Health Ombudsman v Pin[2021] QCAT 242

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is the referral of a health service complaint against Hugues Pin (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks findings that the respondent has engaged in unsatisfactory professional performance and professional misconduct and consequent orders by way of sanction.
2. [2]
   The parties are agreed as to the facts of the conduct the subject of the referral, its appropriate characterisation as unsatisfactory professional performance and professional misconduct, and appropriate orders as to sanction. Nevertheless, it remains for the Tribunal to satisfy itself as to those matters according to the standard of proof enunciated by the High Court in Briginshaw v Briginshaw.^[1]

Background of respondent

3. [3]
   The respondent is now 58 years of age. He gained his medical degree in France in 1989. He first obtained registration as a medical practitioner in Queensland on 18 October 2006. He subsequently obtained the Australian Medical Council certificate in 2009 and fellowship at the Royal Australian College of General Practitioners in 2012. He therefore holds both general and specialist registration as a general practitioner. At the time of the conduct the subject of the referral, through to now, the respondent has practised as a general practitioner at the Sunshine Vein Clinic at Peregian Beach. He has been a medical director of that practice since 2012. The respondent has no prior disciplinary history.

Conduct

4. [4]
   The conduct the subject of the referral relates to the respondent’s treatment of a varicose vein on a patient’s right leg in 2013 and subsequent follow up care. The referral particularises seven allegations, all of which are admitted by the respondent.
5. [5]
   On 2 May 2013, the patient attended the respondent’s practice to undergo an endovenous laser ablation (EVLA). That procedure involved the respondent making a small needle puncture in the saphenous vein of the patient. A guide wire was then introduced through the vein and over this wire a catheter inserted. The catheter allowed for the insertion of a laser filament. The filament was directed to just below where the saphenous vein comes off the femoral vein. A tumescent anaesthetic solution was then injected around the saphenous vein and the laser activated and gradually pulled back along the course of the vein, the heat of the laser thus cauterising the inside of the vein with the intention that, over a period of time, the vein would scar and disappear.
6. [6]
   Unfortunately, the catheter and, it seems also, the optical fibre was damaged during the course of the procedure, quite possibly during the process of injection of the anaesthetic tumescent solution. A 9.2 centimetre segment of the catheter was retained in the patient’s leg and a 47 centimetre length of optical fibre became detached and was retained in the patient’s leg.
7. [7]
   As a result of observing damage to the end of the catheter, the respondent was aware that some portion of the catheter had been retained in the patient’s leg, but was not aware of the detachment and retention of the optical fibre (Allegation 1).
8. [8]
   The respondent noted in the patient’s clinical records as follows “Optic fibre went through the sheet (sic) could have piece left in. Not visible at end of procedure. Check carefully next visit (DU).”
9. [9]
   During the course of its investigation of a complaint by the patient, the Medical Board of Australia obtained an expert report from Dr Paul Thibault, a doctor specialising in the treatment of varicose veins. He expressed the following opinion:

Dr Pin should have been aware of the length of material that was retained following the procedure. The length of the catheter can be easily determined by measuring the residual length of catheter removed from the patient, and deducting that length from the original length of the catheter. Nine centimetres out of a total length of 70 centimetres is a significant length of catheter to be retained in a patient. I find it incomprehensible that Dr Pin didn’t notice that 47 centimetres of the optical fibre was retained in the patient, as the total length of fibre was said to be 70 centimetres, which would have left a length of only 23 centimetres removed at the end of the procedure. The deficiency in the length of the fibre removed from the patient would have been very obvious to any diligent practitioner. It is therefore not reasonable for Dr Pin to be unaware that a long length of optical fibre was retained.

