Office of the Health Ombudsman v Thampi

This matter concerned the interpretation of s 58(1) Health Ombudsman Act 2013 (“the Act”). The appellant had suspended the respondent health practitioner’s registration upon receiving reports the respondent was facing charges of sexual assault of female child patients on the basis that, pursuant to s 58(1)(d), the suspension was “otherwise in the public interest”. The QCAT set aside the appellant’s decision and instead imposed conditions on the respondent’s continued registration. The tribunal member did not have regard to the operation of s 58(1)(d) of the Act. Bond JA, with whom Mullins P and Gotterson AJA agreed, held that the QCAT had erred by failing to consider whether immediate suspension was “otherwise in the public interest” pursuant to s 58(1)(d) of the Act.

Mullins P and Bond JA and Gotterson AJA

31 March 2023

The respondent was a registered medical practitioner facing charges of sexually assaulting female child patients. [5]. Section 58(1) of the Health Ombudsman Act 2013 (“the Act”) permits the health ombudsman to take immediate registration action in the circumstances set out in ss 58(1)(a) to 58(1)(d) of the Act.

On the basis of the allegations against the respondent, the appellant took “immediate registration action” pursuant to s 58(1)(a) of the Act by imposing conditions on the respondent’s continued practice. Further, pursuant to s 58(1)(d) of the Act, the appellant suspended the respondent’s registration. [7]–[10]. The respondent successfully appealed that decision to QCAT, which set aside the appellant’s decision and permitted the respondent to remain registered subject to conditions. [18].

The Court of Appeal found that QCAT’s decision was incorrect because it was reached, in part, by an improper construction of the Act. Importantly, the QCAT member had found that s 58(1)(d) was not engaged and so failed to consider whether it was “otherwise in the public interest” pursuant to s 58(1)(d) to suspend the respondent’s registration. [36].

In support of QCAT’s findings, before the Court of Appeal, the respondent argued:

“The use of the word otherwise in Section 58(1)(d) conveys the legislature’s intention that if one or more of the preceding subsections invoke immediate registration action, there is then no scope for Section 58(1)(d) to be invoked…”. [24].

The Court of Appeal found that there was no support for the section to be read in the manner contended by the respondent. Justice Bond, with whom President Mullins and Justice Gotterson agreed, stated:

“The intention of the word ‘otherwise’ in s 58(1)(d) is no more than a recognition that the three other possible foundations of jurisdiction mentioned in ss 58(1)(a), (b) and (c) may be regarded as matters of public interest, and there might be other reasons in the public interest for the exercise of power”. [35].

The Court of Appeal found that if the appellant held one of the beliefs under ss 58(1)(a), (b) or (d) or the circumstances under s 58(1)(c) existed, then those are jurisdictional facts upon which the appellant could exercise her power. Contrary to the respondent’s contention, the language of s 58(1) did not require the appellant to consider whether a jurisdictional fact existed in a particular order, or pursuant to a contemplated hierarchy. [28]–[29]. The recognition in s 3 of the Act of the importance of effective and expeditious procedure also weighed against the respondent’s argument. [31]. Finally, there was no indication the legislature intended that the appellant only hold one belief at a time, or that she could not hold both beliefs at the same time or that she could only hold the belief under s 58(1)(d) after she had considered and rejected the belief under section 58(1)(a). [33]–[34].

S Parvez of Counsel