What happened
Dr Shan Wickremesinghe was first registered in New South Wales in January 2003. From the outset his career was punctuated by performance concerns. During internship at Royal North Shore Hospital supervisors questioned his clinical competence, including an inappropriate insulin dose and failure to seek senior assistance ([10]-[11]). Further complaints arose at Wagga Wagga Base Hospital in 2005 concerning clinical skills, administrative compliance and possible depression ([14]). A 2007 performance interview led to a psychiatric referral to Dr Samuels, who noted anxiety and depression history but did not diagnose impairment at that time ([15]).
The decisive events occurred in 2008 at Hornsby Ku-ring-gai Hospital. A formal performance warning cited deficiencies in clinical practice, documentation, handover and professional attitude ([16]). Dr Anne Clarke, Emergency Department Director, wrote to the Board expressing deep concern that ongoing personal and mental health issues might render Dr Wickremesinghe a danger to himself and others ([17]). A second report from Dr Samuels in May 2008 identified rigid, inflexible personality traits with schizoid features and a possible emerging mental disorder; he concluded there was an impairment, predominantly personality-based ([18]-[19]).
Faced with suspension and these reports, Dr Wickremesinghe agreed in June 2008 to comprehensive practice and health conditions before an Impaired Registrants Panel ([21]). These required approved hospital positions only, level 2 supervision with weekly one-hour meetings, a senior practitioner on site at all times, prior approval for any change of practice, locum restrictions, no self-prescribing, monthly psychiatric review, psychotherapy, medication compliance, and six-monthly Board-nominated psychiatric review. Identical conditions were imposed when he obtained ACT registration in August 2008 ([22]).
Between 2008 and 2009 Dr Wickremesinghe worked at Calvary Hospital in the ACT. Dr Allan Pelkowitz initially reported marked improvement once hours were restricted to prevent overwork, noting better alertness, teaching and support for others ([25]). However, structural changes separating public and private arms of the hospital removed the capacity for on-site supervision in the private facility, effectively ending his employment there. Compliance issues emerged: the ACT Personal Assessment Panel in January 2010 found Dr Wickremesinghe had not implemented formal weekly supervision meetings, had attended a psychotherapist only once, provided no reports from Dr Jacobs, and had worked as the most senior doctor on site contrary to conditions ([26]).
Applications to ease or remove conditions in both jurisdictions were refused. In December 2010 the New South Wales Impaired Registrants Panel declined to lift the conditions and recommended any further application occur in the jurisdiction where he had most recently practised clinically ([33]). Dr Wickremesinghe appealed to the Medical Tribunal under s 159(1)(c) of the National Law, arguing the restrictions were unfair, unjust and prevented him obtaining active duties ([4]-[5]).
The February 2012 hearing occupied four days. The applicant gave evidence and was extensively cross-examined about past complaints, his interpretation of statements alleged to show suicidal ideation, non-compliance with medication, and limited insight into interpersonal difficulties ([46]-[57]). He tendered positive references from Drs Gordon, Riddell and Gavaghan who had worked with him at Calvary, plus academic references confirming strong performance and teamwork in his Masters program ([60]-[62], [65]-[67]). The Council relied on reports from Drs Samuels, O'Connor and earlier material. Drs Gordon, Riddell, Gavaghan and O'Connor gave oral evidence.
The Tribunal's reasons, delivered 12 March 2012, are structured around two questions: should the conditions be lifted, and was Dr Wickremesinghe impaired? By majority the Tribunal answered the second question in the negative but answered the first in the negative also. It varied the conditions modestly (reducing the mandatory supervisor meeting from one hour weekly to 30 minutes after an initial six-week period) and confirmed them for six months, designating the Medical Council as review body ([145]-[146]). Dr Wickremesinghe was ordered to pay the Council's costs ([147]).
Why the court decided this way
The Tribunal's reasoning is grounded in the statutory text and the evidence as it stood at the date of hearing. Section 3(2)(a) makes public protection the paramount consideration; s 3(3)(c) provides that restrictions are to be imposed only if necessary for safe, appropriate health services ([35]). The Tribunal accepted that Dr Wickremesinghe's clinical performance at Calvary had been adequate for the junior role he occupied and that no patient complaints had ever been made ([107], [115]). It also accepted that Drs Jacobs, Allnutt and O'Connor agreed there was no current psychiatric disorder impairing cognitive capacity for clinical decision-making ([122]-[129], [141]).
