Marzini v Health Ombudsman

Health Ombudsman Act 2013 (Qld), s 3, s 4, s 13, s 24, s 25, s 35, s 36, s 38, s 57, s 58, s 59, s 61, s 63, s 64, s 65, s 80, s 94, s 96, s 186, s 187, s 195, s 203, s 212, s 213, s 228, s 230, s 231, s 232, s 287

Health Practitioner Regulation National Law (Queensland), s 141

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 11, s 17, s 18, s 19, s 24, s 43, s 100, s 102

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[1] On 30 October 2017, the respondent received a notification pursuant to s 141(1)(a) and (2) of the Health Practitioner Regulation National Law concerning the applicant, a registered Chinese Medicine Practitioner.[1] Sections 13(2) and 36 of the Health Ombudsman Act 2013 (Qld) (HO Act) provide for such a notification to be dealt with by the respondent as a "health service complaint" pursuant to the HO Act.

[2] On 21 November 2017, the respondent decided to take immediate registration action pursuant to s 58 of the HO Act by imposing conditions on the applicant's registration as a Chinese Medicine Practitioner. Acting pursuant to s 59(4) of the HO Act, the respondent took such action without first undertaking the show cause process otherwise required by s 59(1)-(3) of the HO Act. Instead, pursuant to s 61 of the HO Act, the respondent invited a submission from the applicant about the action taken after it had been taken.[2]

[3] The applicant, through his lawyers, provided written submissions challenging the decision of the respondent and seeking a meeting for the purpose of discussions to resolve the dispute, failing which certain actions might be taken, including seeking a review of the decision by this Tribunal.[3]

[4] On 19 December 2017, the applicant filed an application to review the decision of the respondent made on 21 November 2017.

[5] On 24 May 2018, the respondent's legal representative advised the applicant that the respondent's decision made on 21 November 2017 had been revoked.[4] The respondent's legal representative invited the applicant to withdraw his application for review on the basis that the proceedings lacked utility in light of the revocation of the decision.[5] The applicant declined such invitation and instead has sought costs and/or compensation from the respondent and/or the State of Queensland.

[6] By an amended application for miscellaneous matters dated 27 July 2018, the applicant applies for the following orders:

1. That the Respondent pay all the Applicant's legal costs and out of pocket expenses incurred or paid by the Applicant as a result of the actions taken by the Respondent in the issuing of the Section 58 Notice of Immediate Registration Action and the imposed conditions and these proceedings including:

(b) all the Applicant's legal costs including disbursement payable to his solicitors ...; and

(c) that the Applicant's costs above mention be awarded in a fixed amount and/or on an indemnity basis._**

2. Such further or other orders as the Tribunal thinks just and appropriate in the circumstances.

[7] By an application for miscellaneous matters filed 1 November 2018, the applicant applies for leave to:

**_(a) include in the amended application for miscellaneous matters dated 27 July 2018 a claim for compensation under s 232 of the HO Act;

(b) join the State of Queensland as a party to the application; and

(c) seek compensation from the State of Queensland pursuant to s 232 of the HO Act "for the matters, actions and omissions of the Health Ombudsman and/or by its authorised officers" as stated in listed applications, affidavits and submissions "and for not complying with the Model Litigant Principles prescribed by the Department of Justice and Attorney General and as set out in the Federal Court's decision in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90."_**

[8] The State of Queensland has applied for leave to be represented in an application filed 11 December 2018. The applicant does not oppose the application by the State of Queensland for leave to be represented. In all circumstances, it is clearly appropriate that the State of Queensland be given leave to be legally represented pursuant to s 43(2)(b)(iv) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Tribunal orders accordingly.

[9] The applicant seeks that the respondent pay his costs of the proceedings. Such application will be the subject of future hearing and determination by the Tribunal pursuant to the provisions of chapter 2, division 6 and in particular sections 100 and 102 of the QCAT Act. This decision relates to the additional claim the applicant wishes to make pursuant to s 232 of the HO Act against the respondent and/or the State of Queensland for compensation for loss and expenses suffered and incurred as a consequence of the immediate action decision made by the respondent including, but not limited to, the cost of the proceedings.

