Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bradley (No 2) [2022] NSWCATOD 51 Hearing dates: On the papers Date of orders: 11 May 2022 Decision date: 11 May 2022 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: The application of the respondent that her name not be published in the Tribunal's decisions is dismissed. Catchwords: PROFESSIONS AND TRADES – health care professional – pharmacy – where practitioner admits she is guilty of unsatisfactory professional conduct and professional misconduct – non-publication orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 49, 64 Health Practitioner Regulation National Law (NSW) – cl 7, Sch 5D, Cases Cited: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Dr Gow (Suppression order) [2008] NSWMT 3 Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131 Texts Cited: None cited Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) Caroline Bradley (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00254359 Publication restriction: Nil REASONS FOR DECISION Introduction 1. The Tribunal's reasons for decision in this matter were published on 2 May 2022 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 (Primary Decision). The Tribunal decided to suspend the respondent's registration as a pharmacist for a period of 6 months, and to place conditions on her registration. Application 1. On 3 May 2022, the Registry received an application from the respondent for a non-publication order in respect of her name. 2. In her email to the Registry, the respondent referred to her "utter anguish" at hearing her name mentioned on the radio, and asked that her name by anonymised for the preservation of her mental health. 3. The application was not supported by any other information or medical evidence. 4. Pending a decision on this issue, the Primary Decision has been restricted on Caselaw. Commission's position 1. The respondent's request was sent to the applicant Health Care Complaints Commission (Commission) for its views. 2. In short, the Commission neither consents to nor opposes the application. It does however note the following matters to assist the Tribunal: 1. the Primary Decision was made public for a period of at least 24 hours until it was taken down, and appears to have been reviewed by the media, although an online search does not reveal a published article. 2. the Commission brought the Primary Decision to the attention of several interested and relevant third parties prior to it being taken down. Ms Bradley has given evidence that she informed those around her generally of the proceedings. 3. it is not known how many people listened to the radio broadcast and the content of that broadcast; 4. the respondent's application may be taken to have been made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or alternatively under cl 7 of Sch 5D of the Health Practitioner Regulation National Law (NSW). In either case, the relevant question, to displace the presumption of open justice in disclosing a respondent's name, is usually characterised as whether some factor(s) "special, exceptional, or out of the ordinary" exist. The only basis set out by Mrs Bradley is her mental health; 5. mental health concerns alone do not automatically displace the principle of open justice. Relevant factors for the Tribunal to note are the seriousness of the conduct and the strength of evidence supporting the application (beyond embarrassment and stress/anxiety which is not a special or exceptional circumstance); 6. the respondent's evidence at the hearing was to the effect that, once the decision was made, she would be able to "move on" including to feel ready to talk more fully about her behaviour to family and colleagues; 7. the respondent has the support of her mental health professionals and medical practitioners to respond to any stress or anxiety posed by the publication of the decision. Consideration 1. The starting point is that, save for certain exceptions, all Tribunal and Court processes are conducted publicly. As the Tribunal noted recently in Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 at [11], the relevant authorities concerning the principle of open justice were summarised by Boland ADCJ in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31. 2. Her Honour said at [26] that the principle of open justice was a widely recognised principle of the common law, and that the rationale for the principle and the limited circumstances recognised at common law for departure from the principle were well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 at 476–477 as follows: 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. 1. Her Honour also noted that 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 were also relevant. 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" (Emphasis added) 1. These common law principles of open justice are reinforced by s 49 of the NCAT Act which provides: "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. As Boland ADCJ also stated in Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 at [55], having accepted that the practitioner suffered from suffer depression and anxiety, and in the past expressed suicidal ideation, had contacted Life-line and on at least one occasion overdosed on illicit drugs: 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. 1. And as the Medical Tribunal stated in Health Care Complaints Commission v Dr Gow (Suppression order) [2008] NSWMT 3 at [21], where the Tribunal declined to make a suppression order concerning Dr Gow and the Tribunal's reasons for decision: [I]nherent in the protection of the public 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 which 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. Conclusion 1. Applying the principles set out above, I decline to order the non-publication of the respondent's name. In summary this is for the following reasons: 1. the assertions of the respondent about her mental health are unsupported by any medical evidence; 2. the Tribunal published the Primary Decision on 2 May 2022 and, until the access to the Primary Decision on Caselaw was restricted, was read by an unknown number of people; 3. publication of the Primary Decision followed two days of public hearings on 12 and 13 April 2022, during which time no application was made by the respondent for suppression of her name. 1. The Commission submits that an often-quoted example of where such an order was made is in Health Care Complaints Commission v XC [2015] NSWCATOD 9. In that case, there was expert evidence before the Tribunal that publication of the name of the practitioner, who had a significant psychiatric history, could lead to her committing suicide. The Tribunal found "exceptional" circumstances and made the non-publication order sought. 2. No such evidence is before the Tribunal in the present application. Other 1. The submission of the Commission also addresses another issue, that being whether or not the health conditions placed on the practitioner's registration should be published. 2. They should not. This matter has now been addressed by the Tribunal and the health conditions will not be published on the Caselaw version of the Primary Decision. Orders 1. The Tribunal orders: 1. The application of the respondent that her name not be published in the Tribunal's decisions 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: 11 May 2022