McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142 Hearing dates: On the papers Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Decision: (1) The application for varying the suppression order made by the Tribunal on 25 May 2018 is refused.

(2) Insofar as the non-disclosure order made by the Tribunal on 25 May 2018 may be considered deficient because of the reference to cl 7(1)(b)(iii) of Schedule 5D of the Health Practitioner Regulation National Law, instead of a reference to cl 7(1)(a) of such Schedule, the Tribunal makes an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 No 2 that the name of any patient mentioned in the Complaint in the principal proceedings and in the evidence adduced during the hearing is not to be disclosed.

(3) The question of costs is reserved.

(4) If any application is to be made by either party for costs, then written submissions are to be provided to the Tribunal and the other party in support of the application within 21 days of the publication of this decision; and the receiving party is to respond within seven days thereafter by written submissions to be provided to the Tribunal and to the other party. At the expiration of such period, the decision on costs is reserved for determination. Catchwords: PROFESSIONS AND TRADES – health practitioners – former medical practitioner – disciplinary proceedings – non-disclosure order and non-publication order made to protect privacy of patients' statements and for clinical records – application by journalist to revoke non-disclosure order to enable access to patients' names – whether non-disclosure order should be varied Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW) Civil and Administrative Tribunal Rules 2014 Court Information Act 2010 (NSW) Health Practitioner Regulation National Law Health Records and Information Privacy Act 2002 Cases Cited: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Dr Annette Dao Quynh Do (No.2) [2013] NSWMT 11 Health Care Complaints Commission v Petros [2019] NSWCATOD 83 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Medical Council of New South Wales v Lee [2017] NSWCA 282 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334 Category: Principal judgment Parties: Joanne McCarthy (Applicant on application for ancillary order) Health Care Complaints Commission (First Respondent) P Petros (Second Respondent) Representation: Solicitors: Applicant (Self-represented) Health Care Complaints Commission (First Respondent) File Number(s): 2018/00117097 Publication restriction: Publication of the names of any patient which might be ascertainable from this decision or the principal decision is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).