Stonegate Legal achieved success in obtaining a non-publication order for a 2014 decision that negatively impacted a specialist doctor’s reputation due to its prominence in Google search results.
The doctor was facing online harassment, income loss, and reputational damage due to the search result.
The order was sought under the Queensland Civil and Administrative Tribunal Act’s Section 66, and it was granted on two grounds:
- to protect the doctor’s mental health; and
- in the broader interests of justice.
In this article our civil litigation lawyers discuss the legal basis for non-publication orders, the relationship with open justice, case law examples, and the challenges and risks associated with seeking such orders.
What is a Non-Publication Order?
A non-publication order is an order from the Court ordering that the case not be published, or if published then the names of the parties are not published.
As you may or may not know, legal cases are published publicly for several policy reasons that serve the interests of justice, transparency, consistency, and the rule of law. These reasons include:
- Accountability and scrutiny.
- Fairness and equal treatment.
- Judicial independence.
- Legal education and research.
- Legal precedent development.
- Precedent and consistency.
- Research and policy formulation.
- Transparency and public access to justice.
The default position is that legal cases should be published. However, there are a number of reasons that allow a Court to issue non-publication orders, stopping the publication of certain material.
In relation to AHPRA disputes, or complaints against doctors, this is section 66 of the QCAT Act.
Section 66 of the QCAT Act states:
(1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
(a) the contents of a document or other thing 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.
(2) The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for any other reason in the interests of justice.
(3) The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
(4) The tribunal’s power to act under subsection (1) is exercisable only by—
(a) the tribunal as constituted for the proceeding; or
(b) if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
This means that QCAT can make the order, by application or on it’s own initiative, if it considers it is necessary:
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
But what do the cases say about non-publication orders relating to doctors and other healthcare providers?
Relevant Case Law
We have provided a summary of the relevant case law (with links if you want to read).
Dr Choo-Tian Lee v Medical Board of Australia [2016] QCAT 23
This case gives an initial standpoint of the Tribunals view of this issue:
[44] The Tribunal should not lightly dispense with such systemic and enduring public policy considerations in favour of individual and transitory conveniences. Thus, non-publication orders must be more than mere convenient mechanisms to protect private interests; they must be necessary to preserve clearly identified interests. Such interests, although ostensibly private when examined in solus, will often have a sui generis public dimension when extrapolated on a population basis.
[45] Even where an applicant or respondent establishes that a non-publication order is necessary to protect a panoply of specific public and private interests, the Tribunal should only then grant a non-publication order to the extent required to protect such interests. Thus, the principle of necessity is a threshold criterion qualifying both the right to, and scope of, a non-publication order.
Medical Board of Australia v Waldron [2017] QCAT 443
This case may be differentiated as the Doctor, Ms Waldron, was initially found guilty of professional misconduct, and her registration was cancelled.
However, I have included some quotes in order to highlight the Tribunal’s discretion when making decisions for a non-publication order, and the underlying principle that public interest should be above a practitioner’s private interest.
[80] Section 66(2) of the QCAT Act prescribes the circumstances under which a non-publication order can be made and includes to avoid endangering the physical or mental health or safety of a person, to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice.
[81] The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary. The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.
[82] The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.” The onus is on the applicant to show special circumstances exist which justify the making of the order.
At [84], the Tribunal mentions the Applicant’s argument that she and her spouse live in a small regional community and her reputation will be affected. The Tribunal submitted in publications concerning the identification of parties affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” or damage to reputation has generally not been considered a sufficient reason to prohibit publication.
In X v Australian Prudential Regulation Authority [2007] HCA 4, Kirby J observed:
However, every day, in our courts, parties and witnesses must disclose their names and identities, although this is doubtless often uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country.
In Legal Services Commissioner v Sing (No 2), sitting as the Legal Practice Tribunal, the Chief Justice relevantly observed:
The Tribunal must be very careful not to thwart the achievement of that objective in any way. It would do so here if, by a non-publication or suppression order, it were seen to elevate the practitioner’s private interest over the public interest which should rightly predominate.
