Health Ombudsman v TAQ[2024] QCAT 309

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   TAQ is a registered psychologist and brings an application for a further non-publication order in this matter.
2. [2]
   The application is brought pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that information produced to or filed in the Tribunal in the course of the underlying proceeding engages ss 66(2)(b) and (d) of the QCAT Act.^[1]
3. [3]
   The Office of the Health Ombudsman (OHO) does not oppose TAQ’s application and does not seek to be heard in respect of it.^[2]
4. [4]
   A non-publication order was made on an interim basis on 11 December 2023, prohibiting the publication of information that could identify or lead to the identification of any patients of TAQ.  TAQ now seeks that his identity also be protected by a non-publication order.
5. [5]
   The underlying proceeding concerns alleged serious failures by TAQ to maintain professional boundaries with three vulnerable patients, over a period of some six months, including entering into personal and sexual relationships with them and providing them with unprescribed drugs.
6. [6]
   The referral was filed on 30 November 2023.  In a letter to my associate dated 23 February 2024, TAQ’s solicitors advised:

[TAQ] does not intend to file a response in these proceedings or to participate in the proceedings in any shape or form, whether by adducing any evidence in relation to the allegations against him or appearing at any hearing to cross-examine witnesses or make submissions …^[3]

7. [7]
   The Tribunal will determine the referral on the papers, which is presently anticipated to occur on 17 September 2024.

What are the legal principles which apply to the application?

8. [8]
   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:

3. (a)
   the contents of a document or other thing produced to the tribunal;

3. (b)
   evidence given before the tribunal; [or]

3. (c)
   information that may enable a person who has appeared before the tribunal, or is affected by the proceeding, to be identified.

9. [9]
   Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it is satisfied it is necessary to do so for any of the reasons contained in that subsection.  In this case, the application is based on:

3. (b)
   to avoid endangering the physical or mental health or safety of a person; or

…

3. (d)
   to avoid the publication of confidential information or information whose publication would be contrary to the public interest.

10. [10]
    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.^[4]  Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice.^[5]  I also note s 31(3) of the Human Rights Act 2019 (Qld) (HR Act).
11. [11]
    The party seeking the non-publication order must satisfy the Tribunal it is necessary.^[6]

Does the evidence satisfy the Tribunal that a non-publication order is necessary?

12. [12]
    In the 23 February 2024 letter, TAQ’s solicitors advised, relevantly:

[TAQ] suffers serious mental health conditions which have been exacerbated by the investigation preceding the referral and these proceedings.

…

… [TAQ] intends to apply to the Tribunal for a non-publication order as to matters that might identify him, on the grounds that publication of [TAQ]’s identity would endanger his mental health.

13. [13]
    TAQ applied for the order on 19 July 2024 and has filed submissions and a document which is headed as a medical certificate but is a document more akin to a report from his treating general practitioner in support of his application.
14. [14]
    The material indicates that, in summary, TAQ:

    1. suffers from:
       3. (i)
          moderate to severe mixed anxiety and depression;
       3. (ii)
          autism spectrum disorder (ASD);
       3. (iii)
          attention-deficit/hyperactivity disorder (ADHD); and
       3. (iv)
          an adjustment disorder;
    2. attempted suicide shortly after reading the initial statements related to the complaints made against him. He was interrupted. He was admitted to the adult mental health unit in hospital for more than two weeks and recently requested an increase in his antidepressant medication, reporting fears of difficulty coping with this matter;
    3. lives with significant disability due to ASD, which can cause him difficulty in processing his thoughts and emotions.  This can predispose him to self-destructive behaviour when emotionally dysregulated and increase the risk of suicide.^[7]
15. [15]
    TAQ’s general practitioner, who has treated him for some years and states he is compliant with medication regimes,  supports the making of a non-publication order, expressing the opinion that the publication of his identity in this matter may elevate his risk of attempting suicide.
16. [16]
    The interim non-publication order made earlier in these proceedings, in respect of the patients’ identities, was sought by the OHO on the basis that patient information is of a highly personal, sensitive and confidential nature and it is not in the public interest for such information to be published.^[8]  The order was made with the respondent’s consent.^[9]
17. [17]
    I am satisfied on the evidence before me that it is necessary to make a non-publication order prohibiting the publication of the respondent’s identity to avoid endangering his physical or mental health or safety.  The information about the respondent contained in the evidence is also properly regarded as confidential, in the same way in which the information relating to his patients is regarded as such, in that, it relates to his past and current health circumstances.
18. [18]
    I am satisfied that no relevant considerations arise under the HR Act as no human right is, relevantly, limited by my decision.
19. [19]
    To avoid doubt, as this will be a permanent order, I will also make the order in respect of the respondent’s patients and family members.

Orders

20. [20]
    Having regard to ss 66(2)(b) and (d) of the QCAT Act, I am satisfied that it is necessary to make a non-publication order in the following form:

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:

4. the respondent;
5. any family member of the respondent;
6. any patient of the respondent; or
7. any family member of any patient of the respondent;

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 Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2. 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 this proceeding or any appeal or review arising from these proceedings.