NURSING AND MIDWIFERY BOARD OF AUSTRALIA and A PRACTITIONER - [2019] WASAT 148

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA and A PRACTITIONER [2019] WASAT 148
MEMBER:   JUSTICE PRITCHARD, PRESIDENT
HEARD:   15 OCTOBER 2019
DELIVERED          :   15 OCTOBER 2019
PUBLISHED           :   7 FEBRUARY 2020
FILE NO/S:   VR 91 of 2019
BETWEEN:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
A PRACTITIONER
Respondent

Catchwords:

Practice and procedure - Application for nonpublication order - Tribunal's power under s 62 of the State Administrative Tribunal Act 2004 (WA) - Whether a nonpublication order is necessary - Where health information referred to would endanger the physical or mental health or safety of the respondent - Where nonpublication order undermines the transparency of the disciplinary process and deterrence under the Health Practitioner Regulation National Law (WA) Act 2010 - Where the nonpublication order sought applies to the respondent's name and any other identifying information

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 196, s 206
State Administrative Tribunal Act 2004 (WA), s 61(4), s 62(3)

Result:

Nonpublication order made

Category: B

Representation:

Counsel:

Applicant	:	Ms G McGrath
Respondent	:	Ms L Gandini

Solicitors:

Applicant	:	Panetta McGrath Lawyers
Respondent	:	ANF Legal Services

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

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression.)

Background

The Nursing and Midwifery Board of Australia (applicant) has alleged that proper cause exists for disciplinary action against the respondent under s 196 of the schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
The parties have reached agreement (set out in a Minute of Consent Orders dated 30 August 2019 (Minute)) as to the findings which they say should be made by the Tribunal (to the effect that proper cause exists for disciplinary action against the respondent) and as to the agreed facts on the basis of which the parties say that that finding should be made. The parties have also reached agreement as to the orders they say the Tribunal should make in light of a finding that proper cause for disciplinary action exists.
The Tribunal has not yet determined whether to make the orders sought by the parties in the Minute. Following the filing of the Minute the respondent advised that he wished to apply for a nonpublication order (Application). It is appropriate to deal with that Application before determining whether the orders sought in the Minute should be made.
The Application is an application for orders in the alternative. The respondent seeks either an order that his name or identifying details not be published, pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), or, alternatively, an order for nonpublication of certain parts of the annexures to the Minute (which set out the agreed facts that the parties say support the orders sought by consent in the Minute).
The basis for the Application is that disclosure of the identity of the respondent in the context of particular health information about him, which is referred to in the Minute and its annexures (Health Information) would endanger the physical or mental health, or safety, of the respondent. Alternatively, the Application is brought on the basis that a nonpublication order is necessary to avoid the publication of confidential information, or information the publication of which would be contrary to the public interest.
The applicant's position is that it neither consents to, nor opposes, the Application, but that it will accept a finding of the Tribunal with respect to non-publication of the respondent's name. I understand that that concession extends to any identifying information in respect of the respondent, as well as his name.

