Office of the Health Ombudsman Investigations and Requirement to Provide Information or Attend
The Health Ombudsman generally investigates complaints where a complaint has been made which may amount to professional misconduct or the subject of the complaint may pose a serious risk to persons.
Receiving a letter from the Office of the Health Ombudsman (Health Ombudsman) stating that they are investigating a complaint is undoubtedly a stressful and concerning time for a health practitioner or health service organization. It can be equally problematic for people who are required to provide information or attend a meeting as required by the Health Ombudsman.
We appreciate that being the subject of an investigation by the Health Ombudsman may be worrying and emotions may be running high, however, the health practitioner must take steps to obtain an understanding of their rights and their legal position as soon as possible.
First and foremost, the health practitioner should seek independent legal advice from lawyers who specialise in disciplinary law as soon as possible.
The litigation lawyers at Potts Lawyers specialize in disciplinary law and provide timely, strategic and practical advice. They also have the unique benefit of working alongside the firm’s criminal lawyers who can provide advice in circumstances where an investigation may have criminal law components.
This article will set out the Health Ombudsman’s general powers to decide to investigate a matter and the particular circumstances when they do not have to give notice of the investigation to the health service provider as well as the Health Ombudsman’s power to require information or attendance from a particular person.
This article is general and should not be construed or relied upon as legal advice. If you are seeking legal advice specific to your matter, we recommend that you obtain independent legal advice.
Please feel free to contact our firm on 07 5532 3133 to speak to our Litigation team to discuss your matter.
The Health Ombudsman’s legislative power to investigate
Under section 80 of the Health Ombudsman Act 2013 (Qld) (‘Act’), the Health Ombudsman may decide to investigate any of the following:
- a matter that is the subject of a health service complaint; or
- a systemic issue relating to the provision of a health service, including an issue affecting the quality of a health service; or
- another matter, if the health ombudsman considers an investigation of the matter is relevant to achieving an object of this Act.
Notice of office of Health Ombudsman’s investigation of a health service provider
Generally, the Health Ombudsman must give notice to a particular health service provider (which is a health practitioner or a health service organization) that they are the subject of an investigation by the Health Ombudsman.
In certain circumstances, notice to a health service provider about an investigation by the Health Ombudsman is not required. Under section 284 of the Act it states:
A requirement under this Act for the health ombudsman to give notice of a decision or other matter to a health service provider does not apply to the extent that the health ombudsman considers that doing so may—
(a) put at serious risk a person’s health or safety; or
(b) put a complainant or other person at risk of being harassed or intimidated; or
(c) prejudice an investigation or inquiry.
The Health Ombudsman’s power to require information or attendance
In most circumstances, the Health Ombudsman will also require information or attendance from particular persons.
Under section 228 of the Act, the Health Ombudsman, or a person that they appoint as an ‘authorised person’ under the Act has powers to require information or attendance from particular persons who are reasonably believed to be able to give information about:
- A matter being investigated by the health ombudsman;
- About a health practitioner’s compliance with immediate action taken against the practitioner;
- Information, or information of a kind, requested by the director of proceedings in circumstances where the director of proceedings has referred the matter back to the Health Ombudsman.
Generally, notice must be provided to such particular persons and may require that person to:
- Give information at a stated reasonable time and place (information requirement); or
- Attend before the Health Ombudsman or another authorised person at a stated reasonable time and place to answer questions, and produce documents, related to the offence or the relevant information (attendance requirement).
For the purposes of section 228 of the Act, information includes a document.
Offence to contravene information or attendance requirement
It is an offence to contravene either the information requirement or attendance requirement, without reasonable excuse.
In terms of the information requirement, section 229 of the Act states:
- A person of whom a requirement is made under section 228(3)(a) must comply with the requirement unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
- It is a reasonable excuse for an individual not to give the information if giving the information might tend to incriminate the individual or expose the individual to a penalty
In terms of the attendance requirement, section 229A of the Act states:
- A person of whom a requirement is made under section 228(3)(b) must not fail, without reasonable excuse, to—
- attend as required by the notice; and
- continue to attend as required by the authorised person until excused from further attendance; and
- answer a question the person is required to answer by the authorised person; and
- produce a document the person is required to produce by the notice.
Maximum penalty—100 penalty units.
- For subsection (1), it is a reasonable excuse for an individual to fail to answer a question or produce a document if answering the question or producing the document might tend to incriminate the individual or expose the individual to a penalty.
Contact Potts Lawyers
It is important that if you are the subject of an investigation by the Health Ombudsman you seek independent legal advice as soon as possible.
The litigation lawyers at Potts Lawyers specialize in disciplinary law and provide timely, strategic and practical advice. They also have the unique benefit of working alongside the firm’s criminal lawyers who can provide views in circumstances where an investigation may have criminal law components.
If you are seeking legal advice specific to your matter, we recommend that you obtain independent legal advice. Please feel free to contact our firm on (07) 5532 3133 to speak to our Litigation team to discuss your matter.
Potts Lawyers is one of the largest law firms in Queensland with a law office on the Gold Coast and a law office in Brisbane.
This article is general in nature and should not be construed or relied upon as legal advice.