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Medical Board of Australia v LWT[2022] QCAT 352

Medical Board of Australia v LWT[2022] QCAT 352

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v LWT [2022] QCAT 352

PARTIES:

medical board of australia

(applicant)

v

LWT

(respondent)

APPLICATION NO/S:

OCR290-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 October 2022

HEARING DATE:

28 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      information that may be able to identify a person who has appeared before the Tribunal or is affected by a proceeding, to be identified

is prohibited to the extent that it could identify or lead to the identification of the respondent, save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

  1. Any material affected by the non-publication order shall not be copied or inspected 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. The application is otherwise dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent submitted for a non-publication order and closed hearing opposed by the applicant – where the respondent is diagnosed with amphetamine use disorder and provided two letters from his consultant psychiatrist in support of the application – where there the respondent also submits publication would cause harm to his ill parents and brand damage to his former employer – whether these are relevant considerations to the application – whether a non publication order should be made

Health Ombudsman Act 2013 (Qld) s 98

Health Practitioner Regulation National Law (Queensland) (National Law) s 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66, 90

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Health Ombudsman v Barham [2020] QCAT 201

Health Ombudsman v Brown [2020] QCAT 220

Health Ombudsman v Shermer (No 2) [2019] QCAT 54

LSC v XBV [2018] QCAT 332

APPEARANCES &
REPRESENTATION:

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

REASONS FOR DECISION

What are the issues to be decided on this application

  1. [1]
    LWT asks the Tribunal for the following orders:
    1. (a)
      a non publication order to prevent publication of his name, the identity of his previous employers and aspects of his private medical information; and
    2. (b)
      a closed hearing of the Medical Board of Australia’s referral.
  2. [2]
    The Board opposes both orders.
  3. [3]
    In the underlying proceeding, in summary:
    1. (a)
      LWT admits Ground one on the referral which, in summary, alleges he failed to comply with conditions imposed on his registration when he failed to attend for certain drug screens, failed to tell APHRA he had not attended for the drug screens and took substances which were not prescribed, approved or administered by a nominated health practitioner. He admits these actions constitute professional misconduct and/or unprofessional conduct;  and
    2. (b)
      LWT denies and disputes he was affected by illicit drugs whilst working in his capacity as a registered medical practitioner in February 2020.  He does not dispute his work location or that his conduct breached good medical practice.
  4. [4]
    There is an agreed history of occasions of substance abuse by LWT, that numerous health assessments have been conducted and, on a number of occasions that conditions have been imposed by the Board on LWT’s registration over a number of years.
  5. [5]
    The referral is waiting for a listing for final hearing, after parties advise the tribunal of their availability.

When can the Tribunal issue non publication orders

  1. [6]
    The Tribunal may make an order prohibiting, other than in the way and to the persons stated in the order, the publication of:[1]
    1. (a)
      the contents of a document or other things 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.
  2. [7]
    The Tribunal may make an order under s 66(1) only if it considers it necessary to do so:[2]
    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. [8]
    The Tribunal has 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.[3] Having said that, the exercise of the discretion is informed by the paramount principle of open justice.[4]
  4. [9]
    The discretion is not to be exercised lightly and the party seeking the non-publication order must satisfy the Tribunal it is necessary.[5]

Why does LWT submit he should be granted the orders he seeks ?

