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Psychology Board of Australia v Watson[2024] QCAT 228

Psychology Board of Australia v Watson[2024] QCAT 228

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Psychology Board of Australia v Watson [2024] QCAT 228

PARTIES:

Psychology board of australia

(applicant)

v

craig watson

(respondent)

APPLICATION NO:

No. OCR 064 of 2024

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 June 2024

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
    1. the contents of a document or other thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of:

  1. any patients of the respondent the subject of or giving evidence in the proceedings; and
  2. any witnesses giving evidence in the proceedings;

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 or review arising from these proceedings, and for the applicant to provide information to the Office of the Health Ombudsman in the exercise of the applicant’s functions under the Health Practitioner Regulation National Law (Queensland).

  1. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application has been made for a non-publication order – where the respondent practitioner seeks for the order to extend to him – where that extension of the order is opposed by the Board – where the respondent and witnesses are members of the same community – where the witnesses prefer that the respondent’s identity be published even if it leads to their identification – where the publication of the identity of the practitioner in disciplinary proceedings is in the public interest – whether the discretion to make an order for non-publication ought to be exercised

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

AA v BB [2013] VSC 120; 296 ALR 353

CLW v Health Ombudsman [2023] QCAT 97

Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545

Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304

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

Ha v Nursing and Midwifery Board of Australia [2021] QCAT 91

Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135

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

LSC v XBV [2018] QCAT 332

Medical Board of Australia v TXA (No 1) [2023] QCAT 28

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151

Pearse v Medical Board of Australia [2013] QCAT 392

Queensland College of Teachers v SEF [2017] QCAT 55

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 is the interlocutory application for?

  1. [1]
    In this referral, the applicant Psychology Board of Australia (‘Board’) filed an application for miscellaneous matters contemporaneously with the referral seeking an order pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), for the non-publication of information.  The terms of the order sought are that publication of:
  1. the contents of a document or other thing filed in or produced to the Tribunal;
  1. evidence given before the Tribunal;
  1. any order made or reasons given by the Tribunal; and
  1. any other information;

is prohibited to the extent that it could identify or lead to the identification of any patients of [the practitioner] or witnesses the subject of or giving evidence about the conduct the subject of the referral (Protected Individuals).[1]

  1. [2]
    The Board included the practitioner in the non-publication order sought, “if the Tribunal considers necessary”,[2] but later withdrew this inclusion.[3] It opposes an order being made in favour of the practitioner.[4]
  2. [3]
    The respondent practitioner consents to the non-publication order being made as sought by the Board, but also seeks that any non-publication order made by the Tribunal  extend to information that could identify or lead to the identification of himself.[5]

What is the underlying proceeding about?

  1. [4]
    On 18 March 2024, the Board referred disciplinary proceedings to the Tribunal pursuant to s 193B of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).  The practitioner is a registered psychologist, holding registration with the Board. 
  2. [5]
    The referral[6] alleges four grounds for a finding of either professional misconduct or unprofessional conduct:
    1. ground one alleges that in or around 2019 and 2020, the practitioner:
      1. made inappropriate and/or sexualised comments to five of his female colleagues; and
      2. on two occasions, made inappropriate and non-consensual physical contact with one of those female  colleagues;
    2. ground two alleges that in or around 2020, the practitioner breached client confidentiality by disclosing client information to clinical and non-clinical staff outside of clinical case reviews;
    3. ground three alleges that between in or around March to June 2020, the practitioner failed to ensure continuity of care for a 14 year old patient, Patient B; and
    4. ground four alleges that between in or around September and October 2020, the practitioner failed to maintain adequate clinical records to the standard reasonably expected of a psychologist of an equivalent level of training and experience so as to facilitate effective continuity of care, in relation to Patient W.
  3. [6]
    The referral alleges that the impugned conduct occurred whilst the practitioner was employed at a psychological service provider in Mackay.

What are the issues to be determined in this application?

  1. [7]
    There are two  issues in this application. Whilst both parties consent to the orders sought, the first is whether, having regard to s 66(2) of the QCAT Act, the Tribunal ought to exercise the discretion in s 66(1) of the QCAT Act to make an order for the non-publication of information and documents that could identify or lead to the identification of:
    1. patients of the practitioner; and
    2. witnesses the subject of or giving evidence about the conduct the subject of the referral (some of whom are colleagues or former colleagues of the practitioner).
  2. [8]
    The second, which is contested between the parties, is whether the practitioner should have the benefit of an order.

What is the law in relation to this application?

