Grant v Health Ombudsman[2024] QSC 146

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is a psychiatrist who published a book in May 2018 called Killer Instinct: Having a Mind for Murder (the Book). He has been the subject of complaints arising out of the content of the Book, which included information obtained during his engagement to prepare psychiatric reports for the courts. These complaints led to an ongoing investigation by the first respondent (the Ombudsman) pursuant to powers under the Health Ombudsman Act 2013 (Qld) (HOA). Following the investigation, the Ombudsman referred the applicant’s conduct to the second respondent (the Director)^[1] and, subsequently, the Director made a referral to the Queensland Civil and Administrative Tribunal (QCAT).^[2] That relates to five complaints made. In relation to the remaining complaints, the Ombudsman extended the time for investigation of those complaints under s 85 of the HOA.
2. [2]
   The matters for determination by this Court concern the grounds in paragraphs 5, 6A and 7 to 9A of the applicant’s further amended application (Application). On 21 April 2023, Applegarth J ordered that those issues be determined separately from the remaining grounds. The Application raises the following issues:

   1. by paragraphs 5 and 6A, whether the Ombudsman had jurisdiction to take relevant actions under the HOA, including to refer the matter to the Director (s 90 decision) and whether the Director in turn had jurisdiction to refer the matter to QCAT (s 103 decision) and extending the time for completion of investigation in relation to other complaints;^[3] and
   2. alternatively, by paragraphs 7 to 9A, assuming jurisdiction is established, whether the applicant is entitled to a statement of reasons for the s 103 decision to refer his matter to QCAT.
3. [3]
   The applicant requires an extension of time to apply for review of the s 90 decision by operation of ss 26 and 46 of the Judicial Review Act 1991 (Qld) (JRA). The applicant submits that it is appropriate to grant the extension because the matters the subject of paragraphs 5 and 6A of the application raise the same issues for both the s 90 and s 103 decisions. In the event I determine there is merit in the substantive arguments raised, I will consider the question of the extension of time.

Contentions and matters for the Court’s determination

4. [4]
   As to the jurisdiction issue, the applicant submits that the Ombudsman and Director had no jurisdiction to take the actions that they have against the applicant under the HOA because the preconditions for the exercise of their powers did not exist.
5. [5]
   According to the applicant, those powers (called “relevant actions” in the HOA) can only be exercised by the Ombudsman (and the Director) if:

   1. a complaint under the HOA (called a “health service complaint”) has been made;
   2. a notification under the Health Practitioner Regulation National Law (Queensland) (National Law) has been made; or
   3. the Ombudsman has decided to take action about matters other than complaints relating to health services.
6. [6]
   The Ombudsman’s investigation into the applicant arose from complaints made by persons associated with the events documented in the Book, a health public servant and a referral from the Crime and Corruption Commission (CCC). The complaints and referrals, the applicant submits, did not meet the requirements for health service complaints, notifications or other matters under the HOA and the National Law.
7. [7]
   The applicant contends that the absence, as a matter of fact, of the precondition that there be a complaint, notification or relevant other matter means that, under the HOA, the Ombudsman (and the Director) had no power to take relevant actions concerning the applicant, including the s 90 decision and s 103 decision. Accordingly, they submit that those decisions ought to be set aside and the investigation into the applicant terminated.
8. [8]
   The respondents contend that the applicant’s contention as to jurisdiction must be rejected because:

   1. contrary to the applicant’s submissions, the complaints received by the Ombudsman were “health service complaints” within the meaning of the HOA or “voluntary notifications” within the meaning of the National Law, and as such the Ombudsman and Director had the power to deal with the complaints by taking “relevant action”, including by investigating them and ultimately referring them to QCAT; and
   2. in any event, the Ombudsman had power to take “relevant action” to deal with the matters the subject of the complaints, regardless of whether they were “health service complaints” within the meaning of the HOA or “notifications” within the meaning of the National Law.
9. [9]
   Alternatively, as to the statement of reasons issue, the applicant submits that, if the Court is satisfied that the Ombudsman had jurisdiction, he is entitled to reasons for the s 90 and s 103 decision by the Director because they are decisions under the HOA amenable to the provision of a statement of reasons under ss 31, 32 and 38 of the JRA.
10. [10]
    The respondents submit, however, that:

1. the Director’s decision under s 90 and s 103 of the HOA were not amenable to judicial review under the JRA;
2. alternatively, the Director’s decision under s 103 was of a kind for which reasons need not be given under Schedule 2 of the JRA; or
3. adequate reasons were provided for the decision under s 90 of the HOA

11. [11]
    The Court must determine whether one of the pathways under the HOA to the Ombudsman taking relevant action in response to various complaints is enlivened so as to vest the Ombudsman with jurisdiction. There are a number of statutory pathways identified by the respondents, which they contend provide jurisdiction. However, in each case, the applicant contends the relevant jurisdictional fact or subjective jurisdictional fact cannot be established as a matter of law or by the material to which the Ombudsman had access.
12. [12]
    If the Court does find there is jurisdiction to deal with some or all of the complaints, the Court must then determine whether the applicant is entitled to a statement of reasons for the decisions under ss 103 or 90.
13. [13]
    Although the Court is only determining the question of jurisdiction and not the merits of the complaints, some factual background is necessary to resolve the question of whether jurisdictional facts or subjective jurisdictional facts exist to found jurisdiction. It is also necessary to consider the correct characterisation of the complaints in order to determine the question of jurisdiction.

Factual Background

14. [14]
    The relevant factual background to the present application is not in contest, although the respondents sought to provide some further detail as to the individuals who were the subject of the Book, which the applicant contends goes to merit. For the purposes of this decision, the Court is not required to resolve that matter. However, the Court is conscious that it is inappropriate to stray into a consideration of the merits of the complaints.
15. [15]
    The applicant has had an extensive career undertaking medico-legal psychiatric work, including being employed between 1980 and 2013 by Queensland Health in various roles on a part-time basis, and including undertaking various appointments by order of the Mental Health Court and the Supreme Court of Queensland to provide independent expert reports under the Mental Health Act 1974 (Qld) (1974 MHA), the Mental Health Act 2000 (Qld) (2000 MHA) and the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).
16. [16]
    On 28 May 2018, the applicant published the Book through Melbourne University Publishing. According to the applicant, he authored the Book to help “the general public understand why murders occur, the complex motivations of murderers and to explain how the legal system works in respect of cases concerning mental health issues”.^[4]
17. [17]
    The Book contains 10 chapters, each of which is focused on persons assessed by the applicant for the purposes of court proceedings under the 1974 MHA, the 2000 MHA, the DPSOA and the Penalties and Sentences Act 1992 (Qld). The applicant did not clinically treat any of the persons as patients who were the subject of or considered in the book. He also assessed and prepared a report for “Jenny” for the purpose of an application for criminal injuries compensation, after being engaged by her solicitors to comment on the effect upon her of criminal acts and the need for counselling.

18. [18]
    On 19 June 2018, the applicant was notified by a delegate of the Ombudsman that four complaints had been received about “health services [he had] provided in relation to [the Book]” (the initial complaints).^[5]
19. [19]
    The letter provided copies of information about the complaints and notified the applicant that “a delegate of the [Ombudsman] considered the complaint to decide whether to accept it and take relevant action” and that “[a]fter considering the complaint, the delegate decided, under section 35(1)(a)(i) of the Health Ombudsman Act 2013, to undertake an assessment under part 5 of the Act”.^[6]
20. [20]
    The letter stated that “[t]he complaint raises matters that fall within the jurisdiction of the [Ombudsman]”^[7] and invited the applicant to make a submission by 3 July 2018.
21. [21]
    The letter attached three documents each described as “Complaint summary” which purported to summarise information provided by complainants by telephone to an unidentified person (or persons) as well as a letter from the Director-General of Queensland Health making a complaint on the basis that the applicant “provided a health service within the meaning of section 7(1) of the [HOA]”.
22. [22]
    Although the factual background to the present case was largely uncontentious, affidavit evidence was provided by Dr Grant:

    1. outlining the people who were assessed in relation to each chapter;
    2. outlining how those people came to be assessed;
    3. exhibiting the subsequent notification to him of complaints; and
    4. identifying the five complainants in relation to the matters which were ultimately referred to QCAT.
23. [23]
    The respondent provided affidavits by Mr Thompson, the Director of Assessment and Resolution at the Office of Health Ombudsman, and Mr Robinson, the Principal Complaints Officer at the Office of Health Ombudsman, who outlined how complaints were received and the bases upon which he considered there was jurisdiction for the Ombudsman in relation to each of the complaints made.
24. [24]
    Mr Bergin, the Director of Investigations at the Office of the Health Ombudsman, provided evidence of the material obtained from the Mental Health Court pursuant to a court order where the applicant had been engaged by the Mental Health Tribunal and the Mental Health Court to carry out examinations and assessments in relation to the persons who were the subject of the applicant’s Book. He also obtained and exhibited to his affidavit:

1. Reports obtained from Crown Law which were prepared by the applicant in relation to a person the subject of the DPSOA.
2. A copy of the report prepared by the applicant in relation to a prisoner who was the subject of an indefinite sentence. In that case, the report was prepared following an order of this court being made pursuant to s 171 of the Penalties and Sentences Act 1992 (Qld), directing the registrar to give to the court a report from a duly qualified psychiatrist.
3. The report prepared by the applicant in relation to a victim claiming criminal injuries compensation.
4. Correspondence that indicated a report which had been privately commissioned on behalf of a defendant, said to be relevant to a defence of diminished responsibility, was subject to a claim of privilege.
5. Where available, the material surrounding the applicant’s engagement.
6. Evidence of payment in relation to the above works undertaken.

25. [25]
    Each initial complaint about the Book and, where appropriate, the background facts relevant to the complaint are summarised below:

    1. The applicant had interviewed a person for the purposes of proceedings in the Mental Health Court. The complainant understood that the information was given in confidence by the interviewee and did not believe it was allowed to be printed. To the complainant’s knowledge, no consent was given by the interviewee to publish the information.
    2. The applicant interviewed and assessed alleged murderers in a health facility. The release of material which the applicant had in his records “blatantly departed from accepted professional standards” and was damaging to family members of victims.
    3. The applicant breached the privacy of a number of people named in the book. He used the information obtained whilst performing a role for Queensland Health in order to seek financial gain.
    4. The applicant was engaged by lawyers to perform an assessment of their client, who was a victim of crime, for the purposes of criminal compensation proceedings. The subject of the assessment was concerned about the ethics of the applicant disclosing certain information in the Book, as well as its accuracy. The CCC raises a similar complaint in relation to the same subject, although, they raise the possibility that the applicant also breached principles of the Code of Ethics for psychiatrists by exploiting patients under his professional role.
    5. The applicant did not have the consent of a complainant to disclose any information which is alleged to have been imparted purely for the purposes of court proceedings under the DPSOA.
    6. The CCC complained that there was a reasonable suspicion the applicant had inappropriately used his position and information obtained in the course of his employment with Queensland Health. They are also of the view that the book discloses confidential patient and family information.

