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Complaints to the Health Ombudsman

By 14 August 2020 General News
Complaints to the Health Ombudsman

The way that a doctor responds to a complaint about his or her practice can have very significant consequences in terms of career, mental wellbeing and general enjoyment of life.

We recommend seeking the assistance of a solicitor, if you are in the position of having to respond to a complaint about you, before you draft your response.

The Health Practitioner Regulation National Law (“the National Law”) governs the way that the Medical Board of Australia (“the Board”) decides whether a doctor’s conduct is unsatisfactory when it receives a complaint.

Pursuant to s 178(1)(a)(i) of the National Law, if a panel, convened by the Board, reasonably believes, because of a notification or for any other reason, that the way a registered health practitioner registered in a health profession practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory, then the Board can impose conditions upon that practitioner’s registration (emphasis added).

The conditions placed on a practitioner’s registration can be quite onerous and seriously affect the practitioner’s livelihood and ability to practice.

The test the panel is to use is defined by the words “reasonably believe” and “may be unsatisfactory” in s178(1)(a)(i). These words immediately give rise to concern for a lawyer defending the doctor.

The notification could be a complaint by a patient or a patient’s friend, a disgruntled co-worker or administration staff. The evidence before the panel may be scant, riddled with hearsay and factual inaccuracy. The panel is not restricted as to what evidence it can read or hear and consider in the way that a Court is restricted by the laws of evidence.

What is the process by which the Medical Board considers a complaint?

A complaint about a medical practitioner can be made to the Office of the Health Ombudsman.

The Ombudsman can then refer the matter to the Australian Health Practitioner Regulation Agency (“AHPRA”) which manages complaints on behalf of the Board.

The matter might then be the subject of an investigation, during which the Board will gather relevant medical records and reports by witnesses.

The practitioner will be asked to provide a written response to the complaint.

The Board will consider all the material it has gathered and then make a decision as to whether to impose conditions of practice upon the practitioner’s registration.

The practitioner can appeal the decision of the Board. In Queensland that would involve an application to the Queensland Civil and Administration Tribunal (“QCAT”).

What standard of proof is required at law?

In the case of AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, an appeal against a decision of the Board, the Court decided as follows:

The condition for the exercise of the power pursuant to s 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.

The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory – it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient [1].

This would seem to require a very low standard of proof. Another approach was taken in the case of Kapser v Psychology Board of Australia (No. 2) [2015] NTCAT 179 (Kapser (No.2)).

In the judgment in Kapser (No.2), the Northern Territory Civil and Administration Tribunal (“NTCAT”), states, at paragraph 10, that the seriousness of the consequences for the medical practitioner, in circumstances of each particular case, requires the decision maker to consider the reliability of the evidence available to it:

In the panel’s view, in the circumstances of this case, action under section 178(2) of the National Law may only be taken against Ms Kapser if NTCAT (standing in the Board’s shoes) is satisfied, on the balance of probabilities that the way she practises the health profession, or that her professional conduct, is unsatisfactory.  The significance of such a finding and the seriousness of its consequences mean that there should be proof by reliable material. [2]

In that case, the judgment uses the word “facultative” to describe s178, in that the section allows for the decision maker to require more reliable evidence depending on the circumstances of the case.

The panel in Kapser (No.2) refers to the judgment in Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 (“Solomon”) in which the Briginshaw standard is applied in disciplinary proceedings under the Act:

In my view the same standard is applicable to the panel’s functions in dealing with disciplinary matters under the National Law. Any adverse finding in a disciplinary process is a serious matter for a professional person. The serious consequences of such a finding mean that the facts showing that a person has engaged in unsatisfactory professional performance must be affirmatively established by reliable material. [3]

It may be that the legislature should reconsider the wording of the National Law. In the meantime, medical practitioners should be aware of the pitfalls when drafting a response to a complaint and seek legal advice.

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[1] AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, paragraph 27 and 28
[2] Kapser v Psychology Board of Australia (No. 2) [2015] NTCAT 179 at paragraph 101
[3] Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 at paragraph 139