  1. [9]
    Section 66(1) of the QCAT Act provides:

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.  the contents of a document or other thing produced to the tribunal;
  1.  evidence given before the tribunal;
  1.  information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  1. [10]
    Section 66(2) of the QCAT Act provides that the Tribunal may only make such an order if the Tribunal considers the order is necessary for the following reasons:
  1.  to avoid interfering with the proper administration of justice; or
  1.  to avoid endangering the physical or mental health or safety of a person; or
  1.  to avoid offending public decency or morality; or
  1.  to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  1.  for any other reason in the interests of justice.
  1. [11]
    In LSC v XBV,[7] Judicial Member the Hon Peter Lyons KC held that s 66 of the QCAT Act confers on 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.[8]

  1. [12]
    Notwithstanding this broad power, the exercise of the discretion is informed by the paramount principle of open justice.[9]  Further, in considering whether a non-publication order is necessary, it has been held that:
    1. mere loss of privacy of a witness does not mean that an order is necessary;[10]
    2. a mere belief that a non-publication order is necessary is insufficient;[11] and
    3. there must be a “real and substantial” connection between the publication of the material and the relevant adverse consequence or detrimental impact on the interests of justice.[12]
  2. [13]
    It was also held in Health Care Complaints Commission v BXD (No 2)[13] that:

Disciplinary proceedings … have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence.[14]

  1. [14]
    The party seeking the non-publication order must satisfy the Tribunal that the discretion in s 66 of the QCAT Act ought to be exercised.[15]

What are each party’s arguments?

The Board’s submissions

  1. [15]
    The Board submits the non-publication order sought for the Protected Individuals is necessary because, in summary:[16]
    1. the documents and evidence before the Tribunal contain sensitive and confidential information, including sensitive medical information about the Protected Individuals;
    2. the Protected Individuals’ identities are properly regarded as either:
      1. confidential information; or
      2. information whose publication would be contrary to the public interest;
    3. the publication of the Protected Individuals’ identities has the potential to undermine the Board’s capacity to perform its statutory functions and is contrary to the public interest;
    4. it is otherwise in the interests of justice for the orders to be made as sought by the Board, having regard to the importance of the Board’s statutory functions; and
    5. an order pursuant to s 66 of the QCAT Act will not interfere with the principle of open justice as the Protected Individuals can be de-identified in any reasons for decision.

The practitioner’s submissions

  1. [16]
    The practitioner consents to the orders sought for the Protected Individuals.[17] He submits that the non-publication order sought should include him, at least on an interim basis, because,  in summary:
    1. the referral alleges, inter alia, conduct against the practitioner’s colleagues, some of whom are particularised as witnesses;[18] and
    2. it is incompatible with seeking the protection of the Protected Individuals through a non-publication order not to extend the non-publication to the respondent.[19]
  2. [17]
    The practitioner further submits that:

Mackay is a small rural town where people, especially within the health profession, are more known to each other.  The publication of the respondent’s identify [sic] is, therefore, likely to lead to the identification of the witnesses referred to in the [referral], as it is likely that people in Mackay, particularly people working in the medical or psychology industry, would have knowledge of the respondent, the [clinic], and the identity of the various witnesses that worked at [the clinic] at the time of the conduct subject of the referral.[20]

The Board’s submissions in reply

  1. [18]
    The Board opposes the extension of the non-publication order to the practitioner, because, in summary, such an extension of the order:
    1. would be contrary to open justice and the public interest and there is a far stronger public interest in the practitioner being identified;[21]
    2. is not necessary, as there is not a ‘real and substantial’ risk the publication of the practitioner’s identity would lead to the identification of the Protected Individuals, since:[22]
      1. the practitioner’s identity could not lead to the identification of patients;[23]
      2. the risk that the practitioner’s identity may lead to the identification of witnesses who were colleagues of the practitioner is immaterial, because:
        1. Mackay is not a small town and, in any case, health care and social assistance is the region’s largest employment sector;[24]
        2. there was a large staff turnover at the psychological service provider during the relevant period;[25] and
        3. any possible identification of the witnesses “would be no more than an unconfirmed assumption or inference”;[26] and
    3. balancing the above factors, not extending the order would not be incompatible or inconsistent with the orders sought by the Board.[27]

Should a non-publication order be made?

