Medical Board of Australia v Waldron
[2017] QCAT 443
•21 December 2017
CITATION: | Medical Board of Australia v Waldron [2017] QCAT 443 |
PARTIES: | Medical Board of Australia |
| v | |
| Deborah Cheryl Waldron | |
APPLICATION NUMBER: | OCR044-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 17 March 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President |
DELIVERED ON: | 21 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the Tribunal finds that Dr Waldron has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 196(2)(a) of the National Law, Dr Waldron is reprimanded. 3. Pursuant to s 196(4)(a) of the National Law, Dr Waldron is prohibited from applying for registration for a period of one week from the date of these orders. 4. Until 1 March 2018 or further earlier order, the non-publication order made on 11 September 2015 pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) shall continue. 5. On 1 March 2018, in the event that no additional material is filed directed to the continuation or variation of the non-publication order or no appeal is commenced in relation to the decision with respect to the continuation or variation of the non-publication order, the non-publication order made on 11 September 2015 shall cease and this decision will be published with the name of Dr Waldron inserted instead of the pseudonym XY. 6. Dr Waldron pay the costs of the proceedings as agreed or, in default of agreement, as assessed on a standard basis on the District Court Scale. 7. If required to be assessed, the costs shall be assessed by an assessor to be agreed by the parties and in default of agreement appointed by the Tribunal. 8. Dr Waldron shall pay the costs (as agreed or as assessed) within 28 days of such agreement or assessment. 9. There be liberty to apply. |
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – GENERALLY – where the practitioner self-prescribed and self-administered controlled drugs – where the practitioner made false entries into the record book of controlled drugs – where the practitioner inappropriately stored a controlled drug – where the practitioner sought to exert improper influence over an employee to not report a discrepancy in the controlled drugs register to investigators – where the practitioner failed to comply with conditions imposed on the practitioner’s registration – where the practitioner provided false or misleading information to investigators – whether the practitioner has behaved in a way that constitutes professional misconduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – where the Tribunal found the practitioner had behaved in a way that constituted professional misconduct – where the parties had made joint submissions on sanction – where the parties submitted that the practitioner’s registration be cancelled and that she be disqualified from applying for registration for six months – where the practitioner’s registration expired on 30 October 2013 – whether the Tribunal has the power to cancel the practitioner’s registration PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the parties had made joint submissions on costs – where the practitioner had agreed to pay the Board’s costs as agreed, or in default of agreement as assessed on the District Court Scale – whether the interests of justice require the Tribunal to make an order as to costs. EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where the practitioner applied for the continuance of the non-publication order preventing the publication of identifying information about the practitioner – where the circumstances under which a non-publication order may be made are statutorily prescribed – whether it is necessary to make a non-publication order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2), s 100, s 102 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, cited |
| This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). | |
REPRESENTATIVES: | |
APPLICANT: | Lander & Rogers Lawyers |
RESPONDENT: | Avant Law Solicitors |
REASONS FOR DECISION
Dr Waldron was formerly a registered medical practitioner who had held registration under the Health Practitioner Regulation National Law (Queensland) (National Law). Dr Waldron’s registration was suspended by the Board on 23 August 2013. Dr Waldron appealed the Board’s decision to suspend her registration to the Tribunal. The Tribunal affirmed the decision of the Board.[1]
[1][2013] QCAT 614.
Dr Waldron’s registration expired on 30 October 2013. There is no subsisting registration. Pursuant to s 138 of the National Law, notwithstanding the expiry of registration, proceedings may be taken as if the practitioner were still registered.
On 27 March 2015, the Board referred disciplinary proceedings against Dr Waldron to the Tribunal as the “responsible tribunal”.[2]
[2]National Law, s 5.
The basis of the referral to the Tribunal was the Board’s reasonable belief that Dr Waldron had behaved in a way that constituted professional misconduct.[3]
[3]National Law, s 193(1)(a).
The decisions and orders that may be made by the Tribunal in referral proceedings are prescribed in s 196(1) of the National Law. Relevantly, they include the making of findings of “unsatisfactory professional performance”, “unprofessional conduct” and “professional misconduct”, or of conduct amounting to one or more of those terms, each of which is defined under s 5 of the National Law.
If the Tribunal finds any one or more of those terms proven, s 196(2) specifies the types of orders that the Tribunal may then make.
