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Medical Board of Australia v QLX[2023] QCAT 492

Medical Board of Australia v QLX[2023] QCAT 492

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v QLX [2023] QCAT 492

PARTIES:

Medical board of australia

(applicant)

v

QLX

(respondent)

APPLICATION NO/S:

OCR290-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 December 2023

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. The order made on 28 October 2022 is varied to remove from paragraph 1 the words “Until further order” and the words “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).”
  2. The application is otherwise dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal made a non-publication order on 28 October 2022 – where the underlying proceeding has since finalised – where the respondent practitioner was found to have engaged in professional misconduct and was reprimanded – where the applicant Board seeks that the Tribunal make an order that the non-publication order cease to have effect – where in the alternative the applicant seeks that the non-publication order be varied to allow the applicant to carry out certain statutory functions – whether the non-publication order should cease to have effect – whether the non-publication order should be varied to allow the applicant to carry out certain statutory functions

Human Rights Act ss 4, 9, 25, 31, 48, 58

Queensland Civil and Administrative Tribunal Act 2009 ss 66

AA v BB [2013] VSC 129

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

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

LSC v XBV [2018] QCAT 332

Medical Board of Australia v LWT [2022] QCAT 352

Medical Board of Australia v QLX [2023] QCAT 60

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

  1. [1]
    On 28 October 2022, the Tribunal made an interim order prohibiting publication of the identity of the respondent or details which may lead to the identification of the respondent[1].
  2. [2]
    In a final determination of the proceeding, by decision dated 21 February 2023, the Tribunal found conduct which, taken all together, constituted professional misconduct comprising[2]:
    1. the respondent had taken illegal drugs on a number of occasions, against a long history of occasional use of those drugs, despite the imposition of conditions, psychiatric treatment and cautions from the Board;
    2. together with:
      1. (i)
        missing several drug screening tests; and
      1. (ii)
        being a few days late for a hair test (which, of itself, was described as being of very little consequence).  
  3. [3]
    The Tribunal’s reasons record the Board submitted it was important that conditions imposed on registration of a practitioner were complied with and the most important factors in this case were the need to protect the public through general deterrence and the need to maintain public confidence in the profession, with, in view of the practitioner’s history, personal deterrence being of some significance[3].  The Tribunal recorded the practitioner referred to his personal history, apologised for his breaches of conditions and seemed genuinely upset and embarrassed when discussing his conduct. The judicial member stated that references provided spoke highly of his work as a doctor[4].
  4. [4]
    The Tribunal imposed a reprimand, in circumstances where the respondent’s registration had been suspended by the Board for about 2 years and for a further period of about one year the respondent had been unable to obtain employment because of the conditions on his registration. The Tribunal observed that this was a longer period of suspension than any which the Tribunal would have imposed as a sanction. The Tribunal also recorded that the respondent’s registration was subject to strict conditions which meant it was not necessary for the Tribunal to consider the imposition of conditions as a sanction.[5] Consequently, the only appropriate sanction was a reprimand.
  5. [5]
    On 9 March 2023 the applicant Board applied for orders in the alternative:
    1. Firstly, that the non-publication order cease to have effect; and
    2. Secondly, and in the alternative, if the Tribunal is not minded to cease the non-publication order that the terms of it are amended[6]. 
  6. [6]
    The respondent opposes the Board’s application. Each party has filed written submissions. The Board, in response to the Tribunal’s direction, has filed written submissions addressing the role, if any, of the Human Rights Act 2019 (Qld) (HRA) in the exercise of the Tribunal’s discretion on the application.  The Tribunal appreciates the assistance provided by the Board in these latter submissions.

