McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142

McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142

The Tribunal had no power under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law to revoke or amend the existing non-disclosure order after the principal proceedings had concluded, and the erroneous reference to cl 7(1)(b)(iii) did not justify setting the order aside because the order was within the power in cl 7(1)(a). To remove any doubt, the Tribunal could make an ancillary order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 No 2 prohibiting disclosure of patient names. The patients' privacy, the confidentiality of clinical records, and the public interest in enabling the HCCC to obtain frank information from patients outweighed the...

Jurisdiction
Australia
Judgment Date
11 September 2019
Procedural Posture
Application by a Third Party Journalist to Vary or Revoke a Non Disclosure Order and Inspect Tribunal File Documents in Finally Determined Disciplinary Proceedings / On the Papers; Principal Proceedings Finally Determined
Outcome
Application refused; non-disclosure order confirmed by ancillary order; costs reserved.
Legal Topics
['non Disclosure Orders' 'non Publication Orders' 'access to Tribunal Files' 'patient Confidentiality' 'ancillary Orders' 'functus Officio']
['administrative Law' 'health Practitioner Regulation' 'professional Discipline' 'privacy and Confidentiality' 'open Justice'] ['non Disclosure Orders' 'non Publication Orders' 'access to Tribunal Files' 'patient Confidentiality' 'ancillary Orders' 'functus Officio']

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Procedural Posture

Application by a Third Party Journalist to Vary or Revoke a Non Disclosure Order and Inspect Tribunal File Documents in Finally Determined Disciplinary Proceedings / On the Papers; Principal Proceedings Finally Determined

Legal Issues

  1. 1 ['Whether the Tribunal had power under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law to revoke or amend a non-disclosure order after the principal proceedings had been completed.' 'Whether the reference in the original non-disclosure order to cl 7(1)(b)(iii) rather than cl 7(1)(a) rendered the order invalid or deficient.' 'Whether the Tribunal should make an ancillary order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 No 2 prohibiting disclosure of patient names.' "Whether open justice and the journalist's interest in contacting patients outweighed the privacy and confidentiality interests of patients and the public interest in the HCCC's investigative functions."]

Ratio Decidendi

The Tribunal had no power under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law to revoke or amend the existing non-disclosure order after the principal proceedings had concluded, and the erroneous reference to cl 7(1)(b)(iii) did not justify setting the order aside because the order was within the power in cl 7(1)(a). To remove any doubt, the Tribunal could make an ancillary order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 No 2 prohibiting disclosure of patient names. The patients' privacy, the confidentiality of clinical records, and the public interest in enabling the HCCC to obtain frank information from patients outweighed the...

Court Disposition

Application refused; non-disclosure order confirmed by ancillary order; costs reserved.

Orders

  • ['The application for varying the suppression order made by the Tribunal on 25 May 2018 is refused.' 'Insofar as the non-disclosure order made by the Tribunal on 25 May 2018 may be considered deficient because of the reference to cl 7(1)(b)(iii) of Schedule 5D of the Health Practitioner Regulation National Law,...