Medical Board of Australia v Bird
[2014] QCAT 411
| CITATION: | Medical Board of Australia v Bird [2014] QCAT 411 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Philip Bird (Respondent) |
| APPLICATION NUMBER: | OCR130-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 22 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of: (a) the contents of a document or other thing produced to the Tribunal; and (b) evidence given before the Tribunal; that could identify any patients, with the exception of Anthony Thomson, is prohibited, save as is necessary for the parties to engage in and progress these proceedings. 2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of: (a) the contents of a document or other thing produced to the Tribunal in the application for miscellaneous matters filed 18 June 2014; and (b) evidence given before the Tribunal in the application for miscellaneous matters filed 18 June 2014; that may enable any patients of Dr Bird to be identified is prohibited. |
| CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal has made a non-publication order and directions allowing submissions to vary the order – where the respondent submits that the order should be broadened for the protection of the health and safety of his patients and to protect his reputation and livelihood – where the respondent submits it is in the public interest not to vary the non-publication order – whether a non-publication order is necessary to protect the health and safety of the respondent’s patients – whether a non-publication order is necessary to avoid interfering with the proper administration of justice – whether a non-publication order is necessary in the interests of justice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(a), s 66(2)(b), s 66(2)(e), s 66(3) Bahonko v Nurses Board of Victoria [2008] FCAFC 29 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
On 18 June 2014 the Medical Board of Australia referred to the Tribunal disciplinary proceedings concerning Dr Philip Bird.
The Board filed, with the referral, an application for miscellaneous matters seeking a non-publication order. Due to the significant media attention regarding Dr Bird, the Board sought an order prohibiting the publication of the contents of any document produced to the Tribunal and evidence given before the Tribunal that could identify any of Dr Bird’s patients listed in the referral, with the exception of Anthony Thomson.
The non-publication order sought by the Board was made on 20 June 2014.
In addition to the non-publication order, the Board sought directions that Dr Bird may file submissions to vary that order and that the Board may file submissions in reply. Submissions were filed by each party.
Dr Bird has made submissions for the current non-publication order to be varied. The variations which he seeks would broaden the current order to prohibit the publication of the contents of any document filed in the proceedings and any evidence before the Tribunal. Those variations have been opposed by the Board.
Dr Bird has deposed to the significant media attention surrounding him. Dr Bird is aware of 24 articles published in various newspapers and on various internet sites, 13 YouTube videos and a segment aired on Today Tonight all relating, to differing degrees, to him. The majority of the media attention has been regarding Dr Bird’s former patient, Mr Thomson. Mr Thomson died in a motor vehicle accident in which another three persons were also killed. The deaths were the subject of a coronial inquest which received considerable media attention. The Coroner’s findings have been published. There has also been media coverage of proceedings that have occurred and are occurring in the Tribunal.
Section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) prescribes the limited circumstances in which a non-publication order can be made. The original non-publication order was made to avoid publication of information that would be contrary to the public interest.[1]
[1]Section 66(2)(d) of the QCAT Act.
Dr Bird relies on s 66(2)(a), (b) and (e) in seeking to vary the order and submits there are two grounds which warrant the variation. The first is regarding the protection of the health and safety of Dr Bird’s patients and the second is to avoid interference with the proper administration of justice.
Protection of the health and safety of Dr Bird’s patients
Dr Bird holds a concern that any further adverse media coverage will present a real risk to the safety of his patients. Dr Bird identifies many of his patients as being ‘vulnerable, psychiatrically unwell individuals’. He also deposes that the media attention has put therapeutic relationships in jeopardy, some of which he identifies as being over 15 years old. Dr Bird outlined the current position of two patients for whom he has grave concerns, but noted that the two patients identified are not the only patients he has concerns for. He has provided evidence in support of his concerns.
I do not propose to set out the evidence about each of those patients in these reasons. To do so would only occasion the publication of sensitive information which a patient of Dr Bird’s may, rightly or wrongly, associate with himself or herself. Suffice to say that I have considered the evidence carefully. It can be accepted, and the Board does not contend otherwise, that the vulnerability of the patients is apparent from the evidence.
The Board submits that an explanation for the distress suffered by Dr Bird’s patients is that that their treating doctor is the subject of media coverage that includes allegations, rumours and innuendo about Dr Bird’s standard of practice. Members of the public have an interest in the outcome of these proceedings. The Board submits that the best method through which this interest can be served is by use of an open judicial process.
In Pearse v Medical Board of Australia[2] the Tribunal observed that the clear intent of the QCAT Act is that in matters such as these, generally, as with matters in the courts, the proceedings of the Tribunal will be public and records of the proceedings will be available. In my view, Dr Bird has not demonstrated that a non-publication order of the breadth which he seeks is necessary to avoid endangering the physical or mental health or safety of his patients, generally, or those two identified particularly. Subject to the extension of the present order to protect the identity of all Dr Bird’s patients, rather than only those referred to in Part C of the referral, I am of the view that no further order is necessary.