7. A psychiatrist complained to the Australian and New Zealand College of Psychiatrists that the applicant breached the College’s Code of Ethics by:
   1. exploiting patients financially, or for personal or material gain;
   2. not maintaining privacy and confidentiality of patients and their families; and
   3. not seeking patients’ consent before undertaking any provision of a report for legal or other purposes.

26. [26]
    A summary of the professional role that the applicant was discharging in relation to the subject of each chapter of the Book is as follows:

    1. As to chapter 1, the applicant prepared a report for the purposes of assessing the criminal responsibility and fitness for trial of the offender on referral by the Mental Health Court. The applicant concluded that the offender was “currently fit for trial”.^[8]
    2. As to chapter 2, the report was prepared under a court examination order issued by the Mental Health Court on 16 April 2010, pursuant to which the applicant was ordered to prepare a report in writing to the court under the 2000 MHA about the soundness of mind of the offender, including whether that person is fit for trial, and make recommendations as to how the offender is to be managed in the justice system, depending on whether they are of unsound mind or otherwise and fit or unfit to stand trial. The report concluded that the offender was not of unsound mind at the time of the offending and was fit to stand trial and that future mental health issues could be addressed by the prison mental health service. To the extent that the report required comment on “future management” of the offender, that was in the context of sections 288, 289, 313A and 272, 273 and 275 of the 2000 MHA, which permitted the making of orders for the management of the offender in the justice system (e.g. detention in a mental health service for involuntary treatment, detention in the prison system or community treatment).
    3. As to chapter 3, the report was prepared on referral from the Mental Health Tribunal to assess the offender’s soundness of mind and fitness for trial. The applicant concluded that the offender was fit for trial, mentally sound at the time of offending and there was no psychiatric reason why he could not be imprisoned.
    4. As to chapter 4, the report was ordered by the Mental Health Court on 9 August 2011, to assess the unsoundness of the offender’s mind, his fitness for trial and future management under the 2000 MHA. The applicant concluded that the offender was suffering a mental illness at the time of offending but was otherwise fit to stand trial. As to future management, the applicant recommended he be placed on “an involuntary treatment order and continue treatment at the high secure inpatient service as a classified patient”.^[9]
    5. As to chapter 5, the report was ordered by the Mental Health Court on 22 October 2013, to assess the offender’s unsoundness of mind, fitness for trial and future management under the 2000 MHA. The applicant concluded that the offender was not suffering from unsoundness of mind at the time of the offending and that she was fit for trial, but that she would need ongoing psychiatric assessment and treatment by the prison mental health service.

6. As to chapter 6, the report was ordered by the Mental Health Court under the 2000 MHA to inquire into an offender’s unsoundness of mind, fitness to stand trial and future management. The applicant found that the offender was suffering from diminished responsibility but was otherwise fit for trial.
7. As to chapter 7, the reports were prepared for the Supreme Court under the DPSOA to assess whether or not the offender could be released into the community, whether under a supervision order or otherwise.
8. As to chapter 8, the report was ordered by the Mental Health Court under the 2000 MHA on 26 August 2011 to inquire into the same matters as the other 2000 MHA chapters. The applicant concluded that the offender was of unsound mind but fit for trial and should be placed on a forensic order pending an eventual release into the community (assuming her condition improves).
9. As to chapter 9, the report was prepared for the purposes of use in criminal compensation proceedings at the instruction of the victim’s lawyers but the report remains the subject of a claim for legal professional privilege.
10. As to chapter 10, one report was ordered by the Supreme Court under the Penalties and Sentences Act 1992 (Qld) as a psychiatric report, in which the applicant recommended that the offender remain on an indefinite detention order given his risk of reoffending and an unacceptable risk to the community. Another report was the subject of instruction by lawyers for the victim of an assault for the purposes of making a criminal injuries claim, where the applicant opined that the victim was suffering post-traumatic stress disorder as a result of her assault.

27. [27]
    The applicant had been engaged to prepare a report in the majority of cases pursuant to an order of the court under the statutory provisions relevant to the assessment that had to be made by the court, save that in two cases there was an assessment where the applicant was privately engaged for the purpose of the subject making a criminal injuries claim.
28. [28]
    On 3 July 2018, the applicant provided submissions in response to the initial complaints raised in the 19 June letter. Those submissions contended that the Ombudsman lacked jurisdiction to deal with the complaints because the applicant was not providing a health service within the meaning of the HOA to any of the complainants or the persons identified in the Book, nor were the complaints “health service complaints” as defined in the HOA because the complaints were about the publication of the Book and not a health service or any other service provided by the applicant.
29. [29]
    On 31 July 2018, the Ombudsman wrote to the applicant giving notice that a delegate of the Ombudsman had decided to undertake an investigation into the initial complaints, together with an investigation into a referral from the CCC which was received by the Ombudsman on 12 July 2018 (CCC referral).

30. [30]
    Another two complaints were made to the Ombudsman later in 2018, which were notified to the applicant by letters on 8 August 2018 (8 August complaint) and 24 December 2018 (24 December complaint). By those letters, the applicant was informed that for each of the further complaints, a delegate had decided to accept the complaint and refer it for investigation for the reasons set out in the 31 July 2018 letter.
31. [31]
    On 24 June 2020, the Ombudsman notified the applicant by letter that there was an arguable case that the applicant’s conduct the subject of the initial complaints, the CCC referral and the further complaints may have amounted to professional misconduct such that he had decided, under s 90(a) of the HOA to refer the matter to the Director for consideration.
32. [32]
    On 7 December 2022, the Ombudsman notified the applicant that the Director had decided on 6 December 2022 to refer the matters to QCAT under ss 103(1)(a) and 104 of the HOA.
33. [33]
    On 3 January 2023, the applicant sought a statement of reasons from the Director about the decision made on 6 December 2022 to refer the matters concerning the applicant to QCAT. On 13 January 2023, the Director refused to provide the statement.
34. [34]
    On 10 February 2023, the applicant commenced this proceeding.

The Nature of the Complaints

35. [35]
    The applicant characterises the complaints as being not about the provision of a service by the applicant but about the applicant having written and published a book. The respondents contend the complaints are that the applicant has breached confidentiality in using information in his book that he obtained when assessing the subjects of his report without obtaining the subjects’ consent. Whether or not the information could be regarded as confidential is a live issue between the parties, however, for the purposes of this application I take the complaints as their highest.
36. [36]
    It is evident from a review of the terms of the complaints, some of which were made orally and subject to recording, that it is the use of information by the applicant in the Book and its publication that is the source of the complaint rather than his having written and published the book. The characterisation by the respondent is the proper characterisation in considering the present application. I now turn to the question of whether those complaints entitled the Ombudsman to take relevant action under the HOA.

Did the Ombudsman have jurisdiction to take relevant action in response to the complaints made?

37. [37]
    The applicant contends that in order for the Ombudsman to be able to take “relevant action” concerning health practitioners under the HOA, there must first be a complaint or notification to the Ombudsman in respect of which the Ombudsman has jurisdiction or there is another matter relating to health services which the Ombudsman can decide to consider. It contends none of those matters in the present case are satisfied.

38. [38]
    The respondents contend that the Ombudsman had (and has) jurisdiction to deal with the matters the subject of the complaints by reason of one or more of the following legislative “pathways”:

    1. First, they were “health service complaints” within the meaning of s 31 of the HOA in that they were about:
       1. a “health service”, as that term is defined in s 7 and used in s 31; or
       2. an “other service” provided by the applicant (the applicant being a “health service provider”);
    2. Secondly, they were “voluntary notifications” under the National Law, which must be dealt with as if they were complaints made under Part 3, Division 2 of the HOA;^[10]
    3. Thirdly, with respect to the referrals by the CCC, the Ombudsman had power to take relevant action under s 37(1);
    4. Fourthly, and in any event, s 39 of the HOA empowered the Ombudsman to take “relevant action” “to deal with a matter” whether or not a health service complaint had been made about the matter.
39. [39]
    In each case, an employee of the Ombudsman’s office made an assessment of the complaint and considered whether or not the Ombudsman had jurisdiction to deal with that complaint. It is uncontentious that the subjective belief of the delegate of the Ombudsman is not relevant to the determination of whether the Ombudsman in fact had jurisdiction to take relevant action. Where the question is whether the relevant objective jurisdictional facts existed, it is for the Court to assess based on the evidence whether the complaints met the threshold requirements and one of the pathways to jurisdiction are satisfied, even if they have mistakenly relied on another source.^[11]
40. [40]
    In the case of voluntary notifications, the applicant contends that the belief of the complainant is a precondition to the validity of a voluntary notification and the Ombudsman’s jurisdiction. That precondition is said to be properly characterised as a subjective jurisdictional fact.^[12] Generally, where a challenge is made as to the existence of a subjective jurisdictional fact, the party advancing the challenge will have to persuade the Court that the state of mind did not exist because it was not reached in the way contemplated by the legislature.^[13] In this case, the applicant contends that the Ombudsman would have to be satisfied that the person making the voluntary notification held the belief in question. In that regard, the scope of review is necessarily more limited to determining whether the state of mind reached is within the range which the legislature intended to be formed as a pre-requisite to the exercise of power.^[14]
41. [41]
    The preconditions to the above pathways are jurisdictional facts. If the Court cannot, on the material before it, be satisfied that those facts existed at the time that the complaints and notifications were made and accepted by the Ombudsman, then the Ombudsman and the Director had (and has) no jurisdiction to proceed with the relevant action taken in respect of the applicant, including the making of the s 90 decision and the s 103 decision.

The HOA and National Law

42. [42]
    In construing the legislation, the approach to be adopted by Court is well established. In R v A2^[15] Kiefel CJ and Keane J, while emphasising that the text of a statute is important, stated that:

“The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there… It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision”. (Footnotes omitted).

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy…

…

This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction …”. ( citations omitted).

43. [43]
    The applicant places reliance on the Long Title of the Act in its construction, which provides that the HOA is:

“An Act to establish a health ombudsman and to provide for a system for dealing with complaints and other matters relating to the health, conduct or performance of health practitioners and the services provided by health service organisations”.

