Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v GGZ [2024] NSWCATOD 53 Hearing dates: On papers after 20 March 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: (1) The respondent's application for a suppression order and a non-publication order is refused. (2) The respondent is directed to advise the Tribunal within 28 days as to whether he intends to appeal from Order 1. Note: The initials GGZ have been used to identify the respondent in this decision. If the respondent does not advise the Tribunal that he intends to appeal within 28 days, the decision will be re-issued and re-published with the name of the respondent substituted for the initials GGZ. Additional order made 02 August 2024; (3) Pursuant to s 64(1)(a) of the NCAT Act, publication of the file number connected to the application the subject of this decision is prohibited because it may lead to the identification of the name of the respondent. Catchwords: CIVIL PROCEDURE — suppression and non-publication orders — relationship between the power to make suppression and non-publication orders under the Health Practitioner Regulation National Law and the power to make those orders under the Civil and Administrative Tribunal Act 2013 (NSW); applicability of decision in Walton v Momot [1997] NSWCA 334 Legislation Cited: Chiropractors and Osteopaths Act 1991 (NSW) (repealed) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96 Shi v Migration Agents Registration Authority [2008] HCA 31 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Walton v Momot [1997] NSWCA 334 Texts Cited: None Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) GGZ (Respondent) Representation: Counsel: K Sharma (Applicant) S Gaussen (Respondent) Solicitors: M Rogers (Health Care Complaints Commission) (Applicant) Makinson d'Apice (Respondent) File Number(s): Not for Publication Publication restriction: Pursuant to s 64(1)(a) of the NCAT Act, publication of the file number connected to the application the subject of this decision is prohibited because it may lead to the identification of the name of the respondent. REASONS FOR DECISION Application for suppression and non-publication order 1. On 13 March 2024, the last day of the Stage 1 hearing under the Health Practitioner Regulation National Law (NSW) (National Law) involving GGZ, he foreshadowed that he would be applying for the Tribunal to make a suppression order and a non-publication order in relation to his name and specialty. Subsequently GGZ applied for the following order: 1. Pending further order of the Tribunal and pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and clause 7 of schedule 5D of the Health Practitioner Regulation National Law, the name and specialty of the Respondent doctor not be disclosed. 2. The respondent doctor be referred to by a pseudonym of the Tribunal's choosing. 1. The Health Care Complaints Commission opposes the application. 2. By "non-publication order" I mean an order that prohibits or restricts the publication of information, but that does not otherwise prohibit or restrict the disclosure of information. By "suppression order" I mean an order that prohibits or restricts the disclosure of information, by publication or otherwise. Those meanings reflect the meanings assigned to those terms in the Court Suppression and Non-publication Orders Act 2010 (NSW). That legislation does not apply to Tribunal proceedings but the Tribunal has power to make such orders under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and under clause 7, Schedule 5D of the National Law. Issues 1. The substantive issue is whether the Tribunal should make the suppression and non-publication orders sought by GGZ. Two preliminary issues arise which were not the subject of submissions by either party. The first is the source of the power to make such orders. GGZ relied on the power to make suppression and non-publication orders under both s 64(1)(a) of the NCAT Act and under clause 7 of Schedule 5D to the National Law. 2. The second preliminary issue is the scope of the discretion to make suppression and non-publication orders in clause 7 to Schedule 5D of the National Law. What is the source of the power to make suppression and non-publication orders in proceedings under the National Law? Statutory provisions 1. Set out below are the two provisions on which GGZ relies as the source of the Tribunal's power to make the orders: clause 7 to Schedule 5D to the National Law and s 64 of the NCAT Act. 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 equivalent provision in the NCAT Act is s 64: 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, including a sound recording or transcript, 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. 1. In Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [7]-[15], the Tribunal considered this issue although it was not raised in the parties' submissions. After comparing the two provisions, the Tribunal made a suppression order under Schedule 5D, clause 7(1)(b)(iii) (name and address of registered health practitioner). The Tribunal also observed that s 64 of the NCAT Act could be invoked in a situation where a party wishes to have a suppression order varied or revoked after the proceedings have been completed. The Tribunal concluded at [15] that: In this case, as the proceedings are on foot, and the application has been made in the course of the proceedings, the Tribunal should proceed by exercising the power given by clause 7. 