The matter proceeded before the Tribunal by way of joint submissions. The material before the Tribunal was the referral, the response, a statement of agreed facts, the affidavits of the two complainants and an affidavit of Dr Waldron’s solicitor, together with an agreed bundle of documents.
Facts
Dr Waldron was first registered in 1996.
In August 2012, registered nurses employed by Dr Waldron made notifications to the Drugs of Dependency Health Unit (DDU) and the Australian Health Practitioner Regulation Agency (AHPRA) about Dr Waldron. The notifications described a series of events relating to entries in the controlled drugs register and the unexplained and unrecorded removal of ampoules of controlled drugs from the controlled drugs cupboard.
Investigators from DDU conducted an interview with Dr Waldron and directed one of the nurses to remove all controlled drugs from the practice and have them destroyed.
Subsequently, Dr Waldron surrendered the endorsement for controlled drugs. On 9 October 2012, the Board decided to impose conditions on her registration involving, inter alia, urine drug screening and hair testing.
Dr Waldron was required by the Board to attend for a Health Assessment.[4] Following that process, Dr Waldron was assessed as being impaired as a result of her being diagnosed with an Opioid Dependence and it was noted that she met the criteria for cannabis abuse. Dr Waldron reported self-administration of opioids as having commenced in January 2012 and continued over the next four to five months. Dr Waldron attributed the self-administration to chronic low back pain in addition to the stress of establishing and running a solo general practice.
[4]Agreed Bundle of Documents, Letter from AHPRA to Dr Storor dated 12 October 2012.
The report noted a reluctance by Dr Waldron to seek professional help and that she minimised the problem and denied the seriousness of the opioid misuse.
The report commented that this was the second occasion in which Dr Waldron had developed a dependence on opioids. Dr Waldron had previously been monitored for substance abuse from 2000 to 2005 for self-prescribing codeine for migraine headaches.
Dr Waldron’s registration was suspended on 23 August 2013 following concerns with respect to her compliance with the screening conditions.
The referral alleged that Dr Waldron had:
a) On seven occasions between 26 January 2012 and 27 March 2012, self-prescribed controlled drugs, namely morphine and pethidine, and on nine occasions between 26 January 2012 and 23 July 2012 self‑administered a controlled drug, namely morphine (allegations 1 and 2);
b) On four occasions in July 2012, failed to record and made false entries into the record book of controlled drugs (allegations 3 and 4);
c) In July 2012 until a date unknown, inappropriately stored controlled drugs, namely morphine, in a toiletry bag (allegation 5);
d) Sought to exert improper influence over an employee to not report a discrepancy in the controlled drug register to DDU investigators (allegation 6);
e) Failed to comply with conditions imposed on the practitioner’s registration by failing to attend on three occasions for a urine drug screen (allegation 7);
f) Provided false or misleading information to DDU investigators (allegation 8).
Dr Waldron admitted the allegations concerning the self-prescription and self‑administration of controlled drugs, failing to record and making false entries into the record book of controlled drugs, inappropriately storing controlled drugs and providing false or misleading information to DDU investigators.
Dr Waldron denied the allegations relating to exerting improper influence over an employee and failing to comply with the conditions on her registration.
In the joint submissions, the parties submit it is unnecessary for the Tribunal to make findings with respect to the allegations in dispute on the basis that the orders proposed adequately address those matters.
Categorisation of Conduct
Despite those denials, Dr Waldron admitted the behaviour constituted “professional misconduct” under s 5 of the National Law. In the joint submissions, the Board submitted the Tribunal may make a finding in that regard, noting the admitted conduct falls within subsections (a) and (b) of the definition of “professional misconduct”.
Despite the agreed position, it is still necessary for the Tribunal to determine whether a recognised ground for disciplinary action is established, and to be satisfied that a proposed sanction is appropriate.
Based on the facts as admitted, the Tribunal finds, as agreed by the parties, that Dr Waldron has behaved in a way that constitutes “professional misconduct”. The Tribunal considers that the admitted conduct could fall within all three paragraphs of the definition of “professional misconduct” in s 5.
Submissions on Sanction
The parties have jointly proposed that the appropriate orders are that:
a) Dr Waldron’s registration be cancelled;
b) Dr Waldron be disqualified from reapplying for registration for a period of six months.
The parties have also agreed that Dr Waldron pay the costs, of and incidental to the proceedings, as agreed or assessed on the District Court Scale.
