| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and SKERRITT [2013] WASAT 7 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 JANUARY 2013 FILE NO/S : VR 126 of 2011 BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE Applicant
AND
ANDREW PAUL SKERRITT
Respondent
Catchwords: Practice and procedure Nonpublication order Vocational regulation Professional misconduct Practitioner sent letter which he knew was misleading to State Administrative Tribunal in relation to conflict between criminal trial and SAT hearing in which he was to appear as counsel Practitioner's mental illness was a contributory factor in his failure to address conflict between criminal trial and SAT hearing in a timely manner Mental illness not cause of professional misconduct but relevant to context and circumstances Whether Tribunal should make a nonpublication order in relation to practitioner's identity
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Legislation: State Administrative Tribunal Act 2004 (WA), s 61, s 61(4), s 62, s 62(1), s 62(3) Result: Nonpublication order refused in relation to practitioner's identity
Non-publication order made in relation to type and circumstances of incident which gave rise to practitioner's Post Traumatic Stress Disorder
Summary of Tribunal's decision: The Tribunal imposed a disciplinary penalty upon Mr Andrew Skerritt, a legal practitioner, who sent a letter to the Tribunal in a proceedings in which he was to appear as counsel which he knew was misleading. The Tribunal found that the practitioner suffered from mental illness which, while not the cause of his professional misconduct, formed part of the context and circumstances in which the conduct occurred.
The Tribunal suspended the practitioner for six months, required him to undergo psychiatric and psychological treatment during his suspension and required him to submit a report from his psychiatrist to the Legal Practice Board of Western Australia within a week of his return to practise which would inform the Board in considering whether to impose any further conditions on the practitioner's registration.
The practitioner sought a nonpublication order (also known as a suppression order) in relation to his identity. The Legal Profession Complaints Committee opposed the application for a nonpublication order.
The application for the nonpublication order was considered by a Deputy President of the Tribunal who determined that the identity of the practitioner should not be suppressed because such a non-publication order is not necessary to avoid the publication of information the publication of which would be contrary to the public interest, and because it is not necessary to make such a non-publication order in the interests of justice. However, a nonpublication order was made in relation to the type of incident which gave rise to the practitioner's Post Traumatic Stress Disorder and the circumstances in which the incident occurred.
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Category: A
Representation: Counsel:
Applicant : Mr ND Pope
Respondent : Mr RW Bower
Solicitors:
Applicant : Law Complaints Officer
Respondent : Corser & Corser
Case(s) referred to in decision(s):
Legal Practitioners Complaints Committee and Pillay [2006] WASAT 309
Legal Practitioners Complaints Committee and Richardson [2008] WASAT 116
Legal Practitioners Complaints Committee and Stevens [2005] WASAT 210
Legal Practitioners Complaints Committee and Tomlinson [2005] WASAT 214
Legal Profession Complaints Committee and Skerritt [2012] WASAT 221
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
The Council of the Queensland Law Society Inc v Wright [2001] QCA 58
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REASONS FOR DECISION OF THE TRIBUNAL:
Application for nonpublication order 1 On 9 November 2012, the Tribunal made orders and delivered reasons for decision in relation to penalty and costs in consequence of the practitioner's admission, and the Tribunal's finding, that the practitioner engaged in professional misconduct by sending a letter, which he knew was misleading, to the Tribunal in relation to a matter in which he was briefed to appear as counsel: Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 (penalty reasons). The Tribunal did not accept the contention of the Legal Profession Complaints Committee that the appropriate disciplinary consequence of the practitioner's professional misconduct was for the Tribunal to make and transmit a report on its finding to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the Roll of Practitioners. The Tribunal came to this conclusion, notwithstanding that the practitioner's conduct involved dishonesty and a breach of the confidence that courts and tribunals necessary place in practitioners involved in proceedings before them, for three reasons, the most significant of which was that 'at the relevant time the practitioner suffered from (and continues to suffer from) mental illness which, while not the cause of his professional misconduct, forms part of the context and circumstances in which his conduct occurred': penalty reasons at [16]. 2 The Tribunal accepted the evidence of Dr Russell Hoyle, a psychiatrist, that the practitioner suffers from three overlapping psychiatric conditions, namely Post Traumatic Stress Disorder (PTSD), Recurrent Episodic Depression and Anxiety, and that 'the practitioner is likely to have been suffering from PTSD and Depression since and consequent upon a particular incident': penalty reasons at [16] (as now to be published). The Tribunal also accepted the evidence of Dr Hoyle that, according to the history which he took from the practitioner and which he did not doubt, at the time of the professional misconduct the practitioner experienced two 'triggering events' which caused severe symptoms of his illness to occur, namely, being contacted by the media and concerns regarding the practitioner's wife's and newborn child's health. As the Tribunal observed at [19] of the penalty reasons, triggering events are phenomena that are reminiscent of the index traumatic event from which the PTSD stemmed. Dr Hoyle gave evidence that the triggering events gave rise to 'a higher level of symptomology' at the time of the relevant conduct: penalty reasons at [22]. (Page 5)