  1. [10]
    LWT, who acts for himself, submits:
    1. (a)
      that an open hearing and the disclosure of information which identifies him would cause him extreme stress;
    2. (b)
      he no longer works for either of his former employers and he does not want his disciplinary matter to cause his previous employers any brand damage; and
    3. (c)
      his parents, each in their early 60s, each suffer from relatively recently diagnosed incurable cancers, and publication of his name would cause them substantial stress, endangering their physical and mental health further during what is already a very difficult time.
  2. [11]
    In support of the application, originally, LWT provided a short letter from his consultant psychiatrist dated 2 March 2022. In it the doctor opined:
    1. (a)
      LWT had attended ongoing consultations in relation to a diagnosed amphetamine use disorder and had made significant progress in managing the condition and avoiding any relapse; and
    2. (b)
      his concern about publication is that the distress this would cause and the ongoing impact on employment prospects would increase the risk of substance relapse, which, in turn, would recurrently exclude LWT from return to medical practice.
  3. [12]
    After receiving the Board’s submissions LWT provided the Tribunal with:
    1. (a)
      written submissions;
    2. (b)
      a signed letter from his parents, with accompanying medical information;
    3. (c)
      an academic article headed “Chronic Stress, Drug Use and Vulnerability to Addiction”; and
    4. (d)
      a further letter from his treating psychiatrist.

Why does the Board oppose the orders ?

  1. [13]
    The Board opposes the application primarily on the basis that LWT has failed to satisfy the onus on him to show that the order is necessary. Specifically, it submits there is an absence of “clear evidence of real harm”. 
  2. [14]
    The Board submits “information should not be withheld from the public merely to save a party or witness from loss or privacy, embarrassment, distress, financial harm or other collateral disadvantage”.[6] It submits that LWT’s future employment prospects and brand damage to his former employers fall within these principles. 
  3. [15]
    It submits that any negative effects on LWT’s parents is not supported in the evidence.
  4. [16]
    Whilst the Board’s submissions were filed prior to the further report from LWT’s treating psychiatrist and further material from LWT’s parents, at a directions hearing after that material was received, the Board maintained its position. 
  5. [17]
    The Board acknowledges the authorities that support the making of a non publication order where a practitioner has a relevant impairment, which includes substance abuse or dependence, which is intertwined with the misconduct.[7] On 9 September 2022 the Board confirmed in writing that it did not rely on its written submission that the discretion was usually exercised where a relevant decision maker had already exercised a statutory discretion to withhold impairment information, for example from the public register, but that this is not such a case. This is because, in fact, the Board has not disclosed the full extent of LWT’s conditions on the national register, citing privacy reasons, in accordance with its power to do so in s 226 of the Health Practitioner Regulation National Law (Queensland) (National Law). 
  6. [18]
    The key issues in this application are whether LWT’s mental health (or that of his parents) will be endangered if a non publication order is not made or there are any other reasons in the interests of justice that make it necessary to make a non publication order.  

Is there a real risk of harm to LWT? 

