We have previously looked briefly at the Health Ombudsman Act (Qld) 2013 (the Act). The Act has been law since August 2013, but commenced operation from 1 July 2014. From that date, the Health Quality and Complaints Commission ceased to exist, and the Office of the Health Ombudsman (OHO) took up its intended role as the single point of contact for all health service complaints in Queensland.
We now take a closer look at one of the issues likely to be of most interest to health practitioners - the circumstances in which the Health Ombudsman (the Ombudsman) can take ‘immediate action’.
The OHO’s guiding principle is that the health and safety of the public is paramount. In pursuing that principle, the Ombudsman may take immediate registration action (in relation to health practitioners subject to a registration regime) or issue an interim prohibition order (in relation to health practitioners not subject to a registration regime).
The Ombudsman may take immediate registration action if:
- He reasonably believes that a practitioner’s conduct poses a serious risk to people and that it is necessary to take the action to protect public health and safety.
- He reasonably believes that a practitioner’s registration was obtained because someone provided a National Board with a document that was false or misleading.
- The practitioner’s registration has been cancelled or suspended in an external jurisdiction.
The Ombudsman may (provided one of these requirements is satisfied) take action at any time. No complaint is necessary.
In terms of procedure, the Ombudsman must provide the practitioner with a show cause notice, and allow them at least 7 days to provide submissions in response. These requirements can however be waived if the Ombudsman considers that immediate action is nevertheless necessary to ensure the health and safety of an individual or the public.
In either case, upon taking immediate action the Health Ombudsman must inform the practitioner of the action, the reasons for it, the other actions he proposes to take and the practitioner’s rights in terms of review of the decision.
Interim prohibition orders operate in a similar way, but apply to health practitioners not subject to a registration regime. Given the very broad definition of health practitioner in the Act (anyone providing something that purports to be a service for maintaining, improving, restoring or managing people’s wellbeing), prohibition orders could be issued against a wide range of people (for example providers of any form of weight loss therapy) not previously subject to such regulatory oversight.
The Act states that a serious risk of harm justifying an interim prohibition order may arise from (but is not limited to) matters such as financial exploitation, improper personal relationships or discouraging a person from seeking proper treatment. It imposes a maximum penalty of 200 penalty units ($46,132) for a person who contravenes a prohibition order and requires that the Health Ombudsman publish the details of the orders on a publically accessible website. No such orders have been published at this time.
The Ombudsman has accordingly been given wide ranging powers to address potential risks to the public safety. As noted previously however, the extent of the powers and the way in which they may be exercised has also given rise to concern that the emphasis on swift action and the protection of the public may come at the expense of procedural fairness for health practitioners.
The extent to which that concern is justified, and the overall effectiveness of the regime remains to be seen, but with the new system now in operation we expect to be in a position to report regarding the early signs shortly.