The Application by the Respondent for the continuation of the order made 14 June 2023
On 14 June 2023 the Tribunal made the following interim order:
1. Pursuant to clause 7 of Schedule 5D of the National Law and pending the publication of the Tribunal's decision in relation to the Stage 1 determination in this case, the following information is not to be published.
(a) The name and address of the Respondent Julie Catt.
(b) The name of the Respondent's business.
(c) The name and address of individuals identified in the affidavit in support of the Respondent's Application for Miscellaneous Matters filed 9 June 2023.
2. The reasons for this order will be published in the Reasons of the Tribunal to be given in relation to this Stage I hearing.
3. Leave is granted to each party to apply to set this interim order aside upon giving 14 days' notice to the Tribunal and to the other party.
Although the order was made in the hearing before the Tribunal on 14 June 2023, the published order was dated 15 June 2023. It is that order which the Respondent seeks to be extended and apply to the publication of this judgment.
We note however, that the submission of the Respondent provided on 7 December 2023 seems to press for the extension of the non-publication order to any statement or portion of this judgment which might have the possibility of identifying her to a member of the public. That is not the application we are asked to determine.
Following the making of the order on 14 June 2023 the parties in the proceedings, on all published documents, were named Health Care Complaints Commission v FWH.
Order 2 made 14 June 2023 provided that the Tribunal would provide reasons for the interim decision made that day when publishing its' final decision for the Stage 1 hearing. As can be seen above the parties abandoned the two-stage approach to the hearing when the hearing resumed in October this year.
The decision in relation to the Application for Miscellaneous Matters, filed by the Respondent on 9 June 2023 is now addressed. The reasons for granting the interim order are subsumed into these reasons.
The application filed on 9 June 2023 sought an order in the terms as granted on 14 June 2023. On an interim basis the HCCC did not oppose the making of the order. It does now oppose that application.
In support of her application the Respondent filed an affidavit which she affirmed on 12 June 2023. The reasons for seeking the order were particularised in that affidavit and can be summarised as follows:
1. The publication of specific detail of the offending by the Respondent may cause harm, embarrassment, shame, stress and economic loss to various individuals.
2. A member of the Respondent's extended and step-family, who is in his late 20's, has been diagnosed with mental health conditions which the Respondent either believes or has been told, are depression and anxiety. He is a relative of her former husband. He was hospitalised after an attempted suicide in 2019. This person had been a child in the house in which the Respondent resided for many years and a person for whom the Respondent shared parental responsibility. The Respondent regards herself as the primary source of support for that person. The Respondent visits him fortnightly, and he is frequently a visitor to her home on weekends. The Respondent is concerned that publication of her name in this judgment will give rise to gossip in the circles in which this person moves. He lives with his partner independently from the Respondent or any of his family. The Respondent has not told this person of her hearing before this Tribunal. If the person learns of the details of the Respondent's offending, she is concerned it will distress him and exacerbate his medical condition. She also believes it will cause him embarrassment and he will possibly withdraw from his circles of friends and associates. The person is currently not working. The Respondent believes because of his mental health issues.
3. In support of her application, the respondent annexed a copy of a letter signed by a person who we accept is the biological mother of the person referred to in (b) above. She said the person is a high functioning and intelligent autistic and also lives with depression and anxiety. There was a suicide attempt in 2019 which led to his hospitalisation. He is now experiencing low mood and is unable to work or study (February 2023). She believed information published about the Respondent's misconduct could "precipitate extreme distress" in the person. Gossip relating to the Respondent's misconduct, in the circles in which the person lives and moves could cause the breakdown of his relationship with the Respondent.
4. The Respondent says that the person's mother will be leaving Australia for 2 years in October 2023.
5. The Respondent is concerned for her wife. Her wife is well known in the Sydney lesbian community. She is also known through her food business. Her wife's brother is a well-known actor. The Respondent is concerned the detail of her misconduct when published, will cause her wife embarrassment and distress. She is also concerned that her wife's customers may no longer buy from her following the publication of the judgment.
6. The Respondent says she is concerned the publication of the judgment will disclose to the LGBTQI+ community the identity of Patient A. The Respondent sets out her leadership roles in the LGBTQI+ community, over many years. She has been practicing with members of that community since 2003 and is well known in that role. News circulates around that community largely through social media. The Respondent has no doubt that news of her misconduct will spread quickly through the LGBTQI+ community. Patient A has already indicated she will share the story of the Respondent's misconduct.
7. Twenty10 is an organisation of which the Respondent was Chair until recently. This organisation advocates for gender affirming health care for young people. This has been very controversial in recent times and the subject of press reports. If the Respondent is named in this judgment she is concerned "right wing media and politicians" would use the publication to discredit or attack the Twenty10 organisation. The funding of the organisation could also be at risk.
8. The Respondent is concerned for the impact upon her children of the publication of the judgment. Although being adults, they work in industries in which they will be easily identified because they share the same surname as the Respondent. Only one of her children (now all adults) has been informed of the Respondent's attendance before the Tribunal. There will be anticipated embarrassment and distress once they learn of the outcome and the detail of the misconduct.
9. The Respondent is concerned for the wellbeing of her work colleagues. There are two psychologists and two counsellors who work with her. She anticipates that the publication of her name will cause them reputational damage. That has the potential to affect them financially. All her work colleagues are aware of the proceedings before the Tribunal and have been supportive of the Respondent.
We firstly note the evidence in relation to the health and medical condition of the person referred to in (b) above, is strictly hearsay, with no corroborative reliable medical evidence. The evidence also, in many important respects lacks detail. However, if we assume it is all correctly reported, there is no evidence from the Respondent as to what she could do to assist the person to deal with the news of the Respondent's misconduct. All of the concerns for this person are speculative, but we acknowledge serious, if they were to manifest. She has chosen not to prepare this person for the publication or the gossip which may move about his friendship group once the judgment is published. We are not told if this person is currently receiving treatment from a psychiatrist or a psychologist with whom the Respondent could work to help alleviate any embarrassment or stress or anxiety which this person could occasion once he becomes aware of the Respondent's misconduct.
