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AMA Queensland's call to overhaul Complaint Processes in Queensland

Newsletter Article 03 May 2016

The Health Practitioner Regulation National Law 2009 (the National Law) which provides for a national system of regulation for health professionals first came into force in Queensland on 1 January 2010. Four and a half years on, Queensland adopted a co-regulatory system with the commencement of the Office of the Health Ombudsman (OHO) on 1 July 2014.

From 1 July 2014 the OHO became the portal for all complaints relating to the provision of a “health service” which is broadly defined as a service that is or purports to be a service for maintaining, improving, restoring or managing people’s health and wellbeing.

The OHO has been operating for over 18 months. On 14 March 2016, AMA Queensland (I) released a submission to the Queensland Minister for Health, highlighting concerns and suggesting areas of reform.

In summary the AMAQ identified 5 areas of concern where it says the current system of medical complaints management and regulation is not meeting the needs of the public or health professionals as follows.

The Absence of Medical Practitioner Leadership and Guidance

Whilst the OHO has access to expert clinical advice it is not required to establish clinical advisory panels. In theory it is possible for a serious matter to be resolved without any clinical input at all.

AMAQ advocates for the establishment of permanent health professional councils to be established within the structure of the OHO.

Structural Conflicts that Inhibit Fairness and Impartiality

The concern identified is that while under the legislation the Health Ombudsman is purportedly independent, impartial and required to act in the public interest [1] the Health Minister retains control over the hiring, suspension and dismissal of the Health Ombudsman [2]. Additionally, the position of Director of Proceedings (who decides whether or not to refer health service complaints to QCAT on behalf of the Health Ombudsman) is a member of staff of the OHO.

AMAQ recommends that the best way to address such structural conflict is for both the Health Ombudsman and Director of Proceedings to report to the relevant Parliamentary Committee namely the Health and Ambulance Services Committee (the Committee). Further, the legislation should be amended to provide that the Health Ombudsman is not subject to direction by the Committee to ensure he/she does not become a political tool of the Committee.

Suspension of Natural Justice and Procedural Fairness in Investigations

AMAQ reports in its submission that its members have raised serious concerns about the manner and timeliness of OHO assessments and investigations. Further, members expressed a perception that the OHO was unnecessarily aggressive and accusatory in its investigations.

Whilst it is vital for a complainant to know their concern is addressed and any risk mitigated, it is just as important that the subject of a complaint, is confident that he or she is afforded procedural fairness. This in turn will establish confidence that the system is fair and any censure proportional.

Accordingly AMAQ has suggested that the establishment of health professional councils supported by legal practitioners would help address these concerns and develop a culture that prominently places natural justice and procedural fairness in investigations. It is also suggested that an external group of experts be engaged to examine the investigatory culture of the OHO. AMAQ submits that such a review is not premature at the 18 month mark, and provides an opportunity to resolve any quirks or maladjustments before they become entrenched.

Unreasonably Prolonged Complaints Resolution

One of the major aspects of the Health Ombudsman Act when it was introduced in 2013 was the establishment of legislated timeframes for the acceptance, assessment and investigation of complaints.

However, AMAQ’s members have consistently reported considerable delays in the OHO making decisions, even when the matter is determined to be trivial or vexatious. In this context AMAQ has requested the Queensland Government to examine the resourcing of the OHO. Further it suggests that effective triaging with appropriate medical advice and prompt referral to the Medical Board of Australia has the potential to alleviate many of the timeliness concerns raised by its membership.

Undermining of the National System

Finally, AMAQ expressed concerns that the OHO undermines the national regulatory system through the creation of differing standards and thresholds between itself and the Medical Board of Australia. This in turn reduces the consistency of decisions and ability of both medical professionals and patients to have confidence in the decisions of both bodies.

AMAQ suggests that the most straight forward remedy to this issue is to fully integrate the triage functions of both OHO and AHPRA/Medical Board of Australia. So far as resources are concerned it would ensure only one triage center is required to operate and from an operational perspective it would guarantee common triggers and thresholds for referral.

Conclusion

The full submission is available at http://www.amaq.com.au/icms_docs/238872_oho-submission.pdf

As at the date of writing this article no formal response to the submissions has been forthcoming. Whether or not any amendments are made to the legislation to address the identified concerns remains to be seen.

[1] Section 27 Health Ombudsman Act 2013 (QLD)
[2] Section 245, 250 and 251 Health Ombudsman Act 2013 (QLD)


Katharine Philp, Partner
Brisbane

Newsletter Article 03 May 2016
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