Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 Hearing dates: 17 August 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Occupational Division Before: J Boland AM ADCJ, Deputy President Decision: (1) The amended application by Irfan Cakan for a non publication order dated 25 June 2020 is dismissed. Catchwords: HEALTH – professional registration and discipline – where practitioner seeks non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether special or exceptional circumstances exist Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v BXD [2015] NSWCATOD 135 Health Care Complaints Commission v EDE [2019] NSWCATOD 184 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Texts Cited: None cited Category: Procedural and other rulings Parties: Irfan Cakan (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: Mr C Mitchell (Respondent) Solicitors: Irfan Cakan (self represented) (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2017/00089412 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Mr Irfan Cakan was formerly registered as a medical practitioner. After disciplinary proceedings were heard in this Tribunal in 2017 orders were made under s 149C of the Health Practitioner Regulation National Law (the National Law) on 5 January 2018 cancelling Mr Cakan's registration and precluding him from seeking re-instatement to the register before 11 July 2019. 2. At the time of the disciplinary proceedings Mr Cakan, who for convenience in these reasons I will refer to as "the practitioner", appeared on his own behalf before the Tribunal. 3. As is the normal course, the Tribunal's reasons for decision in the disciplinary proceedings were made publicly available by publication on NSW Caselaw. The decision is also published on Austlii. The public register, maintained by the Australian Health Practitioner Regulation Agency, records the Tribunal's orders. 4. During 2020 the practitioner filed a number of applications and appeals in the Tribunal. However, he does not pursue any of his applications or appeals except his application filed on 19 May 2020 as amended on 25 June 2020. In that application he seeks a suppression order in respect of his name as published in the decision of 5 January 2018 (the decision). At a directions hearing held before me on 31 July 2020 it was noted that the practitioner's application is brought under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 5. The practitioner seeks a non-publication order to assist his mental health. It is his position that he has suffered periods of suicidal ideation and that the continuation of his name being in the public arena affects his health and may lead him to attempt suicide. 6. It is the practitioner's position that because he was self-represented before the Tribunal at the disciplinary proceedings he was unaware he could have sought a non-publication order at the time of those proceedings. Although he indicated in correspondence to the Registrar on 11 August 2020 that he wished to withdraw his applications, after reading the Tribunal's decision in Health Care Complaints Commission v XC [2015] NSWCATOD 9 the practitioner decided to pursue his application. In Health Care Complaints Commission v XC the Tribunal made a non publication order in circumstances where there was unchallenged expert evidence before it that the medical practitioner was at risk of suicide if her name was published. 7. The Health Care Complaints Commission (HCCC) opposes the making of the non-publication order on two bases. First, it is asserted that the principles of open justice should prevail because there are no special or exceptional circumstances warranting departure from those principles. Secondly, it is asserted that the making of any order at this point in time would be futile because the practitioner's name is and has been in the public domain since January 2018. 8. Because of the COVID 19 pandemic these proceedings were conducted principally by audio-visual link (AVL). Written submissions were provided by both parties. The practitioner and two of the practitioner's expert witnesses were required for cross-examination by the HCCC. The expert witnesses gave their evidence by telephone, and were cross-examined by counsel for the HCCC, Mr C Mitchell. 9. For the reasons that follow, I have determined that the practitioner's application should be dismissed. Jurisdiction 1. No issue is taken by the HCCC about the power to make the order sought if appropriate to do so. Nor is there any dispute that the order sought is an ancillary or interlocutory order as defined in the NCAT Act, and may be heard by me as a single member. The relevant provisions of the NCAT Act 1. This application is for an interlocutory or ancillary order. 2. An interlocutory order is defined in s 4 of the NCAT Act as: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. 1. An ancillary order is defined as: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including— (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 1. Section 165B (5A) of the National Law provides that the Tribunal, when constituted to make an ancillary or interlocutory decision within the meaning of the NCAT Act, is to be constituted by the member presiding or the Tribunal List Manager. In this case, it is not in dispute that the member who presided at the 2018 hearing is now retired. I am empowered to hear this application in my delegated capacity as List Manager. 2. Section 64 of the NCAT provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal 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, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a 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. The principles of open justice and exceptions to those principles 1. The parties were not in dispute about the principles relevant to open justice and the circumstances which may override those principles. In effect, the difference between the parties is the practitioner's assertion that his present psychiatric health is such as to constitute special or exceptional circumstances now warranting the suppression of the 2018 decision and the HCCC's position that it does not. 2. It is appropriate that I refer briefly to the relevant principles. 