The Board’s submissions in support of its application

  1. [7]
    The Board submits, in summary, that the non-publication order is no longer necessary, appropriate or in the interests of justice because:
    1. There is a finding of professional misconduct that has been made.  There is a clear intention in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’) that matters proceed in public. There is the main principle for administering the National Law that the health and safety of the public are paramount, and the public interest must be at the forefront of the Tribunal’s mind. What is in “the interests of justice” and what is “necessary” for s 66(2) of the QCAT Act ought to be assessed through that lens. Conduct having been proven, greater weight can be given to the interests of the public being aware of a decision in respect of a registered practitioner and there are no special circumstances existing to warrant the continuation of the non-publication order now the final decision has been made;
    2. There is little utility or practicality in the non-publication order continuing. The reprimand will have no work to do if the reprimand is not published. If the respondent is applying for a job as a medical practitioner (clinical or non-clinical) or obtaining insurance to practice as a medical practitioner he will be required to provide information relevant to the employer and insurer, including whether there is any disciplinary history and findings of processional misconduct. He will also be required, in renewing his registration for the 2023 registration year, to notify AHPRA of any disciplinary finding made by the Tribunal. Where his potential employer, insurer and registration body will require notification, there is little (if any) utility in an order protecting the respondent’s identity.
  2. [8]
    In support of its alternative position, the Board seeks to have the current non-publication order amended to remove reference to the Office of the Health Ombudsman and to seek an additional paragraph to facilitate it performing its functions under the National Law, specifically sections 206, 206A and 232. 
  3. [9]
    The Board’s submissions were made prior to the respondent providing further medical evidence.
  4. [10]
    As to the human rights implications the Board submits:
    1. The power to make a non-publication order is a procedural power, which requires the Tribunal to apply the law to the respondent’s circumstances;
    2. As such, the better view is that when deciding whether or not to make a non-publication order, the Tribunal is ‘a public entity’ for the purposes of the HRA and therefore the requirements under s 58 of the HRA apply to the Tribunal;
    3. The power to decide to not continue a non-publication order is compatible with human rights in this case as it would limit a human right only to the extent that is reasonable and demonstrably justifiable and therefore the Tribunal will not be making an unlawful decision if it decides to grant the Board’s application;
    4. As these proceedings were heard under the National Law, the Tribunal’s ancillary powers, such as those to make non-publication orders under s 66 of the QCAT Act must be exercised having regard to the broader National Law framework, where the Tribunal is a creature of statute and derives its powers from statute. The paramount principle is that the health and safety of the public are paramount. Having regard to s 48 of the HRA, the Queensland legislature must have intended the HRA and the earlier National Law to operate harmoniously absent any irreconcilable inconsistency and there is no such inconsistency here;
    5. In meeting obligations under s 58 of the HRA by making decisions compatible with human rights, this necessarily involves a balancing exercise, and the ultimate question is whether continuing the non-publication order is necessary having regard to s 66(2) of the QCAT Act;
    6. Section 31of the HRA can operate conformably alongside s 66 of the QCAT Act;
    7. The continuation of the non-publication order is not necessary and the removal of the non-publication order in this case would be compatible with human rights for the purpose of the HRA.

The respondent’s submissions

  1. [11]
    The respondent (who acts for himself) submits, in summary, in respect of the Board’s primary position:
    1. The additional medical evidence filed with his submissions supports the making of a non-publication order on a permanent basis. The reports satisfy the requirement that the order is necessary to avoid endangering his mental health pursuant to s 66(2)(b) of the QCAT Act;
    2. Considerations under the HRA support his position that the non-publication order continue permanently;
    3. The Board’s position on the hearing of his substantive application was that sanctions were being sought in his case, most importantly for considerations of general deterrence. That position can be achieved with the publication of de-identified reasons. In further support of his position, the practitioner notes that in April 2023 the Board again decided not to include certain information on the public register, namely health related restrictions.
  2. [12]
    As to the Board’s alternative position, the respondent opposes amendment to the non-publication order in a way which may allow the Board to record his tribunal outcome on its website and in the record of decisions in a way that identifies him because the hearing of the referral was open to the public.

The legislative scheme

  1. [13]
    Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of:
    1. the contents of a document or other thing produced to the tribunal;
    2. evidence given before the tribunal;
    3. information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  2. [14]
    Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:
    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.
  3. [15]
    It has been observed that this provision gives 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[7]. Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice[8].
  4. [16]
    The party seeking the non-publication order must satisfy the Tribunal it is necessary[9].  This requires a high standard of satisfaction[10].
  5. [17]
    The HRA’s objectives are to be achieved by, inter alia, requiring public entities to act and make decisions in a way compatible with human rights[11] and by requiring courts and tribunals to interpret statutory provisions, to the extent possible with their purpose, in a way which is compatible with human rights[12].
  6. [18]
    A public entity does not include a court or tribunal except when acting in an administrative capacity[13].
  7. [19]
    The HRA confers human rights, relevantly not to have a person’s privacy unlawfully or arbitrarily interfered with and not to have the person’s reputation unlawfully attacked[14].  A person has a right to have a civil proceeding decided by a competent, independent and impartial tribunal after a fair and public hearing[15]. A tribunal may exclude members of a media organisation, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice[16]. Judgments or decisions made by a tribunal must be publicly available[17].
  8. [20]
    By s 48(1) of the HRA, all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

The basis for the making of the non-publication order

  1. [21]
    When the original non-publication order was made the Tribunal said, relevantly[18]:

“ … the nature of the matters the subject of the referral in this case do not involve very serious criminal conduct. The Tribunal notes that [the practitioner] 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).

