Medical Board of Australia v Zimmermann (No 2)
[2023] QCAT 300
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- Unreported Judgment
- Medical Board of Australia v Zimmermann (No 2)[2023] QCAT 300
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Medical Board of Australia v Zimmermann (No 2)[2023] QCAT 300
Medical Board of Australia v Zimmermann (No 2)[2023] QCAT 300
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Medical Board of Australia v Zimmermann (No 2) [2023] QCAT 300 |
PARTIES: | medical board of australia (applicant) v rene zimmermann (respondent) |
APPLICATION NO/S: | OCR134-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 August 2023 |
HEARING DATE: | On-Papers Hearing |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: |
is prohibited to the extent that it could identify or lead to the identification of any patient of the Respondent, or any family member of such patient, save as provided for by the terms of this order, and save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and for the Medical Board of Australia to provide information to the Office of the Health Ombudsman in the exercise of the Board’s functions under the Health Practitioner Regulation National Law (Queensland).
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CATCHWORDS: | ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the matter was finalised and reasons published – where the applicant made an application for a non-publication order ten days after the reasons were provided – where the respondent does not oppose the application – where the proceeding has finalised – whether the Tribunal has power to issue a non-publication order when the matter is finalised – whether the Tribunal should make a non-publication order on its own initiative Queensland Civil and Administrative Tribunal Act 2009 ss 66, 135 HA v Nursing and Midwifery Board of Australia [2021] QCAT 91 YWG v Medical Board of Australia [2023] QCAT 93 |
APPEARANCES & REPRESENTATION: | |
Applicant: | King & Wood Mallesons |
Respondent: | HWL Ebsworth Lawyers |
REASONS FOR DECISION
- [1]This disciplinary referral was heard on 13 June 2023 and the Tribunal’s decision was given that day. The Tribunal’s written reasons for that decision were delivered on 11 July 2023. No application for a non-publication order (NPO) had been made by either party prior to this occurring, despite each party having been legally represented, including by counsel.
- [2]In its written reasons, the Tribunal did not publish the name of anybody whose identity the applicant now seeks to protect. The abbreviations the Tribunal used were those used by the parties in preparing the material on which the referral proceeded before the Tribunal.
- [3]Notwithstanding this, some ten days after the reasons were sent to the parties, the applicant, through its representatives, applied for a NPO in respect of patients of the respondent practitioner and any family member of such a patient. The order is sought in terms of each of the three limbs of s 66(1) of the QCAT Act.
- [4]The applicant’s reasons for seeking the orders in summary are as follows. Publication of the identity of those persons whose identity is the subject of the application for the NPO:
- has the potential to undermine the Board’s capacity to perform its statutory functions of investigation by causing notifiers, practitioners and witnesses to be less inclined to make a full and frank disclosure to the Board in the context of future notifications;
- is contrary to the public interest due to the potential interference with the applicant’s capacity to exercise its statutory functions;
- is not in the interests of justice, as providing such protection is essential if the applicant is to ensure it can properly investigate professional conduct issues;
- will interfere with the proper administration of justice. These persons can be deidentified and the reasons published using deidentified terms.
- [5]Acknowledging that the parties had referred throughout the matter to one person by initials, the applicant now requests that person be referred to differently in the Tribunal’s reasons.
- [6]The applicant’s solicitors have indicated that the respondent has no difficulty with the application.[1]
- [7]I have expressed the view that, as a matter of statutory construction, once a final decision is made in a proceeding, a party to that proceeding cannot apply for a non-publication order under s 66 of the QCAT Act because there is no longer a proceeding on foot.[2] The applicant has not engaged with that view in making its application.
- [8]As I have further set out, the Tribunal may, however, act on its own initiative pursuant to s 66(3) of the QCAT Act in the event the Tribunal determines an order is necessary, the matter having come to the Tribunal’s attention through the making of the application.[3]
Is the order ‘necessary’ ?
- [9]There is nothing in the Tribunal’s reasons, as presently published, which identifies any of the individuals within the ambit of the NPO application. As such, and of itself, the Tribunal is not persuaded that the NPO is necessary arising from the publication of the Tribunal’s written reasons, in the form in which they were published.
- [10]A potential for identification arises in circumstances where documents filed by the parties contain the names of individuals in respect of whom the NPO application is now made and a correlation can be made between those documents and the reference to deidentified persons in the Tribunal’s reasons by someone reading the Tribunal’s file. A member of the public who came to the Tribunal and viewed the file could, if they chose, identify relevant persons in the deidentified written reasons by reference to documents contained on the file.
- [11]The Tribunal observes that the applicant took no steps to redact or de identify those names or to seek a NPO when that material was filed.
- [12]It is not, however, in the interests of justice that someone whose identity may properly be the subject of a NPO[4], may have their identity exposed by the oversight of the applicant or its representatives to seek the benefit of such an order in respect of them.
- [13]For these reasons the Tribunal has determined that it is ‘necessary’ within s 66(2)(d) and (e) of the QCAT Act to make a NPO and it will act on its own initiative to do so.
The spelling of the respondent’s name
- [14]In its covering email dated 21 July 2023 enclosing the NPO application, the applicant’s solicitors identified a series of ‘typographical errors’ in the Tribunal’s reasons for judgment. One of the errors identified is that ‘Dr Zimmermann’s name is missing an ‘n’ on the end. It should be spelt ‘Rene Zimmermann’’ (emphasis in original).
- [15]The Tribunal observes that in the form initiating the referral proceeding filed on behalf of the applicant, the applicant’s solicitors spelt the respondent’s name as ‘Dr Rene Zimmerman’. In an annexure to the referral form provided by the applicant’s solicitors, they variously refer to the applicant as ‘Dr Zimmerman’ and ‘Dr Zimmermann’. As a result, the Tribunal has proceeded on the basis that the respondent’s name is spelt the way in which it was set out in the form initiating the referral proceeding.
- [16]The Tribunal has since conducted its own search of the AHPRA register. Based on the results of that search, the Tribunal can be satisfied that the respondent’s name is Rene Zimmermann.
- [17]The Tribunal has the power under s 135 of the QCAT Act to correct mistakes in its decisions. It is appropriate to exercise that power in this case and order that the Tribunal’s decision and reasons for judgment be corrected to reflect that the respondent’s name is Rene Zimmermann.
Orders
- [18]The Tribunal makes the following orders:
- Pursuant to s 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
- the contents of a document or other thing filed in or produced to the Tribunal;
- evidence given before the Tribunal;
- any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of any patient of the Respondent, or any family member of such patient, save as provided for by the terms of this order, and save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and for the Medical Board of Australia to provide information to the Office of the Health Ombudsman in the exercise of the Board’s functions under the Health Practitioner Regulation National Law (Queensland).
- 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.
- Pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal’s decision and reasons for judgment be corrected to reflect that the respondent’s name is Rene Zimmermann.
Footnotes
[1]Email from the applicant’s solicitors to the Tribunal dated 21 July 2023
[2]YWG v Medical Board of Australia [2023] QCAT 93 at [15] – [16]
[3]YWG v Medical Board of Australia [2023] QCAT 93 at [17]
[4]Eg information as to the identity, health or treatment of patients: HA v Nursing and Midwifery Board of Australia [2021] QCAT 91 at [6]