Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 Hearing dates: 13 July 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr L Cotterell, Professional Member Dr A Demirkol, Professional Member S Lovrovich, General Member Decision: 1. If Ms Phillipa Elizabeth Rickard (the practitioner) had been registered at the date of the hearing the Tribunal would have cancelled her registration. 2. The practitioner is precluded from applying for a re-instatement order under s 163A of the Health Practitioner Regulation National Law for a period of 3 years from the date of cancellation of her registration. 3. The Registrar is requested to notify the Medical Council of NSW as soon as practicable of Orders 1 and 2 of these orders. 4. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 5. The practitioner is prohibited under s 149C (5) of the Health Practitioner Regulation National Law from providing any health service, as defined in s 4 of the Health Care Complaints Act 1993, whether on a public, private or volunteer basis including community health services, counselling, mental health services and welfare services. Catchwords: PROFESSIONS AND TRADES – where practitioner concedes she is guilty of professional misconduct –where practitioner concedes order sought for cancellation of her registration should be made – where practitioner also concedes order sought under s 163A of the Health Practitioner Regulation National Law should be made and she should pay the Health Care Complaints Commission's costs of the proceedings - where parties in dispute about whether a non-publication order should be made. HELD – application for non-publication order dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 Health Care Complaints Commission v DAC [2017] NSWCATOD 98 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Phillipa Elizabeth Rickard (Respondent) Representation: Counsel: V Hartstein (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2017/00011269 Publication restriction: On 13 July 2017 an order was made prohibiting disclosure of the name of the patient (Patient A) set out in the schedule to the Application for Disciplinary Findings and Orders filed to any person or entity except the parties to these proceedings and the Medical Council of NSW. REASONS FOR DECISION 1. Ms Phillipa Elizabeth Rickard (the practitioner) is a former registered medical practitioner. She practised for almost 35 years with an unblemished record. However, in 2015, while she was practising as a general practitioner in a residential drug and alcohol rehabilitation service (the service) she developed a close personal relationship with a patient of the service. The relationship was, for a very short period, a sexual one. The practitioner continues to have a close personal relationship with the patient. 2. The Health Care Complaints Commission (the HCCC) commenced disciplinary proceedings against the practitioner in the Tribunal on 12 January 2017. On 6 June 2017, shortly prior to the scheduled hearing dates, the practitioner filed a Reply in which she conceded the complaints of unsatisfactory professional conduct and professional misconduct asserted against her, and also conceded all the particulars of the complaints. In her Reply the practitioner said she fully accepted that, as a medical practitioner, having a sexual relationship with a patient "is entirely inappropriate". She apologised to her colleagues in the service, and to the profession generally, for her conduct. 3. By the time of the hearing before us the practitioner had caused a letter dated 12 May 2017 to be sent to the Australian Health Practitioner Regulation Agency (AHPRA) requesting that her name be removed from the register of practitioners from 12 June 2017. She also executed a statutory declaration on 6 June 2017. In that declaration she confirmed that, once her name was removed from the register, she had no intention of ever re-applying for registration. 4. At the hearing we were advised that the practitioner consented to all orders sought by the HCCC including a costs order in its favour. However, the parties remained in dispute as to whether this case was one where a non-publication order should be made restricting disclosure of the practitioner's name. There was no dispute a non-publication order should be made to suppress the identity of Patient A. 5. We are independently satisfied that the disciplinary orders proposed by the HCCC and to which the practitioner consents are appropriate ones. This is because we are satisfied on the evidence that the practitioner's conduct constitutes both unsatisfactory professional conduct and professional misconduct. The Presiding member determined that she should not make a non-publication order restraining publication of the practitioner's name. The reasons for our findings are set out below. Background 1. The matters now set out, unless noted to be an allegation, are matters we find proved to the requisite civil standard on the balance of probabilities (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34). 