Ghosh v Health Care Complaints Commission

1. [1]

   THE COURT: On 13 August 2019, the Health Care Complaints Commission (“the Commission”) applied to the NSW Civil and Administrative Tribunal (“the Tribunal”) for orders pursuant to s 149C of the Health Practitioner Regulation National Law 2009 (NSW) (“the National Law”) cancelling the registration of the appellant, Dr Ratna Ghosh, as a health practitioner on the grounds that Dr Ghosh:

2. [2]

   On:

3. [3]

   Dr Ghosh now appeals to this Court from those decisions pursuant to s 29(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) with the matter being assigned to the Court of Appeal pursuant to s 48 of the Supreme Court Act 1970 (NSW).

4. [4]

   Section 29(4)(b) of schedule 5 the NCAT Act [3] provides for an appeal:

5. [5]

   To the extent necessary, Dr Ghosh, through her counsel, Mr Jackson, sought leave and an extension of time to bring the appeal. The Commission opposed neither. To the extent that leave and an extension of time are necessary to dispose of Dr Ghosh’s appeals, we would grant them.

6. [6]

   The Commission made eight complaints against Dr Ghosh. We will refer to the complaints generally as “the Complaints” and to the particular complaints as “Complaint One”, “Complaint Two” and so on. We will set out the substance of the Complaints as made for the purposes only of deciding the issues on the appeal. We make no findings as to whether the Complaints have been, or should be, made out.

Background to the Complaints

1. [7]

   Dr Ghosh completed a Bachelor of Medicine/Bachelor of Surgery in 1989 at the University of Western Australia and was first registered as a medical practitioner on 17 January 1992.

2. [8]

   In 2011, Dr Ghosh became a fellow of the Royal Australian College of General Practitioners and worked as a paediatric registrar in a number of hospitals in Western Australia and New South Wales following her registration.

3. [9]

   During 2002–2003, Dr Ghosh started her own general medical practice in Charlestown, NSW where she worked until early 2009.

4. [10]

   Dr Ghosh commenced working as a locum GP until 2010 when she again opened her own general practice in Charlestown, NSW where she worked until 2016. From 2010 to 2016 Dr Ghosh also worked as a workplace rehabilitation provider for the Occupational Rehabilitation Services Group in the “Fit for the Job” program.

5. [11]

   In February 2017, Dr Ghosh commenced work as a general practitioner at the Wallsend Medical General Practice where she worked until September 2017.

6. [12]

   On 12 December 2017, the Medical Council of New South Wales (“the Council”) suspended Dr Ghosh’s registration as a medical practitioner pursuant to s 150(1)(a) of the National Law. The Council delivered its written reasons for this order on 17 January 2018. On 12 April 2018, the Council varied that decision by lifting Dr Ghosh’s suspension and imposing a condition, pursuant to s 150(1)(b) of the National Law, that she not practise medicine. Written reasons for the variation were delivered on 16 May 2018.

7. [13]

   Dr Ghosh appealed to the Tribunal against that decision. The Tribunal dismissed that appeal on 20 November 2019. [4] On 26 June 2020, this Court allowed an appeal from that decision and remitted the matter to the Tribunal to be heard again, by a differently constituted panel. [5]

8. [14]

   In the meantime, on 30 September 2018 Dr Ghosh did not renew her registration to practise.

9. [15]

   Although Dr Ghosh is not presently a registered medical practitioner, she remains amenable to being dealt with under the National Law. [6]

The Complaints

1. [16]

   Complaints One to Five were that Dr Ghosh had engaged in “unsatisfactory professional conduct” within the meaning of s 139B of the National Law. We shall set out the relevant parts of that section as we deal with those complaints.

2. [17]

   Complaint One was that Dr Ghosh is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law; that is that she engaged in:

3. [18]

   The particulars of Complaint One referred to the allegedly inappropriate prescription of medication to “Patient A” (a one and half year old child) and “Patient B” (a woman 33 weeks pregnant), inappropriate comments made to Patient A’s father and to Patient B, failure to perform appropriate medical procedures in relation to Patient B and the making of comments inappropriately criticising Patient B at a hearing conducted by the Council.

4. [19]

   Complaint Two also alleged that Dr Ghosh had engaged in unsatisfactory professional conduct within the meaning of s 139B(1)(a).

5. [20]

   This Complaint was directed to Dr Ghosh’s conduct in relation to “Patient C”, who was described as being a “close relative” of Dr Ghosh and who has been diagnosed with Autism Spectrum Disorder and Anxiety Disorder.

6. [21]

   The particulars of Complaint Two referred to the inappropriate prescription of medication to Patient C over a number of years, the failure of Dr Ghosh to refer Patient C to an independent general practitioner for management of his conditions and the failure of Dr Ghosh to make a record of restricted substances prescribed to Patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation 2008 (NSW).

