Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nosek (No. 2) [2017] NSWCATOD 101 Hearing dates: On the papers Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member A Bizzotto, Professional Member A Jarrett, Professional Member R Davis, General Member Decision: The interim non-publication order made on 13 January 2017 is revoked. Catchwords: PRACTICE AND PROCEDURE — principles of open justice — whether appropriate to order the suppression of name of an impaired health practitioner Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mental Health Act 2007 (NSW) Cases Cited: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Merrilyn Walton v Alexander Sergevich Momot & Anor NSW Court of Appeal, 17 April 1997 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Michelle Nosek (Respondent) Representation: Counsel: F Shah (Applicant) In Person (Respondent) File Number(s): 1620066 REASONS FOR DECISION 1. In a decision handed down on 13 January 2017, the Tribunal (constituted by A Britton, Principal Member; A Bizzotto, Professional Member; A Jarrett, Professional Member; R Davis, General Member), made orders under the Health Practitioner Regulation National Law (NSW) (the National Law) to cancel the practitioner registration of nurse, Michelle Nosek: Health Care Complaints Commission v CWY [2017] NSWCATOD 6 (the substantive decision). At the same time, we made interim orders prohibiting the publication of Ms Nosek's name and invited the parties to comment on whether those orders should continue (the interim non-publication order). 2. In mid-2016, Ms Nosek was admitted as an involuntary patient at Goulburn Hospital following an acute psychotic episode and diagnosed with schizophrenia. At the time of the hearing, Ms Nosek was subject to a six months' community treatment order made by the NSW Mental Health Review Tribunal under the Mental Health Act 2007 (NSW). 3. In the substantive decision we found that Ms Nosek had an "impairment" as defined by s 5 of the National Law, namely a condition, schizophrenia, that detrimentally affected or was likely to detrimentally affect, her capacity to practise the profession of nursing. In addition, we found that Ms Nosek was not competent to practise nursing: s 139(a) of the National Law. 4. At our invitation, each party made written submissions about whether the interim non-publication order should be lifted. Despite being invited to do so, neither party commented on whether the matter could be dealt with "on the papers" without a hearing as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Nonetheless, being satisfied that the issues for determination could be adequately determined in the absence of the parties by considering their respective written submissions, we determined the matter without a further hearing. Statutory framework 1. While in different terms, the National Law and the NCAT Act each contain provisions which enable orders to be made to prohibit the publication of the name of a registered health practitioner: cl 7(1)(b)(iii) of Sch 5D of the National Law and s 64(1)(a) of the NCAT Act. 2. The power conferred by the National Law vests in the "person presiding in proceedings before … the Tribunal". In contrast, the power under the NCAT Act vests in "the Tribunal", in this matter the four members of the Tribunal who made the substantive decision. 3. A further point of difference between the two provisions is that the power under the National Law can only be exercised if the decision-maker (the presiding member) "thinks it appropriate in the particular circumstances of the case". Under the NCAT Act the power may be exercised if the decision-maker (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". 4. Neither party addressed which of these provisions apply in this matter. 5. The interrelationship between the two provisions was considered in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [7] - [15]. The Tribunal reasoned that where proceedings are on foot, given the use of the active, present tense by cl 7 of Sch 5D, the Tribunal should proceed to consider whether a non-publication should be made (in that case on the application of a party) by exercising the power conferred by that provision. Applying that analysis, in this matter as all issues have not been finally determined, the applicable source of power is cl 7 of Sch 5D of the National Law. 6. That conclusion is bolstered by s 35 of the NCAT Act which states that the provisions of Part 5 of the NCAT Act, which includes 64, are subject to the relevant enabling legalisation, in this case the National Law. 7. Accordingly, the decision to continue (or revoke) the interim non-publication order is required to be made by the presiding member (Principal Member Britton). PRINCIPAL MEMBER BRITTON: Should the interim non-publication order be lifted? 1. Ms Nosek urges the Tribunal to continue the interim non-publication order. In brief submissions she wrote that she is currently receiving treatment for a "mental health condition" and claimed that she saw a psychiatrist in late 2016 who stated she was "stable". She wrote that she had "kept the matter [the complaints referred to NCAT by the Commission] as private as possible to protect my identity and reputation". She provided no further information about her condition, the progress of her treatment or whether she remained subject to a community treatment order. 