Health Ombudsman v Ward[2018] QCAT 304

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The respondent filed a miscellaneous application on 31 August 2018 seeking that a non-publication order be made in these referral proceedings which would extend to protect the identity of any of her family members, her partner as well as herself.  The applicant filed submissions in reply on 6 September 2018, opposing the granting of such an order.
2. [2]
   For the reasons that follow, the application for miscellaneous matters dated 31 August 2018 seeking a non-publication order is refused.

Background

3. [3]
   The respondent in these proceedings had previously sought from the tribunal a review of the Health Ombudsman’s decision to issue an interim prohibition order in relation to the provision of any health service by her in her capacity as a massage therapist.  In those proceedings, the practitioner sought a non-publication order prohibiting the publication of her name and details of her medical information, as well as the names of her children, step-child and partner.  Ultimately, a non-publication order was granted in those terms, other than as required for the purposes of s 79 of the Health Ombudsman Act 2009 (Qld) (HO Act).  The Health Ombudsman in those proceedings did not object to that course being taken as the proceedings were interim in nature. 
4. [4]
   On 22 May 2018, the Health Ombudsman referred to the tribunal these disciplinary proceedings against the respondent pursuant to s 103(1)(a) and s 104 of the HO Act.  On 27 July 2018, the tribunal made a non-publication order upon the filing of a miscellaneous application by the Health Ombudsman, prohibiting the publication of any information identifying any patient of the respondent or any family member of any such patient.
5. [5]
   The tribunal must now determine whether the respondent’s application for the extension of the non-publication order to herself and family members should be granted.
6. [6]
   The tribunal has power under s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), either on its own initiative or on the application of a party to the proceedings, to make a non-publication order if it considers it necessary having regard to the following:

1. to avoid interfering with the proper administration of justice; or
2. to avoid endangering the physical or mental health or safety of a person; or
3. to avoid offending public decency or morality; or
4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
5. for any other reason in the interests of justice.

7. [7]
   The respondent, having brought the application, bears the onus of showing that special circumstances exist which justify the making of a non-publication order.^[1]
8. [8]
   The respondent submitted that the non-publication order is required given that she and her family live in a small community, and she has concerns that, if they were no longer granted privacy in relation to the matter, her children may face bulling, humiliation and embarrassment.  She also stated that she is concerned about the likelihood of future media attention in the matter, and the effect this may have on both her children and family, as well as her ability to obtain employment in her local area.  She referred specifically to her mother, sister and partner, who all work or are engaged in community activity in the local area.
9. [9]
   The applicant in reply submitted that disciplinary proceedings are ordinarily open and involve full publication of the practitioner’s name and evidence relied upon.  The applicant said there was no evidence in the current referral proceedings to substantiate the respondent’s submission, and that the broader considerations of transparency and the public interest in promoting open justice “so that it is seen to be done in the community” must be given more weight than the respondent’s private interests.  The applicant emphasised that principles of general and specific deterrence were particularly important in relation to unregistered health practitioners.
10. [10]
    As stated by Wilson J in Cutbush v Team Maree Property Service (No 3),^[2] the tribunal’s discretion to grant a non-publication order is not to be exercised lightly.  His Honour observed:

…the discretion is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts…              

Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication.^[3]

11. [11]
    There is currently no evidence before the tribunal that publication of the details sought to be protected in her application will cause any risk of endangering the physical or mental health of her family, or of the applicant and/or her partner.  It is merely stated by the respondent that the publication of the information may have an impact on the respondent’s family, given the intensely personal nature of the conduct the subject of the referral and given that the respondent lives in a small community.  Those statements are not supported by any independent medical evidence.
12. [12]
    The tribunal in Cutbush, citing the Federal Court in Dye v Commonwealth Securities Limited,^[4] stated, relevantly, that “the mere fact that publication may produce ‘embarrassment or unfortunate financial effects’ is generally not a sufficient reason to prohibit publication”.^[5]
13. [13]
    In Legal Services Commissioner v Sing (No 2),^[6] the Chief Justice, sitting as the Legal Practice Tribunal, observed that the tribunal must be very careful not to thwart the achievement of transparency, accountability and independence in any way.  The Chief Justice commented:

It would do so here if, by a non-publication or suppression order, it were seen to elevate the practitioner’s private interest over the public interest which should rightly predominate.

14. [14]
    Indeed, as observed by the tribunal in Psychology Board of Australia v Duangpatra,^[7] “it is an unfortunate consequence of inappropriate behaviour that there will be disclosure of [the] matter”.
15. [15]
    For the reasons above, and based on the material currently before the tribunal, the tribunal does not consider it necessary to extend the non-publication order in the terms sought.  The non-publication order will remain insofar as it attaches to the identity of any patient of the respondent, or any family member of any such patient.