Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24 Hearing dates: Conducted on the papers Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Decision: (1) That the application made by the applicant for access to the Tribunal's records in respect of the disciplinary proceedings between the Health Care Complaints Commission and Peter Petros be dismissed. (2) Any application for costs is to be made within 21 days of the date of the publication of this decision. Catchwords: PROFESSIONS AND TRADES – health practitioners – application by third party journalist for access to evidence admitted in disciplinary proceedings against former practitioner – non-disclosure order and non-publication order made to protect privacy of patients' statements and for clinical records – statements provided by patients subject to guarantee of confidentiality – application by third party journalist to enable access to records admitted during hearing of disciplinary hearing – patients' names included throughout records – impractical to redact patients names – whether non-disclosure order should be varied – whether access should be granted to inspect unredacted records Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Health Care Complaints Act 1993 (NSW) Supreme Court (General Civil Procedure) Rules 2015 (VIC), r 28.05 Cases Cited: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142 Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099 Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Texts Cited: The Chief Justice, the Honourable T F Bathurst AC, Practice Note SC Gen 2 – Access to Court Files, 4 October 2019 S Rodrick, "Open Justice, the Media and Avenues of Access to Documents on the Court Record" (2006) 29(3) University of New South Wales Law Journal 90 Category: Principal judgment Parties: Joanne McCarthy (Applicant on application for ancillary order) Health Care Complaints Commission (First Respondent) Peter Petros (Second Respondent) Representation: Solicitors: Applicant (Self-represented) Health Care Complaints Commission (First Respondent) No appearance by Peter Petros 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 (NSW). REASONS FOR DECISION 1. Before the Tribunal is a second application brought by the applicant ("the journalist") for access to certain records which were admitted before the Tribunal during the hearing of disciplinary proceedings instituted by the Health Care Complaints Commission ("HCCC") against a former medical practitioner, Peter Petros in proceedings 2018/00117097 ("the disciplinary proceedings"). 2. On 25 May 2018, prior to the hearing of the disciplinary proceedings, the Tribunal made an order for the non-disclosure of the name of any patient mentioned in the complaint against the former medical practitioner ("the non-disclosure order"). The disciplinary proceedings related to surgical procedures performed on women by the former medical practitioner involving reconstruction of the pelvic floor using a device over which the former medical practitioner held the rights to intellectual property. Numerous witnesses, who were former patients of Peter Petros provided statements to the HCCC for use in the disciplinary proceedings only on the basis that their identities would not be made public. 3. The first application brought by the journalist sought a variation of the non-disclosure order and that access be granted to the journalist to inspect the material admitted during the hearing of the discipline proceedings. Access to the relevant records was refused by the Registrar. The refusal was based upon the fact that, in view of the non-disclosure order, it was not practical to redact the names of those patients from the voluminous records which had been provided to the Tribunal. Without such redaction, the effect of the non-disclosure order could have been rendered nugatory. The journalist then made application to the Tribunal seeking orders that she be granted access to the Tribunal records. 4. In its decision delivered on 11 September 2019, the Tribunal dismissed the first application: see McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142, hereafter referred to as "the first decision". The HCCC has appeared in both the first and the second applications, to oppose the disclosure of the names of the former patients, but otherwise not opposing the access sought. There has been no appearance and no submission received from Peter Petros in either application. 5. The application now before the Tribunal was filed in the Tribunal on 30 October 2019 ("the second application"). In this application the orders sought are as follows: "1. That the tribunal directs the release of documents tendered to the above hearing which do not include the names of patients. 2. That the tribunal directs the redaction of all women's names and the release of these redacted documents within a reasonable time frame. 3. That the tribunal direct women's statements and personal medical records not be released. 4. That the tribunal direct documents relating to commercial agreement between Peter Petros and TFS Manufacturing, which are the subject of a separate direction of the tribunal, not to be released." 1. The Grounds for application refer to the Registrar's previous refusal of the journalist application in associated proceedings involving another practitioner Dr Reid. However in both the associated proceedings and in the proceedings involving Peter Petros, the same issue was raised concerning the existence of a non-disclosure order and the impracticability of redacting the names of the patients whose names were the subject of the order. 2. The journalist also states in her second application that she may contact the various women patients for the purpose of checking facts and states that if she does not have the names she will not fact check and if she is not "comfortable that I know enough about a particular matter without running a risk I will not include it in the article…". 