7. [22]

   Complaint Three was that Dr Ghosh had engaged in unsatisfactory professional conduct in that she had engaged in conduct “that is improper or unethical in the practice of general medicine”. Reference was made to s 139B(1)(b) of the National Law, which relates to conduct amounting to a contravention (whether by act or omission) of:

8. [23]

   The particulars of this complaint referred to Dr Ghosh’s inappropriate treatment of and prescription of medications to Patient C, the inappropriate devising of a Mental Health Plan for Patient C, the submission of such a plan to Medicare, the inappropriate billing to Medicare for services provided to Patient C in contravention of “G.13.1” of the Medicare Benefits Schedule, the failure to make a record of the schedule 4 restricted substances that she prescribed to Patient C, contrary to cl 38 of the Poisons and Therapeutic Goods Regulation 2008 (NSW), and the prescription of medications for herself and Patient D, in Patient C’s name.

9. [24]

   The particulars of this complaint refer also to the provision of “deliberately false and/or misleading information”:

   1. (1)

      on 12 April 2018, to the Medical Council of NSW, during proceedings under s 150 of the National Law in which the Council sought suspension of Dr Ghosh’s registration as a medical practitioner, and when Dr Ghosh told Council delegates that she did not post on a website an anonymous review of two named doctors; and

   2. (2)

      on 17 September 2018, to the Medical Council of NSW and the Tribunal when Dr Ghosh made certain statements in a statutory declaration about her diagnosis and certain recommendations made by a named doctor.

10. [25]

    Complaint Four was that Dr Ghosh was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that she failed to maintain adequate and proper medical records of her appointments with Patients B and C, and treatment of Patient C, and thereby contravened cl 1(2) of schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW).

11. [26]

    Complaint Five was that Dr Ghosh was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(e) of the National Law in that she did not comply with notices from the Commission requiring production of her medical records for Patient C and thereby contravened s 34A(4) of the Health Care Complaints Act 1993 (NSW).

12. [27]

    Complaint Six alleged that Dr Ghosh was guilty of professional misconduct within the meaning of s 139E of the National Law. That section defines “professional misconduct” as:

13. [28]

    Complaint Six alleged that Dr Ghosh had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, or had engaged in more than one instance of unsatisfactory professional conduct that, when considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. Complaints One, Two, Three, Four and Five, and the particulars thereof, were “repeated and relied upon both individually and cumulatively”,

14. [29]

    Complaint Seven was that Dr Ghosh has a mental “impairment” within the meaning of s 5 of the National Law that detrimentally affects her capacity to practise medicine. Section 5 relevantly defines an “impairment” in relation to a registered health practitioner as meaning a person who “has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect” the person's capacity to practise the profession.

15. [30]

    The complaint is particularised to allege that Dr Ghosh suffers from schizophrenia, or an alternative psychotic disorder due to a medical condition and a neurocognitive disorder, and that such impairment is of a sufficient nature and degree to impair her mental capacity to practise.

16. [31]

    Complaint Eight is that, by reason of the matters particularised in respect of Complaint Seven, Dr Ghosh is not “competent” to practise medicine for the purposes of s 139(a) of the National Law because she lacks sufficient mental capacity to do so.

The procedure adopted by the Tribunal

1. [32]

   Dr Ghosh raises eight grounds of appeal. Four of those arise from the procedure adopted by the Tribunal to determine the Complaints.

2. [33]

   We turn now to that procedure.

3. [34]

   On 22 August 2019, the Commission sent a copy of its application by mail to Dr Ghosh’s residential address, together with a Notice of Listing for a directions hearing on 13 September 2019.

4. [35]

   The directions hearing took place before Deputy President Boland ADCJ. Dr Ghosh did not appear.

5. [36]

   Boland ADCJ set the matter down for hearing for five days commencing on 30 March 2020 and made directions to ready the matter for hearing.

6. [37]

   On 16 December 2019, the Commission applied to the Tribunal for an order for substituted service. Boland ADCJ made such an order on 17 January 2020. [7]

7. [38]

   No suggestion was made before us that that order was not complied with by the Commission or that Dr Ghosh did not thereby become aware of the Commission’s complaint or of the documents it relied upon in support of the complaint. Mr Jackson (counsel for Dr Ghosh) accepted, in particular, that Dr Ghosh knew of the 30 March 2020 hearing date.

8. [39]

   On 19 March 2020, the Tribunal sent Dr Ghosh two documents by email addressed to what we will call “the First Email Address”.

9. [40]

   The first was a document headed “Change to listing procedure”. It stated:

10. [41]

    The second document was entitled “Notice of Listing – Directions” and stated:

11. [42]

    There is no dispute that Dr Ghosh received these documents. The fact that there was an inconsistency in the two documents, in that the latter called for a personal attendance — “please arrive at least 15 minutes before the start of the listing” — may be put to one side.

12. [43]

    Dr Ghosh replied to the Tribunal the following day, 20 March 2020, albeit from a different email address (“the Second Email Address”).

13. [44]

    Dr Ghosh opened her email by saying

14. [45]

    Dr Ghosh explained why she had been in Sydney at that time by reference to a perceived need to deal with matters concerning Patient C.

15. [46]

    Dr Ghosh said:

16. [47]

    Dr Ghosh was referring to the appeal to which we have referred at [13] above.

17. [48]

    Dr Ghosh then referred to unrelated proceedings and continued:

18. [49]

    On 25 March 2020, the matter was listed for telephone directions before Deputy President Cole DCJ.

19. [50]

    Dr Ghosh did not appear. Ms Connors appeared for the Commission.

