LEGAL SERVICES AND COMPLAINTS COMMITTEE and THE PRACTITIONER
[2024] WASAT 127
•26 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE and THE PRACTITIONER [2024] WASAT 127
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 NOVEMBER 2024
FILE NO/S: VR 13 of 2023
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
THE PRACTITIONER
Respondent
Catchwords:
Practice and procedure - Application for non-publication order - Tribunal's power under s 62 of the State Administrative Tribunal Act 2004 (WA) - Whether non-publication order is necessary - Whether publication would endanger physical or mental health or safety of the Practitioner
Legislation:
Legal Profession Act 2008 (WA), s 438(1)
State Administrative Tribunal Act 2004 (WA), s 61, s 61(4), s 61(4)(d), s 61(4)(g), s 61(4)(h), s 62, s 62(1), s 62(3)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Medical Board of Australia and Ogundipe [2019] WASAT 32
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Nursing and Midwifery Board and A Practitioner [2019] WASAT 148
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Legal Services and Complaints Committee (LSCC) has alleged that proper cause exists for disciplinary action against the Respondent (the Practitioner) pursuant to s 438(1) of the Legal Profession Act 2008 (WA) because the Practitioner engaged in serious misconduct.
On 8 March 2024, the parties filed a Minute of Proposed Consent Orders to the effect that proper cause exists for disciplinary action against the Practitioner and as to the agreed facts forming the basis upon which that finding is to be made.
The Practitioner, through her then solicitors, also filed an application on 8 March 2024 for a non-publication order as follows:
1.The name of the [Practitioner] or identifying details are not to be published pursuant to section 62(3) of the State Administrative Tribunal Act 2004 (WA).
2.All references to the [Practitioner's] name be replaced by 'the Practitioner', or 'the respondent'.
3.The consent orders and statement of agreed facts dated 8 March 2024 and filed by the applicant shall not be published.
4.In lieu of the consent orders and statement of agreed facts referred to in paragraph 3 being published, the consent orders and statement of agreed facts attached hereto shall be published.
5.Paragraphs 1 and 2 apply to any orders made and published by the Tribunal and any statement of facts published by the Tribunal and the information to be recorded on the public register pursuant to regulation 5 of the State Administrative Tribunal Regulations 2004 (WA).
That application attached a modified version of the agreed facts referred to in proposed order 4.
By letter dated 11 March 2024, the LSCC indicated that it neither consented to nor opposed the application for a non-publication order. The LSCC also confirmed that, if the Tribunal was minded to make a nonpublication order, it was content for the modified version of the facts to stand as the published facts accompanying the disciplinary order (when made).
On 16 September 2024, the parties filed a further minute of consent orders with a statement of agreed facts, in which a minor modification was made to the consent orders to reflect the fact that the Practitioner had not applied for a practising certificate for the 2024 - 2025 practice year, and which attached an undertaking given by the Practitioner.
On 27 September 2024, the Tribunal wrote to the parties pointing out that no updated agreed modified statement of the facts had been filed, for publication if the Tribunal made a non-publication order. Accordingly, the Tribunal invited the parties to produce an updated version to be called the 'version for publication'.
On 1 November 2024, the parties filed a further minute entitled 'Minute of Proposed Consent Orders (Version for Publication)' which included a further modified version of the agreed facts and a redacted version of the Practitioner's undertaking. The modifications and redactions were essentially to remove material that would enable the identification of the Practitioner and medical information about the Practitioner and a member of the Practitioner's family.
The Practitioner has filed various submissions in support of the application for a non-publication order. Some of those submissions were filed by solicitors acting on her behalf. The most recent set of submissions was filed by the Practitioner herself on 30 August 2024. Those submissions sought orders in the following terms:
1.That all medical references, treating professionals, and diagnostic criteria and determinations, and/or documentation created for the purposes of mediation, or any other medical purpose that have been availed throughout these disciplinary proceedings be suppressed.
2.All identifying features and circumstances that reveal the identity of the [Practitioner], [certain of the Practitioner's family members], or interpersonal particulars between the afore identified persons that could cause identification of any, all or either of the three aforementioned persons be suppressed.
