Tribunal has jurisdiction and power to grant the relief sought by the Council, albeit the power to do so is enlivened by first setting aside the Council's s 150 decision. As is not in doubt, no part of the Tribunal's decision involves finding error in the s 150 decision of the Council. The Council could, pursuant to s 150(1)(b), have imposed a condition on the Practitioner's registration preventing her from practising.
4. The Council submitted, correctly, that the Tribunal is "required to stand in the shoes" of the Delegates of the Council at the s 150 hearing. No part of these proceedings involves the correctness of the decision of the Council which is under appeal. That is clear given that this is a hearing de novo (see Harris v Caladine(1991) 172 CLR 84; [1991] HCA 9).
5. The Council referred to the decision of the Court of Appeal in Medical Council of New South Wales v Smithson [2021] NSWCA 53. The Court of Appeal relevantly for present purpose, said at [20]:

"(ii) the subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (i) the protection of the health or safety of any person or persons (the first limb)"

1. The second "limb" to which their Honours referred is not relevant for present purposes.
2. Their Honours further recorded, at [20(iii)] that the proceedings are not "disciplinary and are not necessarily referable to a complaint". Their Honours confirmed, at [20(iv)] that decisions relating to judicial review of administrative decisions are inappropriate to the exercise required by s 159. Their Honours further recorded, at [20(vi)] that the Tribunal is to "make an assessment of the evidence and determine whether it is satisfied that it is appropriate to make one of the orders referred to in s 150(1). The s 159 hearing is not the occasion to consider, let alone determine, whether a practitioner is currently a fit and proper person to carry on the role". Their Honours accepted, at [20(vii)] that "the protection of the health and safety of any person or persons does not require that there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm".
3. It was further accepted, at [20(viii)] that it is "appropriate ordinarily" for the Tribunal in deciding whether to make an order under either limb of s 150 to "make an assessment about the nature and degree of risk to the health or safety of any person or persons" and the "consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised)".
4. Their Honours concluded, at [20(ix)] that the "essential question" which the proper conduct of a s 159 hearing de novo requires the Tribunal to address is whether "allowing the medical professional to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest".
5. To the extent that the Council may assert that the second "limb" of s 150 is enlivened in this case, the Tribunal does not accept that it does. The appeal concerns whether the first "limb" of s 150 is enlivened. In EFQ (a pseudonym) v Medical Council of NSW [2021] NSWCA 167, the Court of Appeal held, at [28]-[39], that a not to practise condition can be imposed pursuant to s 150(1) of the National Law. Standing "in the shoes" of the Council, if s 150 is engaged, the Tribunal may permissibly impose the not to practise condition sought by the Council pursuant to s 159(1)(c) of the National Law in lieu of the conditions imposed by the Council.
6. As recorded above, the Council seeks a finding that the Practitioner is "impaired". Section 5 of the National Law defines "impairment" in relation to a person as meaning that "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" relevantly for present purposes (a) "the person's capacity to practise the profession". As is not in doubt, a finding of impairment involves the Tribunal making two findings of fact:

(i) that the person has a "physical or mental impairment, disability, condition or disorder" which;

(ii) detrimentally affects or is likely to detrimentally affect the person's capacity to practise the profession.

