CHINESE MEDICINE BOARD OF AUSTRALIA and KGR
[2015] WASAT 70
•23 JUNE 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: CHINESE MEDICINE BOARD OF AUSTRALIA and KGR [2015] WASAT 70
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
HEARD: 5 JUNE 2015
DELIVERED : 23 JUNE 2015
FILE NO/S: VR 17 of 2015
BETWEEN: CHINESE MEDICINE BOARD OF AUSTRALIA
Applicant
AND
KGR
Respondent
Catchwords:
Nonpublication order - Vocational regulation - Professional misconduct - Exercise of Tribunal's discretion under s 61 of State Administrative Tribunal Act 2004 (WA) - Consideration of adverse effect on mental health of practitioner's children - Limited period for nonpublication order
Legislation:
Health Practitioner Regulation National Law (WA) 2010, s 5
State Administrative Tribunal Act 2004 (WA), s 61(4), s 61(4)(d), s 62, s62(3)
Result:
Nonpublication order under s 62 of the State Administrative Tribunal Act 2004 (WA) issued for the period of the practitioner's suspension
Summary of Tribunal's decision:
Consent orders were made between parties in a vocational disciplinary matter in which a health practitioner was found to have engaged in professional misconduct. The health practitioner was suspended from practice for a period of 18 months.
The practitioner then applied to the Tribunal for nonpublication orders under s 62 of the State Administrative Tribunal Act 2004 (WA) to suppress his name. The basis of his application was to avoid endangering the mental health of his children. An affidavit and medical reports were submitted in support of the practitioner's claim.
The Tribunal made a nonpublication order but only for the period of the practitioner's suspension of registration.
Category: B
Representation:
Counsel:
| Applicant | : | Ms E Caddy |
| Respondent | : | Mr JC Van der Walt |
Solicitors:
| Applicant | : | Australian Health Practitioner Regulation Agency |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In January 2015, disciplinary proceedings were commenced against a health practitioner under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
On 7 May 2015, the Tribunal made final orders in terms agreed between the parties (as set out in the proposed consent orders) and which are summarised below.
The practitioner admitted that he engaged in professional misconduct as defined in s 5 of the National Law in that, after 1 July 2012, he:
a)failed to maintain professional boundaries;
b)failed to act in the best interests of Client A;
c)failed to maintain adequate clinical records for Client A; and
d)breached the Code of Conduct for Registered Health Practitioners 2012.
The relevant Board ordered that:
a)the practitioner be reprimanded in relation to the professional misconduct;
b)the practitioner's registration be suspended for a period of eighteen months, commencing 1 June 2015; and
c)the practitioner pay the Board's costs and disbursements of the proceedings of $4,000.
Application for nonpublication orders
On 5 May 2015, the practitioner filed an application seeking an order from the Tribunal that it issue a nonpublication order under s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to supress certain information.
The application was supported by an affidavit sworn by the practitioner. The application included reports from a medical practitioner and a psychologist.
The legislation
Section 62(3) of the SAT Act relevantly provides that:
On the application of a party or on its own initiative the Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
Section 61(4) of the SAT Act sets out the circumstances referred to in s 62(3) of the SAT Act, which must be satisfied before the Tribunal makes a nonpublication order. Section 61(4) provides:
(a)to avoid endangering the national or international security of Western Australia or Australia; or
(b)to avoid damaging inter-governmental relations; or
(c)to avoid prejudicing the administration of justice; or
(d)to avoid endangering the physical or mental health or safety of any person; or
(e)to avoid offending public decency or morality; or
(f)to avoid endangering property; or
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
The relevant authority
The factors relevant to the exercise of the Tribunal's discretion were set out by the Court of Appeal in Medical Board of Western Australia v A Medical Practitioner [2011]WASCA151 at [86] [88]. They are:
(a)the Tribunal has been given an express power to prohibit publication of the matters specified in section 62 in the circumstances specified in section 61(4);
(b)there are material differences of some significance between 'open justice principles' applied in common law courts, and the rights and obligations conferred upon the Tribunal by the SAT Act;
(c)these differences reinforce the observation that when an issue arises as to whether a nonpublication order ought to be made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the SAT Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts;
(d)this does not mean that an expansive view should be taken of the powers conferred by the SAT Act to suppress publication of certain material - on the contrary, the language of the legislation compels the conclusion that it was intended that orders would only be made under those sections if necessary to avoid the particular consequences specified in section 61(4)(a) - (g) or in the interests of justice as per section 61(4)(h);
(e)the requirement that the order be 'necessary' reinforces that there must be 'a real and substantial connection between the ... publication of material ... and the relevant adverse consequence specified in the section';
(f)'A remote possibility of harm arising from an indirect or tenuous connection between a failure to make ... a suppression order ... will not satisfy the statutory requirement that the order be "necessary"'; and
(g)'we would construe the particular consequences specified in s 61(4)(a) - (g) as applying only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral'.