  1. [19]
    In a second letter written by his consultant psychiatrist dated 15 June 2022, the treating doctor wrote:  
    1. (a)
      he has been seeing LWT for approximately 4 years, approximately every six weeks for a diagnosed amphetamine disorder;
    2. (b)
      LWT has had some previous success returning to medical practice, which has been stymied by relapse to amphetamine use, despite an awareness of the potential consequences. The relapses have been complicated by features of drug induced psychosis;
    3. (c)
      the sequelae of substance relapse pertains to the issue of non-publication. LWT has voiced concern about publication through consultations in the first part of 2022. Despite this, he has reportedly remained substance free. Human models of decision making where there has been a history of substance access show that high levels of stress alter behaviour, such that accessing the substance becomes more heavily preferenced;
    4. (d)
      the consequences to LWT of any future relapses are significant. They include a significant prolongation of any return to work or potentially exiting the medical profession. There is the likelihood of recurrent psychotic symptoms with relapse and the possibility that these symptoms may be more protracted should there be a future relapse to amphetamine use; (my emphasis added) and
    5. (e)
      based on the rationale that with publication of orders LWT may be at increased risk of a relapse of his amphetamine use disorder, with attendant significant consequences, he remains supportive of LWT’s request for non-publication.
  2. [20]
    In Health Ombudsman v Brown[8] the Tribunal was dealing with final proceedings involving a nurse who had stolen schedule 8 and schedule 4 drugs from two separate employers, the first over a number of months, and who had falsified records to cover her actions. The learned tribunal member observed that her conduct involved very serious criminal behaviour (of which she had been convicted in open court). The medical evidence was that the respondent suffered from a major depressive disorder with borderline personality traits. Potentially she also had a substance abuse disorder. She sought a non publication order at the end of the final hearing. The letter in support of the application was short and did not contain any explanation or relevant history. The judicial member was not satisfied that the doctor’s letter supporting the respondent was sufficient to satisfy the onus.[9]
  3. [21]
    In contrast to Brown, the nature of the matters the subject of the referral in this case do not involve very serious criminal conduct. The Tribunal notes that LWT has struggled with substance abuse since 2014, he has been diagnosed with a substance abuse disorder and he has not worked in a clinical setting since that time (although he has worked as a medical officer in positions approved by the Board and had some clinical contact in the context of a medical retrieval for a few days in August 2015).
  4. [22]
    There is evidence that LWT has been under regular and frequent psychiatric treatment for his substance abuse disorder for some years. There is evidence that with publication, LWT is at increased risk of relapse into substance abuse, and that there are attendant serious consequences for him, particularly a likelihood of recurrent psychotic symptoms.  Thus, there is a casual link between publication of the facts of this matter and risk of relapse into substance abuse together with likelihood of attendant harm. It is also relevant that the Board has utilised s 226 of the National Law to protect LWT’s privacy in respect of certain aspects of the conditions on his registration.
  5. [23]
    Balancing the principles of open justice and the submissions raised by LWT I am satisfied that there is clear evidence of endangerment to LWT’s mental health if a non publication order is not made. That risk of endangerment supports the need for a non-publication order until further order.
  6. [24]
    I turn to the other grounds of LWT’s application.
  7. [25]
    LWT’s parents have also provided a signed letter dated 9 June 2022. The signatures are noted as witnessed by a justice of the peace. In summary in that letter:
    1. (a)
      they confirm they are aware of LWT’s circumstances and the fact of the referral;
    2. (b)
      they each confirm their medical diagnosis and provide medical documentation that supports the facts of those diagnoses;
    3. (c)
      they each state that they are under substantial stress coming to grips with their respective diagnoses, current and pending treatment regimes and they note the need for them to relocate away from their home to receive treatments; and
    4. (d)
      they each state their belief that a non-publication order is necessary based on their special health circumstances, that further substantial stress would jeopardise their physical and mental health at what is already an extremely difficult time.
  8. [26]
    The Tribunal is satisfied that the belief they express is genuine. However, their belief is not supported by any expert opinion from a treating medical practitioner as to whether publication of information about LWT would have effect on them specified by s 66 of the QCAT Act.  There is no evidence that they have any expertise to offer an expert opinion on this issue.
  9. [27]
    Whilst the Tribunal is extremely sympathetic to their situation, on the established principles, this material alone would not be sufficient to support the need for the making of a non publication order.

Is there any other reason in the interests of justice ?

  1. [28]
    LWT also submitted he was concerned for brand damage to his former employers.
  2. [29]
    In Health Ombudsman v Barham,[10] a pharmacist convicted of stealing drugs from his employer on a single occasion voluntarily surrendered his registration and cooperated fully in all proceedings acknowledging that at the time he was not fit and proper for practice.[11]  The basis for the non-publication order application in that matter was to protect his wife who worked in the health care industry from stress and to avoid damage to her career progression. There was no evidence of endangerment to her physical or mental health or safety. As such although the Judicial Member sympathised with the impact that may result, he was not satisfied the evidence justified a non-publication order. 
  3. [30]
    The Tribunal is satisfied that an analogous situation arises with respect to former employers.  Brand damage to a corporate entity which is contended for in this case does not reach the statutory threshold mandated by s 66 of the QCAT Act. 

Should there be a closed hearing?

