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Disciplinary Matters: Common Health Service Complaints to the Office of the Health Ombudsman Queensland

Potts Lawyers > Disciplinary Law  > Disciplinary Matters: Common Health Service Complaints to the Office of the Health Ombudsman Queensland

Disciplinary Matters: Common Health Service Complaints to the Office of the Health Ombudsman Queensland

Disciplinary Matters: Common Health Service Complaints to the Office of the Health Ombudsman Queensland

The Health Ombudsman Act 2013 (Qld)(“the Act”) provides the Office of The Health Ombudsman (“OHO”) with statutory power to manage and deal with health service complaints.

The Act provides OHO with a range of statutory powers to manage and deal with health service complaints. This can include requiring a subject of a health service complaint to provide submissions to OHO, performing its own investigation into the subject of a health service complaint, or commencing Court disciplinary proceedings against the subject of a health service complaint.

Everyone and anyone can make a health service complaint to OHO about a health service practitioner or organization. A health service complaint could be made directly to OHO or may be referred from another statutory regulator such as, the Australian Health Practitioner Regulation Agency (‘AHPRA’).  If a matter is referred to OHO, it may still constitute a health service complaint.

This article is general in nature and should not be construed as or relied on as legal advice. The contents of this article is intended to provide the reader with a general overview of OHO’s statutory powers under the Act.

If you have received any correspondence from OHO or from AHPRA, it is important that you seek legal advice as soon as possible to comply with strict statutory timeframes which may apply and regardless of whether you are the complainant or the subject of a health service complaint. You may wish to contact one of our highly experienced and skilled Litigation Lawyers on 07 5532 3133 to discuss how we could assist you with your matter.

Brief Overview of the Complaints Process

Upon receiving a health service complaint, OHO has 7 days to decide how to proceed with the complaint. In those 7 days, OHO must decide to either:

  1. accept the complaint and take particular “relevant action” in accordance with the Act;
  2. accept the complaint and take no further action; or
  3. not to accept the complaint and give notice to a complainant about this.

It is important to note that if OHO decides to not accept a complaint, then this does not simply mean that the complaint will go away and that no action will be taken against the subject of the complaint.

Similar to how OHO may receive a referral from another statutory regulator, OHO may decide to take no action because they are referring the matter to another statutory regulator who is in a better position to deal with the nature of the complaint.

This is why it is crucial to obtain legal advice as soon as possible if you have received any correspondence from OHO or AHPRA to ensure that any risks are discussed with your legal representative and are appropriately and skillfully managed.

What “Relevant Action” Could the Ombudsman Take?

Section 38 of the Act provides an exhaustive list of the relevant actions that OHO man take.

Commonly, OHO make take the following “relevant action”:

  1. assess a health service complaint by inviting the parties to provide submissions within a stated period of time or require the parties to provide stated information within a stated period of time;
  2. local resolution of a health complaint;
  3. taking immediate action against a registered health practitioner; and
  4. if a health service complaint is about a health practitioner refer the matter to the Director of Proceedings in OHO for decision about whether to refer the health service complaint to the Queensland Civil Administrative Tribunal for disciplinary proceedings;
  5. refer a health service complaint to the National Agency or another government regulator in Queensland or in Australia;

Assessment of Health Service Complaint

OHO may deal with a health service complaint pursuant to Part 5 of the Act. This allows OHO to obtain and analyze information relevant to a health service complaint to determine the appropriate way to deal with a health service complaint.

OHO may invite the complainant or the relevant health service provider to give submissions to OHO.  If the submissions are provided to OHO within the stated period, OHO must consider the submissions in making its decision.

OHO may also give notice requiring the complainant, the relevant health service provider or any other person to provide stated information to OHO within a stated period. Penalties may apply for a person who does not provide stated information within the stated period.

Powerful and persuasive submissions can drastically change an expected outcome of a health service complaint, and may be the deciding factor in any given health service complaint. Our Litigation Lawyers at Potts Lawyers are highly experienced and skilled with assisting clients in providing detailed submissions to statutory authorities and have had great success in resolving matters of this nature.

Following any consideration of submissions, OHO will have 30 days to carry out an assessment of a health service complainant after it gives notice to carry out the assessment.

Once the assessment is complete, OHO must decide to either:

  1. take particular relevant action to further deal with the health service complaint; or
  2. take no further action in relation to the health service complaint.

Local Resolution of a Health Service Complaint

Part 6 provides a similar process to Part 5 of the Act for OHO to deal with health service complaints, albeit in a local resolution setting. The objective in holding a local resolution is to resolve a health service complaint about a health service provider as quickly as possible with minimal intervention by OHO.

