Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cheng (No 1) [2016] NSWCATOD 61 Hearing dates: 9 and 10 May, 2016 Date of orders: 16 May 2016 Decision date: 16 May 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Dr M Higgins, Professional Member Dr S Mares, Professional Member Ms J Houen, General Member Decision: Application for interim non-publication order is dismissed Catchwords: Health practitioner -complaint alleging misconduct of a sexual nature-application for interim non-publication order of name of respondent - principle of open justice -application dismissed Legislation Cited: Health Practitioner Regulation National Law, s165K, Clause 7 of Schedule 5D Civil and Administrative Tribunal Act, 2013, s64 Jury Act, 1977, s68C Cases Cited: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Elvin Suet Pang Chen (Respondent) Representation: Counsel: C Davenport SC (Complainant) W Hunt (Respondent) Solicitors: Health Care Complaints Commission (Complainant in person) Avant Legal (Respondent) File Number(s): 1520230 Publication restriction: A non-publication order in relation to anything that might identify the patients of the respondent REASONS FOR DECISION ON APPLICATION FOR INTERIM NON-PUBLICATION ORDER 1. These proceedings are constituted by an Amended Complaint. The complainant, the Health Care Complaints Commission (HCCC) brings a number of complaints against the respondent, Dr Elvin Suet Pang Cheng, alleging both unsatisfactory professional conduct and professional misconduct with respect to his involvement in the treatment of five female patients. Included within the allegations brought against the respondent are that he conducted certain examinations requiring some of the patients to remove clothing without clinical reason or appropriate explanation, and that he inappropriately touched the breasts and other parts of the bodies of the patients, some of whom were young and vulnerable. The respondent denied the bulk of the complaints and the particulars. He asserted that those examinations which involved patients in removing their clothing were conducted properly for an appropriate clinical purpose. He did concede, however, that in some cases he may not have communicated the purpose of the examinations appropriately. 2. When the hearing of the proceedings commenced on 9 May 2016, the respondent, through his counsel, made an application for an interim non-publication order prohibiting the publication of his name pending the final determination of the proceedings, when a decision would then be made whether to pursue a permanent order. The complainant neither supported nor resisted the making of any such order. 3. The application was heard during the course of the proceedings on 10 May 2016. There were two bases for the application. The first relied upon an email communication from the Director of Investigations of the complainant dated 24 April 2015 directed to the solicitor for the respondent. That communication indicated that the complainant had determined, in the public interest, to disclose its investigation report into the complaints with respect to four of the patients to the New South Wales Police, and that it had done so. The respondent submitted that in the event that the police determined to commence proceedings against him, his right to a fair trial would be affected by material which would be "unlikely to be admissible in any future criminal proceedings." Accordingly, it would be in the public interest to make a non-publication order, and in the circumstances the public interest would outweigh the public interest of open justice which attaches to proceedings before this Tribunal. The second basis referred to the fact that some of the allegations were of a sexual nature and that if not proven during the course of the proceedings, publication of the name of the respondent's identity would create "significant reputational damage that will not be able to be repaired." Jurisdiction and power to make a non-publication order 1. The respondent submitted, and the complainant agreed, that the appropriate power to make such an order was to be found in the provisions of clause 7 of Schedule 5D of the Health Practitioner Regulation National Law ("the National Law"). This provision is in the following terms: 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 provisions of this clause apply to proceedings before this Tribunal. There is arguably another source of power to make, relevantly, the same non-publication order contained within section 64 of the Civil and Administrative Tribunal Act, 2013 ("NCAT Act"). In Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135, Acting Judge O'Connor, AM, Deputy President as presiding member determined that in the context of current proceedings before the Tribunal, it was appropriate to proceed to consider the power given by clause 7, and determine an application for a non-publication order under that power rather than apply the provisions of section 64 of the NCAT Act. The reasoning adopted by his Honour proceeded, in part, on the basis that a specific provision applying to the Medical Tribunal should be applied rather than a general provision applying generally to the Civil and Administrative Tribunal. 2. I respectfully agree with the reasoning and conclusion contained within BXD, which has been followed in other proceedings of this Tribunal, and I shall proceed accordingly. This decision and the reasons given in support of it are those of the presiding member. General principles 1. It is incontrovertible that proceedings before this Tribunal should ordinarily be conducted in public, unless circumstances dictate to the contrary, as provided for in section 165K of the National Law. The general principles which apply when considering the application of the provisions of clause 7 were considered recently in a decision of the Tribunal of which Acting Judge The Hon J Boland AM was the presiding member in Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Relevantly, the Tribunal said at [181]-[184]: 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. 