An important and most recent decision of the Supreme Court of Queensland in Ali Al Moosawai v Luke Massey [2015] QSC 169 delivered 24 June 2015, has found certain investigative powers of the Queensland Health Ombudsman wanting. The Court declared that a notice to a doctor accused of sexual misconduct with a patient, which required him to appear and answer questions at the Offices of Health Ombudsman, was invalid. Effectively a vanguard investigative power in s228 of the Health Ombudsman Act 2013 did not expressly allow such a power to be exercised. The Court criticised the manner in which the meaning of the word “information” was expressed in the various cross referenced provisions of this legislation rendering it “incomprehensible.” Sadly this outcome was avoidable. It was avoidable if the drafting of the empowering section had properly and clearly allowed the Health Ombudsman or delegated investigators the power to require information orally and any other specified information instead of purporting to do so cryptically.

The public is entitled to expect that an important regulator such as the Health Ombudsman is given the legislative muscle to deal with serious cases involving health care complaints. It is by no means draconian for regulators in this field to be given broad powers to require, among other things, information to be provided orally and on oath with limited basis for excusal. This is a power which is given expressly and clearly to an equivalent inter-state body in New South Wales, the Health Care complaints Commission under the Health Care Complaints Act 1993 (HCCA).

S34A of the HCCA provides:

(1)  If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following:

(a)  to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge,

(b)  to produce to the Commission, in accordance with the notice, any such documents,

(c)  to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents.

.....

(4)  A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement.

In a footnote to that provision it is noted that a failure by a health practitioner to provide such information may constitute unsatisfactory professional conduct. Additionally and most importantly under S37A a person required to produce the information pursuant to a S34A request is not excused on the grounds of self-incrimination. This provision goes on to render any such information as inadmissible in civil or criminal proceedings, except disciplinary proceedings or for a breach of the Act eg for failure to produce the information under the request.

That similar provisions are not enacted in Queensland defies logic. Similar powers to the New South Wales provisions existed in Queensland for decades under the repealed Medical Act 1939. That Act was replaced with ambit health practitioner legislation under the Health Practitioners (Professional Standards) Act in 1999 which itself contained watered down powers from that which were contained in the Medical Act for requisition of information from health practitioners. 

The illogicality of this situation can be illustrated by a hypothetical situation where a practitioner located at the southern end of the Gold Coast may be alleged to have committed serious misconduct. That practitioner may now thumb their nose at a request for the provision of oral information by the Queensland Health Ombudsman. However their colleague a few kilometres away over the border, who may be alleged to have committed the same type of conduct, would be lawfully obligated to answer questions about their conduct to the Health Care Complaints Commissioner. It is suggested that such an anomaly is in need of quite urgent legislative reform following the decision in this case.