Kirbach v Health Care Complaints Commission

NCAT Occupational|2015-09-14

Introduction

Mr Kirbach, who was formerly a social worker, has applied to the Tribunal for a stay of a decision made by the Health Care Complaints Commission (the Commission) to issue a public statement about him and publish that statement on its website. Mr Kirbach seeks either that the public statement be removed from the website or that a much shorter, less detailed, version be published pending the Tribunal's decision. I have decided to stay the decision to issue the public statement pending the Tribunal's final decision.
As well as deciding to issue a public statement, the Commission made a prohibition order preventing Mr Kirbach from providing health services for five years. Mr Kirbach has not applied for a review of that order.

Application lodged within time

Section 41C of the Health Care Complaints Act 1993 (NSW) requires an application for review to the Tribunal to be made within 28 days after the day on which the health practitioner is provided with the statement of the decision. Mr Kirbach stated in his application that he had received the statement of decision on 25 June 2015. He lodged the application on 21 July 2015, 26 days later. In those circumstances Mr Kirbach has lodged the application within the 28 day time limit.

Background

The Commission made the prohibition order and issued the public statement in relation to Mr Kirbach following a complaint it received on 26 May 2014 from the Northern NSW Local Health District. The complaint alleged that Mr Kirbach had failed to maintain a professional relationship with a former client known as Client A. Following an investigation the Commission was satisfied that Mr Kirbach had breached the Code of Conduct for Unregistered Health Practitioners in that he failed to provide health services in a safe and ethical manner: Public Health Regulation 2012 (NSW) Sch 3. The Commission also formed the view that Mr Kirbach posed a risk to the health or safety of members of the public. Having made those findings, the options available to the Commission under s 41A(2) of the Health Care Complaints Act were to make a prohibition order, or issue a public statement or to do both: (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health.
The Commission decided not to publish the statement of decision underlying the prohibition order but it issued a public statement and published that statement on its website.
The public statement sets out the details of the relationship between Mr Kirbach and Client A, Mr Kirbach's criminal conviction, the breaches of the Code of Conduct for Unregistered Health Practitioners that the Commission found against him and the fact that the Commission had made an order prohibiting him from providing any health service in either a team or voluntary capacity for five years.
Following receipt of a letter from Mr Kirbach dated 19 August 2015, the Commission gave further consideration to the text of the public statement. The Commission now accepts that it was in error to refer to the initial sentence imposed on Mr Kirbach by the Local Court without also referring to the final sentence imposed by the District Court following Mr Kirbach's severity appeal. Accordingly, the Commission decided to revise the public statement pursuant to s 41A(4) of the Health Care Complaints Act. The revised version was published on the Commission's website on 8 September 2015.

Grounds for stay application

The Tribunal has power to stay a decision pursuant to s 60 of the Administrative Decisions Review Act 1997 (NSW): 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
Mr Kirbach says he accepts responsibility for the wrong he has done and has not applied for a review of the prohibition order. He requests a stay either so that the entire public statement is removed from the website or so that the public statement is revised so that it contains much less personal information about himself and his family and does not record his criminal conviction and sentence.

Secure the effectiveness of the hearing

The first requirement of 60 of the Administrative Decisions Review Act is that a stay is appropriate to secure the effectiveness of the determination of the application.
The public statement was issued on 22 June 2015. Mr Kirbach applied for a stay on 27 August 2015 following discussion at a directions hearing on 18 August 2015. Mr Kirbach is self-represented and should not be criticised for failing to act more quickly. Nevertheless it is now some four months since the statement was published.
Mr Kirbach says he is experiencing difficulties finding employment even as a labourer. He suspects that prospective employers are accessing the internet, reading the public statement and then deciding not to employ him. while there is no other evidence that that is the case, it is a plausible inference. Mr Kirbach has also said that he is distressed because others, including members of his own family, are able to read personal information about his father which they did not know about previously.
I am satisfied that a stay is necessary to secure the effectiveness of the hearing because Mr Kirbach may suffer further irreparable loss and damage if the public statement is not removed or amended. He is not eligible for any compensation for that loss or damage even if the Tribunal sets aside the administrator's decision: Denney v Director-General, Department of Transport [2001] NSWADT 90 at [27].

The interests of any persons who may be affected

According to Mr Kirbach, both his interests and the interests of his family will be affected if the public statement remains on the Commission's website. His interests are affected because potential employers who search his name on the Internet will find the public statement. Even though he is not seeking work as a social worker or counsellor, that knowledge is likely to affect his employment prospects. It is more difficult to discern a connection between the interests of members of Mr Kirbach's family and the public statement remaining on the website. Members of the family will have had access to the information for the last four months. The harm, if any, has already been done.

Public interest

Mr Kirbach's submission is that the public statement contains highly personal and sensitive allegations and information that impact on the well-being and privacy of his family. He says that the publication of his name necessarily identifies his children who now have access to personal information relating to himself and other members of his family. He cannot see how this level of detailed information can be necessary for the protection of the public.
According to the Commission, the public interest in alerting members of the public to the conduct in which Mr Kirbach engaged and the penalties that have been imposed outweighs any prejudice to Mr Kirbach. The public statement supports the prohibition order because it advises the public that the order has been made in circumstances where they may not otherwise have been aware of that fact. The Commission added that it has no power to prevent Mr Kirbach from seeking employment or working as a social worker in another State or Territory and that the public statement alerts potential employers across Australia to Mr Kirbach's previous behaviour.
I accept that the protection of the public is a matter that should be given significant weight in an application of this kind: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91]. I also accept that the issuing of the public statement serves a public interest purpose in this case. It alerts members of the public and prospective employers to the conduct in which Mr Kirbach has engaged and may protect the public from any future conduct of the same kind in which Mr Kirbach seeks to engage. However, there is virtually no risk that Mr Kirbach will attempt to seek employment as a social worker either in New South Wales or elsewhere, or engage in the kind of behaviour for which he has been disciplined while these proceedings are on foot. In those circumstances the public interest is not so significant in the short term that it should override Mr Kirbach's interests.
The Commission has power to make a prohibition order or issue a public statement or to do both: Health Care Complaints Commission Act, s 41A(2). In this case it decided to do both. A public statement is to be issued "in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner." There is some doubt as to whether the Tribunal has power to stay the decision by amending the content of the public statement. The preferable decision is to stay the issuing of the public statement. The effect of that order is that the public statement is to be removed from the Commission's website pending further order of the Tribunal.

Order The decision of the Health Care Complaints Commission to issue a public statement in relation to Mr Kirbach is stayed pending further decision of the Tribunal. 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: 15 March 2023

Public Health Regulation 2012(NSW)

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