Wickremesinghe v Medical Council of New South Wales

Judgment 1Dr Shan Wickremesinghe ("the applicant") filed an appeal document titled "Notice of Application for Review or Appeal" dated 31 May 2011, pursuant to s 159(1)(c) of the Health Practitioner Regulation National Law (NSW) ("the National Law") . 2The appeal, as filed, was "against the decision of the Medical Council of New South Wales ("the Council") given on 15 February 2011 to impose restrictions on the appellant's employment". 3Mr M Scott of counsel, who appeared for the applicant, sought leave to amend the appeal, which was granted, as follows: "... [an appeal] against the decision of the Medical Council of New South Wales given on 15 February 2011 to continue and not remove the conditions or restrictions imposed on the appellant's employment." 4The grounds of appeal were: "... that the restrictions are unfair and unjust and prevent the appellant from obtaining active duties as a medical practitioner." 5Ms M Ward of counsel, who appeared for the Council opposed the relief sought. However, the Council proposed some minor amendments to the conditions. 6The applicant agreed to registration conditions (practice and health conditions) at an Impaired Registrants Panel ("IRP") conducted in New South Wales in June 2008. He was granted registration in the Australian Capital Territory ("ACT") on 1 August 2008, with the same conditions as in New South Wales. He worked in the ACT until December 2009. The applicant applied to the ACT Medical Board on 18 December 2009 to have his conditions eased. The application was rejected with the Panel recommending that the conditions be tightened, although this did not eventuate as he appealed that decision. 7On 14 December 2010, the IRP in New South Wales rejected an application to have the conditions of registration lifted. 8The IRP's decision dated 14 December 2010 followed a consideration of the facts and material set out below.

Background 9The applicant is 37 years of age. He was unemployed at the date of this hearing. He is currently undertaking a Masters of International Public Health degree ("MIPH") and a Bachelor of Arts degree in Languages at the University of New South Wales. 10The applicant was registered in New South Wales as a medical practitioner on 6 January 2003 and commenced employment as an intern at the Royal North Shore Hospital ("RNS"). In 2003, the applicant had a registration interview with the New South Wales Medical Board ("the Board") (now the Council), following notification from RNS that his performance as an intern was inadequate. 11The Board recommended that the applicant complete a further three terms after completion of his initial five terms with mid-term and end-of-term reports to be submitted. 12On 23 October 2004, the applicant was granted general registration status. 13In February 2005, the applicant commenced employment at Wagga Wagga Base Hospital as an "Out of Quota PG Year 2". 14On 2 September 2005, Dr Elizabeth Tooth, Staff Specialist at Wagga Wagga Base Hospital, Greater Southern Area Health Service, complained to the Board in respect of the applicant's clinical competence and compliance with administrative requirements. She also raised the possibility of the applicant suffering from depression. 15In February 2007, the applicant attended a performance interview with the Board. Although the Board recommended that no further action be taken in regard to the complaint, the Board referred the matter to the Health Committee and recommended that a psychiatric assessment be obtained and that the applicant seek a mentor. The Board referred the applicant to Dr Anthony Samuels, a Board-nominated psychiatrist, who provided a report dated 19 June 2007. Dr Samuels noted that the applicant appeared to have difficulties with anxiety and depression throughout medical school and had been referred to Dr George Jacobs, Consultant Psychiatrist, who treated him with citalopram. Dr Samuels recommended that the applicant renew contact with Dr Jacobs. He did not consider the applicant to be an impaired practitioner. He was unclear as to whether the applicant's presentation reflected underlying depression or anxiety, or was a manifestation of his personality style. After considering Dr Samuels' report, the Health Committee resolved to take no further action in relation to the applicant's health. 16On 14 April 2008, the applicant attended a performance review meeting with Northern Sydney Central Coast Health ("NSCCH"). By letter dated 21 April 2008 from NSCCH, the applicant was advised that the meeting served as a first warning due to a number of concerns in relation to his performance relating to clinical practice, documentation, handover and professional attitude. The letter advised that although it was agreed that the parties would meet in four weeks time, further clinical and professional issues had come to light since the meeting that needed to be addressed as a matter of urgency. The applicant was asked to attend a second formal meeting in accordance with the provisions of the Counselling and Disciplinary Policy to discuss late completion of patients' medical records; completing the physical examination and discussing the management with a senior in a timely manner and arriving late for shifts. 17On 24 April 2008, Dr Anne Clarke, Director of the Emergency Department for Hornsby Ku-ring-gai Hospital, wrote to the Board raising concerns about the applicant's clinical skills, his communication skills and his mental health. Relevantly, Dr Clarke said: "I am deeply worried that due to the ongoing personal and mental health issues Shan may become a danger to himself and others." 18The Board sought a further independent assessment of the applicant's health from Dr Samuels. Relevantly in his report dated 14 May 2008, Dr Samuels stated that: "whilst there is no clear cut evidence for a major affective or psychotic disorder ... There is a small possibility that we are observing the emergence of a psychotic process but this seems to be less likely an explanation for his problems in the workplace than a personality-based explanation. He certainly does present with some quite rigid inflexible personality traits and there certainly are a number of schizoid features to his personality. ..." 19Dr Samuels concluded that the applicant was suffering from an impairment which he regarded at that stage as being predominantly personality-based, but could possibly indicate an emerging mental disorder. He recommended ongoing contact with Dr Jacobs in consultation with his general practitioner, regarding his general health and a review by a Board-nominated psychiatrist in six months time. 20On 19 May 2008, Hornsby Ku-ring-Gai Hospital advised the Board that the applicant was working at Wollongong Hospital while suspended from Hornsby Ku-ring-gai Hospital awaiting the outcome of the Board review on 20 May 2008. The NSCCH wrote to the applicant enclosing transcript of his performance review and advising that his employment at Wollongong Hospital was in breach of conditions that he would not start secondary employment without seeking the Board's approval. 21On 24 June 2008, the IRP Inquiry was held, at which time the applicant had begun work in the ACT. The applicant agreed to the following registration conditions: "1. To work only in a hospital position approved by the NSW Medical Board. 2. Dr Shan Wickremesinghe is to nominate a supervisor prior to commencing employment, to be approved by the NSW Medical Board, to monitor and review his clinical practice and compliance with Practice Conditions in accordance with Level 2 Supervision as contained in the NSW Medical Board's Guidelines for Supervision (Policy PCH 7.2). All costs associated with the supervision arrangement are to be borne by Dr Shan Wickremesinghe. Dr Shan Wickremesinghe is to ensure that: (a) He and the supervisor meet on a weekly basis for at least one hour, the first meeting to occur within one week of being advised by the NSW Medical Board that his nominated supervision has been approved. (b) At each meeting they review his work progress and address any relevant work-related or professional matters. (c) At each meeting, the supervisor completes a record of matters discussed at the meeting in a formal prescribed or approved by the NSW Medical Board. (d) The supervisor forward to the NSW Medical Board, initially on a monthly basis, a Supervision Report in a formal prescribed or approved by the NSW Medical Board. (e) The supervisor informs the NSW Medical Board immediately if there is any concern in relation to Dr Shan Wickremesinghe's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. Dr Shan Wickremesinghe authorises the supervisor to provide such information to the NSW Medical Board. (f) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the NSW Medical Board within 21 days of the cessation of the original supervisory relationship. 3. To work only with a senior practitioner on site at all times. 4. To seek NSW Medical Board approval prior to changing the nature of place of practice. 5. To only undertake locum positions greater than 4 weeks duration and in one location, in accordance with the NSW Medical Board's Locum Policy (Policy H10). Health Conditions

Relevant statutory provisions 35The objects of the National Law are set out in s 3 which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for- (a) the regulation of health practitioners; and ... (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (3) The guiding principles of the national registration and accreditation scheme are as follows- ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 36Definitions are set out in s 5. It includes: 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 (b) for a student, the student's capacity to undertake clinical training- (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 37An appeal is dealt with pursuant to the following provisions: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal for a health profession- ... (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. ... 159C Tribunal's powers on appeal [NSW] (1) On an appeal, a Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. 38Proceedings are to be conducted by the Tribunal as follows: ... 167B Conduct of proceedings [NSW] (1) A Tribunal may conduct proceedings on an inquiry or appeal as it thinks fit. (2) Proceedings of a Tribunal are to be open to the public except when the Tribunal otherwise directs. (3) A Tribunal is not to direct that proceedings are to be closed to the public unless satisfied that it is desirable to do so in the public interest for reasons connected with the subject-matter of the inquiry or appeal or the nature of the evidence to be given. Schedule 5D Proceedings before Professional Standards Committees or Tribunals [NSW] 1 Definition [NSW] In this Schedule- Committee means a Professional Standards Committee. 2 Proceedings generally [NSW] In proceedings before it, a Committee or Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. ... 5 Evidence of other proceedings [NSW] (1) A Committee or Tribunal may receive and admit on production any of the following, as evidence in any proceedings- ... (d) a finding, decision or determination of a Professional Standards Committee established under this Law or a corresponding prior Act; (e) a decision of a performance and professional standards panel established under the Health Practitioner Regulation National Law;

Principles to be applied in determining the question raised in the application. 39The onus is on the applicant to satisfy the Tribunal, on the balance of probabilities, that the conditions imposed on his registration should be removed.