3. In disciplinary proceedings, the overarching principle of open justice is only displaced in special or exceptional circumstances (see Health Care Complaints Commission v EDE [2019] NSWCATOD 184 at [28]). The principles are explained in detail with reference to authority in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [181]-[185] as follows: Both counsel assisted the Tribunal with provision of relevant authorities on this topic (Health Care Complaints Commission v Gow (NSWMT unreported 21 October 2008), Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of appeal 17 April 1997) and Health Care Complaints Commission v Dr A [2012] NSWMT 10). In Walton Handley JA, with whom Priestley JA and Grove AJA agreed, dismissed an appeal from the Chairperson of the then Chiropractors and Osteopaths Tribunal who had refused to make an order suppressing the name of a practitioner. The appeal was determined by reference to legislation which provided that proceedings should be open to the public. That is the case with proceedings in this Tribunal (see s 49 (2) of the Civil and Administrative Tribunal Act and s 165K of the National Law). Handley JA explained: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of the practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can made an order avoiding such result. His Honour went on to note that the Tribunal could have ordered that it sit in private (as now provided in s 165K of the National Law), or that the Tribunal could make a suppression order. His Honour concluded, by reference to authority, that the policy he had just explained "reflects the general principle that the administration of justice under our system is carried on in public". While noting that the object of disciplinary proceedings is not intended to be punitive to the practitioner, but protective of the public, the former Medical Tribunal in Health Care Complaints Commission v Gough determined the protective nature of the jurisdiction outweighed the adverse consequences which may be suffered by a former practitioner, who was terminally ill, if his name was published. Different considerations arose in Health Care Commission v Dr A. In that case there was expert evidence before the Tribunal. That Tribunal found special and exceptional circumstances, namely that one of the practitioner's teenage children, who had a history of an admission to a Psychiatric unit following a serious suicide attempt, could likely be very adversely affected by publicity about her father's conduct. The evidence and submissions relied on by the practitioner 1. The practitioner relied on his statement dated 12 August 2020, a statutory declaration dated 25 June 2020, a letter of Dr Michael J Atherton dated 24 June 2020, a letter of Dr Raksha Lutchman, Clinical Psychologist dated 21 June 2020, and a letter of Dr Sarika Tiwari dated 25 June 2020. Dr Atherton was not required for cross-examination. 2. The practitioner in a letter addressed to the HCCC and to the Tribunal explains that, in the 2017 disciplinary proceedings which led to the 2018 decision, as a result of personal and financial problems, he had to represent himself with limited legal knowledge. 3. The practitioner explains that after he received correspondence from the HCCC, including reference to the decisions in Health Care Complaints Commission v XC and Health Care Complaints Commission v BXD [2015] NSWCATOD 135, that he determined his situation fell under the "umbrella of 'exceptional' circumstances". He goes on to explain: I subsequently asked my treating practitioners Dr Lutchman and Dr Tiwari if they are willing to support and write a brief report based on their professional opinion and consistent with the "XC" precedent case. Dr Atherton 1. Dr Atherton provided a letter addressed to the Tribunal dated 24 June 2020. He explained that he has been the practitioner's long-term treating psychiatrist and addiction specialist. Dr Atherton noted: During that time, he has struggled with a number of mental health issues as well as long-standing interpersonal stressors relating to his family and his living situation. At times he has suffered depression and anxiety and as you are aware he is currently deregistered from practice. 1. Dr Atherton says he fully supports the practitioner's application for the removal of his name from various public documents. He opines: I have no doubt that it causes him severe mental distress and we have spent many sessions discussing this. At times he is extremely emotionally triggered by this public notice and may be at risk as a result of his impaired mental state. He has undertaken treatment including counselling and medication but unfortunately the nature of his illness is such that he has remained impaired. I believe that [the practitioner's] recovery will be assisted by non-publication and suppression of his name. Dr Sarika Tiwari 1. Dr Tiwari is a general practitioner carrying on practice at Best Care Medical Clinic, Kellyville Ridge, NSW. In a letter addressed to the Tribunal she explained that she has treated the practitioner on a regular basis since 22 June 2017 for "chronic depression and anxiety, substance abuse in remission, chronic asthma and chronic lower back pain". 2. Dr Tiwari noted that the practitioner "has in the past reacted adversely to publication of findings against him in the Tribunal decision because he has difficulty in controlling his behaviour when emotionally distressed and has expressed suicidal thoughts". She further notes a history of a number of past suicidal attempts. 3. Dr Tiwari concludes her letter by expressing her opinion as follows: In my opinion, he is likely to continue to react adversely to the publication of his name from the Tribunal decision in the future and there is a real risk of suicide 1. Dr Tiwari confirmed the opinions expressed in her letter during her oral evidence given by telephone. Dr Raksha Lutchman 1. Dr Lutchman is a clinical psychologist who carries on practice at Psychology Headquarters, Stanhope Gardens NSW. Dr Lutchman provided a letter dated 21 June 2020 addressed to the Tribunal supporting the practitioner's application. 