The basis for the non-publication order sought in the Application

The Tribunal's power to make a non-publication order lies in s 62 of the SAT Act. Under s 62(3):
[T]he 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.
The parties have agreed that certain exceptions should be specified in respect of the non-publication order that I now propose to make. I will return to those exceptions later in these reasons.
The 'things' to which s 62 of the SAT Act applies includes 'any information that might enable a person who has appeared before the Tribunal to be identified'. The name of the respondent is thus one of the particular things to which s 62 of the SAT Act is capable of applying.
The Tribunal may make a non-publication order in the circumstances described in s 61(4) of the SAT Act, which relevantly provides that:
The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so -
…
(d)to avoid endangering the physical or mental health or safety of any person; or
…
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest[.]
The principles relevant to the application of s 62 of the SAT Act, in the circumstances described in s 61(4) of the SAT Act, were discussed by the Court of Appeal in Medical Board of WesternAustralia v A Medical Practitioner.[1] Those principles were referred to in summary in Medical Board of Australia and Ogundipe:[2]
[1] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [86] - [88].
[2] Medical Board of Australia and Ogundipe [2019] WASAT 32 at [15].
The factors relevant to the exercise of the Tribunal's discretion to make an order under s 62(3) of the SAT Act were set out by the Court of Appeal in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [86] [88]. They can be summarised as follows:
1.The Tribunal has been given an express power to prohibit publication of the matters specified in s 62 of the SAT Act in the circumstances specified in s 61(4).
2.There are material differences of some significance between 'open justice principles' applied in common law courts, and the rights and obligations conferred on the Tribunal by the SAT Act.
3.These differences reinforce the observation that when an issue arises as to whether a nonpublication order ought to be made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the SAT Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts.
4.This does not mean that an expansive view should be taken of the powers conferred by the SAT Act to suppress publication of certain material. On the contrary, the language of the SAT Act 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 through s 61(4)(h).
5.The requirement that the order be 'necessary' reinforces that there must be a real and substantial connection between the publication of material and the relevant adverse consequence specified in the section.
6.A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a suppression order will not satisfy the statutory requirement that the order be 'necessary'.
7.The particular consequences specified in s 61(4)(a) (g) apply only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral.
In support of the Application, the respondent relied on the following:
•a report of Ms KS, a clinical psychologist, dated 18 September 2019;
•a report of Dr MJ, the respondent's general practitioner, dated 22 August 2019; and
•certain agreed facts (comprising the Health Information) set out in the Minute, including that the respondent was assessed by a consultant psychiatrist in October 2018 who opined that he was suffering from a 'persistent depressive disorder with intermittent periods of major depressive disorder and a high risk of future suicide'.
Dr MJ opined that the publication of the respondent's name, the orders of the Tribunal, and/or the statement of agreed facts filed in connection with the Minute would:
[E]ndanger [the respondent's] physical and mental health, as well as safety, in a very detrimental fashion - given his precarious mental state (which has just stabilised recently with treatment and psychological care via his psychiatrist and psychologist).
In her report, Ms KS reported that she has been treating the respondent since 3 September 2018. The respondent's symptoms since that date, as Dr MJ noted in his report, have been consistent with chronic depression. Ms KS noted that the disclosure of the agreed facts (set out in the Minute) in so far as they constituted the Health Information about the respondent (that is, his mental health diagnosis, suicidal ideation and involuntary admission to a psychiatric hospital) would be likely to cause distress for most people, but given the respondent's history, there was a higher risk that the distress would result in unhelpful coping mechanisms now and in the future, as well as the potential for a major depressive episode and increased risk of suicide.
The question now is whether the evidence supports the conclusion that a non-publication order is necessary to avoid endangering the respondent's physical or mental health or safety. I am satisfied that a non-publication order is necessary to avoid endangering the respondent's mental health.
The meaning of the word 'endanger', according to the Oxford English Dictionary, is to 'expose to danger or cause danger to'. The word 'danger' includes 'liability or exposure to harm or injury'. The views of the health professionals to which I have referred confirm that publication of the respondent's name, linked with the Health Information to which I have referred, will carry the potential for a major depressive episode and an increased risk of suicide. In my view, that clearly amounts to causing a danger to the mental health of the respondent. Having regard to the reports of Dr MJ and Ms KS, I am satisfied that there is a real and substantial connection between the publication of the respondent's name (and other identifying information), if linked with that Health Information, and the endangering of his mental health.
