Health Ombudsman v Braun

The questions raised in this appeal turned upon the proper interpretation of ss 85 and 90 Health Ombudsman Act 2013. The appellant sought to argue that the scope of s 85(2) enabled it to extend the due date for completing an investigation retrospectively. The court held that that was not the case. Whilst finding that one aspect of the decision at first instance was erroneous, the appeal was otherwise dismissed.

Fraser and McMurdo and Mullins JJA

30 June 2022

Three questions were considered by the court [4]:

1. Did s 85(2) permit the ombudsman to extend the due day for completing an investigation after that day had passed?
2. If not, was the ombudsman precluded from continuing his investigations?
3. Whether, for any of the investigations for which the due day has passed, the ombudsman was obliged pursuant to s 90 to take particular relevant action to further deal with the matter or to take no further action in relation to the complaint.

At first instance Justice Jackson had answered “no” to the first and second questions, and “yes” to the third.

The applicable legislation

Investigations undertaken by the ombudsman are governed by Pt 8 Health Ombudsman Act 2013. Section 85 of the Act relevantly provides:

(1) The health ombudsman must complete an investigation as quickly as is reasonable in all the circumstances and, in any case, by the day (the due day) that is 1 year, or any extended time decided under subsection (2), after the decision to carry out the investigation.

(2) The health ombudsman may extend the due day for completing an investigation if the health ombudsman reasonably considers that, in all the circumstances (including, for example, the size and complexity of the matters being investigated), it is not possible to properly complete the investigation by the due day.

(3) The due day for completing an investigation may be extended more than once under subsection (2) but each extension may not be more than 3 months.

(4) The health ombudsman must keep a register, on a publicly accessible website of the health ombudsman, of investigations that have not been completed within 1 year after the decision to carry them out.

(5) The register must list the following matters for each of the investigations—

(a) the general nature of the matter being investigated;

(b) the day on which it was decided to carry out the investigation;

(c) the current due day for completing the investigation;

(d) the reason for each extension of the due day.

(6) The register must not include information that identifies a complainant, health service provider or individual to whom a health service was provided.

(7) Also, despite subsection (5)(a), the register must not state anything about the nature of the matter being investigated if the health ombudsman considers that doing so may—

(a) put at serious risk a person’s health or safety; or

(b) put a complainant or other person at risk of being harassed or intimidated; or

(c) prejudice an investigation or inquiry.

(8) If an investigation is not completed within 2 years after the decision to carry it out—

(a) the health ombudsman must give notices to the Minister and the parliamentary committee stating—

(i) details of the matter being investigated; and

(ii) why the investigation has not been completed; and

(b) without limiting section 179(1)(c), the parliamentary committee may review the health ombudsman’s performance of functions under this part in relation to the investigation.

(9) This section does not apply to an investigation carried out in compliance with a direction by the Minister under section 81 if the direction includes a stated time by which the investigation must be completed.”

Section 90 is engaged after an investigation has been completed, and where it is engaged, it imposes a duty upon the ombudsman to make a certain decision. It states as follows:

After completing an investigation of a matter under this part, the health ombudsman must—

(a) decide—

(i) to take particular relevant action to further deal with the matter; or

(ii) to take no further action in relation to the matter; and

Note—

See section 44 for the grounds on which the health ombudsman may decide to take no further action on a matter under this part.

(b) give notice of the decision—

(i) if the investigation relates to a health service complaint—to the complainant and relevant health service provider under section 278; or

(ii) otherwise—to any health service provider being investigated.

The reasoning of the primary judge

At first instance Justice Jackson found as follows:

1. a failure to validly extend the due day under s 85(2) of the Act will cause the due day to pass under s 85(1) of the Act and will cause an investigation to be completed on the due day [32];
2. s 90 was engaged in this case [32];
3. the ordinary meaning of the text of s 85(2) was inconsistent with the retrospective exercise of the power to extend [33];
4. five considerations were directly against a construction which would permit a retrospective extension. [35].

The five considerations identified by his Honour were of particular importance to both the hearing and the appeal. They were:

1. if the power to extend the due day may be retrospectively exercised, there is no objectively ascertainable limit on the due day to complete an investigation.
2. in exercising the power to extend the due day retrospectively, how would the ombudsman answer the question posed under s 85(2) that “it is not possible to properly complete the investigation by the due day”?
3. given that an extension under s 85(2) may only be for three months at a time, due to the operation of s 85(3), would there be scope for the power to extend to be exercised more than three months retrospectively?
4. by allowing retrospective extensions, the expired due day would also be retrospectively altered;
5. the powers under Pt 8 of the Act are intrusive and would be re-engaged by a retrospective extension of the due day. That would bring about further complex questions, for example, would the retrospective operation operate nunc pro tunc to validate what was not authorised prior to the retrospective extension?

Justice Jackson held that the purported extensions of the due day made by the ombudsman were invalid. [36].

The arguments on appeal

The appellant submitted that the reasoning at first instance was flawed in two respects. Firstly, it queried the conclusion that the passing of the due day for the completion of an investigation renders an investigation complete, despite whether the running of the investigation has been to the ombudsman’s satisfaction. Secondly, it disputed the conclusion that the due day is unable to be extended retrospectively. In that regard it contended that the ordinary meaning of “extend”, the context of the Act, and its object and purpose all support a retrospective application. [37].

Consideration

The court observed that s 85(2) allows for extensions to be granted in circumstances where completion of an investigation by the due day is not viable. By obtaining an extension in a timely manner the investigator’s powers continue to be exercisable, albeit not indefinitely. [43].

Importantly, it held that once the due date has expired since the powers are no longer exercisable the ombudsman must determine what other relevant action to take for dealing with the complaint, or if permitted by s 44, take no further action. The ombudsman is not confined to only taking one relevant action to deal with a matter, or for that matter the relevant action which is at first taken by it. [45]. The court stressed that the power to take other relevant action is not derived from s 90, and s 90 has no application as to what the Ombudsman can then do since it is only engaged after an investigation has been completed. [46]. It added that it did not share Justice Jackson’s view that where the due date has expired, without the investigation having been completed, it is nonetheless regarded finalised for the purposes of s 90, noting:

“The completion of an investigation should be given the meaning in s 90 which it has in s 85 and s 86. An investigation is not completed by the expiry of the time allowed for that to occur.” [47].

The court held that s 90 was not engaged for the simple reason that the expression “after completing an investigation of a matter under this part” refers to the finalisation of an investigation. [55].

The court endorsed Justice Jackson’s observations that the arguments for the ombudsman disregarded the expressed requirement for a transparent, accountable, and fair system for effectively and expeditiously dealing with complaints. [49]. It also endorsed what it said was “his Honour’s succinct reasoning on each of the five points” which were against a construction which would permit a retrospective extension in this instance. [50].

Disposition 

The appeal was dismissed apart from that part of the appeal which related to question three. As such it was ordered that the third of the declarations made by the primary judge be set aside. [55], [56].

A Jarro