Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Buys (No 2) [2020] NSWCATOD 70 Hearing dates: On the papers Date of orders: 29 June 2020 Decision date: 29 June 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: (1) the application brought by the respondent for non-publication orders is dismissed (2) costs are reserved with liberty to apply. Catchwords: PROFESSIONS AND TRADES – Health Practitioner – dental practitioner – disciplinary proceedings – where non-publication order made to protect identity of patients – whether new non-publication order should be made to prevent publication of proceedings and name of dental practitioner – application refused – costs reserved Legislation Cited: Health Practitioner Regulation National Law (NSW), Sch 5D Cl 7, ss 165K, 165M Civil and Administrative Tribunal Act 2013 (NSW), s 49 Cases Cited: Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 Health Care Complaints Commission v Buys [2020] NSWCATOD 44 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr Peter Joseph Brian Buys (Respondent) Representation: Counsel: S Maybury (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2018/00373160 Publication restriction: Publication of the name of any patient of the respondent or any material which might tend to identify any such person is prohibited. REASONS FOR DECISION Background 1. In Health Care Complaints Commission v Buys [2020] NSWCATOD 44 this Tribunal differently constituted found the respondent Dr Peter Joseph Brian Buys guilty of professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) ("the National Law") with respect to his practice as a dental surgeon involving in part the circumstances of 11 patients. Those proceedings are currently stood over to allow a consideration of whether any consequential protective orders should be made in a stage 2 hearing. 2. After the publication of the above decision on 30 April 2020 the respondent applied to the Tribunal by letter dated 23 May 2020 seeking an order for "the non-publication of my entire first and second stage hearings." He sought the suppression of all details of the case, and in the alternative the suppression of "any details that identify myself and the practices." 3. In that letter the respondent said that the publication of the decision had "become widespread knowledge" with a resultant damaging effect on the "financial directors and owners" of two dental surgeries named in the decision, being the respondent's parents and wife. 4. On 3 June 2020 the respondent was asked to provide written submissions and any evidentiary material in support of his application, with the understanding that the Tribunal reserved the right to determine the matter "on the papers". The respondent provided submissions which referred to supporting factual matters in a letter dated 9 June 2020. Constitution of the Tribunal 1. By reason of the provisions of Clause 7 of Schedule 5D of the National Law, for the purpose of dealing with this application the Tribunal is to be constituted by me sitting alone. The respondent's submissions and supporting factual material 1. In supporting written submissions the respondent noted that a number of patients were referred to in the published decision, acknowledging that they were referred to as Patient A, Patient B and so on. He said that Patient C had "identified himself" upon reading "the case" because he was described as suffering from "anxiety and trigeminal neuralgia." The respondent said that this patient had contacted one of the dental surgeries expressing "distress and concern" that not only was he able to identify himself, "but other people may be able to identify him including members of the public and other medical professionals." In addition, the patient was said to have been embarrassed by reference to his medication, Effexor. 2. The respondent referred to the circumstances of Patient J who had been identified in the decision as his sister. The respondent said that he only had one sister and that she works within the medical industry dealing with an entity that "would no doubt be privy to this publication." The respondent said that his sister had expressed severe embarrassment upon reading about certain medication which he had prescribed for her. 3. The respondent also said that the identification of the two dental surgeries from which he practised as "the principal dentist" has damaged the reputation of these practices, and both practices are named when conducting a Google search of his own name. The respondent elaborated on the impact that publication of the names of the practices had had on the reputation and viability of the practices themselves, the dental practitioners and other employees who currently work there, the current owner of the practices who has been endeavouring to sell them, and on his wife who is currently employed there. The HCCC submissions 1. In aid of resisting the respondent's application the Health Care Complaints Commission (HCCC) pointed out that none of the family members of the respondent was identified by name in the decision. Furthermore, the HCCC said "It is regrettable that those who know the Respondent or the family may appreciate the Respondent's connection to the family, but those ramifications are an incident of the proven misconduct. To the extent that it is relevant, it appears that a significant part of the 'damage' has been done and therefore the benefit of this course of action must be considered given the decision was originally published over a month ago." The statutory basis for the application 1. This application brought by the respondent is made pursuant to the provisions of Clause 7 of Schedule 5D of the National Law which deals with proceedings before Professional Standards Committees and the Tribunal [NSW] 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to— (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. The operation of Clause 7 is to be considered in the context of the overall legislative framework against which this Tribunal operates. Relevantly, section 49 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") is in the following terms 49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. 1. However, the provisions of section 49 have been modified by section 165K of the National Law. I note that whereas section 49 (2) uses a test by reference to desirability by reason of the confidential nature of any evidence or matter together with "for any other reason" the provisions of section 165K are more circumscribed, in that the discretion is confined to desirability "in the public interest" for reasons connected with the subject matter of the proceedings or the nature of the evidence to be given. The section is in the following terms 165K When hearings may be closed to public [NSW] Despite section 49 (2) of the Civil and Administrative Tribunal Act 2013, the Tribunal may make an order that a hearing for proceedings under this Law be conducted wholly or partly in private only 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. 