44. [44]
    The HOA was introduced in 2013. According to the Explanatory Note, the primary policy objective of the Bill was to “strengthen the health complaints management system in Queensland”.^[16] The Note outlined the main objects of the Act, which are contained in s 3 of the HOA. According to the Explanatory Note the “main objects of the Act are to be achieved by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters related to the provision of health services”.^[17]

45. [45]
    The objects of the HOA, outlined in s 3(1), are:

1. “(1)
   The main objects of this Act are—

1. to protect the health and safety of the public; and
2. to promote—
   1. professional, safe and competent practice by health practitioners; and
   2. high standards of service delivery by health service organisations; and
3. to maintain public confidence in the management of complaints and other matters relating to the provision of health services”.

46. [46]
    Section 4 of the HOA provides that the main principle for administering the HOA is that the health and safety of the public are paramount.
47. [47]
    The Bill establishing the HOA also amended the National Law:^[18]

“…so that Queensland is a ‘co-regulatory jurisdiction’ for the purposes of the Health Practitioner Regulation National Law (the ‘National Law’), which is the Schedule to the Health Practitioner Regulation National Law Act 2009. This will not affect the national registration of health practitioners, but enables Queensland to vary how Part 8 of the National Law applies in Queensland. Part 8 of the National Law provides for the disciplinary arrangements for registered health practitioners. The Queensland approach is not the same as the model in place in NSW (which is also a co-regulatory jurisdiction), with the National Law in Queensland being modified primarily for all complaints (called ‘notifications’ under the National Law) to be received by the Health Ombudsman, and for all serious disciplinary matters to be dealt with by the Health Ombudsman. The national boards will continue to deal with other disciplinary matters under the National Law”. (emphasis added).

48. [48]
    In construing legislation, the Court must focus not only on the language used in the provision in question but the context of the provision in the Act as a whole and the broader context. To that end, I will provide a brief overview of the structure of the Act and particular provisions dealing with complaints.
49. [49]
    A “health service complaint” is defined as a compliant “about a health service or other service provided by a health service provider”.^[19]

50. [50]
    A “health service” is defined in s 7 of the HOA as:

1. “(1)
   A health service is a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing.

2. A health service may be provided to a person at any place including a hospital, residential care facility, community health facility or home.
3. A health service includes a support service for a service mentioned in subsection (1).
4. Also, without limiting subsection (1), a health service includes—
   1. a service dealing with public health, including a program or activity for—
      1. the prevention and control of disease or sickness; or
      2. the prevention of injury; or
      3. the protection and promotion of health; and

Example of health service mentioned in paragraph (a)—

a cancer screening program

2. a service providing alternative or complementary medicine; and
3. a service prescribed under a regulation to be a health service.

…”.

51. [51]
    A “support service” for a health service is defined in schedule 1 of the HOA as “a service providing business support, clinical support, corporate support or other support to the health service” such as catering, cleaning, laundry, maintenance, pathology, blood management, human resources and information and communication technology services.
52. [52]
    It is uncontentious that the applicant is a health service provider.^[20]
53. [53]
    The Ombudsman is responsible for receiving and dealing with health service complaints and dealing with “other matters, including investigating systemic issues in the health system”.^[21] Section 14 confers broad powers to the Ombudsman when assessing a complaint “to decide the most appropriate action to take”. Taking relevant action in relation to health service complaints is also identified as one of the Ombudsman’s functions, as well as “to identify and deal with health service issues by undertaking investigations, inquiries and other relevant action”.^[22]

54. [54]
    Section 10 of the HOA provides that the Act should be read in conjunction with the National Law. Section 10(3) notes that both the Act and the National Law “include provisions about the health, conduct and performance of registered health practitioners”.
55. [55]
    Parts 3 and 4 of the HOA provide for the making of a health service complaint and dealing with the complaint, respectively. It is evident that the provisions are directed to providing a comprehensive system for dealing with complaints or other matters: the Ombudsman is given broad powers, the complaints process has been simplified and the HOA does not unduly restrict how complaints may be made or how the Ombudsman may deal with them. “Health service complaint” is defined in s 31. The person who may make a health services complaint is unconfined.^[23] A complaint may be made orally or in writing.^[24] The Ombudsman must give the complainant reasonable assistance if requested.^[25] The Ombudsman may ask the complainant for further information.^[26] The Ombudsman must determine how to deal with the complaint within seven days of its receipt, unless further information has been requested.^[27] Written notice of the decision is to be provided to both the complainant and health provider.^[28]
56. [56]
    Section 36 of the HOA provides that notifications made under part 8, divisions 2 or 3, of the National Law are to be treated as if they were complaints made under the HOA.
57. [57]
    Section 37 of the HOA outlines how the Ombudsman is to treat certain matters which have been referred to them from another entity, such as the State Coroner. It provides that the Ombudsman may, with a relevant person’s agreement, treat the matter as a complaint and the person as a complainant.
58. [58]
    Pursuant to s 37 of the HOA:

1. “(1)
   This section applies if the health ombudsman—

1. becomes aware of a particular matter, other than a health service complaint, by way of—
   1. a referral from a National Board under the National Law , part 8 , division 12 ; or
   2. information received from a government entity; and
2. decides to take relevant action to deal with the matter.

2. The health ombudsman may, with a person’s agreement, deal with the matter as if it were a complaint and the person were the complainant”.

59. [59]
    Section 38 defines “relevant action” for the purposes of the Act, which are the actions that the Ombudsman may take to deal with a health service complaint or other matter.
60. [60]
    According to the Explanatory Note:^[29]

“The clause distinguishes between actions that may be taken on complaints and actions that may be taken in relation to any other information. Some actions are only relevant to dealing with complaints - namely, assessing, facilitating local resolution or conciliating a complaint”.

61. [61]
    The HOA provides, by section 38, for the Ombudsman to take relevant action (being the assessment, investigation and other dealings in respect of health practitioners) where there is:

    1. a health service complaint (which is defined to include a voluntary or mandatory notification under the National Law); or
    2. another matter relating to a health service other than as part of a health service complaint.
62. [62]
    The relevant action that can be taken by the Ombudsman is provided for in s 38 in the following terms:

1. “(1)
   Each of the following is a relevant action for dealing with a health service complaint -

1. assessing the complaint under part 5;
2. facilitating local resolution of the complaint under part 6;
3. taking immediate action under part 7;
4. investigating the subject matter of the complaint under part 8;
5. issuing a prohibition order under part 8A;
6. referring the complaint to the National Agency or an entity of the State, another State or the Commonwealth under part 9;
7. for a health service complaint concerning a registered health practitioner, referring the complaint to the director of proceedings under part 10, division 2, for decision about whether to refer the complaint to QCAT;
8. conciliating the complaint under part 11;

9. carrying out an inquiry into the subject matter of the complaint under part 12.

…

3. Each of the following is a relevant action for dealing with a matter relating to a health service other than as part of a health service complaint –
   1. taking immediate action under part 7;
   2. investigating the matter under part 8;
   3. issuing a prohibition order under part 8A;
   4. referring the matter to the National Agency or an entity of the State, another State or the Commonwealth under part 9;
   5. for a matter relating to a registered health practitioner, referring the matter to the director of proceedings under part 10, division 2, for decision about whether to refer the complaint to QCAT;
   6. carrying out an inquiry into the matter under part 12”.

63. [63]
    Section 39(1) provides that in taking relevant action, the Ombudsman is not limited to complaints and “may take relevant action to deal with a matter whether or not a health service complaint has been made about the matter”. Section 39(2) provides the Ombudsman with power to take relevant action to deal with a health service complaint even if the complaint is withdrawn.
64. [64]
    Section 40 allows the Ombudsman to consider two or more service complaints or other matters when deciding what action to take under the Act.
65. [65]
    Section 44 provides for circumstances when the Ombudsman may decide to take no action under the HOA in relation to a complaint.
66. [66]
    Part 5 of the HOA deals with assessment of complaints if the Ombudsman determines to carry out an assessment. Part 7 of the Act deals with the immediate action that may be taken in relation to health practitioners. Part 8 deals with investigations by the Ombudsman of a matter related to a health service complaint, a systemic issue relating to the provision of health services or another matter relevant to achieving an object of the HOA. Part 9 provides for referrals to a National Agency or other agency. Part 10 provides for the jurisdiction of QCAT and the powers of the Director if referred a matter by the Ombudsman.
67. [67]
    The Ombudsman may carry out an investigation of a matter that is the subject of a health service complaint and also “another matter, if the health ombudsman considers an investigation of the matter is relevant to achieving the object of this Act”.^[30]

68. [68]
    If the Ombudsman determines that they will refer a complaint or other matter to the Director, the Director must refer the matter to QCAT on behalf of the Ombudsman or refer it back to the Ombudsman.^[31] QCAT may exercise its original jurisdiction to hear and decide the matter.^[32] QCAT may determine after a hearing whether or not the practitioner has no case to answer or has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.^[33] That conduct is not limited to the provision of a health service.
69. [69]
    Later parts of the HOA deal with matters such as registration, appointment of assessors and contain provisions dealing with conciliation and inquiries if the Ombudsman chose to deal with complaints in that way. Other parts deal with matters such as the role of the Minister and Parliamentary Committee and authorised persons.
70. [70]
    It is evident from the terms of the HOA that before action can be taken by the Ombudsman under s 38 there must be a health services complaint (or notification) or another matter which are jurisdictional facts (or a condition of jurisdiction), the existence of which “enlivens the exercise of the statutory power or discretion in question” such that, absent a complaint, notification or other matter, “the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”.^[34]
71. [71]
    What the delegates of the Ombudsman subjectively believed as to their jurisdiction is not relevant to this Court’s determination of the jurisdiction issue. Rather, it is for this Court to assess for itself, based on the available evidence, whether the various complaints met the threshold requirements in the HOA and, where relevant, the National Law.^[35] If the jurisdictional fact is a subjective state of mind, then whether the preconditions have been satisfied depends on whether or not the delegate did form, and could legally have formed, the requisite state of mind.^[36] Neither party contends that the preconditions depend on the formation of a state of mind by the Ombudsman.
72. [72]
    It follows that, it does not matter if the Ombudsman was herself (or by her delegates) mistaken as to the particular source of jurisdiction engaged in each particular case. Rather, no matter which basis for jurisdiction is asserted, jurisdiction will only be founded if all preconditions for it are satisfied.^[37]
73. [73]
    In these circumstances, if there was no health service complaint or other matter relating to a health service in respect of which the Ombudsman could take relevant action, it was an error by the Ombudsman and the Director to take relevant action including making the s 90 decision and the s 103 decision, respectively.^[38]

Was there a health service complaint or complaint of another matter?

