Winter v Medical Council of New South Wales [2025] NSWCATOD 50

What has the Heath Care Complaints Commission done in the last year?

1. When the Council suspended the Practitioner's registration on 20 March 2024, they also referred the matter to the Health Care Complaints Commission (the Commission) for investigation.
2. Counsel for the Medical Council was unable to offer any explanation as to why it has taken almost a year for the Commission to complete an investigation given that the substance of the complaint against the Practitioner has not materially changed in that period.
3. It took until 5 March 2025, for the Commission to write to the Practitioner advising him that the Commission was at its end of its investigations concerning the complaints against him and informing him that the evidence indicated that:
   • He may be suffering from an impairment as defined under the National Law
   • He engaged in improper and/or unethical conduct in the practice of medicine as defined under the National Law
4. The letter further informed him that the Commission was proposing to refer to the matter to the Director of Proceedings under s 39(1)(a) of the Health Care Complaints Act 1993 for determination whether to prosecute a complaint before a professional disciplinary body. The purposes of the letter of 5 March 2025 to the Practitioner was to afford him an opportunity pursuant to s 40 of the National Law, to make submissions on the proposed action. He was given 28 days to do so. The cutoff date for the submissions was 3 April 2025. The letter informed the Practitioner that should he provide submissions, the Commission will consider them before seeking to consult the Medical Council of NSW in relation to the proposed outcome. It was anticipated that that consultation would occur mid to late April 2025.
5. It is unclear to the Tribunal as to why the investigations into the complaints against the Practitioner has taken that long, given that the Practitioner, who is now 80 years of age, was left in limbo by way of the suspension in the meantime. Whilst it seems likely, as we hear this matter, it is unclear at this point as to whether any application for a protective order is in fact going to be made by the Commission against the Practitioner.

Allowing the appeal to be filed outside 28 days

1. The submissions made by the Medical Council (Exhibit 6 at para 5), assert that the Practitioner's current appeal is out of time and it opposes an extension of time. Counsel for the Medical Council did not seek to have the extension of time issue dealt with as a threshold issue but was content to have the matter heard fully and for us to deal with its opposition to extension of time in that context.
2. Section 161(a) of the National Law provides that any appeal against the decision is required to be made within 28 days of the decision (which was 17 April 2024). The current appeal was filed 27 September 2024 and was accordingly more than five months after that date.
3. However, s 161(b) allows an appeal to be filed alternatively "within the longer period allowed by the Tribunal". There is also the power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend time.
4. Four factors of relevance to the exercise of discretion to allow further time are the length of the delay, the reason for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent (see EFQ v Medical Council of New South Wales [2021] NSWCA 167 at [18]).
5. The Medical Council submits the Practitioner has offered no proper explanation for his delay.
6. The Practitioner states that the reason this appeal was lodged outside the time allowed is:

The current application is a continuance of 2024/136/168 that was discontinued while costs were resolved on 12 July 2024 before Justice [sic] Levy. I was not able to proceed until the matter was resolved and the cost application was dismissed.

1. This statement in the Practitioner's application is a reference to the fact that he first had earlier sought to appeal the decision made by the delegates at the second s 150 hearing, by way of application on 11 April 2024. That appeal was listed for hearing on 11 July 2024. However, on 9 July 2024, the Practitioner indicated that he wanted to withdraw his appeal due to ill health. On 11 July 2024 there was no challenge to that explanation of "ill health" in the hearing before Levy SC ADCJ and the Tribunal gave leave to withdraw the appeal and dismissed it: Winter v Medical Council of New South Wales [2024] NSWCATOD 100.
2. The first point to make is that the Practitioner's assertion that this is a continuance of the previous appeal is misconceived. The current application is a new appeal.
3. The Medical Council correctly records that in the reasons on the first appeal at [4], the Tribunal said that, "At the eleventh hour, the applicant decided he wanted to withdraw his appeal citing his ill-health, and after discussion, conceded his cognitive impairment..." and the Tribunal at [28] said:

On a review of the above evidence [that is the reports of Dr White and A/Prof Wigeratne], the Tribunal accepts that [the Practitioner's] concession of cognitive impairment should be accepted as being reasonable. Similarly, his decision to withdraw his appeal and have it dismissed is also reasonable...

1. Based on those statements in the reasons, the Medical Council submits that the Practitioner's first appeal was discontinued because he accepted his cognitive impairment.
2. As discussed during the hearing, a full reading of the transcript of the proceedings before the Tribunal on the first appeal, does not support that conclusion.
3. Properly characterised, what happened on the first appeal is that the Practitioner sought to withdraw the appeal based on his "ill-health". There was then an argument as to whether there should be cost orders made against him. The Practitioner argued that the Medical Council could not have it both ways. They could not argue that he was cognitively impaired on the one hand and seek costs against him on the other. There were discussions about whether a cost order should be made against the Practitioner. In that context, he accepted for the purposes of the cost argument that the Medical Council had brought evidence that he was cognitively impaired and on that basis, he did not seek to challenge that evidence for the purpose of the cost application.
4. The Council correctly argue that it would suffer prejudice were an extension of time granted in circumstances where it is not able to recover the costs of the first appeal against the Practitioner. We accept that we have no jurisdiction to revisit the issue of those costs in this appeal. The asserted prejudice by the Medical Council is mitigated by the fact that it voluntarily withdrew their costs application on the basis described above.
5. In summary, we do not accept that the Practitioner conceded cognitive impairment on the appeal in any other circumstance than that described above.
6. Other factors we take into account is the amount of time it has taken for the Commission to get to the end of its investigations and the age of the Practitioner.
7. It was also asserted by the Medical Council that the Practitioner's proper course was to seek a review of the decision pursuant to s 150A of the National Law. It is clear that that section is an alternative method of reviewing the outcome of a s 150 hearing and that alternatively, the Practitioner had a right to bring this matter directly to the Tribunal under s 159(1)(a) of the National Law. He has exercised that right.
8. In our view, it is appropriate for us to allow the Practitioner to file his appeal "within the longer period" described in s 161(b) of the National Law.