[2][2013] QCAT 392 at [68].
Whilst Dr Bird’s submission that the fact that these proceedings are on foot will likely result in renewed media interest in relation to the matters which they concern may be accepted, prohibiting the publication of documents filed and evidence in the proceedings would not prevent such media attention. It would only affect its content. It would no prohibit the reporting of the fact that proceedings are on foot or that hearings were occurring on particular days. Nor would it prohibit speculation about what the proceedings may concern given the substantial prior reporting of issues. Nor would it prohibit speculation that certain persons entering the Tribunal premises or hearing room were giving evidence. It would only be the actual evidence which would be prohibited from publication. To the extent that any media coverage may adversely affect patients, that coverage cannot be prohibited. Nor can misinformed, or even vindictive, publication on YouTube be prohibited. Moreover, the public have an interest in the processes of justice being open.
It is in the interests of those patients as well as the broader public, that publication of the evidence, in a way that prohibits identification, is permitted. Dr Bird’s affidavit identifies that there is evidence which he has made available to the Board from twelve psychiatrists and one psychologist which supports the appropriateness of his treatment. That is material which may well come into evidence. Its publication would be in the interests of the patients and the broader public.
Dr Bird’s livelihood and reputation
Dr Bird relies on s 66(2)(a) and (e) of the QCAT Act in submitting that his livelihood and reputation ought be protected.
Dr Bird has been a resident of the Sunshine Coast since 1977. All four of his children attended school there. His two youngest children currently attend a local high school.
Dr Bird deposed to multiple encounters he has had with different members of the community arising from the media attention. However, on his account the encounters involve the community providing support to Dr Bird and his family. There is no evidence of any confrontation or negative interaction.
Dr Bird has suffered a downturn in his professional practice he believes coincides with an escalation in media attention. This downturn includes patients cancelling appointments and terminating the treating relationship, a decline in the number of referrals and a reduction in the number of patients who attend the initial consultation.
Dr Bird relies on two Federal Court cases in which non-publication orders were made to protect commercially sensitive information relating to a non-party. There are three points on which these cases can be distinguished from this matter: Dr Bird is not a third party to the proceedings; not all the information over which the non-publication order is requested is confidential; and there is no direct link between publication and the proper administration of justice as submitted by Dr Bird.
No doubt these proceedings and the matters which will be raised and agitated in them will have an impact upon Dr Bird and his family. However, those matters do not result in the publication of evidence being an interference in the proper administration of justice. Nor do they make prohibition of publication necessary for any other reasons in the interests of justice.
It cannot be said that these proceedings, in which a National Board established under legislation which imposes a duty upon it to refer matters to the Tribunal if it reasonably forms a state of satisfaction of certain things, are of the kind referred to in Bahonko v Nurses Board of Victoria[3] and Zaghloul v Woodside Energy Ltd (No 2),[4] as referred to in Dr Bird’s submissions, where there must be an insistence that the proceedings are not used by one party to sully the reputation of another party or a non-party. In Zaghoul, for example, an affidavit and written submissions had been filed which contained scandalous material including very serious and immoderate allegations against police officers. Ms Bahonko was found to have breached, in a systematic and apparently intentional way, the reasonably standards of conduct expected of litigants.
[3][2008] FCAFC 29.
[4][2013] FCA 947.
It is, however, appropriate that the non-publication order presently in place be extended to prohibit the publication of any documents filed in the Tribunal or any evidence given to the Tribunal which may identify any of Dr Bird’s patients, not only those mentioned in the referral. It is possible, as this application demonstrates, that patients beyond those included in the referral will be mentioned in the material filed or evidence given.
Non-publication order in this application
Under s 66(3) of the QCAT Act, the Tribunal may make a non-publication order on its own initiative.
The parties have not made any submissions as to the publication of evidence and documents filed in relation to this application. Because of the sensitive nature of the evidence and submissions before the Tribunal, the Tribunal believes this is an appropriate case to make an order on its own initiative.
For reasons outlined in Medical Board of Australia v Martin[5] it is in the interests of justice that documents that contain information that is personal and sensitive in nature remain confidential. This is especially so when the party in question has not participated in the proceeding.
[5][2013] QCAT 377.
Considering that neither of the patients identified in Dr Bird’s affidavit are parties in this proceeding and neither have given consent for their personal information to be published, it is appropriate for the Tribunal to make a non-publication order regarding this application.
The Tribunal will order that:
1. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)the contents of a document or other thing produced to the Tribunal; and
(b)evidence given before the Tribunal;
that could identify any patients, with the exception of Anthony Thomson, is prohibited, save as is necessary for the parties to engage in and progress these proceedings.
2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)the contents of a document or other thing produced to the Tribunal in the application for miscellaneous matters filed 18 June 2014; and
(b)evidence given before the Tribunal in the application for miscellaneous matters filed 18 June 2014;
that may enable any patients of Dr Bird to be identified is prohibited.
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