Health Ombudsman v Mukhlif[2024] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the interlocutory application for?

1. [1]
   In this referral, the applicant Director of Proceedings (Ombudsman) 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 initially sought, relevantly are that 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; and

4. any other information;

is prohibited to the extent that it could identify or lead to the identification of any person named in the material save for the respondent and save as is necessary for the parties to engage in the proceeding and for the OHO to provide information to AHPRA in the exercise of the applicant’s functions under the HO Act.^[1]

2. [2]
   Submissions filed in support of that application were very general.^[2]
3. [3]
   The practitioner did not oppose the application.^[3]
4. [4]
   Given the breadth of the order sought initially, the Tribunal sought further submissions from the Ombudsman. The Ombudsman then narrowed the scope of the application to seek a non-publication order in respect of the complainants identified in the referral and other employees of the hospital where the respondent was employed who had complained about the respondent’s conduct in the workplace.^[4]

What is the underlying proceeding about?

5. [5]
   On 26 June 2024, the Ombudsman referred disciplinary proceedings to the Tribunal pursuant to s 103(1)(a) and 104 of the Health Ombudsman Act 2013 (HO Act).
6. [6]
   The practitioner is a registered medical practitioner who was employed at the time of the allegations as a Principal House Officer on a temporary contract at a regional hospital.
7. [7]
   The referral^[5] alleges three grounds against the respondent. In grounds 1 and 2, the allegation is for a finding of either professional misconduct or unprofessional conduct. In ground 3 the allegation is for a finding of unprofessional conduct:

   1. ground one alleges that over several months in late 2022 and early 2023 the practitioner engaged in behaviour which included sexualised and/or inappropriate physical contact or gestures and/or communications with a female worker at the hospital where the respondent worked. It is not alleged in the particulars to the referral that any of this alleged conduct was witnessed. The particular of what, on its face appears to be the most significant allegation, specifically alleges that he and the complainant were alone when the alleged conduct occurred;
   2. ground two alleges that over several months in late 2022 and early 2023 the practitioner engaged in behaviour which included sexualised and/or inappropriate physical contact and/or communications with another female worker at the hospital where the respondent worked. Again it is not alleged in the particulars to the referral that any of this alleged conduct was witnessed other than one occasion which occurred outside work where the complainant’s child was also present. Again, the particular of what, on its face appears to be the most significant allegation, specifically is that he and the complainant were alone when the alleged conduct occurred;
   3. ground three alleges the respondent contravened s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) when he failed to give written notice to the Board when his right to practise at the hospital was terminated on 17 February 2023 either within 7 days or at all.
8. [8]
   In his written response to the referral the practitioner:

   1. denies the conduct alleged in ground one occurred;
   2. admits some inappropriate contact with the complainant the subject of ground two, but which is significantly more limited in scope than that alleged against him. Apart from one matter he denies the conduct was sexualised or inappropriate. He accepts that the conduct he admits occurred in ground 2 failed to meet the standard of conduct set out in certain clauses of the applicable Code of Conduct; and
   3. admits he failed to give written notice but says he was unaware of the requirement and it was an inadvertent breach.
9. [9]
   In a section of the referral under the title “Respondent’s antecedents” the Ombudsman alleges that on various dates after his contract at the hospital commenced, complaints were made to staff at the hospital about his alleged inappropriate behaviour to female staff and patients and that hospital staff gave the respondent coaching, mentoring and written communication about his behaviour. The respondent admits being spoken to on a few occasions about his interpersonal manner and that he spoke too loudly, was too friendly and was in others’ personal space, that one patient alleged he shouted at him and that he was spoken to on one occasion in relation to interpersonal communication with another staff member. He denies receiving coaching or mentoring, written communication or any written complaints and says that until disclosure in the referral he was only aware of the communications he has admitted.

What are the issues to be determined in this application?

10. [10]
    The issue on this application 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. the complainants the subject of each of grounds one and two; and
    2. other employees of the hospital where the respondent was employed who had complained about the respondent’s conduct in the workplace.

What is the law in relation to this application?

11. [11]
    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;

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.

12. [12]
    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

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.

13. [13]
    In LSC v XBV,^[6] Judicial Member the Hon Peter Lyons KC held that s 66 of the QCAT Act confers on the Tribunal (at [26]):

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.

14. [14]
    Notwithstanding this broad power, the exercise of the discretion is informed by the paramount principle of open justice.^[7]  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;^[8]
    2. a mere belief that a non-publication order is necessary is insufficient;^[9] 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.^[10]
15. [15]
    It was also held in Health Care Complaints Commission v BXD (No 2)^[11] at [25] 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.

16. [16]
    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.^[12]

What does the Ombudsman submit?