Evidence of the applicant 40Mr Scott tendered a folder which was described as a "Court Book". The Index to the Court Book indicated that it contained the following:

1. Affidavit of Shan Wickremesinghe and Exhibit filed on 4 November 2011.
2. Affidavit of John Francis Morrissey dated 21 November 2011 including Dr Jacobs' report, Dr Gavaghan's letter and Dr Riddell's letter.
3. Dr O'Conner's report and Dr Allnutt's report (included in Medical Council of NSW's material).
4. Affidavit of John Francis Morrissey dated 24 November 2011 including Dr Gordon's report.
5. Notice to produce received from NSW Medical Council dated 8 December 2011.
6. Letter to Bridget Andersons of NSW Medical Council dated 15 December 2011 enclosing documents relating to Notice to Produce (100 + pages). 41Mr Scott read an affidavit of the applicant affirmed on 3 November 2011. The applicant was required for cross-examination. The applicant dealt with the complaint made to the Board during his internship at Royal North Shore Hospital; the complaint made by Dr Tooth while he worked at Wagga Wagga Base Hospital; the work he had undertaken since completing his residency at Royal North Shore Hospital and Wagga Wagga Base Hospital; the complaint at Hornsby Hospital; his meeting with the IRP on 24 June 2008; his work at Calvary Hospital in the ACT; his meeting with the ACT Medical Board on 18 December 2009; his appeal from the decision of the ACT Medical Board and his current situation. 42Extensive documentation was annexed to his affidavit. This included the transcript of an interview report dated 28 October 2003 in respect of a complaint lodged during his internship at Royal North Shore Hospital; the minutes of the meeting between the applicant and Dr Tooth of 23 August 2005 in respect of the complaint at Wagga Wagga Base Hospital; the applicant's detailed response to the complaint by Wagga Wagga Base Hospital to the Board; the performance review interview report dated 5 February 2007; the report of Dr Samuels dated June 2007; the minutes of performance review meeting of 14 April 2008; the letter of complaint by Dr Clarke of Hornsby Hospital; the report of Dr Samuels dated 16 June 2007; report of Dr Samuels dated 14 May 2008; the IRP decision dated 24 June 2008; report of Dr Jacobs dated 14 March 2009; the report of Dr P Bhandari dated 19 August 2009; the report of Dr Jacobs dated 2 August 2009; the letter from the applicant to ACT Medical Board dated 13 December 2009 in respect of problems with the interpretation of registration conditions; the report of Dr GT Klopfer, Medico-Legal Adviser and the report of Dr Jacobs dated 23 October 2011. 43During oral evidence the applicant stated that he wished to work in an area of public health doing the type of work he had carried out at Calvary Hospital. No complaint was brought to his attention whilst he worked at Calvary Hospital, either by any patient or from any doctor or consultant. 44The applicant described the jobs for which he had applied, being medical positions down to the level of first year residency. He had also applied for a handful of jobs in laboratory collecting, which were not medical practitioner positions; one clerical assistant position working in medical records in the Prince of Wales Hospital, and also a pathology laboratory position which required no prior medical experience. The most senior position for which the applicant applied in medicine was basic physician training first year, through the St George Hospital network. 45The applicant has completed his intern and residency years. He has worked an additional five years since that time, being a total of seven years. He has never worked in a formal registrar position, but worked in career medical officer positions and locum registrar positions. His evidence was that in all his application for positions, he provided details of the conditions attached to his registration. He said he also raised the conditions at all interviews. He said that the interview panels at several different hospitals stated that he had been offered the interview based on his prior experience. However, some hospitals had made it clear that the conditions were "possibly an insoluble barrier to offering him employment, even if he was the successful candidate". Often, clarification of the conditions was required, which came after a position was offered and the applicant informed that the hospital could not realistically comply with the conditions. 46The applicant was extensively cross-examined. The applicant did not agree that the IRP had concerns about three inter-relating areas concerning his practice, clinical skills, and his communication and mental health. His evidence was that the IRP's conclusion was because of the prior complaints. His impression was that the IRP undertook almost an administrative task. He acknowledged that the IRP had the complaint made by Dr Clarke which identified three areas of concern, being the applicant's clinical skills, communication skills and mental health. The applicant disputed each of the claims. He disagreed that he had any mental health problem whilst working at Hornsby Ku-ring-gai Hospital. However, he accepted that the three areas referred to had echoed throughout his career in medicine. 47The applicant agreed that complaints had been made against him during his internship at Royal North Shore Hospital, which resulted in him being required to participate in an extended internship because his supervisor was not prepared to recommend full Board registration. The complaints related to clinical competence; inappropriate dose of insulin to one patient; multiple attempts to insert a cannula, and the failure to recognise the need to seek assistance from a more senior doctor. The applicant denied that he had a problem with patient safety whilst working at Port Macquarie Hospital. His evidence was that there was a lack of supervision whilst he worked at that hospital, as his supervisor was absent, on leave, for much of the time that he was at that hospital. The applicant disputed the complaints made by Dr Tooth, although he admitted that the complaints were similar to those made against him when he worked at Hornsby Ku-ring-gai Hospital. 48The applicant accepted that there were certain specific complaints about specific events which he had answered in writing. He stated that at no time had he claimed to be perfect, or claimed to have a level of ability above what would have been expected of him, noting his level of experience. He further accepted there was more that he needed to learn and there were things he could have done better, which have come with experience in the following years. 49The applicant was taken to Dr Samuels' report of May 2008, in which Dr Samuels recorded that the applicant had admitted that he had a problem when he worked. He admitted the working nights at Tamworth and could not cope with the workload. He also admitted, according to the report, that he made some decisions that were not optimal and had been basically advised to work only day shifts. The applicant could not recall discussing these matters with Dr Samuels. 50The applicant was taken to Dr Pelkowitz's letter set out at [25]. He denied avoiding eye contact and being tired and unfocused, as observed by Dr Pelkowitz. The applicant accepted that there were issues in respect of his communication skills raised at both Royal North Shore Hospital and Wagga Wagga Base Hospital. When asked if he could understand that nurses may have been concerned if they saw him watching DVDs, the applicant had difficulty acknowledging that nurses may have had such a concern. 51The applicant was cross-examined in respect of the allegation that he had said whilst working at RNS that his goal in life was "to find a high building". He gave the following evidence: Q. According to the letter from Dr Clarke, an allegation was made that you told colleagues that your goal in life is to find a high building. Now do you dispute saying that, do you? A. I don't dispute saying that. I do dispute entirely the interpretation of the event. Q. It's a pretty extreme thing to say, isn't it? A. In the context, no. Q. Whatever the context was though, the colleagues that heard it obviously thought that it was a serious thing to say and that's why they reported that to Dr Clarke, would you agree with that? A. No. Q. Did you say it was said in jest, in a light-hearted moment? A. It was part of a private conversation. Q. Do you have any explanation as to how it, then, at that time, featured in the complaint from Hornsby hospital? A. Yes. Q. What's that? A. The original context was a private conversation between myself and one other doctor I worked with. They already knew of my displeasure of the general environment created by Dr Clarke. And using a hyperbolic statement that was to state my displeasure, that is, to the state of affairs in Hornsby hospital . At that time the person that that comment was intended to, took it in exactly the context that it was represented. As for how it got into the report by Dr Clarke, Dr Clarke has taken every possible thing she could find during my time there, three months, regardless of the circumstances or how I was saying it and how it was actually put in her letter. I have responded to each of those claims in writing with an explanation to the New South Wales Medical Board and elsewhere. Q. Do you concede that there was an occasion in the ED when you slammed down a phone receiver without taking a call because you were angry with the nursing staff? A. Yes. Q. Would you like to explain to the Tribunal what happened on that occasion? A. Yes. Q. Then you can do so now? A. Okay. By that time, Dr Clarke had clearly made it very hostile and not a conducive environment for me to work in, at that time this phone was ringing, several people were in closer proximity to this phone and not answering it and was demanding to know why I wasn't answering this phone. I did take it and slam it down straight again. This is not an occurrence that I am proud of but it was a real lapse during my time at Hornsby and only one time. 52The applicant was also cross-examined in respect of a comment that he made that he would like to see Hornsby and Royal North Shore Hospitals blown up. The applicant denied making this comment in his affidavit. His evidence was: "if I had the money I would purchase the place and pay to have it demolished. Other hospitals should be demolished as well including North Shore, Manly, Ryde and Wagga." 53The applicant was not sure if he included Manly in his statement, because he had less problems there. The applicant gave the following evidence: Q. Do you say that it was just a misunderstanding and that somehow your comments about wanting to purchase it and to have it demolished was misconstrued as a comment about wanting to blow the hospital up? A. No. No. I think it's deliberate misrepresentation. Q. On the part of Dr Lander? A. Yes and Dr Clarke. Q. Do you have a theory as to why Dr Lander and Dr Clarke would deliberately misrepresent? A. At that point, Dr Clarke especially was extremely hostile towards me. Any situation regardless of whether I did something or did not do something was used as a point of attack, in writing or verbally, attempts to make my work time there working as unpleasant as possible. The person who I actually had this conversation with had actually later communicated in writing saying that they had, words to that effect, that they manipulated into presenting that information in such a fashion and she offered, if I ever needed to her help in future of any situation relating to this she could be contacted. Q. Do you have that piece of writing? A. I do. Q. Why is it not included in the material you filed? A. You would have to ask my legal team. Q. Do you think that if Dr Clarke had received a report that you had threatened to blow up the hospital and that you were looking for a tall building to jump off, if she had heard an account alleging you said those things, do you think she would be well within her rights to contact the board and to express her concerns about your mental health? A. No. Q. Why not? A. At that point, she was clearly acting not acting in good faith. Q. But if she had been told that that is what you had actually said on 2 occasions wouldn't she have grounds to be concerned about your mental health and to contact the authority? A. She made it quite clear that she was not actually interested in my career and my training or any other aspect of my work at that time and at that point, I do not at that point any referral to the board wouldn't have been in the interests of my well being. DEPUTY CHAIRMAN: Q. What you have been asked is to assume that if Dr Clarke heard these things and then what conclusions that Dr Clarke came to that being that she was entitled, assuming that she thought you said them, to come to the conclusion that your mental health was in issue? A. At that point as opposed to any other person, any generic person, her specific case, I can't speculate as to the past, what would have been the case. She was making things obviously difficult for me at that time. Q. Assume it wasn't Dr Clarke but let's call the doctor, Dr A. If Dr A heard that you had made those comments do you think that Dr A would be entitled to come to the conclusion that there was some mental health issues? A. I would consider it reasonable if they asked about the circumstances, then I would explain it and after my explanation, as I have given here, that would be the end of the matter. 54The applicant stated that when he commenced at Calvary Hospital, he provided a copy of the conditions to Dr Andrew Gordon, Consultant Physician, and had discussions with him concerning what the conditions required. The discussions included the requirement that he should meet on a weekly basis with Dr Gordon. His evidence was that this was achieved by him accompanying Dr Gordon on all rounds separate to his working. The applicant's evidence was he documented the time and hours he worked with Dr Gordon. However, the documentation has been lost. 55The applicant said that he had not taken citalopram since the end of 2008. The longest period that he took it for was about six months and this occurred on at least two occasions. He agreed that there had been occasions when, despite citalopram being prescribed by his doctor, he had not taken the medication. He said this happened on at least two occasions because he did not see the benefit and it made him feel ill. He said that he had discussed this with Dr Jacobs who had always taken the view that he was not going to force him to take the medication. He said that he had taken himself off citalopram on approximately two to four occasions over the last 10 to 15 years. He did not believe that he had obtained any benefit whatsoever from citalopram. 56The applicant was taken to Dr Samuels' report of 10 November 2010, where Dr Samuels recorded that Dr Jacobs had prescribed citalopram for the applicant in 2010 and that the applicant had taken himself off citalopram for the period February 2010 to August 2010. The applicant agreed that this was the position and that he had been taking citalopram religiously as at the date that he saw Dr Samuels. The applicant conceded that his earlier evidence that he had stopped taking citalopram, possibly at the end of 2008, was incorrect. He said that he was not currently being prescribed citalopram. His evidence was that he had stopped taking citalopram after he saw Dr Samuels. 57The applicant was asked whether he believed that he would be assisted by attending a course or training aimed at assisting his interpersonal communication skills with colleagues and other hospital staff. His evidence was that he did not believe such a course would assist him. The reason for this was that he had reached a level through experience and interaction with staff through his change of hospitals and locations that had required him to work in new environments and interact with staff in an acceptable fashion.

