Maish v State of Queensland (Queensland Health)
[2023] QIRC 235
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- Unreported Judgment
- Maish v State of Queensland (Queensland Health)[2023] QIRC 235
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Maish v State of Queensland (Queensland Health)[2023] QIRC 235
Maish v State of Queensland (Queensland Health)[2023] QIRC 235
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Maish v State of Queensland (Queensland Health) [2023] QIRC 235 |
PARTIES: | Maish, Megan (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/112 |
PROCEEDING: | Public Sector Appeal – Application in existing proceedings |
DELIVERED ON: | 18 August 2023 |
MEMBER: | Knight IC |
HEARD AT: | Brisbane |
ORDERS: | The application is dismissed. |
CATCHWORDS: | EVIDENCE – MISCELLANEOUS MATTERS – SUPPRESSION OF EVIDENCE – application in existing proceedings by respondent to supress video footage – principle of open justice – consideration of circumstances where the Commission may exercise discretion to suppress evidence filed – application dismissed |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 ss 451, 530 |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 J. v L. & A. Services Pty Ltd (No 2) [1993] QCA 12 |
APPEARANCES: | Ms M Maish, the appellant. Ms L Bugeja for the State of Queensland (Queensland Health) |
Reasons for Decision
- [1]Ms Megan Maish is employed by the State of Queensland as a Clinical Nurse, Adult Acute Inpatient Services, Addiction and Mental Health Services, based in the Princess Alexandra Hospital through Metro South Health ('the Service').
- [2]On 8 June 2023, Ms Maish lodged an appeal in relation to a decision made by Ms Linda Hipper, Executive Director Metro South Hospital Addiction and Mental Health Services. Ms Hipper's decision substantiated two allegations against Ms Maish and found she was liable to be disciplined.
- [3]One of the allegations concerned Ms Maish's conduct towards an inpatient, where it was alleged that she authorised the physical restraint of a patient, while she administered anti-psychotic medication, despite it not being clinically indicated. Ms Maish's interaction with the patient was captured on video.
- [4]Both Ms Maish, with the assistance of the Queensland Nurses and Midwives Union (QNMU) and the Service participated in several conferences at the Commission with a view to resolving the appeal, however the parties were unable to reach an agreement.
- [5]I subsequently issued orders for Ms Maish and the Service to file and serve written submissions in respect of the appeal.
- [6]By application in existing proceedings filed on 10 August 2023, the Service sought an order that the video footage capturing the interaction between Ms Maish and a patient, filed by the Service on 9 August 2023 be withheld from search and release by anyone other than the parties.
- [7]The Service relies on the following grounds in its application:
The provided USB contains identifiable patient information including patient names, the names of patient family members, clear images of the face of the patient, and faces of other patients of the Princess Alexandra Hospital. The private information of the identified individuals has limited relevance to the proceedings, and the MSHHS says that the absolute suppression of the documents and protection from search and release will not undermine the principles of open justice. For completeness, the Health Service is not seeking the suppression of any other documents tendered within this proceeding.[1]
- [8]Today, I heard the Service's application in existing proceedings for the video footage to be withheld from search and copy, by anyone other than the parties.
Relevant Principles
- [9]The Commission has power under s 451 of the Industrial Relations Act 2016 (Qld) ('IR Act') to make orders it considers appropriate:
451 General powers
- (1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- (2)Without limiting subsection (1), the commission in proceedings may—
- (a)give directions about the hearing of a matter; or
- (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
- (c)make an order it considers appropriate...
- [10]Section 580(5) of the IR Act provides:
580 Confidential material tendered in evidence
...
- (5)The court, commission or registrar may direct—
- (a)a report, or part of a report, of proceedings in an industrial cause not be published; or
- (b)evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.
- [11]Section 580(6) of the IR Act may make such a direction absolutely or on conditions.
- [12]Section 580(7) of the IR Act provides that the direction may be given if the Commission considers:
- (a)disclosure of the matter would not be in the public interest; or
- (b)persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.
