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  4. Medical Board of Australia v ZQX - [2024] QCAT 532

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Medical Board of Australia v ZQX[2024] QCAT 532

Medical Board of Australia v ZQX[2024] QCAT 532

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v ZQX [2024] QCAT 532

PARTIES:

Medical Board of Australia

(applicant)

v

ZQX

(respondent)

APPLICATION NO:

OCR 71 of 2024

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 December 2024

HEARING DATE:

On the papers

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. the respondent; and
  2. each of the persons the subject of the conduct alleged 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 or the Australian Health Practitioner Regulation Agency to exercise each of their statutory 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 o\r review arising from these proceedings; or
    7. the parties to these proceedings or any appeal or review arising from these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent brings an application for a non-publication order on the basis that to avoid the publication of confidential information or information whose publication would be contrary to public interest – where information presently before the Tribunal refers to the respondent having an impairment – where the Board consents to the making of a non-publication order – whether the Tribunal ought to exercise its discretion to grant a non-publication order

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent provided a draft order which does not contain exceptions to the order – whether exceptions ought to be made to allow for the efficient conduct of the proceedings and for other statutory reasons

Domestic and Family Violence Protection Act 2012 (Qld)

Health Practitioner Regulation National Law (Queensland)

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

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

LSC v XBV [2018] QCAT 332

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]
    ZQX is a registered medical practitioner and brings an application for a non-publication order (NPO) to be made on an interim basis.
  2. [2]
    Briefly, the referral in the underlying proceeding contains allegations by the Medical Board of Australia (Board) that the respondent engaged in professional misconduct and/or unprofessional conduct, in that he:
    1. engaged in inappropriate prescribing in respect of five patients and inappropriate clinical care in respect of one of those patients (Patient A);
    2. engaged in a boundary violation with Patient A involving an intimate and personal relationship over a period of approximately a year;
    3. kept inadequate records in respect of his treatment of Patient A;
    4. failed to properly use and store prescription pads;
    5. was convicted of one charge of contravention of a temporary protection order (TPO) pursuant to s 177(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) — the aggrieved named in the TPO was Patient A; and
    6. has an impairment, being two significant mental health conditions.
  3. [3]
    The NPO is sought over information that could identify or lead to the identification of:
    1. the patients involved in the conduct the subject of the referral; and
    2. the respondent.
  4. [4]
    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]
  5. [5]
    The Board consents to the NPO being made.[2]  Notwithstanding this consent, however, it is a matter for me to independently determine whether it is appropriate to exercise the discretion afforded to the Tribunal to order an NPO.

What are the legal principles which apply to the application?

  1. [6]
    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;
  1. evidence given before the tribunal; [or]
  1. information that may enable a person who has appeared before the tribunal, or is affected by the proceeding, to be identified.
  1. [7]
    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:
  1. to avoid endangering the physical or mental health or safety of a person; 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. [8]
    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.[3]  Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice.[4]  I also note s 31(3) of the Human Rights Act 2019 (Qld) (HR Act).
  2. [9]
    The party seeking the non-publication order must satisfy the Tribunal it is necessary.[5]

Is the NPO necessary?

  1. [10]
    Non-publication orders over information relating to the health and/or treatment of persons who are patients is regularly regarded in the Tribunal as confidential or otherwise information the publication of which is contrary to the public interest.  I am satisfied there is no reason to depart from this view in the circumstances of this referral where one of those named in the referral is expressly a patient of the respondent and the others, whilst alleged not to be patients, were, in the circumstances alleged, receiving treatment from the respondent for health conditions, details of which are contained in the referral. I will make an NPO in respect of the persons identified as affected by the proceedings in paragraph 1(c) of the respondent’s application.
  2. [11]
    In respect of the respondent, it has been submitted that the NPO is necessary on the basis of his impairment and the evidence relating to it, which would also properly be regarded as confidential information.  The respondent, by his response to the referral filed 9 August 2024, admitted that as at 11 December 2023 he suffered from an impairment, constituted by two significant mental health conditions.
  3. [12]
    A hearing for an impairment matter is not open to the public unless otherwise ordered.[6]
  4. [13]
    I am satisfied that the evidence of the respondent’s impairment and information relating to his treatment properly enlivens the discretion afforded to the Tribunal by s 66(2)(d) of the QCAT Act.  Given this, I am satisfied that it is necessary and appropriate to make an NPO in respect of the respondent’s identity.
  5. [14]
    I also note that the referral alleges the respondent breached a TPO under the DFVP Act.  It follows that the respondent was named in the TPO as the respondent.[7]  Section 159 of the DFVP Act provides as follows:
  1. A person must not publish—

…

  1. information that identifies, or is likely to lead to the identification of, a person as—
  1. a party to a proceeding under this Act …

(emphasis added)

  1. [15]
    Consequently, publication of the respondent’s identity in these proceedings is prohibited by statute and it is necessary to make an NPO over the respondent’s identity in the interests of justice.
  2. [16]
    Consistently with the practice in this Tribunal to enable the regulators to meet their statutory obligations, and for the Tribunal to manage the proceeding, it is appropriate for an exception to be made that the non-publication order does not apply insofar as is:
    1. provided for by the terms of the order;
    2. necessary for the parties to engage in the proceedings or any appeal or review arising from the proceedings;
    3. for Ahpra and the Board to exercise each of their respective functions under the National Law; and
    4. necessary to allow for the efficient conduct of the matter so that certain classes of persons involved in the matter in the Tribunal can continue to work on the file.
  3. [17]
    In view of the grant of the NPO, which prohibits inspection or copying of the file without an order of the Tribunal, it is not apparent why redacted material as well as original material would be filed. The respondent’s submissions are silent on this.  The Tribunal will not presently make orders about these matters. If the respondent presses this part of his application, he has leave to file submissions as to why such orders are appropriate by 17 January 2025, or such later time as the respondent’s representatives may indicate is appropriate, given the date of this order.

Footnotes

[1]  Submissions for interim non-publication order filed 6 December 2024 (NPO submissions), [4], [6] and [8].

[2]  Email from the parties to the associate to the Deputy President dated 6 December 2024.

[3] LSC v XBV [2018] QCAT 332, [26] (Judicial Member the Hon P Lyons KC).

[4]  See Health Ombudsman v Shemer (No 2) [2019] QCAT 54, [6] (Allen KC DCJ) and the authorities cited therein.

[5] Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [8]–[9].

[6]  S 98 HO Act

[7]  See DFVP Act s 177.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v ZQX

  • Shortened Case Name:

    Medical Board of Australia v ZQX

  • MNC:

    [2024] QCAT 532

  • Court:

    QCAT

  • Judge(s):

    Judge Dann

  • Date:

    20 Dec 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
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

Cases Citing

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v KMW [2025] QCAT 1052 citations
1

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