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Queensland Judgments
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  • Unreported Judgment

Health Ombudsman v CLT (No 2)

 

[2019] QCAT 379

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v CLT (No 2) [2019] QCAT 379

PARTIES:

health Ombudsman

 

(applicant)

 

v

 

CLT

 

(respondent)

APPLICATION NO/S:

OCR012-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

  1. Until further order, pursuant to s 61(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
    1. (a)
      the contents of a document or other thing produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal;
    3. (c)
      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 effected 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 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 no application made by either party – where respondent practitioner is self-represented – where misconduct of respondent linked to impairment – whether further non-publication order is neccessary

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

Health Practitioner Regulation National Law (Queensland),

Queensland Civil and Administrative Tribunal Act 2009, s 66

REPRESENTATION:

 

Applicant:

L J. Marshall, instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

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 3 September 2019, the Tribunal published its substantive decision to the parties, the Pharmacy Board of Australia (the Board) and the Australian Health Practitioners Regulation Agency (AHPRA). At the time of publishing its decision, directions were made allowing the parties to file any application to vary the terms of the non-publication order made by the Tribunal on 12 October 2018.  At the time, the directions included a direction that the Tribunal would not publish its decision including the reasons for the decision other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision. 
  2. [2]
    In its reasons for decision, the Tribunal noted that the non-publication order made on 12 October 2018 extended to the publication of the medical records of the respondent, or any family member of the respondent.  The Tribunal noted that in the material tendered by the parties as evidence in the proceedings, and in its reasons, reference was made to conclusions reached by the respondent’s treating practitioners and by the expert appointed by the Health Ombudsman, Dr Prior, as to the respondent’s medical conditions.  At the time the various reports were provided to the Tribunal, no application was made seeking a non-publication order in respect of any of that material or the de-identification of all or part of the Tribunal’s reasons. 
  3. [3]
    Subsequent to the publication to the parties of the decision, no application was made to vary the terms of the non-publication order. 
  4. [4]
    Given that the respondent was self-represented in the proceedings, it is perhaps not surprising that an application was not made by the respondent.  Pursuant to s 66 of the QCAT Act, the Tribunal may act to make a non-publication order on its own initiative. 
  5. [5]
    To do so, the Tribunal must be satisfied that the order is necessary on one of the grounds set out in s 66(2) of the QCAT Act.  Those grounds include avoiding 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. 
  6. [6]
    During the course of the disciplinary proceedings, material was tendered in relation to the impairment process, including the terms of conditions which had been imposed and copies of the respondent’s treating practitioner’s reports which were required to be provided to AHPRA at three monthly intervals.  A question arose as to whether, based on the evidence before the Tribunal, it would be appropriate for the Tribunal to decide that the practitioner has an impairment.  Ultimately, by the time the Tribunal was giving its decision further evidence had been placed before the Tribunal and the Tribunal did not consider any finding of impairment should be made.  The Tribunal concluded that the question as to the respondent’s impairment could appropriately be dealt with by the Board. 
  7. [7]
    Nevertheless, significant evidence was placed before the Tribunal as to the respondent’s impairment. 

Analysis

  1. [8]
    Pursuant to s 98 of the Health Ombudsman Act 2013 (Qld) (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, s 226 of the Health Practitioner Regulation National Law Act (Qld) (National Law) enables the Board not to disclose the full terms of conditions imposed following a finding of impairment.
  2. [9]
    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 justifies 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. In those circumstances, permitting the disclosure of such information would be contrary to the public interest.
  3. [10]
    Here, the references in the disciplinary proceedings to the reports of the respondent’s treating practitioner, obtained by AHPRA through the impairment process, was because the practitioner’s impairment was intertwined with the misconduct.  Further, the evidence before the Tribunal gave rise to a consideration by the Tribunal as to whether the Tribunal would be required to make a finding of impairment.  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.   
  4. [11]
    In terms of issues at general deterrence, 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. 
  5. [12]
    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.  
  6. [13]
    The competing public interests are best served in the circumstances of this case by the making of a non-publication order in the following terms:
  1. Further to the non-publication order dated 12 October 2018, until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
    1. (a)
      the contents of a document or other thing produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal;
    3. (c)
      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 effected 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 parties to the proceedings and must be supported by submissions justifying the disclosure of the material requested. 
  1. [14]
    The substantive decision published to the parties, the Board and AHPRA on 3 September 2019 will be published on the Supreme Court Library website in a de-identified form, consistent with the non-publication order now made.[1]

 

Footnotes

[1]  Health Ombudsman v CLT [2019] QCAT 360.

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Editorial Notes

  • Published Case Name:

    Health Ombudsman v CLT (No 2)

  • Shortened Case Name:

    Health Ombudsman v CLT (No 2)

  • MNC:

    [2019] QCAT 379

  • 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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