1. Since then, as far as I am aware, the issue of the source of the Tribunal's power to make a suppression or non-publication order has not been re-visited. The Tribunal has routinely made such orders under s 64 of the NCAT Act when the proceedings are on foot. 2. For the following reasons I agree with the Tribunal's conclusion in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 that, at least when the proceedings are on foot, the source of the Tribunal's power to make suppression and non-publication orders is clause 7 to Schedule 5D of the National Law. 3. Schedule 5D to the National Law is headed "Proceedings before Professional Standards Committees or the Tribunal [NSW]". That Schedule relates to proceedings before both Professional Standards Committees and proceedings in the Tribunal under the National Law: Sch 5D, clause 1(2). Schedule 5D contains thirteen clauses about various practices and procedures including the power to summon witnesses and take evidence, the power to obtain documents and the power to award costs. It also contains clause 7 relating to the release of information. 4. The majority of the clauses in Schedule 5D to the National Law specifically state the relationship between that clause and similar provisions of the NCAT Act. For example, some clauses, such as clause 13(4) relating to costs, "applies instead of section 60 (Costs) of the" NCAT Act. Other clauses apply only to proceedings before Professional Standards Committees, leaving provisions in the NCAT Act to govern Tribunal proceedings. One example is the power to summons witnesses in clause 3 of Schedule 5D to the National Law. The Tribunal's powers under ss 46, 47 and 48 of the NCAT Act remain intact. 5. Other clauses in Schedule 5D to the National Law apply "in addition to any other power conferred on the Tribunal by the NCAT Act". For example, clause 4 of Schedule 5D relating to the power to obtain documents is "in addition" to the powers in the NCAT Act with respect to the provision of documents. 6. Clause 7 of Schedule 5D of the National Law relating to the release of information is silent as to the relationship of that provision to s 64 of the NCAT Act. It does not state that clause 7 applies instead of s 64 or "in addition to any other power conferred on the Tribunal by the NCAT Act". 7. I note that the provisions in Part 8, Division 10 of the National Law relating to the Constitution and proceedings of the Tribunal "are intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013": National Law, s 165K. For example, provisions relating to the joinder of complaints in s 165D of the National Law apply despite anything to the contrary in s 44 of the NCAT Act; provisions about when Tribunal orders take effect in s 165E of the National Law apply despite anything to the contrary in s 61 of the NCAT Act, and so on. 8. Unlike Part 8, Division 10 of the National Law, there is no general rule that the provisions of Schedule 5D are intended to apply despite anything to the contrary in the NCAT Act: National Law, s 165K. 9. In my preliminary view, when read in context, it must have been the legislature's intention that clause 7 of Schedule 5D of the National Law, applies instead of s 64 of the NCAT Act. Clause 7 of Schedule 5D of the National Law and s 64 of the NCAT Act are both sources of power to make suppression and non-publication orders, but the legal tests for making those orders are different. Under s 64(1) the Tribunal must be satisfied "that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". Clause 7 states the test as being that the Tribunal may make such orders if the Tribunal "thinks it appropriate in the particular circumstances of the case". Two provisions each giving the Tribunal power to make the same kinds of orders, cannot both apply when the legal test for the exercise of the powers is different. What is the scope of the Tribunal's discretion under the National Law to make a suppression order or a non-publication order? 1. The Tribunal's power to make a suppression order under clause 7, Schedule 5D to the National Law is a discretionary power. The Tribunal "may" make such an order, if it is "appropriate in the particular circumstances of the case". 2. An interpretation of clause 7 of Schedule 5D to the National Law that will best achieve the purpose or object of the National Law is to be preferred. Under cl 7 of Schedule 7 of the National Law: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law. 1. The guiding principles of the National Law are set out in s 3A: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that— (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example— Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. There is an "additional NSW provision" in s 3B of the National Law: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. 