Health Care Complaints Commission v Dr A
[2012] NSWMT 10
•22 June 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr A [2012] NSWMT 10 Hearing dates: 30 April 2012; 1, 2 May 2012 Decision date: 22 June 2012 Before: Kavanagh J; Dr M Higgins; Dr M Diamond; Ms D Robinson Decision: There shall be a non publication order of the name and address of the registered health practitioner in accordance with the provision of the Health Practitioner Regulation National Law (NSW) No 86a, Schedule 5D, cl 7(1)(b)(iii) until 14 April 2015.
Catchwords: Application for a non-publication order made pursuant to Schedule 5D cl 7(1)(b)(iii) of the Health Practitioner Regulation National Law (NSW) No 86a - special and exceptional circumstances established - evidence satisfies safety of children at risk - orders in accordance with provisions of Schedule. Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Health Practitioner Regulation National Law (NSW) No 86aCases Cited: Bowen-James v Delegate of Director General Department of Health (unreported, 29 July 1991, Samuels JA)
HCCC v Dr Gow (Suppression order) [2008] NSWMT 3
HCCC v Simring (Suppression Order) [2010] NSWMT 6
John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR 465
Walton v Momot [1997] NSWCA 334
Welker v Rinehart [2012] NSWSC 45
Welker v Rinehart (No 6) [2012] NSWSC 160Category: Procedural and other rulings Parties: Health Care Complaints Commission (Complainant)
Dr A (Respondent)Representation: P Dwyer of counsel (Complainant)
M Lynch of counsel (Respondent)
Health Care Complaints Commission (Complainant)
Browns, Legal & Consulting (Respondent)
File Number(s): MT40022 of 2011
Judgment re non publication order of doctor's name
The doctor makes application that a non-publication order be made pursuant to Schedule 5D, cl 7(1)(b)(iii) of the Health Practitioner Regulation National Law (NSW) No 86a in respect to his identity until 14 April 2015 when his youngest children (twins) reach 18 years of age.
The doctor contends, in support of the application, the publicity surrounding this hearing could cause irreparable harm in his circumstance.
Under the Health Practitioner Regulation National Law (NSW) No 86a, Schedule 5D, s 7(1), Release of information [NSW], provides:
(1) The person presiding in proceedings before a Committee or Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person) -
(a) direct that the name of any witness is not to be disclosed in the proceedings; or
(b) direct that all or any of the following matters are not to be published-
(i) the name and address of any witness;
(ii) the name and address of a complainant;
(iii) the name and address of a registered health practitioner or student;
(iv) any specified evidence;
(v) the subject-matter of a complaint.
The test, therefore, is whether, as presiding in these proceedings as Deputy Chair, it is appropriate in the particular circumstances of the case to give a direction as to all or any of the following relevant matters: the name and address of the registered medical practitioner, be not published (Schedule 5D, cl 7) and as well direct non-publication of any specific evidence.
It is, therefore, a discretionary decision of the Deputy Chair of the Tribunal as to whether to direct there be a non-publication order and its form.
The doctor was convicted of five sexual assault charges committed some 33 years ago and long before the doctor has earned 23 years of unimpeachable conduct as a medical practitioner. His brother's wife reported his assaults on her husband which occurred when he, the doctor's brother, was 14 years old. Once the charges were laid, the doctor pleaded guilty to charges regarding his assault on not one but two brothers. There was widespread publicity in the isolated community in which the doctor worked as well throughout the regional North Coast area.
The doctor's young daughter was involuntarily admitted to the Child and Adolescent Inpatient Psychiatric Unit in 2010 "[following] a serious poly-pharmacy overdose with lethal intent". Her older sister has also suffered depression related to the circumstances surrounding her father's convictions. The respondent's youngest children, who are twins, are also thought to be psychologically vulnerable if the matter receives further publicity.
Dr Gary Persley, Clinical Director, Richmond/Clarence Mental Health Section, under whom the daughter was admitted, has opined:
... further publicity surround[ing] her father's appearance at the Tribunal would retraumatise her (the 17 year old) and cause her further distress. This would interfere with her day to day functioning; particularly with respect to her university studies. Such publicity may adversely on her mental state with potential recurrence of a depressive episode.
Dr Gary Persley also opined as to the likelihood of further publicity having an impact on the doctor's other younger children.
The HCCC concedes evidence supports the fact the children of the respondent have suffered psychologically and one has physically suffered (reflecting her psychological damage) as a result of publicity relating to the complaints where the doctor pleaded guilty to the charges in District Court proceedings. It is also conceded the convictions have already been widely publicised in a small local community and within the wider local district. The respondent himself published a letter in the community newsletter admitting his offences. The respondent has also published a sign in his practice stating that he cannot see children without a chaperone. All this information, the Tribunal is satisfied, has circulated within the isolated community in which the doctor practices.
It is submitted by the HCCC there is insufficient information to suggest that further publication of these proceedings (which, it contends, is restricted to publication on the Medical Tribunal website) will significantly exacerbate the stress experienced by the respondent's children.
Principles
In the case of Welker v Rinehart (No 6) [2012] NSWSC 160, the Supreme Court recently held that there was no basis for a non publication order where there had already been a significant amount of publicity surrounding the issues in the case. The Court reasoned an incremental increase in publicity resulting from publication of material would not have any material effect on the risk to safety of the applicant or her family.
In other proceedings involving the same defendant, the Supreme Court further held that it was difficult to accept the proposition that an order for the suppression of material, which material was already in the public domain, could be necessary to protect the safety of any person (Welker v Rinehart [2012] NSWSC 45).
