The key issue
The considerations to be taken into account when considering a suppression order application.
The background
A GP applied for a suppression order in respect of his name as published in a decision of 5 January 2018. That decision relates to a finding of professional misconduct against the practitioner in relation to, among other things, self-prescribing Schedule 8 drugs of addiction, providing untruthful reasons for positive drug test results and providing dilute testing samples to the Medical Council.
The practitioner’s reason for seeking the suppression order was that he had suffered periods of suicidal ideation and that the continuation of his name being in the public arena affects his health and may lead him to attempt suicide.
The HCCC asserted that the principles of open justice should prevail and that the making of such an order would be futile as the practitioner’s name had been in the public domain since 2018.
It was the practitioner’s position that his present psychiatric health condition was such as to constitute special or exceptional circumstances warranting the suppression of the 2018 decision.
The practitioner provided letters from his psychiatrist, psychologist and GP supporting his application, in particular, noting the real possibility of suicide should the order not be granted.
The HCCC submitted that the public interest required publication because of the tribunal’s findings that the practitioner engaged in conduct involving ‘misleading various authorities and failing to comply with conditions on his registration’.
Contrary to the letters obtained from the practitioner’s treating practitioners for the purpose of the proceedings, the tribunal noted that the clinical records of the treating practitioners (as opposed to their letters in support) were not necessarily consistent with someone who was at real risk of self-harm. On that basis, the tribunal was not satisfied that the risk reached the threshold of special or exceptional circumstances to justify allowing the application.
The outcome
The application for non-publication was dismissed.
The implication
Practitioners seeking non-publication of decisions will need to show more than a risk of self-harm to be successful in making such an application. What needs to be demonstrated is special or exceptional circumstances.
The decision Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 can be read here.