Evidence of Mr Morrissey 58Mr Scott read an affidavit of John Francis Morrissey, dated 21 November 2011. Mr Morrissey is the solicitor for the applicant. He annexed to his affidavit a medical report from Dr Jacobs dated 23 October 2011 which has been referred to earlier in these reasons. 59Mr Morrissey also annexed copies of letters to Dr Terry Gavaghan, Consultant Physician in General Medicine, Consultant Gastroenterologist and Endoscopist, and Dr James Riddell, Consultant Gastroenterologist and General Physician, both of whom had had some dealings with the applicant during his time at Calvary Hospital. Mr Morrissey asked each of these doctors to give an indication of their dealings with the applicant and to advise how he related to each of them and the hospital's staff. The doctors were also invited to provide any comments in respect of their supervision and work with the applicant whilst he worked at Calvary Hospital. 60Mr Morrissey annexed a letter dated 11 November 2011 from Dr Gavaghan which read: I am aware of Dr Shan Wickremesinghe. I am aware that he has been placed under medical registration with restrictions but I have always felt that this was very unreasonable. I am not aware of any of the incidences that lead to Dr Wickremesinghe's restriction being placed upon him by the Medical Board, but I remember working with Dr Wickremesinghe over the years when he worked in Calvary Hospital mainly as a relieving doctor and I always found him to be an extremely polite and conscientious doctor - I had absolutely no problems with him and I was very surprised when I heard that he was having trouble with the Medical Board. I do not know why he has this trouble and I am not aware of any circumstances in my exposure to Dr Wickremesinghe which would warrant such restrictions. Dr Wickremesinghe has always been to my mind a very professional and conscientious young man who has tried hard in his capacity working as relieving doctor and I have no problems with his employment. I would support that he be given medical registration without restrictions. I'm not sure whether he wishes me to become aware of the reasons for his restrictions but I think they are extremely onerous. I would be happy if he wishes me to be informed about these matters to reconsider my comments. 61Mr Morrissey also annexed a letter from Dr Riddell dated 17 November 2011 which read: Thank you for your recent letters dated 3/11/11 and 16/11/11 in regard to Dr Shan Wickremesinghe. I have subsequently rung and spoken with one of your colleagues in regard to this matter and am now supplying you with this written information. I am aware that Dr Wickremesinghe has had his medical registration revoked and this is now a nationwide order. This is making it very difficult for Dr Wickremesinghe to maintain medical skills or to make a reasonable income. I am not privy to the background as to why Dr Wickremesinghe's practising rights have been restricted and then removed. You have asked me to provide a reference for him. I have worked with him in a limited capacity over a period of perhaps a year or more when he was functioning primarily as a medical officer on the private wards of Calvary Private Hospital here in the ACT. He would oversee some patients that I had in from time to time and would be involved in adjusting the medication charts or assessing them if they became unwell or had symptoms when I was not immediately available. Dr Wickremesinghe always seemed to function well at this level but was cautious as befits a relatively inexperienced Dr and would generally call me if there was anything more than a trivial problem that had to be dealt with. He was very careful in this regard. His decision making and clinical management was always appropriate as expected of a junior medical officer. I am not specifically aware first hand that there were any major issues with Dr Wickremesinghe in his dealings with my patients, with me, with senior medical staff or with allied health staff although as I say we had occasional interaction and our interactions were generally at a superficial level. I would be pleased to provide more information if this is necessary. 62The applicant also relied on a report from Dr Nick O'Connor, Director Clinical Services, Concord Centre for Medical Health, dated 23 November 2011. The applicant had been referred to Dr O'Connor by the Medical Council of New South Wales. A copy of Dr O'Connor's report was also included in the material relied upon by the respondent. 63Dr O'Connor had a two hour assessment consultation with the applicant. He was provided with copies of the material that has been referred to earlier in this judgment under the heading "Background". Dr O'Connor's opinion was as follows: In my opinion Dr Wickremesinghe is not currently suffering from impairment as defined by the Health Regulation National Law (NSW). He is not currently suffering from a psychiatric disorder such as a psychosis, mood or anxiety disorder. However, Dr Wickremesinghe has a clear history of anxiety symptoms, depressive episodes and one episode of manic mood elevation in response to an SSRI antidepressant. He therefore will be vulnerable to future episodes of mood disorder. His apparent lack of understanding and acknowledgement of this vulnerability is concerning. Dr Wickremesinghe has an unusual personality style with narcissistic, obsessional features. He may also have schizoid and Asperger-like features as described by Dr Jacobs. He certainly prefers his own company. According to Dr Jacobs, Dr Wickremesinghe's personality style and interpersonal relations have matured and improved. Dr Wickremesinghe appears highly motivated to return to practicing medicine. I am unable to determine whether these personality features are sufficient to meet the test for impairment (likely to detrimentally affect the person's capacity to practice). Dr Wickremesinghe's medical knowledge appears to have improved according to his own account and the positive reports he showed me from supervisors. His obsessionality, over-attention to detail, lack of flexibility in interpersonal situations and (what appears to me at interview) grandiose view of his medical skills may cause further problems. The history of numerous problems relating to clinical performance and interpersonal clashes indicate a risk of future similar problems. Against this is Dr Jacob's report that Dr Wickremesinghe has matured and mitigated some of the inflexibility of his approach in the work place. He may also mature with age and experience. Recommendations In my opinion if Dr Wickremesinghe is re-registered as a medical practitioner, he would be best advised to be under clinical supervision/mentorship for a period of at least one year. He should also continue to receive the support of Dr Jacobs. 64The applicant also included in the Court Book the report of Dr Allnutt, which has been referred to earlier in this judgment. 65Mr Scott read a further affidavit of Mr Morrissey dated 24 November 2011. Relevantly, Mr Morrissey annexed a letter from Dr Gordon to Dr Pelkowitz dated 8 January 2010. The letter read: "1. I am writing to you in relation to Dr Wickremesinghe, Shan, in relation to his work as a doctor at Calvary Hospital. 2. My concerns are: a. his reintegration into the medical work-force, b. his general well being, c. my duties as his supervisor (I am not able to supervise him if he does not work at Calvary Hospital). 3. He and I would appreciate your assistance and commitment. Detail. 4. There was an episode in the past, which is not part of this letter, but resulted in a requirement that he work in a supervised manner for a set period of time. I am not sure of the duration nor the nominal starting and finishing dates; these do not manner (sic) for this letter. These timings do matter to Shan. 5. He told me that he is concerned that, without notice, his employment at Calvary Hospital was terminated. He thinks that this is unfair. 6. Without regular employment he cannot be supervised and thus cannot be re integrated into the medical workforce. It also means that he has no regular income. 7. I had been supervising Shan in my role as a Consultant Physician in General Medicine mainly in Calvary Private Hospital but he also attended and contributed to my "post admitting" ward round the morning after I had been the "Physician of the Day" at Calvary Hospital. 8. As far as I was able to ascertain Shans work was satisfactory in terms of quality, decision making and timeliness (sic). His procedural skills are adequate. 9. He has always been courteous to me. 10. He told me that when Calvary Hospital was "one" he had, as additional support, for immediate support, the duty ICU registrars, the duty medical registrar and the duty anaesthetic registrar. He still has these, being in the same building but for the division of the hospital. 11. He said that now that there are two hospitals he has, officially, no legal/local immediate superior to help him and thus the hospital ended his employment. 12. This does not seem fair nor is it consistent with the spirit of Calvary. 13. He has always had and will continue to have, in the private system and in the public system, the relevant consultant available to him for advice and guidance, as does any RMO. His ultimate career. 14. He and I have compared notes about his longer term plans. As I see it an appointment as a resident medical officer to the private hospital, in fact probably any to private hospital, is not a long term career but rather an interim appointment, for a year or so, while sorting out a more definitive career/plan for a career. 15. He really does need stability and then, probably, an appointment in the public hospital system, perhaps Calvary, for a year or two, then he ought to be able to fully participate in patient care, anywhere, any time. 16. He told me that he has an interest in public health and plans to study this at the University of Sydney starting in 2010. I wonder if he may not be able to practice as a public health specialist without full registration? If this is the case Calvary Hospital should see him through so that he completes his period of supervision and then re-enters the work force as an "unencumbered" all purpose/all round doctor. Requests/Final notes. 17. Please give him a favourable hearing. Please support the underdog. 18. Please give him the benefit of the spirit of Calvary. 19. Please reply promptly. Please keep all addresses well informed." 66Mr Morrissey also annexed a letter from Dr Gordon to Mr Morrissey dated 23 November 2011. Relevantly, Dr Gordon stated: "Comments on the "restrictions" applied by the Medical Board. 5. The requirement to spend an hour per week with Dr Wickremesinghe is not practical. On current form the workload is so high and has been high for several years now and is increasing. I can barely persuade my junior resident and junior registrar to have coffee with me to compare notes about patient care, medicine in general, philosophy and their activities outside the hospital so the prospects of devoting a further hour per week to colleague care is not workable. I also think that an hour is too long. There has not been time in preparing this letter to work out what is an appropriate allocation of time. 6. This time problem is a risk that and the community and the professional is taking with the potential for errors. I presume the same applies in other trades, callings and professions. 7. The requirement to send a report to the Board each month is a substantial imposition in time, money and effort. It is not realistic. To the extent of my knowledge we do not report on any colleague to this extent. 8. The patient workload is so high that I can barely complete the paperwork related to the patients much less my current resident much less an extra resident medical officer. What next: 9. Dr Wickremesinghe has now spent several years outside regular clinical (hospital) employment so in some respects to refurbish his skills he needs to find a public appointment with appropriate supervision in much the same manner as any other senior resident would be cared for by the relevant registrar and Consultants. Opinion. 10. One cannot help but think that Dr Wickremesinghe has been "hard done by". It is important that he is given a chance to prove himself. It is important that he is given a fair hearing and fair new opportunities. ... 67The Court Book also included documents in answer to a notice to produce. This material comprised:

Evidence of Dr Gordon 69Dr Gordon gave oral evidence. He confirmed that the applicant should be allowed to practice as a doctor in an unrestricted capacity in public hospitals. He confirmed that he acted as the applicant's supervisor for a period of time that he worked at the Calvary Hospital and that he did not have any difficulties with the applicant's interpersonal relationships with his patients, or the patients' relatives. Dr Gordon's evidence was that he found his clinical skills were adequate and that he was receptive to advice. 70During cross-examination Dr Gordon could not recall if he received a copy of the IRP's report from the Board. His recollection was that the applicant "told me about a story at Hornsby Hospital" and explained why conditions had been imposed on his registration. 71Dr Gordon could not recall the applicant informing him of any difficulties that the applicant had encountered at Port Macquarie Hospital, Ryde Hospital, Tamworth Base Hospital, or Wagga Wagga Base Hospital. He could not recall if he had explored with the applicant what had prompted the Board to impose conditions on his registration, although he did recall the applicant informing him that the staff at Hornsby Hospital had concerns about his mental health. Dr Gordon's recollection was that he received a copy of the conditions that were ultimately imposed by the ACT Medical Board. Dr Gordon did not understand at the time that he was the applicant's supervisor and that it was one of the conditions of the applicant's registration that he meet with his supervisor for one hour per week. He did not offer the applicant anything in addition to what he would offer other resident medical officers. This included them accompanying him on his ward rounds, having a coffee with a resident medical officer and discussing patients. When the applicant attended the ward rounds, Dr Gordon's evidence was he did so as a "guest and a helper". It was not necessary for the applicant to take any history of Dr Gordon's patients or write progress notes, as this was done by Dr Gordon. 72Dr Gordon agreed that the work performed by the applicant in the hospital was at the level of a junior doctor following directions from consultants, rather than setting his own treatment plan for patients. 73Dr Gordon was not aware that as the applicant's supervisor, he was required to forward a report on a monthly basis in a prescribed format to the ACT Medical Board. 74Dr Gordon confirmed that he had given his permission to the applicant for him to use him as a referee for job applications. When asked in what position he believed the applicant was capable of being employed at the present time, he said "... second or third year after graduation because he knows enough and is experienced enough not to do an intern year again." 75Dr Gordon confirmed that the applicant had never acted as his admitting doctor in the Emergency Department or admitted a new patient under his care.