[10] The main objects of the HO Act include the protection of the health and safety of the public, the promotion of professional, safe and competent practice by health practitioners and maintenance of public confidence in the management of complaints and other matters relating to the provision of health services.[6] The objects are to be achieved mainly by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services, including by establishing the health ombudsman.[7] The main principle for administering the HO Act is that the health and safety of the public are paramount.[8] The health and safety of the public is the main consideration for the health ombudsman when deciding what relevant action to take to deal with a complaint or other matter.[9]

[11] The provisions of part 1, division 3 provide an overview of the HO Act. Section 11(1) provides that the health ombudsman is responsible for receiving and dealing with health service complaints. Section 14 provides for ways the health ombudsman may deal with health service complaints, including assessment and investigation of complaints and, in certain circumstances, taking immediate action.

[12] The provisions of part 2 of the HO Act establish the health ombudsman[10] and state the health ombudsman's functions[11] which include receiving health service complaints and taking relevant action to deal with them under the HO Act.[12] Section 26 provides that the health ombudsman has power to do all things that are necessary or convenient to be done for or in connection with the performance of the health ombudsman's functions. The provisions of part 16, division 1 of the HO Act deal with the appointment of the health ombudsman and related matters.

[13] Part 3 of the HO Act relates to health service complaints. The health ombudsman may decide to take particular "relevant action" to deal with a complaint.[13] Relevant actions include taking immediate action under part 7 of the HO Act[14] and investigating the subject matter of the complaint under part 8 of the HO Act.[15]

[14] Part 7, division 1 of the HO Act deals with immediate registration action in relation to registered health practitioners and comprises sections 57 to 65.

[15] Section 57 provides the meaning of "immediate registration action" which relevantly includes the imposition of conditions on a practitioner's registration.

[16] Section 58 of the HO Act relevantly provides as follows:

"(1) The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if -

(a) the health ombudsman reasonably believes that -

(i) because of the practitioner's health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take the action to protect public health or safety..."

[17] Section 59 of the HO Act provides as follows:

"(1) If the health ombudsman proposes to take immediate registration action in relation to a registered health practitioner, the health ombudsman must give the practitioner a notice -

(a) stating the proposed action; and

(b) inviting the practitioner to make a submission to the health ombudsman, within a stated period of at least 7 days, about the proposed action.

(2) The practitioner may make submissions orally or in writing.

(3) The health ombudsman must have regard to any submissions made by the practitioner within the stated period before deciding whether to take immediate registration action in relation to the practitioner.

(4) However, if the health ombudsman is satisfied it is necessary to do so to ensure the health and safety of an individual or the public, the health ombudsman may take immediate registration action without complying with subsections (1) to (3)."

[18] Section 60 of the HO Act deals with the giving of notice of the immediate registration action and s 61 provides for a show cause process where immediate registration action has been taken without complying with s 59(1) to (3).

[19] Section 63 of the HO Act provides for review by QCAT of a decision to take immediate registration action.

[20] Section 64 of the HO Act requires the health ombudsman, immediately after taking immediate registration action, to take one of three alternative steps, which relevantly includes investigating the matter giving rise to the immediate action under part 8 of the HO Act.

[21] Section 65 of the HO Act relevantly provides that the health ombudsman must remove the conditions on a health practitioner's registration if, at any time after taking immediate registration action, the health ombudsman is satisfied the immediate registration action is no longer necessary on the grounds mentioned in s 58.

[22] Part 8 of the HO Act deals with investigations. Section 80(a) provides that the health ombudsman may carry out an investigation of a matter that is the subject of a health service complaint. Section 83 states that part 15 of the HO Act "provides for powers that may be exercised for the purpose of conducting an investigation."

[23] Part 10 of the HO Act deals with QCAT. Section 94(1) specifies QCAT's jurisdiction to deal with matters under the HO Act, including reviewing a decision of the health ombudsman to take immediate registration action in relation to a registered health practitioner.[16] Section 96(4) states that the QCAT Act provides for the orders that QCAT may make when exercising its review jurisdiction.

