Queensland: Health Ombudsman Act 2013 (Qld)

Health Ombudsman Act 2013 An Act to establish a health ombudsman and to provide for a system for dealing with complaints and other matters relating to the health, conduct or performance of health practitioners and the services provided by health service organisations Part 1 Preliminary Division 1 Introductory 1 Short title This Act may be cited as the Health Ombudsman Act 2013. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Main objects (1) The main objects of this Act are— (a) to protect the health and safety of the public; and (b) to promote— (i) professional, safe and competent practice by health practitioners; and (ii) high standards of service delivery by health service organisations; and (c) to maintain public confidence in the management of complaints and other matters relating to the provision of health services. (2) 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— (a) establishing the health ombudsman with the functions set out in section 25; and (b) providing for the effective and efficient interaction of this Act and the National Law; and (c) providing for the system to be effectively monitored by the Minister and the parliamentary committee. 4 Paramount guiding principle (1) The main principle for administering this Act is that the health and safety of the public are paramount. (2) Without limiting subsection (1), the health and safety of the public is the main consideration for— (a) the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; and (b) the director of proceedings, when deciding whether to refer a matter to QCAT; and (c) QCAT, when deciding a matter referred to it under this Act. 5 Act binds all persons (1) This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and all the other States. (2) Subsection (1) does not make the State, the Commonwealth or another State liable for an offence. Division 2 Interpretation 6 Dictionary The dictionary in schedule 1 defines particular words used in this Act. 7 Meaning of health service (1) A health service is a service that is, or purports to be, a service for maintaining, improving, restoring or managing people's health and wellbeing. (2) A health service may be provided to a person at any place including a hospital, residential care facility, community health facility or home. (3) A health service includes a support service for a service mentioned in subsection (1). (4) Also, without limiting subsection (1), a health service includes— (a) a service dealing with public health, including a program or activity for— (i) the prevention and control of disease or sickness; or (ii) the prevention of injury; or (iii) the protection and promotion of health; and Example of health service mentioned in paragraph (a)— a cancer screening program (b) a service providing alternative or complementary medicine; and (c) a service prescribed under a regulation to be a health service. (5) A health service does not include a service prescribed under a regulation not to be a health service. 8 Meaning of health service provider A health service provider is— (a) an individual (a health practitioner) who is— (i) a health practitioner under the National Law; or (ii) another individual who provides a health service; or (b) an entity, other than an individual, who provides a health service (a health service organisation). Examples of health service organisations— • a corporation providing a health service at a private health facility under the Private Health Facilities Act 1999 • a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17 • an ambulance service • a medical, dental, pharmaceutical or physiotherapy practice Division 3 Overview of Act 9 Purpose of div 3 This division gives an overview of this Act. 10 Relationship with the National Law (1) This Act should be read in conjunction with the Health Practitioner Regulation National Law (Queensland) (referred to in this Act as the National Law). (2) The National Law establishes a registration and accreditation scheme for health practitioners. (3) Both this Act and part 8 of the National Law include provisions about the health, conduct and performance of registered health practitioners. (4) Decisions of the health ombudsman and QCAT under this Act that affect the registration of health practitioners are given effect under the National Law. 11 Health ombudsman (1) The health ombudsman is responsible for receiving and dealing with health service complaints. (2) The health ombudsman also deals with other matters, including investigating systemic issues in the health system. 12 Director of proceedings The director of proceedings (who is a staff member of the Office of the Health Ombudsman) is responsible for taking proceedings against health practitioners before QCAT. 13 Making health service complaints (1) A person may make a complaint to the health ombudsman under this Act about a service provided by a health practitioner or a health service organisation. (2) The National Law provides for voluntary and mandatory notifications about registered health practitioners which are made to the health ombudsman and dealt with under this Act as health service complaints. 