Jna v Medical Board of Australia

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

JNA v Medical Board of Australia [2024] QCAT 379

PARTIES:

JNA

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR 179-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)     the contents of a document or other thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal;

(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 the applicant or any complainant, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings, and for the respondent or the Australian Health Practitioner Regulation Agency to exercise each of their statutory functions under the Health Practitioner Regulation National Law (Queensland).

2.     Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to this proceeding or any appeal or review arising from these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the applicant applies for a non-publication order to avoid endangering their personal physical or mental health — where the Board does not contest the application — whether a non-publication order should be made

Health Practitioner Regulation National Law(Queensland)

Human Rights Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Health Ombudsman v Shermer (No 2) [2019] QCAT 54 LSC v XBV [2018] QCAT 332

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

The applicant has applied for a non-publication order to protect his identity and that of complainants.
In the underlying review, he seeks a review of the Medical Board of Australia’s (‘Board’) decision to impose immediate action on him to suspend his registration pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
The applicant’s submission is that the order is justified as it is necessary to avoid endangering his physical or mental health or safety, pursuant to section 66(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
The Board has filed written submissions setting out legal principles applicable when considering such an application. It expresses no attitude to the application, stating it is content to be bound by the Tribunal’s determination of the application. The Board does not dispute the applicant’s evidence for the purpose of the application and recognises that where there is a nexus between the underlying conduct giving rise to the immediate action and a practitioner’s health or impairment, there may be a stronger basis to grant a broader order so as to protect the practitioner’s privacy, particularly where the practitioner recognises the seriousness of the underlying conduct.
The Tribunal has power pursuant to section 66(1) of the QCAT Act 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.
It has been observed that 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.[1] Having said that, the exercise of the discretion pursuant to section 66(1) is informed by the paramount principle of open justice.[2]
[1]LSC v XBV [2018] QCAT 332, [26] (the Hon P Lyons KC).
[2]See Health Ombudsman v Shermer (No 2) [2019] QCAT 54, [6] (Allen KC DCJ) and the authorities cited therein.
The party seeking the non-publication order must satisfy the Tribunal it is necessary.[3] I note section 31(3) of the Human Rights Act 2019 (Qld) (‘HR Act’). The Tribunal has considered the applicant’s rights under the HR Act and is satisfied there is no limitation on those rights in its consideration and determination of this application.
[3]Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [8]-[9].
The applicant has filed medical evidence from his treating psychiatrist and psychologist, which the Tribunal has considered carefully.
Without rehearsing the detail of it in these reasons, the evidence filed on the application supports the proposition that there is a clear nexus between the underlying conduct which has resulted in the Board’s decision to take immediate action and the health issues from which the practitioner suffers. There is also evidence that the order is necessary to protect the applicant’s mental health and safety.
The application is granted.

The applicant in this matter, represented by their legal team, sought a non-publication order from the Queensland Civil and Administrative Tribunal (QCAT) to prevent the publication of information that could identify them. The application was made to safeguard their personal physical and mental health. The Medical Board of Australia, the respondent, did not oppose the application. The primary legal issue before the Tribunal was whether a non-publication order should be granted to prevent the disclosure of the applicant's identity and other information that could potentially harm their health.

The Tribunal considered the applicant's vulnerability and the potential risk to their mental and physical health if their identity and the details of the case were to be made public. The Tribunal noted that the applicant had provided evidence and documentation to support their application, and the respondent did not contest the need for such protection. The Tribunal acknowledged the importance of balancing the applicant's right to privacy and protection against the public's right to know and the principles of open justice. Ultimately, the Tribunal was satisfied that the applicant's interests in maintaining their anonymity outweighed the public interest in this case. The Tribunal determined that a non-publication order was necessary to protect the applicant's health and well-being.

In light of the above, the Tribunal made a non-publication order pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009. The order prohibits the publication of any material that could identify the applicant or any complainant, except as necessary for the progression of the proceedings or the exercise of statutory functions by the respondent or the Australian Health Practitioner Regulation Agency. Additionally, the order restricts the copying and inspection of any affected material to specified individuals and parties involved in the proceedings or any appeals or reviews.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established