[24] The applicant seeks to rely upon s 232 of the HO Act which is found in part 15 of the HO Act. Part 15 of the HO Act deals with authorised persons. Division 1 contains general provisions about authorised persons. Section 186 provides that an authorised person has functions:

"(a) to carry out activities for the purpose of an investigation by the health ombudsman under part 8; and

(b) to investigate, monitor and enforce compliance with this Act."

[25] Section 187 provides that the health ombudsman is an authorised person and sections 188 to 194 provide for the appointment of other authorised persons.

[26] Section 195 provides as follows:

"195 References to exercise of powers

If -

(a) a provision of this part refers to the exercise of a power by an authorised person; and

(b) there is no reference to a specific power;

the reference is to the exercise of all or any authorised persons' powers under this part or a warrant, to the extent the powers are relevant."

[27] Part 15, division 2 of the HO Act contains provisions dealing with the powers of authorised persons to enter places and division 3 deals with other powers including search, seizure, and forfeiture of things. Part 15, division 5 deals with information-obtaining powers of authorised persons.

[28] Part 15, division 6 of the HO Act relevantly includes sections 230 to 232. Section 230 provides as follows:

"230 Duty to avoid inconvenience and minimise damage

In exercising a power, an authorised person must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible.

Note -

See also section 232."

"(a) an authorised person damages something when exercising, or purporting to exercise, a power; or

(b) a person... acting under the direction or authority of an authorised damages something."

[30] Section 231(3) requires an authorised person to give notice of the damage to the person who appears to be an owner or person in control of the thing.

[31] Section 232 of the HO Act provides as follows:

"232 Compensation

(1) A person may claim compensation from the State if the person incurs loss because of the exercise, or purported exercise, of a power by or for an authorised person including a loss arising from compliance with a requirement made of the person under division 3 or 5.

(2) However, subsection (1) does not include loss arising from a lawful seizure or a lawful forfeiture.

(3) The compensation may be claimed and ordered in a proceeding -

(a) brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b) for an alleged offence against this Act, the investigation of which gave rise to the claim for compensation.

(4) A court may order the payment of compensation only if it is satisfied it is just to make the order in the circumstances of the particular case.

(5) In considering whether it is just to order compensation, the court must have regard to any relevant offence committed by the claimant.

(6) A regulation may prescribe other matters that may, or must, be taken into account by the court when considering whether it is just to order compensation.

(7) Section 230 does not provide for a statutory right of compensation other than is provided by this section.

(8) In this section -

loss includes costs and damage."

[32] Section 287 of the HO Act provides as follows:

"(1) An official is not civilly liable to someone for an act done, or omission made, honestly and without negligence under this Act.

(2) If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State.

[33] The dictionary in schedule 1 of the HO Act defines "official" as including the health ombudsman.

[34] Section 9 of the QCAT Act provides as follows:

"(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

(3) Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.

(4) The tribunal may do all things necessary or convenient for exercising its jurisdiction."

[35] Section 10 of the QCAT Act provides as follows:

(a) the jurisdiction conferred on the tribunal by section 11; and

(b) the jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance.

(2) The tribunal's original jurisdiction under subsection (1)(b) includes jurisdiction conferred on the tribunal under an enabling Act to review a decision of the tribunal made under the enabling Act."

[36] Section 11 of the QCAT Act confers jurisdiction to hear and determine a "minor civil dispute", which term is defined in the dictionary in schedule 3 of the QCAT Act in terms that do not encompass a claim for compensation pursuant to s 232 of the HO Act.

[37] The provisions of chapter 2, division 3 of the QCAT Act deal with the exercise of the review jurisdiction of the Tribunal and would have applied to the Tribunal's review of the respondent's decision to take immediate registration action, had that review proceeded.