The next matter to consider is the utility and effectiveness of the order sought by the Respondent. She has emphasised a number of times in the evidence before the Tribunal, how small and collegiate the LGBTQI+ community in Sydney is. Dr Paterson also confirmed that was the case. Given that circumstance coupled with the high profile and respect which the Respondent holds in that community, it is fanciful to believe that if the Respondent was referred to as FWH in the published judgment of the Tribunal, the members of the Sydney LGBTQI+ community, would not quickly work out who that is. It must be plainly obvious that in a judgment of the nature of that contained herein there are many identifying pieces of text which would not escape identifying the Respondent. As the person referred to above socialises within the LGBTQI+ community in Sydney, again it seems unrealistic to conclude he would not learn that the judgment was about the Respondent. That fact has either not moved the Respondent to take any precautionary action to be ready for that outcome, or she has failed to tell us what she has done.
[2]
The Respondent's submission addressing the Non-Publication order she seeks.
The Respondent provided a supplementary submission which addressed this application. That submission was permitted by the Tribunal although it was well outside the orders which had been made on the last day of the hearing, providing for the parties to provide their further written submission.
We have had the advantage or reading that submission and note in particular the following:
1. The Respondent seeks the Non-Publication order be extended to cover "any information, picture or other material that identifies the person or is likely to lead to the identification of the person".
2. The Respondent submits that if the judgment is published without a non-publication order as sought "it will cause harm to individuals which, in the circumstances renders the public interest in favour of the non-publication order".
3. It is submitted "the non-publication order of the Practitioner's name is pressed. An alternative would be to name the Practitioner but to anonymise the subject matter of "specified evidence" and the "subject matter of a complaint" (5D(1)(b)(iv) or (v)). In the circumstances it is submitted the non-publication of the Practitioner's name is the best way (between the two options) to balance the principle of open justice with the public interest of harm to specified individuals evidenced in Exhibit R2."
4. The Respondent points out that even were it the case that the victim of the Respondent's misconduct (Patient A) sought to identify both herself and the Respondent, in the face of a non-publication order, that would be a breach of the protective order. Without saying so, there is inherent in that submission, that a prosecution of Patient A, for identifying the Respondent contrary to the non-publication order, would then be available. The Respondent submits that possible circumstance should not deter the Tribunal making the order sought.
5. The Respondent then addressed her submission to the reason why the order should be made. The Respondent identified the range of persons who she says would be affected should the Respondent be named in this judgment. She submitted: "The range of people are: the Practitioner's family member, (name removed), (the harm being potentially to his life and certainly his well-being), her wife who has a public profile, her two other daughters that work in the mental health space, the psychologists and other health care practitioners trading under her name, potentially her clients who are in the LGBTQI space, organisation Twenty10 and its work (she is no longer on the board but is associated with it by reason of her previous tenure) and last but by no means least, the Client herself. The latter is at risk because there is a risk of identification of her if there is no non-publication order".
6. The Respondent submitted: "To address the first proposition, in all probability if the specifics of the Practitioner's offending are not anonymised, it will become a matter of public comment. That is because of the nature of the misconduct in question, the work the Practitioner does in the space of LGBTQI, the size of that community and by reason of being married to someone who has a public profile." She submitted further: "In relation to the second proposition, the evidence in Exhibit R2 does establish a material risk of harm that tilts the public interest in favour of a non-publication order. As submitted on the last occasion, the evidence need not be from medical practitioners or establish things to a degree of exactitudes or of a real likelihood. For example, the evidence accepted in the case of HCCC v CSM [2016] NSWCATOD 125 was of less probative weight than that presented before the Tribunal here."
7. The Respondent emphasised the potential harm which could flow to the relative of her former husband, which she addressed in her evidence. She submitted the potential for harm to him across a number of levels was sufficient, really on its own, to outweigh the public interest which required the publication of the Respondent's name, at the very least.
8. The Respondent submitted that although the other harms which might flow to specific persons would not be seen as significant as that possibly being raised in relation to the relative of the Respondent's former husband, it does not mean they should not be seen as carrying weight to support the argument for the order sought.
9. The Respondent referred us to the decisions in Health Care Complaints Commission V CSM [2016] NSWCATOD 125 and Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 8.
10. The Respondent concluded her submission on this matter with the following:
"For the reasons advanced on the interim application, there is a material risk the Client's identity will be revealed if the Practitioner's misconduct is not anonymised. In short, this is because of:
i. the size of the LGBTQI community;
ii. the public scrutiny that would be brought to bear on the specifics of misconduct because of the Practitioner's position in that community and the public profile of her wife;
iii. the peculiar, and specific nature of the misconduct (disputed and admitted); and
iv. the fact that the Practitioner treated the Client is a matter the Client has already spoken of with individuals within the community.
The material risk of harm to multiple individuals should not be dismissed by this Tribunal but accepted as over-riding the open justice principle in this particular case. The non-publication order should be made on a permanent basis."
[3]
The Law affecting this application
The HCCC provided a written submission in relation to this application by the respondent. We have detailed that submission earlier in this judgment.
The HCCC referred us to the decision in Cakan v Health Care Complaints Commission [2020] NSWCATOD 116. In particular, paragraph [18] of that decision. The extract emphasises the overarching principle of open justice and the fact that it is only displaced in special or exceptional circumstances. The decision drew on the principle set out in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 [181] to [185]. That decision referred to the requirement of the Civil and Administrative Tribunal Act 2013 No 2 (NSW). In section 49 the Tribunal hearing is required to be open to the public unless the Tribunal orders otherwise. In this case no order to the contrary was made.
