McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24

McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24

Because a non-disclosure order protected patient names, the patient names appeared throughout a very large volume of Tribunal records, redaction was impractical and risked inadvertent disclosure, and the Tribunal had no rule or statutory provision authorising acceptance of the journalist's proposed undertaking, the public interest in confidentiality and protection of patient privacy prevailed and the application for access had to be dismissed.

Jurisdiction
Australia
Judgment Date
18 March 2020
Procedural Posture
Application by a Third Party Journalist for Access to Tribunal Records Admitted in Disciplinary Proceedings Against a Former Medical Practitioner / Second Application; Conducted on the Papers
Outcome
Application dismissed.
Legal Topics
['access to Tribunal Records by Non Party' 'non Disclosure Order' 'non Publication Restriction' 'redaction of Patient Names' 'confidential Patient Information' 'disciplinary Proceedings Against Health Practitioner']
['administrative Law' 'health Practitioner Regulation' 'civil Procedure' 'open Justice' 'privacy and Confidentiality'] ['access to Tribunal Records by Non Party' 'non Disclosure Order' 'non Publication Restriction' 'redaction of Patient Names' 'confidential Patient Information' 'disciplinary Proceedings Against Health Practitioner']

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Procedural Posture

Application by a Third Party Journalist for Access to Tribunal Records Admitted in Disciplinary Proceedings Against a Former Medical Practitioner / Second Application; Conducted on the Papers

Legal Issues

  1. 1 ['Whether the non-disclosure order protecting patient names should be varied or displaced to permit access to Tribunal records.' 'Whether the journalist should be granted access to inspect records admitted in the disciplinary proceedings where patient names appeared throughout the records.' 'Whether redaction of patient names was practical given the volume and nature of the records.' "Whether the Tribunal could accept the journalist's undertaking not to publish or contact patients if given access to unredacted records."]

Ratio Decidendi

Because a non-disclosure order protected patient names, the patient names appeared throughout a very large volume of Tribunal records, redaction was impractical and risked inadvertent disclosure, and the Tribunal had no rule or statutory provision authorising acceptance of the journalist's proposed undertaking, the public interest in confidentiality and protection of patient privacy prevailed and the application for access had to be dismissed.

Court Disposition

Application dismissed.

Orders

  • ["That the application made by the applicant for access to the Tribunal's records in respect of the disciplinary proceedings between the Health Care Complaints Commission and Peter Petros be dismissed." 'Any application for costs is to be made within 21 days of the date of the publication of this decision.']