3 At [23] [24] of the penalty reasons, the Tribunal made the following findings: On the evidence of Dr Hoyle, we find that it is likely that the practitioner's PTSD, Depression and Anxiety was a contributory factor in his failure to address the obvious conflict between the District Court trial and the SAT hearing in a timely manner by seeking an adjournment of the SAT hearing by, or at least on, 24 April 2009. It is also likely that the practitioner's failure to address the conflict in a timely manner exacerbated the stress he was under in consequence of conducting a lengthy jury trial as counsel with only four years' legal experience, when the trial was increasing in length, and while the SAT hearing was fast approaching. In the circumstances of his inexperience, the increasing length of the trial, the impending SAT hearing and his failure to address the conflict in a timely manner due, in part at least, to his psychiatric illness, it is likely that the practitioner was under significant stress when he wrote the letter to SAT. While this does not excuse deliberately misleading the Tribunal, it is relevant, in our view, in terms of the context and circumstances in which the letter was written and therefore as to whether the practitioner's character and conduct is seen to be inconsistent with the privileges of further practice, and more broadly in relation to the appropriate disciplinary consequence of his conduct. The Committee contended, in essence, that the practitioner's professional misconduct was a function of his character, not of his mental illness. In contrast, the practitioner, by his senior counsel, contended in essence that his professional misconduct was a function of his mental illness, not of his character. The reality, in our view, is more complex than either of these propositions. The practitioner's untruthfulness in his letter was not caused by his mental illness. However, his mental illness is likely to have contributed to his failure to address the obvious conflict between the District Court trial and the SAT hearing in a timely manner and is likely to have exacerbated the stress that he was under when he finally wrote to the Tribunal in relation to the conflict on 1 May 2009, the last business day before the SAT hearing. Although the mental illness did not cause the practitioner to be untruthful, it is nevertheless relevant in relation to whether his character and conduct are such that he is not a fit and proper person to remain a legal practitioner, and, more broadly, in relation to the appropriate disciplinary consequence of his conduct. 4 The Tribunal determined that, in order to protect the public in their dealings with lawyers, maintain proper standards in the legal profession, and protect the reputation of the legal profession, the appropriate disciplinary consequence of the practitioner's professional misconduct in the circumstances of the case involved the following three elements: • suspension of the practitioner from legal practice for a period of six months; (Page 6)
• requiring the practitioner to undergo medical treatment and psychological counselling prescribed by Dr Hoyle and to act in accordance with Dr Hoyle's medical advice until the conclusion of the suspension; and • requiring the practitioner to submit a report by Dr Hoyle to the Legal Practice Board within a week of the practitioner's return to practice indicating the treatment and counselling that he has undergone, his current state of mental health, any further treatment or counselling Dr Hoyle considers the practitioner should undergo, and any restrictions on the type of matter, hours of work or nature or mode of practice that Dr Hoyle recommends the practitioner should be subject to in his legal practice in the interests of his mental health. 5 Following the provision of the Tribunal's orders and reasons to the parties, but prior to their publication on the Tribunal's website, the practitioner applied for a nonpublication order (also known as a suppression order) in relation to his identity pursuant to s 62(3) and s 61(4)(g) and (h) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Committee opposed the application for a nonpublication order and contended that, instead, the penalty reasons should be modified to remove reference to the type and certain circumstances of the incident. The parties filed written submissions in relation to whether a nonpublication order should be made and supplementary submissions in relation to the report of the Ad Hoc Committee on Psychological Distress and Depression in the Legal Profession (now known as the Mental Health and Wellbeing Committee) of the Law Society of Western Australia entitled Report on Psychological Distress and Depression in the Legal Profession,prepared by Dr Christopher Kendall, then the Senior Vice President of the Law Society.