When the Tribunal sits in public it publishes the name of each party as a function of its ordinary procedure. The Court room is open to the public unless formally closed by order of the Tribunal for a particular hearing. Thus, as stated in Vo there needs to be "something special, exceptional, or out of the ordinary, before the Tribunal will make an order avoiding that result."
In Vo there is reference to a decision where a non-publication order was refused even in circumstances where the practitioner, the subject of the proceeding was terminally ill. There is reference to another decision where an order was made after expert evidence was provided to the Tribunal in relation to the mental health of the practitioner's daughter who had a history of admission to a psychiatric unit following a serious suicide attempt.
In Health Care Complaints Commission v CSM [2016] NSWCATOD 125 the Tribunal did make a non-publication order of the nature sought by the Respondent in this hearing. At paragraph [84]- [87] of the decision the following was said by the Tribunal.
Statutory framework
84. The combined effect of s 49(1) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) and s 165K of the National Law is that proceedings before NCAT brought under the National Law are open to the public unless otherwise ordered. The power to order that a hearing be held in private can only be exercised if the Tribunal is satisfied that it is "desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given": s 165K of the National Law.
85. Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. The power to make an order under this provision vests in the presiding member of the Tribunal. Accordingly, the decision to make a non-publication order in this case was made by the presiding member, Principal Member Britton. In the interests of consistency, in these reasons the maker of the decision will be referred to in the plural.
86. In exercising the power to make an order under cl 7(1)(b)(iii) of Schedule 5D to the National Law, the presiding member must have regard to the norm of open justice established by ss 49(1) of the Tribunal Act and 165K of the National Law, together with the objects of the Tribunal Act, which include ensuring that the Tribunal is accountable and has processes that are open and transparent: s 3(f). The authorities have consistently emphasised that the power to depart from that norm must be exercised sparingly.
87. As noted by the Tribunal (Acting Judge K P O'Connor) in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity:
Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession.
The Tribunal did make a non-publication order in CSM because of two substantial reasons. The first was that the disclosure of the Respondent's name would potentially identify the patient with whom he had conducted a relationship. She had a significant psychiatric disorder and was well known in the psychiatric wards of the hospital in which the offending conduct took place. The second reason related to the mental health of CSM himself. It had deteriorated significantly after he was discovered having the relationship with the victim patient. It was submitted that it was likely that his mental health would deteriorate further should his identity be published in the decision of the Tribunal. He had informed the Tribunal he did not propose to return to the health industry again. Although he did not present independent expert evidence about his mental health, the Tribunal member considered there was sufficient other evidence the enable them to accept his evidence about his health. The practitioner was no longer registered at the time of the hearing before the Tribunal and in any event, it determined that had he been registered they would have made an order cancelling same.
In concluding their decision on the issue of non-publication, the Tribunal stated:
"94. Even though publicity generally disadvantages the subject health practitioners and their families, non-publication orders are seldom made in this jurisdiction. This is because of the overriding importance of justice being administered openly and in public and the recognition that disclosing the identity of health practitioners in this class of matters has a deterrent effect amongst their peers. We accept that a cautious approach should be taken in this jurisdiction to the making of a non-publication order in respect of health practitioners. Nonetheless, we have decided that, in the circumstances of this case, the risk of disclosing Patient A's identity, and the risk of a further deterioration in CSM's mental health, represent special circumstances that warrants the making of a non-publication order in respect of CSM."
In Health Care Complaints Commission v FTR [2023] NSWCATOD 46, the Tribunal determined an application for non-publication. In that decision, the Tribunal set out the following (at [66]-[75]):
"Application for non-publication
66. On 16 January 2023, the Practitioner made an application that 'Non-publication or non-disclosure orders re Respondent's name - [FTR]'. The ground in the application stated the Practitioner's mother was very unwell, physically and mentally, and that the disclosure of the Practitioner's name could be detrimental for her health and/or fatal. The Practitioner's 76 year old mother is a retired school teacher and he is her only child. She lives with her frail husband.
67. The Applicant opposes this application.
Relevant principles
68. As this Application seeks an ancillary decision, the Tribunal is constituted by the presiding member: see National Law, ss 165(b), 165B(5A); definition of "ancillary decision" in CAT Act, s 4. Clause 7(1)(b)(iv) of Schedule 5D of the National Law provides that the Tribunal may, if the person presiding thinks it is appropriate in the particular circumstances of the case, direct that any specific evidence not be published. Section 64(1)(c) of the CAT Act provides a similar power with a slightly different test, namely '[i]f the Tribunal is satisfied that it is desirable to do so'.
69. In Walton v Momot [1997] NSWCA 334, Handley JA (with whom Priestly JA and Grove AJA agreed) said at p 3:
'The general principal provided for in s 46(3) is that the Tribunal will sit in public [now see s 65K of the National Law and s 49(2) of the CAT Act]. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner.
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exception, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. …
This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts. …
(authorities omitted; emphasis added)'
70. Whether the facts of a particular case constitute something special, exception, or out of the ordinary which displaces the general principle is a discretionary decision.
71. Cases in which something special, exceptional, or out of the ordinary has been found to exist include cases where there has been a finding of a real risk that publication could lead to the practitioner's suicide: Health Care Complaints Commission v XC [2015] NSWCATOD 9; Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v FTE [2023] NSWCATOD 30. In other cases, risk of mental harm to, or the fragile mental health of, a practitioner has been a factor weighed in favour of making a non-publication order: Health Care Complaints Commission v CSM [2016] NSWCATOD 125; Health Care Complaints Commission v ZXY [2021] NSWCATOD 136.