In Medical Board of Australia v DEL [2019] QCAT 63
This is a case which provides a test if the Applicant submits the publication is a risk to their mental/physical health. The case says:
[30] The Tribunal is satisfied that the non-publication order contended for by both parties is necessary to avoid endangering the mental health of the respondent and that a pre-condition for the exercise of the discretion to make an order exists. In choosing to exercise such discretion to make the order sought, the Tribunal takes into account:
(a) the risk to the mental health of the respondent if the order is not made;
(b) the length of time that has elapsed since the misconduct including the lengthy period of time that has elapsed since the commencement of the investigation into the respondent’s conduct, none of which delay is submitted to be the fault of the respondent; and
(c) the fact that the applicant does not oppose but indeed positively supports the making of the order.
Therefore, this is a case where there was a significant delay between the alleged misconduct and was decided on the basis on mental health issues.
In Health Ombudsman v XPW [2021] QCAT 403
In this case, the offending doctor was granted a non-publication order as it was deemed necessary to avoid endangering their mental health. In this case, Judge Allen QC, Deputy President said:
[41] An interim non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was made on 25 September 2020 after the Tribunal concluded, after considering medical evidence and hearing submissions in support of such an order from both parties, that such an order was necessary to avoid endangering the respondent’s mental health … [43] The Tribunal is satisfied that continuation of the order is necessary to avoid endangering the respondent’s mental health. The order made on 25 September 2020 will continue to have effect and these reasons have been anonymised accordingly.
Therefore, a person’s mental health and mental wellbeing will be a relevant factor in deciding the issue of whether to issue a non-publication order.
In Pearse v Medical Board of Australia [2013] QCAT 392
In this matter, the Applicant Doctor was accused of sexual misconduct in relation to a female patient.
He had the imposed sanctions set aside due to lack of evidence and subsequently applied for a non-publication order.
[68] There is no doubt that the matters which have been raised and agitated in these proceedings have had an impact upon Dr Pearse professionally. Notwithstanding that, the clear intent of the QCAT Act is that matters such as these, generally, as with those in courts, the proceedings of the Tribunal will be public and records of the proceedings will be available.
[69] I am also mindful of the fact that there is now extant a disciplinary referral before the Tribunal in which all of these matters will similarly be aired.
[70] Although having allowed Dr Pearse’s application to set aside the conditions imposed by immediate action taken under s 156, I am not of the view that it is in the interests of justice that there be a non-publication order or that the proceedings be closed under s 90. In reaching that conclusion I have considered R v Medical Board of Australia and I v Medical Board of Australia where de-identification orders were made. There were in each of those matters different considerations leading to such an order. In the former there were particular considerations as to the ability of members of the public to identify complainants if the doctor himself was identified, this was because of the small size of the community in which he practiced. In I there was another matter which intervened, which was section 71A of the Evidence Act 1929 (SA) which had particular application given that the doctor there had been charged with criminal offences.
In I v Medical Board of Australia [2011] SAHPT 18, the Doctor was not identified in accordance with section 71A of the Evidence Act 1929 (SA), because he had been charged with two sexual offences.
Section 71A of the Evidence Act 1929 (SA) states:
(2) A person must not, before the relevant time, publish any statement or representation—
(a) by which the identity of a person who has been, or is about to be, charged with a sexual offence is revealed; or
(b) from which the identity of a person who has been, or is about to be, charged with a sexual offence, might reasonably be inferred,
unless the accused person consents to the publication.
In this case, the Tribunal said:
The Tribunal is also of the view that pursuant to s 71A of the Evidence Act 1929, because the appellant practitioner has been charged with two sexual offences, it is appropriate that information tending to identify him should not be published and that hereinafter he will be referred to as ‘Dr I’ or ‘the practitioner’, or ‘the appellant’.
Therefore, if a doctor has been charged with sexual offences, then the Tribunal may also issue a non-publication order.
Similarly, in R v Medical Board of Australia [2013] WASAT 28, the Doctor was not identified in accordance with s 36C of the Evidence Act 1906 (WA), which makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence.
This matter took place in a small community and the identification of the doctors would likely lead the public to the identification of the complainant.
The Recent Success by Stonegate Legal
On the 15th of April 2014, the Medical Board of Australia notified our doctor client that it proposed to take action against him pursuant to section 178 of the Health Practitioner Regulation National Law (Queensland) (“National Law“) in the form of the imposition of conditions upon his registration.
Our client is the holder of specialist registration under the National Law.
