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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Ha v Nursing and Midwifery Board of Australia  QCAT 91
thi nha thi ha
nursing and midwifery board of australia
Occupational regulation matters
12 March 2021 (ex tempore)
12 March 2021
Judge Allen QC, Deputy President
is prohibited to the extent that it could identify or lead to the identification of any patients of the West Moreton Hospital and Health Service, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress this proceeding.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant seeks review of decision of respondent Board to place conditions on applicant’s registration as a registered nurse – where applicant was employed as a registered nurse at a correctional centre – where respondent Board makes application for non-publication order to prohibit publication of identities of patients, the notifier to the respondent Board and staff employed at the correctional centre – where not controversial that non-publication order regarding patients should be made – whether Tribunal has discretion to make other non-publication orders sought – whether discretion should be exercised to make other non-publication orders sought
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where applicant seeks review of decision of respondent Board to place conditions on applicant’s registration as a registered nurse – where applicant was employed as a registered nurse at a correctional centre – where respondent Board makes application for non-publication order to prohibit publication of identities of patients, the notifier to the respondent Board and staff employed at the correctional centre – where not controversial that non-publication order regarding patients should be made – whether Tribunal has discretion to make other non-publication orders sought – whether discretion should be exercised to make other non-publication orders sought
Health Practitioner Regulation National Law (Queensland), s 35, s 178, part 8
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Medical Board of Australia v Waldron  QCAT 443
V Hepburn of MinterEllison
REASONS FOR DECISION
- In this proceeding, the applicant seeks a review of a decision of the respondent pursuant to section 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (National Law) to impose conditions on her registration as a registered nurse.
- In a letter dated 25 September 2020 notifying the applicant of the decision, the respondent referred to the Australian Health Practitioner Regulation Agency receiving a notification on behalf of the respondent in relation to the performance of the applicant. The letter states that the notification was made by the applicant’s former employer, West Moreton Hospital and Health Service (WMHHS), who identified serious deficiencies in the applicant’s performance as a registered nurse across multiple practice areas.
- It is apparent that the applicant was employed as a registered nurse performing nursing duties at the Wolston Correctional Centre. It appears likely that there will be material in evidence before the Tribunal relating to performance assessments of the applicant by named performance assessors. I have been told in submissions this morning that the notifier was the Executive Director of Nursing and Midwifery Services of WMHHS.
- The respondent has filed application for miscellaneous matters on 17 December 2020 seeking a non-publication order.In a revised draft order tendered this morning, the respondent seeks an interim order pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting publication of the contents of documents or things filed in or produced to the Tribunal, evidence given before the Tribunal and any order made or reasons given by the Tribunal that could identify or lead to the identification of three categories of persons expressed as follows:
- (a)any of the named patients of the applicant;
- (b)the notifier of the alleged conduct which is the subject of the application of referral filed 6 November 2021; and
- (c)any of the named employees of WMHHS and any other workers and contractors who work at the facility at Wacol;
save as provided for by the terms of the order and save as is necessary for the parties to engage in and progress the proceeding.
- The applicant has appeared and made submissions. She does not oppose a non-publication order applying to any patients named in material before the Tribunal. She does not take any particularly strong stance in relation to the balance of the orders sought by the respondent but queries the necessity or utility of such terms of a non-publication order.
- Information as to the health and/or treatment of patients is properly regarded as either confidential information or information whose publication would be contrary to the public interest within the terms of section 66(2)(d) of the QCAT Act and, in those circumstances, a discretion arises to make a non-publication order in relation to the identity of patients. Such orders are commonly, if not invariably, made in matters of this type and I have no hesitation in acceding to an application for a non-publication order in relation to the identity of any patients.
- The situation with the other two categories of persons sought to be made subject of a non-publication order is, however, not as obvious.
- Submissions on behalf of the respondent point to the respondent’s statutory functions under section 35 of the National Law requiring it to investigate the professional conduct and ability to practice of registered health practitioners.
- It is submitted that the publication of the identity of “lay notifiers”, or other persons involved in assessment of the applicant’s work performance or incidentally named in the material before the Tribunal, has the potential to undermine the respondent’s capacity to perform its statutory functions by causing notifiers, practitioners and witnesses to be less inclined to make a full and frank disclosure to the respondent in the context of future notifications received by the respondent or to appear as witnesses in future investigations.