1. Consequently, when exercising the discretion as to what is "appropriate" in all the circumstances, the protection of the health and safety of the public must be the paramount consideration. Another relevant purpose of the legislation is for the scheme to operate in a transparent, accountable, efficient, effective and fair way. 2. A further relevant matter when determining the scope of the discretion to make a non-publication or suppression order is the extent to which the Tribunal is bound by the principle of open justice. Under s 49 of the NCAT Act: 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. Section 165K of the National Law effectively replaces s 49(2) of the NCAT Act in relation to proceedings under that Law: 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. (Emphasis added) 1. The discretion in s 165K of the National Law is narrower than that in s 49(2) of the NCAT Act. Under the NCAT Act, proceedings may be conducted wholly or partly in private because of the confidential nature of the evidence or matter or "for any other reason". In DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [21] the Court of Appeal noted the "significant difference" between the exercise of the Court's discretion under section 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and under s 64(1) of the NCAT Act. Those differences suggest that the principle of open justice is qualified in some kinds of proceedings under the NCAT Act. There are no such qualifications in proceedings under the National Law. 2. Clause 7 to Schedule 5D of the National Law is in relevantly identical terms to the now repealed clause 6(1) of Schedule 3 to the Chiropractors and Osteopaths Act 1991 (NSW) (repealed). The most frequently cited case on the meaning of that provision in the context of an application by a health practitioner for an order suppressing their name under the National Law is Walton v Momot [1997] NSWCA 334. In that case the Chiropractors and Osteopaths Tribunal had declined to make a suppression order during the currency of the proceedings in respect of the publication of the practitioner's name. On appeal Spender AJ held that, "there is no basis for importing ... a requirement that the circumstances must be special or exceptional for a suppression order to be made". The Court of Appeal held at 3, that Spender AJ "erred in finding that there was no requirement that special or exceptional circumstances should be established before a suppression order could properly be made". In support of that conclusion, the Court of Appeal referred to the general principle that the Tribunal will sit in public: The general principle provided for in s 46 (3) [of the Chiropractors and Osteopaths Act 1991 (NSW)] 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. In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel undertook a comprehensive review of the relevant authorities relating to suppression orders, including Walton v Momot. At [49], citing Shi v Migration Agents Registration Authority [2008] HCA 31 at [92], the Appeal Panel referred to the well-established principle that "[r]eference to decided cases must not be permitted to distract attention from the language of the applicable statute...". The Appeal Panel concluded at [82] that: ... we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition. 1. Walton v Momot was decided in 1997, before the enactment of the National Law, the NCAT Act or the Court Suppression and Non-publication Orders Act 2010 (NSW). While it has been routinely cited by the Tribunal as binding authority, the question arises as to whether, given the significantly different legislative context in 2024, it is now distinguishable. Neither party raised that issue in these proceedings. It is also unnecessary for me to determine that issue because I have decided that the circumstances of this case are not 'special', 'out of the ordinary' or 'exceptional' and that it is otherwise not appropriate to make a suppression or non-publication order. Evidence and findings 1. GGZ's evidence in support of non-publication and suppression orders consists of: 1. A statement of Annabelle Serisier, an employee of GGZ's solicitor, dated 13 March 2024 annexing two media articles. 2. Two letters of instruction to Dr Danielle Florida dated 1 March 2024 and 11 March 2024; and 3. Two reports of Dr Danielle Florida dated 3 March 2024 and 10 March 2024. Risk of identifying Patient A 1. Firstly, GGZ submits that the publication of his name risks identification of Patient A, who is currently the subject of a pseudonym order in the substantive proceedings. Ms Serisier states that she conducted a Google search of GGZ's name on 13 March 2024. This search was said to produce two articles which refer to Patient A by name. Those articles are accessible on the internet. In those circumstances GGZ submits that there is a material risk that the publication of his name and specialty might lead to the identification of Patient A. 2. On my reading of the newspaper article in Annexure A to Ms Serisier's affidavit, there is no mention of Patient A by name. Annexure B does disclose Patient A's name. The risk of Patient A being identified from the article in Annexure B is extremely low because publication of reasons for decision containing GGZ's name would not directly identify Patient A. A person would have to conduct a search on the internet to find the only article in evidence where Patient A's name is mentioned in conjunction with GGZ's name. 3. The facts in Health Care Complaints Commission v CSM [2016] NSWCATOD 125 (CSM) are distinguishable. In that case the Tribunal made a suppression order in circumstances where the practitioner had a sexual relationship with a patient at a small hospital. The patient had a severe psychiatric disorder. In light of the further risks to the patient's mental health if his or her identity was revealed, the Tribunal suppressed the name of