Grant v Health Ombudsman

The applicant, a psychiatrist, wrote a book which drew on his experience preparing expert reports for court proceedings. That book was the subject of complaints to the Health Ombudsman, which were referred to the Director of Proceedings of the Health Ombudsman, who in turn referred them to the QCAT. The key question for her Honour was whether the terms of the Health Ombudsman Act 2013 gave jurisdiction for the referrals in the circumstances. Her Honour concluded that the Health Ombudsman Act 2013 provided several bases upon which the Health Ombudsman and Director of Proceedings had jurisdiction to make the referrals in dispute. Her Honour further concluded that the Director of Proceedings’ decision to refer the complaints to QCAT was not a decision which entitled the applicant to a statement of reasons.

Brown J

12 July 2024

The applicant is a psychiatrist who published a book in May 2018. [1]. That book included information which he had acquired while preparing psychiatric reports for court proceedings. These reports had been prepared in accordance with orders of the Mental Health Court and Supreme Court of Queensland under a variety of legislative schemes. [15]. From June to December 2018, the Health Ombudsman made the applicant aware of a number of complaints, including from the Crime and Corruption Commission, that it had received in relation to the applicant’s book and the information contained within it. [18]–[30].

Writing to the Health Ombudsman, the applicant argued that the Health Ombudsman lacked jurisdiction to deal with the complaints because the applicant had not, in their preparation of the expert reports, been providing a “health service” or “other service” within the meaning of the Health Ombudsman Act 2013 (“the HOA”). [28]. In June 2020, the Health Ombudsman referred the matter to the Director of Proceedings within the Health Ombudsman on the basis that the applicant’s conduct may have amounted to professional misconduct. [31]. The Director of Proceedings, having considered the referral by the Health Ombudsman, made their own referral to QCAT in December 2022. [32]. The applicant sought a statement of reasons for the referral to QCAT, which was refused, and the applicant commenced the proceeding the subject of this judgment shortly thereafter. [33]–[34]. This hearing was for specific issues which Applegarth J had ordered be determined separately from other grounds of the application. [2].

The essence of the applicant’s argument was that the complaints could not properly be characterised as being about the provision of a “service” by the applicant which would fall under the HOA; rather, the complaints were about the applicant having written and published a book. [35]–[37].

The respondents, arguing that information within the book breached confidentiality, contended:

(a)that the preparation of the reports was a “health service” or “other service” within the meaning of s 31 of the HOA;

(b)that the complaints were also “voluntary notifications” under the Health Practitioner Regulation National Law (Queensland) (“National Law”), entitling the Health Ombudsman to deal with them as if they were complaints under s 36 of the HOA;

(c)that the referrals made by the Crime and Corruption Commission could be actioned under s 37 of the HOA; and,

(d)that s 39 of the HOA empowered the Health Ombudsman to take “relevant action to deal with a matter” whether or not it arose out of a health service complaint. [38].

If the applicant could not establish lack of jurisdiction, they sought a statement of reasons for the referral to QCAT by the Director of Proceedings on the basis that that decision was final, operative, and materially affected the applicant’s rights. [165]. The Director of Proceedings argued that no statement of reasons was required because the decision to refer to QCAT did not confer, alter or otherwise affect legal rights. [165].

Jurisdiction under the s 31 Health Ombudsman Act 2013

Her Honour canvassed the principles relating to the construal of legislation, considering the specific sections of the HOA and National Law in issue in this matter. [42]–[73]. Her Honour concluded that it was necessary for the respondents to demonstrate that the complaints against the applicant were either:

(a)about a “health service”; or,

(b)about an “other service” provided by the applicant as a health service provider. [73].

Considering a series of cases on the meaning of “service” and “other service”, her Honour concluded that while the provision of “services” which are inseparable from an exercise of government authority or statutory power are normally excluded from being considered “services”, the preparation of an expert report for court proceedings cannot properly be characterised as an exercise of either government authority or statutory power. This is because while expert evidence is often important to a court’s decision, it is not itself dispositive of it. [74]–[121]. While the applicant may not have been providing a “health service” within the meaning of s 7 of the HOA in his preparation of expert evidence, he had been providing an “other service” which relied on his ability as a health provider. [122]–[126]. The jurisdictional fact under s 31 of the HOA was therefore established, empowering the respondents to act on the complaints. [127].

Jurisdiction under s 36 Health Ombudsman Act 2013

The HOA and the National Law operate so that a “voluntary notification” under the National Law may be treated by the Health Ombudsman as a complaint, pursuant to s 36 of the HOA. [130]–[133]. The applicant’s argument was that the respondents had to establish that the persons or entities making the National Law “notifications” believed that a ground for those notifications under s 144 of the National Law had been established, or that they had intended to make a voluntary notification. [133]–[135]. These grounds included that a practitioner’s standard of professional conduct was less than, or knowledge, skill or judgment was below the standard of, what might reasonably be expected. [133].

The respondents argued that if a complaint disclosed a ground under s 144 of the National Law, that was sufficient for it to amount to a voluntary notification irrespective of the intent of the lodger. [137]. Considering the legislation, its purpose and other relevant authority, her Honour preferred the construction of the respondents and concluded that they also had jurisdiction under s 36 of the HOA. [138]–[148].

Jurisdiction under ss 37 and 39 Health Ombudsman Act 2013

Sections 37 and 39 of the HOA allow the Health Ombudsman to act on matters other than a health service complaint, whether referred or not. The applicant’s argument was that the application of these two sections was limited by s 38(3) of the HOA so that action could only be taken by the Health Ombudsman where the matter in question concerned “health services”, which the applicant had successfully argued was not the character of the services in issue in this matter. [151]. Her Honour rejected this construction, pointing out that the Explanatory Note to the HOA, as well as the text of the HOA generally, did not support it. [154]–[159].

Requirement to provide reasons

Section 103 of the HOA empowers the Director of Proceedings to refer matters to QCAT subject to several considerations. [162]. Her Honour concluded that the decision to refer to QCAT does not decide or alter any right; that is left to QCAT. [169]. Therefore, the applicant did not have a right to a statement of reasons pursuant to s 31 of the Judicial Review Act 1991. [171].

Disposition

The parts of the application under consideration were dismissed.

B Wilson of Counsel