Health Care Complaints Commission v Dr Annette Dao Quynh Do (No. 2) [2013] NSWMT 11

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do (No. 2) [2013] NSWMT 11 Hearing dates: 6 May 2013 Decision date: 06 May 2013 Before: Colefax SC DCJ Decision: 1. Refuse application to redact name of deceased patient. Catchwords: Principles of open justice considered against principles of privacy - balancing of competing principles. Legislation Cited: Health Practitioner Regulation National Law (NSW) Court Information Act (NSW) 2010 Category: Interlocutory applications Parties: Health Care Complaints Commission (Complainant) Dr Annette Dao Quynh Do (Respondent) Representation: Mr. C. O'Donnell (Complainant) Ms. F. Westwood (instructed by the Health Care Complaints Commission) (Complainant)

No appearance by Respondent File Number(s): 4005 of 2011 Publication restriction: No

Judgment 1On 29 April 2013 the tribunal published its reserved decision in relation to an amended complaint made by the Health Care Complaints Commission against Dr Annette Do. In publishing that reserved decision the tribunal did not redact or anonymise the name of the relevant patient the subject of the amended complaint, Mr Daniel Siebler. 2Today Mr O'Donnell of counsel (who appears on behalf of the Commission) has made an oral application that the version of the reasons for decision which has been placed in the public arena through the Case Law website should anonymise Mr Siebler's name. 3In support of that application, Mr O'Donnell has pointed to the provisions of the National Law which he says gives the tribunal power to make that order. I accept the submission which he makes in that regard. 4Mr O'Donnell further submits that it is ordinarily the case in this tribunal that that power is exercised in relation to, amongst other things, the names of patients, the subject of tribunal's investigations. 5In the present case, as Mr O'Donnell submits, there is a difference from what might be regarded as the ordinary case in the tribunal - that difference being that the relevant patient is dead, and dead as a direct consequence of the matters the subject of this tribunal's decision. 6Mr O'Donnell submitted that there is no utility in the publication of Mr Siebler's name. 7Mr O'Donnell has further submitted that there would be some sensitivity in the family of the deceased in his name being published in the manner in which the decision is presently to be found. That is not necessarily so. There is certainly no evidence of any kind that the family's wishes are to that effect; and it is equally on the cards, in my view, that the family would wish to have Mr Siebler's name published in order that the wrong done to him might be publicly acknowledged. I am not prepared to speculate one way or the other in the absence of evidence as to the family's wishes; but I am not persuaded positively that they do wish to have some form of suppression order in place. 8In general terms, what the Commission seeks is for the balancing between the competing considerations of open justice and individual privacy in the present case to resolve itself in favour of individual privacy. 9This is an issue with which the justice system frequently struggles. 10Parliament has assisted courts and tribunals in specific cases by legislating for effective privacy; for example, all proceedings involving children in the criminal jurisdiction and in the care jurisdiction are subject to statutory and mandatory restrictions. Similarly, in cases of sexual assault involving adults there is also a mandatory statutory provision. In other areas of the justice system those restrictions do not apply. In almost all criminal matters involving adults, other than sexual assault, there is little, if any, restriction on information being publicly available. And in civil proceedings, which in many cases can be just as sensitive as criminal matters, there is a marked reluctance to restrict the available information to the public. 11In more recent times, Parliament has turned its mind to this issue in the Court Information Act 2010. It is, of course, immediately to be acknowledged that that Act does not expressly apply to this tribunal. The definition section of the Act defines "courts" as being the Supreme Court, th District Court and the Land and Environment Court. That being said, and although I have not had detailed or any submissions on this point, there is room for thinking that the principles attending upon the Court Information Act (which has not yet come into force, although it has received the Royal Assent), would be something that this tribunal would need to consider in the exercise of its discretionary powers. 12Prima facie, in my view the principles of open justice militate against the imposition of restrictions on information or events occurring in courts or tribunals without there being an overwhelming competing consideration. In the present case, I am not persuaded that the discretion should be exercised to displace the open operation of this tribunal and, in particular, where there is no clear indication from the family as to its wishes. (I interpolate, however, that that would not necessarily be a decisive factor. It would be a relevant factor). 13For these reasons the application of the Commission to anonymise or otherwise redact the name of Daniel Siebler from the decision published in the open media through Case Law is refused. I direct that a copy of these remarks be taken out and placed on the Case Law website. 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 May 2013