the practitioner. There is no evidence of a risk of this magnitude in this case. Risk of further deterioration of mental health 1. Secondly, GGZ submitted that unless his name is suppressed, his already precarious mental health is likely to deteriorate further. Evidence from Consultant Psychiatrist, Dr Danielle Florida, who has been treating GGZ since 9 April 2020, is that GGZ has been diagnosed with various mental health issues including Mixed Anxiety Depressive Disorder, situational anxiety and panic attacks. Dr Florida wrote a report dated 3 March 2024 in which she expressed the opinion that "the publication of GGZ's mental health issues could lead to an exacerbation of both his anxiety and depression". In addition, it is likely that there would be a major deterioration in his mental health if issues leading to a diagnosis of complex Posttraumatic Stress Disorder were to be disclosed. 2. That opinion is of little assistance because GGZ is not seeking an order prohibiting the disclosure of his mental health issues and those issues are unlikely to be the subject of the Tribunal's Stage 1 decision. 3. In a second report dated 10 March 2024, Dr Florida added that she was also of the opinion that if GGZ's name was published in reference to any disciplinary matter, this would also have a deleterious effect on his mental health. That was the full extent of Dr Florida's opinion. No opinion is expressed as to the likely nature or extent of such a deleterious effect or the reason for it. 4. GGZ again cites CSM in support of his application. CSM was receiving regular crisis counselling and had made enquiries about whether he could be admitted to a psychiatric hospital for treatment: CSM at [92]. That degree of risk is significantly higher than the general risk to which Dr Florida adverted. I am not persuaded that the making of suppression or non-publication order is appropriate in those circumstances. GGZ's name has been anonymised in separate proceedings 1. GGZ is involved in other proceedings initiated by the Health Care Complaints Commission which are currently before the Tribunal. On 20 June 2022, the Tribunal made a suppression order under s 64(1) of the NCAT in the following terms: Pending further order the name of the respondent doctor and the evidence before the Tribunal is suppressed. 1. Stage 1 of those proceedings has concluded and Stage 2 is listed for hearing in July 2024. GGZ is considering whether to apply to the Tribunal for these proceedings, and the current proceedings, to be joined for the purposes of a combined Stage 2 hearing. GGZ submits that unless a suppression order is made it is unlikely that joinder will be possible. 2. No application has been foreshadowed to the Commission or made to the Tribunal for joinder of the two proceedings. As the Commission has pointed out, for the purposes of conducting an inquiry or hearing, the Tribunal is constituted under s 165B of the National Law. It is not apparent that Stage 1 and Stage 2 hearings in the same matter can be conducted by differently constituted Tribunals. The National Law otherwise contemplates that the constitution of a Tribunal cannot change part way through an inquiry: National Law, s 165C(2) and (3) and Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96. The possibility of a joinder application in these circumstances does not make it appropriate to make the orders sought by GGZ. Time since conduct occurred 1. The matters complained of occurred between nine and six years ago. In those circumstances GGZ submits that the benefit to publishing GGZ's name is necessarily reduced. While the length of time since the alleged conduct occurred may be a relevant consideration, depending on what has transpired since that time, there is no basis on which the passage of time, by itself, or in combination with any other circumstance, justifies the making of the orders sought by GGZ. Constitution of the Tribunal 1. A decision concerning "the prohibition or restriction of the disclosure, broadcast or publication of matters" is an "interlocutory decision": NCAT Act, s 4, definition of interlocutory decision. The Tribunal, when constituted to make an interlocutory decision in medical practitioner proceedings, is to be constituted by a single member who is the Tribunal List Manager or a Division Member who is a senior judicial officer: National Law, s 165B(5A). Orders 1. The respondent's application for a suppression order and a non-publication order is refused. 2. The respondent is directed to advise the Tribunal within 28 days as to whether he intends to appeal from Order 1. Note: The initials GGZ have been used to identify the respondent in this decision. If the respondent does not advise the Tribunal that he intends to appeal within 28 days, the decision will be re-issued and re-published with the name of the respondent substituted for the initials GGZ. Additional Order Made on 02 August 2024 1. Pursuant to s 64(1)(a) of the NCAT Act, publication of the file number connected to the application the subject of this decision is prohibited because it may lead to the identification of the name of the respondent. ********** 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 06 August 2024 - Coversheet, Decision and End of decision - Order (3) has been added Coversheet, Publication Restriction - text added 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: 06 August 2024