20. [51]

    At this directions hearing, Cole DCJ determined that the 5 day hearing scheduled to commence on 30 March 2020 be “dispensed with” and that the Commission’s Complaints against Dr Ghosh be determined on the papers.

21. [52]

    As a number of Dr Ghosh’s grounds of appeal relate to what occurred on this occasion, we set out the full transcript:

22. [53]

    We make a number of observations about what occurred at this directions hearing.

23. [54]

    First, Cole DCJ evidently determined that the Commission’s Complaints against Dr Ghosh be determined on the papers because:

24. [55]

    Second, Cole DCJ had read Dr Ghosh’s 20 March 2020 email as an application for an adjournment of the hearing but was not satisfied that there was a basis for an adjournment. Her Honour’s reasons for this conclusion were not exposed beyond a statement to this effect.

25. [56]

    The orders pronounced by her Honour were engrossed as “Orders” and were as follows:

26. [57]

    In effect, these orders vacated the 30 March 2020 hearing date and directed that the Commission’s case be determined on the papers.

27. [58]

    The Tribunal’s orders provided for service on Dr Ghosh of the Commission’s submissions and other material but made no provision for service by Dr Ghosh of any material in response to those submissions.

28. [59]

    Although in her 20 March 2020 email Dr Ghosh had said that “I have been in Sydney since 1 November”, the Tribunal posted these orders to Dr Ghosh at her Charlestown address.

29. [60]

    In an application Dr Ghosh made on 29 May 2020 to stay the orders made by the Tribunal on 15 April 2020, Dr Ghosh denied receiving notice that the Commission’s complaint “would be on the papers”. We return to this below.

30. [61]

    On 27 March 2020, Mr Britt prepared the Commission’s submissions. The submissions were lengthy and comprised some 41 closely-typed pages.

31. [62]

    On the same day, the Commission sent a copy of those submissions, together with the orders sought by the Commission, to Dr Ghosh at the Second Email Address. Delivery to that email address failed.

32. [63]

    On the following Friday, 3 April 2020, the Commission sent a copy of the submissions and proposed orders to Dr Ghosh at the First Email Address. As that was the email address to which the Tribunal’s 19 March 2020 communications were directed, and as Dr Ghosh received that communication (hence her 20 March 2020 reply), we would infer that Dr Ghosh also received this communication.

33. [64]

    The orders sought by the Commission, as notified to Dr Ghosh, were that:

    1. (1)

       pursuant to ss 149C(1)(a) and (b) of the National Law, Dr Ghosh’s registration as a medical practitioner be cancelled;

    2. (2)

       pursuant to s 149C(7) of the National Law, Dr Ghosh may not apply for a review of the orders made by the Tribunal for a period of five years from the date of its decision;

    3. (3)

       pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these orders;

    4. (4)

       Dr Ghosh pay the applicant’s costs in the proceedings; and

    5. (5)

       the publication of the names of any of the patients referred to in this decision be prohibited.

34. [65]

    This was the first time that the Commission had articulated orders in these terms.

35. [66]

    On 15 April 2020, the Tribunal published its reasons for deciding that:

36. [67]

    We will return to the Tribunal’s reasoning in more detail below but at this point, it is important to reproduce what is contained at [141]–[145] of those reasons:

37. [68]

    The following matters should be observed in relation to these paragraphs:

    1. (1)

       The statement at [141] that the Respondent had “chosen not to take part in these proceedings” is, at best, only partially correct. True it is that Dr Ghosh had not filed any evidentiary material in response to that which had been filed by the Commission in late 2019 but that was a matter for her and the material that had been filed by the Commission included a detailed statutory declaration made by Dr Ghosh of 17 September 2018 that addressed a number of the matters the subject of the Complaints. Further, none of the evidence that was filed by the Commission contained expert opinions to the effect that she suffered from either of the impairments referred to in Complaint Seven and picked up by reference in Complaint Eight. Insofar as the statement contained in the Tribunal’s reasons at [141] referred to a choice by Dr Ghosh “not to take part in these proceedings”, that observation wholly overlooks the fact that the proceedings were determined “on the papers”. There is no suggestion that the Tribunal ever sought any written response from Dr Ghosh in relation to the written submissions of the Commission. We have already noted (at [58] above) that Cole DCJ made no provision for any filing by Dr Ghosh of written submissions in response to those of the Commission and in answer to its Complaints and the orders it sought.

    2. (2)

       the statement in [142] to the effect that the Tribunal “is bound by the orders made on 25 March 2020” is mystifying. The Tribunal was in control of its own process. It was open at all times to the Tribunal to vary, vacate or supplement the orders that had been made by Cole DCJ on 25 March 2020. There was nothing precluding the Tribunal from making an order that Dr Ghosh respond to the Commission’s written submissions within a reasonable time, bearing in mind her lack of any legal representation, the length of the Commission’s submissions, the seriousness of the relief that was being sought against Dr Ghosh and the fact, as should have been apparent to the Tribunal (and the Commission for that matter) that the orders of 25 March 2020 by which the Tribunal said it was bound made no provision for any responsive submissions to be filed by Dr Ghosh.