1. The Practitioner is a general practitioner. He was born in 1944 and is currently 80 years of age. He graduated a Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in 1968. The Practitioner was first registered as a medical practitioner in Australia on 21 May 1969.
2. Prior to his suspension, he was working two days as a locum at Springwood Central Medical Clinic. He has been working in that capacity for about ten years. The Practitioner described how, on a pro rata basis, he was the highest fee earning general practitioner at the Springwood practice. Prior to suspension he saw six patients an hour (each for less then 10 minutes) and worked one week day between 8am and noon and alone in the practice on Saturday mornings. The Practitioner told us patients who saw him included a regular cohort who like him and appreciate his type of humour.
3. This is in contrast to what the IRP records the Practitioner told them:

He almost never sees return patients. (Exhibit 4, pg 276)

1. He otherwise has worked as a locum in rural and remote areas of Australia for limited period each year and wishes to continue to do so.

1. The Practitioner has been subject to 11 complaints in New South Wales since April 1998, nine of which include comments about his communication skills and allegations including that he was rude, dismissive, insensitive and unsympathetic. Five complaints have been lodged since May 2023 with a consistent theme concerning his communication style. The table setting out summaries of each of the complaints are contained in exhibit 4 from pages 7-35.

The Practitioner's presentation and oral evidence

1. During the hearing before us over two days, the Practitioner was able to maintain an even emotional tone for the most part. This is in contrast to other occasions when objectively he has behaved badly and disrespectfully towards those inquiring into whether he should continue to practise.
2. The Practitioner maintained his disdain for Dr White and to a lesser extent to A/Prof Wijeratne. Whilst he thought Dr Metcalf was a nice person, he made clear in his questions of her that he thought she was part of the Medical Council's "stable" who had their independence compromised because they received payments by the Medical Council for their reports. Having heard both A/Prof Wijeratne and Dr Metcalf give evidence, we do not accept the Practitioner's attitude that they lacked independence as having any basis at all.

1. We are not required in this hearing to make any findings about the Practitioner's credibility. We do note however that during the hearing the Practitioner would forcibly assert that something reported by an examining expert did not happen. We treat those assertions with great caution given a stark example where the Practitioner ultimately conceded that a forceful assertion made by him was not correct. This example occurred during cross examination when the Practitioner denied that he had ever said of Dr White, "she hates Jews". The Practitioner was taken to the part of a transcript where it was recorded that he had said those words. Initially he was reluctant to accept the accuracy of the transcript but ultimately, when pressed, did so.
2. When being asked questions by panel member Dr Diamond (psychiatrist), the Practitioner said that he knew what Dr Diamond was thinking because he was able to read people's faces and body language. When he was challenged about that aptitude by Dr Diamond, the Practitioner adamantly doubled down and asserted he had the capacity to know what people were thinking.