72. In contrast, general anxiety, depression, embarrassment or even a complex bereavement disorder was insufficient: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120. In HCCC v Dr Gow (Suppression order) [2008] NSWMT 3, the practitioner, who had been found guilty of professional misconduct, developed a terminal illness. Expert opinion said that any disruption to his immune response that might flow as a consequence of the psychological stress resulting from publication may lead to severe and potentially fatal infection. The Tribunal found that was insufficient when balanced against the protective function of publication and refused to make a non-publication order.
73. Less common are cases where the alleged risk is not to the Practitioner but to a third party, usually a close relative(s). A case analogous to the present is Health Care Complaints Commission v Dr A [2012] NSWMT 10, where the Tribunal found, at [28], 'the prospect of a renewal of the trauma associated with repeat publicity, which trauma led to a most serious life threatening circumstance for one child and psychological damage to the doctor's other children, is such as to demonstrate the 'serious and exceptional circumstances' that justify a temporary extension of the current interim order to be in the form of a non-publication order to continue until the youngest children attain 18 years of age.' In contrast, in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 there was insufficient evidence to establish any psychological effect publication would have upon the practitioner's children who were completing their Higher School Examinations, and in Health Care Complaints Commission v FDE [2021] NSWCATOD 215 there was insufficient evidence to support a contention that the practitioner's children would be psychologically affected by publication, although a limited non-publication order was made because of the serious risks publication posed to the practitioner whilst he was incarcerated.
74. It may be difficult to set a time limit on a non-publication order but it should not be assumed to be permanent and such an order is irregular: Walton v Momot; Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [37]-[39].
75. A non-publication order may be unnecessary where the matter over which it is sought is already public: Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 at [42]; Health Care Complaints Commission v Quan [2019] NSWCATOD 160 at [19]."
In Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1, the Tribunal determined an application for non-disclosure of the practitioner's name. The Tribunal set out the following (at [81]-[91]):
"Application for non-publication order
Basis for the application
81. Dr Jamnagarwalla applied for an order that disclosure of his name is prohibited except to the parties, their legal representatives and to any other person where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings. After applying for this order at the beginning of the Stage 2 hearing, Dr Jamnagarwalla amended the application so that it also applied to the Stage 1 proceedings. A decision in those proceedings was published, without restriction, on 15 June 2022. The Commission opposed the application both in its original and in its amended form.
82. Dr Jamnagarwalla set out the reason for the application in his statement of 23 November 2022. Those reasons relate to the effect of the publication of the Stage 1 decision on members of Dr Jamnagarwalla's immediate family, especially his wife and his youngest child. Dr Jamnagarwalla noticed the demeanour of his wife and children changing around the time of the Stage 1 decision. His wife told him she felt ashamed and embarrassed by the case. His youngest child heard about the case from friends at school and when she accessed the internet, she saw reports of the case. She was reluctant to attend social gatherings or see her friends for several weeks after publication of the Stage 1 decision. Dr Jamnagarwalla is concerned that publication of the Stage 2 decision will cause further shame, embarrassment and upset. It may even mean that they need to move from the area in which they are currently living.
The legal test
83. The Tribunal is generally obliged to publish decisions about complaints which have been proved or admitted in whole or in part. That is done via the NSW Caselaw website: National Law, s 165M(4) and Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [71]. However, the Tribunal does have power under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order prohibiting the disclosure of Dr Jamnagarwalla's name. There is a similar provision in cl 7 Schedule 5D of the Health Practitioner Regulation National Law (the National Law). The test under that provision is whether it is 'appropriate in the particular circumstances of the case'.
84. Dr Jamnagarwalla accepts that the principles of 'open justice apply to proceedings under the NCAT Act and the National Law': Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 at [9]. Consistent with that principle, the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is good reason for making a non-publication order.
85. When considering whether to make a non-publication order, the health and safety of the public must be the paramount consideration: National Law, s 3A; Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 at [91]. The public has a right to know whether a practitioner has been charged with a disciplinary offence and the outcome of the proceedings: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [25]. It is inherent in the protection of the public that information is available to a potential patient who wishes to enquire whether a health practitioner has been the subject of disciplinary proceedings: HCCC v Simring (Suppression Order) [2010] NSWMT 6 at [8].
Conclusion
86. I have decided not to make a non-publication order for three reasons. Firstly, Dr Jamnagarwalla's name was disclosed in an adjournment decision published on 10 September 2021 and in the Stage 1 decision on 15 June 2022: Health Care Complaints Commission v Jamnagarwalla [2021] NSWCATOD 149; Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61. The Stage 1 decision has been available on several websites including the Commission's website: Health Care Complaints Act 1993 (NSW), s 94B. Even if Dr Jamnagarwalla's name is anonymised now his identity is already publicly known and could easily be detected by anyone sufficiently interested in the case: Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 at [54].
87. The risk that publication will have further negative impacts on Dr Jamnagarwalla's family members is unfortunate and concerning. But it is unavoidable that disciplinary proceedings may cause practitioners shame and embarrassment and impact on their family relationships: Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [16]. Publication of the practitioner's name may also cause embarrassment and upset to their immediate family. We accept that that has happened in this case and that Dr Jamnagarwalla wishes to protect his family, as best he can, from further distress.
88. As the Tribunal held in a similar legislative context in Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]:
'The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily.'
89. Expert evidence of much more serious effects on mental health, including risk of suicide for the practitioner or a family member, have been held to justify a non-publication order: Health Care Complaints Commission v Dr A [2012] NSWMT 10 at [28] and Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 at [104].
90. As to Dr Jamnagarwalla's evidence that the family may move to another area, that evidence falls short of any serious risk to physical or mental health which might justify a non-publication order.
91. Thirdly, but less significantly, there was no evidence that Dr Jamnagarwalla had told his children about these proceedings or offered them any assistance such as professional counselling. Those kinds of steps may have helped lessen the embarrassment and upset they have undoubtedly felt. (See Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [186])."
In Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120, the Tribunal having considered the applicable law, determined to anonymise the medical practitioner's name for the following reason (at [104]):
"Discussion and conclusions
104. The expert retained by the Medical Council, Dr Fisher, has highlighted the risk of suicide in a patient such as the practitioner who suffers from Bipolar Disorder if depressed. Dr Florida's [sic] brief statement is explicit. It must be read in context of her other reports and the evidence before us including the practitioner's previous serious suicide attempts when depressed. We are satisfied exceptional circumstances exist in this case and that we should make the non-publication orders sought."
When we heard this application on 14 June 2023, we determined that the application was not one without apparent merit. We determined to make the order sought on an interim basis and thereby have the opportunity to consider it with the benefit of all available evidence which the Respondent may wish to rely upon. Further, the HCCC took the appropriate pathway of not opposing the order on an interim basis.
We have now before us all the evidence which the Respondent has sought to rely upon and regretfully, we conclude the application has not met the required standard for such an order to be made.
The evidence which we considered had the potential to satisfy us that the order should be made was that which addressed the mental health of the Respondent's former husband's relative. However, no expert evidence has been given in relation to the mental health of that person and the potential risk which the expert considers could or would be visited upon that person should the Respondent's name be published. Thus we have been unable to assess the potential impact upon him by the publication of information which would identify the Respondent in a formal manner.
We know nothing of the qualification of the persons mother, upon whose evidence the Respondent also relies to support her application.
We had anticipated the Respondent might have informed us if she had taken any steps to prepare the subject person for the possible publication of her name. The same is true in relation to her children. However, on the evidence before us, the Respondent has done nothing. She has either anticipated her application would be successful or she has not considered it necessary to put in place any supports or plans to address her stated concern should her application not be successful. Alternatively, if she has so acted, she has not provided evidence of that fact.
As we have stated above, the utility of a non-publication order in this case must be seen as very limited. The evidence before us has demonstrated to our satisfaction that the community in which the Respondent and the subject relative of her former husband, live and work, is small and supportive of its members. It uses social media extensively for communication. The Respondent holds a position of trust and respect in that community, and we accept, is very well known. She is clearly a leader in the community. In such a circumstance we cannot see how the use of a description in the title of the judgment, and throughout, which is clearly not the name of the person who the judgment is about, would shield the person of concern to the Respondent, from learning the case was about the Respondent.
The Tribunal would never intend the publication of its' judgments to harm any person in the community, who may be shocked or severely mentally impacted by the content of, or the knowledge of the outcome stated in a judgment. However, it is clearly a primary obligation of the Tribunal to ensure it practices open justice as the legislation, which governs the operation of the Tribunal and gives it jurisdiction, requires. The importance of that provision has been emphasised in the decisions we have set out above.
The other concerns the Respondent has about people in her family, her colleagues and associations with which she has held high office, are no greater than face all members of a health profession who feel disgraced by the potential outcome of a proceeding before the Tribunal. To have the Tribunal anonymise the name of a practitioner on those grounds would see many of the Tribunal's decisions anonymised and it would also conceivably lessen the deterrent role of the judgment itself. It also would have the effect of limiting the requirement of open justice. The public has the right to know the identity of the Respondent so that it can make its' own decision as to whether to use her services when she returns to practice. This has greater application to the members of the LGBTQI+ community.
In light of the above, we have reached the decision that the Respondent's application is to be refused.
During the last days of the hearing the Respondent informed the Tribunal she has adopted a surname which includes her wife's maiden name. In the giving of her evidence the HCCC counsel addressed her by that name. In order not to make the identity of her wife immediately recognised, we propose to name the proceeding using Ms Catts maiden name only.
[4]
Costs
The HCCC seeks its' costs be paid by the Respondent. It submitted the power to make such an order is found in Schedule 5D clause 13 of the National Law.
It submitted that commonly costs will follow the event. (HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67])
The awarding of costs to compensate the successful party will only be displaced where there has been disentitling conduct on the part of that successful party. The HCCC submits there is no such disentitling conduct in this case.
The Respondent agreed, in her amended Reply, that the costs order sought by the HCCC should be made, "if the matters denied in this Reply are not pressed by the HCCC." She stated that if the denials are challenged by the HCCC and that challenge is unsuccessful, then the HCCC should be ordered to pay the Respondent's costs.
In the normal course we would deal with an application for costs which accompanies a Complaint. However, in her final supplementary submission, provided 7 December 2023, the Respondent submitted the following:
"The Practitioner seeks the opportunity to address on costs following judgment. That is the usual procedural course which should be followed here for the usual reasons that the Tribunal is understandably not yet privy to all matters and communications pertaining to questions of costs.
The Practitioner is content for any question of costs to be dealt with on the papers, with the usual regime for staggered submissions."
In our experience, such a request is unusual in this Tribunal. As such we assume there has been some communication between the Respondent and the HCCC prior to the hearing commencing, or during the hearing, the content of which has a real and relevant connection to whether a costs order, as sought by the HCCC, ought be made. We really have to rely on counsel for the Respondent, seeking a postponement of that determination, because she is privy to relevant communications being available to put before us.
We will order that the Respondent provide her submission in relation to the HCCC cost application within 14 days of the date of publication of this judgment.
The Orders to be made:
1. As and from the 22nd January 2024, the practitioner's registration as a psychologist is suspended for a period of 12 months.
2. Upon the completion of the period of suspension, the Respondent's registration is to be subject to the following conditions:
1) To practise under Category C Supervision in accordance with the Psychology Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.
a) The supervision sessions must be:
i) a minimum of one hour in length.
ii) the supervision sessions must be face to face
iii) the supervision sessions must be conducted on a fortnightly basis
iv) supervisor reports must be completed and submitted to the Council three monthly.
b) to authorise the Psychology Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions.
c) Not to practise until a supervisor has been approved by the Psychology Council of NSW.