Evidence of Dr Riddell 76Mr Scott called Dr Riddell, who had provided a reference to the applicant dated 12 December 2010. Dr Riddell stated that he frequently called upon the applicant to assist his patients after he had admitted them under general medicine and gastroenterology bases. He stated that the applicant was hard working and thorough and able to make sensible decisions in regard to patient management, although careful to seek Dr Riddell's input if there was a matter of more importance or if he was uncertain. Dr Riddell said that the applicant documented matters clearly in his notes and seemed to get on well with staff, patients and their families. 77During Dr Riddell's oral evidence, he said that he did not find the applicant was reluctant to take advice, nor did he find he was rigid in his view as to what should happen with patients. He believed the applicant's skill levels were adequate. However, he observed that because the applicant was seeing private patients of Dr Riddell, the expectation was that any matters of consequence would be discussed with Dr Riddell or other consulting physicians so that there was a natural expectation that the consultant physicians would not be imposing a great burden of responsibility on the applicant or medical officer on the ward. With this caveat, he believed the applicant performed well, was easy to work with and did a good job. 78Dr Riddell formed the opinion that the applicant was always very polite and respectful to him. He did not hear that there were any issues raised by his patients or their families in respect of the applicant. The interaction between Dr Riddell and the applicant was over a number of years. Dr Riddell's evidence was that he may have only one or two of his own patients in the hospital at any one time and sometimes none. 79It followed that Dr Riddell and the applicant may not see each other for weeks at a time. He indicated that he did not see his role to supervise or observe him closely on a day to day basis. 80Dr Riddell was required for cross-examination. He stated that he was aware the applicant had conditions on his registration. Dr Riddell agreed that when the applicant was working in Calvary Private Hospital, his role was to follow Dr Riddell's management plan for his patients. On occasions, patients may have been admitted without Dr Riddell putting any plan in the notes, in which case the applicant would assess the patient and contact Dr Riddell for some additional advice, when Dr Riddell would give the applicant his management plan and he would review the patient shortly thereafter. He could only recall observing the applicant treating his patients in the private hospital on one or two occasions. He acknowledged that he had relatively limited opportunities to observe "first-hand" and also that there was a lack of any issues being raised by his patients regarding the applicant's involvement with them. 81Dr Riddell was informed of the comments made by Dr Pelkowitz, those being, "when he over-worked - he avoids eye contact, appears tired and unfocussed". His evidence was that he had some empathy with Dr Pelkowitz's comments. He said that most of the time the applicant was quite cheerful and they got on well but there were times when he seemed tired. Dr Riddell got the impression that he was a stressed and needed more sleep, although on a few occasions the applicant had alluded to difficulties he had had in the past and restrictions on his registration. Dr Riddell was not privy to the details of those matters. 82Dr Riddell was asked whether he would support the applicant's applications for positions at levels above RMO1. His evidence was: "Look, with caution I would. Again, it comes back to the fact that I haven't seen him function in the higher role where there was more stress, more time demands and an expectation that he would assume a greater degree of responsibility. So in my statement of any prospective employers I would basically give the same information that I have given the court which is that in the role that I have seen him fill he functioned well, in my opinion. I would presume that he has got the ability to function well in more demanding roles and for him to show that, he obviously has to be given a more demanding role, and is the some point that step up has to occur. And so that's medicine I guess we all have to be given an opportunity to show ourselves developing and you can only do that by being given the more responsible task and then being seen to get into it. So I would support him be given a more responsible role in some other employment. Q. That more responsible role, should it take place, for example, within a large hospital where there are other colleagues available onsite to support or mentor? A. Well I think so. For somebody who has had a difficult start to his career, as Dr Wickremesinghe has, I think the thing would be best for his development and his confidence, and the thing that is best for his overall, or for the assessment made of him by the hospital and the doctors there, would be to be a larger teaching hospital where there are lots of other younger doctors around to acts as peers from whom Dr Wickremesinghe would learn, but where there is also a rigid framework of assessment and career development. I think that would be certainly in his best interests as well perhaps in the hospital's best interests when it comes to supervision, and I think that it would be a much more desirable role than for Dr Wickremesinghe to take on positions in smaller hospitals or position that are outside the more normal working hour type arrangements where he doesn't have the supervision and doesn't have the vocational support for his own personal career development. 83Dr Riddell was asked by the Deputy Chairman: Q. You may or may not be aware that Dr Wickremesinghe has not worked or practiced as a medical practitioner for approximately two years from, I think about December 2009. Being apprised of that fact, would that change any of the opinions that you have just provided regarding employment for him? A. Well the fact he hasn't worked for such a lengthy period will make it harder for him to be uptodate and be familiar with history taking and clinical examination and all of the usual day to day things that we have to be up with the play with. And there have been developments in a lot of areas which are occurring all the time which perhaps he may have missed out on by not being at the coal face. So the way, if I were his guidance counsellor the way I would recommend he work around that would be to look at getting into a larger hospital with a training program with a lot a junior doctors around and even though he may have had several more years since graduation than many of others, he could look to reinsert himself in the system at that slightly lower level so he then goes back through a type of refresher process and perhaps worked at a slightly lower level than he otherwise might have had to do to bring himself up to speed to refresh himself and then be ready to take on greater responsibility after that." 84When asked to explain what he meant by "training programme", Dr Riddell's evidence was: "... So that would be a very specific training programme, if he was a basic physician trainee he is locked into a very clear pathway with very clear assessments and supervisory standards so that would be good, I think, for him in his career development. Equally, if he elected to seek a slightly lower level position, let's say a position filled by a registered medical officer grade 1, so somebody whose has finished their internship and is then into their next year, then that's a slightly broader training programme, that's a general training programme in a hospital, and that would be equally good for him, I think. It would be a step back in terms of his experience, but it might be a way of him bringing himself up to speed and skill, given he has had a couple of years off, and then perhaps he might feel better prepared to move into a role of a junior registrar in the basic physician training programme. But I guess either avenue is open to him if the medical board is agreeable and if he could find an employer willing to employ him. But again, if I was his career guidance counsellor I would probably counsel him to go into a level lower than his years of experience might allow in order to reskill himself given the two years that he has had off."

Evidence of Dr Gavaghan 85Mr Scott called Dr Gavaghan who provided a reference to the applicant's solicitor dated 11 November 2011. He stated he was aware that restrictions had been placed on the applicant's medical registration which he "always felt that this was very unreasonable". He stated "I am not aware of the incidences that lead to Dr Wickremesinghe's restriction being placed on him by the Medical Board and: "I always found him to be an extremely polite and conscientious doctor - I had absolutely no problems with him and I was very surprised when I heard that he was having trouble with the Medical Board." 86Dr Gavaghan further stated "I would support that he be given medical registration without restrictions". His evidence was that he would be happy if the applicant wished to inform him about the reasons for the restrictions, which he believed were extremely onerous, and he would reconsider his comments. 87During Dr Gavaghan's oral evidence, he stated that he did not have any difficulty with interpersonal relationships with the applicant and was not aware of any problems with his interpersonal relationships with his (Dr Gavaghan's) patients, or patients' families. 88During cross-examination, Dr Gavaghan explained that the applicant's role was to observe his patients, normally during after hours shifts in Calvary Private Hospital and inform him if he had any concerns. Dr Gavaghan explained the applicant's role was "like a junior resident". He had never observed the applicant in his interaction with patients, or his capacity to form a management plan after taking a history from a patient. He formed the view that his record keeping was appropriate for a junior resident. 89Dr Gavaghan said that in his view, the applicant's interactions with him were appropriate and he did not observe any problems with his clinical skills consistent with the role of a junior resident. Dr Gavaghan was not aware that the applicant had conditions on his registration.