1. Having regard to the general principles set out above, and the need to identify some matters which may be said to take these proceedings out of the ordinary or create circumstances of a special or exceptional nature, I shall shortly consider the two bases suggested by the respondent as justifying the making of a non-publication order, albeit on an interim basis. Before doing so, I should observe that, prima facie, the principles of open justice apply generally to proceedings in which allegations of misconduct are made against defendants and respondents. It is a hallmark of the principle of open justice that the fact that proceedings whether of a criminal or disciplinary nature have been instituted in a court or a tribunal against a person or an entity may be exposed to the public generally via the media, or by publication by those present during the course of those proceedings. There is, of course, an attendant potential for damage to the reputation and standing within the community of a defendant or respondent. Whilst this is generally of concern, the overarching principle of open justice displaces such potential damage. Perhaps some solace may be gained by the fact that an accurate publication of the fact of the proceedings should also include some reference to the fact that they are defended, and that the allegations are denied, if this be the case. In these circumstances, unless there is a matter of special significance, the fact that such proceedings are in train, and that no decision has been announced, does not ipso facto mandate that a non-publication order of an interim nature be issued pending the outcome of the proceedings. Accordingly, the application made by the respondent needs to be considered solely by reference to the current state of these proceedings. 2. In the course of submissions, the respondent emphasised that the complaints with respect to three of the patients dated back to 1993, and that criminal proceedings with respect to the circumstances of one patient had been dismissed. It was suggested that, in the circumstances, a cautious approach was required when considering whether to make a non-publication order. 3. I should add for completeness that counsel for the respondent referred me to a number of decisions of the Tribunal in which the making of non-publication orders had been considered, and in some of which such orders were made, both on a final and interim basis. I have read those decisions for the purpose of considering this matter. In each case in which such an order was made there existed the special or exceptional circumstances referred to above. As was appropriately conceded by Mr Hunt, those circumstances were far removed from the circumstances of these proceedings. It is not necessary that I refer to any of those decisions in any detail. Prejudice to a fair trial 1. The concern, as expressed by the respondent, is that publication of the allegations per se might affect any right of the respondent to a fair trial in the event that criminal proceedings are instituted by NSW Police, by way of referral to the DPP. Of course, as conceded by the respondent in the manner in which the submission is framed, it is not yet known whether any such proceedings will be instituted, and if so, whether and to what extent the fact that the allegations contained within the complaints brought by the complainant have been made might arguably affect the conduct of any such proceedings. In criminal proceedings before a judicial officer sitting alone, it is unarguable that the fact that allegations of the kind contained in these proceedings have been made, and that the Tribunal may have made findings in relation to them would have no bearing on their outcome. Fundamentally, the onus of proof in each set of proceedings differs markedly and this Tribunal is not bound by the provisions of the Evidence Act. 2. In the case of a jury trial, the submission made by the respondent gives no credence to the ability of a presiding judicial officer to properly manage and control criminal proceedings to be determined by a jury. There can be no reasonable basis upon which it might be supposed that a presiding judicial officer would, in some way, permit a jury to be inappropriately instructed as to the relevance of any allegations contained within these proceedings, and any findings made by this Tribunal. Again, the onus of proof is fundamentally different, and there is a profound difference in the manner in which evidence is adduced and received. Furthermore, as Senior Counsel for the complainant pointed out, the provisions of section 68C of the Jury Act, 1977 would apply: Inquiries by juror about trial matters prohibited 68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings. (3) This section does not prohibit a juror: (a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) from making an inquiry authorised by the court. (4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror. (5) For the purpose of this section, "making an inquiry" includes the following: (a) asking a question of any person, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, (e) causing someone else to make an inquiry. 1. This provision would act as a powerful disincentive to a member of a jury to access any record relating to these proceedings unless permitted to do so in the course of a criminal trial, and jurors are instructed accordingly. 2. In the circumstances, the concern expressed by the respondent regarding the possible effect of the refusal to grant a non-publication order on a right to a fair trial is remote and would not justify the exercise of discretion to make such an order. This aspect of this submission is rejected. Irreparable significant reputational damage 1. As I have previously stated, damage of this kind often accompanies the institution of criminal, disciplinary and other proceedings against persons and entities, and is a correlative by-product of the principle of open justice. In these circumstances, the unfortunate position in which the respondent finds himself in the context of these proceedings is no different to many others in the community who find themselves subjected to criminal and other allegations. There is nothing contained within the bare assertion that such damage is present that attracts the extraordinary or special circumstances necessary to justify the making of a non-publication order. This submission is also rejected. Conclusion and order 1. It follows from the conclusions which I have set out above that I reject the non-publication application made by the respondent, and it is dismissed accordingly. 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 May 2016