1. In Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 132, at [346], Deane J said that "the word "likely" can, in some contexts, mean "probably", in the sense in which that word is commonly used by lawyers and laymen, that is to say more likely than not or more than a 50% chance ... It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50%. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable"." Which meaning of "likely" is applicable depends on the nature of the legislation and the consequences which must be considered "likely"". The learned author of Statutory Interpretation in Australia, 9th Ed., at p.433, suggests that "If a penalty can flow from a failure to predict the probability of the event in question, the higher standard of "likelihood" will probably be necessary" (Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301; 160 ALR 246; [1979] FCA 1570, RJE v Secretary, Department of Justice (2008) VR 526; [2008] VSCA 265). Although granting the relief sought by the Council may have a punitive effect on the Practitioner, the tribunal's orders are and remain protective.
2. As will be seen, the findings which the Tribunal makes in this case are on the balance of probabilities, "more likely than not," nothing ultimately turns on the meaning of "likely" which might be adopted.
3. In Tung v Health Care Complaints Commission & Anor [2011] NSWCA 219 the Court of Appeal held [55] that the Tribunal in making a deregistration order on the basis of impairment was erroneous. Their Honours referred [56] to the distinction between lack of competence and impairment. Their Honours referred to the definition of impairment to which the Tribunal has referred, and recorded that "a physical or mental impairment, disability, condition or other disorder which detrimentally affects the person's physical or mental capacity to practise medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practise medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practise medicine".
4. Their Honours referred to the decision in Lindsay v Health Care Complaints Commission [2010] NSWCA 194, at [170] recording that assumptions about impairment or lack of competence were erroneous, and that "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 practise carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgement, communication skills and clinical ability, and other relevant circumstances."
5. Their Honours said [59] that the Tribunal's finding of impairment was that the appellant's disorder was "of a nature that it will affect her capacity to practise medicine" which their Honours described as a "statement of futurity, reflecting "is likely to" in the definition of impairment". The Tribunal's finding was that "Given the stress attendant on the practise of medicine as a doctor, it is likely that her psychiatric state would eventually cause an impact on her patients". The expert evidence upon which the Tribunal relied for its findings was that although the appellant had not received any complaints about her clinical care and was able to "keep in check for a large part of the time" her disorder "sooner or later that type of stress would arise in a medical practice and would probably impact on her ability to interact with patients".
6. The Court of Appeal ultimately held with respect to the challenge to the finding of impairment [62] that given the "futurity" in the Tribunal's finding it was not open to the Tribunal to find that the Appellant was not competent to practise medicine. It was accepted that "there is room for some futurity in the definition of competence to practise medicine", but in terms of "present capacity" the practise of medicine is a "continuum and a practitioner whose physical or mental deterioration will inevitably and soon make him or her incapable could be said to lack sufficient physical or mental capacity to practise medicine". Their Honours concluded that, understood in the light of the reasons as a whole, the Tribunal's finding "was one of likelihood at an indefinite future time" and thus could not support a finding that the Appellant did not presently have sufficient mental capacity to practise medicine".
7. As the decision in Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 confirms, although a diagnosis of ADHD may mean that the Practitioner has a condition or disorder, that of itself does not mean that the second requirement of the definition of impairment is satisfied. The actual or likely detrimental effect of such condition or disorder must be established. The decision in Litchfield suggests that, if solely reliant on the Practitioner's ADHD, a finding of impairment could not properly be made.
8. In the light of the decisions in Lindsay and Tung, and the decision in Health Care Complaints Commission v Dr M [2020] NSWCATOD 13, it is not necessary to identify a diagnosis in accordance with the Diagnostic and Statistical Manual of mental disorders (DSM-5) or otherwise to satisfy the first requirement for a finding of impairment. The authorities suggest that whether an impairment satisfies the second requirement of the definition depends on factors such as:

(i) the nature and likely duration of the impairment;

(ii) the kind of practise carried on by the medical practitioner;

(iii) the extent to which the impairment interferes with a practitioner's judgement, communication skills and clinical ability and other relevant circumstances.

1. There is a material distinction between the Tribunal granting the relief sought by the Council pursuant to s 150(1)(b) of the National Law, without finding impairment, and granting that relief in reliance on a finding of impairment. If the Tribunal makes a finding of impairment, it is difficult to accept that s 150F of the National Law would not be engaged. As its terms make clear, the consequences of so finding potentially extend beyond protective orders. Whether the Practitioner is, or should be aware of that potential is unclear.
2. If the relief is granted on either basis, the Practitioner can apply to the Council pursuant to s 150 of the National Law to vary or remove the not to practise condition. It is readily apparent that the onus which the Practitioner would bear in those circumstances is different, and potentially more onerous, if the Tribunal makes the finding of impairment sought by the Council in these proceedings, than if, without making such finding, the Tribunal is satisfied that, in all the circumstances, it is necessary to impose the conditions in order to protect the health and safety of the public. If the Tribunal found impairment on the basis of the Practitioner's ADHD, the evidence suggests that the Practitioner may be unable to ever discharge that onus.

