Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v DAC [2017] NSWCATOD 48 Hearing dates: 13 March 2017 Date of orders: 03 April 2017 Decision date: 03 April 2017 Jurisdiction: Occupational Division Before: Cowdroy ADCJ, Principal Member Decision: Grant an interim order suppressing the respondent's name, and the name of the deceased medical practitioner referred to in this application. Catchwords: Suppression order – Consideration of effect on doctor's professional career. Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 HCCC v Dr Gow (Suppression order) [2008] NSW MT3 HCCC v Safi [2017] NSW CATOD 26 [2017] NSW CATOD HCCC v Dr A [2012) NSW MT 10 (22 June 2012) John Fairfax & Sons Ltd v The Police Tribunal (1986) 5 NSWLR 465 Walton v Momot [1997] NSW CA 334 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) DAC (Respondent) Representation: Counsel: P Strickland SC (Applicant) Ms Dwyer (Respondent) Solicitors: Health Care Complaints Commission Avant Lawyers File Number(s): 1620196 Publication restriction: There shall be a non-publication order of the name and address of the registered health practitioner, namely the Respondent in these proceedings, and of the medical practitioner, now deceased, who is referred to in the evidence to be adduced. Such order is made in accordance with the provisions of the Health Practitioner Regulation National Law (NSW) No 86A, Schedule 5D, cl 7(1)(b)(iii) until further order of the Tribunal reasons for decision 1. Before the Tribunal is a complaint brought by the Health Care Complaints Commission (the Commission) against a neuro surgeon, "DAC" (the Respondent). The complaints allege unsatisfactory professional conduct and professional misconduct, as defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. 2. When the hearing of the complaints commenced on Monday, 13 March 2017 the Respondent made an application for a non-publication order under the provisions of clause 7 of Schedule 5D to the National Law which provides: 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. Following the application made by the Respondent, the Applicant (the Commission) also made an application under the same provisions for the non-publication of the name of a deceased medical practitioner who was intimately involved in the allegations which were to be brought before the Tribunal. 2. The application was heard by the Tribunal. At the conclusion of the submissions the Tribunal adjourned for the purpose of deliberations. The Tribunal then announced its decision that in each case it would grant an interim non-publication order. The Tribunal now provides its reasons for having made such orders. Relevant Principles 1. It is an accepted principle that matters brought before the Tribunal under the National Law require the proceedings be held in public. Section 64 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") allows for an order prohibiting or restricting disclosure of certain information as follows: 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 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. Accordingly, there is statutory recognition for the proposition that the principle of open justice, which requires that proceedings be open and held in public, is flexible. It has been established by the New South Wales Court of Appeal in Walton v Momot [1997] NSWCA 334 that there is a prima facie presumption under the National Law that the Tribunal, in medical disciplinary cases, would sit in public; as referred to above, the general principle requires that the administration of justice is carried out in public: see John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR 465; Bowen-James v Delegate of Director General Department of Health (unreported, 29 July 1991, Samuels JA). In Momot Handley JA said at [3]: "This being the prima facie method by which the Tribunal should conduct its proceedings, as laid down by the Act [i.e. the National Law], it follows that something special, exceptional or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result." 1. The Tribunal has been referred to decisions where applications for a suppression order or non-publication order have been made: see, for example, Health Care Complaints Commission v Dr A [2012] NSWMT 10 (22 June 2012); Health Care Complaints Commission v Dr Gow [2008] NSWMT 3, as examples where a Tribunal has considered such an application. We note that there was also extensive consideration of this question in the matter of Health Care Complaints Commission v Safi [2017] NSWCATOD 26. Discussion of the principles was also referred to in Health Care Complaints Commission v CNU [2016] NSWCATOD 50. 2. Ultimately, it is plain, having regard to the principles of open justice that special reasons must exist to justify any order departing from the established principle. 3. The Tribunal also notes the requirements of s.3A of the National Law (NSW) which provides: "3A 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." Submissions 1. The Respondent has made extensive written submissions in which it is emphasised that there is no suggestion that any patient has ever been put at risk by the conduct of the Respondent which is alleged to have occurred, nor would there be any in the future. Further, it is submitted that as the evidence will reveal, the Respondent has suffered greatly because of a loss of a close colleague, also a medical practitioner, in respect of whom the Commission has made an application for suppression of the deceased's name. 2. Thirdly, following the death of the medical practitioner, who was the friend of the Respondent, the Respondent has suffered deep grief as diagnosed by a psychiatrist, Dr Olav Nielssen. 3. Such reaction has included "severe sadness, uncontrolled crying, impaired sleep, anxiety and negative ruminations that appear to be a direct result of the news of the death of a person he considered to be a close friend and also the threat to his professional standing arising from the circumstances of the friend's death". 4. It is also submitted that already the Respondent has suffered because certain professional job offers have been denied to him as a result of the matters to be considered in evidence. 5. Lastly, it is submitted that the conduct which gives rise to the complaints occurred over a very short period of time during the Respondent's professional career and were, in effect, an aberration. 6. The Commission submits that there are no special circumstances which warrant such an order, and the making of a suppression order is opposed. Consideration 1. The Tribunal notes that the Commission will be adducing evidence which would be, if accepted, highly damaging to the professional career of the Respondent. Such evidence, if rejected by the Tribunal, but if made public, would be highly detrimental to the future professional prospects of the Respondent. 2. Secondly, we note that the Commission has changed its application on three occasions, the final application, namely the Further Amended Application for Orders, being filed only at the commencement of this hearing. The amendments, although apparently minor, could have wider implications that are not readily apparent at this preliminary stage of the proceedings. 3. Thirdly, the Tribunal notes that there is no patient who is said to have suffered as a result of any conduct of the Respondent. 4. In view of these significant facts, the Tribunal is minded to grant an Interim Order, on the basis that the reasons relied on constitute special circumstances, sufficient to justify a departure from the usual principle. The Tribunal is disadvantaged because it has not yet heard any evidence. Should it eventuate that the Tribunal, having heard the evidence, considers that the Interim Order which it proposes to make should, in the public interest, be revoked, then the Tribunal will vacate such order. However, for the present purposes it is satisfied that an Interim Order should be made in respect of the Respondent. 5. With respect to the Commission's application for an interim order to protect the name of the deceased medical practitioner, the Tribunal is again at a disadvantage because it has no evidence yet before it. Again, the Tribunal observes that there is no allegation that any patient suffered at the hands of the deceased practitioner. It is claimed by the Commission that the deceased medical practitioner's death has caused, and will continue to cause, great distress to his family, and it was for this reason that a successful application was made to dispense with a Coronial Inquiry into the deceased's death. 6. Whilst the Tribunal does not consider that the grounds for the Interim Order made by the Commission are strong, it will nevertheless grant an Interim Order but indicate that if, as with the Order made in respect of the Respondent, it considers it appropriate to vacate that order, it will do so. Orders 1. There shall be a non-publication order of the name and address of the registered health practitioner, namely the Respondent in these proceedings, and of the medical practitioner, now deceased, who is referred to in the evidence to be adduced. Such order is made in accordance with the provisions of the Health Practitioner Regulation National Law (NSW) No 86A, Schedule 5D, cl 7(1)(b)(iii) until further order of the Tribunal 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: 03 April 2017