14 Dealing with health service complaints and other matters (1) The health ombudsman may assess a complaint to decide the most appropriate action to take. (2) The health ombudsman may facilitate local resolution of a complaint between the complainant and the relevant health service provider. (3) If the health ombudsman is satisfied there is a serious risk to persons and it is necessary to protect public health or safety, the health ombudsman may take immediate action to deal with a matter by— (a) for a registered health practitioner— (i) suspending, or imposing conditions on, the practitioner's registration; or (ii) accepting undertakings from the practitioner; or (b) for another health practitioner—prohibiting, or imposing restrictions on, the practitioner's practice. (4) The health ombudsman may investigate a matter, using the investigation powers under this Act, and prepare a report on the investigation. (5) The health ombudsman may make an order prohibiting a health practitioner other than a registered health practitioner from practising, or imposing restrictions on the practitioner's practice. (6) The health ombudsman may refer a matter concerning a registered health practitioner to the director of proceedings for decision about whether proceedings should be taken against the practitioner before QCAT. (7) The health ombudsman may refer a complaint or matter concerning a registered health practitioner to the National Agency to be dealt with under the National Law (except for certain serious matters). (8) The health ombudsman may conciliate a complaint, which may lead to the parties entering a confidential legally binding settlement. (9) The health ombudsman may conduct an inquiry into a complaint or other matter, using the inquiry powers under this Act, and prepare a report on the inquiry. (10) The health ombudsman may refer a complaint or matter to another State or Commonwealth entity that has a function to deal with it. 15 Timeliness (1) This Act states timeframes in which the health ombudsman and other entities must take particular actions in relation to complaints. (2) Investigations must generally be completed within 1 year but 3 month extensions (recorded on a public register) are permitted. 16 Disciplinary orders of QCAT and other jurisdictions (1) After hearing a matter concerning a registered health practitioner, the orders that QCAT may make include suspending or cancelling the practitioner's registration, imposing conditions on the practitioner's registration or requiring the practitioner to pay a fine. (2) Orders of other jurisdictions that prohibit a health practitioner other than a registered health practitioner from practising, or impose restrictions on the practitioner's practice, also apply in Queensland. 17 Keeping complainants and providers informed The health ombudsman must keep complainants and health service providers informed by— (a) giving a notice when the health ombudsman decides to take particular relevant action to deal with a complaint; and (b) giving progress reports, at not less than 3 monthly intervals, of the progress of an investigation. 18 Minister's role (1) The Minister oversees the administration of the health service complaints management system, including the performance of the health ombudsman, the National Agency and the National Boards under the system. (2) The Minister may direct the health ombudsman to investigate a particular matter or hold an inquiry about a particular matter. (3) The health ombudsman, the National Agency and National Boards must give information and reports about particular matters to the Minister on request. (4) The Minister may ask the health ombudsman to prepare and publish performance reports for the health ombudsman, the National Agency or the National Boards. 19 Parliamentary committee's role The parliamentary committee— (a) monitors the operation of the health service complaints management system, including the performance of the health ombudsman, the National Agency and the National Boards under the system; and (b) advises the Minister in relation to the appointment of the health ombudsman. Division 4 Application of Act to persons whose status changes 20 Application of Act to former health service providers (1) This section applies if an entity was, but is no longer, a health service provider. (2) A complaint may be made, and a complaint or other matter may be dealt with, under this Act in relation to the entity's behaviour while the entity was a health service provider as if the entity were still a health service provider. (3) For the purposes of subsection (2), this Act applies, with any necessary changes, to the entity as if a reference to a health service provider included the entity. 21 Application of Act to former registered health practitioners (1) This section applies if a person was, but is no longer, a registered health practitioner. (2) A complaint may be made, and a complaint or other matter may be dealt with, under this Act in relation to the person's behaviour while the person was a registered health practitioner as if the person were still a registered health practitioner. (3) For the purposes of subsection (2), this Act (other than part 7, division 1) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. Note— See the National Law, section 138, for the application of part 8 of the National Law in relation to a person who is no longer registered in a health profession under the National Law. 22 Application of Act to persons formerly registered under corresponding prior Act (1) This section applies if a person is