    3. (3)

       the “show cause” procedure contemplated at [144] of the Tribunal’s reasons had no direct statutory foundation and was flawed, as demonstrated by subsequent events considered more fully below. As shall be seen, by 15 April 2020, the Tribunal had necessarily predetermined the Complaints and, as acknowledged by the Principal Member, had “already made up its mind”. The Tribunal’s power to control its own procedure does not extend to the adoption of a procedure which departs from basic requirements of procedural fairness or involves elements of prejudgment.

38. [69]

    On 29 May 2020, Dr Ghosh filed an application under the “show cause” order of 15 April 2020, seeking a stay of the 15 April 2020 orders. It was in that application that Dr Ghosh denied receiving notice that the Complaints were to be dealt with on the papers.

39. [70]

    Dr Ghosh’s application was listed for directions before the Tribunal members, including Cowdroy ADCJ, on 6 August 2020.

40. [71]

    On that occasion, the following exchange took place between his Honour and Mr Jackson, who appeared for Dr Ghosh on that occasion as well as on this appeal:

41. [72]

    And, a short time later:

42. [73]

    On 17 August 2020, the Tribunal published its reasons for “terminating” the stay of the 15 April 2020 orders, and its order that the 15 April 2020 orders “operate instanter”. We return to the details of these reasons below.

43. [74]

    Despite Mr Jackson’s exchange with the Presiding Member set out at [71] and [72] above, in its 17 August 2020 reasons, the Tribunal said: [8]

44. [75]

    We turn now to the grounds of appeal.

Grounds One and Two: No power to proceed with the inquiry and misplaced reliance on s 50 of the NCAT Act

1. [76]

   We will deal with these two grounds together.

2. [77]

   On behalf of Dr Ghosh, Mr Jackson submitted that, by reason of non-compliance with provisions of the National Law, the Tribunal had no power to proceed with the inquiry and, in particular, had no power to proceed to deal with the Commission’s complaints on the papers.

3. [78]

   Section 165I of the National Law provides, relevantly:

4. [79]

   Section 165J provides, relevantly:

5. [80]

   Section 165K provides:

6. [81]

   Section 165K still contemplates a hearing, albeit a private one in certain limited circumstances.

7. [82]

   Section 165K refers to s 49(2) of the NCAT Act which is in the following terms:

8. [83]

   Section 165A of the National Law provides that these provisions:

9. [84]

   Section 139G of the National Law has the effect that these provisions (i.e. part 8 of the National Law) apply to a person who was, but is no longer or was not at the relevant time, registered as a health practitioner. For simplicity, we will refer simply to a “health practitioner”.

10. [85]

    It appears that none of these provisions was drawn to the attention of Cole DCJ on 25 March 2020, when her Honour made the decision that the Commission’s application be dealt with on the papers.

11. [86]

    The giving of notice to a health practitioner “of” an inquiry required by s 165I necessarily involves giving notice of the time and place where the inquiry will take place. Indeed, the heading of s 165I reads “Notice of time and place of inquiry or appeal”. Although that heading does not form part of the National Law, [9] it is material available to construe the section. [10]

12. [87]

    Section 165J(1) confers on a health practitioner a right to “attend” an inquiry conducted under the National Law. The section thus does more than entitle a health practitioner to participate in the inquiry. The right is to “attend” the inquiry: that is, actually to be present at that inquiry. That may include being virtually present in the sense of using a platform such as Zoom or Microsoft Teams.

13. [88]

    The concomitant entitlement to be legally represented at the inquiry is an entitlement to have a legal representative so present at the inquiry.

14. [89]

    A right to attend and be represented at an inquiry necessarily carries with it a right to be heard at that inquiry. As the right to attend is a right to be actually present at the inquiry, that right to be heard must include a right to be heard orally.

15. [90]

    Mr Jackson so submitted. [11] Mr Britt agreed, in terms. [12]

16. [91]

    Section 165J(3) provides for an exception to that general rule, and provides that the Tribunal may proceed “in the absence of” the health practitioner but only “as long as the practitioner … has been given notice of the inquiry”.

17. [92]

    The notice referred to in s 165J(3) must be of the kind referred to in the immediately preceding section, s 165I. That is “not less than 14 days’ notice” of the time and place of the inquiry.

18. [93]

    The effect of s 165J(3) is that it is only if such a notice is given that the Tribunal may proceed “in the absence” of the registered health practitioner, and only if the health practitioner did not exercise his or her right to attend or has foreshadowed not doing so.

19. [94]

    Thus the legislative requirement is that a hearing proceed in the absence of a health practitioner only after he or she is first provided with the opportunity to attend in person and with a legal representative.

20. [95]

    This reflects the fact that disciplinary proceedings in the Tribunal and under the National Law carry with them the risk of serious consequences for the registered health practitioner.

21. [96]

    Section 165J does not authorise a private hearing; it simply authorises the Tribunal to proceed in circumstances where the health practitioner does not appear at the appointed time and/or place of the inquiry.

22. [97]

    There is no provision in the National Law for an inquiry to be heard “on the papers”. The exception in s 165J(3) is directed to the possibility of the Tribunal proceeding “in the absence of” the health practitioner; that is, ex parte.

23. [98]

    It is a very different thing to proceed “on the papers”; that is, in the absence of any of the parties.