Evidence of the Council 90Ms Ward tendered a folder of material. Relevantly, it contained reports of Dr O'Connor, Dr Samuels, Dr Jacobs and Dr Allnutt that have already been referred to in this judgment. Also included was the report of the IRP dated 15 February 2011 and material in respect of the complaints made by Hornsby Ku-ring-gai Hospital and Wagga Wagga Base Hospital. 91The Tribunal has already made reference to the report of Dr O'Connor in this judgment, a Council appointed psychiatrist. Dr O'Connor was called to give evidence. Dr O'Connor is the Director Clinical Services at the Sydney Local Health District, the Royal Prince Alfred Hospital, Psychiatry, the Bankstown Hospital Mental Health Services, and the Community Health Services associated with those institutions. Dr O'Connor's evidence was that when he interviewed the applicant, he formed the view that he was very defensive and guarded when he came to that part of his history that went to whether he might have had a mental illness. Dr O'Connor believed that this was quite a significant matter in terms of his reassurance that the applicant understood the significance of his past mental health problems to the extent that he would take appropriate actions, precautions and care of himself in the future. 92Dr O'Connor described the applicant as being socially isolated in the context that he does not have any really close personal support, like a partner or a relative with whom he lives, or a network of close friends. He does not regularly get together with the persons who might be able to inform him in the future that he is "not sounding too good and may need to see Dr Jacobs". His evidence was that there was an absence of a safety net for the applicant. The applicant's defensiveness and denial that he has had a problem, together with his lack of close personal support, in Dr O'Connor's view, makes the applicant very vulnerable. 93Dr O'Connor stated that he had read Dr Jacobs' reports and had phoned him to discuss the applicant prior to preparing his report. Dr O'Connor was asked if he was concerned with the applicant, from time to time, taking himself off the medication citalopram and whether that would increase his vulnerability of relapse into depression. His evidence was that it was difficult to answer this question because if the applicant had been very well for the past two years, many psychiatrists may agree with the patient going off antidepressants, particularly if a patient had had a hypomanic episode on another antidepressant. He stated that it is a complicated question and the issue that concerned Dr O'Connor was that the applicant did not seem to understand the importance of his psychiatric history, and the need to take care and to be under the care of a psychiatrist. 94Dr O'Connor was taken to his report where he stated that the applicant would be vulnerable to future episodes of mood disorder and said that overworking himself or overcommitting himself would be a trigger that the applicant should try to avoid in order to manage his vulnerability. When asked to explain why he believed that the applicant should continue under clinical supervision/mentorship for a period of at least a year, Dr O'Connor's evidence was: "A. In my opinion I felt that I had excluded impairment in the sense of suffering from a psychiatric impairment like a depression or a manic episode or current anxiety disorder. And then you're left with I think quite an unusual personality, which myself and other psychiatrists including Dr Jacobs feels has narcicisstic features. I think there is quite a bit of obsessionality there as well and possibly some Asperger's like schizoid traits. And a history of not wanting to be too blunt but getting into trouble in a lot of places, in a number of hospitals and that trouble was varying types but a lot of it came down to, you know, relationships at work et cetera. And so I feel that what I was trying to say there was although I don't feel, it's my opinion that Dr Wickremesinghe does not have an impairment in the sense of psychiatric disorder, it would be my recommendation that for his continuation to work as a doctor that he has the right amount of structure and supervision, at least for the next part of his return to clinical practice. And what I would mean by that is a little bit like what a previous witness I heard referring to, you know, to be in a larger centre where there are structured training programmes that Dr Wickremesinghe might wish to join and there's quite a bit of support in the form of junior and senior medical officers around him. Q. Is the mentoring role you envisage something different to the clinical supervision or is it incidental of clinical supervision? A. I think that if a mentor was available it would be of great benefit to Dr Wickremesinghe. And what I mean by that is somebody who is separate to the clinical supervisor or the senior registrar under which the person works, is spend a bit of time one to one, meeting with that doctor, perhaps weekly, perhaps monthly thereafter and give them some very practical tips and feedback about their performance, and in particular about stuff like how you relate to the senior nurse on the ward or to the clinical team or to families, you know, when you have to give them bad news and that sort of stuff and has a genuine interest in supporting the person and I would hope that Dr Wickremesinghe might be able to make use of such a person." 95During cross-examination, Dr O'Connor agreed that there are many medical practitioners and legal practitioners practising successfully today who are vulnerable to depression and who still function at very high levels. Dr O'Connor believed that the applicant was vulnerable to future episodes of depression which, if treated, would respond and he would be restored to his normal health. He agreed that if the applicant continued to see Dr Jacobs on a monthly basis, on the proviso that he was frank and open with Dr Jacobs when he was being reviewed, Dr Jacobs would be able to observe whether the applicant was well or unwell. He thought it was very likely that Dr Jacobs, having treated the applicant since 1995, would be able to observe any changes in the applicant upon presentation. 96Dr O'Connor also agreed that maturity would also assist the applicant in dealing with his unusual personality traits. His evidence was that he has been able to develop and reduce vulnerabilities in his personality style which is evidenced by Dr Jacobs' reports and confirmed by Dr Jacobs to Dr O'Connor in their telephone interview. He agreed that Dr Allnutt and Dr Riddell had come to similar conclusions. 97The respondent included in its material nine references from doctors who had worked with, observed or treated the applicant. The references had been provided to the applicant by the following doctors and relied upon by him before the IRP: Dr Peter French; Dr Riddell; Dr Michael Gillespie; Dr Chris S L Hii, Cardiologist; Dr David Rangiah, Consultant General Surgeon; Dr Senalie Goonewardena; Dr James Lim; Dr Jacobs and Dr Allnutt. In summary, each of the doctors that had worked with or observed the applicant's work stated that his clinical skills were commensurate with the role in which he was employed. 98References were also provided by Professor Robert G Cumming, Professor of Epidemiology, University of Sydney, who stated that the applicant had performed well in the Masters of International Health Course, both academically and at an interpersonal level. He said he appeared to interact very well with his fellow students and that many of the MIPH assessments involve group work which required good communication and general interpersonal skills; Dr Yordanka Krasteve, Research Fellow, University of New South Wales, said that the applicant was a member of his tutorial group and performed well working as a team member and demonstrated leadership skills. 99A reference was also provided by Ms Chantelle Harris, a student at Sydney University who was involved in group project work with the applicant whilst undertaking studies in the Masters of International Public Health Course at the University of Sydney. She stated that the applicant "displayed co-operative and communicative teamwork skills throughout the project and myself and other team members were pleased to have Shan as a member of our group". 100Mr Scott asked Dr O'Connor to read the references that the applicant had obtained from various doctors he had worked with, or who had observed him working at Calvary Hospital. 101Dr O'Connor's evidence in respect of this material was: Q. Now, that material, together with the material you have seen from Dr Riddell, Dr Gordon and the evidence that you have heard this morning, demonstrates, does it not, that for the period being 2007 to 2009, Dr Wickremesinghe was working at Calvary, he was able, in the minds of these persons that he was working with, to operate in an appropriate manner both interpersonally and clinically? A. Yes, I agree with that for the period of time that they are commenting on. Q. If you go over to the last two documents, one from the Professor Robert Cumming, who is the Professor of Epidemiology, Director or Master of National Public Health, he again paints a picture of Dr Wickremesinghe being able to work in a group, being constructive. He notes, at the bottom: "Our discussions have been the very normal conversations, that an academic often has with intelligent mature age students". Finally, from Dr Krastev, who is from the University of New South Wales, he again talks of Dr Wickremesinghe performing very well during tutorial sessions and shows punctuality, initiative, self discipline, good research skills during tutorials, ability to work as a team member and demonstrates leadership skills. Again, that is a picture of Dr Wickremesinghe being able to appropriately interact both in a group and individually and it would appear with other people in an academic sphere? A. Yes, I would agree with that. Q. That could be held to be evidence, could it not, Doctor, of this act of maturity on behalf of Dr Wickremesinghe, particularly having regard to the personality traits that you have identified and others? A. Yes, it would. Q. It would, I suppose, also coming back to the Calvary situation be indicative also of the fact that when he was at Calvary and working in the hospital he has social support within the hospital? A. Yes. Q. That he has, particularly as we've heard, at Calvary senior clinicians that he could speak to? A. Yes. ... Q. Having regard to those matters, it would appear from the evidence that we have there, from the personality side of the matter, dealing with that first Dr Wickremesinghe in that environment was able to perform appropriately? A. Yes, I'd agree with that. Q. Turning to the mental health side of it? A. Yes. Q. It would also appear that there is no evidence that his as you found and taking your diagnosis of him having a vulnerability to depression and anxiety, assuming with great respect that be right, there is no indication that during the period that he was at Calvary that vulnerability would appear to have affected his work as far as we can tell from those references? A. As far as we can tell from these reference I would agree with that, yes.

Consideration 102The principal issue in this appeal is whether any or all of the conditions imposed upon the applicant's registration should be revoked or varied. There is also an important point of statutory construction of the term "impairment" as defined in the National Law. Hence, the appeal raises two issues. First, should the conditions be lifted? Secondly, is the applicant suffering from an impairment? 103The Tribunal's decision is that the first issue should be resolved in the negative. In respect of the second issue, the decision of the majority is that this issue should also be resolved in the negative.