74. [74]
    Section 31 of the HOA identifies a health service complaint to be a complaint “about a health service or other service provided by a health service provider”.
75. [75]
    The applicant contends the use of the word “about” typically requires a direct connection and its presence supports a construction whereby there must be a direct connection between the subject matter of the complaint and the provision of services. They submit that an indirect connection is not enough.
76. [76]
    The applicant further contends that, to be the subject of a health service complaint in respect of:

    1. a health service, the complaint must be directly about the provision of assistance or accommodation by the health practitioner to a person or the public which is, or purports to be, for the maintaining, improving, restoring or managing of people’s health and wellbeing; or
    2. another service provided by a health practitioner, the subject matter of the complaint must be directly about the provision of assistance or accommodation generally by the health practitioner to a person or the public.
77. [77]
    The applicant contends that the complaints are about the applicant’s decision to publish the Book and not the substance of anything the applicant did or did not do in interviewing, assessing and reporting to the court in relation to the persons assessed.
78. [78]
    The respondents, however, contend that the applicant’s construction is too narrow and that there can be an indirect connection between the complaint and the health service or other service provided by the health service or health service provider. As discussed above the respondents contend that the essence of the complaints, principally, is confidentiality and not the publication of the Book.
79. [79]
    Three matters need to be considered in the present context in relation to whether there was a health service complaint upon which the Ombudsman could take relevant action: the meaning of “about”, “service” and “other service”.

Meaning of “about”

80. [80]
    The word “about” was considered by Holmes CJ in Electrical Licensing Committee v Whatalec Pty Ltd; Electrical Licensing Committee v Brindley.^[39] In that case, a statutory definition of “disciplinary decision” Extended to decisions “about” whether to take disciplinary action and what disciplinary action to take. A dispute arose as to whether a preliminary decision by the Electrical Licencing Committee that there were grounds for disciplinary action against the respondents was a decision “about” whether to take disciplinary action. Her Honour observed the word “about” was deliberately inserted into a provision by the legislature and, accordingly, declined to adopt a narrow construction which would render the word superfluous.^[40] Her Honour noted that the word “about” was of “wide import”.^[41]

81. [81]
    In particular, Holmes CJ relied on the decision in Gold Coast City Council v Satellite & Wireless Pty Ltd, where the court stated that “[the word ‘about’] suggests that a broad connection will be sufficient, although we accept that a very remote or indirect connection will not be sufficient”.^[42] In Electrical Licencing Committee, Holmes CJ found that the use of “about” meant that “disciplinary decision” must extend to more than the decision whether to take disciplinary action and what disciplinary action to take; her Honour stated, “And accepting that ‘about’ is properly read as meaning ‘connected with’, there is an obvious and necessary connection between a decision that a ground exists for disciplinary action and a decision whether to take disciplinary action…”.^[43] Her Honour concluded that a “decision that a ground exists is a decision ‘about’ whether to take a disciplinary action” and fell within the definition of disciplinary decision.^[44]
82. [82]
    In Electrical Licensing Committee, her Honour also relied on R v Le.^[45] In that case, Heydon JA (with whom Dunford and Buddin JJ agreed) referred to the Macquarie Dictionary definition of “about” and stated that those definitions “suggest that to ask a question about a subject is to ask a question concerning it, or in regard to it, or connected with it, or concerned with it”; whereas the Oxford Dictionary definition suggests that “to ask a question about a subject is to ask a question touching it, concerning it, in the matter of it, in reference to it, or in regard to it”.^[46] Given the inclusion of “about”, it was found that the word suggested that the party conducting questioning under a provision could range more widely in their questioning than had been determined at the trial. This extended to questioning which tended to establish the probability of a factual state of affairs in relation to those subjects identified in the relevant legislative provision or the improbability of the witness’ evidence on those subjects.^[47] While each case turns on the particular provision in its context, neither Electrical Licensing Committee nor R v Le suggest that the inclusion of “about” connotes only a direct connection.
83. [83]
    While the applicant contends that the use of “about” is to define the extent of the jurisdiction of the Ombudsman, as opposed to more general provisions which use the phrase “relating to”. That does not suggest that the meaning of “about” should be construed as requiring a direct connection as opposed to a connection which could be more indirect. Nor does the context support the fact that it should be given such a construction in s 31 of the HOA. While the applicant seeks to derive support for its construction by pointing to the use of “about” as opposed to the phrase “relating to”, which is used in the Long Title and s 25 of the HOA, the use of “relating to” in those cases does not inform the meaning of “about” in s 31. In the Long Title, “relating to” is purporting to encapsulate the breadth of the scope of the HOA, as does s 25 in terms of the matters undertaken by the National Boards and the National Agency, which the Ombudsman is to monitor and report upon. Given the different context in which “relating to” is used in the Long Title and s 25 of the HOA, the contrasting term used provides little assistance in the construction of “about” in s 31 HOA. The applicant’s construction of “about” derives no support from the ordinary meaning of the word or the cases to which I referred above. Both “about” and “relating to” are terms of wide import whose meaning is derived from the context in which they are used.^[48] In any event, little turns of the use of “about” in determining the present matter.

Meaning of “service” and “other service”

84. [84]
    Service is used to refer to “health service” and “other service”.
85. [85]
    “Health service” is defined in s 7 and is broad in its meaning, extending to “support service”. The definition of “support service” in schedule 1 includes services incidental to health services, supported by the words “or other support to the health service”.
86. [86]
    “Other service” is not defined in the HOA and has an ordinary meaning. According to the current definition of the Oxford Dictionary of English, meanings of “service” relevantly include:

    1. “the action of helping or doing work for someone: millions are involved in voluntary service”;
    2. “an act of assistance: he has done us a great service | he volunteered his services as a driver”; and
    3. “assistance or advice given to customers during and after the sale of goods: they aim to provide better quality of service”.

87. [87]
    The current edition of the Macquarie Dictionary states that the meaning of “service” includes relevantly, among other things:

    1. “an act of helpful activity”;
    2. “the supplying or supplier of any articles, commodities, activities, etc., required or demanded”;
    3. “the providing of, or provider of, a public need, such as communications, transport, etc”;
    4. “the organised system of apparatus, appliances, employees, etc., for supplying a public need”; and
    5. “employment in any duties or work for another, a government, etc”.
88. [88]
    In IW v City of Perth,^[49] Kirby J discussed the meaning of “service” in the context of the Equal Opportunity Act 1984 (WA), which made it unlawful for a person who “provides goods or services or makes facilities available” to discriminate against another on the ground of the other’s impairment by “refusing to provide the other person with those goods or services or make those facilities available to the other person.” His Honour identified the question is whether anything the appellants did amounted to a refusal of “services” or “facilities”.^[50] His Honour discussed the meaning of “service”, stating:^[51]

“The Macquarie Dictionary defines ‘service’ as meaning ‘an act of helpful activity’; ‘the supplying ... of any ... activities, etc., required or demanded’; ‘the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance’; ‘the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public’; ‘the supplying ... of water, gas, or the like to the public’; and ‘the performance of any duties or work for another’. The Oxford English Dictionary is to like effect: ‘work done to meet some general need’; ‘the action of serving, helping or benefiting’; ‘conduct tending to the welfare or advantage of another’. The concept of ‘services’ is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context…”

89. [89]
    Kirby J considered that the better construction of the word “services”, read in its context, is that it includes the provision by a local government body, such as the Council, of a planning decision to alter the permissible use of premises, without which such use would be unlawful. His Honour stated his reasons for that conclusion to include:^[52]

1. “1.
   The attempt to confine the ‘services’ provided by a local government body to services such as library, recreational, or parking services, or the provision of gas, water, etc is unduly to narrow the ‘kind’ of services which “a local government body” typically affords. Such narrowing is not required either by the juxtaposition of ‘services’ with ‘goods’ and ‘facilities’ or by the use of the verb ‘provides’. The Act is designed to have a wide application. …
2. 2.
   The specific inclusion within the definition of ‘services’ of those ‘provided by … a local government body’ indicates a purpose to extend the application of the Act to a broad range of activities of such bodies. It would be unreasonable to expect Parliament to specify, with particularity, the whole gamut of ‘services’ which such bodies afford. Hence the choice of the broad expression ‘services of the kind provided’. The only common link between the ‘services’ specified in the definition is that they are all activities helpful to the persons using them. In the case of par (d) of the definition, it will often be the case that the advice provided by ‘members of any profession or trade’ will, in the particular case, be adverse to the wishes and interests of the user of those services. This does not make them any less the provision of ‘services’. Thus the mere fact that a decision of a local government body might sometimes be adverse to the user of its services is not determinative of the character of the activities as ‘services’. All that the Act requires is that the ‘services’ should not be refused ‘on the ground of the other person’s impairment’ …
3. 3.
   The fact that governmental ‘services’ are expressly included amongst those to which Parliament has extended the application of the Act sufficiently indicates the legislative purpose of providing protection against unlawful discrimination in the provision of services of that nature…”. ( footnotes omitted and emphasis added).

90. [90]
    The notion that a “service” involves assistance or accommodation of another was discussed by the Full Federal Court in the context of the Trade Practices Act 1974 (Cth). In Adamson v New South Wales Rugby League Ltd, Willcox J noted that as a reference to any standard dictionary will show, although the word “services” has a wide application, “it imports always the notion of some assistance or accommodation being made available by one person to another”.^[53] His Honour stated it was impossible to regard a mere freedom to negotiate with a person as the supply by that person of “services” to the prospective negotiator.^[54]
91. [91]
    The context of the HOA supports adopting a definition of “services” consistent with the ordinary meaning of that term, as discussed by Wilcox J, because the Act uses the word “services” consistent with there being some assistance or accommodation made available by a health service provider or a health service organisation to (an)other person(s).
92. [92]
    For example, the long title is:

“An Act to establish a health ombudsman and to provide for a system for dealing with complaints and other matters relating to the health, conduct or performance of health practitioners and the services provided by health service organisations”. (Emphasis added).

93. [93]
    However, section 7(4)(a) demonstrates that a “health service” does not need to be provided to a specific person and includes a service dealing with “public health” or the public in respect of health issues, for example through a program or activity. Section 7(4)(a) provides:

1. “(4)
   Also, without limiting subsection (1), a health service includes:

1. the prevention and control of disease or sickness; or
2. the prevention of injury; or
3. the protection and promotion of health

Example of health service mentioned in paragraph (a) –

A cancer screening program”.