2) At each supervision meeting, the supervisor is to review and discuss practitioner's practice and address any relevant work-related or professional matters with particular focus on:
a) Knowledge of the Psychology Board's Code of Ethics and the Australian Psychological Society's ethical guidelines
b) Ethical and boundary considerations
c) Privacy and Confidentiality
d) Record-keeping
e) Treatment plans
f) Practice management.
3) To practice only in a group practice approved by the Psychology Council of NSW where there is at least one other person physically present in the practice at all times.
4) To advise the Psychology Council of NSW in writing at least seven days prior to changing the nature or place of her practice.
5) To provide evidence to the Psychology Council of NSW within fourteen days of recommencing practice, that she has provided a copy of the conditions and Tribunal's decision to all persons employed at the practice, and any place that she works as a psychologist.
6) The respondent is to satisfactorily complete an ethics course focusing on ethical obligations, which is approved by the Psychology Council of New South Wales, within six (6) months of re-commencing work as a psychologist in Australia or as otherwise specified by the Council.
a) Within two (2) weeks of being notified that the course is approved, the practitioner must provide evidence to the Council of enrolment in the specified or approved course.
b) Within four (4) weeks of completing the specified or approved course, the practitioner is to provide documentary evidence of satisfactory completion to the Council.
7) The Psychology Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).
8) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia.
3. The practitioner is to provide her submission, to the Tribunal and to the HCCC in relation to the application of the HCCC that the Respondent pay its' costs of the proceeding, within 14 days of the date of publication of this judgment. The HCCC is to provide the Tribunal and the Respondent with its' reply to that submission with 14 days of receipt of the Respondents submission.
[5]
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: 22 January 2024
125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Psychology Board of Australia.
3. The practitioner is to provide her submission, to the Tribunal and to the HCCC in relation to the application of the HCCC that the Respondent pay its' costs of the proceeding, within 14 days of the date of publication of this judgment. The HCCC is to provide the Tribunal and the Respondent with its' reply to that submission with 14 days of receipt of the Respondents submission.
Catchwords: OCCUPATIONS - psychology practitioners - misconduct and discipline - Finding of unsatisfactory professional conduct and professional misconduct - appropriate protective orders - registration suspended - practice conditions imposed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 64, 49, 3(f)
Health Care Complaints Act 1993, 39(2), 90B(3)
Health Practitioner Regulation National Law (NSW), ss 3A, 3B, 139B, 139E, 145A,149C,149C(5), 150, 165, Clause 7(1)(b)(iii) of Schedule 5D
Cases Cited: Cakan v Health Care Complaints Commission Complaints Commission [2020] NSWCATOD 116
Chen v Health Care Complaints Commission [2017] NSWCA 186
Health Care Complaints Commission Complaints Commission v Jason Vuong [2022] NSWCATOD 83
Health Care Complaints Commission v CSM [2016] NSWCATOD 125
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120
Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 84
Health Care Complaints Commission v FTR [2023] NSWCATOD 46
Health Care Complaints Commission v Jamnagarwalla (No 2) [2023] NSWCATOD 1
Health Care Complaints Commission v Ledner [2017] NSWCATOD 90
Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172.
Health Care Complaints Commission v Vo [2014] NSWCATOD 127
John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131
Medical Board of Australia and Stephens [2018] WASAT 13
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Julie Ann Catt (Respondent)
Representation: Counsel:
S Maybury (Applicant)
M Hall (Respondent)
The HCCC's oral submission
On the last day of the hearing in this matter the HCCC made an oral submission. In the written submission, above addressed, the HCCC made clear it was still relying on the oral submission it had made.
We note the following from that oral submission, where it is not duplicated by the HCCC's written submission.
The HCCC submitted the imposition of a fine as part of a protective order was not an appropriate protective order in this case. The HCCC referred the Tribunal to the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 where the court addressed the role of general deterrence.
It was submitted that the concept of "moral turpitude" does not apply to this case.
The Tribunal was referred to the decision in Health Care Complaints Commission v Ledner [2017] NSWCATOD 90. The HCCC emphasised in that decision a psychologist had his registration cancelled and a non-review period set for 12 months following a 3.5 month relationship with a former patient. The HCCC submitted that the conduct of the Respondent in this case is far more serious than that illustrated by the above decision. The HCCC submitted that the decision in Ledner demonstrated an appropriate response to the misconduct in that case. Without specifically submitting so, the HCCC was suggesting that we should use the Ledner case as a "yard stick" against which to set the protective order in this case. We note the NSW Court of Appeal has addressed the inappropriateness of such an approach.
In relation to the order sought by the Respondent for non-publication of detail which might identify her, the HCCC referred us to the decision in Health Care Complaints Commission v CSM [2016] NSWCATOD 125. It also referred us to the decision in Vo which is referred to in the CSM decision at paragraph [82]. We will address the matter of the application for a non-publication order further, towards the end of this judgment.
The Respondent's Submission
The Respondent provided both written and oral submissions. The first written submission was filed on 20 October 2023 and is dated 10 October 2023. It is a short and general submission which was surpassed by a very extensive written submission dated 24 October 2023. That submission is 48 pages in length and is very comprehensive.
The submission first addresses legal principle applicable to this determination. We have read that submission and noted its content.
In this case we have in mind that the Respondent agrees she is guilty of unsatisfactory professional conduct and professional misconduct. No submission was made that we should not make the findings of unsatisfactory professional conduct and professional misconduct as sought by the HCCC. We are conscious of the fact that the Respondent denied she is guilty of unsatisfactory professional conduct as described in Complaint Two. We will address that denial further in these reasons.
To the extent it is necessary to do so, we here state our conclusion that the HCCC has established the guilt of the Respondent to Complaint One and Three. The evidence satisfies us to the requisite standard that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct as alleged in those two Complaints.
