Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 Hearing dates: 24 and 25 November 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: The publication of the name of the respondent and the publication of any information, picture or other material that identifies the respondent or is likely to lead to her identification other than to the Australian Health Practitioner Regulation Agency and to the Dental Council of NSW is prohibited. Catchwords: PROFESSIONS AND TRADES – dental practitioner – disciplinary proceedings –– whether non-publication order should be made to prevent publication of name of dental practitioner – held impact of publication will have serious consequences for recovery of respondent constituting special, exceptional and out of the ordinary circumstances justifying making order PROCEDURAL RULINGS – non -publication order – principles- held impact of publication will have serious consequences for recovery of respondent constituting special, exceptional and out of the ordinary circumstances justifying making order 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 (No 2) [2020] NSWCATOD 70 HCCC v Gow (Suppression Order) [2008] NSWMT3 Health Care Complaints Commission v DAC [2017] NSWCATOD 98 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Category: Procedural rulings Parties: Health Care Complaints Commission (applicant) FCE (respondent) Representation: Counsel: Dr P Dwyer (respondent) Solicitors: Health Care Complaints Commission (applicant) Meridian Lawyers (respondent) File Number(s): 2021/00025050 Publication restriction: The publication of the name of the respondent and the publication of any information, picture or other material that identifies the respondent or is likely to lead to her identification other than to the Australian Health Practitioner Regulation Agency and to the Dental Council of NSW is prohibited. reasons for decision Background 1. These proceedings are constituted by an Amended Application filed in the Tribunal by the applicant Health Care Complaints Commission. In that Application the applicant complained that the respondent named therein was guilty of certain misconduct arising out of her practice as a dental practitioner and that she had an impairment under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). In essence, the complaints were that the respondent had breached undertakings which she had given to the Dental Council of NSW with respect to the submission of the results of drug and alcohol screening which she had been required to carry out, that she had failed to respond to requests from that Council for the submission of that information and that she had an impairment as defined in the National Law being Alcohol Use Disorder. The Tribunal has determined that the respondent is guilty of professional misconduct and has an impairment and has made certain protective orders. The orders made and the reasons for decision therefor have been published. See Health Care Complaints Commission v FCE [2021] NSWCATOD 202. 2. During the hearing of those proceedings the respondent sought a non-publication order of her name. On 19 August 2021 I made an order prohibiting the publication of the name of the respondent and of any information, picture or other material that identified her or was likely to lead to her identification. Such order was to continue in effect until further order of the Tribunal or the making of final orders in these proceedings, whichever shall occur earlier. 3. The respondent has asked that the non-publication order be made on an indefinite basis, and these reasons for decision deal with this application. 4. Significantly, I note that the applicant did not oppose the making of the order sought by the respondent. 5. The substantive proceedings have been considered by the Tribunal differently constituted under the provisions of the National Law, of which I was the Presiding Member. 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 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 under 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 The Hon J 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 Fairfax 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 Health Care Complaints Commission v Buys (No 2) [2020] NSWCATOD 70 I had occasion to consider the context in which a non-publication order of the kind now being sought by the respondent should be determined, and which I repeat as being relevant to these proceedings 16 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. 17 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. 18 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. The factual background 1. The factual background to the substantive proceedings is described in detail in the substantive decision. I am able to conveniently summarise them for present purposes. The respondent is aged 42. She graduated with a Bachelor of Dental Surgery in 2004 and was first registered as a dentist on 1 January 2009. The following extract from the substantive decision encapsulates some personal circumstances which the respondent encountered, and the consequences for her of those circumstances 14 The respondent was exposed to physical violence as a child and was later exposed to domestic violence during 2014/2015 whilst in a former domestic relationship. She commenced drinking alcohol heavily during that relationship and at about that time was observed to be suffering from a number of psychological symptoms "which included some recurrent and intrusive distressing memories of the traumatic events, distressing dreams, intense psychological distress, social withdrawal and disengagement, sleep disturbance, problems with concentration, and impaired self-esteem." (Per Dr Murray Wright report 1 July 2021). All of the medical evidence is to the effect that as a result of physical violence suffered in her childhood and the domestic violence in an earlier relationship, the respondent developed Posttraumatic Stress Disorder (PTSD) and Alcohol Use Disorder. 