Case note: The Importance of Attitude in Professional Disciplinary Proceedings

In this case, NCAT dismissed an appeal to lift a practising restriction imposed on a GP who, among other things, exhibited an apparent unwillingness to address numerous concerns regarding her professional conduct.

Ghosh v Medical Council of NSW [2018] NSWCATOD 186

Introduction

In the appeal before the NSW Civil and Administrative Tribunal (Tribunal), general practitioner Dr Ghosh sought to have the restriction to not practice medicine (Restriction) as imposed by the Medical Council of NSW (Council) removed.

The Restriction had been imposed in response to a number of complaints in relation to her practice and interactions with patients, staff, and colleagues, but also based on her ongoing treatment of her adolescent son (AB) who suffered from autism and had complex care needs.

Dr Ghosh had been the subject of multiple complaints prior to the current proceedings, and various issues of problematic performance based on interpersonal issues with patients, colleagues and support staff had been raised. She had also previously been required to attend a conduct interview with the Council in 2017, in relation to care provided to AB that had resulted in hospital staff making a notification to the Family and Community Services (FACS).

Facts

Earlier hearings

On 12 December 2017, a hearing under section 150 of the Health Practitioner Regulation National Law as it applies in NSW was conducted based on multiple complaints made about Dr Ghosh. The complaints related to multiple instances where she had been dismissive of, or aggressive to, patients. She had not changed her behaviour, or sought professional help to address the issues, following multiple instances of counselling at her workplace, and after the issues had been raised with her by the Council. There was also an ongoing concern that her care of AB was inconsistent with professional obligations as set out for example in Good Medical Conduct – A code of conduct for doctors in Australia (Code).

At the hearing, there was a concern that Dr Ghosh was suffering from a mental health impairment affecting her ability to practice. She was suspended pending a fuller assessment of her mental status.

On 12 April 2018, a further hearing considered an expert report raising the possibility that Dr Ghosh suffered from psychosis, a mood disturbance, or a psychotic disturbance. A further consultant psychiatrist (Dr Newnham) was commissioned to provide an additional report about Dr Ghosh, and a further expert report was sought from a medical advisor to the council (Dr Hutt) in relation to Dr Ghosh’s care of AB.

Interlocutory proceedings

In the lead-up to the proceedings, Dr Ghosh filed an interlocutory application seeking that the reports of Dr Newnham and Dr Hutt be excluded from evidence, and personally attacking both of them for the reports provided in their professional capacity. Dr Ghosh also sought to refer them to the Attorney-General for prosecution for making false and misleading statements. The Tribunal found the accusations to be baseless, and took them as an indication of Dr Ghosh’s lack of understanding of the role of an expert witness, and her marked hostility towards anyone engaged in the supervisory process pertaining to her work.

Dr Ghosh’s treatment of AB

The Council was particularly concerned about Dr Ghosh prescribing medications, including anti-psychotic medications, for AB, who was at the relevant time 12 years old. AB’s medical needs were complex, and he had been seen and treated by different psychologists and psychiatrists at different times.

There had also been a report to FACS about one year previously when AB had been admitted to hospital with hip pain, diagnosed by the treating team to be caused by the relatively benign condition of transient synovitis. Dr Ghosh insisted that AB suffered from the quite serious condition of septic arthritis. She therefore prescribed antibiotics and strong pain medication, and ultimately removed him from hospital against medical advice. The treating team at the time made a report to FACS as a result.

In response, a conduct interview with Dr Ghosh had been held at the Council on 2 June 2017. No further action was taken at that time. The interview report notes that while Dr Ghosh’s actions had been driven by her concerns for AB’s health and wellbeing, she showed a poor level of insight into her role in the communication problems with the treating team, and she was advised to seek to avoid conflicts between her role as doctor and mother in future, including through finding a GP for AB, and to review the relevant obligations in relation to treating persons in a close relationship in the Code.

Issues

The tribunal proceedings raised a number of issues about Dr Ghosh’s performance in the following areas:

  • broadly inappropriate conduct in relation to patients, colleagues and staff;
  • treatment of AB; and
  • rejection of any criticism or guidance from anyone engaged in the supervision or regulation of her professional performance.