Submissions
- [13]While the Service acknowledges the discretion to withhold documents from search and release should be exercised narrowly and in exceptional circumstances,[2] it maintains the basis for the application is to protect the identity of patients and staff (other than the Applicant) from having their personal details disclosed.
- [14]The Service argues the footage contains identifiable patient information including patient names, the names of patient family members, clear images of the face of the patient, and faces of other patients within a mental health ward located at the Princess Alexandra Hospital.
- [15]It is contended that if footage were available for search and copy, the release of this information could have detrimental impact on the people identified within the footage, notwithstanding the private information of the identified individuals has limited relevance to the proceedings.
- [16]The Service argues that an order prohibiting the search and release of the footage will not prevent the matter being dealt with in a fair, open and transparent way, when considering the principles of open justice.
- [17]In support of its position, the Service observes that it is not seeking the suppression of the substantive matter, or the names of the parties, but instead is requesting the QIRC to restrict the ability of anyone, other than the parties, to search and copy the footage.
- [18]Ms Maish, the Appellant in the substantive proceedings, submitted:
- (a)In circumstances where the Service is relying on the footage to substantiate an allegation against her, the footage should be publicly available;
- (b)The application to suppress the footage is unethical;
- (c)Rejects the concern for patient privacy as she does not believe there is sufficient information to warrant the application.
Consideration
- [19]In the matter of J v L & A Services Pty Ltd (No 2),[3] the Queensland Court of Appeal outlined the principles governing the exercise of the discretion to make suppression orders, namely:
- 1.Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
- 2.The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
- 3.The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
- 4.No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- 5.Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
- (a)Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
- (b)A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
- (c)An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
...
information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
- [20]Similarly in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[4] Vice-President O'Connor, when considering an application for workers to be de-identified, observed:
- [40]The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
- [41]The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
- [42]However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
- [43]The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power…
- [44]It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
- [21]In the present matter, the Service is asking the Commission to exercise its discretion in favour of an Order preventing the release and copy of video evidence which, although relied on for the purposes of substantiating allegations against Ms Maish, could potentially result in the identification of inpatients of a mental health facility, in circumstances where it is submitted their identities have limited, if any, relevance to the proceedings, but where the release of this information could have a detrimental impact on the patients.
- [22]Ms Maish is opposed to the Order for the reasons set out earlier in this decision.
- [23]Although I have some sympathy for the Service’s submissions, the challenge with the application is that I am constrained by the established principles when exercising my discretion.
- [24]As touched on earlier in this decision, in J v L & A Services Pty Ltd (No 2),[5] the Queensland Court of Appeal concluded that information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage'. Moreover, that when it is the interests of a party or witness which is relied on as the basis for the proposed restraint, those considerations must be balanced against other factors, including the interests of the others involved in the proceeding and others who may be impacted.
- [25]I am not persuaded the reasons provided by the Service in support of the application fall within one of the established categories touched on above, such that the proposed restraint on access to video evidence could be accepted.
- [26]While I accept it is possible that public access or disclosure of the video evidence could result in some loss of privacy to a patient or employee where a member of the public sought access to the material, the potential loss of privacy does not, in my view, warrant such an order having regard to the principles set out above.
Conclusion
- [27]The issue in this application was whether I should exercise my discretion and make an order for video evidence tendered in PSA/2023/112 to be withheld from search and copy by anyone other than the Service or Ms Maish.
- [28]For the reasons I have given this is not a case where I have been persuaded it is in the public interest, or for some other reason I consider appropriate, to grant such an Order.
- [29]The application in existing proceedings to make an order for the video evidence to be withheld from search and copy is dismissed.
- [30]I order accordingly.
Orders
The application is dismissed.
I certify that the preceding [30] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Knight
M. L. KNIGHT, Industrial Commissioner: ………………………………
(Signature)
Dated: 18 August 2023