- It is submitted the publication of the identities of such persons is contrary to the public interest due to the potential interference with the respondent’s capacity to exercise its statutory functions. It is submitted that protecting the privacy of such persons is essential if the respondent is to ensure that professional conduct issues can be properly investigated by it. It is submitted that the making of voluntary notifications is the primary means by which potential performance and/or conduct issues come to the attention of the respondent and lay notifiers might well be disinclined to notify if it is likely their identity will become publicly known.
- It is further submitted that the identities of the employees and/or contractors engaged by WMHHS who are identified in documents produced to the Tribunal are confidential information and an order is necessary to prevent the publication of such information. It is submitted that publication of information that enables workers at the Wolston Correctional Centre to be identified could cause unintended harm to those identified and is contrary to the public interest.
- Section 66(2) of the QCAT Act provides for the circumstances in which a non-publication order may be made. The Tribunal may make an order “only if the tribunal considers the order is necessary” to avoid one of the specified consequences or “is necessary … for any other reason in the interests of justice.” The onus lies upon the party seeking the non-publication order to satisfy the Tribunal of its necessity.
- In Medical Board of Australia v Waldron, Deputy President 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 the 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.
- Some of the submissions on behalf of the respondent have the flavour of contending for a general approach that the identity of notifiers and other employees and contractors of a health service should be subject to non-publication orders in proceedings of this type. That contention, if, in fact, it is sought to be made, is not made out. Whether or not the discretion to make a non-publication order exists and, if so, whether it should be exercised must be considered in the circumstances of each particular case.
- In this case, the notification was made to the respondent by the Executive Director of Nursing and Midwifery Services of WMHHS, no doubt not based upon any personal knowledge by the Executive Director but in accordance with the functions of his or her employment in that position. Whether or not it was made as a mandatory notification or a voluntary notification pursuant to the relevant provisions of part 8 of the National Law seems to be of little moment.
- I am not satisfied that the publication of the name of the Executive Director, who is the notifier in this matter, has the potential to undermine the exercise of the statutory functions of the respondent by deterring others in the position such as the notifier in this matter or notifiers in other circumstances from appropriately acting pursuant to the National Law to report matters to the respondent. I am not satisfied that non-publication of the identity of the notifier in this matter is necessary to avoid endangering the safety of that or any other person. I am not satisfied that such information is confidential or that publication of such information would be contrary to the public interest or that non-publication of the identity of the notifier is otherwise in the interests of justice.
- In those circumstances, I am not satisfied that any of the preconditions to the exercise of the discretion provided in section 66(2) of the QCAT Act are fulfilled so as to give rise to an exercise of discretion to make a non-publication order in relation to the identity of the notifier. If I had found that such a precondition was fulfilled so as to give rise to the exercise of the discretion, the paramount principle of open justice would, in any event, have led me to decline to make such an order.
- In relation to the third category of persons, namely, “any of the named employees of (WMHHS) and other workers and contractors who work at the facility at Wacol”, although a suggestion was made that the safety of such persons could somehow be compromised if a non-publication order of their identities was not made, the terms of such a submission did not go beyond mere speculation as to such a consequence.
- In those circumstances, I am not satisfied that any of the preconditions for making a non-publication order prescribed by section 66(2) of the QCAT Act are satisfied, so as to give rise to a discretion to make a non-publication order in relation to the identity of those persons. Even if I had found that one of the preconditions for the exercise of the discretion was made out, the paramount principle of open justice would have led me in the particular circumstance of this matter, to decline to exercise the discretion to make such an order.
- I note as a practical consideration that it is quite unlikely that the identity of any of the persons who were sought to be made subject to a non-publication order would be of any media interest and that it is the invariable practice of the Tribunal when publishing reasons in matters, such as the ultimate decision in proceedings of this type, not to name individuals who might be referred to in material before the Tribunal unless it is considered necessary to do so. It is not, on the limited material available to me today, apparent why there would be, ultimately, any need to identify the names of such persons in the reasons for the ultimate decision of the Tribunal in this proceeding. If need be, the question of a non-publication order in relation to the names of any persons other than patients in this matter could be revisited at the time of the hearing of the substantive application in the proceeding. It may well be that the respondent would be in a better position at that time to make submissions or put material before the Tribunal which would demonstrate why such a non-publication order should be made.
  QCAT 443 at  – , footnotes omitted.
- Published Case Name:
Ha v Nursing and Midwifery Board of Australia
- Shortened Case Name:
Ha v Nursing and Midwifery Board of Australia
 QCAT 91
Judge Allen QC, DP
12 Mar 2021