The basis of the application
The basis upon which this application was made is s 61(4)(d) of the SAT Act, 'to avoid endangering the physical or mental health or safety of any person', and specifically, the mental health of the children of the practitioner.
The children's cousins and grandfather were killed in the MH17 disaster, which occurred on 17 July 2014.
The practitioner argues that public interest (or perhaps more accurately, the media interest) in the MH17 disaster remains high and that, were the orders made by this Tribunal relating to the professional misconduct of the practitioner to be made public, this will have an adverse impact on his children's mental health, if the practitioner's conduct and his link to the MH17 disaster were to be reported in the media.
The ultimate question is whether there is a real and substantial connection to the risk of an exacerbation in the mental health suffered by the practitioner's children.
The exercise of the discretion under s 61 of the SAT Act requires a balancing exercise between the public interest in knowing the identity of a practitioner who has been involved in professional misconduct and, in this case, the interests of the person's children whose mental health may be endangered.
It is obviously in the public interest that when a practitioner has engaged in professional misconduct that the public be made aware of it. On the other hand, the Tribunal should seek to avoid the impact of on those around him, in particular his children, where the Tribunal is able to do so.
The Tribunal is satisfied that the evidence establishes that the disaster and the surrounding publicity had a significantly adverse effect on the children. The Tribunal also notes the difficulty of disentangling how much of the adverse effect was a consequence of the fact of the disaster and how much was a consequence of the publicity.
The application for an order was opposed by the Board on the basis that there is no real and substantial connection between the matters the subject of the orders being made public and the mental health of the children.
The Board properly notes that the reports annexed to the affidavit of the practitioner are lacking in clarity in establishing a direct connection between the publication of the orders and the effect on the children. While the reports might perhaps have been couched in more precise language, the Tribunal is satisfied that there is a risk of a real and substantial connection between the risk to the children's mental health in the event that a report of the orders and the fact that there is a relationship between the practitioner and those members of his family who died in MH17 were published.
The concern of the Board is that, if the practitioner's name is not published, then the practitioner would be able to provide nonregulated services to clients. It argues that there is a public interest in those clients being fully informed about the conduct of the practitioner in relation to conduct that falls within the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) in assessing whether to utilise his services in conduct falling outside the ambit of the National Law.
The powers under the SAT Act are to be exercised for the purposes of the Act. It is the Tribunal's view that it would be inappropriate to refuse the application on the basis that the practitioner might engage in conduct which is outside the ambit of the National Law. The Tribunal is required to consider the suppression order in relation to the conduct prohibited under the National Law and not to the practitioner's conduct more generally.
The Tribunal is not satisfied that there should be a permanent nonpublication order.
In balancing the public interest, the Tribunal has come to the conclusion that the nonpublication order should be for a limited period of 16 months. During that period, the risk to the public of the practitioner's conduct is removed. Further, during that time the practitioner's children will have the opportunity for more psychological counselling, and in time, the impact of the death of the relatives on the children should, hopefully, be reduced. If there is evidence that suggests that the impact has not been reduced then it will be open to the practitioner to make a new application for a further suppression order.
However, it is important to note that once the practitioner proposes to reenter practice, then, given the seriousness of his professional misconduct, it would require very cogent evidence of an adverse impact on the mental health of the children for this nonpublication order to be continued.
Orders
The Tribunal orders that:
1.Pursuant to s 61(4)(d) of the State Administrative Tribunal Act 2004 (WA):
a)the practitioner's name will not be published in the final orders and the reasons for decision made in
VR17 of 2015 will not be published for a period of 16 months, commencing from 1 June 2015, being the date of the suspension of the practitioner's registration; and
b)the practitioner may make application for a further period of nonpublication of the final orders at the end of the 16 month period, being 1 October 2016.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J C CURTHOYS, PRESIDENT
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