The legislative framework
Section 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) says that on the application of a party or on its own initiative the Tribunal may, in the circumstances described in s 61(4), order that anything, or any particular thing, to which the section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
Section 62(1) provides this section applies to:
(a)any evidence given before the Tribunal; and
(b)the contents of any documents produced to the Tribunal; and
(c)any information that might enable a person who has appeared before the Tribunal to be identified.
In making an order under s 62(3), the Tribunal is, relevantly for present purposes, required to consider whether it is necessary to do so:
(1) to avoid endangering the physical or mental health or safety of any person (s 61(4)(d)); or
(2) to avoid the publication of confidential information or information the publication of which could be contrary to the public interest (s 61(4)(g)); or
(3) for any other reason in the interests of justice (s 61(4)(h)).
The legal principles
An order cannot be made under s 62(3) unless the Tribunal is satisfied that such an order is necessary to avoid a consequence set out in s 61(4) of the SAT Act. This requires the Tribunal to be satisfied that there is a real and substantial risk of the consequence occurring if the order is not made.[1] It follows that, in this case, the order cannot be made unless the Tribunal is satisfied that there is a real and substantial risk that the Practitioner's physical or mental health or safety will be endangered if the Practitioner's name is published in connection with the proceedings.
[1] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 (Medical Board v A Medical Practitioner) [116].
The requirement that the order is 'necessary' will not be satisfied where there is only 'a remote possibility of harm arising from an indirect or tenuous connection' with the publication of the Practitioner's name in connection with the proceedings.[2] The consequence, in this case, is the risk to the Practitioner's mental health must be of a significant or material kind. The order cannot be made on evidence of minor, transient or ephemeral consequences.[3]
[2] Medical Board of Western Australia v A Medical Practitioner [88].
[3] Medical Board of Western Australia v A Medical Practitioner [88].
In Medical Board of Australia and Ogundipe,[4] Sharpe DCJ said that the circumstances in which an order can be made under s 62(3) of the SAT Act are set out in s 61(4), which does not include any need to take into account any principles of the public interest. His Honour said:
… No matter how compelling the public interest may be in the publication of the name of the Respondent, the Tribunal's only consideration when deciding to make an order under s 62(3) is whether it is necessary to do so to avoid endangering the physical or mental health of the Respondent, his wife, or both of them.
[4] Medical Board of Australia and Ogundipe [2019] WASAT 32 [38].
In Nursing and Midwifery Board and A Practitioner, Pritchard P observed, in the context of disciplinary proceedings, that the terms of s 62 take into account the public interest considerations in determining whether a nonpublication order should be made, as follows:
Making a non-publication order in relation to the name of a respondent would have the consequence of undermining the transparency of the disciplinary process which is significant in relation to deterring other health professionals from engaging in similar conduct and for the protection of consumers of health services. To some extent, that consideration underlies the requirements of s 61 of the SAT Act. It is also reflected in the requirement in s 61(4) of the SAT Act for the Tribunal to be satisfied that the non-publication order is necessary to avoid the consequences referred to, in this case, the danger to the physical or mental health or safety of any person. That requires a consideration of whether the non-publication is the only way to avoid endangering the respondent's mental health in the present circumstances.[5]
[5] Nursing and Midwifery Board and A Practitioner [2019] WASAT 148 [19].