24. [99]

    The power in s 165K to a conduct a “hearing for proceedings under this Law … wholly or partly in private” is not a power to proceed in the absence of any of the parties. It is a power to conduct a hearing in private. As we have set out at [80] above, s 165K provides that the Tribunal may only proceed to a hearing in private if it is satisfied that it is desirable to do so in the public interest for reasons connected with the subject matter of the proceedings or the nature of the evidence to be given. Section 165K so provides despite s 49(2) of the NCAT Act which, as set out at [82] above, confers on the Tribunal a wider discretion to proceed in private in matters not governed by the National Law.

25. [100]

    In any event, there was no suggestion that s 165K was engaged here; that is, there was no suggestion that the Tribunal formed, or could have formed, the view that the “public interest for reasons connected with the subject matter of the proceedings” required this matter to be dealt with in private.

26. [101]

    There is provision to “dispense with a hearing” in s 50 of the NCAT Act which, relevantly, provides:

27. [102]

    This may have been the section on which Cole DCJ relied to make the orders of 25 March 2020, although her Honour did not identify it as such.

28. [103]

    In its 15 April 2020 decision, the Tribunal stated that it: [13]

29. [104]

    But ss 165I and 165J of the National Law, providing for the giving of notice of an inquiry and for a right to attend the inquiry, are inconsistent with, and prevail over, the Tribunal’s power under s 50 of the NCAT Act to dispense with a hearing. [14]

30. [105]

    The only notice Dr Ghosh received of the time and place of the inquiry into her conduct was the notice she received of the hearing to commence on 30 March 2020. That notice is not before us but we will assume, in favour of the Commission, that it compiled with s 165I.

31. [106]

    Assuming, despite her denial, that Dr Ghosh did receive a copy of the Tribunal’s 25 March 2020 orders, it was not a notice that complied with the requirements of s 165I. It did not give Dr Ghosh “no less than 14 days’ notice” of when the inquiry would be heard. It provided no means by which Dr Ghosh could exercise her right under s 165J of the National Law to “attend” the inquiry and to be legally represented.

32. [107]

    The hearing date included in such notice as Dr Ghosh did receive was in effect vacated by Cole DCJ’s order of 25 March 2020.

33. [108]

    Had the hearing date of 30 March 2020 been maintained, and had Dr Ghosh not appeared at that hearing, it would have been open to the Tribunal, under s 165J of the National Law, to proceed with a hearing in her absence; that is, to proceed ex parte.

34. [109]

    As noted above at [104], ss 165I and 165J of the National Law, providing for the giving of notice of an inquiry and for a right to attend the inquiry, are inconsistent with, and prevail over the Tribunal’s power under s 50 of the NCAT Act to dispense with a hearing altogether. By reason of s 165J of the National Law, Dr Ghosh had the right to attend the inquiry into her alleged conduct in public and to be legally represented at that inquiry. Dr Ghosh was, by the orders made on 25 March 2020, deprived of that right.

35. [110]

    The occasion did not arise for the Tribunal to consider, under s 165J(3) of the National Law, whether to proceed in Dr Ghosh’s absence.

36. [111]

    As Mr Jackson submitted, the provisions of the National Law are clearly and practically expressed, simple to follow, and prescriptive. The language is mandatory. Their object is to provide the health practitioner with a genuine opportunity to appear and present his or her case at a public hearing into his or her conduct.

37. [112]

    We accept Mr Jackson’s submission that compliance with these provisions was a precondition to the valid exercise of the Tribunal’s power to hear the Complaints.

38. [113]

    For that reason alone, the appeal must be allowed and the Tribunal’s decisions set aside.

Ground Three: Error in the application of s 50 of the NCAT Act

1. [114]

   Mr Jackson submitted that, in the alternative and even if the Tribunal was entitled to rely upon s 50 of the NCAT Act to make an order that the matter be heard on the papers, the Tribunal erred in law by failing to consider and apply the requirements of s 50.

2. [115]

   Even if s 50 applied in the present case, the Tribunal could only dispense with a hearing under that section if satisfied, pursuant to sub-section (2):

3. [116]

   Cole DCJ expressed such a satisfaction but gave no reasons for doing so.

4. [117]

   As the nature of the Complaints made by the Commission make clear, there was likely to be a considerable amount of factual dispute requiring resolution by the Tribunal, particularly concerning Dr Ghosh’s allegedly inappropriate treatment of her “close relative”, Patient C, and her alleged mental impairment and consequent incompetence to practise.

5. [118]

   Before this Court, Mr Britt accepted that the Tribunal was faced with contested matters of fact and opinion. Even if Dr Ghosh did not seek to cross-examine any of the doctors whose evidence was being relied upon by the Commission (a matter that was unlikely given Dr Ghosh’s challenge in the Court of Appeal to the earlier decision of the Tribunal suspending her registration to practise), it would ordinarily be the case that the medical members of the Tribunal, at the very least, may also have had questions they wished to ask the Commission’s witnesses, especially given the serious consequences for Dr Ghosh if the Complaints were upheld.