The Tribunal's power to make a nonpublication order 6 Section 62(3) of the SAT Act states as follows: 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. 7 Section 62(1) of the SAT Act states as follows: This section applies to (Page 7)
8 Section 61(2) of the SAT Act confers a discretion upon the Tribunal, in the circumstances described in s 61(4), to 'order that a hearing or any part of it be held in private and that only specified persons may be present'. Section 61(4) of the SAT Act, which is referred to in both s 62(3) (in relation to the circumstances in which the Tribunal may make a nonpublication order) and s 61(2) (in relation to the circumstances in which the Tribunal may make an order that a hearing, or any part of it, be held in private) is in the following terms: The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so (a) to avoid endangering the national or international security of Western Australia or Australia; or (b) to avoid damaging intergovernmental 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. 9 The Court of Appeal discussed the relationship between s 61 and s 62 of the SAT Act in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 (A Medical Practitioner) at [91] [92] as follows: … [A]lthough the circumstances in which the powers of the Tribunal may be exercised under s 61 and s 62 are identical, the powers conferred by the two sections are different in character. Section 61 confers a power to conduct a hearing in private, whereas s 62 confers a power to make a general order, potentially applicable to the world at large, prohibiting the publication of anything falling within the scope of s 62(1). The scope of (Page 8)
the material falling within that subsection is to be determined by the proper construction of the words used, in the context of s 62 itself, and in the context of the Act as a whole. The proper construction of the words used in s 62(1) is informed by the scope of the power conferred by s 62(3), in that it extends to members of the public, including media organisations, as well as to the parties to the proceedings before the Tribunal, and other participants in proceedings before the Tribunal including witnesses, and those present in the hearing room. Aspects of the Act as a whole which provide context for the interpretation of the words used in s 62(1) include the analysis above which shows that no member of the public has a right of access to anything other than the material contained in the public register maintained pursuant to s 155 of the Act, or what might be gleaned from attendance at a hearing of the Tribunal held in public pursuant to s 61 of the Act. However, by contrast, the parties to proceedings before the Tribunal will have access to a significantly greater quantity of information, including documents provided to the Tribunal by other parties to the proceedings, and the evidence given of events which transpire in hearings of the Tribunal conducted in private pursuant to an order made under s 61 of the Act, or evidence received by the Tribunal in writing pursuant to s 32 of the Act. Significant also to the proper construction of s 62 of the Act are the provisions of the Act which provide that the Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit, that permit the Tribunal to receive evidence or argument in writing and which authorise the Tribunal to conduct all or part of a proceeding entirely on the basis of documents without a hearing (see s 32 and s 60 of the Act). Significant also is the parliamentary intention, manifest in s 61(4) and s 62(3) to prevent proceedings in the Tribunal giving rise to any of the adverse consequences identified in that subsection including, relevantly to the present case, endangerment to the physical or mental health or safety of any person. 10 The Court of Appeal held in relation to the Tribunal's power to make a nonpublication order under s 62 of the SAT Act in A Medical Practitioner at [86] [88] as follows: … [T]he Tribunal … has been given an express power to prohibit publication of the matters specified in s 62 of the Act in the circumstances specified in s 61(4) of the Act. Breach of an order made by the Tribunal under s 62 is not, of itself, an offence, but could be the subject of proceedings in the Supreme Court for contempt of the Tribunal, punishable as if contempt of the Supreme Court. It is clear from this analysis that there are material differences of some significance between the 'open justice principles' applied in common law courts, and the rights and obligations conferred upon the Tribunal by the Act. Those differences exist in relation to the scope of the right of public access to information and proceedings in the Tribunal, the source and (Page 9)
scope of the power to make orders with respect to the non-publication of material related to proceedings before the Tribunal, and the source and repository of the power to punish for breach of a non-publication order. These differences reinforce the observation that when an issue arises as to whether the hearing of a Tribunal should be conducted in private, or a nonpublication order made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts. However, this is not to say that an expansive view should be taken of the powers conferred by s 61 and s 62 of the Act to exclude the public from hearings of the Tribunal or to suppress publication of certain material. On the contrary, the language employed by the legislature in those sections 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 s 61(4)(a) - (g), or 'in the interests of justice' (s 61(4)(h)). The requirement that the order be 'necessary' reinforces the view enunciated by Chaney J that there must be a real and substantial connection between the admission of the public or the publication of material (as the case may be) and the relevant adverse consequence specified in the section or the detrimental effect upon the interests of justice. A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a closed hearing or suppression order will not satisfy the statutory requirement that the order be 'necessary'. Like Chaney J, 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.