94. [94]
    The respondent agrees with the applicant that the meaning of the word “service” imports the notion of a service bring provided or made available by a health service provider or a health service organisation to another person or the public.
95. [95]
    However, the point of contention between the applicant and respondent is whether the engagement of the applicant following the making of a court order means that the applicant was not providing a health service or another service. The applicant contends that he was engaged to provide his professional services and use his expertise for the benefit of the court and that he was not providing a health service to any patient or members of the public.
96. [96]
    Before turning to that broader question, it is convenient to first deal with whether the applicant was providing a health service, on the assumption he did provide a service. At least insofar as the applicant was engaged to do assessments and provide reports for the purpose of the 1974 MHA, 2000 MHA, DPSOA and the Penalties and Sentences Act 1992 (Qld), it is evident the assessment being carried out is not a service for or purporting to be for “maintaining, improving, restoring or managing people’s health and wellbeing”, nor a support service or service referred to in s 7(4)(a). The reports ordered on a number of instances were to assist the court by providing psychiatric assessments of matters which the court had to consider in order to make its determination, such as:

    1. to assess the mental condition of a person at the time of an alleged offence being committed and at the time of the reference;^[55] or
    2. provide an opinion on matters stated by the court^[56] to assess the level of risk that a prisoner will commit another sexual offence if release from custody or released without a supervision order being made;^[57] or
    3. to report on an offender where the indefinite detention order is being reviewed.^[58]
97. [97]
    The applicant did, in some of those reports, make recommendations as to future treatment, which arguably may have been of assistance in “improving or restoring or managing … health and well-being” for the subject of the report, as contemplated by s 7 of the HOA. However, it appears the provision of such recommendations was within the terms of the statutory engagement and it was not a service that was for the purpose of providing a health service. Rather, these recommendations were made in the context of providing an opinion as to future treatment as part of the court’s assessment process to determine the appropriate order to be made.^[59] While the fact that the report was provided for the benefit of the court does not exclude the possibility of it also being of benefit to the person assessed, even if not as a patient, given that those matters were directed to assisting the court and may or may not have been of benefit to the subject of the report, I consider the proper characterisation of the work undertaken by the applicant is that in carrying out the assessments and preparing and providing the reports to the court, the applicant was not providing a health service within the meaning of s 7.

98. [98]
    While the “Complaint summary” provided by the Ombudsman to the applicant on 19 June 2018 refers to the information provided by a person the subject of an order of the Mental Health Court as being from “a consumer”,^[60] that is plainly a mischaracterisation given the assessment was made for the Mental Health Court and the reference to “consumer” is of no weight in determining the present application.
99. [99]
    As to the reports where the applicant was engaged to provide an expert witness report by a party, the position is not as clear insofar as the provision of the report may be of benefit to the subject of the report at least to the extent that it may advance their position. However, as it is a report provided on behalf of the subject as evidence of the injuries suffered by a victim to establish the level of compensation for a victim of crime,^[61] rather than being for a service provided for “improving or restoring or managing [the subject’s] health and well-being”,^[62] the creation of report is not properly characterised as a health service. As to the report which is privileged, which is described as being for “use in criminal proceedings”, the evidence does not allow any characterisation to be made.
100. [100]
     However, the definition of “health service complaint” is not confined to “health service” and is broadened to extend to an “other service”. The applicant contends that he did not provide a service because he was discharging a duty to assist the court on particular questions relevant to the court’s deliberative processes about persons in the criminal justice system and not providing some accommodation or assistance to them or the public.
101. [101]
     In that regard, the applicant relies on the distinctions drawn by courts in IW,^[63] Rainsford v Victoria^[64] and Robinson v Commissioner of Police.^[65] They provide limited assistance to the present matter, insofar as they were cases dealing with whether services had been provided within the meaning of the Equal Opportunity Act 1984 (WA) and Disability Discrimination Act 1992 (Cth) and were decisions made in the context of the Act concerned and consisted of factual situations quite different from the present case. They did, however, provide some general guidance as to the meaning of “service” which ultimately has to be decided in the context of the HOA.
102. [102]
     In IW, the court considered s 66K(1)(c) of the Equal Opportunity Act 1984 (WA), which provided that it was unlawful for a service provider to discriminate on the ground of a person’s impairment in the manner in which they provide the other person with services.^[66]

103. [103]
     The applicant places reliance on the observations of Brennan CJ and McHugh J (who were in the minority) that “when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act”.^[67] Their Honours stated this was particularly so whether the councillors were undertaking a legislative role or a quasi-judicial role in exercising a statutory power or duty. In regards to the latter, they stated:^[68]

“This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a “service” in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope … of the Act”.

104. [104]
     In IW, Gummow J considered the term “service” and its variants to be “of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity”.^[69] His Honour considered that the Council “in a sense, was serving the community in the discharge of its functions under the town planning legislation whilst, at the same time, conferring a personal benefit or advantage upon successful applicants for planning permission”.^[70] Gummow J found that there was no reason to deny that, in dealing with applications for approval, the Council was engaged in the provision of services not only to the community as a whole but to individual applicants. He considered that there is no dichotomy between the discharge of statutory functions and the provision of services to those seeking the discharge of those functions.^[71]
105. [105]
     In IW, Dawson and Gaudron JJ stated that discrimination legislation should be construed as widely as its terms permit. They considered that “services” is a word “of complete generality” and “should not be given a narrow construction unless that is clearly required by definition or by context”.^[72] They considered that the word “services” in its ordinary meaning was “apt to include the administration and enforcement by the City of Perth of the Planning Scheme”.^[73]
106. [106]
     Toohey J^[74] and Kirby J^[75] also were satisfied that the Council had provided a service.
107. [107]
     The distinction between the provision of services, as opposed to the carrying out of statutory duties or governmental functions, has been adopted in some later decisions in the context of whether services were supplied within the meaning of discrimination legislation.
108. [108]
     In Rainsford v Victoria, Sundberg J considered the claim of indirect discrimination by a prisoner who claimed he was not provided with adequate opportunities to stretch and exercise his back while being transported and segregated and had to sleep on a low bed.^[76] Sundberg J found that neither transportation of prisoners between the prison and the court nor the accommodation of prisoners in cells were services. Sundberg J considered the various judgments in IW and stated that, while IW depended on the particular facts involved in that case:^[77]

“… some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case”.

109. [109]
     Justice Sundberg stated that if it were not for the English Court of Appeal decision in Farah v Commissioner of Police of the Metropolis,^[78] he would have thought that the State provided a service to the general public by maintaining a prison system. However, his Honour stated that the services for the benefit of the State or general public are not to the point. He considered that the “question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners”.^[79] He considered that transport and providing accomodation were fundamental integers of the prison system and could not be described as a “service” nor could either be solely characterised as for the benefit of the prisoner.^[80]
110. [110]
     In Robinson v Commissioner of Police, there was an allegation of unlawful discrimination under the Disability Discrimination Act 1992 (Cth) based on interactions between the accused, the manager of his estate and the police at the time of the accused’s arrest and maintaining custody over him while in the ambulance and at the hospital.^[81] Yates J held that those interactions did not involve services by police for the purpose of the Act. His Honour referred to the need to focus on the position of the persons alleging discrimination to identify whether “services are being provided or refused to that person and to others in the same circumstances… It does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved”.^[82] The applicant in that case also raised discrimination in relation to his bail application, contending that was a service supplied by the police. Yates J found that:^[83]

“The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty. It is a modification of the state of liberty that is enjoyed by others. Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons. All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for. As Buxton LJ observed in Gichura v Home Office, ‘it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do’”.

111. [111]
     In State of New South Wales v Whiteoak, Wright J (sitting as President of the Appeal Panel) considered whether the classification of prisoners was a “service” for the purposes of s 19 of the Anti-Discrimination Act 1977 (NSW).^[84] It was noted that the term “services” was used in combination with “goods” and that the combination “indicates that the term when combined with the word ‘goods’ refers to those products (tangible or intangible) which supply the needs of consumers”.^[85] That was significant because the term “services” in s 19 only ever appears in the expression “provision of goods or services”. Wright J found that “[t]he text of the section therefore suggests that ‘services’ will not in this context include activities in discharge of governmental functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers”.^[86] His Honour further found that, having considered the various meanings of “service” that “services”, the words in their ordinary meaning in context refer to those activities done for the purpose of supplying the needs of, providing assistance to, doing work for or providing help to persons.^[87] Wright J did point out that, even in the context of the legislation the Panel were considering, the mere fact that activities happen to result in a benefit to the person doesn’t necessarily mean that the activities are a service. Similarly, in the converse case, an activity is not always excluded from being a service just because it does not necessarily benefit a person.^[88] His Honour concluded, having analysed the terms of the provision and its context in the legislation, that:^[89]

“Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to ‘services’ being ‘provided’.

Subject to any contrary requirement or approach in the authorities, providing ‘services’ should be construed accordingly”.

112. [112]
     The authorities such as IW did not alter the his Honour’s conclusions.^[90] The decision does show the importance of the context in which the word is used and purpose of the legislation.
113. [113]
     Wright J’s observation at paragraph [180] does give some support the fact that the work done by the applicant does not necessarily amount to a health service even though the work may incidentally benefit those who are the subject of the reports through the provision of diagnoses and recommendations as to future treatment, “especially where the person has no choice whether to accept or reject the outcome and where the activities are in performance a governmental function or of a statutory duty”.^[91]
114. [114]
     As submitted by the respondent given the question in the cases relied upon by the applicant was one of discrimination under the relevant legislation, it was a critical question to identify whether a service the subject of complaint was provided to the person.
115. [115]
     The HOA is wide ranging legislation, particularly in seeking to streamline the complaints process. It is of broad application, as is apparent from the definition of “health service”. “Service” is, in its ordinary meaning, of wide import. There is no apparent reason why the term “service” should be construed other than to give its ordinary meaning. That said, the question is whether the applicant is as a health provider providing a service or is he, in providing a report to the Court, serving the administration of justice but not providing a service?
116. [116]
     The fact that the subject of the applicant’s reports is not a person who he is treating does not exclude the possibility that he is providing a service. That is apparent from the legislative intent. According to the Explanatory Note:^[92]

“Clause 31 states that a health service complaint is a complaint about a health service (as defined) or another service provided by a health service provider. The inclusion of ‘another service’ in this provision is to address circumstances where the complaint is not about a clinical matter. This clause provides examples of matters about which a complaint may be made”.

117. [117]
     However, that it is not to say that there is not a distinction between the performance of “services” and the carrying out of governmental or quasi-judicial functions or acts which are integral to the carrying out of public functions, such as those carried out by the prisons, police or the Courts.
118. [118]
     The above cases dealt with the application of discrimination legislation where the reference to “services” was not used in the same context. Nor was the role carried out by the applicant analogous to those roles where the person or body was found not to be carrying out a service. Where a psychiatrist is appointed to carry out an assessment and provide a report under the Mental Health Acts, DPSOA and Penalties and Sentences Act 1992 (Qld), they are not part of the justice system or the court to which they are providing the report.

