Tribunal Restricts Publication of Patient Names in Disciplinary Proceedings

The NSW Civil and Administrative Tribunal made a new non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) to restrict the publication of patient names in disciplinary proceedings. The order was made to protect patient privacy and prevent breaches of previous non-publication orders.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] Commission v [NAME] (Publication Application) [2019] NSWCATOD 160 Hearing dates: On the papers Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: (1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 13 November 2017 save and except [NAME]. Catchwords: [NAME] care professionals – medical practitioners – where order sought to publish the name of a [NAME]/pharmacist formerly subject of an order under the [NAME] National Law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) [NAME] National Law (NSW) Cases Cited: [NAME] Commission v [NAME] (Publication Application) [2019] NSWCATOD 31 [NAME] v [NAME] Commission [2019] NSWCATOD 142 Medical Council of New South Wales v Lee [2017] NSWCA 282 Pharmacy Board of Australia v Kazeme (Review and Regulation) [2019] VCAT 72 Category: Consequential orders (other than Costs) Parties: [NAME] Commission (Applicant) Dr [NAME] (Respondent) Representation: Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2017/00343072 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 13 November 2017 save and except [NAME].

REASONS FOR DECISION

The current application 1. On 13 July 2018, at the completion of disciplinary proceedings brought by the [NAME] Commission ([NAME]) against [NAME] ([NAME]) under the [NAME] National Law (the National Law), an order was made restricting publication of the names of patients set out in the schedule to the complaint. The [NAME], by application filed on 11 October 2019, now seek a different non-publication order.

2. One of the patients for whom [NAME] prescribed was a pharmacist, [NAME] ([NAME]). [NAME] was described in the schedule to the complaint made by the [NAME] as [NAME]. Thus, until this application is determined, if [NAME]'s name is published by the Tribunal, it may constitute a breach of the order.

3. The [NAME] instituted proceedings in the Tribunal against [NAME] on 25 March 2019 (the pharmacy complaint). Those proceedings have been adjourned part-heard before a panel of the Tribunal constituted under s 165B of the National Law. 4. [NAME] was subject of disciplinary proceedings conducted in the Victorian Civil and Administrative Tribunal (VCAT) on 19 November 2018 (Pharmacy Board of Australia v Kazeme (Review and Regulation) [2019] VCAT 72). At the conclusion of those proceedings, [NAME] was reprimanded, and her registration was cancelled. The Tribunal was not aware of the VCAT proceedings at the time of hearing the disciplinary proceedings in this matter. As is the normal course with disciplinary proceedings involving [NAME] practitioners, publication of [NAME]'s name was not restricted by VCAT.

5. In the current disciplinary proceedings, the [NAME] seek a prohibition order against [NAME]. Such an order, if made, would be recorded on the register maintained by the [NAME] on behalf of the [NAME] and available to members of the public.

6. The gravamen of the present application is set out in para 6 of the [NAME]'s "Grounds for the Application". The [NAME] submit as follows: There is a real risk that the publication of [NAME]'s name in Matter Number 2019/93243 shall breach the non-publication order made in [NAME] Commission v [NAME] [2018] NSWCATOD.

1. In support of this application, the [NAME] rely on the findings at [31]-[37] in [NAME] v [NAME] Commission [2019] NSWCATOD 142 and [NAME] Commission v [NAME] (Publication Application) [2019] NSWCATOD 31.

2. When the pharmacy proceedings were listed before me on 11 October 2019, an email was tendered by the [NAME] which disclosed that [NAME]'s solicitors had been notified of the present application and had no objection to the non-publication order being changed. In these circumstances, I indicated that the matter could proceed before me and be dealt with "on the papers". I was advised the pharmacy matter is next before the Tribunal on 24 October 2019.

3. For the reasons which follow, I have determined that first, I have jurisdiction to hear this application as a single member, and secondly that it is appropriate to make a fresh non-publication order under the Civil and Administrative Tribunal Act 2013 (NSW). The effect of that order will be to rescind and replace the non-publication order of 13 July 2018.