3. The grounds also state that there was evidence of emails passing between the medical practitioner, Peter Petros, and Sydney Private Hospital where the surgery was performed, and that she seeks access to records involving communications between that hospital, and various medical practitioners who worked at or were associated with the hospital. 4. The applicant has included a schedule setting out the nature of the documents which she believes exists, and to which she seeks to have access. Unlike the first application, the focus of this application is on communications between medical practitioners and the Sydney Private Hospital, and affidavit evidence and oral evidence by the manager of that hospital given to the Tribunal during the disciplinary proceedings. In contrast to the first application, the journalist does not seek revocation of the non-disclosure order made on 25 May 2018 in the present application. 5. The journalist has made both oral and written submissions, and has provided written submissions in reply dated 24th of February 2020 in answer to the submissions made by the HCCC which were filed on 10 February 2020. 6. Before proceeding to consider the submissions, it is useful to restate (as set out in the first decision) the Tribunal Rules concerning access by third parties to records of the Tribunal. 7. Rule 42 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules") provides: Subject to the Act and this rule, a registrar may, on payment of the applicable fee (if any), permit a person who is not a party to proceedings in the Tribunal to inspect public access documents in the Registry relating to proceedings in the Tribunal that are finally determined. 1. Rule 42 (8) provides: In this rule— public access document means any of the following— (a) an originating document or reply, (b) a statement, affidavit or document admitted into evidence in proceedings held in public, (c) a transcript (if available) of proceedings held in public, (d) a record (other than a sound recording) of any order made or other decision given in proceedings, (e) a record of the reasons given for a decision made in proceedings. 1. Rule 42 (4) provides: A registrar may impose such conditions as the registrar considers appropriate in relation to the granting of access under this rule to a public access document (or a copy of such a document) by a person who is not a party to proceedings in the Tribunal. 1. Rule 42 (5) relevantly provides: There is no entitlement under this rule to give or be given access to a document in the Registry (or a copy of such a document) if— (a) a claim for privilege has been made with respect to the document but not decided by the Tribunal, or (b) the Tribunal has decided that the document contains matter that is privileged, or (c) the Tribunal has ordered that the whole or part of the document not be disclosed, or (d) the disclosure of the whole or part of the document to the person is otherwise prohibited by or under the Act or any other legislation or law, or (e) the document is or includes a note or working paper produced by or for a member in relation to any proceedings. Note. See, in particular, Division 6 of Part 4 of the Act, which contains provisions concerning the disclosure of information for the purposes of the Act and also section 67 of the Administrative Decisions Review Act 1997. 1. Rule 42 (6) provides: A registrar may permit a person who would otherwise have no entitlement to be given access to a document (or a copy of a document) because of subrule (5) to inspect (or be given a copy of) parts of the document that do not contain or include the privileged material or other material which may not to be disclosed. Affidavit evidence 1. The applicant has provided the Tribunal with an affidavit sworn on 27 January 2020. Such affidavit records the fact that the journalist has had 40 years experience in her profession; that she is aware of the need to report matters in a fair, accurate and balanced manner; that the matter which is the subject of the proceedings against Peter Petros are important matters of public interest; and that she was concerned to verify the accuracy of the substance of the proceedings against Peter Petros. The journalist states that she seeks an order allowing access to redacted documents, notwithstanding that the Tribunal has indicated it does not have the capacity to undertake such redaction. 2. The applicant also states that she is prepared to provide an undertaking to the Tribunal to the effect that if she is allowed access to unredacted documents, she would not publish the names of any patient referred to in the documents. The journalist also states: "I would also undertake not to attempt to contact and [sic - any] patient directly or through an intermediary EXCEPT those, as set out in paragraph 10 of this affidavit, being patients who have already made contact with me prior to the decision of the Tribunal in relation to this application." 1. In paragraph 10 of her affidavit the journalist provides a list of patients who have already made contact with her. 2. The journalist also states that she understands that she is required to be bound and abide by the Australian Media Alliance Code of Conduct and the principles of ethical reporting; that she is regularly bound by non-publication orders made by superior courts, both Commonwealth and State and as well as various Tribunals. The journalist records that she does not wish to be granted access to statements of any patient witness in the proceedings nor to any of the commercial records which were attended in confidence. The journalist notes that whilst the HCCC does not support her application, the HCCC does not oppose the application for access pursuant to rule 42 (6). 