1. The Practitioner has been subject to numerous hearings and assessments. In chronological order, they are as follows:

(1) Neuropsychological assessment by Dr White, 19 June 2023

(2) First s 150 proceedings, 1 September 2023

(3) Assessment by A/Prof Wijeratne, 28 November 2023

(4) Impaired Registrant's Panel, 22 February 2024

(5) Second s 150 hearing, 20 March 2024

(6) First appeal, 11 April 2024

(7) Assessment by Dr Keng, 9 November 2024

(8) Assessment by Dr Venkateswaran, 13 November 2024

(9) Assessment by Dr Singh, 20 November 2024

(10) Assessment by Dr Metcalf, 24 February 2025

(11) A/Prof Wijeratne's second report, 18 March 2025

1. We shall discuss what happened at these previous assessments and hearings.

Dr White: Neuropsychological assessment, 19 June 2023

1. On 19 June 2023, the Practitioner was assessed by Dr Amanda White, forensic and clinical neuropsychologist, as directed by the Council under s 152B of the National Law. For the purpose of examining his cognitive functioning and commenting on whether he qualifies for "impairment" as defined in s 5 of the National Law.
2. Dr White's report dated 30 June 2023 (exhibit 4, Tab 42 page 291) concluded that the Practitioner was impaired, with poor insight and that he demonstrated "significant cognitive decline".
3. Dr White's report has not been able to be tested because she has declined to make herself available. She has also declined to make her testing available because the Practitioner has refused to give his consent for her to do so. The Medical Council has not sought to compel Dr White to give evidence, nor to compel the production of the raw data collected by her during the testing of the Practitioner. The background in relation to Dr White's decision not to participate in this hearing is documented in email exchanges and correspondence between the Health Professionals Council Authority and Dr White (see exhibit 5, pages 3-20).
4. The Practitioner brought proceedings in NCAT in January 2024 against Dr White where he asserted that her actions have caused him to be suspended and to lose substantial income. He sought recovery of that income against her. His application was dismissed by the Tribunal for want of jurisdiction.
5. The lawyers for the Practitioner indicated that Dr White had written to the Medical Council previously seeking assistance in respect of the Practitioner's pursuit against Dr White and asserted that the Practitioner had caused Dr White "a lot of stress and anxiety" (exhibit 5, page 5).
6. Dr White saw the Practitioner on 19 June 2023 over a total of three and a quarter hours with two breaks.
7. Dr White's report refers to the documents provided to her which raise specific concerns about the Practitioner's treatment and management of several patients.
8. Dr White administered a battery of psychological tests, including tests for executive functioning. In her report dated 30 June 2023, Dr White concluded that the assessment presented evidence of significant areas of difficulty, including visuospatial and constructional skills, impairments in aspects of verbal new learning and memory that are less structured and likely associated with the Practitioner's deficits in his executive functioning. She reported that he presented with significant executive functioning difficulties, including his planning and organisational skills, higher order attention deficits, mental flexibility and conceptional reasoning skills as well as inefficiencies in generative and inhibitory control. In contrast, Dr White observed that the Practitioner had superior verbal abilities. She observed that whilst other aspects of his profile such as visual skills, processing speeds and working memory were generally within the low average to average range, they appear to reflect a marked decline from previous levels of function. She opined that impairment in these areas was evident when his test results were evaluated using age and full demographic (age, education and gender) norm comparisons.
9. Dr White observed that she had limited collateral evidence available at the time of the assessment. Further, Dr White opined that whilst the Practitioner is likely to be experiencing difficulties in his work, as with many high-functioning individuals, this can be often masked for a period. Identification and diagnosis was made with difficulty because of the nature of the Practitioner's work as a locum where he worked for limited periods of time. In Dr White's opinion, the Practitioner presented with poor insights into his cognitive deficits and lacked awareness regarding the potential impact on his professional practice.
10. Dr White opined that the aetiology of the test results is unclear but they did indicate a neuro-cognitive disorder and the "possible early stages of neuro-degenerative process with predominately frontal and parietal involvement". She said that this aetiology was likely on a long-standing background of personality factors and she was of the view that the Practitioner would qualify as suffering from an impairment according to the National Law.
11. Dr White recommended that Council review the Practitioner's practice at the earliest opportunity and that a further review and investigation be conducted to inform whether he is suitable to continue to practise medicine and if so, in what capacity. At a minimum she recommended that he will require conditions and close supervision of his work in a stable workplace in the presence of other general practitioners. She appreciated that that was made trickier as he works in short-term locum positions. In Dr White's view, it would be unsuitable for the Practitioner to work with a high level of autonomy and independence, especially in remote areas, particularly when he lacked insight into his current cognitive difficulties. Dr White strongly encouraged the Practitioner to engage with a general practitioner and a geriatrician to oversee his health and to facilitate a comprehensive workup as appropriate. This would ensure that any other potential causes to his presentation were excluded.
12. Before us the Practitioner railed against the opinions expressed by Dr White including:
    • Concluding in her report that he may have the possible early stages of a neuro-degenerative process with predominately frontal parietal involvement which he said was a fatal condition
    • Referring in her report at the start of her mental state examination to him having "balding grey hair and being dressed in a business shirt, slacks and a jumper that had some notable stains on the front"
    • Saying Dr White had worked out where his weaknesses were and then she administering further testing to amplify those weaknesses
    • Alleging Dr White got him so disorientated that he was unable to answer a question about the boiling point of water
    • Observing that at the first s 150 hearing, the delegates continued to allow him to practise notwithstanding the contents of Dr White's report because of the way he presented at that hearing which was not consistent with Dr White's opinion
    • Telling Dr Metcalf that Dr White was a "skank". The word 'skank' is a derogatory term for a disreputable or sleazy person and more specifically a woman who has many casual sexual encounters or relationships (Oxford Dictionary of English).
13. The Medical Council did not compel Dr White to give evidence before us nor did they compel the production of the record of the battery of psychological tests which she had given to the Practitioner on 19 June 2023. As we will mention below, a request was made for Dr Metcalf to have access to this initial battery of testing but the Practitioner refused to give his consent to that happening voluntarily.
14. Whilst Dr White has not been made available by the Medical Council for cross examination for reasons discussed above, there is no particular reason to doubt the statements made in her report about the actual outcomes from the battery of tests that she conducted (as opposed to any opinions that she expressed flowing from those results). Whilst neither A/Prof Wijeratne or Dr Metcalf had the raw data available to them, they were reasonably entitled to rely upon that part of Dr White's report which objectively sets out factual matters arising from the results of the battery of tests that she administered. The weight that we can place on Dr White's opinion as to the Practitioners dysfunction is significantly limited by the fact that she was not available for cross examination.

1. The Practitioner appeared before delegates at the first s 150 proceedings on 1 September 2023. Following that appearance, no action was taken under s 150, however, the delegates "recommended that [the Practitioner] should undergo a practice based performance assessment and he be assessed by a council directed psycho- geriatrician".
2. In the reasons for decision by the delegates in the second s 150 hearing (conducted 20 March 2024 and published 2 April 2024), the following is recorded in relation to the first s 150 proceedings:

[The Practitioner] attended s 150 proceedings on 1 September 2023. Council Delegates noted that [the Practitioner] did not present as being impaired and they were not satisfied that any possible impairment would justify taking urgent action under s 150. Instead, they recommended that [the Practitioner] be assessed by CDHA psycho-geriatrician and undergo a practise-based performance assessment to provide reassurance that his clinical practise was sound. The Delegates also counselled [the Practitioner] to seek advice from his medical indemnity insurer in his dealings with the Council, and to be more sanguine in his communications with regulatory bodies, including the Council. The Delegates also made a note of [the Practitioner's] assumptions about the Delegates' opinions, religious beliefs, and qualifications, and they cautioned him about prejudging him and others and they advised him to demonstrate to Council that he is able to listen, have insight and to be openminded, including about its processes.

Associate Professor Wijeratne (assessment 28 November 2023 and first report 8 December 2023)