119. [119]
     While in each case under the Mental Health Acts, DPOSA and the Penalties and Sentences Act 1992 (Qld), the applicant was engaged to provide a report to the court, even when engaged under a court order, he was not exercising government authority or acting under a statutory power in doing so, although he was engaged as a consequence of the exercise of a government authority or exercise of a statutory power. Such a report, no doubt, may well assist the court in its deliberations and be of some importance to the court process and decision making, however, it is distinct from it. While the applicant has referred to a number of decisions emphasising the importance of the expert evidence and how it may form an integral part of the Court’s reasoning process,^[93] the engagement of the expert is not similar to the circumstances considered in Rainsford, Robinson and Whiteoak, notwithstanding that the expert has a duty to the court which may result in prejudice to the party responsible for calling them. The fact remains that it may or may not be relied upon by the court, depending on the court’s assessment of its strength or relevance to the matters ultimately in issue. The works done and reports provided are important in assisting the court to carry out its deliberative process, but are not part of the deliberative process itself.
120. [120]
     That is so even in circumstances where a psychiatrist is commissioned by the Mental Health Court under s 422 of the 2000 MHA but where their evidence is ultimately rejected by the court. In Re KAB, Dalton J (as her Honour then was) rejected the evidence given by the psychiatrist engaged.^[94] In her Honour’s carefully reasoned decision, she stated that^[95]:

“It is worth emphasising the fact that the role of an expert in the Mental Health Court is not just to give an opinion, but to explain why the expert holds that opinion, so that the Court can judge whether or not it accepts the opinion; prefers another opinion; does not think that the opinion should be accepted because it does not accord with the whole of the evidence, or is otherwise not credible. This is the forensic process. The function of the Mental Health Court is to determine whether people, sometimes charged with very serious offending, as KAB is, ought to face the criminal courts in relation to that alleged offending, or ought to be placed on forensic orders as a consequence of unsoundness of mind at the time of the offending. Either way, the consequences for the person the subject of a reference are very serious. Doctors giving evidence in the Court must understand that one of the main purposes of the Court proceeding is to scrutinise psychiatric opinion with a rigour appropriate to the seriousness of the Court’s function. The Court is necessarily very dependant on reporting psychiatrists.

There is a particular set of legal principles about expert evidence led before a jury in criminal cases. I think these are relevant to the considerations I undertake, particularly because the task of this Court on a reference is conceptually very much related to the criminal process. However, it must be recognised that this Court is an inquisitorial court with power to commission reports itself, and to take advice from assisting psychiatrists. Furthermore, this Court acts on the balance of probabilities, and no party bears the onus of proof. In those respects the task which this Court undertakes is different from a jury acting where there is a clearly defined onus and a standard of proof beyond reasonable doubt …”.

121. [121]
     The reports prepared by the applicant were, in the cases under the specific Acts, and also in the case of expert evidence, intended to be given to a court, part of that process and no doubt considered as part of the court’s deliberations. However, contrary to the applicant’s contention, they were not inseparable from the mechanisms of control that are exercised over accused persons, whose liberty, in these contexts, was subject to the 1974 MHA, the 2000 MHA, the DPSOA and the Penalties and Sentences Act 1992 (Qld).
122. [122]
     Given the applicant’s role in assessing the subject and writing a report, the applicant was not providing a health service. The applicant was, however, providing a “other service” as a health provider, having been engaged because of his psychiatric expertise to assess the subject and prepare a report for the benefit of the court and administration of justice, for which he received financial reward. The HOA does not limit the complaints to only those being made by the person to whom the service was provided, nor is it limited to the services being provided to a patient.
123. [123]
     The applicant is not making any decision which is imposed upon the person who is the subject of the report. The applicant is providing a report for the benefit of the court and the administration of justice and to that extent, the work undertaken may benefit the community at large, which is not dissimilar from the administration of a planning scheme being of benefit to residents. However, the definition of “health service complaint” is broad and the reference to “other service” broadens its scope even further. Unlike the circumstances considered in Whiteoak, Rainsford and Robinson, the operation of the HOA is not directed to identifying whether services are provided to a person or persons. It is not limited to a service directed to a person or persons. It may extend to a service provided to a public institution such as the Court, the Crown or Attorney-General. It must, however, be a service provided by a health service provider as a health service provider. The person who may complain is not limited to the recipient of the service. If the health service provider is called upon to provide a particular service because he or she is a health service provider, such a service is the kind of “other service” to which s 31 applies. The reports prepared by the applicant were prepared by him exercising his skill as a forensic psychiatrist and was provided in his capacity as a health provider. The reports were of benefit to the court and indirectly the community at large, albeit he held duties to the court. He was engaged to provide and be paid for each individual report. While the fact he received payment is not by any means definitive, the fact he is paid for each individual report and is individually engaged is further evidence he was not carrying out a function of government or the court but rather was undertaking work for the Mental Health Court or on behalf of the Crown pursuant to court orders under the DPSOA or Penalties and Sentences Act 1992 (Qld).

124. [124]
     Contrary to the submission of the applicant in reply, the last example in s 31 of the HOA^[96] does not limit the scope of the service to being the provision of services to a particular patient, group patients or class of people being a particular person or a group of persons in the same circumstances or not materially different circumstances. The breadth of the subject of a “ health service complaint” does not reflect a legislative intent that a health practitioner exercising his or her expertise to provide an expert report could not be made the subject of a complaint about for example, unethical conduct in relation to the person being assessed or carrying out the assessment in a way which falls short of the conduct expected of a health practitioner in the same circumstances, simply because they are providing a report for the benefit of court proceedings. The assertion of the applicant that the court would be empowered to deal with any issues that arose is misconceived. The court’s role is to assess the evidence and, save in rare instances of contempt. While it will assess the veracity and weight of an opinion put before it, its role is not to address concerns about an expert’s behaviour in the course of undertaking and preparing a report, albeit that might be of relevance to assessing whether or not to accept the evidence given by the expert.
125. [125]
     I consider the applicant did provide an “other service” within the meaning of s 31 in undertaking the examinations and preparation for and providing reports and that complaints about his use of information obtained in undertaking that service in publishing the Book, are complaints are “about … [a] other service” provided by the applicant as a health provider. There is a clear and sufficient connection between the complaints made and the service provided by the applicant, insofar as they complain about the use of information alleged to be confidential which he obtained in undertaking that service and preparing his report and its subsequent use in the Book published by the applicant.
126. [126]
     In the case of the reports prepared for the purposes of compensation for criminal injuries, the applicant was providing a service to the individuals concerned insofar as his assessment was to be used by them as evidence in support of their claim. While he was obviously acting as an expert and had duties to the court, he was providing a service to the claimants, even if the report was not necessarily favourable to them.
127. [127]
     In my view, the jurisdictional fact, namely that the applicant is the subject of health service complaints, is established in relation to the complaints made and the Ombudsman had jurisdiction to take relevant action under s 38 of the HOA.
128. [128]
     However, I will consider whether jurisdiction alternatively arose by virtue of the fact that the complaints were voluntary notifications under the National Law.

Notifications under the National Law

129. [129]
     The respondent contends that the Ombudsman had jurisdiction to deal with the complaints because they constituted voluntary notifications having been made under the National Law.

130. [130]
     Section 36 of the HOA provides that the Act also applies to notifications made to the Ombudsman under the National Law as if the notification were a health service complaint.
131. [131]
     That general statement is supported by s 146 of the National Law, which provides that the HOA applies to notifications as if references in the HOA to a complaint were references to a notification and that, where a notification is made, the Ombudsman must deal with it under the HOA as if it were a health service complaint.
132. [132]
     Section 145 of the National Law provides that a voluntary notification can be made to the Ombudsman by any entity that “believes that a ground on which a voluntary notification may be made exists in relation to a registered health practitioner or a student”.
133. [133]
     The grounds for a voluntary notification are specified, broadly, in section 144 as follows:

3. “(1)
   A voluntary notification about a registered health practitioner may be made to the health ombudsman on any of the following grounds -

1. that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;
2. that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;
3. that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;
4. that the practitioner has, or may have, an impairment;
5. that the practitioner has, or may have, contravened this Law;
6. that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board;
7. that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular”.

134. [134]
     The applicant contends that the belief of the entity making such a notification is a precondition for a voluntary notification and the Ombudsman must establish that those who made the notifications believed that a ground for the notifications which they made existed at the time that they made those notifications. According to the applicant, the Ombudsman has not led any evidence to demonstrate this prerequisite in that there is no evidence that the complainants either believed that:

     1. they were making a voluntary notification (as opposed to a complaint); or
     2. a ground on which a voluntary notification may be made existed in relation to the applicant.
135. [135]
     The applicant contends that without evidence of the complainants’ state of mind, the respondent cannot establish that the preconditions exist for the making of a voluntary notification which could be referred to the Ombudsman. The applicant does not contend that the subject matter of the complaints cannot be the subject of a voluntary notification under s 144 of the National Law.
136. [136]
     There is no contention by the respondents that they have led evidence as to the complainants’ state of mind.
137. [137]
     The respondent, however, contends that the applicant’s construction should be rejected and that a “voluntary notification” exists if, objectively, a notification relates to a matter that is a ground for a “voluntary notification” and the Ombudsman does not have to engage in a process to discern the complaint’s state of mind. The respondent contends that there are a number of contextual indications that a notification is a voluntary notification giving rise to jurisdiction, regardless of whether the notification was made without the relevant belief and that the belief is not a subjective jurisdictional fact that must exist before there is a voluntary notification.
138. [138]
     I do not consider, on the provisions’ proper construction, that the belief of the entity making the notification, that there is a ground on which the voluntary notification can be made, is a precondition to there being a voluntary notification which the Ombudsman is required to be satisfied of, prior to having jurisdiction to consider the voluntary notification as a complaint if it is evident that the subject matter of the notification is a ground of a voluntary notification. There are a number of reasons for that finding:

     1. The terms of s 145 of the National Law provide that a person’s belief a ground exists gives rise to an entitlement for that person to make a notification but does not suggest that it is a precondition to there being a valid voluntary notification or the Ombudsman treating it as a voluntary notification once made if it raises one of the grounds in s 144 of the National Law.
     2. The interpretation set out in (a) gives the reference to “belief” meaning and is supported by the Note to the provision which suggests the purpose of the reference to belief of the entity making the notification is to limit notifications being made in bad faith and to enable the notifier to have the benefit of the protection in s 237 of the National Law which provides protection from civil and criminal liability to a person who in good faith makes a notification under the National Law.