1. As identified earlier, the evidence which informs the Tribunal's decision comprises the Practitioner's repeated representations over a period of more than 12 months, and continuing that she "has no current capacity for any work", that she was "unsure of" any "estimated time to return to any type of employment" and that "factors affecting recovery" included psychological distress. Dr Ramalingam provided the appropriate certification for the Practitioner's monthly claims for workers compensation benefits. Without suggesting that the Practitioner is estopped by her representations from disputing the veracity or accuracy of those representations, there is no evidence before the Tribunal that the representations were untrue or inaccurate. It is presumed that, as a responsible medical practitioner, Dr Ramalingam certified that the Practitioner was unfit for work because, in his professional opinion as her treating practitioner, that was the case. The evidence does not provide a basis for displacing that presumption. The Practitioner's previous allegations of work induced or related stress (Dr Velusamy on 10 February 2023 (MC1, p.835) and Dr Ramalingam on 20 October 2023 (MC1, p.908)), suggest that, however it is described, and whatever its cause(s), the Practitioner has struggled with the stress of practising medicine for a significant time.
2. Arising out of the Practitioner's representations to it, the workers' compensation insurer's repeated and ongoing acceptance that the Practitioner has no current capacity for any work is material to the Tribunal's decision. The only "work" for which the Practitioner's capacity has been, and is relevant, is as a medical practitioner. It can be assumed that the workers' compensation insurer would not provide continuing workers' compensation benefits to the Practitioner if it were not satisfied that her representations were reliable.
3. As the terms of his reports confirm, Dr Lal's opinion that the Practitioner is not impaired was limited to, and at least inferentially, based on his view that her ADHD diagnosis did not of itself render the Practitioner impaired. As her treating psychiatrist, accepting Dr Lal's opinion militates against finding impairment, but does not militate against finding, on the whole of the evidence, that the protection of the health and safety of the public requires the Tribunal to impose the not to practise condition sought by the Council.
4. The weight to be given to Dr Samuels' evidence is limited, as Dr Samuels properly recognised in his report. On balance, the greatest significance of Dr Samuels' evidence relates to the Practitioner's refusal to engage with the process of evaluation of her capacity to safely practise medicine. Whilst the Practitioner may have, erroneously, assumed that, if she spoke to him, Dr Samuels would provide a report which was unhelpful, or damaging to her case, the reality is that, if there is no reason for the Practitioner to not be practising, speaking to Dr Samuels, given that he was the expert appointed by the Council, would have potentially provided compelling evidence in support of the Practitioner's case. Giving comparatively little weight to Dr Samuels' opinion with respect to ADHD as the foundation of impairment does not mean that his opinions with respect to the matters identified above are not entitled to significant weight. They are, when regard is had to the critical question explained by the Court of Appeal in Smithson.
5. In the absence of evidence implying that a benign view now be taken of it, the evidence before the Council with respect to the consultations that gave rise to the imposition of conditions on the Practitioner's registration remains concerning. The Tribunal is entitled to have regard to that evidence. The Practitioner has not adduced any evidence, from herself or experts, suggesting that, if she were permitted to practise, even with the conditions previously imposed by the Council, there would not be a risk to the health and safety of the public.
6. Although, as the authorities recognise, finding impairment does not require a definitive diagnosis, and a combination of behaviours may comprise a "condition" pursuant to s 5 of the National Law, when regard is had to the "likely" effect of the condition in order for it to constitute an impairment, there must be some identification, or definition of the condition. Other than by reference to ADHD, the Council has not suggested how the Practitioner's alleged "condition" should be identified, or defined. Without more evidence capable of providing a logical connection with ADHD which constitutes a condition, finding impairment in this case is problematic.
7. For the reasons recorded above, and having regard to the implications of so finding, the Tribunal is not comfortably satisfied that the Council has established that the Practitioner is impaired within the definition of "impairment" in s 5 of the National Law.
8. The Tribunal is comfortably satisfied however that, on the whole of the evidence discussed above, to allow the Practitioner to resume practise, even with conditions, would constitute an unacceptable risk to the health and safety of the public. The Practitioner has not practised since conditions were imposed on her pursuant to s 150 of the National Law. The evidence does not enable the Tribunal to find that the Practitioner could practise medicine safely in accordance with those, or any other conditions which might be imposed on her registration.
9. The Tribunal will accordingly, pursuant to s 159C(1)(c) set aside the decision of the Council and make a new decision, which is that a condition that the Practitioner not practise medicine be attached to her registration.
10. The Tribunal does not find that there is an actual risk to the health and safety of the public, it being sufficient to find that there is potential for such risk (Gosh v Medical Council of New South Wales [2020] NSWCA 122). The Practitioner's refusal to engage with the Council, and the Tribunal's directions, and refusal to participate in the hearing of the appeal which she commenced have limited the Tribunal's ability to evaluate the potential for such risk, or record the reasons for its findings with respect to it. The evidence considered in these reasons establishes that the risk of harm to the health and safety of the public is substantial if the Practitioner is permitted to practise. The evidence also establishes that the risk of such harm is significant.
11. As was held in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, and approved in Gosh, an order under s 150 of the National Law is in the nature of an interlocutory order. It is not in doubt that if the Tribunal makes the not to practise order sought by the Council, the Practitioner can in the future apply for the removal or variation of that condition pursuant to s 150(a) of the National Law. The Medical Council of New South Wales is the appropriate review body for the purposes of Part 8, Division 8 of the National Law.

1. Prima facie, the Council is entitled to its costs of the appeal (Health Care Complaints Commission v Philipiah [2013] NSWCA 342). The Tribunal will however order that the Practitioner have leave to make submissions in opposition to such order.

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the name of any patient referred to in the proceedings or in any document tendered in evidence in the proceedings is prohibited.

(2) Pursuant to s 159C(c) of the Health Practitioner Regulation National Law 2009 (NSW) the Tribunal imposes a condition on the registration of Dr Amanpreet Purewal prohibiting her from practising medicine.

(3) The Appellant pay the Respondent's costs of the proceedings as agreed or assessed on the ordinary basis.

(4) If the Appellant seeks some other order with respect to costs, the Appellant is to file and serve written submissions not exceeding 7 pages in length inclusive of attachments in support of such order within 21 days of the Tribunal's decision.

(5) If the Appellant files submissions pursuant to order 3, the Respondent file and serve written submissions not exceeding 7 pages in length inclusive of attachments within 42 days of the Tribunal's decision.

(6) If a party filing submissions pursuant to orders 3 or 4 opposes an order dispensing with a hearing of a costs dispute pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) submissions in support of such opposition are to be included in those submissions.

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.