2. In her letter Dr Lutchman explained she has been requested by the practitioner to provide a "brief medical report in relation to my concerns regarding the effects on [the practitioner] of findings made against him". 3. Dr Lutchman explained that the practitioner has expressed feelings of shame and guilt regarding his addiction. She opined that the practitioner has had difficulty in controlling his behaviour when emotionally distressed. She also noted "He has expressed suicidal thoughts in the past". She concludes her letter as follows: I believe that he is likely to react adversely to publication of findings against him and there is likely to be a risk to his safety including the risk of suicide. 1. In her oral evidence Dr Lutchman maintained her support for the practitioner's application despite a number of concessions she made in cross-examination. I will refer to these concessions when considering the application. The HCCC's submissions and evidence produced pursuant to Summons 1. Mr C Mitchell, counsel for the HCCC provided helpful written submissions. The submissions note that the HCCC opposes the order sought by the practitioner and asserts that "the evidence does not disclose special or exceptional circumstances". The submissions further note, as referred to above in my introductory remarks, that any order would be futile in circumstances where the decision has been publicly available on the internet for over two and a half years. 2. In the course of summarising the relevant authorities on the topic of open justice and the circumstances in which there may be a departure from publication, the submissions set out an extract from the decision in Health Care Complaints Commissions v XC at [122]-[124]. As the practitioner places significant weight on this decision as a precedent to support his application I now set out the relevant paragraphs: We have already noted that Dr Hagan was not required for cross-examination. His evidence is therefore unchallenged. While not extensive, his reports summarised earlier in these reasons disclose that the practitioner is a psychologically vulnerable young women. In an email forwarded to the practitioner's solicitors dated 7 November 2014 that was tendered in evidence before us Dr Hagan said: I write to elaborate my concerns regarding the effects on [the practitioner] of findings against her. She has on numerous occasions expressed her feelings of shame and guilt regarding her behaviour in relation to her addiction. She has expressed suicidal thoughts in the past during the time that I have been treating her. It is my view that she has difficulty in controlling her behaviour when emotionally distressed. I believe she is likely to react adversely to publication of findings against her and there is likely to be a risk to her safety in this circumstances including the risk of suicide. Accepting as we do Dr Hagan's unchallenged evidence, we found there were special circumstances warranting departure from the principles of open justice referred to in the authorities. In reaching this conclusion we have carefully balanced the principles of open justice and the right of the public to know about the practitioner's involvement in disciplinary proceedings with the potential of risk to this young woman's life. We have also taken into account that, notwithstanding the practitioner's name will be anonymised as a result of the non publication order, the public interest of future potential patients or employers is ensured by the recording of the Tribunal's orders, but not its reasons, on the publicly available register which may be searched online. 1. Mr Mitchell submits on behalf of the HCCC that the public interest requires publication because of the Tribunal's findings that the practitioner engaged in conduct involving "misleading various authorities and failing to comply with conditions on his registration". It is submitted that the public has an interest in knowing the practitioner has had an adverse disciplinary finding made against him. It is secondly submitted that "the public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons, and publicity serves that end". Thirdly, it is submitted that the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence, and finally it is submitted that the decision provides a ""marker" of what is unacceptable to other members of the profession". 2. The submissions next address the futility of an order being made some two and a half years after publication of the 2018 decision with reference to various legal reporting web-sites on the internet including NSW Caselaw, JadeBarNet, Austlii and the HCCC's website. In respect of the last web-site it is noted that publication is made pursuant to the obligations created by s 94B of the Health Care Complaints Act 1993 (NSW). Clinical records produced pursuant to Summons 1. I had the benefit of the clinical records of Dr Tiwari and Dr Lutchman which were produced pursuant to a Summons. 2. Dr Tiwari's clinical notes of 27 July 2019 disclose at that date the practitioner denied any suicidal ideation. 3. At a consultation on 26 June 2020 Dr Tiwari recorded: decision in 2018 affects him personally would like to have his name removed from internet to protect himself from defamation. I am happy to sign his petition. 1. The clinical notes also disclose that the practitioner had been referred to another psychiatrist, Dr Deepa Malik. I note that Dr Malik's records were not available to me on this application. 2. Dr Lutchman's records disclose that the practitioner was recently involved in proceedings before the District Court of New South Wales. In her clinical notes of 11 July 2020 Dr Lutchman recorded "Risk – nil concerns". 3. Dr Lutchman's records contain a copy of a "Psychological Report s 32 Application" dated 10 June 2020. The report refers to the practitioner by one of his former names: Irfan Kuroz (Cakan). I pause to note that when I asked the practitioner about this he explained that was the name the Police used. 4. In her report Dr Lutchman notes under the heading "Sources of Information" her assessment and treatment from 23 May 2020 to date, a Court attendance notice dated 19 July 2019, Facts Sheet NSW dated 19 July 2019, final APVO of 20 May 2017 and a report by Dr Deepa Malik, Consultant Psychiatrist dated 19 March 2020. 