The Respondent then addressed the appropriate protective order to be made by the Tribunal in this case. The Respondent submitted that "ordinarily cancellation or deregistration would not occur unless the practitioner was permanently unfit to practice". The Respondent relied upon the discussion in Jamieson extracted in Health Care Complaints Commission v Firth (No 2) [2015] NSWCATOD 84 at [16] - [28].
The reference to the decision in Firth (No 2) is best illustrated by the following extract from that decision.
23. … However, as already indicated, the Tribunal is of the view that given the objective seriousness of the conduct and given the principles summarised in Jamieson and identified above, that the conduct, taken in its totality, requires, for the reasons expressed in Do and other cases therein mentioned, the cancellation of the registration of Mr Firth as a psychologist.
24. In so doing, we note that the respondent states in exhibit V that he does not believe he is permanently unfit to practice. Of course, those are terms that have been used by the Tribunal as a matter of consideration such as being undertaken here, namely it does not necessarily follow that just because a registered practitioner has been found guilty of professional misconduct, that registration must be either suspended or cancelled, as being the only protective order to make. That's clear enough from the decision in the Health Care Complaints Commission v Karalasingham [2007] NSWCA 267.
25. However, as stated in Jamieson, it is clear that the definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify an order of suspension or cancellation, whether or not such an order should be made in the particular circumstances. As further stated in Jamieson at 100:
"That such an order need not be made is clear from the terms of ss 60 to 64, which are substantially the same as ss 149 to 149C of the National Law, which provide that a full range of disciplinary powers is available on the finding of professional misconduct. The statutory constraints operate differently. Thus a person may not be suspended or deregistered unless the Tribunal finds that the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [149C(1) of the National Law is to a similar effect]."
26. Thus it goes on:
"The discretion of the Tribunal is at large and it will depend upon the circumstances of the individual case."
27. It goes on:
"The authorities also establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, the Tribunal must find the practitioner is probably permanently unfit to practice."
28. As goes on at 102 in Jamieson:
"This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds the practitioner is permanently unfit to practice. The expression used by the High Court in Ex Parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlines an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner would generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain so for a significant or indefinite period."
The final written submission in reply to that of the HCCC, provided by the Respondent on 7 December 2023 with the leave of the Tribunal
As stated earlier the Respondent's counsel provided a very lengthy written submission for the final hearing. She also delivered oral submissions.
On 7 December 2023 the Respondent addressed the Non-Publication application she had made at the commencement of the hearing which was the subject of an interim order granting same pending the completion of the hearing. We have considered that submission later in these reasons when we addressed that application.
The Respondent also replied to the written submission of the HCCC provided following the completion of the hearing. We have addressed that submission earlier in these reasons and we now turn to consider the Respondent's submission in reply.
The Respondent firstly made a submission in relation to the credibility of the Respondent's evidence and case generally. We noted the following in particular:
1. The attack by the HCCC on the credit of the Respondent, as delivered in its' final submission should not be accepted.
2. The submission addressing the Respondent's credit has been address in the Respondent's earlier submission.
3. It is submitted the Respondent should be accepted when she speaks of recognising her use of language with Patient A was playful and should not have been. She recognised that was inappropriate. This demonstrates insight. Further she now appreciates it was open to Patient A to interpret her use of words in a way she did not intend. It is therefore recognition of the need to be very clear in communication with patients.
4. The respondent made many admissions against interest in. her oral evidence. She made most of those admissions instantly when matters were put to her.
5. In relation to the Complaint which alleges the Respondent attempted to have Patient A join in a deception as to the start time for the commencement of the two year period between the termination of a professional relationship with a client and the commencement of a different type of relationship with that client, such as an amorous or sexual relationship, the Respondent submitted: "it should not be simply assumed that the Practitioner carefully chose each individual word or phrase she used (as the HCCC Submissions implicitly contend). That does not excuse inappropriate language; it is the Practitioner's responsibility to ensure that her communications meet the requirements of the Code. However, breaching the Code by not being careful with language is very different to allegations of misleading the Tribunal in relation to what she meant in particular emails, and the evidence is simply not sufficient for the latter to be made out. That is particularly given the onus the HCCC bears."
6. The Respondent addressed the submission made by the HCCC that her evidence stating she found the sexually explicit emails from Patient A degrading and made her feel horrible, should be not accepted given her own emails which made sexually explicit statements to Patient A. The Respondent in reply said that the submission of the HCCC ignored the time difference between the early emails from Patient A containing sexually aggressive material, and the later emails from the Respondent to Patient A in the same vein (if not less aggressive). It is submitted the evidence of the Respondent should be accepted when it is understood what she was in fact saying. She ultimately did write emails with sexually explicit content, however that was a considerable time after the earlier emails from Patient A about which the Respondent said she was degraded and horrified.
7. The Respondent addressed the submission made by the HCCC which addressed different emails between the Respondent and Patient A about the purchase of "Byron lollies" a reference the Respondent said was to cannabis and also later reference to "Mandy" which the Respondent said was MDMA. The Respondent submitted they were different emails at different times and should not be conflated.
The HCCC was confronted by the submission, made by the Respondent in relation to the requirement for the Tribunal to be satisfied the subject practitioner is permanently unfit to practice, before the Tribunal could make a cancellation order. It submits Firth (No2) does not stand for such a proposition and if it did then it is wrong and conflicts with decisions of the NSW Court of Appeal.
We are satisfied the National Law disciplinary provisions do not restrict the use of the cancellation of registration powers to cases where the Tribunal has been satisfied the practitioner is permanently unfit to practice.
The Respondent addressed the availability of a fine as a protective order or part thereof. She brought to the attention of the Tribunal the decision of Medical Board of Australia and Stephens [2018] WASAT 13. The Respondent submitted there were similarities in the circumstances of the practitioner in that case to that of the Respondent in this case. It was pointed out that the Tribunal in the Stephens case imposed the maximum fine available.