6. [119]

   It was also likely that issues as to Dr Ghosh’s credit would be required to be determined, particularly in relation to the Commission’s complaint that Dr Ghosh had provided deliberately false and misleading information to the Council. [16]

7. [120]

   The brevity of Cole DCJ’s consideration of the question in s 50(2), and her Honour’s failure to give reasons other than by reference to what Cowdroy ADCJ and Mr Britt were reported to have said (see [52] above), leads us to doubt, with respect, that her Honour properly or fully engaged with the question as to whether the matter could be adequately determined in the absence of Dr Ghosh. In certain cases, this may amount to an error of law, although care must be taken in the use of the formula of “failure to give proper, genuine and realistic consideration” [17] as deployed by Mr Jackson in light of more recent authority. [18]

8. [121]

   In view of our conclusions in relation to grounds one and two, it is not necessary to reach a concluded view in relation to this ground. It does not strictly arise.

Grounds Four and Eight: Consequences of errors in Grounds One and Two for the decisions of 15 April 2020 and 17 August 2020

1. [122]

   It follows from our conclusions in relation to grounds one and two that the Tribunal had no power to proceed with the inquiry because of non-compliance with the provisions of the National Law.

2. [123]

   That consequence, and the lack of procedural fairness so far as Dr Ghosh is concerned, of the Tribunal proceeding as it did, could not be cured by the “show cause” procedure in which the Tribunal invited Dr Ghosh to participate. This is the subject of both grounds 4 and 8 of the Amended Notice of Appeal and they can conveniently be dealt with together.

3. [124]

   In its reasons of 15 April 2020, the Tribunal made findings with respect to each Complaint and ordered that, were Dr Ghosh still registered as a health practitioner, it would have cancelled her registration, and ordered that she be disqualified from being re-registered for 18 months. The die was cast. Nothing Dr Ghosh could say or do thereafter could affect the outcome, except perhaps as to penalty.

4. [125]

   As the Tribunal acknowledged on 6 August 2020, it was “not embarking upon a rehearing of what it has already heard” and had “already made up its mind”. [19]

5. [126]

   In these circumstances, as Mr Jackson put to the Tribunal [20] and to this Court, the “show cause” procedure, even if open under the NCAT Act, was an empty gesture. It was quite incapable of curing any injustice occasioned to Dr Ghosh and was not an available or appropriate substitute for her right to participate in a public hearing.

Ground Five: Errors with respect to the substantive reasoning of the Tribunal

1. [127]

   This ground directs attention to two errors that Mr Jackson submitted the Tribunal had made with respect to its substantive reasoning in relation to certain aspects of the Complaints. Whilst it is strictly unnecessary to deal with this ground in light of our conclusions on grounds one and two, there is still utility in so doing. [21]

2. [128]

   The first error alleged is in respect of the Tribunal’s conclusions concerning Complaint Six.

3. [129]

   Section 165M of the National Law provides:

4. [130]

   Section 62(3) of the NCAT Act also provides that a written statement of reasons for the purposes of this section must set out the following:

5. [131]

   As Bell P said in New South Wales Land and Housing Corporation v Orr (“Orr”): [22]

6. [132]

   As we have set out above at [16], Complaints One to Five were of unsatisfactory professional conduct. Complaint Six was that, by reason of the unsatisfactory professional conduct alleged in Complaints One to Five, Dr Ghosh also guilty of professional misconduct.

7. [133]

   It is clear from the face of its reasons that the Tribunal made a number of errors on the way to, and in its consideration of, Complaint Six.

8. [134]

   First, in relation to each of Complaints One to Five, the Tribunal wrongly described the Commission’s complaint as being one of professional misconduct. [23] That was incorrect. Each complaint was of unsatisfactory professional conduct and, subject to what follows in the next paragraph, the Tribunal so held.

9. [135]

   Second, in relation to Complaint One, which was upheld otherwise than in respect of particulars 5 and 6, the Tribunal concluded that Dr Ghosh had engaged in “unprofessional conduct” (at [93]) rather than “unsatisfactory professional conduct” as was the complaint, or professional misconduct, as the Tribunal had wrongly characterised the complaint.

10. [136]

    Third, the Tribunal, although purporting to do so at [113]–[114], did not address what was alleged in Complaint Six.

11. [137]

    In relation to Complaint Five, the Tribunal had stated: [24]

12. [138]

    Then, in relation to Complaint Six the Tribunal held:

13. [139]

    It can immediately be seen that rather than set out and address Complaint Six as actually made by the Commission (see at [28] above), the Tribunal repeated, in the words that we have emphasised, the words of Complaint Five; including the repetition of the words “that she” in [111] and [113].

14. [140]

    Further, at [114] the Tribunal concluded that Dr Ghosh’s conduct amounted to unsatisfactory professional conduct, rather than professional misconduct which is what Complaint Six alleged.

15. [141]

    Then, at [139] of its reasons, under the heading “Summary and Comment”, the Tribunal expressed its ultimate conclusion:

16. [142]

    The Tribunal then repeated those conclusions, word for word, in the following paragraph. [25]

17. [143]

    Mr Britt submitted that this Court should conclude that these matters were all a result of a “word processing, cut and paste error” and that “[m]inor errors of this type although less than ideal do not vitiate the Tribunal’s decision”.

18. [144]

    We do not agree.