First issue - conditions 104At the outset, it is important to record that this is not a matter where the applicant's competency has been brought into question as a result of a complaint leading to submissions of unsatisfactory professional conduct, or professional misconduct. 105Concerns commenced to be raised in respect of the applicant's conduct in 1993 and from time to time, until 2008 when the applicant agreed to the imposition of conditions on his registration. 106Pursuant to s 159C of the National Law, the Tribunal is given a wide discretion in determining an appeal which seeks to revoke conditions placed on a practitioner's registration. The Tribunal may vary or confirm the conditions as it thinks fit. In determining whether the applicant should have any practice conditions on his registration, the Tribunal must be guided by the objectives and guiding principles of the National Law. 107Relevantly, s 3(3)(c) provides that "restrictions on the practice of a health profession are to be imposed ... only if it is necessary to ensure health services are provided safely and are of an appropriate quality". The applicant has not practised medicine since December 2009, which is a particularly significant period of time in respect of a young medical practitioner. The doctors who worked with or observed the applicant's work whilst at Calvary Hospital were of the opinion that his clinical skills were commensurate with the role in which he was employed at the time. He received positive references from the doctors and consultants with whom he worked at Calvary and there were no complaints regarding his clinical competence. 108However, the evidence of Dr Gordon, Dr Riddell and Dr O'Connor all expressed concern that the applicant had not practised as a medical practitioner for two years. Dr Riddell's evidence was if he were the applicant's guidance counsellor he would recommend that the applicant seek employment in a larger hospital with a training program with a large number of junior doctors around him, even though the applicant may have had several more years since graduation than many of the doctors with whom he may be working. Dr Riddell was of the opinion he could reinvent himself in the system at a slightly lower level through what he described as "a type of refresher process and perhaps worked at a slightly lower level than he otherwise might have had to do to bring himself up to speed to refresh himself and then be ready to take on greater responsibility after that". 109Dr Gordon thought that he should look to employment at a second or third year level after graduation because that was the only way, in his opinion, that he would get adequate supervision. 110Dr O'Connor's evidence and recommendation, which we have set out earlier in this judgment at [63], was that the applicant continue under clinical supervision/mentorship for a period of at least one year. 111Dr O'Connor believed it was important that the applicant receive "the right amount of structure and supervision at least for the next part of his return to clinical practice". By this, Dr O'Connor meant that the applicant seek employment in what he described as: " a larger centre where there are structured training programmes that Dr Wickremesinghe might wish to join and there's quite a bit of support in the form of junior and senior medical officers around him." 112The applicant expressed his frustration at being unable to obtain employment as a medical practitioner. However, part of the blame for the applicant's frustration falls at his feet, particularly his failure to comply with the conditions imposed. This is a matter of concern to the Tribunal. Conditions are placed upon medical practitioners to protect the public. It would be unusual for this Tribunal to completely lift conditions that had been imposed in circumstances where there is clear evidence that there has been a failure to comply with the conditions. This is a factor that the Tribunal has given weight in determining this application. Ultimately, the responsibility for complying with conditions must fall upon the medical practitioner, although in this case, Dr Gordon's evidence was that he had not supervised a practitioner previously and did not appear to have a complete understanding or knowledge of the conditions and the reasons why they had been imposed. 113In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA, ( Tobias JA agreeing) approved the Tribunal's observations in Dr Thanh Le (Medical Tribunal decision, 20 September 2001) observing at [74]: "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra). ..." 114There was evidence from Dr Gordon, Dr Riddell and Dr Gavaghan that there was an appropriate level of interpersonal communication between themselves and the applicant. This may have been as a result of both maturity and the assistance that the applicant received through his therapy with Dr Jacobs. There has also been an absence of complaints from patients in respect of the applicant. Although the Tribunal is mindful that the applicant worked in junior roles, these are positive steps. 115We also find that the contention that he has not obtained work for two years because of the conditions, is not made out on the evidence as it discloses that for at least one year since December 2009, he has not actively sought employment as a medical practitioner. 116In light of this evidence, the Tribunal has reached the firm conclusion that clinical conditions should continue to be imposed upon the applicant's registration for a period of six months. The applicant may make application to the Council after six months to have the conditions reviewed. Such conditions will ensure the protection, health and safety of the public which is the paramount consideration of the legislation.