1. Following the first s 150 hearing, the Council attempted to arrange an appointment for the Practitioner to be assessed by a psycho-geriatrician. The Practitioner raised an objection to the proposed assessor (Dr Mulholland) and requested to see a different psycho-geriatrician. Ultimately, the Practitioner did not attend for the assessment, and an appointment was made for the Practitioner to see a different psycho-geriatrician (exhibit 4, 43/301).
2. Over the Practitioner's objection, the IRP considered the two health assessment reports (of Dr White and Associate Professor Wijeratne), referred to above.
3. On 28 November 2023, the Practitioner was assessed by Associate Professor Chanaka Wijeratne, consultant psychiatrist, as directed by the Council under s 152B of the National Law. His report dated 8 December 2023 is exhibit 4, (Tab 44/ page 303).
4. At the hearing before us, the Practitioner asserted that being cleared by the first s 150 panel, the Medical Council contrived to have a second attempt at obtaining the suspension of his registration by requiring him to see A/Prof Wijeratne. In fact that is not accurate. The first s 150 panel recommended that there be a further assessment by a psycho-geriatrician and that is the primary reason why A/Prof Wijeratne was commissioned to carry out the assessment.
5. A/Prof Wijeratne was provided a number of documents including Dr White's neuropsychological report of her assessment on 19 June 2023. He refers to the complaints that had previously been brought against the Practitioner, his presenting symptoms, psychiatric history, medical history and his development, professional and career history. In the latter category, A/Prof Wijeratne notes that the Practitioner was up to date with his CPD which he thought was a worthless exercise.
6. A/Prof Wijeratne carried out a mental state examination and a cognitive examination.
7. In his report, A/Prof Wijeratne reviews the documents that he had received and obtained the Practitioner's version in respect of various complaints, which were similar to the versions that the Practitioner gave in his oral evidence. When reviewing the complaints, A/Prof Wijeratne observed that an earlier performance review had contained assertions the Practitioner had not used a patient-centred method appropriate for general practice situations and that he had limited strategies for managing a distressed patient. It further said it appeared likely that the Practitioner's clinical communication methods had the potential to escalate a distressed or conflict situation instead of calming it down. A/Prof Wijeratne reviewed what was in Dr White's report and noted that she concluded that the Practitioner had a neurocognitive disorder which was most likely neuro-degenerative and resulted in him having an impairment.
8. A/Prof Wijeratne reviewed what had happened at the first s 150 hearing on 1 September 2023. That panel had accepted that some of the Practitioner's explanations in relation to complaints brought against him were plausible and they concluded that the Practitioner had not presented to them as being impaired. The delegates cautioned him about prejudging them (he had objecting to the IRP panel because he believed it is "Muslim", did not want a "Muslim deciding my fate" and having a panel of "academics").
9. In concluding his report, A/Prof Wijeratne set out his diagnostic considerations, observing that the Practitioner's views about the value of College Fellowship and CPD were contrary in nature and opinions expressed about colleagues were broad generalisations without any evidence base.
10. He comments:

Whilst [the Practitioner's] belief about the primacy of diagnosis in clinical practice is appropriate, his views on the role of communication is not consistent with the MBA's Good Medical Practice - a Code of Conduct for Doctors in Australia. This document states that, "effective communication is an important part of the doctor/patient relationship. Although he was well aware of his longstanding style of interaction with patients, admitting he responded in a robust manner when a patient crossed the threshold by demanding something, it is of concern that he did not see a need to modify it. The 10 complaints in the last 25 years mostly reflect his communication style with several complaints alleging that he was rude or dismissive.

It is notable that there has been an acceleration of complaints given half have been in the last 2 years, leading to consideration of an age-related neurocognitive disorder. The acceleration of complaints may reflect a coarsening of premorbid personality traits due to executive dysfunction (see below). The general public being less tolerant of what they consider inappropriate behaviour by a doctor may be another factor.

The neurophysiological assessment [by Dr White] was detailed and tested all aspects of cognition, not just visuospatial function. It has shown declines from estimated premorbid function in multiple cognitive domains apart from verbal abilities. There was particular decline in several tests of executive function, as well as observations that [the Practitioner] demonstrated low frustration, tolerance and poor persistence at tasks.

Its findings are essentially consistent with preservation of crystalised intelligence which depends on education and experience, and decline in fluid intelligence which is required for novel problem solving and speed of processing. However, the results do not necessarily provide evidence of a neurodegenerative course.

1. A/Prof Wijeratne concludes the most likely diagnosis is Mild Cognitive Impairment for which there are no obvious risk factors (such as vascular risk factors, substance abuse or mood disorder) other than age. In A/Prof Wijeratne's opinion, the Practitioner has an impairment that potentially detrimentally affects his capacity to practise medicine as defined by the National Law.
2. A/Prof Wijeratne's recommendations were:

(1) Cerebral MRI scan

(2) Repeat of neurophysiological assessment in June 2024

(3) Consultation with an independent GP for ongoing care

(4) Work under supervision.

1. He also noted that a performance assessment had been recommended

1. Following A/Prof Wijeratne's opinion that the Practitioner had an impairment, the Medical Council convened an Impaired Registrant's Panel (IRP) on 22 February 2024. which the Practitioner attended. The IRP's report dated 6 March 2024 is at exhibit 4, 38/267.
2. The Practitioner asserted that when he was seeing A/Prof Wijeratne for the assessment for his report, he asked him whether or not his starting point was Dr White's report and he replied that it was. Before us, A/Prof Wijeratne denied he had stated this. The Practitioner asserted that there had been some form of collaboration between Dr White and A/Prof Wijeratne. Again, A/Prof Wijeratne denied that there had been any such collaboration. The Practitioner asserted that Dr White had lied about him being tired and about him reciting a story about how he had become angry being offered a seat on a train, telling the panel that one lie in the report invalided everything else in the report "absolutely". The Practitioner described Dr White to the IRP as a "depraved liar". The Practitioner had also reiterated to the panel that after determining that he was an Ashkenazi Jew, Dr White proceeded to focus on testing for visuospatial skills. The Practitioner said that this ethnic group was apparently known to be weak in these skills. He asserted Dr White avoided testing other areas Ashkenazi Jews were known to be strong in. He stated that when he worked as a physiology tutor at UNSW around 1969, there were anti-Israel protests on campus that included members of the psychological faculty where Dr White now teaches. He said that Dr White teaches at UNSW and that UNSW and Dr White "will not tolerate anyone who isn't congruent with everything that they espouse, one of which is hatred of Israel".
3. In relation to Dr White the Practitioner concluded:

She did her job on me. Maybe I look like her ex-husband, maybe she hates Jews, maybe she thinks I have toxic masculinity. But most likely Jew hatred.

1. The Practitioner objected to the use of A/Prof Wijeratne's report because of his reliance upon the results of the psychological testing as described by Dr White and he asserted that there had been collaboration between A/Prof Wigeratne and Dr White.
2. The Practitioner told the panel "I am an unpleasant human being but I am not demented". He said he was respectful and quiet until people "come at me then I get aggressive and I don't take shit". He thinks that he has been an outsider "for all sorts of reasons", he has his own internal compass and "stands up against authority when transgressing". He is a good friend but a bad enemy. He thinks that he does a good job but will not accept disrespect from patients. He does not accept that he is rude and hostile but "I don't do superficial niceties - if I don't like somebody, they see it".
3. When asked about his rude and hostile communications with Council staff, he replied that:

The Council had been deeply hurtful...you have come after me and done evil to me...you have labelled me as a chronic brain disease and I could be forgiven for being upset about that. The abusive emails to the Council staff are in response to ...threatening letters...It has been an inept investigation at every step of the way...

