Being the subject of a complaint – whether from a patient, colleague or community member generally – is a uniquely stressful professional experience for health practitioners.  One of the most cited reasons for poor mental health in the health professions is the complaints process, which is often costly, time-consuming and highly bureaucratic. 

In Queensland, the two main bodies charged with investigating complaints against health practitioners are the Queensland Health Ombudsman (OHO) and the Australian Health Practitioner Regulation Agency (AHPRA).

The paramount consideration for the OHO and AHPRA is the protection of the public.  For this reason, health practitioners may still be the subject of an investigation even where the complaint against them is false, spurious or otherwise lacks merit.

In this article, we give some insight into the OHO complaints and investigation process.  We hope that this is useful to health practitioners as a general guide.

The Queensland Health Ombudsman (OHO) is the single point of contact for all complaints about the health, conduct and performance of registered health practitioners. 

When a complaint is made, the Ombudsman, under Part 5 of the Health Ombudsman Act 2013, must decide whether to take any action. 

The type of action taken by the OHO depends on the facts of each case.  Where there is a serious risk to person and it is necessary to protect public health or safety, the OHO may suspend or impose conditions on the practitioner’s registration.  Where there is the prospect of criminal proceedings, the OHO may refer the matter to the police or other law enforcement authority.  In other cases, the OHO may investigate the matter itself and prepare a report.

Generally, the OHO retains matters where:

a) the complaint relates to conduct which might be professional misconduct, or

b) where there may be a basis to suspend or cancel the health practitioner’s registration. 

Complaints about conduct that fall outside of these criteria may be referred to the Australian Health Practitioner Regulation Agency (AHPRA) to investigate.

It is important to understand that if your matter is referred to AHPRA, it is not an escalation or a sign that a more serious course of action is contemplated.  It is also not a preliminary assessment that the concerns or allegations are able to be substantiated.  It simply reflects the different jurisdictions of the two main health regulators.

Once a complaint is accepted for assessment, the OHO has significant powers to require the health practitioner to provide information, including:

1. Patient files;
2. Records of communications including correspondence, text messages and file notes of phone calls;
3. Employment records;
4. Medicare records.

The health practitioner must comply with the notice to provide information unless they have a reasonable excuse.  Failure to comply may result in civil or disciplinary penalties.

What constitutes a reasonable excuse depends on the facts of the complaint and the reasons for why the information cannot be provided.  Importantly, the Health Ombudsman Act 2013 retains the privilege against self-incrimination.  This means that it is lawful for a health practitioner to refuse to provide information if that information may tend to expose them to a criminal penalty.

The health practitioner also has the right to prepare submissions and respond to the allegation/s. 

The OHO is required to complete an investigation within 12 months, although it is possible to obtain extensions of time.

If the complaint is substantiated, the OHO has numerous powers, including the power to take immediate registration action and to issue interim prohibition orders.  This is subject, of course, to a show cause process.  The health practitioner may apply to the Queensland Civil and Administrative Tribunal (QCAT) for a review of the decision.

As this overview demonstrates, for health practitioners who have had a complaint made against them, the OHO has significant investigatory and regulatory powers.  Given health conduct may sometimes overlap (often unknowingly) with criminal conduct or professional misconduct investigations, health practitioners are strongly advised to seek independent legal advice at the earliest opportunity. 

At Jasper Fogerty Lawyers, we have significant experience providing fearless and independent advice to health and other professionals who are facing conduct complaints.  Our expertise means that we have a well-founded reputation for resolving disciplinary law cases efficiently and cost-effectively and according to their true merits.

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