Dental practitioner was recently successful in obtaining an order

A dental practitioner was recently successful in obtaining an order allowing an earlier non-publication order preventing publication of his name in relation to disciplinary proceedings to continue. The Dental Council of NSW (Council) resisted the application. This related to a decision by the NSW Civil & Administrative Tribunal (Tribunal) which was handed down in November 2015 in which it dismissed an appeal brought by the practitioner in relation to conditions imposed on his registration by the Council. Following handing down its decision the Tribunal invited the parties to make submissions in relation to whether the non-publication order of the practitioner’s name should continue. As the appeal decision refers to the practitioner by name, they have not been made publically available and therefore we know very little in relation to the matters that underlie that decision.

The practitioner’s submissions in relation to the non-publication order included reference to the fact that the order ought continue as a failure to do this would result in the disclosure of the identity of his former wife, who was the victim of sexual assault by the practitioner and for which the practitioner had been convicted. To disclose her identity would be against the public interest. He also made reference to the effect disclosure of his name would have on his reputation, the fact that he is still the subject of Health Care Complaints Commission (HCCC) investigation in relation to allegations made by two former patients (which lead to conditions that he appealed against being put in place) and the fact that unless he had appealed the original decision concerning the imposition of conditions (which he did and failed on), the non-publication order from that decision would have continued. That is, by appealing the Council’s decision to place conditions on his registration he exposed himself to the risk of his identity being exposed. Further, the practitioner stated that any risk he may pose to the public had been addressed by way the imposition of the chaperone condition.

The Council accepted that as there was reference in the Reasons given by the Tribunal for its decision in the Appeal to other judgments which were the subject of suppression orders, if these could not be redacted from the Reasons, then the non-publication order should continue.

Whilst reputational damage is not normally a basis in disciplinary proceedings to suppress the identity of the practitioner because of the presumption in favour of open justice, the Tribunal found that the non-publication order should continue as to fail to allow this, they would in effect be failing to respect the suppression orders made in other jurisdictions. This was because the Tribunal formed the view that to redact reference to those other decisions in its Reasons for dismissing the appeal would be inappropriate as they were relevant to the Tribunal’s decision to dismiss the practitioner’s appeal. By carrying out an exercise of weighing the respective interests, the Tribunal concluded that more harm would be done by publishing the practitioner’s identity and redacting significant parts of its Reasons for the appeal decision than continuing to allow the non-publication order to continue.

Post by Karen Kumar and Cameron Leaver

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