2. The practitioner was born in 1948. Patient A was born in 1971. 3. In 1971 the practitioner graduated from the University of Sydney with a MBBS. She was first registered in 1972. 4. In 2008 the practitioner commenced practising at the service two days each week. 5. In May 2014 a mental health profile was completed at the service for Patient A. Patient A's presenting diagnosis was recorded as alcohol dependence, epilepsy and depression. Patient A recorded that his main concern and which led him to treatment was "emotional well-being (not coping)". 6. By 30 September 2014 Patient A had completed the therapeutic stages offered by the service at its residential facility and entered into the service's "transitional" stage also conducted at the residential facility. 7. In December 2014 a priority housing application form was completed for Patient A because he was homeless. 8. In January 2015 an application for a Disability Support Pension was completed by Patient A and sent to Centrelink. 9. By February 2015 Patient A had completed the transitional phase of the rehabilitation program offered by the service. The transitional phase required persons in the program to "transition" into living independently in a group home in an inner Sydney suburb. 10. In 2015 Patient A, while in the Exit Stage of the program, was employed as a receptionist at the service's residential facility approximately two days each week. In this position he was located in close proximity to the practitioner's consulting room. 11. In February 2015 Patient A signed an "Exit Stage House Agreement" with the service. The agreement prohibited Patient A "from entering into any relationship of an intimate/sexual nature with any other current [service] residents or staff". 12. In April 2015 the practitioner exchanged personal notes with Patient A. The notes were signed with an "x". The notes referred to the practitioner going away with Patient A, qualities in Patient A the practitioner found attractive, and referred to his "dark blue eyes". The practitioner gave Patient A a copy of the poem "If" by Rudyard Kipling. 13. Between 29 May 2015 and 14 June 2015 the practitioner went away with Patient A on three weekends. 14. By letter dated 16 June 2015 the practitioner referred Patient A to Dr Ian Ly (Dr Ly) with a request that he take over the management of the patient. 15. The service's last recorded contact with Patient A occurred on 28 July 2015. 16. In July 2015 a staff member (a clinical nurse supervisor) employed by the service asserts that Patient A did not attend for work as a receptionist at the centre on a regular basis in June/July 2015. The staff member asserts she was told that the practitioner had offered Patient A accommodation at her home, and he had told another staff member that he was excited about the offer. 17. The staff member and the operations manager of the service meet with the practitioner in July 2015 and cautioned her against offering accommodation to Patient A. The staff member asserts the practitioner responded saying "Yes, I agree it's not a good thing". 18. On 3 August 2015 a member of the service staff, when packing up Patient A's belongings, discovered medications and scripts. The staff member also found the notes sent by the practitioner to Patient A. 19. On 6 August 2015 the practitioner attended a meeting with managers of the service. The practitioner was shown the notes found in Patient A's belongings. The practitioner asserted she had ceased treating Patient A in May 2015 and did not see her conduct as breaching professional boundaries. 20. On 7 August 2015 the practitioner informed the service she would cease her employment with the service, but would continue to prescribe for the service's opioid substitution program until a replacement could be found. 21. Shortly after the meeting on 7 August 2015 the clinical nurse staff member checked Patient A's file and asserts that she saw entries relating to a consultation with the practitioner in June or July 2015. The nurse asserts, a few weeks later, she again checked the files and that Patient A's file, formerly with the practitioner's patient records, was missing. 22. On 27 August 2015 Patient A consulted a general practitioner, Dr Ly. He received prescriptions for a number of medications including Epilim, Cipramil and Inderal. Dr Ly's clinical notes disclose Patient A as consuming alcohol "1 to 2 days per month". The notes also record "History of anxiety, depression, epilepsy, alcohol abuse and gambling addiction – attended inpatient rehabilitation for his alcohol and gambling problems x 12 months – now reformed". 23. On 9 September 2015 the service made a complaint about the practitioner to AHPRA. 24. On 28 September 2015 the practitioner prescribed Valium 5mg x 50 and a Nicabate patch x 28 for Patient A. 25. On 7 December 2015 the practitioner wrote to the HCCC. She confirmed she had a "romantic/sexual" relationship with Patient A for a short period around May 2015. The practitioner said "I accept full responsibility for my inappropriate conduct and I sincerely apologise for what has occurred". 