Similar to OHO’s powers mentioned above under Part 5 of the Act, OHO  may invite the complainant or the health service provider to give submissions to OHO, and may, by giving notice, require the complainant, the relevant health service provider or any other person to provide stated information to OHO within a stated period. Penalties may also apply for a person who does not provide submissions within the stated period.

Following any consideration of submissions, OHO must try to resolve the health service complainant within 30 days after deciding to try local resolution.

If the health complaint is not resolved, OHO must decide to either:

  1. take particular relevant action to further deal with the health service complaint; or
  2. take no further action in relation to the health service complaint.

As mentioned above, having powerful and persuasive submissions may drastically change the outcome of a health service complaint. Regardless of whether OHO is relying on the provisions under Part 5 or Part 6 of the Act, and regardless as to whether you are the complainant or the subject of a health service complaint, we recommend that you seek legal advice as the importance of strong submissions should be valued and never overlooked.

Immediate Registration Action

Under the Act, OHO can take immediate registration action in relation to a registered health practitioner’s registration with AHPRA by suspending, imposing conditions on the practitioner’s registration.

Section 58 of the Act provides circumstances where OHO may take immediate registration action against a registered health practitioner. The most common circumstance being where OHO reasonably believes that a practitioner’s health, conduct, or performance poses a significant risk to persons and is necessary to protect the public health or safety.

If OHO decides to take immediate registration action, OHO is required to give a health practitioner notice by stating the proposed action and inviting the practitioner to make submissions within a stated period of time. However, OHO is not required to make such a proposal if it is satisfied that it is necessary to ensure the health and safety of an individual or the public, but must still invite the practitioner to make submissions to OHO within a stated period.

If you have received a letter from OHO about proposed immediate registration action, you should obtain legal advice immediately and without any delay.

In these circumstances, it is absolutely crucial to obtain legal advice from experienced and skilled lawyers and have them draft submissions to OHO which are designed with the ultimate goal of having OHO end the immediate registration action (whether proposed or not proposed).

Should OHO consider it necessary to proceed with any immediate registration action despite receiving submissions, the Act stipulates when the decision of OHO in relation to the immediate registration action will take effect from.

OHO’s decision will continue to operate until either the Queensland Civil Administrative Tribunal (“QCAT”) sets OHO’s decision aside or if OHO revokes the suspension or removes the conditions in relation to the practitioner’s immediate registration action.

As such, if the Board has confirmed its decision to take immediate registration action against a practitioner, then the health practitioner can file an application in QCAT to have OHO’s decision reviewed. Time limits may apply in relation to such an application and it is important to seek legal advice about this as soon as possible.

Our highly experienced and skilled Litigation Lawyers regularly appear in QCAT can assist at any stage of a QCAT proceeding. Of course, it is in the parties interests to avoid a matter going to QCAT and to have the matter resolved with powerful and persuasive submissions.

Unfortunately, in some cases this may not be possible, and if this is the case, any submissions provided to OHO which it is required to consider may improve a health practitioner’s application in QCAT and the overall prospect of success.

This is why we recommend and encourage the importance of engaging a highly skilled and experienced lawyer as early as possible with a view of resolving a matter at the submission stage as there are clear benefits for all parties involved.

Referral to the Director of Proceedings

OHO has discretion to refer a health service complaint or matter relating to health services to the Director of Proceedings, which is a statutory position within OHO. The Director of Proceedings must either then refer the matter to QCAT or back to OHO. The Act provides certain requirements that the Director of Proceedings must consider if the matter is referred to QCAT.

Referral to Other Statutory Regulator or Government Agency

OHO may receive referrals from another statutory regulators or government agency, or OHO may decide to refer a health service complaint to another statutory regulator or government agency.

For example, OHO may refer matters to:

  1. the Queensland Police Service;
  2. the Crime and Corruption Commission;
  3. the Australian Health Practitioner Regulation Agency (AHPRA); or
  4. any other State or Commonwealth Government.

The above statutory regulators or government agencies commonly refer matters to OHO.

As discussed above in this article, it is important to note that if you receive any correspondence from another statutory regulator or government agency that they will be taking any further action, this does not simply mean that the matter will go away as the matter could be referred to a different statutory regulator or government agency.

Conclusion

As discussed above, OHO have a wide range of powers under the Act. We appreciate that this can be a stressful time for some more than others, but you do not have to navigate through this process by yourself.

if OHO invites a party to provide submissions or requires stated information, or if OHO decides to commence or has commenced disciplinary proceedings in QCAT, then there are many clear benefits in having an highly skilled and experienced lawyer assist you with this.

Please feel free to contact us on 07 5532 3133 to speak with one of our Litigation Lawyers who may be able to assist you. This article has given a general overview of the common powers that OHO can rely upon after receiving a health service complaint. Because this article is general in nature it should not relied on or construed as legal advice as it does not take into account the particular circumstances of a matter.

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