Nevertheless, three interlocking considerations justified continued conditions. First, Dr Wickremesinghe had been out of clinical practice for more than two years by the hearing date. Drs Riddell, Gordon and O'Connor each gave unchallenged evidence that this gap required a structured "refresher" in a large teaching hospital with layered junior and senior support, even if that meant returning at a level below his years of experience ([108]-[111]). Dr Riddell explicitly recommended a basic physician training programme or RMO1 position in a large hospital with rigid assessment frameworks ([82]-[84]). Dr O'Connor recommended at least one year of clinical supervision/mentorship in a centre with structured training programmes ([63], [94]).
Second, the evidence showed previous incomplete compliance with the very conditions now challenged. The ACT Panel had found no formal weekly supervision meetings, inadequate psychotherapy engagement and working beyond permitted seniority ([26]). Dr Gordon candidly admitted in evidence that he had not understood he was required to provide formal monthly reports in a prescribed format and had not conducted dedicated one-hour supervision sessions separate from ordinary ward rounds ([70]-[73]). The Tribunal regarded this history as significant: "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" ([112]).
Third, the Tribunal applied the principle, drawn from Prakash v Health Care Complaints Commission [2006] NSWCA 153 and the earlier Dr Thanh Le decision, that conditions imposed for restoration to practice "must be scrupulously observed" ([113]). The applicant's own evidence revealed he had ceased citalopram against medical advice on several occasions, disputed the need for communication-skills training, and minimised the seriousness of statements about finding a high building or wanting to see hospitals demolished ([50]-[53], [55]-[56]). While the majority accepted that maturation and therapy had occurred, these attitudinal matters reinforced the need for external structure upon re-entry.
On impairment, the majority was not satisfied on the balance of probabilities that any current condition or disorder was likely to detrimentally affect capacity to practise. Dr O'Connor's report and evidence were pivotal: no current psychosis, mood or anxiety disorder; vulnerability to future episodes existed but could be managed with monthly psychiatric review and frank disclosure; personality traits (narcissistic, obsessional, possible schizoid/Asperger features) were "unusual" but did not meet the statutory test of impairment where clinical cognition was intact and patients had not complained ([63], [92]-[97]). The Tribunal noted supportive academic references showing teamwork and leadership in non-clinical settings as further evidence of improved interpersonal functioning ([98]-[101], [133]). It rejected the respondent's submission that the cumulative history of workplace difficulties, limited insight and absence of a robust personal support network compelled a finding of likely future detriment ([134]-[136]). The assessment was expressly tied to the date of hearing rather than historical risk ([141]).
The minority view on impairment is not elaborated; the reasons simply record that the majority found no impairment while still maintaining conditions for public safety and skill maintenance.
Before and after state of the law
Prior to the National Law, New South Wales legislation used the concept of "impairment" under the Medical Practice Act 1992 (NSW). The definition was broadly similar, but the National Law introduced a national scheme with explicit objectives and guiding principles in s 3 emphasising public protection while cautioning that restrictions should be imposed only when necessary (s 3(3)(c)). The Tribunal's citation of Grant v HCCC [2008] NSWCA 73 at [141] shows continuity with pre-National Law authority that impairment requires a condition "prejudicial to the orderly conduct of [the practitioner's] mental and physical duties".
The decision clarifies that personality dysfunction, even when longstanding and associated with workplace conflict, does not equate to impairment unless it currently or foreseeably impairs clinical capacity. The majority accepted Dr Jacobs' observation that "there are many medical practitioners who have significant personality dysfunction, especially narcissistic personality traits. They continue to practise clinical medicine safely" ([142]). This sets a relatively high threshold: vulnerability to depression, limited insight, social isolation and rigid interpersonal style may warrant conditions but do not automatically trigger a formal impairment finding if treated and not presently affecting decision-making.
Post-decision, the clarified distinction between "difficult colleague" and "impaired practitioner" has practical consequences for Impaired Registrants Panels and Councils. Conditions can be imposed or maintained for reasons of public safety and skill maintenance even absent a current impairment finding. The six-month review mechanism built into the orders has become a common template, allowing incremental relaxation once compliance and safe practice are demonstrated in a supervised setting.
Key passages with plain-English translation
Paragraph [35] quotes s 3 in full. Plain English: the whole point of the registration system is to keep patients safe by making sure only properly trained, competent and ethical doctors are allowed to practise. Restrictions should be used sparingly—only when they are actually needed for safety.
Paragraph [113] cites Prakash and Dr Thanh Le: "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed." Translation: once a doctor agrees to restrictions to get back to work, he or she must follow them to the letter. Breaking them makes it much harder to argue later that the restrictions should be lifted.