The submissions of the parties and the State of Queensland

[38] The applicant has made detailed submissions critical of the conduct of the respondent in making the initial decision to take immediate action, challenging whether the respondent had formed a reasonable belief as required by s 58 of the HO Act. The applicant also criticises the conduct of the respondent in conducting the subsequent investigation of the health service complaint, including whether the respondent should have revoked the immediate action decision at an earlier point in time. The applicant claims that he suffered significant loss and damage as a consequence. The applicant argues that he should have leave to pursue a claim for compensation pursuant to s 232 of the HO Act against the respondent as representative of the State of Queensland or, alternatively, against the State of Queensland.

[39] The applicant submits that the respondent's decisions were informed by misleading information obtained by investigators who conducted a flawed, incompetent and biased investigation. The applicant argues that the investigators were "authorised persons" appointed according to the provisions of part 15, division 1 of the HO Act and carrying out activities for the purpose of an investigation by the respondent under part 8 of the HO Act as provided by s 186. The applicant submits that the authorised persons exercised powers to require information pursuant to s 228 of the HO Act in the course of their investigations. This was "the exercise of a power by an authorised person" within the meaning of that term as defined by s 195 of the HO Act. Accordingly, the applicant has suffered loss "because of the exercise, or purported exercise, of a power by or for an authorised person" within the terms of s 232 of the HO Act. Further, the applicant submits, the terms of s 232 of the HO Act are wide enough to encompass the conduct of the respondent who is also an authorised person.[17]

[40] The respondent makes no submissions with respect to whether the State of Queensland should be joined and abides the order of the Tribunal. Insofar as any claim for compensation under s 232 of the HO Act made against the respondent, the respondent submits that such claim should be dismissed because the respondent is not a proper respondent to such a claim as any claim for compensation under s 232 of the HO Act must be made against the State of Queensland.

[41] The State of Queensland submits that leave should not be granted to join the State of Queensland as any claim for compensation by the applicant under s 232 of the HO Act is misconceived and cannot succeed because the terms of s 232 do not encompass the conduct of the respondent of which the applicant complains.

[42] The State of Queensland submits that the only relevant jurisdiction conferred on

QCAT pursuant to s 94 of the HO Act is to review a decision of the respondent to take immediate registration action in relation to a registered health practitioner. That jurisdiction does not extend to a review of how an investigation under part 8 of the HO Act was undertaken subsequent to the exercise of power under s 58 of the HO Act.

[43] As regards s 232 of the HO Act, the State of Queensland submits that the exercise of power by the respondent under s 58 is not an exercise of power compensable under s 232. Having regard to the meaning of "the exercise of a power by an authorised person" as defined by s 195 of the HO Act, the power exercised must be a power conferred by a provision in part 15 of the HO Act for s 232 to be engaged. The Respondent exercised a power under s 58 in part 7 of the HO Act.

[44] The State of Queensland refers to the applicant's pleading of a breach of "model litigant principles" and submits that such an alleged breach cannot found a claim pursuant to s 232 of the HO Act (not being an exercise of power or a purported exercise of power under part 15 of the HO Act) and cannot give rise to a separate claim at general law because no such cause of action exists at common law and, even if such cause of action were to be established, it would not fall within the jurisdiction of QCAT conferred by s 10 of the QCAT Act.

[45] The ultimate question for the Tribunal is whether the applicant has an arguable claim against the respondent or the State of Queensland for compensation pursuant to s 232 of the HO Act. For the purpose of determining that question, I proceed on the basis that the applicant has a reasonably arguable case that he incurred loss as a consequence of the respondent taking immediate registration action.

[46] Section 232 of the HO Act provides that a person may claim compensation from "the State" in certain circumstances. The operation of the provisions of the HO Act dealing with the establishment and appointment of the health ombudsman make it quite clear that the respondent cannot reasonably be argued to be "the State" for the purposes of s 232 of the HO Act. The respondent is a statutory office holder and not part of, or capable of being representative of, the State of Queensland for the purposes of a claim pursuant to s 232 of the HO Act. Any claim pursuant to s 232 of the HO Act may only be made against the State of Queensland. The applicant should not have leave to amend to include a claim for compensation from the respondent pursuant to s 232 of the HO Act. Accordingly, leave to amend in such a way will be refused.