2. The Commission opposes the continuation of the non-publication order. Citing Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of Appeal 17 April 1997), the Commission submits that "something special, exceptional, or out of the ordinary" must be established before the Tribunal can made a non-publication order. In addition, the Commission cites Health Care Complaint Commission v Vo [2014] NSWCATOD 127, and the authorities summarised in that decision at [181] - [185]. 3. In short, the Commission submits that the ordinary principles relating to publication in matters brought under the National Law ought to apply in this matter. It argues that the protection of the health and safety of the public being the paramount consideration in the exercise of the Tribunal's functions under the National Law, ought not be displaced by secondary considerations. 4. The Commission argues, in particular, that although Ms Nosek suffers from schizophrenia there is no evidence that on account of that condition she suffers guilt, shame or suicidal ideation. It follows, argues the Commission that the Tribunal should not consider Ms Nosek as a person at risk of self-harm if the interim non-publication order were to be lifted. Consideration 1. The presumption underlying the National Law is that proceedings will be open to the public and the reasons for any decision made by the Tribunal will be available to the public: s 165K and cl 7 of Sch 5D. This presumption reflects the public interest in open justice and transparency of processes employed by disciplinary bodies such as NCAT. Nonetheless, the National Law gives the presiding member discretion to depart from that presumption, where he or she "thinks it appropriate in the particular circumstances of the case". 2. While the balance between the public and private interests will ordinarily be weighted towards the public interest that will not always be the case. A general rule cannot be stated and each case must be dealt with on its merits. However, where because of the fragility of a practitioner's mental health there is a genuine risk of self-harm or of derailing the prospects of their rehabilitation if their name were to be published, in my view it is appropriate that consideration be given to whether the discretion to make a non-publication order should be exercised. 3. In the reasons for the substantive decision the evidence about Ms Nosek's condition of schizophrenia, which had been untreated for many years was considered in some detail. It revealed a long history of persecutory and delusional thoughts relating to, among other things, members of Ms Nosek's immediate family. Given that one of the complaints made by the Commission was that Ms Nosek currently suffers from a thought disorder and experiences persecutory and/or delusional ideas, the Tribunal examined this issue in some detail in its reasons for the substantive decision. 4. As the Commission points out, there is no direct evidence that Ms Nosek has suicidal tendencies or a history of self-harm. Nor, is there any evidence about the likely impact the disclosure of her name, in the context of these proceedings, will have on Ms Nosek's condition and the prospects of her rehabilitation. 5. Ms Nosek was self-represented throughout these proceedings. Coupled with the disadvantage of having a severe psychiatric condition, it is not surprising that throughout the proceedings Ms Nosek struggled to engage in the real issues that arose for determination and to provide any evidence in support of the propositions she sought to advance. In these circumstances, it cannot be inferred from the absence of evidence that Ms Nosek will not be adversely affected if the interim non-publication order were lifted. The converse also applies – it cannot be inferred that she will be adversely affected if the interim non-publication order were lifted. 6. The available evidence is that Ms Nosek is in the early stages of treatment for a disabling psychiatric condition. It seems improbable, given the medical opinion before the Tribunal in the original proceedings about the chronic and severe nature of that condition, that Ms Nosek would be unaffected if her condition and the history of delusional thoughts, especially those involving members of her immediate family, were disclosed. On the other hand, as the Commission points out, there is no evidence that Ms Nosek's prospects of recovery would be undermined or she would be at material risk of self-harm if her name were to be disclosed. 7. The considerations are finely balanced. In my opinion, it is possible that the lifting of the non-publication order will put Ms Nosek's health and rehabilitation at risk. Nonetheless, without better evidence to enable that risk to be assessed, I am unable to find that the particular circumstances of this case warrants the continuation of the interim non-publication order. 8. For all these reasons, the interim non-publication order made on 13 January 2017 is revoked. The reasons for decision published on 13 January are amended by deleting all references to the pseudonym "CWY" and substituting the words "Ms Nosek". ********** 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: 29 June 2017