10. [10]
    Both parties submit that the conduct the subject of Allegation 1 should be characterised as unsatisfactory professional performance.
11. [11]
    “Unsatisfactory professional performance” is defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) as meaning that:

the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

12. [12]
    The Tribunal readily accepts that the respondent’s failure to take readily available steps to ascertain the length of the catheter and optical fibre retained in the patient’s leg demonstrates that the care exercised by the respondent was below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
13. [13]
    Pursuant to section 107(2)(b)(i) of the HO Act, the Tribunal decides, in respect of Allegation 1, that the respondent has behaved in a way that constitutes unsatisfactory professional performance.
14. [14]
    Despite being aware that a portion of the catheter had been retained in the patient’s leg, the respondent:

    1. (a)
       did not inform the patient that a length of catheter had been retained in the patient’s leg;
    2. (b)
       did not provide the patient with any explanation of the risks to her health, which might arise as a result of the retention of the portion of catheter;
    3. (c)
       did not provide the patient with any options which may have been available to her to investigate the retained catheter; and
    4. (d)
       did not refer the patient to another health practitioner to investigate the retained catheter (Allegation 2).
15. [15]
    On 3 May 2013 the patient continued to feel unwell and telephoned the respondent’s practice and spoke to a receptionist and informed her of significant pain she had experienced overnight following the procedure. The receptionist informed the respondent of the patient’s call and its contents. The respondent provided the patient with a medical certificate stating that she was unfit for work from 2 to 4 May 2013, inclusive.
16. [16]
    The respondent did not:

    1. (a)
       himself contact the patient;
    2. (b)
       advise the patient at that time of the retained length of catheter and any risks associated with such retention; or
    3. (c)
       advise the patient of any treatment options available, including further investigation of the retained catheter or referral to another practitioner (Allegation 3).
17. [17]
    The patient continued to experience pain, which she managed with painkillers and rest, and returned to work on 6 May 2013. On 6 May 2013, the patient telephoned the respondent’s practice and again spoke to his receptionist. The receptionist made a consultation note, noting that the patient had called and was still very tender in the groin area and lower leg. The receptionist told the respondent the patient had called, and the advice provided by the patient during the call.
18. [18]
    The respondent did not:

    1. (a)
       himself contact the patient;
    2. (b)
       advise the patient of the retained length of catheter and any risks associated with such retention; or
    3. (c)
       advise the patient of any treatment options available, including further investigation of the retained catheter or referral to another practitioner (Allegation 4).
19. [19]
    On 13 May 2013 the patient attended the respondent’s practice for a scheduled post-procedure review. The respondent noted in the patient’s clinical notes the contents of an email in which she stated as follows:

I don’t know if it is just me, but I had a lot more pain and discomfort than I was led to expect. I do not recommend patients drive themselves home after the procedure I had, if they have a long way to go. I felt that was too much, too soon, and it seems to have set me back a bit. I’m still experiencing pain at the cuts on the calf. It feels like I have the knot of the stitches sticking into my skin (I have had this before).

20. [20]
    At the consultation, the patient told the respondent that she had continued to experience a lot of pain and that he should not let patients drive home after the procedure as she was in agony after the procedure and was not in a fit state to drive. The respondent informed the patient that other patients often drove longer distances after their procedures and he may have hit a nerve during the procedure and that could be the cause of her pain.
21. [21]
    At that time, the respondent well knew that there had been a part of the catheter retained in the patient’s leg and must have considered the possibility that that was the cause of the continuing pain complained of by the patient. Nevertheless, the respondent:

    1. (a)
       did not inform the patient that he had noticed and was aware that a length of the catheter had been retained in her leg during the procedure;
    2. (b)
       did not provide the patient with any explanation of the risks to her health which may arise as a result of the retention of the length of catheter;
    3. (c)
       did not provide the patient with any options which may have been available to her to investigate the retained catheter; and
    4. (d)
       did not refer the patient to another health practitioner to investigate the retained catheter (Allegation 5).
22. [22]
    The respondent planned to review the patient in four to six weeks.
23. [23]
    On 28 May 2013 the patient’s calf pain intensified. The small cut in her leg from the procedure had not healed. On 29 May 2013 a 20 centimetre long thin plastic wire protruded from the unhealed wound on the patient’s inner calf. The patient removed the plastic wire from her leg. It measured 47 centimetres long. That morning, the patient telephoned the respondent’s practice and spoke to the receptionist. The respondent did not personally speak with the patient that day and did not take any steps to inform her of the matters he neglected to inform her of as per Allegations 2 to 5 (Allegation 6).
24. [24]
    At no time between the conclusion of the procedure on 2 May 2013 and 29 May 2013 did the respondent take any steps to advise the patient:

    1. (a)
       that a part of the catheter had been retained in patient’s leg;
    2. (b)
       of any risks associated with such retention; or
    3. (c)
       of any treatment options available, including further investigation of the retained catheter or referral to another practitioner (Allegation 7).
25. [25]
    On 30 May 2013 the patient attended her general practitioner, reporting her concerns with the procedure, the severe right groin pain that she had experienced after the procedure, and showed him the wire that she had removed from her leg. The general practitioner referred the patient for doppler studies of her veins. He also wrote a letter to the respondent in which he recorded that the patient had extracted a 47 centimetre long clear flexible tube with a 1 centimetre coloured tip from her right lower leg, that he was disappointed that was not detected at the time of the procedure by simply checking the catheter that had been extracted or at a subsequent ultrasound, and that as a minimum gesture of goodwill, the respondent should provide the patient with the full refund of her treatment costs along with a personal and written apology.
26. [26]
    On or around 30 May 2013 the respondent showed his receptionist a copy of the letter he had received from the general practitioner but did not ask the receptionist to follow up with the patient.
27. [27]
    On 4 June 2013, a duplex doppler ultrasound of the patient’s right leg veins was conducted, revealing a 92 millimetre length of tubing within an occluded, long, saphenous vein in the calf.
28. [28]
    On 4 June 2013 the respondent wrote to the patient’s general practitioner expressing his regret for what had happened and stating that he would write the patient a letter of apology. On 4 June 2013 the respondent wrote to the patient stating:

I feel totally responsible for that and I would like to apologise for all pain and discomfort that happened resulting from this unexpected event. This has never happened before, and I will be careful it does not happen again. I hope that there is no further damage to the vein and that there is no remaining pain. The treated vein can become really solid after a laser procedure, and the foreign body was likely hidden in the fibrosis (dead blood cells) at the follow-up appointment. The varicose vein itself has been successfully treated, I hope, but please let me know if it is not the case. Please accept, once again, my sincere apologies for this mistake and contact me directly, or the Clinic, for a compensation if you wish so.

29. [29]
    After the report of the ultrasound of 4 June 2013, the patient’s general practitioner arranged for a radiologist to remove the retained object from the patient’s right leg. On 11 June 2013 the patient attended a radiology practice and underwent an ultrasound guided removal of a 98 millimetre length of tubing from the right lower long saphenous vein and the wound was closed with three sutures. The portion of catheter had been retained in the patient’s leg for approximately 40 days.
30. [30]
    On 21 June 2013 the patient again attended her general practitioner, by which time her wound was healing well.
31. [31]
    On 18 June 2013 the patient wrote to the respondent and informed him about the further foreign plastic body that had been removed from her leg on 11 June 2013. Further correspondence was exchanged between the patient and the respondent. There was some correspondence between the patient and a business partner of the respondent which ultimately led to a payment of compensation to the patient from the practice.
32. [32]
    During the course of an investigation into his conduct by the Medical Board of Australia, the respondent provided written submissions on 29 August 2013 which included the following statements:

During the procedure, the nurse was chatting to (the patient) to distract her and I was following on my ultrasound screen the effect of the laser on the vein. Everything went as usually (sic) and I did not notice any particular incident. At the end of the procedure, I noticed that the connection between the laser fibre and the protection sheath had slipped on the pullback device and then the extremity of the catheter was missing. The length of the retained catheter was difficult to appreciate on the moment as the extremity was burned by the laser but did not seem very long. The optic fibre seemed to be intact at this time with the firing tip in place.