26. On 17 February 2016 the practitioner wrote to the HCCC responding to its letter of 27 January 2016. She said: I saw [Patient A] in February, March and April 2015 mainly in relation to his epilepsy, anxiety and depression. He suffered side effects from the epilepsy medications prescribed by Dr Parratt and had to change drug regimes. On 21 April 2015 there was a general review of all his medical issues to assist [Patient A's] exit from the program and to help to transfer to another general practitioner. In late May [Patient A] was told that he had two months to find new accommodation, though medical care was to continue until he left the program. [Patient A] finally left the program in early August 2015. 1. In the same letter the practitioner stated that she last saw Patient A in consultation on 15 June 2015 and that she believed her last prescription was on 28 September 2015. The practitioner also said her relationship with Patient A commenced around April 2015. She also explained: Our relationship developed from friendship to romantic and then it became intimate for approximately four weeks around the end of May 2015. Intimate sexual/romantic relationship concluded around the end of June, however, we still maintain a close friendship. 1. The practitioner also disclosed in her letter that she was the author of the notes sent to Patient A, that she continued to see Patient A as a friend, that he continued to live in her granny flat, and to see her regularly. 2. On 11 April 2016 the practitioner wrote prescriptions for Patient A for Valium 5mg x 50, Lacosamide 50g x 14, Inderal 10mg x 100 Kenacomb Otic Ointment 5g, Nicabate patch 21mg x 28, Betnovate 1/5 cream 2 100g, Celestone M cream 2 100g, Epilim EC 500mg 2 100, Sorbolene Cream 100g. 3. On 12 June 2017 the practitioner surrendered her registration. Relevant statutory provisions and principles 1. Two complaints are agitated against the practitioner by the HCCC. Complaint One asserts the practitioner is guilty of unsatisfactory professional conduct as defined in s 138 (1) (a) and (l) of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. Section 138 (1) (a) and (l) provide as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Two asserts, relying on the particulars of Complaint One, either individually or collectively, that the practitioner's conduct satisfies the definition of professional misconduct as set out in s 139E of the National Law. That provision is as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. There is no dispute that the HCCC bears the onus of establishing the complaints to the Briginshaw standard. 2. It is also important that we note the purpose of orders made at the conclusion of disciplinary proceedings if particulars of a complaint, or some of them, are established is not to punish the practitioner, but to protect the public. (see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40) In NSW in all proceedings under the National Law the health and safety of the public is the Tribunal's paramount consideration (see s 3A). The issues 1. As we have earlier indicated, the two Complaints do not involve complex factual issues. Further, the practitioner has been forthcoming and honest in her replies to the HCCC. She has admitted both complaints and the particulars of those complaints. A report by the HCCC's expert, Dr Sharron Phillipson, was received by us unchallenged. Thus, our task in satisfying ourselves of the establishment of the particulars, and the protective orders to which the practitioner consents, is confined. 2. However, as earlier noted, the parties were in dispute about whether an order should be made restricting the publication of the practitioner's name. There was no dispute that Patient A's name should not be disclosed. 3. The HCCC assert that there should be no departure from the policy of open justice. It is argued that there are no special or exceptional circumstances in this case warranting departure from that policy. 4. In contrast, the practitioner's counsel argues, relying on two expert reports, that the practitioner's circumstances are exceptional warranting the making of a non-publication order. The admitted complaints 1. In broad terms Complaint One recites by way of background Patient A's multiple health issues. The complaint particularises the practitioner's written communications with Patient A, their brief sexual relationship while the doctor/patient relationship continued, the practitioner's provision of accommodation for Patient A, and her prescribing for him including providing prescriptions after Patient A was referred to Dr Ly. The Tribunal's findings and discussion on the admitted complaints 1. It is useful that we refer to Dr Phillipson's report when discussing our findings. 2. Dr Phillipson, in her initial report, explains that it was inappropriate for the practitioner to have written the notes to Patient A. She says: The notes appear of a personal intimate nature and are not in keeping with a 'doctor/patient' relationship. Some notes relate to weekends away and are noted with an xx (related to kissing). 