In March 2012, a former Medical Board of Queensland investigator turned whistle-blower, reported to the Crime and Misconduct Commission serious allegations of widespread medical malpractice being covered up in Queensland. Her allegations prompted three investigations which led to a number of recommendations.
The Queensland Minister for Health, Mr Lawrence Springborg, subsequently announced dramatic changes to the administration of health complaints in Queensland. On 20 August 2013 the Health Ombudsman Act (the Act) was passed into law in Queensland. The Act has been proclaimed and all provisions will commence on 1 July 2014. Mr Leon Atkinson-MacEwen has been appointed Queensland Health Ombudsman and a newly appointed Medical Board has been announced. The Board will be headed by Associate Professor Susan Young from the University of Queensland School of Nursing and Midwifery.
Health Ombudsman Act
The Act represents a significant change to the regulation of health professionals in Queensland and a complete overhaul of the complaints and investigations system that previously existed. All complaints previously referred to as notifications pursuant to the Health Practitioner National Law Act 2009 (the National Law), are to be made to the Health Ombudsman.
The Health Ombudsman will replace the existing Health Quality and Complaints Commission (HQCC) and will act as a single point of contact for all health complaints within Queensland. The Health Ombudsman will also deal with serious disciplinary matters.
The Act combines a number of functions previously exercised by the HQCC and the National Law. The National Law will continue to be read in conjunction with the Act. All existing complaints before the HQCC not finally dealt with as at 1 July 2014 will be dealt with as a health service complaint by the Health Ombudsman.
The more important aspects of the Act are:
1. Immediate Action
The Health Ombudsman will have the power to take immediate action in response to a Health Service Complaint. The immediate action concerns immediate registration action (suspension or placement of conditions on a registered health practitioner) or issuing an interim prohibition order (prohibiting or imposing conditions on a health practitioner’s practice).
The Health Ombudsman can take either action without seeking clinical advice or submissions from the individual concerned.
When the Health Ombudsman proposes to take immediate registration action, he/she must give notice to the practitioner and invite a submission. The Health Ombudsman must allow 14 days for the submission and is to have regard to any submissions before deciding to take immediate action. However, the requirement to issue a show cause notice is suspended if the Health Ombudsman is satisfied that to do so would put the health and safety of an individual or the public at risk.
A practitioner to whom notice of proposed immediate registration action has been given can apply to the Queensland Civil and Administrative Tribunal (QCAT) for review of the decision. Of importance, the Act provides that QCAT must not grant a stay of the decision to take immediate action. Once the Health Ombudsman has made a decision to take immediate registration action he/she must start an investigation under the Act, refer the matter to the Australian Health Practitioners Regulation Authority or refer the matter to the Director of Proceedings, who is empowered with deciding whether proceedings should be taken against the health practitioner in QCAT.
Investigations must be completed within one year of a decision to conduct an investigation. Extensions will not be granted beyond three months. The Health Ombudsman is required to keep a public register on a publicly accessible website, of investigations not completed within one year after the decision to carry them out.
2. Interim Prohibition Orders (Division 2)
The Act gives the Health Ombudsman power to issue an Interim Prohibition Order which either, prohibits a health practitioner from providing any health service or a stated health service or imposes a restriction on the provision of any health service, or a State health service provided by that health practitioner.
The Health Ombudsman has the power to issue an Interim Prohibition Order if he or she is satisfied on reasonable grounds that the practitioner poses a serious risk to persons as a result of the practitioner’s health, conduct, or performance and it is necessary to issue the order to protect the public’s health or safety.
The Interim Prohibition Orders can also be issued at any time irrespective of whether or not a complaint has been made.
3. Publication of Orders
The Health Ombudsman must publish on its publicly accessible website, information about each current Interim Prohibition Order including:
the name of the health practitioner to whom the order was issued;
the day the order took effect;
the details of the order made against the health practitioner.
The Act also provides that the Health Ombudsman must publish information about corresponding interstate Interim Orders it is aware of. The Health Ombudsman has a discretion to publish the information any way he or she considers appropriate.
Areas of controversy
Interest groups ranging from individual practitioners, the Australian Medical Association and the Queensland Nurses Union all expressed significant concern in relation to what they consider are draconian measures in the Act.