3. The fact that the legislature did not intend the existence of a belief to be determinative of the question of whether or not there is a voluntary notification which can be acted upon by the Ombudsman is supported by the following matters:
   1. The objects of the National Law set out in s 3(2)(a) are directed to ensuring only health practitioners “who are suitably trained and qualified to practise in a competent and ethical manner are registered” and the main guiding principle in s 3A(1)(a) identifies the protection of the public to be a paramount consideration. That purpose and the main guiding principle is best achieved if a notification which prima facie discloses grounds for the notification under s 144 is considered by the Ombudsman as to whether to take relevant action or no action.
   2. The Ombudsman has power under s 44(1)(a)(i) of the HOA to not take action on a health service complaint or another matter if they reasonably consider that it is frivolous, vexatious, trivial or not made in good faith. Contrary to the contention of the applicant, lack of good faith will generally include the subjective belief of the maker, not just whether there are sufficient facts which support the belief held.^[97] On the applicants’ case, the voluntary notification would not be a voluntary notification and the two-stage post-referral process would not be engaged.
   3. Under s 146 of the National Law, “if a person makes a notification to the health ombudsman under division 2 or 3, the health ombudsman must deal with it under the [HOA] … as if it were a complaint made under part 3, division 2 of that Act”, rather than it being conditioned on the Ombudsman first being satisfied of the relevant belief of the person making the notification. That is further supported by the power of the Ombudsman not to take relevant action under s 44 of the HOA if there is a lack of good faith on behalf of the person making the complaint.
   4. The Ombudsman may take action even if the health service complaint has been withdrawn under s 39 of the HOA. The applicant’s suggestion that it if a complaint is withdrawn it would still require the Ombudsman to ascertain whether the notifier believed at the time of making the complaint that the ground existed would fly in the face of the terms of s 39 of the HOA and serve no apparent purpose.
   5. There is no requirement for the maker of the complaint to set out the basis of their belief.
   6. Sections 149 and 150 of the National Law provide for a preliminary assessment to be made by the National Board if the Ombudsman refers a health service complaint or other matter to the National Agency,^[98] which is to be done “whether or not the referred matter relates to a matter that is a ground for notification”^[99] and not according to whether the notifying entity held the relevant belief there was a ground.

7. The Ombudsman has the power to request additional information under s 34 of the HOA, which defers the time in which the Ombudsman needs to deal with the complaint and which could be used in circumstances where the Ombudsman considers that there may be an issue as to whether the notifier held the belief that there was a ground for notification. However, it would be a time consuming and resource intensive exercise if each time a voluntary notification is made the Ombudsman had to undertake an exercise to ascertain the notifier’s belief if not stated when the notification is made, even where on the face of the notification it is a voluntary notification and there is no basis.
8. Whether there is a ground for a notification under s 144 of the National Law, will generally be revealed by the substance of the notification. The state of mind of the person who notifies the complaint does not necessarily impact on whether there is a ground for a voluntary notification under s 144, only whether the person believes that to be the case.
9. The inclusion of s 237 of the National Law does not suggest that there is a two-stage assessment in relation to the notification. Its purpose is to only allow protections of liability if the notification is made in good faith, not to provide for an assessment process.

139. [139]
     The above receives some support, albeit limited, from observations in obiter by Murrell CJ in Hocking v Medical Board of Australia.^[100] In that case, one of the issues which her Honour had to consider was whether a mandatory notification was valid and, if invalid, whether the Medical Board could act upon it. However, the question of whether the notifying party held the requisite belief was not in issue. In relation to whether the Medical Board could act on an invalid notification, her Honour did not decide the question but made some observations in the following terms:^[101]

“…in the scheme of the National Law, the provisions concerning mandatory and voluntary notifications are only a means to an end; the provisions require (in the case of mandatory notifications) or enable (in the case of voluntary notifications) the Board to be notified of matters that may affect the health, performance or conduct of practitioners. Once the Board receives a notification, the means by which it reached the Board become irrelevant. There is no obligation upon the Board to investigate the circumstances in which a notification is made, either initially or at a later stage in the investigation of a complaint. The Board is not required to determine whether a notification is validly made or involves any breach of the law affecting the maker of the notification. The Board is required to act in accordance with Part 8 of the National Law. The Board must conduct a preliminary assessment of the notification for the purpose of deciding three matters; whether the notification relates to a person who is a health practitioner, whether it relates to a matter that is a ground the notification, and whether it is a notification that could also be made to the Health Services Commissioner (for the purpose of complying with s 150(1) – (3)). The action that the Board may take in relation to a notification is set out in s 150 (4A) of the National Law. One of the options available to the Board is to take no further action in accordance with s 151. Section 151(1) of the National Law sets out five grounds upon which the Board may decide to take no further action. The grounds do not include the invalidity or unlawfulness of the notification”.

140. [140]
     On the face of them, her Honour’s comments were not limited to invalidity on bases other than the belief being held in the making of the notification, as the applicant contends. While in that case her Honour had found the notifier had a reasonable belief, she did not preface the discussion in the above paragraph by excluding the lack of reasonable belief falling outside the bases on which the notification would be invalid or unlawful. In any event, little turns on it given I have decided on its correct construction in the context of National Law and the HOA the belief of the complainant is not a subjective jurisdictional fact.
141. [141]
     The above construction does not fail to give meaning to the word “belief”, rather it construes the reference to “belief” in context of the provision and the Act as a whole, consistent with the purpose of the HOA and National Law. While the provision for a mandatory notification also requires the health practitioner to form a reasonable belief, the context and requirements are far more prescriptive, given the serious nature of the matters which are notifiable conduct and the potential harm to public safety.^[102] Further, the belief is to be formed by a practitioner in the course of practising the person’s first health practitioner’s profession^[103] in relation to the practitioner the subject of the complaint. In that context, given the notification is mandatory once the reasonable belief is formed, there is a stronger argument that the forming of that reasonable belief is a necessary precondition to the validity of the notification. The National Law also prescribes that there are certain circumstances where the health practitioner is not taken to have formed a reasonable belief. Unlike in the case of voluntary notifications, the notifying practitioner must, in relation to some of the notifiable conduct, notify the Ombudsman of the conduct that forms the basis of the reasonable belief.^[104]
142. [142]
     There is nothing to suggest that the belief of the person responsible for a voluntary notification is relevant to whether or not there is a voluntary notification in fact. Providing for the belief of the applicant to be the subjective fact to enable the Ombudsman’s jurisdiction does make the process a transparent, accountable, efficient or effective and fair way as it would oblige the Ombudsman to make inquiries that won’t necessarily advance the substance of the matter, particularly where he is otherwise empowered to not act at any time under s 44(1)(a)(i) and (ii) of the HOA if they reasonably consider the complaint is tainted, misconceived or without substance. Given the nature of the grounds of a voluntary notification relate to the characterisation of conduct, which is a legal question, it would be a difficult threshold for a lay person to achieve in circumstances where the notification can be made by “any entity”. As was said by Murrell CJ in Hocking, the characterisation of a notification is a matter for the Court and does not depend upon the notifier’s opinion as to the basis upon which they made the notification.^[105]

143. [143]
     The construction above best achieves the purpose of the HOA and National Law which aim to introduce a flexible complaints system with the co-regulatory model given:

     1. One of the main objects of the HOA is to promote public confidence in the management of complaints and other matters relating to the provision of health services, which is achieved by providing for the Ombudsman to be able to review the terms of the notification itself to determine whether to take relevant action, rather than having to delve into the state of mind of the person making the complaint;
     2. It provides focus on the substance of the complaint but protects the subject of the complaint insofar as the Ombudsman still has power under the HOA not to take relevant action if they reasonably consider the complaint is frivolous, trivial or not made in good faith;
     3. The complaints against the applicant of alleged misuse of information which was obtained in the process of assessing individuals and preparing court reports by its inclusion in the publication of the Book prima facie raise grounds for voluntary notification contained in s 144(1)(a) and (c) of the National Law.
144. [144]
     As to the second part of the applicant’s contention that the maker of the complaint must believe they are making a voluntary notification, that is not supported by the terms of s 145 of the National Law. The belief is directed to the ground of the notification not to whether the maker believes they are making a voluntary notification. It would be an absurd construction and inconsistent with the objects of the National Law if, notwithstanding the maker believing that there were facts which supported one of the grounds in s 144, the notification would be invalid unless they believed it was a voluntary notification within the meaning of the National Law. Unlike a mandatory notification, where a duty is imposed upon a health practitioner who holds a reasonable belief as to the existence of notifiable conduct, nothing turns on the belief or otherwise of the complainant as to whether their complaint is a voluntary notification. However, the requirement that the maker have a belief, and the fact that they may not get the benefit of the protections from criminal or civil liability if they do not, serves the purpose of acting as a deterrent to people who do not hold such a belief from making complaints and clogging the complaints system and using the resources of the Ombudsman who then has to consider the complaint.
145. [145]
     The respondents raise the contention that if the applicant’s argument was correct no anonymous complaints could be made. While that is correct, given what I have decided above, I do not need to decide whether on its correct construction the National Law provides for anonymous complaints to be made.

146. [146]
     The complaints assert a misuse of confidential information by the publication of the Book. They are complaints which raise grounds that the applicant’s conduct was of a lesser standard than that which might reasonably be expected of a practitioner or that the practitioner may not be a person suitable to hold registration within the terms of s 144(1)(a) and (c) of the National Law.
147. [147]
     In relation to the complaint of the fellow psychiatrist referred to in paragraph [25](g) above, it presupposes it raises complaints as to patients but given it relates to the undertaking of the work by the applicant it would still be a complaint as to a service and a health service complaint or constitute a voluntary notification given it complains of the applicant’s professional conduct in relation to the subjects of his report and family members and is in breach the relevant Code of Ethics. As to the CCC referral it raises the alleged disclosure of confidential information as well as a potential misuse of position of employment, it would appear the two are connected insofar as the misuse relates to the use of confidential information. Even if the misuse of position does not relate to a “service” it raises a ground of a voluntary notification under s 144 of the National Law.
148. [148]
     In the circumstances, the Ombudsman also held jurisdiction to take relevant action by reason that the complaints could also constitute voluntary notifications under the National Law.