1. Dr Phillipson also explains that the practitioner was well aware of Patient A's physical disabilities as well as his psychiatric problems. She notes "according to his medical records [Patient A] would have been significantly impaired". Dr Phillipson opined that the practitioner's conduct in corresponding as she did with Patient A was significantly below the standard expected of a doctor of an equivalent level of training or experience and it attracted her strong criticism. 2. In considering the practitioner's close personal and sexual relationship with Patient A, Dr Phillipson opines: Although, in a letter written to the board dated 7 December 2015 [the practitioner] admitted to a sexual relationship in May that year, I note that [Patient A] continues to reside in the Granny flat at [the practitioner's] premises and that they remain "close friends". This points to the fact that [the practitioner] has poor insight into the inappropriateness of the relationship and has not taken any active steps to rectify the situation. 1. In a report dated 28 June 2017 by Ms Julie Dunsmore, (Ms Dunsmore) psychologist, on which the practitioner relies, the practitioner's relationship with Patient A is addressed in these terms: [the practitioner] spoke of her fear of losing [Patient A] which for her would be another significant loss. She did not appear to fully comprehend the inappropriateness of commencing a personal relationship before their therapeutic relationship had ceased. 1. Later in her report Ms Dunsmore explains: She was willing to take on the repercussions of continuing the close relationship and providing a place for [Patient A] to live, even after a complaint was made to the HCCC. She said she couldn't live with abandoning [Patient A]. She maintains that yes, it is an unconventional relationship but it is a two-way relationship that both [Patient A] and her have freely chosen. She also said many times that [Patient A] brought her much joy. She is very concerned about his present health status and is trying to get him to both GP and specialist medical appointments/care. 1. Dr Lee Hardwick (Dr Hardwick), an adult general psychiatrist, provided a report on behalf of the practitioner dated 26 June 2017. Dr Hardwick also noted that, at the time of her report, Patient A continued to live in the practitioner's granny flat. We draw the inference from these reports that the practitioner and Patient A continue to have a close personal interdependent relationship. 2. Unsurprisingly, Dr Phillipson is extremely critical of the practitioner's behaviour in engaging in a close personal and sexual relationship with Patient A. She is also critical of the practitioner's conduct in providing accommodation for him. 3. Like Ms Dunsmore and Dr Hardwick, Dr Phillipson expresses concern about the practitioner's lack of insight into her conduct. Dr Phillipson is strongly critical of the practitioner's role in continuing to prescribe and treat Patient A after the referral to Dr Ly. 4. The Guideline published by the Medical Board of Australia, "Sexual Boundaries Guidelines for doctors" published on 28 October 2011 refers to "Good Medical Practice: A Code of Conduct for doctors in Australia". The guideline notes: Good medical practice relies on trust between doctors and patients and their families. It is always unethical and unprofessional for a doctor to breach this trust by entering into a sexual relationship with a patient, regardless of whether the patient has consented to the relationship. It may also be unethical and unprofessional for a doctor to enter into a sexual relationship with a former patient, an existing patient's carer or a close relative of an existing patient, if this breaches the trust the patient places in the doctor. 1. The Good Medical Practice guidelines at 8.2 are also relevant. At 8.2.2 it is explained that good medical practice involves: Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care… 1. Patient A was, and remains, a vulnerable person with a complex medical and psychiatric history. At the time of the events particularised in the complaint there was a significant power imbalance between Patient A and the practitioner. There is also a significant age difference between them. This age difference is likely to have exacerbated the power imbalance. Although, as we will discuss shortly, the practitioner's history reveals a series of tragic events that have shaped and influenced her life, by virtue of her professional position and responsibilities, she did not uphold proper professional standards. In so doing she acted well below the accepted standard for a practitioner of her many years of experience. Her conduct was also improper and unethical. 2. Not only was the practitioner's conduct in respect of Patient A wholly inappropriate, she also brought the profession into disrepute particularly as a practitioner working with other professionals in the service. She ignored the timely and appropriate advice given to her by the service staff about providing accommodation for Patient A. 3. We are independently satisfied that the practitioner is guilty of unsatisfactory professional conduct, and that conduct is of sufficient gravity to warrant the cancellation of her registration. 