Vega Vega v Hoyle & Ors (2015) QSC 111
Dr Antonio Vega Vega was a specialist urologist employed at the Rockhampton Base Hospital. In January 2014, Dr Vega Vega performed a nephrectomy (removal of a kidney) on a patient. There were some problems with the surgery, as a result of which Dr Vega Vega’s employment was suspended by the Central Queensland Hospital and Health Service (CQHHS).
On the day of suspension the Chief Executive of Queensland Health initiated separate investigations under the Hospital and Health Boards Act 2011 (Qld) (HHB Act) including a Clinical Review and a Health Service Investigation. These investigations were intended to identify the factors that contributed to the incident and to highlight issues of professional competence. As part of the investigations, reports were prepared by the investigators.
After the reports were completed (but before any disciplinary decision), Dr Vega Vega filed an application in the Supreme Court of Queensland seeking judicial review of the reports. Dr Vega Vega argued the reports were susceptible to judicial review, and the reports were flawed for a number of reasons including that he had been denied natural justice in their making.
Until this decision, a Clinical Review Report and a Health Service Investigation Report were not generally considered susceptible to judicial review. Rather, it was the disciplinary decision that flowed from a report which was reviewable.
The Court held the prepared reports were judicially reviewable. The crux of the Court’s reasoning was that the HHB Act required the Chief Executive to take the reports into account, when making a disciplinary decision. The Court followed a line of authority that where a preliminary decision must be taken into account by the ultimate decision maker, review of that preliminary decision was available.
As to whether Dr Vega Vega had been given natural justice, the evidence before the Court was that the investigators had gone very far in providing Dr Vega Vega with natural justice in relation to the creation of the reports. However, they did not provide him with their notes from interviews with staff members, which had been used in the preparation of the report. The Court found that this denied him procedural fairness, and for this reason the reports were declared invalid.
This decision should be noted by hospital and health boards because it expands the scope of judicial review to Clinical Reviews and Health Service Investigations commenced under the HHB Act. Natural justice and procedural fairness must be provided to the objects of these investigations.