Queensland’s new independent health complaints agency, the Office of the Health Ombudsman (OHO), commenced operation on 1 July this year. Replacing the Health Quality and Complaints Commission (HQCC), all health complaints in Queensland must now be directed to the OHO for investigation. The OHO will deal with any active health complaints previously with the HQCC. It is intended that the OHO will achieve efficiency and reduce delay associated with the investigation of health complaints.
Mr Leon Atkinson-MacEwen (previously the Ombudsman and Health Complaints Commissioner for Tasmania) has been appointed as Queensland’s first Health Ombudsman. He is responsible for overseeing the management of health service complaints in Queensland, and is governed by the Health Ombudsman Act 2013 (Qld) (‘Act’). The Act allows him to delegate his functions to appropriately qualified staff members of the OHO, with the exception of decisions to take immediate action against health practitioners, or to carry out an inquiry.
Section 7B of the Health Practitioner Regulation National Law Act 2009 (‘National Law’) specifies that the Health Ombudsman is a co-regulatory authority for the purposes of the Act. The National Law must be read in conjunction with the Act.
The Health Ombudsman is tasked with protecting the public through the promotion of professional, safe and competent practice by health practitioners and high standards of service by health service organisations. This is to be achieved through an accountable, consistent and efficient complaints management service. Both health service providers and complainants must be kept informed about any action that is taken and be given progress reports on an investigation.
Timely resolution of complaints
An emphasis upon the timely resolution of health service complaints means all parties must comply with strict timeframes to ensure that complaints are resolved as efficiently as possible. Section 85(1) of the Act states “The health ombudsman must complete an investigation as quickly as is reasonable in all the circumstances”.
Health practitioners must provide submissions no more than 14 days after they are notified of an investigation. It is therefore critical that health practitioners immediately notify their professional indemnity insurer as soon as they are notified about an investigation so that there is sufficient time for the appointment of solicitors and the preparation of any submissions in response.
The Health Ombudsman must assess a complaint within 30 days after deciding to carry out an assessment. Investigations must also generally be completed within 1 year.
The Health Ombudsman must keep a public register of investigations that have not been completed within 1 year, which identifies the general nature of the matter being investigated, the day on which it was decided to carry out the investigation, the current due date for completing the investigation, and the reason for each extension of the due day. However, the register must not include information that identifies a complainant, a health service provider or an individual provided with a health service. If investigations have not been completed within 2 years, the Health Ombudsman must provide the Health Minister and parliamentary committee with details of the matter being investigated and the reason why investigations have not been completed.
The Health Minister will oversee the administration of the health service complaints system, including the performance of the Health Ombudsman, AHPRA and the National Boards. As part of the efficient management of the health complaints system, the Health Ombudsman must provide regular performance reports to the public.
Who can complaints be made against?
The guiding principle for the administration of the Act is that the health and safety of the public are paramount. A complaint can be made against a health service organisation, an individual registered health practitioner and an unregistered individual health practitioner. Anyone who is responsible for providing a health service, whether it be a doctor, dentist, pharmacist, physiotherapist, nutritionist or massage therapist, is able to be the subject of investigation. The Act provides a broad definition of “health service”, namely a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and well-being.
Health Ombudsman’s responsibilities
In addition to receiving and dealing with health service complaints, the Health Ombudsman is responsible for investigating systemic issues in Queensland’s health system. He may assess a complaint to decide the most appropriate action to take, and also facilitate resolution of a complaint between the parties. For registered health practitioners, he can refer a health service complaint to AHPRA to be assessed by the relevant National Board under the National Law (unless the practitioner may have behaved in a way that constitutes professional misconduct, or another ground may exist for the suspension or cancellation of the practitioner’s registration, in which case it may be referred directly to the Queensland Civil and Administrative Tribunal (QCAT)). The National Boards also have an obligation to advise the Health Ombudsman about serious matters and the action that is being taken to deal with them (see section 310 of the National Law).
Whilst the Health Ombudsman cannot influence the National Board’s assessment of a complaint, he can ask that reasons be provided for decision to assess consistency in decision making processes. To this end, there is a new section 206A of the National Law, which specifies that the National Board must give notice to the Health Ombudsman about health, conduct or performance action against a registered health practitioner.
The Health Ombudsman may also refer a matter to the ‘Director of Proceedings’, an OHO staff member, who must be an appropriately qualified lawyer. The Director of Proceedings is responsible for deciding whether disciplinary proceedings should be brought against a health practitioner in QCAT.
Immediate action can be taken without submission from health practitioner
If the Health Ombudsman is satisfied that there is a serious risk to the public, he has power to take ‘immediate action’ against a health practitioner by suspending or imposing conditions on their registration, or – for unregistered health practitioners – prohibiting or imposing restrictions on their ability to practise. This immediate action may be taken without first providing the practitioner with the opportunity to make a submission. This is a substantial departure from the ‘Immediate Action’ regime under the National Law, which provides for the practitioner to be heard before any immediate action is taken. In these circumstances, notice must be provided to the practitioner about the immediate action taken, as well as the National Board. The Health Ombudsman must then invite the practitioner to make a submission within a period of at least 7 days (see section 59 of the Act).
If the practitioner makes a submission, the Health Ombudsman must decide if the immediate action taken is appropriate, and give the practitioner a notice that either confirms the action taken, or alternatively ends the action. If the immediate action is confirmed, the Health Ombudsman must immediately start an investigation, or refer the matter to AHPRA or the Director of Proceedings, who has the ability to decide whether to commence proceedings before QCAT.
A health practitioner may apply to QCAT for a review of the Health Ombudsman’s decision within 28 days after receiving the notice. However, QCAT does not have the power to grant a stay of the Health Ombudsman’s decision. If practitioners wish to continue practising/not be immediately subject to any conditions imposed on their registration by the Health Ombudsman, they will need to make an urgent application to the Magistrates Court for a stay of the decision. Additional legal costs will be incurred with this process.
Unregistered practitioners face interim prohibition orders
For unregistered health practitioners such as massage therapists or nutritionists, the Health Ombudsman has the power to issue an ‘Interim Prohibition Order’. A similar process applies for Interim Prohibition Orders as for Immediate Action.
For each current interim prohibition order, the Health Ombudsman must publish on a publicly accessible website the name of the health practitioner to whom the order was issued, the day the order took effect, and details of the order that apply to the practitioner. In practice, this probably will be no different from the national register of registered practitioners maintained on AHPRA’s website, where the public is able to view whether a practitioner has had conditions imposed on their registration. However, if the order is subsequently revoked because it is not required, this publication may significantly injure a practitioner’s reputation.
Conclusion: time will tell if changes are effective
The Act provides the Health Ombudsman with significant powers. Other than receiving a direction from the Health Minister to undertake an investigation/inquiry, or to provide a particular report, the Health Ombudsman is not subject to direction by anyone about how he performs his functions. Immediate action and interim prohibition orders have effect until QCAT sets aside the decision, or the Health Ombudsman decides to revoke the immediate action/order.
At this stage, it is unclear how AHPRA, the Health Ombudsman and the National Boards will divide or allocate responsibilities, and whether there will be any duplication. Our recent discussions with staff from AHPRA and the Office of the Health Ombudsman suggests that they too are uncertain about how the Act will work in practice, and it is likely that there will be a transitional period.
It remains to be seen whether the new Health Ombudsman will have any practical effect in terms of improving the efficiency of resolving health service complaints, and avoiding undue delay in the investigation and decision making process. We question whether the changes do in fact strike a fair balance between the protection of the public and natural justice rights of health practitioners.