QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Medical Board of Australia v TXA (No 1) [2023] QCAT 28	
PARTIES:	Medical Board of australia 	

(applicant)	

	v	
	txa	

(respondent)	

APPLICATION NO/S:	OCR 346-21	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	2 February 2023	
HEARING DATE:	2 February 2023	
HEARD AT:	Brisbane	
DECISION OF:	Judge Dann, Deputy President	
ORDERS:	1.	Until further order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 publication of:
(a)	The contents of a document or thing filed in or produced to the Tribunal;
(b)	Evidence given before  the Tribunal; and 
(c)	Any order made or reasons given by the Tribunal, 
Is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent, any family member of any patient of the respondent, the respondent and any family member of the respondent save as provided for by the terms o this order and save as is necessary for the parties to engage in and progress these proceedings. 
2.	Any material affected by the non-publication  order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member , any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to the proceeding. 
3.	If medical records of any patient of the respondent or any family member of such patient are included in the material, such records shall be provided to the Tribunal in sealed envelopes clearly marked with the name and number of the proceeding and the statement that it is
“not to be copied or inspected without an order of the Tribunal, except by a judicial member, Tribunal member, any assessor appointed to assist the Tribunal, the staff of the Tribunal registry or the parties to the proceeding.” 	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY REFERRAL – OPEN COURTS PRINCIPLE – APPLICATION FOR A NON-PUBLICATION ORDER – where the applicant Medical Board has made a disciplinary referral against the respondent practitioner – where the respondent previously applied for review of the Board’s decision to suspend his registration arising out of substantially similar allegations – where the applicant applies for a non-publication order – where the respondent accepts that a non-publication order should be made, but contends that the non-publication order should extend to him – where the applicant contends the non-publication order should not extend to cover the respondent – where the respondent and the notifier are members of a small identifiable community – where a non-publication order was made in the previous review proceeding – whether a different order should be made in this proceeding – whether making a different order in this proceeding would undermine the Tribunal’s order in the previous proceeding – where the identity of the respondent could identify the notifiers or other third parties – where the applicant contends that the notifiers prefer that publication of the respondent’s identity be permitted even if it will result in them being notified – whether the non-publication order should extend to the respondent practitioner
Queensland Civil and Administrative Tribunal Act 2009 s 66
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
HA v Nursing and Midwifery Board of Australia [2021] QCAT 91
Health Ombudsman v Shermer (No 2) [2019] QCAT 54
LSC v XBV [2018] QCAT 332
TXA v Medical Board of Australia [2021] QCAT 279	

APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
What does the Tribunal have to decide? 
[1]	The question for the Tribunal is, assuming it should make a non-publication order, whether that order should protect the identity of the respondent practitioner, until further order. 
[2]	The facts giving rise to the disciplinary referral have already been before the Tribunal, as the respondent practitioner applied, successfully, to set aside the Board’s decision to take immediate action to suspend his registration. The Tribunal adopts the earlier recitation of those facts without repeating them. 
[3]	In coming to that decision, the Tribunal made a non-publication order which protected the identity of the respondent and his wife. The transcript of the hearing discloses that it did so because it determined that given the fact of the therapeutic relationship between the respondent and the patient, and the social relationships between the respondent and his wife and the patient and the patient’s wife, to identify the respondent would carry a very real risk that members of the public, in particular members of the relevant community in Brisbane, would become informed of the patient’s medical issues.  
[4]	It did so even where in submissions about the order, the Tribunal was informed that the patient and the patient’s wife were content for all details to be published except their names and the names of some others involved in the factual matrix giving rise to the allegations the subject of the referral.  
What do the parties each seek? 
[5]	The Board initially applied for an order to protect the contents of documents produced to the Tribunal, evidence given before the Tribunal and any order made or reason given by the Tribunal to prevent the identification of the respondent practitioner’s patients or their family members. Subsequently, it submits it would agree to an order made to protect the identity of any person other than the practitioner.
[6]	The respondent does not oppose the Board’s application. However, he seeks the same orders as those made by the Tribunal in the review proceeding, which would protect his identity also. 
[7]	The dispute is, therefore, whether the respondent’s identity is to be protected. 
What does the Board submit?
[8]	The Board’s submissions on its application are:
(a)	attaching s 66(2)(d) of the QCAT Act, that the material will likely to contain personal and health information about a patient who is not a party to the proceeding and personal information about another person who is not a party to the proceeding; 
(b)	attaching s 66(2)(d) of the QCAT Act, that the publication of the names of witnesses (including the notifier) has the potential to breach privacy and health record laws;
(c)	attaching s 66(2)(a) of the QCAT Act, that the interests of justice are attracted where publication of confidential and health information has the potential to undermine the Board’s capacity to perform its statutory functions of investigating registered practitioners’ professional conduct and ability to practice by causing notifiers, practitioners and witnesses to be less inclined to make full and frank disclosure to the Board in the future.   
[9]	The Board opposes the order sought by the practitioner on the basis that it would be contrary to the principles of open justice.  
[10]	Since the non-publication order on the review application was made, the Board has obtained written statements from the notifier (the patient’s wife) and the patient. The statements are very brief. Each of them deposes that they would like an order made that their name and the other’s name are not disclosed. They each further depose: 
(a)	They have been informed a non-publication order might extent to the practitioner and his wife;
(b)	The reason for this is that disclosure of either name may lead to either or both of them being identified;
(c)	They are content for the order to extend to the practitioner’s wife, but do not want the order to extend to the practitioner, as they want others, including the respondent’s patients, to be aware he is subject to disciplinary action.
[11]	Each statement reflects in writing the same factual position as was put to the Tribunal on the argument on the review application as to the protection of their names.
[12]	The Board acknowledges the order made on the review, but relies on these subsequent statements by the notifier and the patient to the effect that they wish the practitioner to not be subject to a non-publication order.  It submits that the statements are of critical importance as those individuals identify and are content with the risk that their identities may become public, but they wish members of the public to be aware of the practitioner’s actions. This, the Board submits, is at the heart of deterrence of both the respondent and, through fear of publicity, other practitioners.  The Board submits the respondent’s attempts to suppress his own identity out of ‘concern’ not to identify the patient or the notifier is self-serving in the circumstances.
What does the practitioner submit ?
[13]	The practitioner submits that the notifier, the patient, the practitioner, and the facts in the review proceeding the subject of the published decision are identical to those relevant to this proceeding which is a subsequent professional disciplinary referral brought by the Board against the practitioner. As much makes the review proceeding immediately identifiable as related to the processional disciplinary proceeding. Consequently, the respondent practitioner contends the relevant considerations on this non-publication application are identical to those that the Tribunal considered in making the non-publication order at the hearing of the review proceeding.  
[14]	The respondent submits that the Board’s position concerning the publication of the respondent’s name, where the Board acknowledges that this course may lead to the notifier and the patient being identified is irreconcilable with the Board’s submission that a non-publication order needs to be made with respect to the notifier and the patient because: 
(a)	The patient’s clinical information is before the Tribunal, which is confidential information and information the publication of which would be contrary to the public interest; 
(b)	Identification of the identity of either of them in relation to the facts of the matter “has the potential to breach privacy and health record laws by disclosing information about a person which could identify them or through which their identification could be discernible”;
(c)	Whilst the Board accepts that the patient and notifier’s identities should be suppressed, the identification of the respondent would tend to lead to the identification of each of them;
(d)	To avoid identifying them and the publication of confidential information and information the publication of which would be contrary to the public interest, the non-publication order made should extend to prohibiting the identification of the practitioner and his family. 
[15]	The practitioner also submits that if a different non-publication order is made in this proceeding from that which was made in the review proceeding, it may tend to undermine the effect of the earlier non-publication order, because the two proceedings are clearly related. The foreseeable breach identified is a breach of the confidentiality the orders made in the review proceeding sought to preserve. He also submits the Board does not suggest how the Tribunal may resolve the apparent conflict that would arise if different orders are made He contends that if the Board proposes that the non-publication order should supress the identity of all parties other than the practitioner, it would be necessary to supress the practitioner’s identity to avoid identifying not only the patient and the notifier, but also the practitioner’s wife. 
What can and will the Tribunal do? 
[16]	Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of: 
(a)	The contents of a document or other things produced to the Tribunal;
(b)	Evidence given before the Tribunal;
(c)	Information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified. 
[17]	Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so, relevantly in this application:  
(a)	to avoid interfering with the proper administration of justice; or 
(b)	…; or 
(c)	…; or
(d)	to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or 
(e)	for any other reason in the interests of justice. 
[18]	This provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction. Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice.
[19]	Where a party seeks the non-publication order, that party must satisfy the Tribunal it is necessary.  The Tribunal can, however, act on its own initiative to make a non-publication order. 
[20]	The Tribunal has previously observed that information as to the health or treatment of patients is properly regarded as either confidential information or information of which publication would be contrary to the public interest within s 66(2)(d) of the QCAT Act, which enlivens the discretion to make a non-publication order as to the identity of patients, which is an order commonly or not invariably made. 
[21]	Plainly, material as to the patient’s medical condition and the practitioner’s treatment of it, which is integral to the facts giving rise to the referral, is such information and the Tribunal accepts it should be the subject of the non-publication order. 
[22]	The Board’s submissions do not engage with the issue that identifying the practitioner will tend to the identification of the patient and the notifier. The statements indicating those parties appreciate the risk of this do not really assist the Tribunal. This is because, whatever the position of the patient and the notifier, the Tribunal should not make a non-publication order the force of which is at risk of being undermined if its terms identify the practitioner.  The Board, however, contends a non-publication order should be made. 
[23]	Further, the Board’s submissions do not engage with the issue that identifying the practitioner will undermine the order made on the review application. The Tribunal should not now make an order which will tend to undermine its earlier order in the review proceedings.
[24]	For these reasons, in the very particular circumstances of this application, the Tribunal will make a non-publication order on the same terms as was made in the review proceeding, which is contained in Annexure B to the affidavit of the respondent’s solicitor.