1. I proceed on the basis that section 49 of the CAT Act coupled with section 165K of the National Law embrace the concept of "open justice". Section 49 requires that hearings be open to the public, unless the Tribunal orders otherwise. Clause 7 requires the exercise of discretion in order to prohibit or restrict the specified details based on a determination that it is "appropriate" to do so. 2. There is also a prima facie obligation on the Tribunal to publish its decisions and reasons therefor given under the National Law as provided for in section 165M 165M Tribunal to provide details of decisions [NSW] (1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to— (a) the parties; and (b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party). (2) The statement of a decision must— (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision. (3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit. (4) Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part. (5) This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal. 1. The relevant authorities concerning the principle of open justice were conveniently summarised by Boland ADCJ in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 at [26] and following in a manner which I gratefully adopt The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfiax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within' its jurisdiction. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. 1. In determining the respondent's application, I have primary regard to the nature of these proceedings. They are disciplinary proceedings which concern allegations of serious misconduct on the part of a dental practitioner which the Tribunal has found constitutes professional misconduct. Dental practitioners like all health practitioners play an important part in the health and welfare of the community, and it is essential that they conduct themselves appropriately at all times. A failure to do so will impact adversely on the reputation of the profession and the confidence which the community must have in members of that profession. 2. Accordingly, any serious misconduct of a dental practitioner is a serious matter. The community is entitled to be made aware of that misconduct for its own protection, and prima facie the Tribunal is obliged to ensure its decisions are published under section 165M of the National Law. Other health practitioners including pharmacists, medical practitioners and nurses must be made aware of that misconduct in circumstances where they may have had dealings with the dental practitioner. In addition, awareness of that misconduct provides a salutary deterrent effect against the temptation of other dental practitioners to engage in misconduct. These provide powerful arguments in support of the principle of open justice as it applies to the fact of these proceedings and to the publication of the respondent's name. 3. Any health practitioner who engages in misconduct must be aware that when he or she is caught out, there will be adverse consequences for his or her reputation by reason of the publication of that misconduct inter-alia in decisions of this Tribunal. Whilst sympathy may be accorded to the resultant circumstances of the health practitioner, including the adverse impact on his or her family, all of this is been brought about by the misconduct as found proven. In the circumstances the respondent is, in effect, the author of his own misfortune. Consideration 1. I commence my consideration by pointing out that in the original decision the Tribunal issued an order prohibiting the "publication of the name of any patient of the respondent or any material which might tend to identify any such person". Accordingly, it is an offence for anyone, including the respondent, to publish the name of any patient. This would include the two patients nominated by him in this application. I am not aware of the circumstances in which the details of the decision would have come to the attention of either patient, but the respondent has not provided any information that would indicate that anyone other than each of the patients has made the necessary identification. That is, there is no evidence that the existing protection provided by the existing non-publication order has not been effective. 2. A perusal of the original decision will show that the respondent's registration as a dental practitioner was suspended in August 2016. Accordingly, he will not have been engaged in the practice of dentistry at either of the two dental surgeries with which he was previously involved for almost 4 years. The respondent has not provided any particular evidence about the impact of the publication of the earlier decision on the dental practitioners currently working in these practices, on the financial viability of the practices, and on patients who attend those practices. Anyone with a particular interest in the practices, including prospective purchasers would no doubt be more interested in current protocols concerning the use, storage and prescribing of drugs of addiction and other significant medications. Any problems of this kind which subsist beyond August 2016 would be the responsibility of someone other than the respondent. 3. Whilst I have sympathy for the concerns of the respondent arising from the publication of the earlier decision about the impact that this has had on his family and others, this is a necessary incident of the consequences of the application of the principle of open justice upon circumstances where a health professional engages in misconduct of a kind which is so serious that it has been characterised by the Tribunal as professional misconduct under the National Law. 4. The prima facie position is that the Tribunal is obliged to publish the decision. There are no valid reasons advanced as to why it should not do so. In the same way, there are no valid reasons advanced why the name of the respondent should be suppressed. 5. I conclude that the respondent has not satisfied me that it is appropriate in the circumstances of these proceedings to make the orders sought by him, and his application is dismissed accordingly. 6. I shall reserve the question of costs which may be raised during the course of the second stage proceedings. Orders 1. I make the following orders; 1. the application brought by the respondent for non-publication orders is dismissed 2. costs are reserved with liberty to apply. ******** 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2020