On the day I had two options:

1. 1.Trying to remove the retained catheter: the length of the retained catheter was imprecise, I started the procedure at mid-calf level and the laser fibre was guided up the groin so it was about 40 centimetres long. That would have meant a large scar, or several large scars, as those retained catheters can be technically quite difficult to remove in a burned vein. They can be difficult to localise straight after laser treatment.

2. 2.Leaving it: I have read that some catheters have been left in situ without major complications. The risk was to get an infection or a reject.

I decided to leave the retained catheter in situ for the moment. The laser heats the vein at around 140 degrees and has partially melted the catheter which has stuck in the dead vein. At this stage, I was not aware that a piece of the fibre was retained as well.

On the ultrasound scan done just after, the catheter was not well visible, masked by the tumescent anaesthesia injected around the vein and the scar of the vein which creates lots of artefacts on the screen.

The patient was pretty anxious already and I did not want to add more anxiety by telling her that she now had a foreign body in her leg, knowing that it stay in the scar of the vein for a long time without major problem, according to a few studies done on the subject.

…

(The patient) came back for a review. I explained to her that some pain at this stage was still a possibility, even if it was uncommon. Some patients present with persistent aching of the ablated vein, probably caused by the burnt in the tissues surrounding the veins. When the laser fibre is inserted below the knee, the knee crease can stay quite painful during a few weeks. I checked by ultrasound the deep veins and found no features of deep vein thrombosis. The GSV was fully occluded and looked fibrotic. Having made the choice to leave the retained piece of catheter, I knew that trying to remove it now would have been very difficult, involving risks of permanent scarring for the patient. I did not see the optic fibre in the vein for unknown reason. Probably the fibrosis in the GSV was masking it.

(The respondent went onto refer to clinical case reports of retained catheter sheaths and laser fibres being left in situ without any consequence and being told by an experienced phlebologist of a case where a vascular surgeon opted for conservative treatment.)

So I decided that the best option for (the patient) would be to leave the catheter and follow her up. She was asked to come back a month after for review, and my mistake was to let her still unaware. I always tell the patient that they can call and come back if they wish for any question or any problem, even minor. I recognise now that I should have told her that she had a retained foreign body but once again I was worried that it would have added to her anxiety and subsequently to her pain. In my mind it was only at this stage a small part of the catheter sheath.

…

I decided that it was best for the patient to hide the incident. It was maybe a wrong decision but after having weighted the pros and cons I made my choice. It would have been easy to refer the patient to the local hospital for surgical removal, but the odd (sic) that the foreign object migrated were small, and the risk of cosmetic damage higher than if the catheter was rejected or, better kept in situ.

33. [33]
    In further submissions made on 8 December 2013, the respondent provided similar justifications for not informing the patient of his knowledge of the retained portion of catheter.
34. [34]
    In his expert report, Dr Thibault stated as follows:

I do not believe that the decision of Dr Pin of not informing (the patient) about the retained materials at the time of surgery was reasonable and the explanation provided by Dr Pin for not informing (the patient) is unsatisfactory. The correct decision would have been to inform the patient immediately of the technical problem and to put in place a plan to correct that problem which would include removing the retained materials in the most appropriate manner, whether by Dr Pin or another suitable medical practitioner.

The decision to leave the materials in situ following the procedure is not reasonable as the risks of complications are high with eventual infection, possible migration of the retained materials to other areas of the body, and the likelihood of the retained materials causing significant pain.

I would anticipate that retained materials from this procedure would result in an increased level of pain experienced by the patient in the post-operative period.