Patients

  1. [19]
    The parties submit, and I accept, that the publication of information that could identify or lead to the identification of patients of the practitioner ought to be prohibited.  Such orders are commonly made in these proceedings and are uncontroversial.[28]

Witnesses

  1. [20]
    The parties also submit that the publication of information that could identify or lead to the identification of witnesses in the proceedings ought to be prohibited. 
  2. [21]
    In Ha, the Nursing and Midwifery Board sought a non-publication order over information that could identify or lead to the identification of, inter alia:
    1. the notifier; and
    2. any of the named employees of the hospital and health service and any other workers and contractors who work at the facility where the practitioner was employed.[29]
  3. [22]
    In the underlying proceeding in that case, the practitioner sought review of immediate registration action imposed by the Nursing and Midwifery Board for a serious risk identified by deficiencies in the practitioner’s performance as a registered nurse.  Allen KC DCJ, the then-Deputy President of this Tribunal said:

as a practical consideration … 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.[30]

  1. [23]
    In this case, the practitioner’s alleged conduct relates to, inter alia, inappropriate and/or sexualised comments and inappropriate physical contact with the practitioner’s colleagues.  I am satisfied this case is substantially distinguishable from Ha, in that it is likely there would be interest surrounding the witnesses’ identities.

I am not satisfied that the identity of a witness who is a colleague or former colleague of the practitioner is confidential information, per se, in the context of this case. However, I am satisfied that there are relevant public interest considerations. 

  1. [24]
    This is because, having regard to:
    1. the statutory functions of the Board;
    2. the primary purposes of the Board’s functions being the protection of the public and the maintenance of public confidence in the safety of services provided by registered health practitioners;[31]
    3. that these functions could not be carried out without the willing assistance of service users and other health practitioners; and
    4. that the nature of the allegations in this matter, involving the practitioner’s colleagues, makes publication of the proceeding more likely than in Ha,

I am satisfied that there is a substantial risk that if the identities of the witnesses were published, other persons who may be potential witnesses in this or other matters could be dissuaded from engaging with and assisting the Board or other national boards in carrying out its statutory functions.

  1. [25]
    It is therefore necessary and in the public interest to grant the non-publication order over the identities of the witnesses.[32]  I accept the Board’s submission that the witnesses may be de-identified by some means, and this will not unduly interfere with the paramount principle of open justice.

The practitioner

  1. [26]
    The practitioner relies upon Medical Board of Australia v TXA (No 1)[33] in support of his proposition that the non-publication order ought to extend to him.  In that case, I granted a non-publication order over the identity of the respondent since his identity was likely to lead to the identification of the patient and notifier.[34]
  2. [27]
    Unlike in the present case, the Board in TXA did not address that issue in its submissions.[35]  I also said in TXA that I made the non-publication order “in the very particular circumstances of [that] application”.[36]
  3. [28]
    The particular circumstances to which I referred were, in summary:
    1. there was a non-publication order made in the prior review proceeding, which related to the same factual circumstances as the referral;[37]
    2. in the review proceeding, the non-publication order had been made because there was a “very real risk that members of the public … would become informed of the patient’s medical issues” if the practitioner was identified, because of:[38]
      1. the therapeutic relationship between the practitioner and the patient; and
      2. the social relationships between the practitioner and his wife and the patient and the patient’s wife;
    3. there was evidence before the Tribunal that this had not changed; and
    4. the Tribunal should not now make an order which will tend to undermine its earlier order in the review proceedings.[39]
  4. [29]
    The circumstances in this case are different from those in TXA in a number of ways.
  5. [30]
    Firstly, there is no pre-existing non-publication order in an earlier proceeding which may be at risk of being undermined.
  6. [31]
    Secondly, the allegations do not involve inappropriate comments towards patients, which reduces the risk that patients’ identity and, thereby their sensitive information in the form of medical issues will become known to others. 
  7. [32]
    Thirdly, as I have already set out above, the Tribunal has evidence that Mackay is not a small town, there are thousands of jobs in the region’s health care and social assistance sector and there was a large staff turnover at the particular psychological service provider during the relevant period.[40] In those circumstances I am not satisfied that the publication of the respondent’s name is likely to lead to identifying the witnesses who were his colleagues.
  8. [33]
    For these reasons I find that it is not necessary for the practitioner’s identity to be protected and I refuse the application to do so. 

Orders

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
    1. the contents of a document or other thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of:

  1. any patients of the respondent the subject of or giving evidence in the proceedings; and
  2. any witnesses giving evidence in the proceedings;

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 or review arising from these proceedings, and for the applicant to provide information to the Office of the Health Ombudsman in the exercise of the applicant’s functions under the Health Practitioner Regulation National Law (Queensland).

  1. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
    1. a judicial member;
    2. a tribunal member;
    3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
    4. any assessor appointed to assist the Tribunal;
    5. the staff of the Tribunal registry;
    6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceedings.

Footnotes

[1]  Form 40 — Application for miscellaneous matters filed 18 March 2024 (‘AMM’), Annexure B (defined term in original).

[2]  AMM, Annexure A (‘Applicant’s Submissions’), [1(e)].

[3]  Email from the solicitors for the Board to the Tribunal dated 16 April 2024.