1. The Practitioner described the Springwood practice as the only fully bulkbilling practice in the area. He said that that meant that he saw people who are "too poor or too cheap". Consultation times are 10 minutes which was not long enough to read the files. The Practitioner was critical of the clinical acumen of the other doctors at the practice, attributing this to their overseas training. He does not have any contact with other doctors, they all "have their heads down, making money".
2. The IRP records that the Practitioner was critical of the nature of CPD which he described as a joke. He believed there was some central medical skills that did not need to be updated. He acknowledged that there had been some new developments since he graduated "but not a lot". Before us, the Practitioner denied that he had said this to the panel and acknowledged that there had indeed been significant developments in medical skills since he had graduated.
3. As an example of a CPD activity that he had benefited from, he nominated his ability now to separate his clinical personae from his personal attitudes when he treated lesbian women. He no longer started from the position that they had a disease and he no longer smirks. He understands now that they have a legitimate right to their lifestyle.
4. The Practitioner asserted his physical fitness and indicated that he did not intend to put himself through any screening for his physical health.
5. The report from the IPR concluded that the Practitioner's presentation was rude, hostile, combative, and aggressive to a level unprecedented to the two panel members who had both extensive experience as hearing members. The Practitioner was angry throughout the hearing with lashes of rage, banging the table and yelling at times. He frequently interrupted or spoke over the panel, appearing to be impulsive and unable to control himself, despite repeated requests to do so.
6. The Practitioner was regarded by the panel as contemptuous, insulting and dismissive of everything and everyone. The IRP opined he displayed a paranoid world view as evidenced by his belief that Dr White's report was negatively influenced by her hatred of Jews (for which there was no evidence). He was impulsive, irritable, uncooperative and unprofessional. He was extremely disrespectful of the panel, the Council and its staff and the process in general.
7. The IRP expressed concern about the Practitioner's description of various aspects of his clinical practice of medicine. For example, the Practitioner said he did not read previous medical records, did not consult at all with his colleagues from whom he expressed disdain and disrespect, and spoke about his patients in a demeaning manner. He also made clear that he sees no need to update his medical knowledge and sees no value in CPD activities.
8. Before us, the Practitioner made similar comments.
9. The Practitioner left the IRP inquiry prior to is conclusion. Prior to leaving and in later communication with the Council, the Practitioner made it clear he would not consent to or comply with any conditions being placed upon his registration.
10. The IRP was of the opinion that the Practitioner was impaired for the purposes of the National Law. The IRP was concerned about the effectiveness of placing conditions on the Practitioner's registration, with serious concerns for the feasibility of the appellant entering into a constructive supervision relationship with a supervisor. The IRP recommended that the Practitioner consent to a "not to practise condition".
11. The Practitioner later informed the Council that he would not consent to the panel's recommendation of a "not to practise" condition.

Second s 150 proceedings and action to suspend (20 March 2024)

1. On 20 March 2024, further s 150 proceedings were convened. On this occasion, the Council determined it should take urgent interim action under s 150 to suspend the Practitioner's registration. This was because it concluded that the Practitioner was impaired, lacked self-awareness and posed a risk to the health and safety of the public. The Council's reasons dated 2 April 2024 commence at exhibit 4, tab 2, pg 9.
2. The Practitioner was represented at this hearing on 20 March 2024. Written reasons for the decision of the delegates were published on 2 April 2024. Before those delegates, the Practitioner confirmed that he does not review past notes "in most cases". Again, this was something the Practitioner confirmed before us.
3. The Practitioner made the point before this hearing (one which he made on a number of occasions before us), that in 50 years, no one has ever cited him for therapeutic error, although he admitted he made mistakes and was deeply embarrassed by them there had never been any complaint arising from those mistakes.
4. The Practitioner told the delegates that whilst he was supervising international students in the Springwood practice, he did not discuss errors or similar issues with them as they were Filipinos and that, "confrontation can be lethal with Filipinos".
5. Again, when discussing Dr White's report, the Practitioner stated emphatically that, "Dr White is a liar" and that her report "was a big fat lie" and an attempt to "character assassinate me".
6. Before the delegates at this hearing, the Practitioner repeated his assertion that Dr White was anti-semitic. He stated, "she hates Jews" and that he made reference to the fact that her alma mater, UNSW, were full of "Jew haters".
7. The Practitioner reiterated before these delegates that there had been some form of collaboration between Dr White and A/Prof Wijeratne, a proposition that the Practitioner put to A/Prof Wijeratne in his cross examination before us. A/Prof Wijeratne repudiated this suggestion.
8. Throughout this second s 150 hearing, the Practitioner was reported by the delegates as being belligerent and rude.
9. As to his future plans, the Practitioner told the delegates that he intended to continue to work as a locum in various locations, including isolated rural settings. The Practitioner indicated that he would not agree to any conditions being placed upon his registration. The delegates record that at the end of the hearing, the Practitioner said that he had "no respect for the delegates and that "I won't give you the dignity" and "hope you have a bad life".
10. The delegates at the second s 150 hearing found that the evidence established a risk that the Practitioner was impaired. They commented that his behaviour in the hearing was supportive of that finding. They did not agree with any of the reasons raised by the Practitioner for doubting the veracity of the reports of Dr White and A/Prof Wijeratne and concluded as follows:

We believe that [the Practitioner's] impairment, his lack of self-awareness, his grandiosity, his failure to use medical records and his communication with patients, is a risk to the health and safety of the public.

Importantly, we do not believe that anything short of suspension will be successful in protecting the public against that risk as [the Practitioner] has shown himself to be contemptuous of Council's processes and procedures. His own response show him to be unwilling to comply with any conditions.