Other matters relating to health services

149. [149]
     The respondent also relies on ss 37 and 39 of the HOA to found the Ombudsman’s jurisdiction to deal with the complaints.
150. [150]
     Given I have found that jurisdiction is established upon the bases that there were health service complaints or voluntary notifications which could be treated as a complaint, it is unnecessary for me to decide whether the CCC referral was a complaint pursuant to s 37 and whether, if none of the preconditions for a health service complaint or voluntary notification or s 37 referral were satisfied, the Ombudsman still had jurisdiction pursuant to s 39 of the HOA. However, I will make some brief comments.
151. [151]
     The applicant contends that the Ombudsman’s jurisdiction under ss 37 and 39 is confined to “other matters” about which the Ombudsman can take action by s 38(3) HOA and the matter must relate to a “health service”. For the same reasons the complaints were said not to relate to “health services”, the applicant contends they would not found jurisdiction as “other matters”.
152. [152]
     The respondents, however, contend that the referrals under s 37 do relate to a health service for the reasons it contended the complaints were health service complaints and, in any event, it is incorrect to argue that ss 37 and 39 are so confined. Given the findings above, I will only consider s 37 of the HOA, notwithstanding I have found that the complaint raised by the CCC could be a health service complaint or a voluntary notification.
153. [153]
     The respondents contend that the fact that matters to which s 37 apply are not limited to health service matters is demonstrated by the fact that s 37 extends to a referral from a National Board under the National Law part 8, division 12, which includes ss 193 and 193A. Those sections of the National Law extend the National Board’s power to refer matters to the Ombudsman to include circumstances where the Board forms a reasonable belief either based on a complaint or “for any other reason” that “a registered health practitioner has behaved in a way that constitutes professional misconduct.” That could extend to a matter beyond those relating to a health service, given the definition of professional misconduct in s 5 of the National Law. The respondents contends that “relevant action” definition cannot confine the nature of the complaint which can be referred to the Ombudsman under s 193A of the National Law and be construed as only being able to be taken if the referral of a matter that relates to a health service within s 38(3) of the HOA.

154. [154]
     The Explanatory Note to the HOA refers to the fact that s 38 distinguishes between actions that may be taken on complaints and actions that may be taken in relation to any other information.^[106] It notes that the reason for the distinction is the fact that only some actions are relevant to dealing with complaints and are not relevant to dealing with other types of information. However, the Explanatory Note does not otherwise refer to the matters under ss 37 being limited to health services.
155. [155]
     According to the Explanatory Note, clause 37:^[107]

“… outlines how the Health Ombudsman is to treat certain matters referred to the Health Ombudsman from another entity, for example, a national board or the State Coroner. In these circumstances, the Health Ombudsman may, with a relevant person’s agreement, treat the matter as a complaint and the person as a complainant. This means, for example, where a matter was referred from the State Coroner, a relative of a person who had died could become a complainant and would be provided with notices on the progress of the complaint According to the Explanatory Note for the Health Ombudsman Bill 2013, clause 38 “distinguishes between actions that may be taken on complaints and actions that may be taken in relation to any other information. Some actions are only relevant to dealing with complaints - namely, assessing, facilitating local resolution or conciliating a complaint”.

156. [156]
     There is no apparent reason why the legislature would seek to confine a referral under s 37 to a health service only, nor would that appear to be the intention since the HOA makes provision for a matter to be treated as a complaint with the relevant person’s agreement and extends to matters being referred by the National Board which may extend beyond the health service. Nor does it accord with s 37(2), which makes provision for the subject of a referral being treated as a complaint with the relevant person’s agreement, with the example being given of a referral from a coroner and the Ombudsman then dealing with the matter as if it were a complaint and the family member were complainants. Some actions to be taken in response by the Ombudsman would be consistent with actions dealing with complaints. In the context of those provisions, “particular matter” must be construed as a matter which is a health service or other service provided by the health practitioner consistent with the powers of the Ombudsman and objects of the HOA. Consistent with the scope of referrals in ss 37(1)(a) and 37(2), the legislative intention would appear to be that the relevant action is to be treated as if the matter was a health service complaint in relation to a health service or other service provided by the health provider.

157. [157]
     As to the application of s 37 of the HOA to the referral by the CCC to the Ombudsman, it is uncontentious that at the relevant time the CCC was a government entity. The CCC referred to the Ombudsman the complaints of which they were made aware in relation to the services of the applicant in examining and providing reports while exercising his psychiatric expertise. Those matters could therefore be treated as a health service complaint relating to other services, for which the Ombudsman decided to take relevant action. Section 37(1) was therefore satisfied. The Ombudsman had jurisdiction to deal with the CCC referral under s 37 of the HOA.
158. [158]
     The reference in s 38(3) to “matter relating to a health service” is not, in the context of the other surrounding provisions and the Act as a whole, intended to confine the matter to a “health service” as defined, as opposed to being a service provided by a health provider as a health provider which could be the subject of a health service complaint, and extends to an “other service provided by a health service provider”. The fact that the definition of health service was not intended to limit the scope of the matter for which action can be taken under s 38(3) is supported by the fact that neither ss 37 or 39 are limited to matters which relate to a health service.
159. [159]
     It follows from the above that I am satisfied that the Ombudsman held jurisdiction under s 37 HOA in respect of the referral by the CCC.

Conclusion

160. [160]
     In light of the above, I am satisfied that the relevant preconditions to the Ombudsman having jurisdiction to take relevant action under the HOA has been established. It is therefore unnecessary for me to consider the question of whether an extension of time should be granted to make the application.

The statement of reasons issue

161. [161]
     Having found that the Ombudsman does have jurisdiction to deal with the complaints, the applicant seeks a statement of reasons for the decision of the Director to refer the matters to QCAT.
162. [162]
     The s 103 decision is a decision made by the Director under ss 103 and 104 of the HOA, which specifically empower the Director to refer matters to the QCAT having regard to:^[108]

     1. the paramount guiding principle, being the health and safety of the public;
     2. the seriousness of the matter;
     3. the likelihood of proving relevant matters before the QCAT;
     4. the orders that the QCAT may make; and
     5. any other things which the Director considers relevant.
163. [163]
     The Director made the s 103 decision on 6 December 2022.

164. [164]
     On 3 January 2023, the applicant wrote to the Ombudsman seeking a statement of reasons under s 32 of the JRA in respect of the Director’s s 103 decision. On 13 January 2023, the Ombudsman refused to comply with that request on the bases that:

     1. the s 103 decision is not a final decision which alters or affects the applicant’s legal rights; and
     2. the s 103 decision is a decision in relation to the institution of proceedings in a civil court, which is excluded from the requirement to provide a statement of reasons under schedule 2 of the JRA.
165. [165]
     The applicant submits that the decision is final, and operative, and materially affects his rights.^[109] The s 103 decision concludes the review and investigation process by the Ombudsman and has the direct consequence that the applicant can be exposed to penalties imposed by QCAT.^[110] The respondent, however, contends that the decision is not a decision within the meaning of s 4 of the JRA because it does not confer, alter or otherwise affect legal rights,^[111] which is the second criteria which must be met in order for s 4 of the JRA to apply.
166. [166]
     I consider that the respondent’s analysis is correct.
167. [167]
     Section 103 of the HOA provides:

168. [168]
     Under s 104 of the HOA, if a matter if referred to QCAT, QCAT may exercise its original jurisdiction to hear and decide the matter. QCAT has broad powers after hearing the matter under s 107 of the HOA. Under s 105, if the Director refers the matter back to the Ombudsman, the Ombudsman may decide to take particular relevant action or no further action in relation to the matter, unless they are requested to obtain information by the Director, in which case they must do so and refer it back.
169. [169]
     The decision of the Director does not decide or alter any right but, rather, it refers the matter to QCAT or the Ombudsman who may do so. Unlike Karmakar v Minister for Health (No 2),^[112] where Logan J found that decisions of the director made under s 89C(2) of the Health Insurance Act 1973 (Cth) were amendable to judicial review, the Director under s 103 of the HOA has no power to decide to take no action or enter into an agreement.^[113] The decision of the Director does not have the quality of finality for it to be a decision to which the JRA applies. Like the decision of the director considered in Health Care Complaints Commission v Hill,^[114] the decision of the Director had no relevant effect on the legal rights of the applicant. Only the Ombudsman or QCAT, upon referral by the Director, has the power to affect the legal rights of the applicant.
170. [170]
     While the applicant placed reliance on Byrne v Marles,^[115] it does not lend support to the Director’s decision having a sufficient air of finality; in that case, the decision of a commissioner to treat a complaint as a disciplinary complaint and investigate it or to refer it for investigation was found not to be sufficiently connected with a final decision affecting rights.^[116]

171. [171]
     In those circumstances, the applicant did not have a right to a statement of reasons pursuant to 31 of the JRA as the Director’s decision was not relevantly a decision to which the JRA applies: it is not a decision of an administrative character under an enactment.
172. [172]
     It is unnecessary for me to decide whether the decision to refer the complaints to QCAT under s 103 of the HOA is a decision in relation to the institution or conduct of proceedings in civil courts and the subject of the carve-out in Schedule 2, item 2 of the JRA: it can have no application to the Director’s decision to refer the matters to QCAT.
173. [173]
     The statement of reasons was also sought in relation to the decision under s 90 of the HOA, although that was not the subject of any written submissions by the applicant. In any case, the point was not formally abandoned. Under s 90 of the HOA, the Ombudsman, after completing an investigation, must decide to take particular relevant action to further deal with the matter or take no action.
174. [174]
     The s 90 decision was notified by letter dated 24 June 2020. It was a decision to which the obligation to give notice of the decision under s 278 applied.^[117] The 24 June 2020 letter stated, in part:

“Upon considering the information collected during the investigation, the Health Ombudsman determined that there is an arguable case that your conduct may amount to professional misconduct and decided to refer the matter to the Director of Proceedings for consideration pursuant to section 90(a) of the Health Ombudsman Act 2013. The investigation is now closed”.

175. [175]
     The applicant sought a statement of reasons under s 32 of the JRA by letter dated 10 July 2020. By letter dated 7 August 2020, the Ombudsman responded, contending that he did not have to provide a statement of reasons under the JRA, but in any event providing more detailed reasons.
176. [176]
     Regardless of whether the decision is one to which the JRA applies, reasons for the referral were given, albeit short and terse.^[118] The applicant did not seek to contend those reasons were inadequate. Further, reasons were provided under s 33(1) of the JRA which the applicant also did not contend were inadequate. In the circumstances, the applicant did not establish the reasons given were inadequate.

Conclusion

177. [177]
     The relevant parts of the application should be dismissed.
178. [178]
     Both parties submitted that costs ought to follow the event and I agree that is appropriate.
179. [179]
     Given confidentiality orders were sought and made due to the subject matter of the application, I will provide for the parties to have a period of 14 days to notify the court if the judgment contains any confidential matter which may need to be redacted. It will therefore not be published on the court website until after that time.

Orders

1. Grounds 5, 6A and 7 to 9A of the further amended application should be dismissed.
2. Costs should follow the event.
3. The parties notify the court within 14 days if the judgment contains any matter which is subject to confidentiality orders previously made.