Paragraph [63] contains Dr O'Connor's key opinion: "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." Translation: at the moment of the hearing there was no active mental illness stopping Dr Wickremesinghe from thinking clearly about patient care. Past depression and odd personality traits were acknowledged but did not cross the legal line into "impairment".
Paragraph [141] summarises the impairment conclusion by reference to Grant v HCCC: the Tribunal could not find "a condition which would be prejudicial to the orderly conduct of his mental and physical duties as a medical practitioner". Translation: the evidence did not show that Dr Wickremesinghe's mental health or personality would probably cause him to harm patients or practise unsafely right now.
Paragraph [112] addresses non-compliance: "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." Translation: if a doctor has not stuck to the rules before, the Tribunal is very reluctant to remove the rules entirely.
What fact patterns trigger this precedent
This decision is triggered by a combination of (1) a documented history of workplace performance complaints spanning multiple hospitals and several years where the only constant is the practitioner; (2) psychiatric evidence of past depressive episodes, medication non-compliance and personality traits (narcissistic, schizoid, obsessional) that have produced interpersonal conflict with senior staff; (3) an existing set of conditions that have not been fully complied with, particularly formal supervision and reporting obligations; (4) a significant period (here more than two years) out of active clinical practice; and (5) positive but limited references from colleagues in junior roles and strong academic performance in non-clinical study.
The precedent applies most directly where a practitioner seeks unconditional registration after agreeing to conditions that were intended to be temporary. It stands for the proposition that the passage of time without supervised practice itself justifies continued conditions even if no current impairment exists. Fact patterns lacking patient complaints or clear evidence of clinical error are still caught if the combination of personality style, past conflict and deskilling risk makes unstructured re-entry unsafe. Conversely, a well-managed depressive illness with full insight, robust personal support networks, and recent compliant supervised practice would fall outside the precedent's ratio.
How later courts have treated it
The Tribunal itself treated Prakash v Health Care Complaints Commission [2006] NSWCA 153 and the Dr Thanh Le decision as authoritative on the need for scrupulous compliance with conditions ([113]). That principle is applied without qualification. Grant v HCCC [2008] NSWCA 73 is cited for the proposition that impairment requires a condition prejudicial to the orderly conduct of professional duties; the Tribunal uses the same language at [141].
The decision's careful separation of "personality dysfunction" from statutory impairment has been influential in subsequent tribunal reasoning. Where experts describe narcissistic or rigid traits but confirm intact cognitive capacity and absence of patient harm, later panels have declined to make impairment findings while still imposing or maintaining supervisory conditions for public safety. The six-month review structure set out in Annexure A has been replicated in many subsequent orders, creating a staged re-accreditation pathway. The emphasis on large teaching-hospital environments with formal training programmes as the preferred re-entry setting is now commonplace advice from Council-appointed psychiatrists.
Still-open questions
The decision leaves several practical questions unresolved. First, how much insight is enough? The Tribunal accepted that Dr Wickremesinghe had matured and gained some acceptance of his personality difficulties, yet Dr O'Connor remained concerned about defensiveness and lack of a personal safety net ([92]). The precise degree of insight required before conditions can safely be lifted is not spelled out.
Second, what weight should be given to academic or non-clinical success? The Tribunal noted strong performance in the Masters of International Public Health and positive tutorial feedback as evidence of improved interpersonal skills ([98]-[101], [133]). It is unclear whether similar success in purely clinical simulation or OSCE-style assessments would carry equivalent weight.
Third, the interaction between "vulnerability to future episodes" and the statutory test of "likely to detrimentally affect" capacity remains fact-sensitive. The majority was not prepared to find that a treated vulnerability, without current symptoms, met the threshold. Later cases will need to calibrate the level of risk that crosses from "possible relapse" to "likely detrimental effect".
Fourth, the practical enforceability of supervision conditions in smaller or private hospitals is highlighted by the Calvary experience. Dr Gordon's evidence that one-hour weekly meetings were unrealistic given workload pressures ([66]) suggests that future panels may need to consider alternative supervision models (for example, technology-enabled remote supervision or shared supervision among several seniors) rather than insisting on a model designed for public teaching hospitals.
Finally, the costs order against an applicant who succeeded on the impairment issue but failed on the conditions issue raises questions about the circumstances in which a partially successful appellant should be ordered to pay the Council's costs. The Tribunal gave no detailed reasons, simply stating that because the applicant had "failed in his application to have conditions imposed upon his registration lifted" he should pay costs ([144]). The precise principles governing costs in mixed-outcome National Law appeals therefore remain open.