1. As noted above, on 11 April 2024, the Practitioner filed an application seeking to appeal the decision. He sought leave to withdraw the appeal on 9 July 2024. The appeal was withdrawn and dismissed on 11 July 2024.

1. On 27 September 2024, the Practitioner commenced this appeal. In his grounds for the appeal, he said:

The case revolves around my mental capacity viz 'my dementia'. I can prove I'm not cognitively impaired. The Council's assertion is false.

1. In November 2024, the Practitioner consulted two geriatricians and a consultant psychiatrist and obtained short reports from each of them.

1. Dr Keng is a geriatrician. Dr Keng reported that on 9 November 2024, he carried out a routine geriatric assessment and that his neurological examination was unremarkable. His cognitive assessment showed no evidence of rigid thinking. He reported that an MRI brain performed 29 April 2024 demonstrated mild chronic small vessel ischaemic gliosis.
2. Dr Keng found no evidence of cognitive impairment. However, Dr Keng noted that he did not have access to the previous report of Dr White or any collateral history. In his oral evidence, Dr Keng freely admitted the limitation of the time he had to assess the Practitioner but more particularly the limitations that flowed from the lack of collateral history or documents that he had available to him, placed upon this opinion.
3. We place little weight on Dr Keng's opinion. His inability to find any evidence of cognitive impairment does not mean that the Practitioner does not suffer from mild cognitive impairment as assessed by the expert witnesses for the Medical Council.

1. Dr Venkateswaran is a consultant geriatrician and provided a report dated 13 November 2024 (exhibit 4, pages 370-371). The doctor's assessment was that there was no objective evidence of dementia at this assessment on 13 November 2024 and there were no clinical features of delirium or mood disorder. She too however, noted appropriately that she had an absence of collateral history from any family or partner member and did not have available to her the material that was available to A/Prof Wijeratne. She specifically noted that she did not have access to previous correspondence or the neuropsychological report. The doctor was not in a position to comment upon the issue of whether the Practitioner had mild cognitive impairment.

1. The Practitioner saw Dr Singh, a consultant psychiatrist, for a consultation which lasted over an hour.
2. Dr Singh provided a report which was of five paragraphs (a copy of that report is at exhibit 4, page 429). The Practitioner contacted Dr Singh and asked him to remove the last two paragraphs of the letter. The second last paragraph is in the following terms:

I also advised [the Practitioner] that he should consult a neurologist and a geriatrician for their opinions regarding his current cognitive state and whether he is fit enough to continue as a general practitioner.

1. The Practitioner explained that he had made that request of Dr Singh because he believed that that paragraph could be used against him.
2. The report that the Practitioner tended in these proceedings was a report that contained only three of the original five paragraphs.
3. It does not appear from the face of that report that Dr Singh had anything other than what the Practitioner told him in the consultation. It does not refer to any other collateral information or documents. Dr Singh expresses the opinion that the Practitioner shows no evidence of cognitive impairment that would affect his ability to practise as a general practitioner.
4. The Medical Council asked the Practitioner to make Dr Singh available for cross examination. There was a number of pieces of communication between the Practitioner and the Medical Council about that issue. Dr Singh indicated that he would not be prepared to be available for cross examination unless his fee of $1,500 was paid in advance. The Practitioner was not willing to do so. Consequently, the Practitioner failed to make Dr Singh available for cross examination.
5. The report does not provide any basis upon which Dr Singh reached his opinion (apart from us knowing that he spoke to the Practitioner and observed him for over an hour). Because of the lack of reasoning and the fact that Dr Singh has not been able to be tested on his opinion, we place little weight upon it.

The Medical Council's request for a further updated assessment

1. On 6 December 2024, the Medical Council directed the Practitioner to undergo a further health assessment with A/Prof Wijeratne pursuant to s 152B of the National Law.
2. Initially, the Practitioner objected to doing so because of his assertion that A/Prof Wijeratne was not independent, saying in an email dated 6 December 2024, "he has an ongoing relationship with the Medical Council, has done prior work for you and has in anticipation for further referrals" and because the Medical Council's direction to attend an assessment with A/Prof Wijeratne was an "attempt to rig the outcome" (exhibit 4, Tab125/page 539). Later on the same day, the Practitioner asserted that there was no power to make an order under s 152B because of his suspension (an assertion which was legally incorrect given the provisions of s 176D of the National Law). Finally, the Practitioner indicated that he was not prepared to travel to Kogarah to see A/Prof Wijeratne because he would need to catch three trains and it would take him three to four hours. In an email dated 12 December 2024, the Practitioner made it clear that he did not intend to keep any appointment made to see A/Prof Wijeratne, "my answer is no". He did indicate he remained available to be assessed by a nearer doctor. On 16 December 2024, the Medical Council informed the Practitioner that they had cancelled the appointment with A/Prof Wijeratne as he had advised he would not attend. A new appointment was made with Dr Metcalf, a clinical neuropsychologist at Parramatta. On 21 January 2025, the Practitioner wrote by email, "I am available to see any of your stable of paid-up flunkies, including the one mooted for February 24", (exhibit 5, page 19).

1. The Practitioner did in fact attend Dr Metcalf at Parramatta on 24 February 2025 and it was his understanding that the assessment would take up to five hours (although the letter of instruction to the Practitioner said four hours).
2. Dr Metcalf provided a report dated 6 March 2025 and gave oral evidence. She is a senior clinical neuropsychologist, specialising in clinical neuropsychological assessments with over 20 years experience. Dr Metcalf had been sent most of the relevant available material which we have otherwise discussed, including the reports from Dr White, A/Prof Wijeratne's first report, and also the reports of Dr Keng and Dr Venkateswaran and Dr Singh, which were relied upon by the Practitioner in the hearing before us.
3. Upon entering the Dr Metcalf's office, the Practitioner stated he was only willing to remain in at the testing session for 90 minutes, despite being aware that the planned appointment was for four to five hours. The Practitioner expressed substantial dissatisfaction and distain at the process as determined by the Medical Council and suggested that the outcome was already "fixed". He further stated that he would discontinue the assessment if his "visuo-spatial skills were targeted". The Practitioner declined to sign the consent form to release the data from the 2023 neuropsychological assessment by Dr White. The Practitioner asserted to Dr Metcalf that Dr White had "lied" in her report and thus he did not want Dr Metcalf to have access to her data. Dr Metcalf renewed her request to be able to obtain Dr White's raw data, that is, a copy of the answers that the Practitioner had given when the battery of tests had been administered by Dr White. The Practitioner continued to deny consent and stated that Dr White was a "skank".
4. Because of the fact that the Practitioner left early, a full battery of tests were not able to be completed and Dr Metcalf was unable to fully assess aspects of the Practitioner's non-verbal intellectual functioning, general visuo-spatial skills, word finding, planning/organisation or higher order problem solving/concept formulation:

....his speeded thinking on visuo-motor tasks was substantially reduced compared to his current and working memory abilities and considered to be mild impairment for his demographic. Verbal mediated speeded thinking was also mildly below his superior premorbid expectations, as was his visual abstract thinking. Unfortunately, no comment on his general perceptual reasoning, problem solving, concept formation, ability to respond to feedback, or his planning/organisation (ice, most tests tapping his executive functioning) were not conducted given the early termination of the assessment.

1. Dr Metcalf also commented she would have been assisted in her assessment if she had had the data collected by Dr White available to her.
2. The Practitioner acknowledged to Dr Metcalf that he was probably more irritable than he had been in the past; he was unsure if this was attributable to age or to the Council process.
3. Dr Metcalf concluded that the Practitioner's overall cognitive profile, given current weaknesses in the speed of information processing and aspects of his verbal learning and memory, met criteria for DSM-V mild neurocognitive disorder (aka Mild Cognitive Impairment). She opined that overall, there was no evidence of decline between the two neuropsychological assessments, which argued against any current finding of a neurodegenerative condition.

Associate Professor Wijeratne's second report dated 18 March 2025 (exhibit 4, page 527)

1. On 11 March 2025 (notwithstanding the Practitioner's refusal to attend an appointment with A/Prof Wijeratne), the Medical Council requested that A/Prof Wijeratne provide a supplementary report as to whether the Practitioner has (or may have) an impairment, including a psychiatric impairment, including, but not limited to, a personality disorder.
2. A/Prof Wijeratne referred to his report of 8 December 2023, where he had concluded the Practitioner experienced an impediment as defined by the National Law on the basis of mild cognitive impairment.
3. A/Prof Wijeratne had been provided by the Medical Council the report from the IRP inquiry held on 22 February 2024, the reasons from the second s 150 proceedings held on 20 March 2024 and Dr Metcalf's report dated 6 March 2025. He reviewed each of those documents.
4. A/Prof Wijeratne opined that Dr Metcalf's assessment, although limited in scope by the Practitioner's early departure from the assessment, demonstrated marked declines from his estimated premorbid intellectual function to the low average range in various cognitive domains. These were in speed of information processing, delayed verbal memory and visual abstract reasoning. Whilst the current testing did not examine executive function, other than a couple of basic measures, previous testing by Dr White indicates decline in mental flexibility, conceptual reasoning and inhibitory control.
5. The bulk of the complaints about the Practitioner related to his style of communication with patients and these had accelerated in frequency which A/Prof Wijeratne believes was related to executive dysfunction.
6. Subsequent history has shown that the Practitioner has a cardiac arrhythmia, atrial fibrillation, and cerebrovascular disease that indicate a vascular or sub-cortical aetiology to the diagnosis of Mild Cognitive Impairment. A/Prof Wijeratne noted that Dr Metcalf's conclusion that there has been no decline in cognition since June 2023 cannot be considered a definitive conclusion given the Practitioner's refusal to complete the assessment and his refusal to provide consent for Dr Metcalf to obtain Dr White's data.
7. A/Prof Wijeratne referred to the Practitioner's irritability as demonstrating a tendency to emotional deregulation and an inability to inhibit unwanted impulses. He opined that there was a risk that such interactions - which are likely the result of longstanding personality traits that had been exacerbated by executive dysfunction, may occur in clinical settings as well. He said that such interactions are also far in excess of what he previously described as his tendency to use pungent language with patients if a particular threshold had been crossed. He notes that the Practitioner disparages his medical peers, and particularly those who are international graduates. There is evidence that he has disparaged patients.
8. He points to the lack of logic in the Practitioner linking perceived anti-Israel bias by university department more than 50 years ago with Dr White being a casual lecturer in the same department now.
9. He comments on the fact that it is also illogical for the Practitioner to claim that Dr White and he had colluded.
10. A/Prof Wijeratne concludes:

The Practitioner has been unable to adapt his interpersonal style to the changes in medicine and society since he graduated. In particular, medicine is less hierarchical, styles of communication less directive and interaction with patients more collaborative. Society has become more diverse. My impression is that there is a rigidity, interpersonal sensitivity, a distrust for others, a tendency to devalue others and emotional dysregulation that most likely represents personality dysfunction. These personality traits have been exacerbated by mild cognitive impairment.

Finally, his dismissal of CPD, belief that there has been few changes in medical knowledge since he graduated 55 years ago, refusal to engage professionally with his medical peers, and dismissive style of communication all represent a risk to the safety of the public.

In my opinion [the Practitioner] has an impairment, as defined by Practitioner Regulation National Law (NSW).

The Practitioner's assertion that there have been no adverse clinical outcomes

1. The Practitioner emphasised on a number of occasions during the hearing before us (it was the fundamental point that he wished us to understand), that none of the complaints were for misdiagnosis or bad patient outcomes. Examples of complaints where the Practitioner's behaviour may have had an adverse clinical outcome include::
   • The Practitioner told a patient he couldn't see him because he was late and he had to go home to his wife for his dinner. In oral evidence he said that he did in fact eventually go through all his complaints with him but we make no finding as to whether that was true.
   • The Practitioner told a girl, in front of her parents, to take off her clothes so he could examine her knee properly. They left and didn't come back to see him.
   • There were complaints by an enrolled nurse about many things that the Practitioner was doing that were not good practice.
   • In addition, the Practitioner frankly admitted that he had made mistakes but nobody complained about them. He said he reflected seriously on mistakes and worried about them.

