Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Safi [2017] NSWCATOD 26 Hearing dates: 6 February 2017 Date of orders: 06 February 2017 Decision date: 06 February 2017 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Decision: Application for interim non-publication order declined 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 (NSW) Cases Cited: Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v Dr A [2012] NSWMT 10 HCCC v Dr Gow [2008] NSWMT 3 Health Care Complaints Commission v CNU [2016] NSWCATOD 50 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohamed Payenda Zhouand Safi (Respondent) Representation: Counsel: R Mathur (Complainant) M Carruthers Solicitor (Respondent) Solicitors: Health Care Complaints Commission (Complainant) HWL Ebsworth (Respondent) File Number(s): 1620153 Publication restriction: Non-publication order with respect to the identity of or any material which might tend to identify Patient A REASONS FOR DECISION Background 1. These proceedings arise out of complaints brought by the Complainant, the Health Care Complaints Commission against the Respondent, Dr Mohamed Payenda Zhouand Safi alleging unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). The allegations centre around and arise out of a consultation conducted by the Respondent with Patient A and allege inter alia misconduct of a sexual nature. 2. At the commencement of the proceedings the respondent made application for a non-publication order under the provisions of Clause 7 of Schedule 5 D to the National Law. The provisions of that Clause are in the following terms; 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 application was heard by me and determined by me sitting alone, being the person presiding in the proceedings before the Tribunal, Having heard the submissions of the parties at the commencement of the hearing of these proceedings, I made an order dismissing the application for an interim non-publication order, indicating that I would deliver written reasons. These Reasons for Decision constitute my reasons for having dismissed the application. 2. It is common ground in the proceedings that as a result of a complaint brought by Patient A to the NSW Police Service arising out of the consultation which is the subject of these proceedings the Respondent was arrested by police and charged with certain alleged offences. The Respondent participated in a committal proceeding and then in a criminal trial. He was acquitted of all charges. 3. In support of the application for a non-publication order Ms M Carruthers, solicitor, made a number of submissions based in part on the fact that the Respondent had already been exposed to the ignominy of criminal proceedings arising out of the same conduct and had been acquitted. 4. Ms Carruthers submitted that the fact that these proceedings might become general public knowledge unless an interim non-publication order were made would expose the respondent to adverse publicity, especially in circumstances where he had already been acquitted after a criminal trial. She asserted that a non-publication order had been in force during the criminal trial and the fact of his acquittal should dictate that a cautious approach should be taken to publication of these proceedings. Furthermore, it was said that the respondent works in a general practice with his wife, who also practices as a medical practitioner under the same family name. It was asserted that his wife's reputation might also be damaged by the publication of the respondent's name in connection with these proceedings. The relevant 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 Complaints 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 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 proceedings whether of a criminal or disciplinary nature which have been instituted in a court or a tribunal against a person or an entity may be reported 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 these 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. 2. It is also necessary to note that the subject matter of the criminal charges of which the respondent was acquitted are different to the subject matter of the complaints with which this Tribunal is dealing in these proceedings. They both arise out of the circumstances of the same consultation, but there are different emphases in the enquiry which is being conducted by this Tribunal which focuses on a number of aspects of the consultation including matters such as whether the respondent had obtained an adequate history, offered a chaperone to the patient, properly explained the procedure which he was undertaking and whether, in all the circumstances there was appropriate "informed consent" to the medical examination which he undertook. There are also allegations of a failure to record certain information, some of which are conceded by the respondent. These are matters in addition to the specific complaints made concerning the manner in which the respondent conducted a vaginal examination of the patient. Accordingly, the subject matter of these proceedings is relevantly different from the precise matters which were considered in the criminal proceedings. Furthermore, whilst it was necessary for guilt to be established in the criminal proceedings according to the criminal standard, a different standard applies in the circumstances of these proceedings, namely that usefully described by reference to the "Briginshaw principle" which I shall summarise as being "comfortably satisfied on the balance of probabilities." It is not necessary to describe both standards in any further detail, and I proceed on the basis that they are relevantly different. 3. Ms Carruthers 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 Ms Carruthers, those circumstances were far removed from the circumstances of these proceedings. 4. In Health Care Complaints Commission v Dr A [2012] NSWMT 10, Kavanagh J made an order suppressing the name of a medical practitioner because there was evidence that a close family member of the practitioner was suffering from a psychiatric condition, had previously attempted suicide, was "still vulnerable" and that any adverse publicity would create "the prospect of a renewal of the trauma associated with repeat publicity" which might adversely impact upon the family members. There was also evidence of an adverse psychological impact on other close members of the family who might similarly be affected by adverse publicity. I observe that these are circumstances far removed from those applying in the context of these proceedings. 5. In HCCC v Dr Gow [2008] NSWMT 3, Ainslie-Wallace DCJ (as her Honour then was) made an interim non-publication order based upon psychiatric evidence that the practitioner was suffering from a major depressive disorder and "a long-standing social anxiety disorder" and, accordingly, remained "vulnerable to a further period of severe depression." There was evidence to the effect that any "public scrutiny and media interest" in the outcome of the hearing would have a negative impact "on the respondent's mental state, physical well-being and his immune response." Her Honour was persuaded to make an interim non-publication order, but said that she would not make any such order following the final determination of the proceedings. I again observe that the circumstances being considered in those proceedings were relevantly different from those which apply to these proceedings. 6. In Health Care Complaints Commission v CNU [2016] NSWCATOD 50 Mullane ADCJ made a non-publication order with respect to the name of the respondent, but only following the final determination of the complaint proceedings which resulted in the complaints against the practitioner being dismissed. Again, those proceedings are relevantly distinguishable. Consideration 1. In submissions opposing the making of the interim order, Ms Mathur, counsel for the complainant properly conceded that the respondent's wife was practising as a medical practitioner under the same family name in the same general practice as the respondent. However, she asserted that there was simply no evidence of the likely adverse impact upon her and upon her practice of the publication of the name of the respondent. Ms Carruthers conceded that there was no such evidence. Accordingly, this fact would not in any way constitute the special, exceptional or extraordinary circumstances identified by the NSW Court of Appeal in Walton as militating in favour of the making of a non-publication order. 2. I have already discussed the possible adverse consequences of the impact upon a respondent of the commencement of proceedings such as these upon his or her reputation. As I have observed, the principle of open justice dictates that unless there are special, exceptional or extraordinary circumstances, the mere fact that possible adverse consequences exist which are attendant upon publicity of the fact of the proceedings before the Tribunal will not, of itself, and without more justify the making of an interim non-publication order. The examples in Dr A and Dr Gow referred to above are indicative of the existence of special, exceptional or extraordinary circumstances. There are no such circumstances which apply to these proceedings. 3. It follows that the application made by the respondent should be dismissed, and these Reasons for Decision constitute my reasons for having done so on 6 February 2017 at the commencement of the hearing of these proceedings. ********** 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 February 2017