Should a nonpublication order be made in relation to the practitioner's identity? 11 On behalf of the practitioner Mr RW Bower submitted that the circumstances described in s 61(4)(g) and (h) of the SAT Act apply in relation to the nonpublication of the practitioner's identity on essentially two bases. 12 First, Mr Bower submitted that it is necessary to make a nonpublication order as the publication of the practitioner's identity would be contrary to the public interest for the purposes of s 61(4)(g) of the SAT Act in terms of lawyers who believe that they are or may be suffering from mental illness seeking appropriate treatment and being open about their illness with the regulators of the profession. 13 Speaking extracurially, Martin CJ has observed that: (Page 10)
Recent years have seen a significant improvement in general community awareness of the issues associated with mental illness and disability … ('The WA Mental Health Court', address given at the Mental Health Law Centre (WA) Inc Annual General Meeting 2012, 5 November 2012). 14 Mr Bower referred to steps taken by the Law Society of Western Australia to encourage practitioners who may be suffering from mental illness to seek professional assistance and to establish a confidential counselling service for the use of its members. In March 2011, the Law Society published the Report on Psychological Distress and Depression in the Legal Profession, the aim of which was: … to review the Society's current programmes and strategies for tackling mental health and wellbeing in light of the findings of the Courting the Blues Report published in 2009 and, where appropriate, suggest improvements or additional strategies and their related financial and resourcing implications. (Page 59) 15 The Law Society report stated as follows at page 4 in relation to depression in the legal profession: There has been an impressive body of research published in recent years on depression and mental health, both within and outside of the legal profession. The reported statistics and findings are alarming and require an immediate and well managed response. 16 The Law Society report then summarised some of these findings, 'particularly those that highlight and target poor mental health in the legal profession' (at page 4), including the 2007 National Depression Initiative by Beaton Consulting and beyondblue and the 2009 Courting the Blues Report which detailed findings of a study conducted by the Tristan Jepson Memorial Foundation and the Brain and Mind Research Institute of Australia in relation to mental health in the legal profession. The Law Society report said the following at page 4 in relation to the National Depression Initiative: Overall, the survey found that professionals and students experience more depressive symptoms than the general population. Relevantly, the resulting report also revealed that the incidence of depressive symptoms amongst lawyers and law students had reached alarming levels. Indeed, when compared to other professions, lawyers were found to have experienced the highest incidence of depressive symptoms. 17 The Law Society report stated at page 5 that the study reported in the Courting the Blues Report was conducted with the participation of (Page 11)
741 final year law students from 13 universities, 924 solicitors and 756 barristers, and revealed: a) high levels of psychological distress and risk of depression in the law students and practising lawyers who were surveyed, when compared with Australian community norms and other tertiary student groups; b) a number of attitudes and behaviours which imply a general reluctance to seek help for mental health issues; and c) it is not just lawyers and young lawyers, but also law students, who are suffering from high levels of depression. 18 The main findings of the Courting the Blues Report included the following (quoted at page 33 of the Law Society report): … 5. Mental health problems and psychological distress must be seen as legitimate health problems for which students and legal professionals can seek special consideration and support. … 12. The profession as a whole needs to identify those members who are isolated or poorly supported and offer them additional education, support and services. … 19 Mr Bower submitted that: In the event that the decision in the present case is published without the suppression of the [practitioner's] identity, there will be a risk that practitioners who believe that they are or may be suffering from depression or similar illnesses • will not seek appropriate treatment, particularly where they believe that the quality of their work has been poor and might give rise to a disciplinary process; and • will be more likely to attempt to conceal their illness and their consequential poor work and to be defensive, secretive and uncooperative if and when they are contacted by the [Committee] or the [Legal Practice Board] because they will be in fear of their own identity being published in any disciplinary proceedings involving them that may be dealt with by the Tribunal. 20 Mr ND Pope submitted on behalf of the Committee that the public interest concerns referred to by Mr Bower 'lack any apparent foundation', because 'it is not unusual for a practitioner to rely upon evidence as to (Page 12)