5. At page 4 of her report Dr Lutchman stated: There have been episodes where [the practitioner] bottled his sad or empty mood, he experienced feelings of hopelessness, worthiessness [sic] restlessness or irritability, he had thoughts of death or suicide, and he stated that he has made contact with Lifeline a couple of times. Currently, he denied any thoughts of self-harm and was able to guarantee his safety to self and others. He is on prescribed medication 150mg Prestiq. 1. Under the heading "diagnosis" Dr Lutchman opined that the practitioner fits the DSM 5 diagnosis of major depression, generalised anxiety disorder and substance use disorder (in remission). Dr Lutchman concluded her report with recommendations that the practitioner continue to attend Dr Tiwari on a monthly basis, to see Dr Malik once every two months noting an appointment on 7 July 2020, to continue to consult her every fortnight and to attend Doctors in Recovery. Consideration 1. The practitioner was forthcoming in his evidence about the circumstances in which the letters provided by Dr Tiwari and Dr Lutchman were produced. He explained that after he had read the decision in Health Care Commission v XC he formed the view this was a "precedent" case and he drafted the letters for the doctors based on the evidence before the Tribunal in that decision. 2. In answer to questions posed by Mr Mitchell to Dr Tiwari in cross-examination she acknowledged that in a mental health plan in 2019 she described the practitioner as "low risk of harm to self and others". She agreed that she had recorded the purpose of the non-publication order to remove the practitioner's name from the internet was to protect from defamation. However, she confirmed that her opinion expressed in the letter reflected her opinion at the time it was written. 3. My assessment of Dr Tiwari's records and her oral evidence is that she is a very caring general practitioner who has been and is very supportive of her patient. I accept she evinces a genuine concern for the practitioner's welfare. Her evidence, understood in context of the practitioner's past suicidal attempts, and his history of anxiety and depression, requires careful consideration. However, her views of the practitioner's present stability and his expressed reason for a non publication order (avoidance of defamation proceedings) lessen the weight I can give to her evidence to support the making of the order sought. 4. Dr Lutchman's report for the District Court at Parramatta provided contemporaneous evidence of the practitioner's present mental health. Her report, which was prepared for court sentencing proceedings, was clear and unequivocal. I accept her professional opinion, namely, that in July 2020 the practitioner had no current thoughts of self-harm and was able to guarantee his safety. Further, and of significance to this application, the report discloses a careful plan of professional assistance to support the practitioner's mental and physical health. This evidence does not support the order sought. 5. I have taken into account Dr Atherton's opinion that the practitioner may be at risk and that a non publication order could assist his recovery. I accept his unchallenged evidence. However, I am not satisfied that it reaches the threshold of "exceptional" or "special" circumstances. 6. I accept that the practitioner has and does suffer depression and anxiety. I also accept that he has in the past expressed suicidal ideation, has contacted Life-line and on at least one occasion overdosed on illicit drugs. I have given careful consideration to his past history and his present diagnosis as set out in Dr Lutchman's report. 7. I also accept that at the time of the disciplinary proceedings the practitioner did not have the benefit of legal representation. However, I note that before the Tribunal in 2017 the practitioner asserted he did not, at the time of the hearing, suffer an impairment (see 2018 decision at [35]). Thus, in those circumstances, it would have been highly unlikely that a non publication order would have been made. 8. In his oral submissions, Mr Mitchell directed me to the practitioner's statement dated 13 September 2019 in which he criticises investigations by the State Coroner in 2007 and the HCCC in 2008 as lacking independence. Mr Mitchell further submitted that the reason the practitioner now wants his name suppressed is embarrassment and because he feels mistreated and defamed, which matters do not constitute special or exceptional circumstances. I agree with that submission. 9. Mr Mitchell highlighted matters relevant to the public interest and in particular noted the practitioner's intention of applying for re-instatement to the register. I accept these are matters which must be afforded significant weight. 10. Finally, Mr Mitchell drew attention to the fact that the decision has been in the public arena for a significant period of time thus reducing any efficacy a non publication order could have. Expressed colloquially, I find that "the horse has bolted" rendering essentially ineffective any order now made. 11. Balancing all the relevant factors, I find the application should be dismissed. While I accept the practitioner's general anxiety and depression and his embarrassment because of publication of the 2018 decision may be alleviated by a non-publication order, these factors do not constitute exceptional or special circumstances. Factors favouring the making of the non-publication order are outweighed by the general principles of open justice. This is particularly so when the 2018 decision has been publicly available for over two and a half years and the practitioner's well-being is currently competently supported by appropriate professionals. ORDERS 1. The amended application by Irfan Cakan for a non publication order dated 25 June 2020 is dismissed. ********** 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: 16 October 2020