35. [35]
    The respondent’s deliberate decision not to inform the patient of the retained piece of catheter in her leg was undoubtedly in breach of provisions of the Medical Board of Australia’s “Good Medical Practice: A Code of Conduct for Doctors in Australia” as follows:

2. 2.2Good patient care

Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

…

2. 2.2.5Communicating effectively with patients (see Section 3.3).
3. 2.2.6Providing treatment options based on the best available information.
4. 2.2.7Taking steps to alleviate patient symptoms and distress, whether or not a cure is possible.
5. 2.2.8Supporting the patient’s right to seek a second opinion.

…

2. 3.3Effective communication

An important part of the doctor–patient relationship is effective communication. This involves:

2. 3.3.1Listening to patients, asking for and respecting their views about their health, and responding to their concerns and preferences.

…

2. 3.3.3Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.

2. 3.3.4Discussing with patients their condition and the available management options, including their potential benefit and harm.

…

2. 3.3.6Ensuring that patients are informed of the material risks associated with any part of the proposed management plan.

2. 3.3.7Responding to patients’ questions and keeping them informed about their clinical progress.

…

2. 3.10Adverse events

When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately. When something goes wrong, good medical practice involves:

2. 3.10.1 Recognising what has happened.

2. 3.10.2 Acting immediately to rectify the problem, if possible, including seeking any necessary help and advice.

2. 3.10.3 Explaining to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences.

2. 3.10.4 Acknowledging any patient distress and providing appropriate support.

…

36. [36]
    The parties both submit that each of Allegations 2 to 7 should be characterised individually as instances of unprofessional conduct.
37. [37]
    “Unprofessional conduct” is defined in section 5 of the National Law as meaning:

Professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.

38. [38]
    The definition then goes on to provide inclusionary definitional subparagraphs which are principally directed towards conduct of a practitioner, rather than failings in their professional performance. However, the general definition of unprofessional conduct is clearly wide enough to encompass failures in professional performance as well as such types of conduct as exemplified in the inclusionary subparagraphs.^[2]
39. [39]
    The conduct the subject of each of Allegations 2 to 7 was professional conduct of a lesser standard than which might reasonably be expected of the respondent by the public or his professional peers and the Tribunal is satisfied that each instance the subject of allegations 2 to 7 would properly be characterised as unprofessional conduct.
40. [40]
    The parties further submit that Allegations 2 to 7 together are such as to meet limb (b) of the definition of “professional misconduct” in section 5(b) of the National Law, being:

more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

41. [41]
    The Tribunal readily accepts the parties’ submissions to that effect.
42. [42]
    Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides, in respect of Allegations 2 to 7, that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

43. [43]
    The main consideration for the Tribunal when determining any orders for sanction is the health and safety of the public.^[3] The purpose of sanction is protective, not punitive, in nature. In the exercise of that protective jurisdiction, it is appropriate for the Tribunal to take into account the importance of the maintenance of professional standards, the preservation of public confidence in the medical profession and the need to deter the respondent and other medical practitioners from engaging in like conduct.
44. [44]
    The respondent has deposed to steps he has taken to avoid any reoccurrence of the conduct the subject of the referral. He has changed the clinical procedures for such EVLA procedures, with a clinical nurse double-checking during and at the end of the procedure and the respondent himself checking the full length of the fibre after completion of procedure. Administration of tumescent anaesthesia is now always carried out before insertion of the laser fibre so as to avoid the possibility of damage of the catheter or fibre during the administration of anaesthesia. The respondent has undertaken education, both directed towards his clinical skills in such procedures and his knowledge of appropriate disclosure of adverse events. He has arranged for relevant experts to observe and comment upon his conduct of such procedures. He has conducted many more such procedures since the time of the conduct without adverse incident.
45. [45]
    Given the time that has elapsed since the conduct without any further adverse incident and the steps undertaken by the respondent to reduce the potential of any further adverse incident, considerations of specific deterrence of the respondent are of little significance in determining appropriate sanction.
46. [46]
    Something more needs to be said about the delay between the time of the conduct and the time of determination of sanction.
47. [47]
    On 4 July 2013 the patient made a complaint to the Health Quality and Complaints Commission (HQCC) in relation to the treatment she had received from the respondent. On 19 July 2013 the HQCC referred the complaint to the Australian Health Practitioner Regulation Agency (AHPRA) and it was subsequently investigated.
48. [48]
    As noted earlier, the respondent provided submissions to AHPRA on 29 August 2013 and 13 December 2013. The respondent provided a further submission to AHPRA on 20 March 2014.
49. [49]
    Following completion of its investigation, on 5 November 2014 the Medical Board of Australia formed a reasonable belief as to professional misconduct and notified the applicant of such decision pursuant to section 193A of the National Law on 13 November 2014.
50. [50]
    On 16 December 2014, the applicant requested the matter be referred to the Office of the Health Ombudsman pursuant to section 193(2)(a) of the National Law and then commenced its own investigation. During the course of that investigation, the respondent provided a submission to the Office of the Health Ombudsman on 22 October 2015. The investigation by the Office of the Health Ombudsman was not completed, and the matter referred to the Director of Proceedings of the Office of the Health Ombudsman, until 30 August 2016.
51. [51]
    It was not until 28 June 2019 that the applicant filed the referral in the Tribunal.
52. [52]
    A letter from a senior legal officer from the Office of the Health Ombudsman was tendered during the hearing, indicating that the Health Ombudsman and the Director of Proceedings requested that the following submissions be noted:

Applicant’s delay

The Health Ombudsman and the director of the proceedings regret the delay which has affected the investigation and prosecution of this matter. Such delay, arising from a significant backlog of referrals, is unacceptable. The Office of the Health Ombudsman has made significant gains in clearing backlogs, and all staff are endeavouring to reduce, and eventually eliminate, the number of aged matters the subject of investigation or referral to the Tribunal. The Health Ombudsman and the Director recognise that the delay reflects poorly on the Office of the Health Ombudsman, and has the potential to cause unnecessary stress and disadvantage to health practitioners affected by such delay. The Office of the Health Ombudsman will continue to strive to reduce the number of matters affected by delay, and will make submissions and concessions regarding delay where that is warranted.

53. [53]
    The inexcusable and inordinate delay in the investigation and prosecution of the matter by the Office of the Health Ombudsman means that the respondent has had the matter hanging over his head for more than eight years since the time of the conduct. Such delay in resolution of proceedings does, as the applicant frankly acknowledges, have the potential to cause unnecessary stress and disadvantage to health practitioners affected by such delay, and is a significant mitigating factor in determining sanction.^[4]
54. [54]
    Both parties submit that an appropriate response by way of orders for sanction is that the respondent be reprimanded. A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. Absent a non-publication order by the Tribunal, a reprimand is a matter of public record, affecting the reputation of a practitioner, and remains on the public register until such time as the National Board determines that it is appropriate that the reprimand be no longer so recorded.^[5] Absent a non-publication order by the Tribunal, such reprimand also is accompanied by the publication of the reasons of the Tribunal for the reprimand, which obviously also has the potential for serious consequences for the professional reputation of a practitioner.
55. [55]
    The unsatisfactory professional performance the subject of Allegation 1 was a serious departure from the standard of care expected of a medical practitioner of the respondent’s qualifications and experience. It was something which could have been easily avoided by the exercise of reasonable care.
56. [56]
    The professional misconduct the subject of Allegations 2 to 7 is a serious example of a failure to adhere to professional standards for the communication to patients of adverse events, so that the patient can make an informed decision as to their healthcare. It was not for the respondent to decide that it was better for the patient that she not know of the adverse event. He had a clear duty to fully inform the patient of the adverse event and advise her of her options to address its consequences. This failure to do so was unequivocally directly contrary to the code of conduct which lays down those professional standards. It is difficult to accept that the respondent, in fact, acted in such a way because of concerns for the patient, rather than being motivated by a desire for self-protection and a hope that the problem might just not emerge. It is more likely than not that the respondent was motivated by his own self-interest, rather than any genuine concern for the patient in his decision not to disclose the truth to her.
57. [57]
    Cumulatively, the unsatisfactory professional performance and professional misconduct resulted in a protracted period of unnecessary pain and suffering of the patient and the need for further surgical intervention. Such conduct clearly deserves denunciation by the Tribunal.
58. [58]
    Pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.