The NSW Court of Appeal has cautioned an approach which seeks to compare outcomes in different decisions of the Tribunal and use those decisions as a "yard stick" when assessing the appropriate protective order to impose.
We have considered the decision in Stephens and determine that even if it was appropriate to measure the outcome in this determination against earlier decisions, that decision ought not be seen as a comparable case.
The Respondent then addressed the witnesses who gave evidence in the hearing. We have read her submission in relation to Professor Keogh and Dr Paterson. We note the submission that the evidence of Dr Paterson should be afforded great weight and significance given his two weekly meetings with the Respondent for the last two years. Those meetings were required by the appointment of Dr Paterson as the Supervisor of the Respondent pursuant to conditions imposed on her registration by the determination of the Psychology Council delegates conducting the s 150 hearing.
The Respondent addressed across 13 pages of the written submission, the oral evidence given by the Respondent before this Tribunal. The submission addressed the HCCC's criticism of the Respondent as a witness of truth and perhaps perceived aspects of her evidence which it was considered might trouble the Tribunal. We have read that extensive submission and the summary, namely that we should accept the Respondent was a witness of truth who did her best to answer questions and propositions put to her in a candid and straight forward manner. The submission cautioned against the Tribunal losing sight of the time involved in the relationship between the Respondent and Patient A and the reasonableness of the Respondent having a complete recollection of each and every aspect of that relationship over that period of time.
The submission then addressed the evidence of Patient A. Again, this was an extensive written submission which was set out on six pages of the submission.
The submission is that: "Save where it accords with the practitioner's evidence, the Client's evidence should not be accepted by the Tribunal because in seven fundamental respects it is clear her evidence and recollection were mistaken." The submission then addressed each of those seven respects, which we have read. We note that none of the attacks on the reliability or veracity of the seven aspects of the evidence given by Patient A, is a submission made that any of those aspects should be seen as detracting from a finding being made by the Tribunal that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
The submission then addresses the issues of fact created by the Respondents denial of Particulars set out in Complaint One. The facts which are disputed are the alleged breast touching; an email described as the "pet food email"; a kiss in the practice rooms of the Respondent; And, whether the Respondent sought to have Patient A join in a distortion of the date when therapy for Patient A ceased with the Respondent. We have read that submission.
The submission then turned to consider a lengthy submission on the applicable law. That included the nature and form of an appropriate protective order.
Having read the entirety of the submission of the Respondent, the members of the Tribunal have found difficulty in identifying any relevant matter which they consider should have been addressed in the submission and was not. The Tribunal is grateful to the counsel for the Respondent for the effort which has clearly been applied to the submission.
The Respondent addressed "The Complaint" referred to in paragraphs [28] to [41] of the HCCC submission. The Respondent denied the submission of the HCCC that she had only admitted conduct which was evidenced in the emails and text messages which had passed between them and where that evidence was before the Tribunal. The Respondent said she had admitted kissing Patient A at ARQ even though there was no email confirming that. She also pointed out she had denied the "Pet food" email even though at the time of the denial she did not know if Patient A had a copy of that email to produce.
The Respondent again addressed the denials of the Respondent to the allegations that she had touched Patient A's breasts and/or allowed her own breasts to be touched by Patient A. She relied on the extensive submission she made in the final hearing addressing the evidence which dealt with those allegations.
The Respondent addressed "Some Factual Matters" in the submission of the HCCC [42] to [46]. The Respondent referred to her submission delivered orally at the end of the hearing which addressed a number of the matters raised by the HCCC in the stated paragraphs. She relied on the evidence of Dr Paterson as to the origin of the misconduct which seemed to be flaws in education and knowledge. She denied the misconduct occurred because of flaws in character or lack of willpower. The Respondent reminded the Tribunal that this complaint arises against a history of many years of practice without any complaint.
The Respondent addressed "Insight and Remorse".
In relation to the attack by the HCCC on the content of the letters the Respondent had sent to each of her referees, the Respondent referred to the evidence of the Respondent that there was other detail given to the referees orally. That is, the letter was not meant to be the repository of the only information which she had provided to them. It was not put to her that she was lying (nor could it have been we note given there was apparently no evidence upon which the HCCC could properly suggest that.)
The Respondent submitted the Tribunal would have no doubt about the evidence of Dr Paterson and would give it full weight.
The Respondent then addressed "the Protective Orders". It addressed the submission of the HCCC under that heading. The Respondent submitted the Tribunal would accept the lengthy submission she provided in writing and also the oral submissions made at the conclusion of the trial.
The Respondent addressed the assessment of risk to the public. She referred the Tribunal to Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172, in particular at [19].
We note the Tribunal in Menz (No 2) said at [18] and [19] the following:
18. Because of our decision to make an order under s 149C(4), the power to make a prohibition order under s 149C(5) can be exercised: s 149C(5A). That power can only be exercised if we are satisfied that Mr Menz poses a "substantial risk to the health of members of the public" (emphasis added). Neither party addressed in their respective submissions the meaning of the expression "substantial risk" as used in s 149C(5) of the National Law. The Macquarie Dictionary offers a number of definitions. These include "...material nature; real or actual; of ample or considerable amount, quantity...". In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585, Gummow, Hayne and Heydon JJ, commented at [154] that the word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Their Honours stated at [154] that which of the various possible shades of meaning the word bears is determined by the context.
19. Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."
The Respondent submitted that there was no real risk of the practitioner practicing "under an alternative title such as a 'counsellor'". She submitted that order should not be made. The Respondent submitted such an order could only be made if there was a "substantial risk" as is required by s 149C(5).
At the conclusion of her submission the Respondent addressed the possible applying of conditions to her registration. She advised she intends to continue with individual supervision in her practice. She said the draft conditions as provided by the HCCC would not be opposed in relation to conditions 1 and 6.