The primary concerns are as follows:
1. Immediate action
The immediate action able to be taken by the Health Ombudsman has been raised as a concern in circumstances where such action potentially denies a practitioner natural justice by taking action before the practitioner has had sufficient time to respond in a considered way.
A practitioner can find him or herself barred from practising and unemployable before they have had a chance to query the imposition of immediate action.
2. Short Timeframes
The Act imposes very short timeframes within which a practitioner is able to respond to the Health Ombudsman’s intention to take immediate registration action or issue an Interim Prohibition Order. If a practitioner needs to obtain supporting evidentiary material and/or expert reports, it is unlikely this will be possible within the short 14 day timeframe.
The Health Ombudsman also has the power to shorten the 14 day time period as along as he/she believes it is reasonable in the circumstances.
The concerns relating to the Health Ombudsman’s powers in respect of taking immediate action are exacerbated by the limitation of the right to appeal the taking of such action. QCAT has been denied the power to grant an immediate stay of a decision to take immediate action which will force practitioners to apply to the Supreme Court for review of such a decision and significantly increase the potential legal costs in managing disciplinary proceedings.
Further, whilst QCAT retains a power of review over immediate action decisions, the length of time between lodging an application and an actual hearing may be unacceptably long, particularly in circumstances where practitioners may be limited or unable to engage in the practise of medicine in the intervening period.
4. Removal of privilege against self-incrimination
Sections 162(3) and 164(3) of the Act remove the privilege against self-incrimination in relation to enquiries undertaken by the Health Ombudsman. Pursuant to these provisions, witnesses cannot rely on privilege against self-incrimination to refuse to answer a question or supply a record. Whilst both provisions provide that any evidence given under the sections cannot be used in a civil, criminal or administrative proceedings, it has been argued the provisions nevertheless erode the fundamental right to silence in the face of self-incrimination.
5. Publication of Orders
The concerning aspect of the provisions relating to the publication of orders is the naming and shaming of practitioners in a public forum with the potential for significant, unrecoverable damage to their reputation, even if the allegations upon which the immediate actions are taken, are not later substantiated.
6. Single decision maker
The new Health Complaints regime will be overseen by the Minister of Health, who may direct the Health Ombudsman to investigate a particular matter and require the Health Ombudsman to give information and report to him or her regarding a particular matter. The Health Ombudsman is otherwise required to act independently, impartially and in the public interest and is not generally subject to directions.
Concern has been raised that as the provider of public health and hospital services in Queensland, the Minister for Health (and his or her Department), has an inherent conflict of interest when considering health complaint matters.
Further, there is no requirement in the Act that the Health Ombudsman be a medical practitioner or that they have clinical experience. The potential is for decisions to be made that do not reflect a balanced assessment of medical practice in Queensland at the time of the assessment.
7. Co-Regulatory Jurisdiction
Creating a co-regulatory jurisdiction in Queensland has the potential to undermine the ability of health practitioners to practice consistently across State borders. The creation of a nationally-consistent approach under the National Law allowed practitioners to practise anywhere in Australia with the security of having a consistent approach to registration and the complaints handling process. The changes under the Act erode that nationally consistent approach.
The Act represents significant change to the regulation of health professionals and their services in Queensland. The changes will present challenges for practitioners when a complaint is made against them. This is particularly the case in the absence of a formal complaint by a patient or fellow practitioner.
There will be considerable pressure on the Health Ombudsman and Director of Proceedings to resolve matters within a very short period of time. According to the Minister for Health “the tighter timeframes for complaints assessment, investigation and completion under the Act will give Queenslanders a more rigorous, accountable health complaints system, which will be the single point of lodgement for health complaints in Queensland.” One imagines the Minister for Health will be anxious to demonstrate that the changes have successfully ensured Queenslanders access health services in a safer, more accountable manner.
The emphasis is likely to be on the consumers of health services in Queensland, rather than the practitioners. The concern is that “improvements” in the complaints handling process are not achieved at the expense of practitioners being afforded due process and natural justice. Only time will tell whether the Act achieves a balance between these competing interests.