[22] There is evidence that [the practitioner] has been under regular and frequent psychiatric treatment for his substance abuse disorder for some years. There is evidence that with publication, [the practitioner] 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 [the practitioner’s] privacy in respect of certain aspects of the conditions on his registration.

[23] Balancing the principles of open justice and the submissions raised by [the practitioner] I am satisfied that there is clear evidence of endangerment to [the practitioner’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.”

Analysis – is the continuation of the publication order necessary now ?

  1. [22]
    In support of his pursuit of the continuation of the non-publication order, the respondent has filed further medical evidence from his treating general practitioner of over 10 years standing and from his treating psychiatrist of over 8 years standing.
  2. [23]
    The general practitioner reports that whilst the respondent is in sustained remission, ongoing vigilance with regard to relapse prevention is important, which includes minimising and managing stress. His opinion is that the continuation of the non-publication order is necessary to avoid endangering the respondent’s health, in summary because substance abuse disorders are chronic conditions, and stress leads to relapse vulnerability. In the case of the respondent, the general practitioner says that substantial stress has seen relapses in the past so minimising stress wherever possible is important for relapse prevention and increased relapse vulnerability will pose an unacceptable risk to the respondent’s health.
  3. [24]
    The respondent’s treating psychiatrist records that the respondent has made sustained progress in avoiding substance use and that he remains distressed about the prospect of publication. He too expresses the opinion that the consequence of any future relapse is significant, including with a likelihood of recurrent psychotic symptoms in the event of a relapse. He refers back in that regard to the matters in the report before the Tribunal when the original non-publication order was made.
  4. [25]
    The Tribunal is satisfied, given the further medical evidence, that the same considerations apply to the practitioner subsequent to the Tribunal’s final determination of the referral, as when the earlier order prohibiting publication was made.
  5. [26]
    The medical evidence again makes a causal link between publication of the practitioner’s identity in conjunction with the facts of this matter and the risk of relapse into substance abuse, together with the likelihood of attendant harm to the practitioner’s health. It is relevant to note that subsequent to the Tribunal’s final decision, the Board has continued to utilise s 226 of the National Law to protect the practitioner’s privacy in respect of aspects of the conditions imposed on registration.
  6. [27]
    That the referral has been determined does not speak to whether the order is ‘necessary’ within the meaning of that term in s 66(2) of the QCAT Act[19]. The operation of section 66 of the QCAT Act is not preconditioned on whether final orders have been made.
  7. [28]
    As to questions of utility and practicality, the practitioner’s concern, supported by the medial evidence, remains that his health will be negatively impacted by the publication of his name.
  8. [29]
    Anonymised reasons, which can be published, will be available to the public to demonstrate that practitioners in the respondent’s position face significant disciplinary consequences for their actions, viz:
    1. The reprimand imposed by the Tribunal; and
    2. The Tribunal’s observation that the suspension the practitioner has served, which is longer than any period of suspension which the Tribunal would have imposed by way of sanction; and
    3. The existence of strict conditions on the practitioner’s registration.
  9. [30]
    Finally, the Tribunal accepts the Board’s submission that the ultimate question in the application of the Human Rights Act requirements on this application is whether the continuation of the non-publication order is necessary having regard to the articulated limbs in s 66(2) of the QCAT Act[20]. For the foregoing reasons, the Tribunal has determined that the continuation of the non-publication order is necessary in accordance with s 66(2)(b) of the QCAT Act.

Should the non-publication order contain the exceptions sought by the Board in the alternative ?