1. Having regard to the evidence before us, we are satisfied that there is a risk that the Practitioner is impaired and as such, poses an unacceptable risk to the health and safety of the public. We have referred in these reasons to the results of cognitive testing and the opinions expressed by A/Prof Wijeratne and Dr Metcalf.
2. We have serious concern about the evidence of the Practitioner's extensive dealings with the Council over relatively short period of time. Over half the complaints against the Practitioner have been received in the past three years. Most complaints raise concerns about his communication style, including that he was rude and dismissive and many detail the impacts that this has had on clinical care. The Practitioner's attitude towards the Medical Council and his colleagues is a big issue because part of being a good doctor is to properly and respectfully engage with both.
3. A/Prof Wijeratne opines that "the most likely diagnosis is Mild Cognitive Impairment" or according to Dr Metcalf, a "Mild Neurocognitive Disorder".
4. The IRP concluded that the Practitioner suffered from an impairment which may have detrimentally affected the Practitioner's capacity to practise medicine safely.
5. Over and above issues related to the evidence about the Practitioner's cognitive status and potential impairment, the Practitioner's communication style and interaction with Council in and of itself, represents a significant risk for the health and safety of the public. The disdain for which the Practitioner's hold his regulatory body and anybody associated with it, including independent experts appointed, is palpable. He said to us during the hearing that they should just get out of his way and let him get on with providing the medical service that he does.
6. We do have significant concerns for the Practitioner's lack of insight, both in his dealing with patients and his ability to reflect on complaints and his conduct but also his engagement or lack thereof with Council processes. The Practitioner resisted attending a further health assessment with A/Prof Wijeratne, left the IRP early, left the most recent s 150 hearing and the assessment with Dr Metcalf before they had concluded.

1. We need to consider if the risk we have identified can be mitigated by the imposition of conditions. A/Prof Wijeratne opined that the Practitioner's practice be subject to conditions including supervision and the monitoring of his health, including repeat neuropsychological testing.
2. At the second s 150 hearing, the Practitioner said that he would not follow any conditions placed on his registration which caused the delegates concern about the appropriateness of conditions and led them to the view that they had no other option but to suspend the Practitioner's registration.
3. We explored the possibility that the risks we have identified may be able to be mitigated by the imposition of conditions.
4. We discussed the possibility with the Practitioner as to whether he would be amenable to agreeing to conditions such as:
   • Him not working in any other place but Springwood without approval
   • It would follow that the Practitioner would not provide services as a locum to rural and indigenous communities
   • See only four patients an hour
   • Have category C supervision
   • Consent to the Medical Council looking at Medicare data relevant to his practising as a medical practitioner
   • Be agreeable that the Medical Council could nominate a psycho geriatrician who may order further testing
   • The Council could order a performance assessment within six months
5. The Practitioner expressed a different attitude to the imposition of conditions to that expressed by him at the second s 150 hearing (namely that he would not agree to any conditions). He said that he would entertain conditions if his suspension was lifted in circumstances where he would anticipate that a final hearing of any complaint against him would take place within approximately one year.
6. The Medical Council strongly opposed a lifting of the suspension based on these types of conditions. It emphasised that the Practitioner had consistently asserted that the Medical Council expert witnesses were bias and that the Medical Council should just get out of his way.
7. We have detailed in our reasons above many previous incidents where the Practitioner showed a very negative attitude to being monitored or controlled in any way by the Medical Council. The Practitioner is openly antagonistic to regulating authorities and their "stable of experts". His view is regulatory bodies should get out of his way and just let him get on with the practise of medicine.
8. It may be that if a complaint is established against the Practitioner sufficiently serious to lead to the cancellation of his registration, then conditions may be a focus of a final hearing and the Practitioner's attitude to complying with conditions would be able to be fully explored at that time. We are not however convinced based on what the Practitioner said to us during this hearing that we can limit the unacceptable risk that we have found by the imposition of a complex set of conditions, given our lack of confidence at the current time that the Practitioner would seriously comply with them.
9. We conclude that the imposition of conditions will afford no protection as we are not satisfied that the Practitioner will comply with any conditions were they imposed.

1. Within the confines of this limited inquiry, we are satisfied that allowing the practitioner to practise at this time would involve an unacceptable risk to the health and safety of the public or otherwise involved and unacceptable risk to the public interest which, at this time, cannot be mitigated by the imposition of conditions.
2. For these reasons it is appropriate to take action under s 150 for the protection of the health and safety of the public (which will include future potential patients), and to take action that will otherwise be in the public interest. The appropriate action is to continue the suspension of the Practitioner's registration pending the bringing of complaints against the Practitioner by the Health Care Complaints Commission. The hearing of any such complaints will involve a process of making findings of fact in relation to the matters that we have touched upon and other matters that might arise in the interim and a fuller exploration of whether the imposition of conditions might eliminate any unacceptable risk.

1. The Medical Council seeks an order that the Practitioner pay its costs pursuant to clause 13 of Schedule 5D of the National Law. In Qasim v Health Care Complaints Commission [2015] NSWCA 282, the Court of Appeal set out the principles to be applied by tribunals in relation to the issue of costs at [84] and [85]. In short, ordinarily costs should follow the event. We also take into account that as a result of what happened in respect of the first appeal before ADCJ Levy SC, no order as to costs was obtained in relation to those proceedings. It is appropriate for us to make an order as to costs.

(1) Pursuant to s 161(b) of the Health Practitioner Regulation National Law (NSW), the filing of this appeal is allowed.

(2) Pursuant to s 159C(1)(a), we confirm the Council's decision made 24 March 2024 to suspend Frank Simon Winter's registration.

(3) Pursuant to s 13 of Schedule 5D of the Health Practitioner Regulation National Law, the costs of the Respondent be paid by the Appellant as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.