4. It follows that we find the orders the HCCC seeks, and to which the practitioner consents, recording that, had she still been registered, we would have cancelled her registration and further that she be precluded from seeking re-registration for a period of three years are proper and appropriate ones. In reaching these conclusions, with respect, we adopt the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. His Honour said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. The non-publication order The evidence in support of the order 1. The practitioner seeks a non-publication order in respect of her name. The order is sought on two bases. First, that any disclosure of the practitioner's name may well lead to identification of Patient A and secondly, and primarily, because of the practitioner's own psychiatric health and wellbeing. 2. The practitioner relies on the reports of Ms Dunsmore and Dr Hardwick. These reports do not directly focus on the order now sought. Rather, they provide context to the practitioner's present mental health. 3. Dr Hardwick provided a report in response to a request from the practitioner's solicitors. She saw the practitioner on three occasions in 2016 and a further three occasions in 2017. 4. Dr Hardwick noted that at the time of the practitioner's first two consultations she was "clearly very depressed, and extremely anxious and worried about her current circumstances with her upcoming hearing with the HCCC". Dr Hardwick noted that the practitioner reported on occasions drinking alcohol to excess. Dr Hardwick also recorded that the practitioner told her on 26 May 2017 she would not see her again as she was moving to the south coast and had given up her registration. 5. In answering the question why the practitioner had entered into a relationship with Patient A, Dr Hardwick opined: I suspect that [the practitioner] entering into the relationship reflected [the practitioner's own vulnerability to poor decision making due to her own mental health issues. 1. Dr Hardwick went on to explain something of the practitioner's background. She said: When I first met [the practitioner] on 9/9/16, it was apparent she suffered a prolonged, complicated and unresolved bereavement/grief, due to the loss of her son to suicide when he was just 19 years old, in 2004. The circumstances around this event were particularly tragic, with her son killing himself after a period of drug abuse and psychosis. [The practitioner] was divorced from her husband at the time, who was also a medical practitioner. [The practitioner] also lost her older sister to breast cancer in 1975. [The practitioner] saw a psychiatrist at that time for her own depressive symptoms but had not found this helpful. 1. After recording her suspicion that the practitioner has suffered ongoing depression and anxiety symptoms which have varied in intensity over time, Dr Hardwick opined that the practitioner has continued to feel significant guilt at being unable to prevent the death of her son. 2. Dr Hardwick went on to opine that the practitioner's inappropriate relationship with Patient A did not arise out of her disregard for his welfare, rather that she identified Patient A's issues with her son's issues. Dr Hardwick urged us to take the practitioner's "difficult and disturbing background issues into account when assessing this case". She concluded her report as follows: In hindsight, it would have been preferable for [the practitioner] to have received psychiatric help and ongoing treatment when first her sister, and then her son died, however unfortunately she has not had good experiences with previous health care professionals and was reluctant to seek help. If treatment of her anxiety, grief and depression had occurred at an early date, the inappropriate relationship with [Patient A] may never have occurred. Furthermore, her lack of insight is another manifestation of her enduring grief and guilt, in being unable to save her son from his mental health issues and drug abuse. 1. Ms Dunsmore reported a similar tragic history to that of Dr Hardwick. Ms Dunsmore opines that the practitioner meets the criteria for Prolonged/Complex Grief Disorder. She also opines "[The practitioner] does meet the DSM 5 criteria for Major Depression, Generalized Anxiety Disorder, Persistent Complex Bereavement Disorder. She also presents with severe trauma symptomology". Ms Dunsmore recorded: She [the practitioner] completed online the Mood Assessment Program (MAP Survey (Black Dog Institute). The MAP recorded a very severe level of depression on the DM1-10 and on overall functioning her high scores indicate moderate to severe dysfunction/impairment as expressed in social/intimate relationships, work and family areas. 