3. Lastly, the journalist submits that "resourcing issues" should not be a basis on which the Registrar or the Tribunal could decline to provide access as provided in rule 42 (6). Submissions 1. The journalist reiterates in her submissions that the clear purpose of rule 42 (6) is to permit a person who would otherwise have no entitlement to access to a document, to be provided with such access where such access would not infringe a "nonpublication order". The journalist submits that the reporting of the matter involving the use of pelvic floor mesh is a matter of significant public interest. Further, it is submitted that the "resourcing issue" is not a matter for consideration by the Tribunal "in relation to whether an access order is made in these proceedings"; and that the issue of the resources of the registry cannot be a basis for the Tribunal declining to provide access under rule 42 (6). 2. The HCCC relies upon its submissions made in the first application and submits that, in consequence of the terms of rule 42 (6) the journalist can only inspect the documents with some form of redaction or selective process so that the privileged material is excluded from such access; and that there are no competing public interest factors which should displace provisions of the rule. 3. In respect of the 18 categories of documents to which the journalist seeks access, as detailed in the Annexure to her affidavit filed in support of application dated 27th of January 2020, the HCCC submits that this application is more extensive than originally submitted. The HCCC notes that the journalist seeks access to a "root cause analysis report" but states that there are legislative restrictions on the public accessing such documents, and that she seeks "all adverse reports" relating to 102 women implanted with the TFS device at Sydney Private Hospital. The HCCC submits that such documents would contain confidential patient information protected by the non-disclosure order made in the discipline proceedings. 4. The HCCC submits, in summary, that the non-publication order which it obtained prior to the hearing of the original discipline proceedings was sought to protect the witnesses comprising the former patients of the medical practitioner; that the order for non-disclosure should be maintained unless redaction can be effected. It states: "Protecting the privacy of persons who make notifications and statements to the Commission is essential if the Commission is to ensure that professional conduct issues can be properly investigated when they arise [1] . Access by third parties, members of the public, would deny those patients that privacy." 1. The submissions of the HCCC continue: "Of note the order made in this matter is not a non-publication order, but a non-disclosure order. To prefer the convenience of Ms McCarthy over the privacy of these patients would be contrary to the order and to the published judgment in this matter [in the first decision], referred to above at [51] – [52], which recognised that, 'This is an instance where the public interest in gaining access to all material before the Tribunal must be subverted to the private interest of ensuring the privacy of witnesses, and of their clinical records. The overriding public interest is against the revocation of the non-disclosure order.' In circumstances where Ms McCarthy expressly states she does not require the names of the patients to be disclosed, there is no public interest in disclosing those names to Ms McCarthy. Given her access to those names only compromises numerous patients' privacy." 1. The submissions of the HCCC conclude: "The Commission maintains that unless redaction can be offered, or Ms McCarthy limits the documents which she seeks access to even further (to those where patient names are not present) the status quo should be maintained." 1. In her submissions in reply dated 24th of February 2020,the journalist disputes that her application is more extensive than originally sought by her; that at all times, contrary to the submissions of the HCCC, the journalist has only ever sought redacted documents; the journalist also states that the undertaking which she then offered at the first hearing was to be considered as being equivalent to the non-disclosure order; that the undertaking she offers is only given if she were allowed access to the unredacted documents as a result of order of the Tribunal. 2. The journalist states: "To reiterate the applicant's position, access is sought to the file relating to the proceedings HCCC v Peter Petrol (2018/00117097), to explain the systems in place at Sydney Private Hospital, communications between the Hospital and NSW Health, to explain how so many woman [sic - women] were effected [sic - affected] by these procedures and in some cases left with catastrophic injuries over a lengthy period of time, including the period from around May 2013 until around June 2015 being a period that includes after the TFS device was cancelled by the TGA." Consideration General Principles 1. The principles of open justice adopted by courts usually provide that court records, unless they have been made the subject of a non-publication or non-disclosure order, are available for public inspection with leave of the court. It is convenient to consider the practices adopted in other courts to demonstrate such principle, namely the practices in the Supreme Court of New South Wales. 