The evidence
The following evidence, which is not in dispute, and which we accept is provided in support of the application for a non-publication order:
(a)at the time of the conduct the subject of the proceedings, the Practitioner suffered from several mental health conditions which variously made a significant contribution to that conduct;
(b)since that time the Practitioner has continued to suffer from several mental health conditions;
(c)at the time the application was originally filed, the Tribunal had been provided with the report of the Practitioner's then treating psychiatrist dated 2 October 2023 which said that there was the possibility of a catastrophic reaction, referring to the risk of self‑harm, if the Practitioner's name was published by the Tribunal when it delivered its decision;
(d)subsequently the parties agreed to consent orders to resolve the proceedings and the Practitioner's then solicitors applied for a non-publication order, essentially to prevent publication of her name or identifying information. The Practitioner subsequently changed her legal representation;
(e)on 24 May 2024, before that application had been determined, the Practitioner's then legal representative advised her during a telephone call of an issue arising in the application for the non‑publication orders;
(f)in response to the information provided by her legal representative the Practitioner suffered symptoms of a panic attack and injured herself in a manner that resulted in multiple abrasions to her hands and aggravated a previous injury to a tendon in her hand. Ultimately, the Practitioner called an ambulance, whereupon the paramedics administered a sedative and took the Practitioner to hospital;
(g)at the hospital it was reported that she had expressed suicidal ideation with a plan, although the Practitioner subsequently denied that she would attempt suicide and told her general practitioner (GP) she did not want to kill herself as her family was a reason for living;
(h)the Practitioner was released from hospital after an attendance of about 90 minutes;
(i)this incident was reported to the Legal Practice Board (LPB), which subsequently determined that the deterioration in the Practitioner's mental health was such that she was unfit to practice. As a result, the LPB suspended the Practitioner from practice on 31 May 2024;
(j)the Practitioner's issues with her mental health have continued since then, with the Practitioner suffering symptoms of a panic attack on 2 June and 11 July 2024. The Practitioner says that she finds being out in public overwhelming and has symptoms of Post Traumatic Stress Disorder;
(k)the Practitioner's treating psychologist says that the Practitioner has a history of some self-harming behaviour similar to that which occurred on 24 May 2024. The psychologist's view is that the Practitioner has a history of non-suicidal self-harming behaviour as a result of her history, which behaviour was an attempt to manage overwhelming emotional feelings and thoughts by physical pain. The psychologist said that she considered the trigger to this, and the panic attack, was the threat of publication of the Practitioner's name in connection to these proceedings;
(l)the psychologist concluded that the Practitioner was at no risk of suicidal self‑harm despite the evidence in the hospital notes of suicidal ideation with a plan, seemingly because the Practitioner was allowed to go home from hospital after 90 minutes and because the Practitioner denied the intention to do so. It appears from the psychologist's report that the Practitioner accepted that she had said words to the effect that 'nothing would make them happier if they saw me dead with slashed wrists', referring to the LSCC and the complainant. The Practitioner also said she did not want to kill herself and would never do that to her family. It is reasonable to infer from the fact that the hospital allowed the Practitioner to go home after 90 minutes that they did not consider her to be a serious risk of suicide at that time. However, there is some evidence before us that the Practitioner has a history of masking her feelings;
(m)the psychologist does, however, acknowledge that in times of emotional stress the Practitioner does attempt to harm herself;
(n)the Practitioner's GP wrote a letter on 31 May 2024, in which he says that the Practitioner's attendance at hospital occurred because she was in utter despair and was unable to see a way out of this matter. However, the GP also reported that the Practitioner said that she did not want to kill herself and her family was a reason for living. He notes that she had good support, and was seeing her psychologist regularly, and her psychiatrist. He said that, whilst the Practitioner's personal situational crisis remained overwhelming, she had continued to work following that incident, and he considered, as a result, she had capacity to put her personal issues to one side and could work;
(o)correspondence between the Practitioner and a representative of the LPB is correctly described by that representative as 'erratic and concerning'. The psychologist referred to correspondence written in the days after the hospital admission as 'reasonable' given the Practitioner was still highly distressed and trauma triggered, which suggests the psychologist accepted that that correspondence evidenced a deteriorated mental state that had arisen as a result of the events of 24 May 2024;
(p)the Practitioner is now self-represented, and the contents of her submissions filed on 30 August 2024 are consistent with the Practitioner continuing to suffer a high level of distress at the prospect of publication of the orders in this matter and the consequences of that. Those contents appear to us to be consistent with the material before us as to her mental health issues; and
(q)in two letters dated 9 July 2024, a second psychiatrist says he firmly holds the view that to deny the order would cause severe and intractable mental health injury, although he also considered she could work as a lawyer because there was no evidence this was impacting that work. Whilst he does not specify the basis of the view that the order would cause mental health injury, this opinion was expressed in the context of her mental health diagnosis and the panic attack resulting in her attending hospital.