their mental health in mitigation of penalty'. The Committee referred the Tribunal to its decisions in Legal Practitioners Complaints Committee and Stevens [2005] WASAT 210 (Stevens), Legal Practitioners Complaints Committee and Tomlinson [2005] WASAT 214 (Tomlinson), Legal Practitioners Complaints Committee and Pillay [2006] WASAT 309 and Legal Practitioners Complaints Committee and Richardson [2008] WASAT 116 in support of this submission. Mr Pope also submitted that: It can be equally asserted (if not more so) that practitioners who believe that they are or may be suffering from depression or other mental illness will be more likely to seek appropriate treatment and reveal their illness if, from published reasons for decisions on penalty, it becomes apparent that depression or similar illness is acknowledged as a legitimate 'mitigating' factor. 21 Mr Pope also submitted that 'an open approach to the impact of mental illness upon practitioners and their conduct is more in the interests of both the profession and the public' and that '[w]ith greater openness, there is more likely to be an acceptance of mental health problems'. He submitted: An approach of 'normalising' depression and mental illness within the profession suggests that, as a general rule, the identity of a practitioner should not be suppressed if mental illness is an issue relevant to the characterisation of conduct or the nature of the penalty imposed. 22 The research surveyed by the Law Society report indicates that there is an alarming level of psychological distress and depression within the legal profession and a general reluctance among lawyers to seek help for mental health issues. 23 Although there has been a significant improvement in general community awareness of the issues associated with mental health and disability, there arguably remains an unfortunate stigma attached to mental illness which may partly explain the reluctance of lawyers suffering from depression and other mental health issues to seek help. The Law Society report is an important and timely wake-up call for the legal profession and legal regulators, as well as for judges and tribunal members before whom lawyers appear and, in particular, who exercise professional disciplinary jurisdiction, that mental illness and psychological distress are real and legitimate health issues facing lawyers and that lawyers who are or may be suffering from such problems should be identified, supported and encouraged to obtain appropriate treatment. (Page 13)
24 However, I am not satisfied on the basis of the Law Society report that there is a real and substantial risk that the publication of the practitioner's identity together with his history of mental illness would cause other practitioners who believe that they are or may be suffering from depression or other mental illness not to seek appropriate treatment, where they believe that the consequent quality of their work has been poor and might give rise to a disciplinary process, or to attempt to conceal their illness and consequential poor work and not to be open about their illness with the regulatory authorities of the profession, because of a fear that their own identity will be published in a future disciplinary proceeding. 25 In this case, the practitioner adduced evidence from Dr Hoyle about his mental illness without having sought or obtained a suppression order until after the provision of the Tribunal's penalty reasons to the parties. Similarly, evidence in relation to mental health was relied on by the practitioner concerned and referred to in each of the four Tribunal decisions cited by the Committee, most extensively in Tomlinson at [80] [107] (in Stevens it was referred to at [49] of the decision of the New South Wales Court of Appeal which formed an annexure to the Tribunal's reasons). Furthermore, there is logic in Mr Pope's submission that publication of the Tribunal's penalty reasons including the identity of the practitioner facilitates the 'normalisation' of mental illness and psychological distress in the profession, and reduces any stigma, because the penalty reasons demonstrate that these are real and legitimate health issues facing lawyers, potentially relevant in professional disciplinary proceedings and treated with sensitivity in such proceedings. These factors suggest that lawyers who believe that they are or may be suffering from depression or other mental illness will be more likely to seek appropriate treatment and reveal their illness as a result of the publication of the penalty reasons including the identity of the practitioner. 26 There is, therefore, at its highest, merely a remote possibility of harm, arising from an indirect or tenuous connection, between a failure to suppress the practitioner's identity and the detriment to the public interest referred to by Mr Bower. As the Court of Appeal held in A Medical Practitioner, this does not satisfy the statutory requirement that a nonpublication order be 'necessary'. 27 I have also considered whether the nonpublication of the practitioner's identity would be in the interests of justice in the circumstances of this case. Legal practitioners enjoy a privileged position and perform an essential role in the proper and effective administration of justice. As the Queensland Court of Appeal (McMurdo P, with whom (Page 14)
Davies JA and Helman J agreed) said in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 at [67]: The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. 28 As the Tribunal found in the penalty reasons, 'the necessary trust and confidence that courts and tribunals place in legal practitioners involved in proceedings before them in the effective administration of justice' (at [29]) extends to all aspects of practitioners' dealings with courts and tribunals. As the Tribunal recognised at [10], '[t]he proper administration of justice requires no less'. The reliability of practitioners may well be affected if they suffer from depression or other mental illness. Given the necessary trust and confidence that courts and tribunals place in legal practitioners, the wellbeing of practitioners and of the justice system is intertwined. However, for the reasons set out earlier, I am not satisfied that there is a real and substantial risk to the administration of justice in this sense if the practitioner's identity were disclosed. Again, there is only, at its highest, a remote possibility of harm, arising from an indirect or tenuous connection. 