17. [17]
    The Ombudsman submits the non-publication order sought necessary because, in summary:^[13]

    1. publishing information which may identify the complainants named in the referral or employees who made complaints about the respondent’s conduct would be contrary to the public interest, thereby attracting s 66(2)(d) of the QCAT Act;
    2. third parties to proceedings such as complainants, potential witnesses and aggrieved third parties may be protected by non-publication orders;^[14]
    3. the respondent’s alleged conduct relates to inappropriate and/or sexualised comments and inappropriate physical contact with his colleagues — some analogy is to be drawn with another decision of the Tribunal in this jurisdiction;^[15]
    4. there are allegations of numerous complaints made by multiple staff during the respondent’s employment at the hospital. Most complaints were made by female staff who were professionally junior to the respondent;
    5. the Ombudsman intends to file material which includes human resources records from the hospital which contain file notes and communications between staff members and complainants, in addition to the complainants the subject of allegations one and two in the referral, about those complaints; and
    6. in these circumstances, if the identities of persons who made internal complaints about the respondent’s behaviour in the workplace could be published, it would undermine the proper statutory functioning of the applicant by disincentivising others from making appropriate complaints about the conduct of health practitioners in the workplace.

Should a non-publication order be made?

18. [18]
    The Tribunal accepts that, in an appropriate case, third parties may be the subject of a non-publication order. Information as to the health or treatment of patients is an example of one such category of third party. The rationale for such an order for that category of person is that such information is properly to be regarded as confidential information or information whose publication would be contrary to the public interest, within the terms of s 66(2)(d) of the QCAT Act and in those circumstances the discretion arises, with such orders being commonly if not invariably made.^[16]
19. [19]
    The Tribunal has observed that whether the identity of notifiers and other employees or contractors of a health service should be subject to non-publication orders must be considered in the circumstances of each particular case.^[17]
20. [20]
    In Ha, which was an application for review, not a disciplinary referral, the respondent Board sought a non-publication order for the notifier and any of the named employees and other works and contractors who worked at the facility. The underlying issue related to the applicant nurse’s performance, where the employer was said to have identified serious deficiencies in her performance as a registered nurse across multiple practice areas. Because it was a review matter, the Tribunal was required to produce the correct and preferable decision, having heard and decided the review by way of a fresh hearing on the merits.^[18] The decision maker’s obligation was to provide the Tribunal, inter alia, with any document or thing in their possession or control which may be relevant to the review of the decision.^[19]  As such, documents such as performance assessments of the applicant by named performance assessors were likely to be contained in the material before the Tribunal and information such as the identity of  employees or contractors would be in them. Notwithstanding this, the Tribunal refused to make such an order, because it was not satisfied that any of the s 66(2) preconditions for making an order were satisfied.
21. [21]
    In Ha, the then Deputy President made observations about the Tribunal’s practice, when it produces its published final reasons, to not name individuals who might be referred to in the material before it, unless it is necessary to do so.^[20] Those practices continue.
22. [22]
    In Watson, where I granted a non-publication order for witnesses, I understood from the material before the Tribunal that:

    1. the witnesses, who were colleagues or former colleagues of the respondent, were primarily those five persons in the position of the named complainants in grounds 1 and 2 of this referral, that is, persons said to have been subjected to inappropriate and/or sexualised comments and inappropriate physical conduct; and
    2. in so far as the category of witnesses was wider:
       1. aspects of the allegations of inappropriate conduct included conduct that was alleged to have occurred in the public areas at the workplace, as did aspects of the allegations of breach of client confidentiality, the inference being that other witnesses were witnesses of fact who could give evidence about the specific allegations; or
       2. aspects of the other allegations related primarily to ensuring patient care, which would likely link back to issues concerning patient information.

The named complainants

23. [23]
    Where the allegations relating to the named complainants involve inappropriate and/or sexualised comments and inappropriate physical contact with the practitioner’s former colleagues I am satisfied that:

    1. there would likely be interest surrounding their identities; and
    2. there are relevant public interest considerations, akin to those I articulated at [24] of Watson;

which render it necessary and in the public interest to grant a non-publication order over their identities.  I will grant an interim order.

Other employees who have allegedly complained about the respondent

24. [24]
    However, I am not so satisfied in respect of the other, non-specific persons who made internal complaints.
25. [25]
    In the referral as it is presently cast:

    1. there is no ground of disciplinary action alleged against the practitioner involving conduct other than relating to the two nominated complainants;
    2. given that, it is not apparent how any of the material the Ombudsman submits it will file concerning internal records of file notes and communications between staff members and other complainants, in addition to the two named complainants in the referral, is relevant to any issue which the Tribunal will have to determine; and
    3. if the material is not relevant to allegation it should not be filed in the proceeding.
26. [26]
    The Tribunal refuses a non-publication order in respect of this category of person. In so ruling, I observe that if, as the proceeding progresses, a particular complaint may be established to be relevant, the question of whether a non-publication order should be made for that complainant could be revisited at an appropriate time. At that time, submissions or material can be more precisely put before the Tribunal to show why such a non-publication order should be made.

Orders

1. Until further or other order, 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 the complainants named in the referral 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).

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 these proceedings or any appeal or review arising from these proceedings.