The relevant provisions of the National Law and the Civil and Administrative Tribunal Act 1. The relevant provisions of the National Law and the Civil and Administrative Tribunal Act are set out in [NAME] Commission v [NAME] (Publication Application) [2019] NSWCATOD 31. They include cl 7 of Schedule 5D of the National Law and s 64 of the Civil and Administrative Tribunal Act. Also set out in that decision is the definition of "ancillary order" in s 4 of the Civil and Administrative Tribunal Act.

2. It is useful that I now set out cl 7 of Schedule 5D and also section 64.

3. Clause 7 of Schedule 5D provides as follows: 7 Release of information [NSW] (1) The [NAME] in proceedings before a [NAME] or the Tribunal may, if the [NAME] thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the [NAME] or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a [NAME]; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the [NAME]. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the [NAME] for consideration of the matter to— (a) a person who requested the direction; and (b) the complainant or the [NAME], as appropriate; and (c) [NAME] the [NAME] thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units.

1. Section 64 of the Civil and Administrative Tribunal Act is in the following terms: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1. It is not in doubt that an ancillary order can be made by me (see s 165B(5A) of the National Law).

2. Noting the [NAME]'s reliance on the discussion by [NAME], AO, QC ADCJ in [NAME] v [NAME] Commission at [31]-[37], I set out below those paragraphs. [NAME] was dealing with an application by a [NAME] for access to names of patients whose records had been part of the evidence before the Tribunal in professional disciplinary proceedings against a doctor. [NAME] explained, in refusing to set aside an order made under cl 7 of Schedule 5D of the National Law, as follows: In [NAME], the Tribunal considered a circumstance in which a relative of a deceased [NAME] of [NAME] could seek an order exempting that [NAME]'s name from a non-publication order made under cl 7 of Schedule 5D of the National Law. The Tribunal adopted the observations referred to above in [NAME] v [NAME] (No 2), namely that where the proceedings have been completed, or where the [NAME] is not available to determine an application to vary an earlier order, there is no power to do so under cl 7. The Tribunal referred (at [27]) to the observations of the [ADDRESS] of Appeal in Medical Council of New South Wales v Lee [2017] NSWCA 282. In this decision Sackville AJA considered the question whether s 64 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) ("NCAT Act") (contained in Part 4 of the NCAT Act) which empowered the Tribunal to prohibit or restrict publication or disclosure of the name of any person a party to proceedings or a witness before the Tribunal, was subject to the requirements of the National Law. Section 64 of the NCAT Act relevantly provides: … Sackville AJA found that since the provisions of Part 4 of the NCAT Act were made "subject to" the laws (including the National Law), the National Law prevailed. However, in [NAME], the Tribunal found at [28] that there was no conflict between the operation of s 64 of the NCAT Act and cl 7 of Schedule 5D of the National Law, since cl 7 was limited to a defined period of time "when the members of the panel to hear a matter have been appointed…". At [28] paragraphs (3) and (4) Boland ADCJ said: "(3) I do not find that s 64, being a provision of the NCAT Act, can be invoked to vary an order made under cl 7 of Schedule 5D as the power to vary an order in s 64(3) is limited to variation of an order made under s 64(1). (4) I am satisfied that a new order can be made under s 64 as an ancillary order and that order, by implication, will rescind any order made under cl 7 of Schedule 5D and supersede that order." As was referred to in [NAME], the Tribunal may make an ancillary order, as defined in s 4 of the NCAT Act, being a decision that is preliminary to, or consequential on, a decision determining proceedings. Adopting the reasoning in [NAME], this Tribunal finds that it possesses power, insofar as there may have been any deficiency in such order made under cl 7, to make an order to the same effect pursuant to s 64 of the NCAT Act. It follows that whilst the order made under cl 7(1) cannot be varied nor discharged, the Tribunal may make an ancillary order under s 64 of the NCAT Act to reflect the intention of the Tribunal at the time the order was made, and to clarify any doubt that might exist concerning its validity by reason of the erroneous reference to the power to make such order. It follows that the [NAME]'s application to set aside the order made under cl 7 does not succeed.