Decision
On the basis of the evidence to which we have referred, we are satisfied that:
(a)the Practitioner has ongoing mental health issues which have resulted in physical self-harm at times of emotional distress that, to date, have not resulted in serious or long-term injury;
(b)the Practitioner suffered a mental health crisis as the direct result of discussing this matter, and the proposed nonpublication order, with her legal representative, which resulted in her engaging in behaviour that caused her to hurt her hands, and suffering symptoms of panic of a reasonably serious kind culminating in her calling an ambulance to take her to hospital;
(c)the concerns about her mental health on that occasion and following it, to date, have resulted in her ability to practice being suspended and she has not sought to renew her practising certificate; and
(d)whilst the Practitioner's mental health and symptoms may have improved to some extent since 24 May 2024, there is a real and substantial risk that if a non-publication order is not granted, the Practitioner will suffer further mental health injury, including suffering serious physical symptoms of panic, and that she will again physically hurt herself. There is also some risk that during such a crisis actions taken to cause physical harm may result in more serious consequence than have occurred to date, including that they may cause the Practitioner to endanger her life. We note that the Practitioner's psychiatrist is of the view that her risk is low for intentional suicide but that there is a chronic risk of possible suicide due to risky behaviour.
Accordingly, we are satisfied that there is a real and substantial risk that the Practitioner's physical and mental health will be endangered if the Practitioner's name is published in connection with the proceedings, or any information is published which may lead to her being identified, and that an order to this effect should be made pursuant to s 62(3) and s 61(4)(d) of the SAT Act.
In any event we are satisfied that the medical information concerning the Practitioner and the Practitioner's family member, which is referred to, in particular, in the unmodified statement of agreed facts filed with the minute of consent orders filed on 16 September 2024, should not be published in the interests of justice, pursuant to s 62(3) and s 61(4)(g) and (h) of the SAT Act. There is no public interest in disclosing this private medical information.
We are also satisfied that, in the particular circumstances of this case, any reference to the names of the Practitioner's treating medical professionals has the propensity to identify her and, as a consequence, their names should not be published, pursuant to s 62(3) and s 61(4)(d) of the SAT Act.
In the circumstances, we are satisfied that orders should be made that the agreed facts and undertaking of the Practitioner filed with the minute of consent orders on 16 September 2024 should not be published and that it is appropriate to publish the modified version of the facts and redacted undertaking attached to the Minute of Proposed Consent Orders (Version for Publication) filed on 1 November 2024 with the Tribunal's final orders in this matter.
For the record the Practitioner raised a number of other issues in her submissions concerning the effect of publication of the matter on her family, her future employment prospects and her involvement in the social life of the area in which she lives. She expressed her concerns about reprisals. In our view, the heightened manner of her expression of these concerns evidenced her mental health issues as we have said, although that is not to suggest she does not have a basis for such concerns. However, embarrassment, shame, effects on employment and the disapproval of the community often follow disciplinary action being imposed on a practitioner, and they of themselves would not warrant the imposition of a non-publication order.
Orders
The Tribunal orders:
1.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), the names and any information, including the identity of the medical professionals who have treated the Practitioner, that may lead to the identification of the Practitioner, is not to be published.
2.Pursuant to s 63(2) of the State Administrative Tribunal Act 2004 (WA), any medical information concerning the Practitioner and the Practitioner's family member referred to in any document filed in this proceeding is not to be published.
3.The reference to the Practitioner's name in the title to this proceeding be replaced with 'the Practitioner'.
4.The statement of agreed facts and the undertaking of the Practitioner attached to the minute of consent orders filed on 16 September 2024 not be published.
5.In lieu of the statement of agreed facts and the undertaking of the Practitioner attached to the minute of consent orders filed on 16 September 2024, the modified version of the agreed facts and redacted undertaking of the Practitioner attached to the Minute of Proposed Consent Orders (Version for Publication) filed on 1 November 2024 be published with the Tribunal's final orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
OJ
Associate to Deputy President Judge Vernon
26 NOVEMBER 2024
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