  1. [31]
    Having determined that the continuation of the non-publication order is necessary, the Tribunal must consider whether it is appropriate to vary the order to add the exceptions sought by the Board.
  2. [32]
    Where the power to make a non-publication order is a statutory one, exceptions to any order that the Tribunal makes must also be authorised by statute. Section 66 of the QCAT Act provides that 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”. This leaves room for the Tribunal to except from the prohibition on publication, publication in certain ways and to certain persons stated in the order.
  3. [33]
    Here the Board seeks that publication be excepted from the non-publication order "to the extent that it is published for the purposes of the Applicant performing its statutory functions under the Health Practitioner Regulation National Law (Queensland), including its functions under ss 206, 206A, and 232.”[21] The respondent opposes such an exception being inserted into the non-publication order on the basis that the reference to s 232 in the exception “may allow the Board to record [his] tribunal outcome on it’s (sic) website and in the record of decisions, in a way that does identify [him] because [his] hearing was open to the public.”
  4. [34]
    Section 232 of the National Law provides as follows:

232 Record of adjudication decisions to be kept and made publicly available

  1. (1)
    A National Board is to keep and publish on its website a record of decisions made by—
  1. (a)
    panels established by the Board; and
  2. (b)
    responsible tribunals that relate to registered health practitioners or students registered in a health profession for which the Board is established.
  1. (2)
    The record is to be kept—
  1. (a)
    in a way that does not identify persons involved in the matter, unless the decision was made by a responsible tribunal and the hearing was open to the public; and
  2. (b)
    otherwise in the way decided by the National Board.
  1. [35]
    If making an exception to the non-publication order to allow the Board to exercise a function under s 232 of the National Law would have the effect of permitting the Board to publish a record of the Tribunal’s decision on the disciplinary referral that identifies the respondent, that would undermine the non-publication order itself. In those circumstances, in the exercise of its discretion in this case, the Tribunal declines to order that the non-publication order be varied to create such an exception.

Conclusion

  1. [36]
    The Tribunal accepts the Board’s submission that the order erroneously refers to the Office of the Health Ombudsman providing information to the Australian Health Practitioner Regulation Agency in the exercise of the Ombudsman’s functions and will vary the non-publication order to remove that reference.
  2. [37]
    Otherwise, the Tribunal dismisses the application to revoke the non-publication order made 28 October 2022.

Footnotes

[1] Medical Board of Australia v LWT [2022] QCAT 352.

[2] Medical Board of Australia v QLX [2023] QCAT 60 at [16].

[3] Medical Board of Australia v QLX [2023] QCAT 60 at [18].

[4] Medical Board of Australia v QLX [2023] QCAT 60 at [18]

[5] Medical Board of Australia v QLX [2023] QCAT 60 at [21]

[6]  [5] of the submissions in support of the application for miscellaneous matters filed 9 March 2023.

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

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

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

[10]AA v BB [2013] VSC 129 at [81] per Bell J as set out in the Board’s supplementary submissions at [46].

[11]  Section 4(b) HRA.

[12]  Section 4(f) HRA.

[13]  Section 9(4) HRA.

[14]  Section 25 HRA.

[15]  Section 31(1) HRA.

[16]  Section 31(2) HRA.

[17]  Section 31(3) HRA.

[18]  I have substituted the words ‘the practitioner’ for the acronym used in the reasons.

[19]  In that regard the Tribunal notes that the “interests of justice” is a ground within s 66(2) on which the Tribunal may determine that the order is ‘necessary’ but the overarching question for the Tribunal is whether the order is ‘necessary”; cf the Board’s submissions at 20(b).

[20]  Paragraph [36] of the Board’s supplementary submissions

[21]  Paragraph [23] of the Board’s initial submissions in support of the application for miscellaneous matters filed 9 March 2023.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v QLX

  • Shortened Case Name:

    Medical Board of Australia v QLX

  • MNC:

    [2023] QCAT 492

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    22 Dec 2023

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
AA v BB [2013] VSC 129
2 citations
Jump To
Cite 1 - [2013] VSC 129
Cite 2 - [2013] VSC 129
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
2 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
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
Medical Board of Australia v LWT [2022] QCAT 352
2 citations
Jump To
Cite 1 - [2022] QCAT 352
Cite 2 - [2022] QCAT 352
Medical Board of Australia v QLX [2023] QCAT 60
5 citations
Jump To
Cite 1 - [2023] QCAT 60
Cite 2 - [2023] QCAT 60
Cite 3 - [2023] QCAT 60
Cite 4 - [2023] QCAT 60
Cite 5 - [2023] QCAT 60

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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