Non-publication order

59. [59]
    The respondent seeks a non-publication order, pursuant to section 66(2)(e) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), in terms that would anonymise the orders and reasons of the Tribunal.
60. [60]
    The respondent points to the significant delay between the conduct and the orders of the Tribunal, a period of over eight years, during which the respondent has had the matter hanging over his head. The respondent submits that, in light of the steps taken by the respondent in the meantime, and in light of the length of delay itself, it would be a disproportionate response for the respondent to be “named and shamed” by the orders and reasons of the Tribunal.
61. [61]
    The respondent submits that any dilution of the effect of general deterrence by such a non-publication order could be obviated by the Tribunal making it clear in its reasons that such an order is made only in the unusual circumstances of the inordinate delay in resolution of this matter and that health practitioners could not ordinarily expect the benefit of such an order.
62. [62]
    The respondent refers to and relies upon the decision of this Tribunal in Health Ombudsman v ORC^[6], where a delay of about six years between the conduct and the reasons of the Tribunal contributed to the Tribunal’s decision to make a non-publication order in favour of the respondent and anonymise the orders and reasons of the Tribunal.
63. [63]
    The applicant opposes the application for a non-publication order and made submissions distinguishing the case of the respondent from the case of the respondent in Health Ombudsman v ORC.
64. [64]
    In Health Ombudsman v ORC, the Tribunal stated as follows (footnotes omitted):

Non-publication order

2. [38]Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:

3. (1)
   The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order –

1. (a)
   the contents of a document or other thing produced to the tribunal;

2. (b)
   evidence given before the tribunal;

3. (c)
   information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.

3. (2)
   The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary –

1. (a)
   to avoid interfering with the proper administration of justice; or

2. (b)
   to avoid endangering the physical or mental health or safety of a person; or

3. (c)
   to avoid offending public decency or morality; or

4. (d)
   to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or

5. (e)
   for any other reason in the interests of justice.

3. (3)
   The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.

3. (4)
   The tribunal’s power to act under subsection (1) is exercisable only by –

1. (a)
   the tribunal as constituted for the proceeding; or

2. (b)
   if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.

2. [39]In LSC v XBV [2018] QCAT 332, the Hon Peter Lyons QC stated:

2. [26] Section 66 should be read with section 90 of the same Act. That section commences by identifying, as the primary rule, a requirement that a hearing of a proceeding be held in public. It then provides that the Tribunal may direct a hearing or part of a hearing be held in private, but only in circumstances similar to those specified in section 66, including where the Tribunal considers it necessary to make the order to avoid endangering the physical or mental health or safety of a person. As will become apparent, both sections give 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) jurisdiction.

2. [40] The exercise of the discretion pursuant to s 66(1) of the QCAT Act is informed by the paramount principle of open justice:

Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.

… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’…

… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms.

2. [41]In Medical Board of Australia v Waldron [2017] QCAT 443 at [81]-[82], Sheridan DCJ observed:

The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary. The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.

The discretion given to the Tribunal by s 66 has been described as being “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.” The onus is on the applicant to show special circumstances exist which justify the making of the order.