In the submissions, the parties referred to the previous statements by the Tribunal as to the receipt by the Tribunal of joint submissions and the approach to be taken by the Tribunal in determining sanction when the parties have reached an agreed position.
The appropriateness of the receipt of joint submissions in civil penalty proceedings was confirmed by the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate,[5] where the court stated:
…there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers.[6]
[5](2015) 258 CLR 482.
[6]Ibid, 503-504.
In an earlier Tribunal decision, this Tribunal had stated that it “ought not to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct”.[7]
[7]Medical Board of Australia v Martin [2013] QCAT 376, [91].
The parties have appropriately identified that Dr Waldron’s conduct was multifaceted, with the result that, in determining sanction, it is difficult to refer to one authority.
In the joint submissions, the parties referred to past authorities involving self-administration. Those authorities show a range of sanction varying between a reprimand and conditions,[8] to cancellation with an order that the practitioner not be allowed to reapply for registration for a period of 18 months;[9] the latter authority involving a referral where there were further allegations of misconduct as well.
[8]Health Care Complaints Commission v Nguyen-Phuoc [2009] NSWHT (7 December 2010), cited in Medical Board of Australia v Grant [2012] QCAT 285, [59].
[9]Healthcare Complaints Commission v Wong [2009] NSWMT (1 April 2010).
Reference was made to the decision in Medical Board of Australia v Keys.[10] In Keys, the practitioner’s registration was cancelled for 5 years from the date of suspension. The conduct of Dr Keys included prescribing pethidine to persons without sufficient medical reason, extending to prescribing to a person with whom the practitioner was in a relationship without there being a sufficient medical reason and the falsification of prescriptions. The conduct occurred over a significantly longer period and was more serious conduct than that of Dr Waldron.
[10][2002] QHPT 8 (Keys).
The joint submissions refer to the aspects of the registrant’s conduct that were akin to dishonesty: falsifying the controlled drug register and the conduct of providing false and misleading information to DDU investigators, which included extracts of the falsified controlled drug register and falsified patient records.
In the joint submissions, the parties referred to the decisions in Medical Board of Australia v Putha,[11] Psychology Board of Australia v Wakelin,[12] Nursing and Midwifery Board of Australia v CD,[13] Nursing and Midwifery Board of Australia v Roos[14] and Medical Board of Australia v Shah,[15] which each involved at least an element of dishonesty.
[11][2014] QCAT 159 (Putha).
[12][2014] QCAT 516.
[13][2011] QCAT 728 (CD).
[14][2016] QCAT 231 (Roos).
[15][2016] QCA 158 (Shah).
In Medical Board of Australia v Putha, the Tribunal stated:
“The dominant factor influencing the terminations in this type of misconduct must be general deterrence of others from misleading the registering authorities.”[16]
[16]Putha, [32].
In Putha, the Tribunal was considering conduct by Dr Putha in providing false information to the Board in support of her application for registration. In her application for registration in Australia, Dr Putha had knowingly exaggerated the extent of her experience in Indian clinics. The Tribunal ordered Dr Putha’s registration be cancelled and Dr Putha be precluded from applying for registration for a period of one year from the date of the order. In making that order, the Tribunal commented that the overall effect was that Dr Putha would have suffered a minimum disbarment of two years.
In referring to the decision of CD, in the joint submissions the conduct of CD was said to be more serious. The conduct involved the giving of false and misleading statements to the Board’s health assessors and to the investigators and also included fraudulently altering the results of drug screening tests and engaging in Medicare and WorkCover fraud.
By the date of the hearing, CD was not currently a registered nurse. Relevantly, the Tribunal commented that cancellation would have been appropriate but, given the registration status of the nurse, it was of no utility.[17] By the date of hearing, CD had not practised as a nurse for some four and a half years. The Tribunal ordered that she not apply for registration until a further period of three years had elapsed from the date of the orders.
[17]CD, [44].
The conduct of CD was certainly worse. Whilst there is a similarity in the dishonesty of both practitioners in their dealings with their respective registration boards, CD’s dishonesty extended beyond her dealings with the registration board and resulted in criminal charges for fraud and drug possession.
The dishonest conduct in Roos and Shah is so different that the cases provide little guidance.
There is no doubt, however, that dishonesty by practitioners in their dealings with registration boards is treated by the Tribunal as very serious behaviour. The conduct of Dr Waldron in falsifying records and giving false and misleading information to the investigators is in some respects an even more serious reflection on the her character than her drug dependency.