Evidence

Some potential mental health issues had been raised by the different experts who had assessed Dr Ghosh, including a provisional diagnosis of schizophrenia by Dr Newnham. Dr Newnham stated that Dr Ghosh presented with multiple persecutory belief systems relating to several areas of her life. The experts did not agree on a specific diagnosis of any psychiatric illness.

Dr Ghosh provided three reports relating to her mental health status, one of them by her then treating psychiatrist. The judgement does not provide detailed of the content of the treating psychiatrist’s report, or any findings or treatment provided. Dr Ghosh did not call any of the clinicians she had relied on for the reports as witnesses. The Tribunal preferred the findings of Dr Newnham and Dr Hutt to the extent of any inconsistency with the reports provided by Dr Ghosh.

Ultimately, the Tribunal was satisfied on the evidence that Dr Ghosh did suffer from some degree of impairment, as evidenced by her actions.

The Tribunal also accepted the expert opinion of Dr Hutt that in view of AB’s complex mental health and other medical needs, it was inappropriate for Dr Ghosh to act as his GP, as she lacked the requisite objectivity under the circumstances. This was distinguished from circumstances where medical practitioners would eg provide care for their children for a simple acute condition like a headache or influenza. In addition, it accepted that some of the medications prescribed for mental health issues (high-dose paracetamol and codeine) were highly unusual in the care of an eleven-year old child.

Without making any formal findings of unsatisfactory professional conduct or professional misconduct, the Tribunal also accepted evidence that Dr Ghosh had

  • acted inappropriately aggressively towards patients;
  • issued a further nine prescriptions for AB after having been advised by the Council to find a regular general practitioner to care for him; and
  • made inappropriate comments about patients’ and colleagues’ ethnicity, cultural background, and class on multiple occasions.

Dr Ghosh did not indicate any intention nor evidence of actually seeking any professional support throughout the proceedings. She did not lead any evidence about how she had, or would, address the issues raised, including through seeking assessment and treatment of her potential mental health problems. She did not demonstrate any insight other than acknowledging a few limited instances of specific inappropriate conduct, such as making aggressive comments to patients, using medications prescribed for AB herself, and filing a mental health plan for AB to be able to gain relevant Medicare reimbursement when it was not appropriate for her to do so in view of their relationship, and AB’s complex mental health needs.

Outcome

The appeal was dismissed with costs, with the Restriction continuing to apply.

Dr Ghosh’s performance was found to fall short of professional expectations of a GP in relation to her treatment of AB, patient communications, interaction with other medical practitioners and staff, and expressed prejudiced attitude. Her behaviour in relation to expert witnesses and anyone critical of her, including persons engaged in the regulatory supervision of her performance, was also considered relevant. Her behaviour as a whole had given rise to ten separate complaints (some including complaints by multiple separate persons) to the Council over the years. The Tribunal was satisfied on the evidence that Dr Ghosh did suffer some degree of impairment, as evidenced by her actions.

The appeal was dismissed and the condition to not practise being upheld, as there was no indication that Dr Ghosh if allowed to practice again would take steps to avoid those issues leading to further problems to avoid putting the public at risk.

While not relevant because the Restriction was not lifted, the Tribunal did agree with Dr Newnham’s recommendation that the following conditions should be imposed if allowing Dr Ghosh to practice again:

  • that Dr Ghosh engage with regular care from both a GP and a psychiatrist who would be required to report to the Council; and
  • that Dr Ghosh be allocated a supervisor, and not be allowed to work in solo practice.

Compliance Impact

The dismissal of the appeal was not based on a clear diagnosis of a mental illness and resulting impairment, but rather Dr Ghosh’s complete lack of insight into, and willingness to address, the issues in her performance in general, and in relation to AB’s care.

Medical practitioners should be aware of their professional obligations, including in relation to treating persons with whom they are in a close relationship, such as family members. A good rule is not to prescribe medications or authorise further specialist care without conducting a consultation in an appropriate context (e.g. in the office), and documenting the diagnosis and findings underlying the prescription in the medical record, unless unusual circumstances exist (e.g. emergency, or very minor complaint).

Medical practitioners who receive feedback from professional bodies will strengthen their position if they acknowledge the issues raised, and proactively demonstrate that they are addressing any real or perceived gaps in their skills or performance, even where no further regulatory action is taken.

Share this post

Ready to get in touch?