In HCCC v Simring (Suppression Order) [2010] NSWMT 6, a Medical Tribunal rejected an application to suppress the name of a practitioner whose case arose as a result of his conviction for accessing and possessing child pornography. The application was based on the potential harm that publication would cause to his family members. Two of the doctor's siblings were medical practitioners and it was argued that they would suffer embarrassment and professional detriment after publication of the details of their brother's offending. The Tribunal rejected the application and reasoned there was no sufficient basis for a suppression order. It reiterated that:
[t]he Tribunal proceedings are open and conducted in public. This reflects the general principle that the administration of justice is carried on in public.
It is submitted by the HCCC the adherence to the principle of open justice is essential to maintain public confidence in the role of the Medical Tribunal and the profession as a whole. In Simring, the Tribunal reasoned at [8] - [9]:
It is well established that the function of the Medical Tribunal is protective and that it does not, by its orders, punish the practitioner. The findings and consequential orders are "for the protection of those who require protection" (Clyne v NSW Bar Association (1960) 104 CLR 186). It is inherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Medical Practice Act.
The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner. In Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B, it was said:
One element of deterrence is providing an assurance to the public that serious lapses in the conduct of ... practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.
A similar issue was also raised earlier in time in HCCC v Dr Gow (Suppression order) [2008] NSWMT 3. There, the Tribunal was dealing with an application for suppression made by a practitioner who was suffering from a life threatening illness. Medical evidence was provided to suggest that his illness would be further exacerbated by the stress of publicising the proceedings. That evidence was held to be not enough to displace the importance of the open justice principle. The Tribunal stated at [21] - [23]:
21 It is well established that the function of the Medical Tribunal is a protective one and that it does not, by its orders, punish the practitioner. The findings and consequential orders are "for the protection of those who require protection" (Clyne v NSW Bar Association (1960) 104 CLR 186). It is inherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should a patient wish to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession. 22 It is deeply regrettable that the respondent has developed a life threatening illness and, on any account, has but a brief period to live. The Tribunal accepts that an order that his name is published with the judgment will probably bring unwanted and distressing public scrutiny to the respondent. That may have an adverse impact on his health and treatment regime.23 However, the Tribunal is of the view that it would be inconsistent with the protective function of the Tribunal proceedings to make an order that suppresses the name of the respondent when publishing the reasons for determination and in making the orders that flow from that determination. The interim suppression order will not be continued on publication of the reasons for determination of the Tribunal.
In support of his application, the doctor relies upon evidence of previous psychiatric injury to his children, particularly one child. The particular child, in association with the prior publicity in 2010 directed to the respondent's convictions, attempted suicide. She is still vulnerable.
The significant prior publicity, including that authorised by and initiated by the respondent himself throughout the local community, did not anticipate the grave, life-threatening consequences to one of the doctor's children. She is presently aged 17 and in her first year of tertiary study.
In considering a suppression order application, the NSW Court of Appeal in Walton v Momot [1997] NSWCA 334, determined there was a prima facie presumption under the Act that the Tribunal would sit in public. Special or exceptional circumstances must, therefore, be shown before a suppression order can properly be made. This reflected the general principle that the administration of justice is carried out in public (see John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR 465; Bowen-James v Delegate of Director General Department of Health, unreported, 29 July 1991, Samuels JA, unreported) applied). Handley JA held in Momot (at 3):
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result.
While some of the authorities referred to above are directed to suppression orders, it is important to note the application is for a non-publication order.
There is no definition in the National Act of what is a suppression order, nor is there a definition of a non-publication order. However, guidance is given in the Court Suppression and Non-publication Orders Act 2010 (No 106) (NSW). Section 3 Definitions, provides:
non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
...
suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
However, this definition is broader in scope than the particular provision under Schedule 5D cl 7(1)(b)(iii) of the National Act. In this circumstance, under the relevant scheme, the publication of the Decision will occur but there can be certain matters as defined in Schedule 5D cl 7(1)(b)(iii) not published if the Tribunal so orders.
A consideration of this application requires a balancing of the open justice principle and the protective obligation on the Tribunal with the particular circumstances revealed. The doctor has pleaded to the convictions before the Tribunal and pleaded guilty in the District Court.
The community in which the doctor works is well aware of the circumstance which has led to the doctor only consulting with children in the presence of a chaperone. The Tribunal is satisfied there is full knowledge of the convictions and the conditions on the doctor's practice within the community in which the doctor provides his professional services. Through correspondence of both a personal and professional nature addressed to the Tribunal, the community in the wider region also continues to give its support to the doctor.
There is no issue of open justice given the publicity already following the District Court proceedings and the publications by the doctor of his circumstances, including the publication in his surgery of the requirement of the chaperone for children's appointments. The latter publication reveals there are conditions on the doctor's practice. The public's rights are protected.
The particular circumstances, however, weigh heavily in this determination. The doctor has publicly done everything to ensure public awareness of his circumstance.
The Tribunal finds there are "special and exceptional circumstances" and there is a circumstance out of the ordinary revealed in this matter which allows for an order that will not breach of any principles of open justice or challenge the public's need for confidence in the conduct of the Medical Tribunal.
The Tribunal is of the view the prospect of a renewal of the trauma associated with repeat publicity, which trauma led to a most serious life threatening circumstance for one child and psychological damage to the doctor's other children, is such as to demonstrate the "serious and exceptional circumstances" that justify a temporary extension of the current interim order to be in the form of a non-publication order to continue until the youngest children attain 18 years of age.
The doctor shall be referred to, for the purpose of considering the appropriate protective orders, as Dr A.
Order
There shall be a non publication order of the name and address of the registered health practitioner in accordance with the provision of the Health Practitioner Regulation National Law (NSW) No 86a, Schedule 5D, cl 7(1)(b)(iii) until 14 April 2015.
Decision last updated: 25 June 2012
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