1. From 1 February 2017 the respondent's registration as a dental practitioner was subject to a number of undertakings that she submit to a regime of regular and consistent alcohol breath testing, that she provide the results on a regular basis to the Dental Council of NSW, and that she provide information to the Council as and when required. The respondent was largely, but not completely, compliant with this regime until February 2019 when she again commenced drinking heavily, which she associated with certain difficulties in her relationship with her partner. At that stage the respondent said that she largely withdrew from contact with others, including the Dental Council of NSW, which ultimately led to the suspension of her registration in June 2019. 2. Ultimately the respondent sought help from a psychologist, Ms Brooke Naylor in June 2020 who, for the first time, focused the respondent's attention on her previous abusive relationships, in an attempt to assist her in abstaining from alcohol. 3. The substantive proceedings were originally fixed for hearing on 18 and 19 August 2021. It was the respondent's evidence that leading up to the preparation or the hearing she was required to read a report provided by Ms Naylor which …listed all my past traumatic events. I found it difficult to read and I became very depressed, and I lost motivation to continue with the process of detailing these events with other people. I withdrew from social contact as much as I could. I did not respond to the attempts my solicitor made to contact me. I turned my phone to silent and left my phone sitting on the charger in my study. I was feeling overcome by shame and depression and could not cope with discussing the matters involved with my case with anyone. In retrospect, I can see my behaviour was creating greater difficulties for me. However, at the time, it seemed to me that avoidance was the simplest solution to my problems. 1. The respondent recommenced drinking alcohol on 30 July 2021 and "drank most days to 5 September 2021." She was then referred by her general practitioner Dr S Butler to a psychologist, Ms Sue Maloney who specialises in managing clients with complex trauma. The respondent commenced seeing Ms Maloney on 25 October 2021 and remains under her care. The relevant medical and psychological evidence 1. There is a detailed consideration of the relevant medical and other health practitioner evidence in the substantive decision. For present purposes it is only necessary that I refer to some of the evidence which is uncontroversial. The respondent has been diagnosed as suffering from Posttraumatic Stress Syndrome (PTSD) caused by her traumatic personal history which has been referred to briefly above. It is generally assumed that her PTSD is interrelated with her Alcohol Use Disorder. The evidence of Dr Robert Fisher, psychiatrist with whom the respondent consulted on behalf of the applicant and Dr Murray Wright psychiatrist with whom the respondent consulted on the referral of her solicitor is to the effect that the respondent must deal with her PTSD either before, or concurrently with, her attempts to completely abstain from alcohol on a permanent basis. Both Drs Fisher and Wright said that in addition to receiving treatment from a psychologist or psychiatrist to deal with her PTSD, the respondent should be treated concurrently by a qualified drug and alcohol specialist, whether a psychiatrist or physician. I note that a requirement that the respondent undertake this treatment is included in the protective orders made by the Tribunal in the substantive proceedings. The basis for the non-publication application 1. The primary basis for the nonpublication application is that publication of information concerning the name of the respondent in the context of the personal traumatic events experienced by her will have a detrimental effect on her recovery and well-being. 