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In this significant judicial review application, the applicant sought review in respect of the extension of three investigations by the Health Ombudsman. In considering the application, Jackson J provided helpful guidance on when an investigation by the Health Ombudsman will be considered to be concluded, when the investigation may be extended and generally the interpretation of s 85 Health Ombudsman Act 2013.
23 August 2021
Between 1 March 2019 and 2 April 2019, the respondent Health Ombudsman commenced three investigations into Dr Braun, a surgeon. –. In accordance with s 85(1) Health Ombudsman Act 2013 (the Act), the respondent had one year to complete each investigation. . However, this is subject to a power under ss 85(2)–85(3) to grant three-month extensions to any investigations it is undertaking. –.
The first investigation was commenced on 1 March 2019, meaning that the respondent was required to complete it by 1 March 2020. . The due day passed without any extension being made. . A decision was, however, made by a delegate of the respondent to extend time for the investigation on 17 April 2020 and again on 29 May 2020 and in March 2021. , .
The second investigation was commenced on 2 April 2019, meaning that the respondent was required to complete it by 2 April 2020. . A decision was made by a delegate of the respondent to extend time for the investigation on 25 March 2020. . Further decisions to extend time were made on 24 June 2020 and in March 2021. –.
The third investigation was commenced on 2 April 2019, meaning that the respondent was required to complete it by 2 April 2020. . A decision was made by a delegate of the respondent to extend time for the investigation on 24 March 2020. . Further decisions to extend time were made on 22 June 2020 and in March 2021. , .
Dr Braun commenced proceedings in the Supreme Court, arguing that on a proper construction of the Act and in the circumstances of his case, the due day for each investigation was not extended. . He sought consequential declarations and injunctions under s 43(2) Judicial Review Act 1991 (JRA) in respect of each of the three investigations. .
In addressing the application, Jackson J first addressed the question whether it is unlawful for the respondent to continue carrying out an investigation if its due date has passed without an extension being validly granted. . His Honour started by addressing the plain meaning of the text of s 85(1) of the Act, identifying that the due date for an investigation was either the day one year after the decision to carry out the investigation was made or the day to which the investigation was extended in accordance with s 85(2). . Further, his Honour considered that the ordinary meaning of the text was that an investigation carried out after the due date “would be an investigation carried out in contravention of s 85(1)”. .
Turning then to the principles for interpreting s 85, Jackson J considered the objects of the Act, noting that while it held out the health and safety of the public as its main consideration, the scheme of complaints it provided for also affects the “rights, powers, and privileges of the health services provider”. –. As such, the system it created was designed to be “transparent, accountable and fair” and to “effectively and expeditiously” deal with complaints. –. His Honour considered this to be important to identifying the correct construction of s 85(1). .
Looking then at the immediate statutory context of s 85, Jackson J observed that “the ways in which the health ombudsman may deal with a health service complaint are carefully structured and defined”. . Specifically, in respect of investigations, his Honour noted that the respondent must give notice of the progress of the investigation to the health service provider being investigated at not less than three monthly intervals. . Further, under s 90 of the Act, the respondent is required to make a decision in respect of whether to take further action and give notice of that decision to the health service provider after completing the investigation. .
As to the interaction between ss 85 and 90, Jackson J observed that there is no definition of when an investigation will be completed under the Act. . Accordingly, his Honour relied on the ordinary meaning to find that an investigation would be concluded where it is brought to an end, finished, or concluded. . Under s 85, this must be done by the due date. . The significance of this conclusion is that, contrary to the respondent’s submissions, the decision in s 90 is not required to be made after the investigation is completed “to the satisfaction of the health ombudsman”. . His Honour found further justification for this conclusion in the fact that, were the respondent’s submission to be accepted, the due date under s 85 passing would have no consequence. .
Jackson J identified a further point against the respondent’s favoured interpretation as being that, if an investigation does not conclude upon the due date under s 85, then the respondent would be able to exercise its “intrusive investigatory powers” and to continue to impose obligations upon the health service provider, notwithstanding the contravention of s 85. –. His Honour considered such an interpretation to be contrary to the principle of legality. –. Further, this was found to justify Dr Braun’s right of review under the JRA: the continuation of the respondent’s coercive investigatory powers under the Act were an investigation to be continuing affects a person’s interests such that review rights under the JRA are enlivened. –.
Following the above analysis, Jackson J found that the failure to validly extend the due day will cause the due day to pass and an investigation to be completed. .
His Honour also found that neither the ordinary meaning of s 85(2) nor its context supported the availability of a retrospective power to extend the due date for an investigation. –. His Honour also did not consider a retrospective power to extend to be in line with the purpose of the Act as a whole. –.
Dr Braun also sought to contest whether the respondent had formed the requisite state of mind under s 85(2) to exercise the power under that section. . Jackson J found that the power could be exercised when the respondent “considers on reasonable grounds” or “believes on reasonable grounds” that it is not possible for the investigation to be completed by the due date. . The onus of proof will be on an applicant in establishing that such a state of mind did not exist. .
Applying the above analysis to the facts of this case, Jackson J found that the first investigation concluded on 1 May 2020 and the purported extension on 17 April 2020 had no effect. . However, his Honour was not satisfied that the remaining two investigations had not been validly extended. –. Accordingly, Jackson J made the declarations sought by Dr Braun in respect of the first investigation only.