Ha v Nursing and Midwifery Board of Australia

In this matter, the applicant seeks a review of a decision of the respondent, the Nursing and Midwifery Board of Australia, to impose conditions on her registration as a registered nurse. The decision followed a notification by the applicant’s former employer, West Moreton Hospital and Health Service, regarding serious deficiencies in the applicant’s performance as a registered nurse. The respondent has applied for a non-publication order to prohibit the publication of the identities of patients, the notifier of the alleged conduct, and named employees of the hospital and other workers and contractors at the correctional centre.

The legal issues before the court were whether the Tribunal has the discretion to make the non-publication orders sought and, if so, whether the discretion should be exercised to make such orders. The court considered the circumstances under which a non-publication order may be made and the onus on the party seeking the order to satisfy the Tribunal of its necessity. The court also noted the principle of open justice, which aims to ensure court proceedings are fully exposed to public scrutiny.

The court found that the publication of patients' identities is properly regarded as confidential information or information whose publication would be contrary to the public interest. Therefore, a non-publication order in relation to the identity of any patients was not controversial and should be made. However, the court was not satisfied that the publication of the identity of the notifier or other employees and contractors engaged by the hospital would undermine the respondent’s capacity to perform its statutory functions or cause unintended harm. The court held that the preconditions for making a non-publication order were not satisfied in relation to these categories of persons. Consequently, the court declined to exercise its discretion to make such orders. The court also noted the invariable practice of the Tribunal when publishing reasons in matters, such as the ultimate decision in proceedings of this type, not to name individuals who might be referred to in material before the Tribunal unless it is considered necessary to do so.

The orders made by the court were that, until further order, publication of the contents of documents or things filed in or produced to the Tribunal, evidence given before the Tribunal, and any order made or reasons given by the Tribunal, is prohibited to the extent that it could identify or lead to the identification of any patients of the West Moreton Hospital and Health Service, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress this proceeding. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.