2. Before considering the evidentiary material relied upon by the respondent in aid of this application, I refer to a secondary basis asserted on behalf of the respondent. This was that publication of her name would put her at risk of violence, including, presumably, threats of violence by the former partner which was prevalent in her relationship with him. The evidence of the respondent is that she had commenced a relationship with this former partner in 2014, which she ended about a year later when she began to feel unsafe around him, although he was never violent. She said that after the relationship ended her former partner continued "to harass and stalk me. He would constantly call and text me and would often show up outside my house unexpectedly…." Consequent upon mediation proceedings her former partner agreed not to contact her again. She said that she did not hear from him "for a long while after the day at court" but then received a number of missed calls and "strange emails," which she said appeared to be written by her former partner. At this time, she increased her consumption of alcohol. In "spring of 2015" the former partner contacted her by email, she agreed to meet with him, but unexpectedly he visited her home early one morning without notice and sexually assaulted her. She subsequently found that she was pregnant and later had an abortion. The respondent said that her drinking habits continued to worsen after this. There is no evidence that the respondent has had any contact from her former partner since the abortion. 3. In circumstances where the former partner of the respondent has had no contact with her for a period which, on my calculations would be in excess of five years, I reject the respondent's assertion that publication of her name would put her at risk of violence by the former partner, because there is no sufficient evidentiary basis for this. 4. I turn now to consider the evidentiary material for the respondent's primary basis. 5. A report of Dr Stephanie Butler of 16 November 2021 who has been the respondent's general practitioner since 5 August 2019 states in part (FCE) has shown great resilience and has work (sic) diligently in her psychotherapy facing her previous life traumas which are of a very delicate and personal nature. I strongly support the application for non-publication of the NCAT decision. The public disclosure of her personal childhood trauma and her latest sexual assault, could very well likely contribute to a recurrence of her PTSD and Alcohol Use Disorder. This would undermine all the progress and benefit made with her intensive psychotherapy. Preparing for and giving evidence at NCAT pose a significant psychological stress for (FCE). This process is defined and is manageable with appropriate psychological support. The consequences of the publication of the proceeding is unpredictable causing great uncertainty. This has the very real potential of undermining (FCE's) recovery from PTSD and her ability of leaving her traumatic past behind her. The impact of having a very personal and distressing past publicised would be very detrimental to (FCE's) well-being and under these special and exceptional circumstances I feel that nonpublication is essential for (CPE's) ongoing psychological health. (CPE) becomes overwhelmed by stressful external life stressors (the current medicolegal issues), to the point that she closes down, disassociates and withdraws, and is unable to communicate with anyone. (CPE) feels that the only way to escape her painful stress is to self-mediate (sic) with alcohol… 1. A report of Dr Murray Wright dated 1 July 2021 noted that some difficulties with the respondent's relationship with her current partner which occurred in late 2018 and early 2019 were "of a lesser magnitude, and far less directly threatening to her than the violent relationship that caused the PTSD in the first instance. This is an indication of her vulnerability to re-traumatisation through stressful events of a lesser magnitude." 2. Dr Wright then went on to express the following opinion in support of the non-publication order which bears a striking similarity to that of Dr Butler extracted above I note the preparing for and giving evidence at NCAT also constitutes significant stress for (FCE), but it is by comparison a more circumscribed, predictable and manageable stress, and I expect that (FCE) will avail herself of increased psychological support to assist her through that process. It is ultimately a time-limited event and therefore predictable and manageable. The difficulty with publication is that the information and the consequent potential to contribute to further stressors in the future is unmanageable, unpredictable, and will last for the foreseeable future. These different dimensions of uncertainty greatly increase the potential to cause stress and further undermine (FCE's) recovery from PTSD. The events of an extremely personal and distressing nature which have caused (FCE) such difficulties can easily gain traction in media reports if they are in the public domain, and the potential for that to occur will persist long after the NCAT hearing has ended. This would make it very difficult for (FCE) to put these events behind her, which is a necessary part of recovery from PTSD. 1. The opinions expressed by Drs Butler and Wright set out above were supported by written opinions of Mss Naylor and Maloney, and by Dr Fisher in oral evidence. 2. There is therefore overwhelming evidence from medical and psychology practitioners that publication of the respondent's name carries significant risk to her well-being and to her prospects of recovery from both PTSD and Alcohol Use Disorder. Consideration 1. The commencement point for consideration of whether the Tribunal's discretion to grant a non-publication order as sought by the respondent is the principle that prima facie proceedings involving misconduct of health practitioners should be conducted in public. I have referred to this principle above at [8] and following. The same prima facie principle should apply to the publication of decisions of the Tribunal dealing with these matters. In the context of proceedings of this kind I refer to the decision of the former Medical Tribunal in HCCC v Gow (Suppression Order) [2008] NSWMT3 at [21] cited by his Honour Acting Judge Cowdroy in Health Care Complaints Commission v DAC [2017] NSWCATOD 98 at [161] inherent in the protection of the public (is) that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should a patient wish to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession. 