I am also satisfied, having regard to the history of the respondent's mental health outlined in the agreed facts in the Minute, and having regard to the opinions of the health professionals to which I have referred, that the possibility of endangering the respondent's mental health, as a result of the publication of his name or identifying information, linked with the Health Information, is not a remote one, and that the connection between such publication and the possibility of endangering his mental health is not indirect or tenuous.
I am so satisfied, notwithstanding the indication in Ms KS' report and in Dr MJ's report that the respondent's condition has improved with recent treatment. In my view, it is clear that the existence of the chronic and thus ongoing depressive condition described by the health professionals provides the clear connection between the possibility of endangering the respondent's mental health in the future by virtue of the publication of information which would identify him.
Making a non-publication order in relation to the name of the 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 a nonpublication order is the only way to avoid endangering the respondent's mental health in the present circumstances.
As I indicated at the outset, the Application sought orders in the alternative, including a non-publication order in relation to certain parts of the agreed facts set out in the Minute, which refer to Health Information relating to the respondent. Assuming for the moment that the Tribunal will proceed to make orders on the basis of the agreed facts in the Minute, the difficulty likely to be caused by a nonpublication order of that alternative kind would be that so much of the Tribunal's basis for making a determination in the terms of the consent orders would be suppressed as to render the basis for the orders unintelligible. This would also be antithetical to the deterrent element in the protective object of disciplinary proceedings. That alternative form of the non-publication order is also undesirable because it ignores the possible risk of endangering the mental health of the respondent if his name is linked to the Health Information in any context in the course of this proceeding, including by the publication of these reasons.
In my view, all of those considerations support the conclusion that it is necessary to make the non-publication order in order to avoid endangering the mental health of the respondent, and that the appropriate form of that order, having regard to that necessity, is an order which is directed to the non-publication of the respondent's name and any other identifying information. In other words, that nonpublication order will cover not only the respondent's name, but any information which will identify him, apart from his name. That may include certain other details about the respondent, such as information in relation to his employment which would identify him (such information is referred to in the agreed facts annexed to the Minute).
The parties have helpfully provided the Tribunal with a version of the Minute and the annexures thereto (namely, the agreed facts, and the conditions which the parties agree should be imposed on the respondent's registration) from which all identifying information about the respondent has been redacted. That redacted copy of the document may be of assistance to the Tribunal, should it determine to make the orders sought by the parties, and to proceed to publish those orders.
Earlier in these reasons I indicated that the parties have conferred in relation to the exceptions which might be required in relation to the non-publication order. As I have indicated, s 62(3) of the SAT Act permits the Tribunal to make exceptions to any non-publication order which exceptions permit publication in a manner, and to any persons, specified by the Tribunal.
At an earlier hearing, the parties accepted that there may be a necessity for certain disclosures of information identifying the respondent, consistent with the requirements of the National Law, or related to compliance with the conditions the parties have agreed should be imposed on the respondent's registration. The parties have agreed on the terms of the exceptions which will cover all of those contingencies. I am satisfied that the exceptions proposed by the parties are appropriate.
In view of my conclusion that a non-publication order should be made pursuant to s 62(3) of the SAT Act, in the circumstances described in s 61(4)(d) of the SAT Act, it is unnecessary to consider the alternative basis (under s 61(4)(g) of the SAT Act) on which the respondent relied in support of the Application.

Orders

The orders that the Tribunal will, therefore, make are as follows:
1.The respondent's name or identifying details are not to be published pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA).
2.This non-publication order does not prevent the applicant from providing the respondent's employer with notice of any health, conduct or performance action against the respondent as required pursuant to s 206 of the Health Practitioner Regulation National Law (WA) Act 2010.
3.This non-publication order does not prevent the applicant or the respondent from disclosing the respondent's name together with the conditions in Annexure B of the Minute of Proposed Orders dated 30 August 2019 (if made by the Tribunal) to the parties named in Schedule 1.
4.Copies of the conditions in Annexure B to the Minute of Proposed Orders dated 30 August 2019 (if made by the Tribunal) may only be disclosed to the parties in Schedule 1 to allow for:
(a)The respondent to comply with the conditions on his nursing registration; and
(b)The monitoring of the respondent's compliance with the conditions on his nursing registration.
5.There be liberty to apply to vary these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard
7 FEBRUARY 2020