19. [145]

    It was unsatisfactory and regrettable that the Tribunal dealt with Complaint Six in this way. In truth, it did not deal with Complaint Six at all, although purporting to do so.

20. [146]

    Complaint Six was the only complaint that alleged professional misconduct as opposed to unsatisfactory professional conduct. It was the most serious of the complaints made against Dr Ghosh. The Tribunal’s erroneous treatment of it cannot be passed off as an unfortunate typographical error, and in fairness to Mr Britt, this submission was pressed but lightly. It is moreover deeply regrettable and difficult to understand how all four members of the Tribunal failed to detect these various errors in relation to Complaint Six, and failed to consider the complaint as formulated and advanced by the Commission.

21. [147]

    Further, no attention can have been given as to how the publication of a judgment in this form exposed the Tribunal’s process of reasoning in relation to Complaint Six.

22. [148]

    Even a cursory consideration of the reasons in draft form would have made it apparent that whoever was their principal author had not addressed the correct and most serious complaint, that of professional misconduct, and, in any event, to the extent that he or she had purported to do so, had not exposed any reasoning process whatsoever. A similar observation can and should be made in relation to the absence of reasoning in relation to the matters dealt with at [173]-[185] below.

23. [149]

    As Mr Jackson submitted, the statutory regime constituted by the National Law is disciplinary in nature and bears potentially very serious consequences for both the medical practitioner and the general public. Complaints in relation to the National Law are prosecuted by an independent prosecutorial body, the Commission, that particularises the complaints made against the practitioner with care.

24. [150]

    Such complaints should be treated with great care. That, regrettably, did not occur in the present case. Our criticism of the Tribunal exists at a number of levels:

    1. (1)

       the correct complaint was not dealt with;

    2. (2)

       this should have been obvious to the principal author of the reasons;

    3. (3)

       the basic errors, whether they be characterised as “word processing errors” or otherwise, should have been obvious to the other members of the Tribunal who should not join in reasons without carefully reading and considering them even if they have not had principal carriage of drafting them;

    4. (4)

       albeit relating to the wrong complaint, the purported “reasoning” process was quite inadequate.

25. [151]

    If it were necessary to do so, we would have upheld Dr Ghosh’s appeal against the Tribunal’s decision in respect of Complaint Six on this basis alone.

26. [152]

    The second error for which Mr Jackson contended arose from the Tribunal’s conclusion concerning Complaint Seven.

27. [153]

    To repeat [29]–[30] above, that Complaint was that Dr Ghosh has an “impairment” within the meaning of s 5 of the National Law, being a:

28. [154]

    Complaint Seven was particularised by the Commission as follows:

29. [155]

    As so particularised, Complaint Seven was that Dr Ghosh suffered an impairment, either schizophrenia (particular 1), or a psychotic disorder due to a medical condition and a neurocognitive disorder (particular 2), and that such impairment was of a sufficient nature and degree to impair Dr Ghosh’s mental capacity to practise the profession (particular 3).

30. [156]

    The Tribunal mischaracterised that complaint as follows: [26]

31. [157]

    Thus, the Tribunal misconstrued Complaint Seven to allege that Dr Ghosh had an impairment because of any one of the three matters particularised.

32. [158]

    The Tribunal was not satisfied that Dr Ghosh suffered from schizophrenia (particular 1), [27] nor that Dr Ghosh suffered from a psychotic disorder due to a medical condition and/or a neurocognitive disorder (particular 2) [28] .

33. [159]

    Nonetheless, the Tribunal held that particular 3 was established, evidently because it was satisfied that Dr Ghosh was “suffering a chronic mental or personality disorder” [29] and that Dr Ghosh had “patterns of thought and behaviour” that were “pervasive, persistent and had negative consequences for her professional, personal and family life”. [30] That was not the basis on which the Commission made this complaint.

34. [160]

    As particularised by the Commission, Complaint Seven could only be made out if one or other of particular 1 or particular 2 was established.

35. [161]

    If, as the Tribunal found, particulars 1 and 2 were not established, then the Tribunal could not be satisfied as to particular 3.

36. [162]

    As Mr Jackson submitted, it was not open to the Tribunal, without notifying Dr Ghosh in advance, to reject the “impairment” alleged and yet find another unspecified impairment not particularised by the Commission.

37. [163]

    Mr Britt drew attention to authority to the effect that the Tribunal in health practitioner disciplinary matters is not confined to particulars and the wording of a complaint in the way that a court hearing a criminal charge would be. [31] But as Mr Britt acknowledged, this was “subject to any requirement to provide the parties with procedural fairness”. The authority to which he referred made the same point. [32]

38. [164]

    Here, the provision of procedural fairness to Dr Ghosh required that she be given an opportunity to answer a complaint not made by the Commission.

39. [165]

    In those circumstances, it was not open to the Tribunal to find Complaint Seven made out on the basis that it did.

40. [166]

    Further, because Complaint Eight was contingent upon Complaint Seven, it was also not open to the Tribunal to uphold that Complaint either.

41. [167]

    There is a further matter.

42. [168]

    In the course of its reasoning concerning Complaint Seven, the Tribunal offered this observation as part of its reasoning leading to its conclusion that particular 3 had been established:

43. [169]

    These were not matters that the Commission had alleged in its Application for Disciplinary Findings and Orders.