The primary nature of the conditions imposed was the imposition of what might conveniently be described as chaperone conditions in respect of consultations with female patients. Condition 4 prohibits [the doctor] from consulting, assessing, examining, or treating any female patient without another person being present for the entire consultation, assessment, examination, and treatment. That chaperone must be a person at least 18 years of age and be either a person who has accompanied the patient to the consultation, an adult or guardian of the patient, or another individual with the consent of the patient, including a staff member of the practice.
Ancillary conditions relate to the keeping of registers and other matters going to compliance and audit, namely that:
- The applicant undertakes an education programme addressing professional boundaries, boundary violation and skills in boundary management; and
- The applicant satisfies the Board that he had completed the course satisfactorily within a mandated time frame.
It was clear from these conditions what our client was accused of. Of course, these allegations were all completely untrue, with the Tribunal ultimately deciding:
The decision of the Medical Board of Australia made on 9 April 2014 is stayed until further order of the Tribunal.
No further action was taken by AHPRA, and this decision was published.
Skip forward to 2023, and this decision appeared in the number 1 spot on Google when you Googled the doctor’s name, causing severe damage.
Application for Non-Publication Order
The applicant is registered as a specialist medical practitioner. He applied in 2014 for a review of the Board’s decision, at that time, to impose conditions on his registration. In 2014 he successfully obtained a stay pending the determination of the review application (“Stay Decision“).
The Stay Decision was published on the Supreme Court website. The applicant sought a non-publication order in respect of the Stay Decision.
Almost nine years after the Stay Decision, the applicant has made the application for a non-publication order. He submitted such an order is necessary:
- To avoid endangering his physical or mental health or safety;
- To avoid offending public decency or morality;
- As it is in the interests of justice, given he was found not to have engaged in any professional misconduct.
The Tribunal was satisfied that a non-publication order was necessary in the particular circumstances of this case.
The applicant’s submissions in support of the application are in summary:
- The way the chaperone conditions were set out in the Stay Decision paint a relatively clear picture of what the allegations were about;
- The Stay Decision ranks number one on Google upon searching the Applicant’s name. This is negatively affecting his reputation as a doctor in Australia. People commonly google their new doctors and the publication of the Stay Decision is causing detriment to the Applicant’s growing business;
- The Applicant’s mental health has rapidly declined as a result of the Stay Decision’s high ranking on Google;
- The applicant is experiencing repeated attacks on social media as a consequence of the publication of the Stay Decision. Posts on Facebook, stated essentially that the applicant sexually assaulted a patient and provide the link to the Stay Decision and are threatening in nature. The ongoing publication of the Stay Decision is subjecting the applicant to online attacks which are detrimentally affecting his mental health and potentially his safety;
- There is a real connection between the publication of the Stay Decision and the online attacks the applicant is receiving, which are having an effect on his mental health and, potentially, his safety;
- The Stay Decision was made in 2014 in relation to a complaint made in 2012 and it is in the interests of justice for a non-publication order to be made in respect of a dated matter which was ultimately ‘dismissed’;
- The respondent Board does not oppose the making of a non-publication order.
The applicant’s submissions stated that the applicant has experienced numerous patients cancelling their initial appointment and asking for a different doctor. The submissions also contain a statement that a patient during her first appointment, told the applicant “there is an odd link about you on Google”, which caused the applicant to be unable to concentrate and excuse himself from the appointment.
The Tribunal ultimately deciding that:
The chaperone conditions which the Tribunal stayed were set aside after the hearing of the review. Thus, there should be no ongoing suggestion on the public record that the applicant was subject to chaperone conditions. The Tribunal accepts that the Stay Decision can be located easily and quickly. The Stay Decision’s description of the chaperone conditions was proper when it was decided. However, as those conditions were ultimately set aside, the ongoing articulation of them, publicly, has the potential to tarnish, without factual foundation, the applicant’s reputation almost a decade after the review was heard and determined in the applicant’s favour and the conditions were set aside.
In these circumstances, the Tribunal is satisfied that it is necessary to make a non-publication order:
- To protect the mental health of the applicant; and
- more broadly, in the interests of justice.
The Tribunal made the following orders:
- Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of any information identifying the Applicant, or by which he may be identified, is prohibited;
- There be no order as to costs.
This was a win for our client and a win for Stonegate Legal.
