| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and L [2011] WASAT 98 (S) MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 9 AUGUST 2010 SUBMISSIONS 3 SEPTEMBER AND 29 SEPTEMBER 2010
DELIVERED : 30 JUNE 2011 SUPPLEMENTARY
DECISION : 28 FEBRUARY 2012 FILE NO/S : VR 150 of 2009 BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA Catchwords: Non-publication order - Vocational regulation - Claim of impairment while medical practitioner - Disciplinary proceedings heard with impairment proceedings - Non-publication order made in relation to impairment proceedings - Whether order prohibiting publication of practitioner's name should be continued following publication of reasons
(Page 2)
Legislation: Health Practitioner Regulations National Law Act 2010 (WA)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 61(4), s 61(4)(g), s 62(3) Result: Non-publication order made in disciplinary proceedings and maintained in impairment proceedings Category: B
Representation: Counsel:
Applicant : Mr P Tottle
Respondent : Mr K Bradford
Solicitors:
Applicant : Tottle Partners
Respondent : Bradford and Co
Case(s) referred to in decision(s):
Medical Board of Western Australia and L [2011] WASAT 98
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Following publication of the Tribunal's decision in relation to an allegation of improper conduct and an allegation of impairment, against a medical practitioner, the Tribunal was required to determine whether an order for the nonpublication of the practitioner's name, made in the impairment proceedings, should be continued or set aside. Because the proceedings in relation to each allegation had been heard together, and a single set of reasons delivered, the question also arose as to whether, if the nonpublication order in the impairment proceedings was maintained, a similar order should be made in relation to the improper conduct proceedings. 2 The practitioner adduced evidence of a psychiatrist and a clinical psychologist to the effect that the consequences of publication of the practitioner's name may result in a relapse of his previous psychiatric and psychological conditions. In those circumstances, the Tribunal concluded that the nonpublication order should be maintained in the impairment proceedings, and so as to avoid rendering that order ineffective, a similar order should be made in relation to the improper conduct proceedings.
Background 3 In proceedings reported as Medical Board of Western Australia and L [2011] WASAT 98, the Tribunal determined two applications brought by the Medical Board of Western Australia (Medical Board) against a medical practitioner. In one set of proceedings, the Medical Board alleged improper conduct (the improper conduct proceedings). In the other, it alleged that the practitioner suffered from an impairment (the impairment proceedings). 4 On 19 May 2010, an order was made by her Honour Judge Pritchard (as she then was), in the impairment proceedings, that the respondent's identity should not be published. No corresponding order was made in relation to the improper conduct proceedings. 5 In its published reasons, the Tribunal anonymised the practitioner's identity having regard to the still current nonpublication order in the impairment proceedings. The Tribunal invited the parties to make submissions as to whether the nonpublication order should be maintained following delivery of the reasons for decision. (Page 4)
6 The respondent's counsel attached to his submissions letters from a psychiatrist and a psychologist. They were in agreement that, were publication of the practitioner's name to lead to his dismissal from his now stable employment, he would be liable to a relapse of the depressive illness from which he has suffered in the past, but which is presently the subject of successful treatment. 7 Section 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), enables the Tribunal to make an order that the identity of a person who has appeared before the Tribunal not be published. In order to make such an order, there must exist one or more of the circumstances described in s 61(4) of the SAT Act. The circumstances set out in s 61(4) include circumstances in which it is necessary for an order to be made to avoid endangering the physical or mental health or safety of any person, or for any other reason in the interests of justice. The respondent submits that those circumstances exist in the present case. 8 I am satisfied that, on the basis of the letters submitted with the respondent's submissions, that, were publication of the respondent's name to lead to his dismissal of his employment, there is a real or substantial risk that the mental health of the practitioner would be affected. 9 The Medical Board submits that the practitioner has not adduced any adequate evidence that publication of his name would be likely to have the consequence upon which the medical experts have based their opinion, namely, that he would lose his employment. Since that is said to be the event that might trigger a relapse of his illness, the Medical Board submits that there is no adequate basis for the nonpublication order to be maintained. 10 It is apparent that, at the time of the delivery of the decision, the practitioner was employed by two separate employers. Publication of the reasons apparently led to his being stood down by one of those employers. His concern is that further publication may similarly jeopardise his remaining employment. I am satisfied that it is reasonable to infer from his experience thus far that the risk he fears is a real risk. 11 The orders made following the hearing resulted in the imposition of fairly onerous conditions on the practitioner designed to ensure that his psychological impairment continues to be treated and thereby any risks to patients are effectively removed. Conditions also allow for ongoing monitoring of his condition. Through that mechanism, the safety of (Page 5)
patients with whom he may come into contact in his existing employment is achieved. 12 The structure of the Medical Practitioners Act 2008 (WA), and its successor, the Health Practitioner Regulations National LawAct2010 (WA), so far as they deal with impairment, is designed to assist practitioners who suffer from some impairment in dealing with that impairment effectively so as to ensure the protection of the public and, where possible, the ongoing capacity of the practitioner to pursue his or her career. In my view, that objective can be achieved without publication of the practitioner's name, and indeed, is assisted by the existence of a non-publication order. Proceedings in relation to alleged impairment will commonly involve the disclosure of medical history and records of a confidential nature. One of the bases for making a nonpublication order is where it is necessary to avoid publication of confidential information - s 61(4)(g). It may be that, having regard to the likelihood of disclosure of confidential information, and the fact that physical or mental health are often the focus of impairment proceedings, non-publication orders may generally be more readily made in impairment proceedings than in disciplinary proceedings. 13 In this case, the impairment proceedings and the disciplinary proceedings have become inextricably linked. To make a nonpublication order in the impairment proceedings, but not in the disciplinary proceedings, would render the nonpublication order ineffective. That is because the two matters had an interrelationship which led to them being dealt with in a single hearing, and to them being the subject of a single published decision. In those circumstances, and in order to avoid endangering the mental health of the practitioner, I consider it appropriate that there be a non-publication order made in relation to the disciplinary proceedings so as to prohibit the publication of the practitioner's name. 14 It follows that, in my view, the order made by Judge Pritchard in VR 155 of 2009, the impairment proceedings should stand unaffected. In addition, there should be an order in matter VR 150 of 2009, improper conduct proceedings, that the name of the practitioner not be published. (Page 6)
Orders 15 In VR 150 of 2009 1. Pursuant to s62(3) of the State Administrative Tribunal Act 2004 (WA), the name of the respondent shall not be published. |