In considering sanction, it is relevant that Dr Waldron has not practised as a consequence of the order of the Board since August 2013. There is no dispute that the period of non-practice should be directly taken into account.[18]
[18]Joint Submissions, [33].
Dr Waldron still appears on the National Register, though her registration is stated to be both suspended and expired; the registration having expired on 30 October 2013.
Power to Cancel
The matter at issue is what sanctions the Tribunal can impose.
Section 196(2) of the National Law permits the Tribunal to caution or reprimand a practitioner, impose a condition on the practitioner’s registration, fine a practitioner, suspend a practitioner’s registration for a specified period or cancel a practitioner’s registration. Section 196(4) further provides that if the Tribunal decides to cancel a person’s registration or the person does not hold registration, the Tribunal may also decide to disqualify the person from applying for registration or prohibit the person from using a specified title or providing a specified health service.
No difficulty is occasioned by the mere fact that the registration of a person has already been suspended in circumstances where the underlying registration period has not expired. Clearly, in those circumstances the Tribunal can impose any of the sanctions outlined in ss 196(2) and 196(4). In particular, in respect to such a practitioner, the Tribunal can make an order for cancellation. The combined effect of ss 138 and 207 of the National Law means that the practitioner can be dealt with as though the practitioner were still registered and an order made for cancellation.
However, the position is different where the registration has expired, or lapsed. Registration of a health professional is not a permanent state, but one granted for twelve months, and where it is not renewed, the registration ends. Section 138 permits disciplinary proceedings being taken even though the person is no longer registered. There is no equivalent of s 207 enabling such a person to be treated as if registered for the purposes of the provisions dealing with disciplinary proceedings contained in Part 8.
Some of the sanctions set out in s 196(2) clearly could not be applied where the registration has lapsed.
In circumstances where there is no subsisting registration, there is no registration upon which conditions can be imposed under s 196(2)(b) of the National Law. In this case, appropriately the parties did not seek the imposition of conditions.
Similarly, where there is no subsisting registration, there is no registration which can be suspended.[19] That is not suggested here either.
[19]Nursing and Midwifery Board of Australia v Piantadosi [2014] SAHPT 13, [51].
It would be possible to caution or reprimand the practitioner (as occurred in Roos, Medical Board of Australia v Love[20] and Health Ombudsman v Antley),[21] or to fine the practitioner, but in the joint submissions those sanctions are also not proposed in this case.
[20][2013] QCAT 608 (Love).
[21][2016] QCAT 472 (Antley).
In the joint submissions, the parties submitted that the appropriate orders included cancellation and a six month period of disqualification from applying to be re-registered. The effect of that submission is that the parties considered the appropriate period of disbarment is four years.
The Tribunal accepts that the totality of the conduct of Dr Waldron supports both an order for cancellation and an effective period of disbarment of four years. The Tribunal considers that in all the circumstances that period is within the appropriate range.
The difficulty is finding a source for the power to cancel the registration.
Further Submissions on Power
After the Tribunal had an opportunity to consider the joint submissions, and became appraised of the current position concerning the registrant and the potential limitations in its powers, it invited the parties to make submissions on the power of the Tribunal to impose the sanction agreed between them. Separate submissions were subsequently submitted.
The Board made a simple submission: despite the suspension of Dr Waldron’s registration, the registrant was taken to be registered for the purposes of this proceeding, and therefore the Tribunal had power to cancel her registration. It also relied upon an internal policy which it submitted dealt with the position on its data base.
On behalf of the registrant, despite the previous joint submissions, it was submitted that it did not make sense to suspend or cancel the registration of a person who was not registered. The submission emphasised the assumption in the National Law that registrants must seek renewal of their registration on a yearly basis, and it was submitted that they could do so even if suspended.
The registrant referred to the previous decisions of the Tribunal in Love and Antley where the Tribunal had made orders disqualifying the practitioner from applying for registration for a specified period after the date of the orders; the specified period was commensurate with what was determined to be the appropriate period minus the period of registration already lost.
In both Love and Antley, the Tribunal also imposed a reprimand.
It is unfortunate that the Board, who is an experienced litigant in this jurisdiction and was the litigant in Love, proposed orders which it should have known could not be made, and then, when invited to make submissions on the issue, did not canvass these or any other matters of legal principle which would have enabled the Tribunal to properly deal with the misconduct of Dr Waldron.