[47] I turn to the applications to amend to include a claim for compensation from the State of Queensland pursuant to s 232 of the HO Act and, for that purpose, to join the State of Queensland as a party to the proceedings.

[48] Section 232 of the HO Act permits such a claim where the person incurs loss "because of the exercise, or purported exercise, of a power by or for an authorised person including a loss arising from compliance with a requirement made of the person under division 3 or 5" (of part 15 of the HO Act). The exercise, or purported exercise, of power, relevantly, must be of a power under part 15 of the HO Act.[18] I think it unlikely that the terms of s 232, when read with s 195 of the HO Act, would permit a claim for compensation for loss incurred as a consequence of the decision of the respondent to take immediate registration action pursuant to s 58 (in part 7 of the HO Act) or to further investigate under part 8 of the HO Act. I am of that view despite the ingenious argument of the applicant that s 232 provides such a remedy because the respondent's decisions were informed by information obtained by the respondent's investigators' exercise of powers under part 15 of the HO Act. In my view, s 232 of the HO Act is concerned with loss as a direct consequence of the exercise by an authorised person of a power under a warrant or under a provision in part 15 of the HO Act, for example, an authorised person's forcible entry of a place pursuant to a warrant issued pursuant to s 203 or seizure of property pursuant to sections 212 or 213. Such view is supported by the context of the other provisions of part 15, division 6 of the HO Act. However, I do not need to form a concluded view on such matter because I have concluded that the Tribunal has no jurisdiction to hear and determine such a claim even if one did exist. For that reason, it is neither necessary nor appropriate that I conclude that the applicant could not make the claim he advances in a court with jurisdiction to hear and determine such a claim.

[49] The Tribunal is a creature of statute and has such jurisdiction as is conferred by the QCAT Act and enabling Acts. Section 232(3)(a) of the HO Act provides that compensation may be claimed and ordered in a proceeding brought in a court with jurisdiction for the recovery of the amount of compensation claimed. Such provision in general terms is to be contrasted with the specific conferral of jurisdiction on the Tribunal over certain matters by s 94 of the HO Act and the prescription of orders that the Tribunal may make by s 96 of the HO Act. Section 232(3)(a) of the HO Act cannot properly be construed as conferring jurisdiction on the Tribunal within the terms of sections 9 or 10 of the QCAT Act. No other provisions of the QCAT Act or any other Act confer original jurisdiction on the Tribunal to hear and determine a claim pursuant to s 232 of the HO Act. The provisions of chapter 2, division 3 of the QCAT Act which deal with the exercise of the review jurisdiction of the Tribunal do not provide jurisdiction to the Tribunal to deal with such a claim as part of, or ancillary to, the application to review the decision of the respondent to take immediate registration action.

[50] I do not understand the applicant, by referring to an alleged breach of "model litigant principles", to be arguing a proposed separate cause of action but rather referring to such alleged conduct as part of the proposed claim pursuant to s 232 of the HO Act. In the event I am mistaken in that regard, I accept the submissions of the State of Queensland that the Tribunal has no jurisdiction to hear and determine such a cause of action, even if it might exist at common law.

[51] The Tribunal does not have jurisdiction to hear and determine a claim pursuant to s 232 of the HO Act. The applicant should not have leave to amend to include a claim for compensation from the State of Queensland pursuant to s 232 of the HO Act. Accordingly, leave to amend in such a way will be refused and the application to join the State of Queensland as a party to the proceedings will be refused.

[1] Although not relevant to this decision, I note that the applicant contends that the health service giving rise to the notification was provided by him, not in his capacity as a registered Chinese Medicine Practitioner, but as a health service not related to his registration: see, for example, the letter from the applicant's lawyers to the respondent dated 15 December 2017 at page 5.

[2] Letter from the respondent to the applicant dated 21 November 2017.

[3] Letter from the applicant's lawyers to the respondent dated 15 December 2017.

[4] Presumably by removal of the conditions on the applicant's registration pursuant to s 65 of the HO Act.

[5] Email from the respondent's legal representative to the applicant's solicitor and counsel dated 24 May 2018.