CLW v Health Ombudsman [2023] QCAT 97

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CLW v Health Ombudsman [2023] QCAT 97 PARTIES: CLW (applicant) v HEALTH OMBUDSMAN (respondent) APPLICATION NO/S: OCR065-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: 12 April 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Dann, Deputy President ORDERS: Until further order, pursuant to s 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 publication of: (a) The contents of a document or other thing filed in or produced to the Tribunal; (b) Evidence given before the Tribunal; (c) Any order made or reasons given by the Tribunal Is prohibited to the extent that it could identify or lead to the identification of the applicant, either of the complainants and any other patient of the applicant, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld). Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to the proceeding. -- 1 of 5 -- 2 CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – REVIEW OF IMMEDIATE REGISTRATION ACTION – OPEN COURTS PRINCIPLE – APPLICATION FOR A NONPUBLICATION ORDER – where the respondent Health Ombudsman has taken immediate action on the registration of the applicant – where the applicant is charged with criminal offences – where the applicant filed an application for a non-publication order – where the applicant contends that publication of matters related to the proceeding and recording of the immediate action on the national register would prejudice his defence to the criminal charges – where the respondent Health Ombudsman has also filed an application for a non-publication order – where the respondent contends that the non-publication order should extend to the applicant and the complainant(s) because of the provisions of the Criminal Law (Sexual Offences) Act 1978 – whether a non-publication order should be made Criminal Law (Sexual Offences) Act 1978 s 10 Health Ombudsman Act 2013 s 58 Health Practitioner Regulation National Law (Queensland) s 222, 225 Queensland Civil and Administrative Tribunal Act 2009 s 66 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 LSC v XBV [2018] QCAT 332 Medical Board of Australia v Andersen [2014] QCAT 374 APPEARANCES & REPRESENTATION This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] The applicant, who is a registered medical practitioner, seeks a non-publication order for any other reason in the interests of justice1. [2] The underlying proceeding is a review proceeding brought by the applicant to seek review of conditions imposed by the Health Ombudsman on his registration. The Health Ombudsman, acting pursuant to section 58(1)(a) and 58(1)(d) of the Health Ombudsman Act 2013 (HO Act), has imposed conditions, inter alia, that the applicant 1 s 66(2)(e) Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 2 of 5 -- 3 not have contact with female patients and only practise as a registered health practitioner in employment and at practice locations approved by the Health Ombudsman. [3] Despite being requested to file submissions in support of the application, the applicant filed no submissions. By email, in response to the request, the applicant’s legal representative contended that publication as causing the applicant embarrassment and may impact future criminal proceedings. [4] In response to a direction for submissions, the Health Ombudsman has filed an application seeking a non-publication order which applies to protect the identity of the applicant, the complainants and patients of the applicant. The Health Ombudsman has also filed helpful written submissions in support of its application. The legislative scheme [5] Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of: (a) The contents of a document or other things produced to the Tribunal; (b) Evidence given before the Tribunal; (c) Information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified. [6] Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so: (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reason in the interests of justice. [7] Section 66 gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction2. The exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice3. [8] The party seeking the non-publication order must satisfy the Tribunal it is necessary4. [9] As noted earlier, the applicant’s application proceeds invoking s 66(2)(e) of the QCAT Act. It appears from the contents of the review application that the applicant submits the order is necessary because: 2 LSC v XBV [2018] QCAT 332 at [26] per Judicial Member P Lyons QC 3 See Health Ombudsman v Shermer (No 2) [2019] QCAT 54 at [6] per Allen DCJ and the authorities cited therein. 4 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [9]. -- 3 of 5 -- 4 (a) The applicant is facing serious criminal charges for alleged sexual offending; and (b) He practices in a small country town; and (c) The conditions imposed by the Health Ombudsman, are published on the register required to be maintained by section 222 of the Health Practitioner Regulation National Law (Queensland). That this has occurred is consistent with the express terms of s 225(k) of the National Law; but (d) Those conditions have been published in an article in the local newspaper which names the applicant. This has caused the applicant and his family embarrassment. Further, members of the public who may ultimately become involved in jury selection are now publicly put on notice that the applicant may be facing criminal charges. The article is attached to the application. [10] Telling against the applicant, embarrassment is generally not a sufficient reason to prohibit publication, especially if names have already been published5. [11] As to the concern about the publication of the conditions on the register, that is a function of the statutory scheme6. Any impact on future criminal proceedings is speculative at this time. If the applicant has ongoing concerns that members of the public may have been prejudiced by the newspaper article, he can consider whether to apply for a transfer of a criminal trial to another centre, should matters reach that point. [12] The applicant’s application for a non-publication order is refused. [13] The respondent’s application proceeds invoking s 66(2)(d) and/or s 66(2)€ of the QCAT Act, but for different reasons. The respondent’s submissions contend: (a) the applicant has been charged with sexual offences which are prescribed offences; (b) The applicant has not yet been committed for trial; (c) The publication of the name, address, school, or place of employment or any other particular that is likely to lead to the identification of a complainant or a defendant charged with a prescribed offence before the defendant is committed for trial or sentence is prohibited by statute7; (d) Material filed in the review application will include Queensland Police documents which identify or are likely to identify the applicant as a defendant in relation to prescribed offences, and which identify or are likely to identify the complainants; (e) In respect of the complainants, who were patients of the applicant, the documents will contain patient information which is of a highly personal, sensitive and confidential nature which it is not in the public interest to disclose. The same argument applies to any patient information for any other patient of the applicant. 5 Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [10]. 6 Medical Board of Australia v Andersen [2014] QCAT 374 at [46] per Judge Horneman-Wren SC. 7 Section 10 Criminal Law (Sexual Offences) Act 1978 (Sexual Offences Act). -- 4 of 5 -- 5 [14] Given the express terms of the Sexual Offences Act, and the stage of the criminal proceedings, the Tribunal is satisfied it is necessary to make the non-publication order sought by the respondent. The Tribunal also accepts that in so far as the application is in respect of the identity of or information about the complainants or other patients, it relates to confidential information or information of which publication would be contrary to the public interest, so as to support the making of a non-publication order. [15] The respondent’s application is granted. -- 5 of 5 --