Risks of Making Application for Non-Publication Order
From the research conducted on the case law and outlined above, QCAT evidently leans toward the underlying principle of open justice and are generally quite hesitant to allow non-publication orders unless it is detrimental to parties’ health and safety.
However, in accordance with Medical Board of Australia v DEL, if the Medical Board does not oppose but indeed positively supports the making of the order, this will help an applicant’s chances.
We believe Pearse v Medical Board of Australia, is the most applicable and mentions cases where doctors were not identified and why. However, the doctor applicant for non-publication was denied in that matter, despite recognising the damage of the false complaint to his career.
Risk – The principle of open justice is:
“that justice should not only be done, but should be seen to be done”
Because of this, it is a difficult case to be successful, as per the case law above. That is not to say that it is not able to be successful, a lawyer can do everything they possibly can to win, but ultimately the Tribunal member has discretion.
Risk – even if you are wholly successful in this application, and you win and a non-publication order is granted, there is no guarantee that this will drop off the first page of Google. Obviously, Google’s algorithm is extremely complicated and advanced and it may simply stay at the number 1 spot.
Frequently Asked Questions – FAQ
The concept of open justice has long underscored the transparency and accessibility of court proceedings to the public. However, there are situations in which the dissemination of specific information can have detrimental effects on individuals’ well-being, reputations, and safety.
In such cases, non-publication orders can be sought to prevent the public disclosure of certain details.
This set of frequently asked questions (FAQs) delves into the intricacies of non-publication orders, drawing insights from a recent success story where Stonegate Legal effectively obtained such an order to protect a doctor’s reputation and mental health.
What is a non-publication order, and why was Stonegate Legal successful in obtaining one?
A non-publication order is a legal directive that prohibits the publication of specific information related to a case. Stonegate Legal successfully obtained a non-publication order for a decision made in 2014 that negatively impacted a specialist doctor’s online reputation due to its high ranking on Google search results.
Why did the doctor seek a non-publication order for the 2014 decision?
The doctor sought a non-publication order because the 2014 decision was causing significant harm to their online reputation, leading to bullying, harassment, loss of income, and damage to their professional standing. The doctor’s mental health and safety were also at risk due to the negative impact of the online content.
What legal basis allows for the issuance of non-publication orders in cases like this?
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides the legal framework for issuing non-publication orders. This section allows the tribunal to prohibit the publication of certain information when it is necessary to avoid interfering with justice, endangering a person’s health or safety, offending public decency, or serving the interests of justice.
What were the two grounds on which the doctor’s non-publication order application was successful?
The doctor’s non-publication order application was successful on two grounds:
a) To protect the mental health of the applicant (doctor).
b) In the broader interests of justice, considering that the doctor was found not to have engaged in professional misconduct.
How does the issuance of non publication orders relate to the principle of open justice?
The principle of open justice emphasises that legal proceedings should be conducted transparently and made accessible to the public. However, non-publication orders may be granted when there are valid reasons, such as protecting mental health, avoiding endangerment, or serving the interests of justice.
What factors influenced the tribunal’s decision to grant non-publication orders?
The tribunal’s decision was influenced by several factors, including the potential harm to the doctor’s mental health, the impact of online attacks due to the high ranking of the decision on Google, the fact that the chaperone conditions were ultimately set aside, and the interests of justice in avoiding the ongoing tarnishing of the doctor’s reputation.
What risks are associated with seeking a non-publication order?
Seeking a non-publication order can be challenging due to the principle of open justice. The principle emphasises transparency in legal proceedings. Additionally, even if a non-publication order is granted, there’s no guarantee that the content will be removed from search engine results, as search algorithms are complex and unpredictable.
Can a non-publication order guarantee the removal of content from search engine results?
No, a non-publication order cannot guarantee the removal of content from search engine results. Search engine algorithms are complex and may not immediately reflect the changes imposed by a non-publication order. However, the order prevents further publication of the specified information.
What considerations should individuals or legal practitioners keep in mind when seeking a non-publication order?
Individuals and legal practitioners should be aware that obtaining a non-publication order can be challenging due to the principle of open justice. They should present compelling reasons for the order, including potential harm to mental health, safety, and the broader interests of justice. The support of relevant parties, like the Medical Board, can strengthen the case.