2. A Practice Note of the Supreme Court of New South Wales, Practice Note SC Gen 2 – Access to Court Files, by the Chief Justice, the Honourable T F Bathurst AC on 4 October 2019 provides: "A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court. … Access to material in any proceedings is restricted to parties, except with the leave of the Court. … Access will normally be granted to non-parties in respect of: • pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; • pleadings in proceedings that have not been concluded with leave of a judge or a registrar; • documents that record what was said or done in open court; • material that was admitted into evidence; and • information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist." 1. Accordingly the Supreme Court of NSW retains a discretion in respect of access to court records. Such discretion is also reflected in the rules of this Tribunal. There is no absolute right of a non-party to gain access to all records contained in a court or tribunal file, especially where non-disclosure orders in respect of such material exists. The practice note of the Supreme Court of NSW and the rules of this Tribunal provide for overriding control in respect of third party access where non-disclosure or confidentiality orders have been made. 2. An article titled "Open Justice, the Media and Avenues of Access to Documents on the Court Record" (2006) 29(3) University of New South Wales Law Journal 90 by Sharon Rodrick contains a useful discussion of the principles followed in various courts. It refers to the fact that the Rules of the Supreme Court of Victoria provide that where a confidentiality order has been made over documents, such documents cannot be inspected, nor can documents which the Prothonotary considers should remain confidential, be accessed without leave: see Supreme Court (General Civil Procedure) Rules 2015 (VIC), r 28.05. Provisions pertaining to this Tribunal 1. This Tribunal is not a court. Such determination was made by the New South Wales Court of Appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254. His Honour the Chief Justice stated at [176] that whilst the Tribunal has some of the "trappings" or features of a court, it does not necessarily mean that it is a "Court of a State" for the purpose of Chapter 111 of the Constitution. Accordingly, the principles which usually prevail in a "court" do not necessarily apply to this Tribunal. 2. Section 25 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") provide that the Tribunal may make rules for its practice and procedure. Section 38 of the NCAT Act provides, relevantly: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. … 1. Section 64 of the NCAT Act provides relevantly: (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. … Finding 1. The Tribunal, in the exercise of its powers has adopted rule 42 of the Rules. That is, such rule prescribes the circumstances in which documents may be inspected in the Registry. 2. Further, functions and powers are invested by the Rules in registrars of the Tribunal. Rule 41 relevantly provides: (1) A registrar may, at the direction of the President or a Division Head, make any of the following interlocutory decisions of the Tribunal on behalf of the Tribunal— … (f) a decision under section 64(1)(d) of the Act concerning the making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings, … 1. In the current circumstances the Registrar has determined that it is not practical to undertake a redaction of the documents filed in the proceedings. Such decision has been determined based upon the fact that the records sought to be accessed include approximately a dozen lever arch folders, each folder containing approximately 1,000 folios. The name of the relevant patients in whose favour the non-disclosure order has been made appear throughout such folios, in clinical records, and are contained in the Complaint. The Registrar has determined that it is impractical for the Tribunal staff to be allocated to undertake the task of redaction to such a substantial volume of material. The redaction process would need to be meticulous, and clearly would require many hours to perform. 2. To this must be added the fact that, in the event that there was any clerical error in the redaction process, the name of a patient could be inadvertently disclosed. Although inadvertent, such disclosure would constitute a breach of the non-disclosure order, and could result in distress to the former patient or patients whose names are revealed. 3. The journalist has also offered an undertaking in the event that redaction is impractical to the effect that she would not disclose nor seek to contact the patients named in the records. However, the Rules do not contain any provision to accept an undertaking nor does any provision of the NCAT Act authorise the Tribunal to accept such an undertaking. 4. In the Tribunal's first decision, it referred to the decisions in Shoebridge v Commissioner of Police, NSW Police Force [2017] NSWCATAD 334 and Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130. Those decisions state the principles to be followed. In the latter decision, the Tribunal at [60] referred to the need for the HCCC to fulfil its investigative role under s 3(1)(b) of the Health Care Complaints Act 1993 (NSW). Unless former patients are guaranteed that their confidentiality will be respected, there is potential prejudice to the function of the HCCC to carry out investigations because such witnesses, in the absence of such guarantee, may not be prepared to "speak frankly" or might not give "accurate information"[ see [60]]. 5. In the public interest, confidentiality prevails despite the good intentions of the journalist in seeking to ventilate an issue of public interest. The Tribunal reiterates its observations at [42] to [46] of its first decision. 6. The non-disclosure order in the proceedings, with the Registrar's determination that it is impractical to redact the names of the patients contained in the Tribunal records, leads to the conclusion that the application for access must be dismissed. Orders 1. The Tribunal orders: 1. That the application made by the applicant for access to the Tribunal's records in respect of the disciplinary proceedings between the HCCC and Peter Petros be dismissed. 2. Any application for costs is to be made within 21 days of the date of the publication of this decision. ********** Endnote 1. Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099 (24 September 2019) 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: 18 March 2020