1. Under the heading summary, Ms Dunmore opines: I feel that [the practitioner's] mental health is indeed fragile at the present time. She has felt some relief once the decision was made for her to surrender her registration to AHPRA on 12th June. My concern is that her identity has been associated in a positive way with her profession as a medical professional and her recent work in aged care had been rewarding and valued. Her work in the past has been a lifeline and because of this I recommend that [the practitioner's] mental health be monitored regularly as she transitions to her new life. Financially she now has to meet the challenge of stopping work at an earlier age than envisaged and to look to how she will provide for both [Patient A] and herself. She is very committed to her relationship with [Patient A] but is concerned about his continuing ill health but is adamant that she will not be separated from him. The very public nature of this process is also a concern, more so how her emotional pain and grief will be dealt with in the public arena, and the impact on [Patient A] on the scrutiny of his private life and medical history. At present she is engaging in problem solving and doesn't appear to catastrophise even this very precarious situation… I feel that it is vital that her ongoing therapy addresses further processing around the present crisis/changes that she is experiencing to manage another manic defence against this present crisis. She has been very willing to explore her options going forward and establishing a plan that incorporates reasoned responses to avoid other ill-conceived responses. She is also motivated to continue treatment for her depression and complex traumatic bereavement. Relevant statutory provisions and authorities 1. It is appropriate that we commence our discussion with reference to two provisions of the National Law. First, we note that s 165M (4) of the National Law directs the Tribunal is, unless it otherwise orders, to make "publicly available a statement of decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part". That requirement is generally satisfied by the publication of a decision on NSW Caselaw's website. Secondly, we have regard to cl 7 of Schedule 5D. That 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. [our emphasis] 1. It also aids understanding of the principles involved in considering a non-publication order that we refer to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). That provision is contained in Part 4 of the CAT Act. Part 4 deals with Practice and Procedure in the Tribunal. The provisions of Part 4 are subject to the enabling legislation, in this case, the National Law. However, as the Tribunal noted in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135, s 64 may be applicable if it is sought to rescind or vary an order after the conclusion of the proceedings. It is arguable that an interlocutory order under s 64 may also be available to protect the identity of patients named in a complaint where, because a practitioner cannot be located, compliance with cl 7 (3) of the National Law is impossible. 2. Section 64 of the CAT Act is not identical to cl 7 of Schedule 5D. It provides: 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. [our emphasis] 1. Three factors of some significance are apparent from the construction of the two provisions. 2. First, under cl 7 of Schedule 5D of the National Law, the power to make the order is reposed in the person presiding at the hearing and not the panel who comprise the Tribunal. Section 64 refers to a decision of "the Tribunal" to make a non-publication order, although if an order under s 64 is made as an interlocutory order, it may be made as a single member (see CAT Act s 4). 3. Secondly, and importantly, the criteria to make an order under the two provisions is different. Clause 7 requires the person presiding to "think it is appropriate" to make the order. Section 64 requires the Tribunal to be "satisfied it is desirable" to do so. 4. Thirdly, as discussed in Health Care Complaints Commission v BXD (No 2) cl 7 does not contain any power to rescind or vary a non-publication order after the hearing is concluded. 5. The word "appropriate" is defined in the Macquarie Dictionary as "suitable or fitting for a particular purpose". Desirable is defined as "advisable". 6. The relevant principles to be applied under the National Law and its predecessors are discussed by the presiding member of this Tribunal in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31, albeit in the context of an application by a legal practitioner under s 64 of the CAT Act. Those principles by reference to authority are set out at [26] to [31] as follows: The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfiax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within its jurisdiction. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle. In Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143 the Court of Appeal was considering an appeal against order of the primary judge who had overturned an order of the then Chiropractors and Osteopaths Tribunal. The former Tribunal had refused to suppress the name of a practitioner. Handley JA said: 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 the 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 that 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 make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. The relevant statutory provision under consideration in Merrilyn Walton is now found in similar terms in Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (the National Law) and the criteria of "special, exceptional, or out of the ordinary" have consequently been applied in disciplinary proceedings under the National Law involving health practitioners (see Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v Vo [2014] NSWCATOD 127; Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73). Unlike s 64 of the CAT Act, Cl 7 does not direct the Tribunal's attention whether it is desirable to make a non publication order "by reason of the confidential nature of the evidence or matter or any other reason" but rather is it appropriate to make such an order. Arguably the discretion afforded by the s 64 is wider than that discussed by Bathurst CJ and McColl JA in Rinehart v Welker [2011] NSWCA 403 by reference to the wording of the Court Suppression and Non-publication Orders Act 2010 (NSW) which has as a pre-requisite the requirement that a judicial officer is satisfied that it is "necessary" to make the order. 1. In Health Care Complaints Commission v BXD (No 2) the Tribunal explained at [25] that the fundamental purpose of disciplinary proceedings and orders is the protection of the public. The Tribunal said the public has a right to know whether a practitioner had been charged with a disciplinary offence and the outcome of the proceedings. The Tribunal also explained "The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons". The parties' submissions 1. The practitioner's counsel, Mr Jackson, submitted that the practitioner's circumstances (her depression and her complex bereavement disorder) constitute an "exceptional circumstance" justifying the making of a non- publication order. Mr Jackson also referred to the fact disclosure of the practitioner's name is likely to lead to identification of Patient A. 2. Mr Jackson relied on the principles referred to in Health Care Complaints Commission v XC [2015] NSWCATOD 9. In that case there was expert evidence before the Tribunal that publication of the name of the practitioner, who had a significant psychiatric history, could lead to her committing suicide. The Tribunal found "exceptional" circumstances and made the non-publication order sought. 3. Ms Hartstein, counsel for the HCCC very fairly conceded there is some support for the order sought in Ms Dunmore's report, but nevertheless opposed the making of the order. Ms Hartstein took us to factors discussed the recent decision of Health Care Complaints Commission v DAC [2017] NSWCATOD 98 in arriving at the conclusion in the circumstances of that case there were "exceptional circumstances". The presiding member returns to refer those factors in her discussion below. Discussion and conclusions – non publication order – reasoning of the presiding member 1. I accept that publication of the practitioner's name may potentially, because of her ongoing close personal relationship with Patient A, cause his identity, medical conditions and treatment to become public. I am conscious, however, that his relationship with the practitioner and his diagnosis are already well known to the staff of the service. The Tribunal has endeavoured, as far as possible in these reasons not to identify the service or provide any detailed evidence about Patient A in order to minimise any inadvertent disclosure of his identity. In these circumstances, I find the risk of disclosure of his identity is not a significant risk. 2. I also find, as conceded by Ms Hartstein, there is some evidentiary basis in the report of Ms Dunsmore to support the making of the order sought. While it is understandable, given the circumstances of the preparation of their reports, it is unfortunate that neither Dr Hardwick nor Ms Dunsmore directly address the issue of the effect of publication of these reasons on the practitioner in their reports. Although the HCCC did not oppose the Tribunal receiving the treating practitioners' reports, I was unable to seek their views on this topic as neither was available for me to ask questions of them. I also note that the practitioner did not file any evidence, other than her Reply, in the proceedings. She was not required for cross-examination so I did not have the benefit of seeing or hearing from her. 3. Ms Hartstein noted, contrary to the position in Health Care Complaints Commission v DAC (where a non-publication order was made), here the practitioner's conduct affected her patient. Ms Hartstein also pointed out that the conduct which resulted in the proceedings arose from a complaint by the staff of the service about the practitioner's conduct. In other words, it was conduct directly associated with the practitioner's practise of the profession, not a discrete matter of personal conduct. She referred to the fact that in DAC there was no continuation of the conduct. It is not in dispute that the practitioner continued her relationship with Patient A after she left the service. Based on the practitioner's reporting to Ms Dunsmore, she is continuing to provide for Patient A financially. It appears he has, or will, move to the south coast with the practitioner. All experts, both treating practitioners and the HCCC's expert, note the practitioner's lack of insight into Patient A's real needs and her well-meaning but misguided response to his difficult circumstances. 