Sanction
The orders made in Love and Antley are clearly permitted under s 196 of the National Law and appropriately deal with the misconduct given the limitations of the legislation. The Tribunal cannot cancel a registration which does not exist. The Tribunal can, as was done in those cases, further publicly recognise the misconduct by the inclusion of a reprimand.
In the present case, the period of disqualification proposed in the joint submissions is six months. As commented above, that would make the effective period of disbarment four years from the date of the joint submissions as a consequence of an order of the Board made in August 2013.
Given the passage of time since the making of the joint submissions and accepting as the Tribunal does that a period of four years is within range, the appropriate order of the Tribunal will be to disqualify Dr Waldron from applying for registration for a period of one week from the making of this order.
The Board can canvass questions of current competency, fitness to practice and possible supervision at the time of assessing any application by Dr Waldron for registration.
In addition to the disqualifying orders, the Tribunal considers it is appropriate that Dr Waldron be reprimanded.
Costs
In the joint submissions, the parties agreed that Dr Waldron should pay the Board’s costs as agreed or, in default of agreement, assessed on the District Court Scale.
The issue of costs in Tribunal proceedings has been the subject of a Court of Appeal decision in Medical Board of Australia v Wong[22] and recent Tribunal decisions.[23] Given the recent decisions since the filing of the joint submissions, the parties were asked to make further submissions on costs. In those further submissions, both parties submitted that the appropriate order was that the practitioner should pay the Board’s costs.
[22][2012] QCA 42 (Wong).
[23]Antley; Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249; Nursing and Midwifery Board of Australia v Faulkner (No 2) [2017] QCAT 273.
Since the introduction of the Health Ombudsman Act 2013 (Qld), the issue of costs falls to be determined under the QCAT Act. Pursuant to ss 100 and 102 of the QCAT Act, the parties must each pay their own costs, unless “the interests of justice require” the Tribunal to make a costs order against a party.
Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order, including, as identified by the Board in its submissions, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant.
The Court of Appeal in Wong described it as “a basis for departing from the default position.”[24] Judicial Member the Honourable James Thomas AM QC in Antley said the proper approach for the Tribunal is whether there are “countervailing considerations”.[25]
[24]Wong, [35].
[25]Antley, [61].
In its submissions, the Board referred to the fact that the proceedings were complex, involving lengthy negotiations with both parties being legally represented.
Significantly, the Board referred to an agreement being reached, taking into account Dr Waldron’s circumstances in these proceedings and earlier proceedings before the Tribunal. In the submissions on behalf of Dr Waldron, reference is made to the Board’s agreement to forgive a debt arising from the costs order made by the Tribunal in Dr Waldron’s 2013 Appeal being a collateral agreement to the agreement of the parties in this matter to make the joint submission on costs. It was said, the agreement was reached in an effort by the parties to finally resolve all issues between them and to allow Dr Waldron to finally terminate her relationship with the Board.
Dr Waldron, represented by Avant Law, submitted that it was relevant for the Tribunal to consider the desirability of both parties being able to negotiate a joint position on costs in the expectation that such a position is likely to be adopted if the Tribunal considers it reasonable.
In the present circumstances, the Tribunal will have regard to the negotiated position of the parties. The Tribunal considers it is appropriate to make the order as to costs as submitted by both parties.
Non-publication order
Dr Waldron has applied for the continuance of the non-publication order preventing the publication of identifying information about her.
On behalf of Dr Waldron, it was said the facts of the application are intensely personal and relate to her health, and she and her spouse live in a small regional community.
It was submitted that there is no public protective purpose to be served by any further unnecessary embarrassment of Dr Waldron and any general deterrent value will exist regardless of the presence of identifying information.
It is submitted that the events in question are now more than half a decade ago. Dr Waldron has repeatedly communicated through her solicitors that she does not wish to seek registration as a medical practitioner in the future but only to put these events behind her.
The Board submits that the Tribunal may only make the order if the Tribunal considers it is necessary having regard to the matters described in s 66 of the QCAT Act.
While the Board does not object to the continuance of the current order, the Board submits that Dr Waldron has not advanced a compelling reason why the non-publication order should remain.
