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Queensland Judgments
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  • Unreported Judgment

Health Ombudsman v NLM

 

[2019] QCAT 366

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v NLM (No 2) [2019] QCAT 366

PARTIES:

Health Ombudsman

(applicant)

v

nlm

(respondent)

APPLICATION NO/S:

OCR113-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

  1. Further to the order dated 23 June 2017, until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
    1. (i)
      the contents of a document or other thing produced to the Tribunal;
    2. (ii)
      evidence given before the Tribunal;
    3. (iii)
      any order made or reasons given by the Tribunal,

is prohibited to the extent that it would enable the practitioner to be identified.

  1. Any material affected by the non-publication order and forming part of the record of proceedings shall not be inspected or copied 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.
  2. If any person who is not a party to the proceeding and is not otherwise identified in paragraph 2 above wishes to inspect the record of proceedings, that person can make an application to the tribunal for directions. Such application must be served on all the parties to the proceedings and must be supported by submissions justifying the disclosure of the material requested.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where substantive reasons published to the parties – where parties given opportunity to make application for variation of non-publication order – where respondent seeks orders that the publication of any documents, evidence or other material before the Tribunal that could identify the respondent be prohibited –  where the making of the order opposed by the applicant – where misconduct of respondent linked to impairment – whether further non-publication order is necessary 

Health Ombudsman Act 2013 (Qld), s 98, s 272, s 273

Health Practitioner Regulation National Law (Queensland), s 226

Queensland Civil and Administrative Tribunal Act 2009,

 s 66

REPRESENTATION:

 

Applicant:

M Hickey instructed by the Office of the Health Ombudsman

Respondent:

R O’Gorman instructed by HWL Ebsworth Lawyers

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 30 May 2018, the Tribunal published its substantive decision to the parties.[1]  At the time of publishing to the parties, the Tribunal noted that in the material tendered by the parties as evidence in the proceedings, and in the Tribunal’s reasons, reference had been made to all of the conditions on the practitioner’s registration and to the contents of a health assessment report. 
  2. [2]
    The conditions on the practitioner’s registration had been imposed and the health assessment report obtained following a finding that the practitioner had an impairment (the impairment material).  In accordance with the power given to the Board pursuant to s 226 of the Health Practitioner Regulation National Law (Queensland) (National Law), the Board decided that it was not necessary for the full extent of the conditions imposed on the practitioner’s registration to be disclosed on the national register, citing privacy reasons.
  3. [3]
    In the course of the disciplinary proceedings, a non-publication order had been made but only to protect the identities of any patients, or family members of any patients, of the practitioner.[2]  No subsequent application was made to extend the non-publication order to maintain the confidentiality of the impairment material.
  4. [4]
    Given the necessary references in the Tribunal’s reasons to the impairment material and in particular to the contents of the health assessment report, the Tribunal published its reasons de-identified and gave to the parties an opportunity to make an application for a variation of the non-publication order. 
  5. [5]
    An application was made on behalf of the practitioner to extend the non-publication order to:
  1. Documents filed in or produced to the Tribunal to the extent they could identify the practitioner;
  2. Material filed in or produced to the Tribunal to the extent it could identify the practitioner;
  3. Evidence given before the Tribunal to the extent it could identify the practitioner;
  4. Information contained in the Tribunal’s reasons for decision published 22 June 2018 and any order of the Tribunal to the extent it could identify the practitioner; and
  5. Such other or further non-publication order as the Tribunal considers appropriate. 
  1. [6]
    In its supporting submissions, it was said that:
    1. (a)
      The information about the practitioner’s impairment is confidential information under the Health Ombudsman Act 2013 (HO Act) and the National Law and that whilst this matter was not an impairment matter, the misconduct was “inextricably linked” to the impairment and that s 98 of the HO Act demonstrates a legislative intention that information about a practitioner’s impairment should not be made public; and
    2. (b)
      The publication of the information is contrary to the public interest as publication may dissuade a practitioner from seeking help for an impairment because of a concern about lack of confidentiality and privacy. 
  2. [7]
    By way of response, the Health Ombudsman maintained that the overriding public interest in the transparency of disciplinary proceedings, the need for deterrence and  thereby recognising the paramount guiding principle being the health and safety of the public outweighed the need to maintain the confidentiality of impairment proceedings. 

Analysis

  1. [8]
    Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 prescribes the circumstances in which the tribunal may make a non-publication order.  Section 66(2) prescribes the circumstances under which an order may be made and includes to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice.
  2. [9]
    Pursuant to s 98 of the HO Act, a hearing for an impairment matter is not open to the public, unless otherwise ordered.  Further, s 273 of the HO Act provides that the Health Ombudsman must not publish information that the Health Ombudsman considers it would be inappropriate to publish and the Act gives as an example reference to the impairment of a health practitioner where that was a ground on which immediate action was taken.  Further, as noted above, s 226 of the National Law enables the Board not to disclose the full terms of conditions imposed following a finding of impairment. 
  3. [10]
    These provisions indicate the importance which the legislature attaches to the need for privacy in matters relating to the impairment of practitioners.  There is good social policy reasons for that approach which justify a restriction to openness in the administration of justice.  Clearly, the aim of the legislative regime is to encourage impaired practitioners to fully disclose their condition without fear that it might prejudice their otherwise good standing in the community.
  4. [11]
    In the circumstances here, the Board exercised its discretion under the National Law and determined that there was no overriding public interest in the publication on the national register of the conditions which had been imposed on the practitioner arising from his impairment. 
  5. [12]
    The references made to the conditions imposed and the health assessment report in the reasons for decision was because the practitioner’s impairment was intertwined with the misconduct.  In those circumstances, in order to maintain the privacy of the impairment material it is necessary to de-identify the Tribunal’s decision and reasons, and to otherwise preserve the privacy of the record of proceedings of the Tribunal. 
  6. [13]
    The publication of the decision and reasons, de-identified, still serves as an important reminder to the profession and the public of the consequences of misconduct, even in circumstances where that misconduct is intertwined with an impairment.
  7. [14]
    Appropriate orders can be made to permit the making of an application for inspection of the record of proceedings, thereby preserving the right of a non-party to seek to obtain access to the record of proceedings in appropriate circumstances.  
  8. [15]
    The competing public interests are best served in the circumstances of this case by the publication of the decision and the reasons de-identified.  Further to the non-publication order dated 23 June 2017, an order shall be made in the following terms:
    1. (a)
      Further to the non-publication order dated 23 June 2017, until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
      1. the contents of a document or other thing produced to the Tribunal;
      2. evidence given before the Tribunal;
      3. any order made or reasons given by the Tribunal,

is prohibited to the extent that it would enable the practitioner to be identified.

  1. (b)
    Any material affected by the non-publication order and forming part of the record of proceedings shall not be inspected or copied 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 this proceeding.
  2. (c)
    If any person who is not a party to the proceeding and is not otherwise identified in paragraph 2 above wishes to inspect the record of proceedings, that person can make an application to the tribunal for directions.  Such application must be served on all parties to the proceedings and must be supported by submissions justifying the disclosure of the material requested.
  1. [16]
    The substantive decision published to the parties on 30 May 2018 will be published on the Supreme Court Library website in its current de-identified form, which is consistent with the non-publication order now made. 

Footnotes

[1]Health Ombudsman v NLM [2018] QCAT 164.

[2]Order dated 23 June 2017.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v NLM

  • Shortened Case Name:

    Health Ombudsman v NLM

  • MNC:

    [2019] QCAT 366

  • Court:

    QCAT

  • Judge(s):

    Sheridan J

  • Date:

    09 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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