  1. [31]
    Section 90(1) of the QCAT Act provides that unless an enabling Act provides otherwise, the hearing of a proceeding must be held in public. This is a statutory recognition of the principle of open justice. Such a principle is one which aims to ensure that not only are proceedings fully exposed to public scrutiny, but also that the integrity and independence of the courts and tribunals are maintained.[12]
  2. [32]
    Section 98(1) of the Health Ombudsman Act 2103 (HO Act) provides that a hearing for an impairment matter relating to a health practitioner is not open to the public unless the Tribunal reasonably believes it is in the public interest that it be so open or the practitioner asks for it to be open. A matter is an ‘impairment matter’ if, relevantly, it is a matter referred to QCAT by a National Board on the ground that the practitioner has or may have an impairment.[13] This referral is not made on that basis, so section 98 of the HO Act does not apply. Thus, no enabling act provides otherwise and the default position is that the hearing should take place in public.
  3. [33]
    However, section 90(2) gives the Tribunal a discretion to direct that a hearing, or part of hearing be held in private if it considers it necessary, relevantly:
    1. (a)
      to avoid endangering the physical or mental health or safety of a person;
    2. (b)
      for any other reason in the interests of justice.
  4. [34]
    Neither party addresses, separately, the exercise of the discretion pursuant to s 90(2) of the QCAT Act for a closed hearing.  LWT has the onus of satisfying the Tribunal that the statutory criteria are met. The medical evidence which I have set out above, and on which I have determined non publication orders should be made, refers, specifically, to ‘non-publication of orders from the hearing’. It is silent on the issue of whether the hearing should be closed.
  5. [35]
    Where a non-publication order is made the practical effect of such an order is:
    1. (a)
      when the proceeding is listed for final hearing, it will not be listed by name in the public list; and
    2. (b)
      no one who is in the hearing room will be able to publish any information which would identify LWT personally. If they were to do so, this would breach the non publication order which the Tribunal proposes to make.
  6. [36]
    The Tribunal is not satisfied that LWT has met the onus on him to persuade it that the hearing should be closed on any of the bases set out in s 90(2) of the QCAT Act. That part of the application will be dismissed.

Orders

  1. [37]
    The Tribunal makes an order in the following terms:
  1. Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal; and
    3. information that may be able to identify a person who has appeared before the Tribunal or is affected by a proceeding, to be identified

is prohibited to the extent that it could identify or lead to the identification of the respondent, save as is necessary for the parties to engage in and progress these proceedings and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

  1. Any material affected by the non-publication order shall not be copied or inspected 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.
  1. The application is otherwise dismissed.

Footnotes

[1]  Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

[2]  Section 66(2) of the QCAT Act.

[3] LSC v XBV [2018] QCAT 332 at [26] per P Lyons QC.

[4]  See Health Ombudsman v Shermer (No 2) [2019] QCAT 54 at [6] per Allen DCJ and the authorities cited therein.

[5] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8] - [9].

[6]  See [27] of the Board’s submissions.

[7]  See the authorities referred to at [20] of the Board’s written submissions.

[8]  [2020] QCAT 220.

[9]  At [30].

[10]  [2020] QCAT 201.

[11]  Para [4].

[12] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8].

[13]  Section 98(2)(a) HO Act.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v LWT

  • Shortened Case Name:

    Medical Board of Australia v LWT

  • MNC:

    [2022] QCAT 352

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    28 Oct 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
3 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Cite 3 - [2010] QCATA 89
Health Ombudsman v Barham [2020] QCAT 201
2 citations
Jump To
Cite 1 - [2020] QCAT 201
Cite 2 - [2020] QCAT 201
Health Ombudsman v Brown [2020] QCAT 220
2 citations
Jump To
Cite 1 - [2020] QCAT 220
Cite 2 - [2020] QCAT 220
Health Ombudsman v Shemer (No 2) [2019] QCAT 54
2 citations
Jump To
Cite 1 - [2019] QCAT 54
Cite 2 - [2019] QCAT 54
LSC v XBV [2018] QCAT 332
2 citations
Jump To
Cite 1 - [2018] QCAT 332
Cite 2 - [2018] QCAT 332

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v QLX [2023] QCAT 4922 citations
1

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