Recently, the Supreme Court of Queensland held that reports of clinical reviewers and health service investigators appointed under the Hospital and Health Boards Act 2011 (Qld) can be decisions which are amenable to judicial review under the Judicial Review Act 1991(Qld).  As a consequence, any person the subject of such a report must be afforded natural justice when producing the report.

In Vega Vega v Hoyle & Ors [2015] QSC 111, Dr Antonio Vega Vega (a specialist urologist) was involved in four clinical incidents at the Rockhampton Base Hospital, one of which involved the removal of a wrong kidney from a patient.  As a result, Dr Vega Vega was suspended from practice and a clinical review and a health service investigation were commenced pursuant to the Hospital and Health Boards Act (HBB Act).

The purpose of a clinical review is to provide expert clinical advice in relation to clinical incidents which then informs the health service investigators whose role it is to investigate and report on matters relating to the management, administration or delivery of public sector health services in the hospital. Following an investigation, the Investigation Report was delivered to the Director-General of Queensland Health (the chief executive) which included the Clinical Review report and recommended that Dr Vega Vega’s privileges remain suspended.  Under the HHB Act, after considering the report, the chief executive was authorised to make a binding direction to the hospital in relation to Dr Vega Vega.

Dr Vega Vega made an application in the Supreme Court of Queensland to set aside the Investigation Report on the basis, amongst other things, that it was produced in breach of the rules of natural justice as, despite requests, he was not provided with the notes of interviews with 58 witnesses interviewed as part of the investigation and clinical review.  Dr Vega Vega argued that because of that he was prevented from knowing the basis of the case against him and was unable to properly respond during the investigation. 

Dr Vega Vega’s application was successful.  The court held that the determinations, findings and recommendations contained in the Investigation Report were decisions to which the Judicial Review Act (“Judicial Review Act”) applies and were therefore reviewable.  In making this decision, the court examined the circumstances surrounding the initiation of the review, the qualifications of the clinical reviewers and investigators, the powers they were given, the extent of the inquiry, the nature of the recommendations contained in the report and the consequences which followed.  The court was also influenced by the fact that a direction that the chief executive may make to the hospital was “predicated” on a consideration of the Investigation Report (which contained the Clinical Review Report) and, therefore, the reports were a condition precedent to the making of the direction and not mere steps along the way.  The court was also of the view that the findings and recommendations in the reports affected Dr Vega Vega’s rights because they affected his ability to practice medicine or, at the very least, his reputation.

The court further held that failure to provide interview notes to Dr Vega Vega and the delivery of the Investigation Report in the face of his requests for disclosure amounted to a breach of the rules of natural justice.  In reaching this conclusion, the court was influenced by the significance of the interview notes and the seriousness of the consequences that the Investigation Report had for Dr Vega Vega.  The court thought that it was critical for Dr Vega Vega to know the nature of the allegations against him and the identity of the persons making the allegations.  In this regard, the court disagreed with the respondents’ argument that the content of the interviews was sufficiently summarised in the draft Investigation Report provided to Dr Vega Vega.  The court was of the view that the actual “source documents” should have been provided. 

Comment

The decision clarifies the scope of judicial review and that investigators pursuant to the HBB Act must follow the rules of natural justice in preparing their reports.

It remains to be seen what relevance this decision has in relation to other legislative schemes for investigation of professionals such as engineers (Professional Engineers Act 2002 (Qld)), architects (Architects Act 2002 (Qld)), and surveyors (Surveyors Act 2003 (Qld)). While the procedures in those schemes are not identical to the HHB Act they are similar in some respects. They involve a statutory regulatory review of a person’s conduct which can include the preparation and delivery of a report making recommendations to a decision maker for a final decision.

Whether judicial review is available before the point of a final decision will turn on whether a report provided to the decision maker is in itself a decision to which the Judicial Review Act will applyIf so, it could provide relevant professionals input into what is put before a professional board when considering the professional’s conduct, with a view to avoiding an unfair decision being made.