4. I find it telling that Ms Dunsmore felt compelled to say in her report that "It is hoped that [Patient A's] new GP/specialists will be able to follow up on duty of care issues for him and allow for independent assessment of the impact of the relationship with [the practitioner]". 5. I turn to consider if it is "appropriate" that we make the order sought. Such an order should provide a degree of privacy for Patient A, and may assist the practitioner to cope with her present depression and to make the necessary adjustments in her life which will flow as a result of her giving up her registration. In determining whether it is appropriate that I should make a non-publication order I have not ignored the practitioner's tragic life history and her unresolved grief issues. They are relevant factors and are deserving of sympathy and understanding. 6. Balanced against those factors is the practitioner's lack of insight about the nature of, and effect, of her relationship on Patient A. With publication of her name she will be forced to confront the reality of her motives for assisting Patient A, the ongoing power imbalance in their relationship, and the need for him to receive proper, independent therapeutic assistance for his needs now and for many years to come. In making this finding I am conscious that the practitioner's reported conduct to Dr Hardwick of resorting to the consumption of alcohol to excess to deal with stress, does not auger well for her to give objective assistance to Patient A with his history of alcohol dependence. 7. In considering whether publication of the practitioner's name will adversely affect her mental health I have had significant regard for Ms Dunsmore's evidence that the practitioner is motivated to continue to seek professional help for her mental health diagnoses. 8. The scales are finely balanced in weighing the factors to be considered on determining whether there are special or exceptional circumstances justifying the non-publication order. Ultimately, however, I find the open justice principle should prevail. In reaching this conclusion I have focussed on the object of National Law found in s 3A namely that in all matters before the Tribunal, the health and safety of the public must be our paramount consideration. I find that objective is best met by publication of the practitioner's name. I am satisfied that publication of these reasons including the practitioner's name should direct her mind, (and that of other health professionals), not to her needs and reputation, but to the needs of her close friend Patient A. Publication will enable any practitioner whom Patient A consults to be fully apprised of the practitioner's tragic history which has led to their interdependent relationship. While the circumstances I have discussed favouring the order are weighty ones, I do not find they fall squarely into the category of "special or exceptional". Accordingly I have concluded it is not appropriate to make the order sought. Costs 1. As noted at the commencement of these reasons, the practitioner conceded she should pay the costs of the HCCC of and incidental to those proceedings. As the HCCC has been successful in the disciplinary proceedings we find that the practitioner's concession concerning costs is appropriately made. orders 1. If Ms Phillipa Elizabeth Rickard (the practitioner) had been registered at the date of the hearing the Tribunal would have cancelled her registration. 2. The practitioner is precluded from applying for a re-instatement order under s 163A of the Health Practitioner Regulation National Law (NSW) for a period of 3 years from the date of cancellation of her registration. 3. The Registrar is requested to notify the Medical Council of NSW as soon as practicable of Orders 1 and 2 of these orders. 4. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 5. The practitioner is prohibited under s 149C (5) of the Health Practitioner Regulation National Law from providing any health service, as defined in s 4 of the Health Care Complaints Act 1993, whether on a public, private or volunteer basis including community health services, counselling, mental health services and welfare services. ********** 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 Amendments 25 September 2017 - Decision - to include order #5 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: 25 September 2017