44. [170]

    The Commission alleged, in relation to Complaint Three, that Dr Ghosh had provided deliberately false and misleading information to the Council. The Tribunal accepted those complaints, although it gave inadequate reasons for so doing. [34] But the Commission had not made any allegation to the effect set out by the Tribunal in [168] above.

45. [171]

    The conclusion expressed by the Tribunal was about matters which did not arise from any complaint made by the Commission. Dr Ghosh was given no opportunity to meet the charge. The conclusion was not explained by reference to any evidence before the Tribunal. The “reasons” do not even set out what the behaviour in question was which the Tribunal was addressing.

46. [172]

    The conclusion was grossly unfair to Dr Ghosh.

47. [173]

    No Court or Tribunal should ever conclude that a person has “behaved in a dishonest, vindictive and retaliatory manner” without such matters being clearly alleged and closely particularised, and without fully exposing the Court or Tribunal’s reasoning process. In the present case, as we have observed, apart from the absence of notice to Dr Ghosh, the Tribunal neither identified with any particularity the behaviour it was referring to nor did it give any reasons for reaching the damning conclusions it did in the paragraph we have set out at [168] above. This is not an observation as to “best practice”. It goes to a basic duty and obligation imposed on Tribunal members. [35]

48. [174]

    The Tribunal’s inclusion of this paragraph in its reasons in the above circumstances was another deeply regrettable aspect of this decision.

Ground Six: Alleged error of law with respect to “unfitness to practise”

1. [175]

   This ground relates to Complaint Eight which, to repeat, is that Dr Ghosh is not “competent” within the meaning of s 139(a) of the National Law in that she lacks “sufficient … mental capacity … to practise the profession”.

2. [176]

   The Tribunal dealt with this matter at [126]–[130] as follows:

3. [177]

   These five paragraphs do not satisfy the “minimum characteristics that a Tribunal’s reasons must possess”. [36] They do nothing more than repeat the complaint, assert without reasoning that it has been made out, refer to the statutory provision, again assert that the charge has been made out and further repeat this conclusion in the words of the statutory provision. Ipse dixit reasoning of this character does not constitute a proper discharge of the Tribunal’s statutory obligations under either s 165M of the National Law, s 62 of the NCAT Act or the general law.

4. [178]

   We accept Mr Jackson’s submission that the Tribunal failed to give adequate reasons for its conclusions at [129]–[130].

5. [179]

   In our opinion, Mr Jackson was correct to submit that the Tribunal made no attempt to analyse what it was in Dr Ghosh’s conduct, or in her medical reports, that led to the conclusion that she was unfit to practise medicine. We agree that it is not possible, from the matters stated by the Commission, to understand the basis upon which the conclusion was reached.

6. [180]

   In any event, Complaint Eight is particularised by reference to the particulars of Complaint Seven. As we have found that the Tribunal’s decision in respect of Complaint Seven should be set aside, its decision in relation to Complaint Eight cannot stand.

Ground Seven: Alleged insufficiency of reasons in respect of Complaint Three

1. [181]

   As we have set out, Complaint Three concerned a number of allegedly inappropriate treatments administered by Dr Ghosh to Patient C.

2. [182]

   It also alleged, under the heading “Providing false and/or misleading information”, that in relation to Patient C Dr Ghosh had provided deliberately false and misleading information to the Council during a hearing conducted under s 150 of the National Law on 12 April 2018, and again in the form of a statutory declaration filed in the Tribunal on 17 September 2018.

3. [183]

   These are very serious allegations.

4. [184]

   The Tribunal dealt with these matters at [106]–[107] of its reasons as follows:

5. [185]

   These paragraphs are also bereft of reasoning in relation to the allegations made. They do not set out or analyse what the alleged deliberately false and misleading information provided to the Council was, explain why it was false or misleading (if it was), and then go on to consider whether or not, to the extent that there was any misleading material, it was deliberately misleading. We repeat the observations we have made at [173] above.

6. [186]

   It was neither sufficient nor satisfactory for the Tribunal simply to recite that it was satisfied, on the material before it, that the Complaint and matters referred to in the particulars were made out. This inadequacy was not cured by the reference to two authorities. What Dr Ghosh was entitled to was what was required by s 165M of the National Law. [37]

7. [187]

   Our conclusions concerning Grounds Six and Seven are further reasons to allow the appeal.

Conclusion

1. [188]

   Such is the nature of the errors we have found that it is necessary that the entire decision of the Tribunal be set aside. Having regard to the errors we have found the matter must be remitted to be determined by a differently constituted Tribunal.

2. [189]

   For these reasons, we make the following orders:

   1. (1)

      Leave to appeal, insofar as it is required, is granted;

   2. (2)

      The appeal is allowed;

   3. (3)

      The decisions of New South Wales Civil and Administrative Tribunal of 25 March 2020, 15 April 2020 and 17 August 2020 are set aside;

   4. (4)

      The matter is to be remitted to the New South Wales Civil and Administrative Tribunal to be re-heard, by a differently constituted panel; and

   5. (5)

      The respondent is to pay the appellant’s costs of the appeal and of the hearing before the Tribunal.