1. Health Care Complaint Commission v Vo [2014] NSWCATOD 127 contains reference to a general statement of principle which I apprehend has been generally accepted within the jurisprudence of the Occupational Division of this Tribunal. Boland J ADCJ said [at 182] 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. 1. I proceed on the basis that in order to displace this general principle and to make a nonpublication order with respect to the name of the respondent, I must be satisfied that there is something special, exceptional, or out of the ordinary which would justify it. 2. Even though there is evidence in the substantive proceedings, provided by way of concession of the respondent that she did treat patients whilst inebriated, there is no evidence that any patient suffered any injury or that his or her treatment was compromised in any way by the conduct of the respondent. The respondent has not practised dentistry since 2019. It may be assumed, therefore, that it is unlikely that any former patient of the respondent would be disadvantaged if her name were not disclosed in connection with the report of the Tribunal's decision. 3. In terms of future patients, I am informed that if a non-publication order is made, AHPRA will not include any link to any anonymized decisions in its electronic records concerning the respondent which are accessible to the public and would therefore be accessible to any potential patient or employer of the respondent. However, the extensive practice conditions which have been imposed on the respondent's registration in consequence of orders made in the substantive decision, and the fact that the registration has been suspended for six months will all be publicly accessible. Whether private health conditions 7 to 17 including the comprehensive regime accompanying the respondent's testing for alcohol will be published will be a matter for the National Board in the exercise of its discretion under section 226 of the National Law. 4. On this basis potential patients and employers of the respondent will have access to information which clearly reveals the nature and extent of the conditions pertaining to her registration, and from which it will be easily ascertainable as to the reasons why they have been imposed. 5. I now turn to the import of the medical and psychological evidence which I have referred to above. It is overwhelmingly to the effect that publication of the respondent's name would create significant risk to her well-being and to her prospects of recovery from both PTSD and Alcohol Use Disorder. This is a matter which must be balanced in the determination of this application. 6. In all the circumstances any person or entity making enquiries about the registration of the respondent as a dental practitioner will have access to publicly available information concerning the status of the registration and, in the foreseeable future, that the respondent's registration had been suspended for six months and that she was required to work under supervision. In circumstances where none of the causes of the respondent's condition arose from any particular conduct of the respondent and whether non-publication of them will not adversely affect the interest of the public will be a matter for the exercise of the discretion of the National Board under section 226 of the National Law. The same conclusion applies to publication on the public register of the requirement that whilst registered as a dental practitioner the respondent is required to abstain from alcohol, to engage in a comprehensive regime of alcohol testing and to undertake treatment. 7. On balance I conclude that the necessity to enhance the well-being of the respondent and to enhance her prospects of recovery constitute special, exceptional, and out of the ordinary circumstances which justify the making of the non-publication order sought by the respondent, in the context of the unlikely disadvantage to the public whether to past or prospective patients which would result from such an order. 8. I ask the applicant to inform AHPRA that this decision of the Tribunal will be thwarted if a link to it is provided on its website or otherwise made available to the public concerning the respondent. Order 1. The publication of the name of the respondent and the publication of any information, picture or other material that identifies the respondent or is likely to lead to her identification other than to the Australian Health Practitioner Regulation Agency and to the Dental Council of NSW is prohibited. ********** 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 Amendments 24 December 2021 - [32] and [35] of the reasons amended pursuant to the Orders in Health Care Complaints Commission v FCE (No 3) [2021] NSWCATOD 220 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: 24 December 2021