29 The second basis on which Mr Bower submitted that the circumstances described in s 61(4)(g) and (h) of the SAT Act apply in this case arises from the nature of the incident from which the practitioner's PTSD stemmed, media interest and triggering events for the practitioner's PTSD which could potentially compromise his recovery from illness. In the penalty reasons provided to the parties, the Tribunal identified the type of incident from which the PTSD stemmed and certain circumstances in which it occurred. The Tribunal also referred to the evidence of Dr Hoyle of examples of triggering events in relation to the practitioner. 30 The nature of the incident - while agreed between the parties - was not referred to in the penalty reasons. However, Mr Bower submitted that it is likely that the nature of the incident would be accurately assumed by readers of the penalty reasons from the identification of its type and circumstances. He submitted that the publication of the practitioner's identity and the identification, by likely assumption, of the nature of the incident would be contrary to the public interest in various respects and that nonpublication of the practitioner's identity would also therefore be in the interests of justice. Mr Bower also submitted that the publication of the practitioner's identity and the identification of the type and circumstances of the incident in the penalty reasons could potentially compromise the practitioner's recovery by possibly giving rise to (Page 15)
triggering events for his PTSD. Mr Bower submitted that this, too, would be contrary to the public interest and that nonpublication of the practitioner's identity would be in the interests of justice for this reason as well. 31 However, the potential harm to the public interest and to the interests of justice can be avoided by making a nonpublication order in relation to the type of incident from which the practitioner's PTSD stemmed and the circumstances in which the incident occurred, and removing these references from the penalty reasons as published. It is therefore not necessary to make a nonpublication order in relation to the practitioner's identity. 32 The circumstances described in s 61(4)(g) and (h) of the SAT Act do not apply in relation to the nonpublication of the practitioner's identity as I am not satisfied that it is necessary to make a nonpublication order in relation to his identity to either avoid the publication of information the publication of which would be contrary to the public interest or because it is in the interests of justice. 33 Had I found that it is necessary to make a nonpublication order in relation to the practitioner's identity to avoid the publication of information the publication of which would be contrary to the public interest, or because it is in the interests of justice, I would have been required, in the exercise of discretion as to whether to make a nonpublication order, to also balance competing public interest considerations. A key countervailing public interest consideration advanced by the Committee was that it is in the interests of the members of the public and of the profession who may deal with the practitioner in the future that they have access, should they wish, to the details of the disciplinary proceedings against him and any penalty imposed. However, it is ultimately unnecessary to balance the competing public interest considerations as the statutory requirement that a nonpublication order in relation to the practitioner's identity be 'necessary' is not satisfied in the circumstances of this case.
Conclusion 34 The application for a nonpublication order in relation to the practitioner's identity should be refused because it is not necessary to make that order to avoid the publication of information the publication of which would be contrary to the public interest and because it is not necessary to make that order in the interests of justice. However, a nonpublication order should be made precluding the publication by the (Page 16)
Tribunal or by any other entity or person of any evidence given before the Tribunal or the contents of any document produced to the Tribunal which discloses the type of incident which gave rise to the practitioner's PTSD or any of the circumstances in which the incident occurred. 35 In practical terms, these reasons are now to be provided to the parties together with the penalty reasons revised in accordance with the nonpublication order referred to immediately above. These reasons and the penalty reasons are not to be published on the Tribunal's website or disclosed by either party to any person (other than, if relevant, in relation to an appeal) for 28 days.
Orders 36 The Tribunal makes the following orders: 1. The application for a nonpublication order in relation to the practitioner's identity is dismissed. 2. Pursuant to s 62(3) and s 61(4)(g) and (h) of the State Administrative Tribunal Act 2004 (WA), the Tribunal and any other entity or person may not publish any evidence given before the Tribunal in this proceeding or the contents of any document produced to the Tribunal in this proceeding which discloses the type of incident which gave rise to the practitioner's Post Traumatic Stress Disorder or any of the circumstances in which the incident occurred. 3. These reasons and the Tribunal's reasons in Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 are not to be published by the Tribunal on its website or disclosed by either party to any person (other than, if relevant, in relation to an appeal) until 13 February 2013. (Page 17)
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