Second issue - impairment 117Ms Ward urged the Tribunal to find that the applicant was suffering from an impairment. This requires the Tribunal to be satisfied that the applicant, in accordance with the definition of impairment which we have set out earlier in this judgment at [36], has a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the applicant's capacity to practise in the profession. 118Ms Ward conceded that "impairment" may not lend itself to meet and apply a psychiatric diagnosis. Counsel submitted that the Tribunal would look to the definition in full and take into account the fact that it requires an impairment that has an affect, or likely affect on someone's capacity to practise medicine. 119Ms Ward further submitted that it followed that the potential impact of the impairment has now been brought into the definition. However, counsel conceded, by way of an example, that a doctor with a very well managed depressive illness would not be considered impaired unless the doctor's illness was affecting his or her capacity to practise medicine. Needless to say, not all mental illness will impact upon a practitioner's capacity to practise medicine. 120Ms Ward submitted that the evidence demonstrates that the applicant's history of depressive illness and a mix of various personality traits in his particular case, came together to affect him in his capacity to practise medicine in the past and are likely to affect him in that respect in the future. Counsel referred to the unusual history of difficulties in the applicant's previous workplaces where the only common factor was the applicant himself. 121Counsel also relied on the applicant's lack of insight in respect of his conduct at Hornsby Hospital and Wagga Wagga Base Hospital and his failure to concede that his mental health had impeded on his practise of medicine in the past. 122The evidence, particularly that of Dr O'Connor, the Council's appointed psychiatrist, was that at the time of the hearing, the applicant was: "... not currently suffering from impairment as defined by the Health Regulation National Law (NSW). He is not currently suffering from a psychiatric disorder such as a psychosis, mood or anxiety disorder. However, Dr Wickremesinghe has a clear history of anxiety symptoms, depressive episodes and one episode of manic mood elevation in response to an SSRI antidepressant. He therefore will be vulnerable to future episodes of mood disorder. His apparent lack of understanding and acknowledgement of this vulnerability is concerning." 123Dr O'Connor recommended that: "if Dr Wickremesinghe is re-registered as a medical practitioner, he would be best advised to be under clinical supervision/mentorship for a period of at least one year. He should also continue to receive the support of Dr Jacobs." 124Dr Jacobs' conclusions in respect of the applicant's current mental health were not dissimilar to those of Dr O'Connor. 125As early as June 2007, the then Board appointed psychiatrist, Dr Samuels, did not regard the applicant as being an impaired practitioner at that time, although he strongly recommended that the applicant renew his contact with his treating psychiatrist, Dr Jacobs. In his report of 14 May 2008, Dr Samuels again concluded that: "whilst there is no clear cut evidence for a major affective or psychotic disorder there certainly are some suggestions that at times Dr Wickeremesinghe can become quite depressed and anxious and that this depression and anxiety is evident to others. There is a small possibility that we are observing the emergence of a psychotic process but this seems to be less likely an explanation for his problems in the workplace than a personality-based explanation." 126Dr Samuels concluded that as he had once again been referred to the Board that: " these problems have occurred in multiple contexts suggests to me that the above is suffering from an impairment which I would regard at this stage as being predominantly personality based but could possibly indicate an emerging mental disorder." 127Dr Bhandari provided a report to the ACT Medical Board in 2009. He did not find evidence of a psychotic disorder, although he observed there was "mild thought disorder as had been noted by Dr Samuels". He recommended that the applicant meet weekly with his supervisor for at least an hour; have regular reports to the ACT Medical Board from his supervisor; work no more than 30 hours per week; engage in psychotherapy to address his personality difficulties; improve his insight, and address his social and interpersonal skills and be reviewed six monthly by a Board-nominated psychiatrist. 128The applicant's solicitor obtained a report from Dr Allnutt dated 6 December 2010. Dr Allnutt concluded that the applicant: "... does not present with a psychiatric disorder that impairs his cognitive capacity for clinical decision-making; consideration needs to be given to whether or not his work related difficulties relate to maturation (and thus prone to change and development); his presentation to me suggests that he has at least come to a point of contemplation and acceptance that he has personality problems, but it remains to be seen whether or not he can translate this into practice in the workplace and apply himself in a manner that causes him less conflict. Overall however in the absence of a determination or evidence of incompetence to practice clinically, he would best be characterised as a difficult person to work with. ... Overall I do not believe that your client manifests a psychiatric disorder that would impair his cognitive capacity to practise adequately in a clinical context (as far as I am aware there have not been complaints about him from patients); it seems to me that the issue for him is the difficulty he has in managing his relationships as an employee in regard to his managers and peers and the difficulty he has in appreciating that he needs to develop skills in managing workplace relationships and abide by policy despite his personal misgivings. 129Dr Allnutt's recommendations were: "1. He should continue to see Dr Jacobs or another psychiatrist of his choice as he has an underlying vulnerability to mood disorder and will likely require antidepressant medication from time to time. 2. He should pursue psychotherapy with Dr Jacobs or a therapist of his choice, in my view the therapy should adopt a cognitive behavioural approach to assist him in developing strategies to manage him in the workplace. 3. He would benefit from seeking regular advice from a senior clinician in the area that he works in to assist and advise him in dealing with conflicts that might arise for him." 130In his report of 27 June 2010, Dr Jacobs confirmed his opinion contained in his report of 7 February 2010 that the applicant is capable of working a standard 30 to 40 hour week whilst he continues treatment. Dr Jacobs observed that there appeared to be no recognition that the applicant had been in treatment and continues in treatment. Furthermore, he stated that there was no recognition that the applicant had made changes in his attitude to work and his colleagues. Dr Jacobs' view was that "The situation has become enormously frustrating to him and to me as his treating doctor". He further observed, as he had stated previously, that the applicant "has a narcissistic personality style but he has made strenuous efforts to work with those traits". 131As at June 2010, the applicant was prescribed citalopram at 40mg. In a further report dated 4 December 2010, Dr Jacobs observed that the applicant had become very tired on his high dose of anti-depressants, making it more difficult to complete his assignments. He reduced his dosage to Cipramil at 20mg a day and observed that his mood had become euthymic on this dose. Dr Jacobs concluded his report stating: "Dr Wickremesinghe has become very frustrated by the difficulties he has encountered, believing that he has made efforts to overcome his personality problems. He hopes that the board may find a way, even suggest hospitals or clinical situations, where he can comply with the conditions of his registration. He would prefer that his conditions be varied to make it easier to find work as he wishes to resume clinical work." 132In essence, Ms Ward's submission was that the Tribunal should make a finding of impairment, as the Tribunal understood it, because there was a likelihood that the applicant's condition or disorder could re-emerge in the future and would be likely to detrimentally affect his work and if that occurred, patients could be put at risk. The basis for this contention was the applicant's history of depressive illness and a mix of various personality traits that were likely to affect him in the future. 133Upon a proper reading of the medical evidence which we have set out earlier, there is little support for this proposition. Furthermore, it ignores the progress that, in particular, Dr Jacobs states has been made, and also the evidence from the seven doctors who either worked with or observed the applicant at Calvary Hospital, together with two academic staff from the University of New South Wales and Sydney University, who spoke of the applicant's ability to work as a team member and interact well with his fellow students. A fellow Masters' student spoke of the applicant's co-operative and communicative teamwork skills. 134Ms Ward contended that the following evidence demonstrated the applicant's lack of insight. Firstly, by not accepting that Hornsby Hospital had grounds to be concerned about his behaviour. Secondly, that the complaint about his clinical skills in fact took into account his level of experience and training at the time. Thirdly, that his mental health had impacted on his practice of medicine in the past. Ms Ward also referred in particular to Dr O'Connor's evidence that the applicant was very guarded in discussing the period leading up to his depression and his understanding of the significance of his past mental health problems. This was relevant, so it was submitted by Ms Ward, in respect of the applicant's capacity to look for warning signs in the future. 135In the Tribunal's view, this issue is capable of being addressed by the applicant continuing to see Dr Jacobs on a monthly basis and also by being assessed by the Council's appointed psychiatrist from time to time. In addition, we note that the applicant accepted there were "issues" in respect of his communication skills while working at RNS and Wagga Wagga Base Hospital. 136Properly understood, the medical evidence and the evidence of the applicant is that he has matured and understands and appreciates his mental health problems. It is, in the Tribunal's view, a distraction to focus on the evidence given by the applicant under lengthy cross-examination, where at times he lost his thought process, a matter that occurred during the consultation with Dr Bhandari. There is substance in the submission made by Mr Scott in respect of how his evidence should be assessed. Mr Scott observed that the applicant had been cross-examined very closely for a number of hours in respect of matters that were confronting and embarrassing to him, observing that "no-one would like to sit there and have any of our past errors or mistakes or issues closely examined in front of a panel of strangers". Clearly, this has been a confronting experience for the applicant, who has also experienced a level of frustration because of the conditions imposed on his registration despite agreeing to them. 137A further matter relied upon was the letter from Dr Pelkowitz who did not give evidence. Upon becoming aware that the applicant and several other doctors who worked at Calvary Hospital or the Canberra Hospital were working too many hours, steps were taken by Dr Pelkowitz to ensure that restrictions were placed on the doctors' hours. In respect of the applicant, Dr Pelkowitz observed that his performance at Calvary Hospital improved markedly when this occurred. He had been very helpful in teaching and supporting others and was visibly alert, something which was notably absent prior to the restrictions on his work hours and presumably the other doctors as well. On or around November 2009, Dr Pelkowitz observed some deterioration in the applicant's behaviour. He observed that he had noticed him occasionally returning to the behaviour that was characteristic when he overworked, that being that "he avoids eye contact, appears tired and unfocussed and tends to hang around the hospital well after his shift is over with "justifiable" reasons for doing so". 138The applicant's evidence was that during the period leading up to December 2009, he could only recall meeting Dr Pelkowitz on one occasion. During November and December 2009, the applicant's evidence was that he worked on three days in the first week of November 2009; one five hour shift on 27 November 2009 and one shift on 30 November 2009. 139During the second week of November 2009, the applicant travelled to Japan and on his return spent several days in Melbourne at the Annual Scientific Meeting of the Australasian College for Emergency Medicine. The applicant only worked five days in November 2009. He recalled having only one interaction with Dr Pelkowitz during this period, when he encountered him in the clinical area and had a brief conversation with Dr Pelkowitz. In light of this evidence, it would clearly be unfair to draw any adverse inference in respect of the applicant's conduct in November 2009. 140The applicant's evidence was that whilst working at Calvary Hospital, he lived in an accommodation block attached to the main hospital building and socialised with the staff who worked at the Hospital. Some of his shifts were of 14 hours' duration and it was not uncommon for the applicant and some of the those he worked with to order a pizza during a break period in the shift. He also had a practice of preparing meals for himself and for some of those with whom he worked. 141Having considered all of the evidence, the submissions of Ms Ward and Mr Scott, and noting that the assessment of the applicant is to be made at the time of the hearing, that the Tribunal is unable to reach the conclusion that the applicant suffers from a condition which would be prejudicial to the orderly conduct of his mental and physical duties as a medical practitioner: see Grant v HCCC [2008] NSWCA 73. 142For these reasons, the majority of the Tribunal are not prepared to find that, as at the date of the hearing, the applicant was suffering from an impairment. As Dr Jacobs observed in his report of 4 September 2011 "there are many medical practitioners who have significant personality dysfunction, especially narcissistic personality traits. They continue to practise clinical medicine safely". 143In reaching the conclusions set out in this judgment, we are also mindful that teaching hospitals are now required to have a Director of Clinical Training who is required to devote 2.5 days per week supervising junior medical staff, for example, JMOs, interns, RMO1s and unstreamed RMO2s. The evidence of Dr O'Connor, Dr Gordon, and Dr Riddell, set out earlier, was that the applicant would be suitable for employment in such hospitals. 144The applicant has failed in his application to have conditions imposed upon his registration lifted. The applicant should therefore pay the respondent's costs. The Tribunal so orders.

Orders 145Pursuant to s 159C of the Health Practitioner Regulation National Law (NSW) the Tribunal imposes conditions upon the registration of Dr Wickremesinghe, as set out in Annexure A. 146The Tribunal orders that the Medical Council of New South Wales shall be the appropriate review body for the purpose of any review of these conditions. The Medical Council may remove or vary the conditions as it considers appropriate. 147Dr Wickremesinghe is to pay the costs of the Medical Council of New South Wales.

ANNEXURE A Practice Conditions

1. Dr Wickremesinghe may work only in a hospital position approved by the Medical Council of NSW.
2. Dr Shan Wickremesinghe is to nominate a supervisor to be approved by the Council prior to commencing employment , to monitor and review his clinical practice and compliance with these practice conditions in accordance with Level 2 Supervision as contained in the Medical Council of NSW Supervision (Performance, Conduct and Health) Policy PCH 7.5 . All costs associated with the supervision arrangement are to be borne by Dr Wickremesinghe. The supervisor is to be provided with a copy of the Medical Council of NSW Supervision (Performance, Conduct and Health) Policy PCH 7.5, a copy of this decision and any other reports the Medical Council of NSW deems appropriate. Dr Shan Wickremesinghe is to ensure that: a. He and the supervisor meet on a weekly basis for at least 30 minutes for six weeks, the first meeting to occur within one week of being advised by the Council that his nominated supervisor has been approved. Thereafter, subject to the receipt by the Council of reports from the supervisor which it deems satisfactory, he and the supervisor are to meet on a monthly basis for at least 30 minutes. Dr Wickremesinghe is to provide his supervisor with a copy of the Tribunal's judgment. b. At each meeting the supervisor is to review his work progress and address any relevant work-related or professional matters. c. At each meeting, the supervisor is to complete a record of matters discussed at the meeting in a format prescribed or approved by the Council . d. The supervisor must forwards to the Counci l , initially on a monthly basis, a supervision report in a format prescribed or approved by the Counci l . e. The supervisor is authorised to inform the Counci l immediately if there is any concern in relation to Dr Wickremesinghe's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, health or if the supervisor relationship ceases. Dr Wickremesinghe authorises the supervisor to provide such information to the Counci l . f. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval to the Counci l within 21 days of the cessation of the original supervisory relationship.