Deputy President Horneman-Wren SC DCJ made a non-publication order in these proceedings on 11 September 2015. At that time, the Tribunal ordered under s 66(1) that, until further order, publication of the contents of a document or other thing produced to the Tribunal, or evidence given before the Tribunal, is prohibited to the extent it could identify Dr Waldron’s name or location of the Dr Waldron’s medical centre. The order did not extend to the non-publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified as permitted by s 66(1)(c). However, given the terms of the order such an extension is unlikely to be necessary in order to enable the Tribunal to publish its reasons de-identified. Such an approach is certainly consistent with the submissions made on behalf of Dr Waldron.
Section 66(2) of the QCAT Act prescribes the circumstances under which a non-publication order can be made and includes to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice.
The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary.[26] The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.
[26]Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [8].
The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.”[27] The onus is on the applicant to show special circumstances exist which justify the making of the order.[28]
[27]Ibid, [8] referring to Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).
[28]Ibid, [9], citing.
Dr Waldron has not filed any evidence to suggest that the publication of her name is likely to endanger her health. In the affidavit of Michael Wade, the solicitor for Dr Waldron, reference was made to Mr Wade having been instructed that Dr Waldron has been diagnosed with incurable stage 4 metastatic melanoma which is currently in remission. It is not said, and nor is there any independent medical evidence, that publication would have any negative impact on that condition.
The highest that it is put is that the information is intensely personal and Dr Waldron and her spouse live in a small regional community. Where the publication concerns identification of parties affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” or damage to reputation has generally not been considered a sufficient reason to prohibit publication.[29]
[29]Ibid, [10]; see also Dye v Commonwealth SecuritiesLimited [2010] FCAFC 115, [13]; Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151.
In X v Australian Prudential Regulation Authority,[30] Kirby J observed:
However, every day, in our courts, parties and witnesses must disclose their names and identities, although this is doubtless often uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country.[31]
[30](2007) 226 CLR 630.
[31]Ibid, 655–656.
In Legal Services Commissioner v Sing (No 2),[32] sitting as the Legal Practice Tribunal, the Chief Justice relevantly observed that the Tribunal must be very careful not to thwart the objective of transparency, accountability and independence by, for example, a non-publication or suppression order if this was seen to elevate the practitioner’s private interest over the public interest, which should rightly predominate.[33]
[32][2007] LPT 005.
[33]Ibid, 4.
In Medical Board of Western Australia v A Medical Practitioner,[34] the WA Court of Appeal emphasised that there must be a real and substantial connection between the publication of the material and the relevant adverse consequences. The court held:
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’.[35]
[34][2011] WASCA 151.
[35]Ibid, [88].
Based on the evidence currently before the Tribunal, the Tribunal does not consider it is necessary for this decision to be de-identified, or the existing non-publication order to remain.
The Tribunal will however not disturb the existing non-publication order for the period up until 1 March 2018 to enable Dr Waldron either to file additional material in the Tribunal directed to the continuation or variation of the existing non-publication order or to appeal the decision in relation to continuation or variation of the existing non-publication order. If no additional material is filed in the Tribunal or appeal commenced within that time, the non-publication order will cease and this decision will be published with the name of Dr Waldron inserted instead of the pseudonym XY.
The parties will be given liberty to apply.
Accordingly, the Tribunal orders that:
a) Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the Tribunal finds that Dr Waldron has behaved in a way that constitutes professional misconduct.
b) Pursuant to s 196(2)(a) of the National Law, Dr Waldron is reprimanded.
c) Pursuant to s 196(4)(a) of the National Law, Dr Waldron is prohibited from applying for registration for a period of one week from the date of these orders.
d) Until 1 March 2018 or further earlier order, the non-publication order made on 11 September 2015 pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) shall continue.
e) On 1 March 2018, in the event that no additional material is filed directed to the continuation or variation of the non-publication order or no appeal is commenced in relation to the decision with respect to the continuation or variation of the non-publication order, the non-publication order made on 11 September 2015 shall cease and this decision will be published with the name of Dr Waldron inserted instead of the pseudonym XY.
f) Dr Waldron pay the costs of the proceedings as agreed or, in default of agreement, as assessed on a standard basis on the District Court Scale.
g) If required to be assessed, the costs shall be assessed by an assessor to be agreed by the parties and in default of agreement appointed by the Tribunal.
h) Dr Waldron shall pay the costs (as agreed or as assessed) within 28 days of such agreement or assessment.
i) There be liberty to apply.
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