65. [65]
    The factors which led the Tribunal to make the non-publication order in Health Ombudsman v ORC included the following:

    1. (a)
       The respondent was an inexperienced medical practitioner – he had only been first provisionally registered as a medical practitioner less than two months before the conduct.
    2. (b)
       The conduct of the respondent was a boundary violation towards the lower range of seriousness of such conduct and was consequently characterised as unprofessional conduct rather than professional misconduct.
    3. (c)
       As a consequence of the conduct, the respondent suffered significant adverse professional and personal consequences. He was subject to conditions on his registration imposed by AHPRA for a period of more than five years, which restricted him to employment in the public hospital system and prevented him from obtaining further employment as a medical practitioner upon ceasing such employment in the public hospital system. The respondent provided affidavit evidence of the stress and anxiety of the prolonged process and the inability to progress his career, and his period of unemployment.
    4. (d)
       The circumstances of the conduct were such as to likely attract media attention and salacious public interest.
66. [66]
    In those circumstances, the Tribunal stated as follows^[7]:

…The risk of being named and shamed also serves a salutary deterrent purpose and, ordinarily, that purpose would be frustrated or weakened if the identity of the practitioner were to be suppressed.

A question does arise though as to whether it is in the interests of justice that the respondent be named and shamed given the inordinate delay, through no fault of the respondent, between the conduct and the publication of these reasons. It was not until more than five years after his conduct that the respondent was free of consequent conditions on his registration and restrictions on his employment and able to move on with his professional career. It is now more than six years since the conduct. I consider it would cause the respondent an injustice if, at this late stage, he was to suffer the continued embarrassment of publication and re-publication of this matter for an indefinite future time. Whilst considerations of embarrassment alone would rarely justify an abrogation of the paramount principle of open justice, the particular circumstances of this matter are such that it is in the interests of justice that publication of the Tribunal’s orders, these reasons and any material before the Tribunal be prohibited to the extent that it might identify the respondent.

67. [67]
    The position of the respondent in this matter may readily be distinguished from that of the respondent in Health Ombudsman v ORC because of those factors in Health Ombudsman v ORC that have been referred to. The respondent has not suffered any restrictions upon his practice as a medical practitioner as a consequence of his conduct. The delay in resolution of the proceedings, although longer than that in ORC, is of considerably lesser significance when determining whether it is in the interests of justice that the non-publication order be made.
68. [68]
    The case of the respondent in this matter is more akin to that of the respondent in Health Ombudsman v Agnola.^[8] In that case, the respondent similarly sought a non-publication order on the grounds that it would be in the interests of justice that such an order be made. The respondent submitted that publication of his name in the orders and reasons of the Tribunal would amount to extra-curial punishment such that any publication would have a punitive effect. The respondent referred to the time that had elapsed since the conduct and the circumstances which led the Tribunal to find that considerations of personal deterrence had no great significance in the matter.
69. [69]
    In addition to those authorities referred to earlier in these reasons, the Tribunal referred to the reasons of the Honourable J. B. Thomas in Psychology Board of Australia v Cook^[9] as follows:

The respondent sought an order under section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 “preventing publication of my details”.

She submitted that such publication might be seen by patients and undermine her professional relationship with them. She also contended that it would amount to a punitive measure going beyond the purpose of disciplinary proceedings, and contrary to the interests of the administration of justice.

I reject those submissions. The criteria justifying such an order are exhaustively stated in section 66(2), and none of them is made out. The fear of exposure seems to be a strong deterrent factor in the maintenance of ethical standards by health professionals in cases of this kind, and to remove it, or weaken it, would not be desirable. It is neither in the public interest nor in the interests of justice that any order be made for suppression of the respondent’s misconduct and the outcome of these proceedings.

70. [70]
    Those statements by the Tribunal in Cook are apt to a consideration of the respondent’s submission that the effect of a non-publication order in all the circumstances would be disproportionate to the conduct for which the respondent has been reprimanded. The purposes of sanction are protective, not punitive. The protective purposes of sanction include considerations of general deterrence. That factor that is sought to be achieved by way of the order of a reprimand would be removed or weakened by such an order as sought by the respondent. It is not in the public interest nor in the interests of justice that a non-publication order be made in the circumstances of this case.
71. [71]
    The application for a non-publication order is refused.
72. [72]
    The non-publication order made by the Tribunal on 2 August 2019 will continue to prohibit the publication of anything that might lead to the identification of any patient of the respondent or any family member of any such patient.