[4]  Applicant’s Submissions in reply filed 15 May 2024 (‘Reply Submissions’), [7]. 

[5]  Submissions of the Respondent filed 17 April 2024 (‘Respondent’s Submissions’), [2], [5].

[6]  Form 22 — Application or referral — disciplinary proceeding filed 18 March 2024 (‘referral’).

[7]  [2018] QCAT 332.

[8]  At [26].

[9] Health Ombudsman v Shermer (No 2) [2019] QCAT 54, [6] citing J v L&A Services Pty Ltd (No. 2) [1995] 2 Qd R 10 and John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131.

[10]  Ibid.

[11] AA v BB [2013] VSC 120; 296 ALR 353, [181].

[12] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151, [88].

[13] Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135; see also, Pearse v Medical Board of Australia [2013] QCAT 392 (‘Pearse’), [68].

[14]  Ibid, [25].

[15] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [9].

[16]  Applicant’s Submissions, [4].

[17]  Respondent’s Submissions, [3]. 

[18]  Ibid, [5].

[19]  Ibid, [6].

[20]  Ibid, [8].

[21]  Reply Submissions, [10]–[12], [29].

[22]  Ibid, [13]–[16], [23].

[23]  Ibid, [20].

[24]  Ibid, [21(a)].

[25]  Ibid, [22].

[26]  Ibid.

[27]  Ibid, [30]–[34].

[28] Ha v Nursing and Midwifery Board of Australia [2021] QCAT 91 (‘Ha’), [6].

[29]  Ibid, [4].

[30] Ha (n 28), [20].

[31]  National Law s 3A.

[32]  See also, in the context of other disciplinary proceedings, Queensland College of Teachers v SEF [2017] QCAT 55 and Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304.

[33]  [2023] QCAT 28 (‘TXA’).

[34]  Ibid, [24].

[35]  Ibid, [22].

[36]  Ibid, [24].

[37]  See TXA v Medical Board of Australia [2021] QCAT 279.

[38] TXA (n 33), [3].

[39]  Ibid, [23].

[40]  Paragraphs 6(a), 8 and 9 of the affidavit of Benita Noeline Sorenson sworn 15 May 2024

Close

Editorial Notes

  • Published Case Name:

    Psychology Board of Australia v Watson

  • Shortened Case Name:

    Psychology Board of Australia v Watson

  • MNC:

    [2024] QCAT 228

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    13 Jun 2024

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 120
2 citations
Jump To
Cite 1 - [2013] VSC 120
Cite 2 - [2013] VSC 120
CLW v Health Ombudsman [2023] QCAT 97
1 citation
Jump To
Cite 1 - [2023] QCAT 97
Craig v Medical Board of South Australia [2001] SASC 169
1 citation
Jump To
Cite 1 - [2001] SASC 169
Crime and Corruption Commission v Acting Deputy Commissioner Wright (No. 2) [2021] QCAT 304
2 citations
Jump To
Cite 1 - [2021] QCAT 304
Cite 2 - [2021] QCAT 304
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
Ha v Nursing and Midwifery Board of Australia [2021] QCAT 91
2 citations
Jump To
Cite 1 - [2021] QCAT 91
Cite 2 - [2021] QCAT 91
Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135
2 citations
Jump To
Cite 1 - [2015] NSWCATOD 135
Cite 2 - [2015] NSWCATOD 135
Health Ombudsman v Shemer (No 2) [2019] QCAT 54
2 citations
Jump To
Cite 1 - [2019] QCAT 54
Cite 2 - [2019] QCAT 54
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
1 citation
Jump To
Cite 1 - [1995] 2 Qd R 10
John Fairfax Group Pty Ltd v Local Court (N.S.W.) (1991) 26 NSWLR 131
1 citation
Jump To
Cite 1 - (1991) 26 NSWLR 131
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 TXA (No 1) [2023] QCAT 28
2 citations
Jump To
Cite 1 - [2023] QCAT 28
Cite 2 - [2023] QCAT 28
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
2 citations
Jump To
Cite 1 - [2011] WASCA 151
Cite 2 - [2011] WASCA 151
Pearse v Medical Board of Australia [2013] QCAT 392
2 citations
Jump To
Cite 1 - [2013] QCAT 392
Cite 2 - [2013] QCAT 392
Queensland College of Teachers v SEF [2017] QCAT 55
2 citations
Jump To
Cite 1 - [2017] QCAT 55
Cite 2 - [2017] QCAT 55
TXA v Medical Board of Australia [2021] QCAT 279
1 citation
Jump To
Cite 1 - [2021] QCAT 279

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Mukhlif [2024] QCAT 3352 citations
1

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