1. In [NAME] Commission v [NAME] (Publication Application), I referred to the decision of Sackville AJA in Medical Council of New South Wales v Lee [2017] NSWCA 282. In Medical Council of New South Wales v [NAME] discusses the correct interpretation of s 35 of the Civil and Administrative Tribunal Act and the limitation that section imposes on the use of the practice and procedure provisions found in Part 4 of that Act. In Medical Council of New South Wales v [NAME], Sackville AJA was considering whether, on a proper construction of the National Law, reliance could be placed on the stay provisions of the Civil and Administrative Tribunal Act.

2. In [NAME] Commission v [NAME] (Publication Application), I considered whether cl 7 of Schedule 5D ousted the operation or potential availability of s 64 of the Civil and Administrative Tribunal Act. At [28] I explained: It is relevant to note that in construing the National Law, Sackville AJA took into account the history of the legislation. [NAME] explained that the National Law had been in operation since 2010, but the NCAT Act only came into force on 1 January 2014. It is also relevant to note that Schedule 2 cl 6 of the Medical Practice Act 1992 (NSW) (repealed) was in almost identical terms to cl 7 of Schedule 5D. I have been unable to locate any decision of the former Medical Tribunal of NSW where an order made under Schedule 2 cl 6 was varied after the conclusion of proceedings. Applying these principles I find: (1) Although at first blush there may appear to be a direct conflict between the two provisions, on closer analysis I am not satisfied the National Law provides an exclusive code and prevails over the NCAT Act. Clause 7 is limited to a defined period of time when the members of the panel to hear a matter have been appointed, including the allocation of a matter to a member of NCAT qualified under s 165B(2)(a) or a judge appointed under s 15 of the NCAT Act. There may be occasions when a Tribunal determines a non-publication order should be made but it is not possible to notify other persons in accordance with sub-cl 3. As in this case, the wording of the clause does not support a variation of an order once the disciplinary proceedings have been completed. Thus, cl 7 as presently drafted is not inconsistent with s 64. (2) Section 64 may be construed as the dominant provision and cl 7 as the subservient provision. Thus, any apparent inconsistency is overcome. It is strongly arguable that since the establishment of the Tribunal, s 64 provides a comprehensive statutory framework for non-publication orders and that cl 7 has no work to do and could be repealed. (3) I do not find that s 64, being a provision of the NCAT Act, can be invoked to vary an order made under cl 7 of Schedule 5D as the power to vary an order in s 64(3) is limited to variation of an order made under s 64(1). (4) I am satisfied that a new order can be made under s 64 as an ancillary order and that order, by implication, will rescind any order made under cl 7 of Schedule 5D and supersede that order.

Consideration 1. It is clear that at the time the substantive proceedings were heard in this matter, it was not known to the Tribunal that disciplinary proceedings would also be instituted against [NAME]. The order made under cl 7 of Schedule 5D was, at the time it was made, supported by both parties. It will be remembered that the order included all patients for whom [NAME] had written prescriptions.

2. It is also a matter of fact that [NAME]'s name is publicly disclosed in the VCAT decision and available on various internet sites. The orders made are publicly available on the register. This is in accordance with the principles of open justice and the protection of the [NAME] and safety of the public.

3. I accept that, if the Tribunal in the present disciplinary proceedings against [NAME] published her name, this may be regarded as a breach of the non-publication order in this matter. It is important to note the underlying facts in the substantive proceedings in this matter are broadly identical to the pharmacy proceedings now before the Tribunal.

4. No special or exceptional circumstances are revealed by the [NAME], a model litigant, in its application that could justify maintaining a non-publication order in these proceedings against [NAME]. It is arguable, as [NAME], unlike other patients, did not provide a witness statement in these proceedings, that she was not covered by the order made under cl 7(1)(a) of Schedule 5D. However, to remove any doubt about the order, I am satisfied it is appropriate to make a fresh order under s 64 in respect of all other patients who were referred to in the complaint in the substantive proceedings in this matter except [NAME] ([NAME]). Such a course respects and protects the privacy of those other patients. The making of such an order also precludes a breach, if any, of the existing non-publication order with the use of [NAME]'s name in the pharmacy proceedings.

Orders 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 13 November 2017 save and except [NAME].

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2019