not a registered health practitioner but the person was registered in a health profession under a corresponding prior Act. (2) A complaint may be made, and a complaint or other matter may be dealt with, under this Act in relation to the person's behaviour while the person was registered under the corresponding prior Act as if the person were a registered health practitioner. (3) However, subsection (2) applies only to the extent— (a) a complaint about the person's behaviour could have been made under the corresponding prior Act; and (b) the action taken under this Act to deal with the matter could have been taken under the corresponding prior Act. (4) For the purposes of subsection (2), this Act (other than part 7, division 1) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. Note— See the National Law, section 139, for the application of part 8 of the National Law in relation to a person who was registered in a health profession under a corresponding prior Act and is not, and has not been, registered in a health profession under the National Law. (5) In this section— corresponding prior Act see the National Law, section 5. 23 Matters may be dealt with despite death of relevant person (1) This section applies if— (a) a person dies and, if the person were alive, the person could make a health service complaint about a particular matter; or (b) a person makes a health service complaint but dies before the complaint is finally dealt with; or (c) a health service complaint could be made for which a person would be the relevant health service provider but the complaint is not made before the person dies; or (d) a health service complaint is made for which a person is the relevant health service provider but the person dies before the complaint is finally dealt with; or (e) a person dies and a matter concerning the person— (i) was being dealt with, but had not been finally dealt with, under this Act when the person died; or (ii) was not being, but was a matter that could have been, dealt with under this Act at the time the person died. (2) If subsection (1)(a) applies, a health service complaint may be made on behalf of the person. (3) If subsection (1)(b) applies, the health ombudsman may, at another person's request, permit the other person to be substituted as the complainant. (4) If subsection (1)(c) applies, a health service complaint may be made for which the person is the relevant health service provider. (5) The health ombudsman or another entity may deal with (or continue to deal with) a health service complaint or other matter mentioned in subsection (1) to (4) under this Act in the way the health ombudsman or other entity considers appropriate. Examples— 1 If a registered health practitioner provides a health service to a person and the person dies— (a) a member of the person's family may make a health service complaint on the person's behalf; and (b) the health ombudsman may refer the complaint to the director of proceedings who may refer it to QCAT; and (c) QCAT may hear the matter and decide to impose a condition on the practitioner's registration. 2 A health service complaint is made about a health service practitioner but the practitioner dies before the complaint is finally dealt with under this Act. The health ombudsman may carry out an investigation under part 8 of a matter to which the complaint relates to identify systemic issues with the provision of health services. Part 2 Health ombudsman 24 Establishment There is to be a Health Ombudsman. Note— For provisions about the health ombudsman's appointment and related matters, see part 16, division 1. 25 Functions The health ombudsman's functions are— (a) to receive health service complaints and take relevant action to deal with them under this Act; and (b) to identify and deal with health service issues by undertaking investigations, inquiries and other relevant action; and (c) to identify and report on systemic issues in the way health services are provided, including issues affecting the quality of health services; and (d) to monitor the National Boards' and National Agency's performance of their functions relating to the health, conduct and performance of registered health practitioners who provide health services in Queensland; and (e) to provide information to the public, health practitioners and health service organisations about— (i) providing health services in a way that minimises health service complaints; and (ii) resolving health service complaints; and (f) to report to the Minister and the parliamentary committee about— (i) the administration of the health service complaints management system; and (ii) the performance of the health ombudsman's functions; and (iii) the performance of the National Boards' and National Agency's functions relating to the health, conduct and performance of registered health practitioners who provide health services in Queensland; and (g) to publish reports about the health service complaints management system. 26 General powers 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. 27 How health ombudsman must act In performing the health ombudsman's functions, the health ombudsman must act independently, impartially and in the public interest. 28 Health ombudsman generally not subject to direction (1) The Minister may give a direction to the health ombudsman under section 81 (to undertake an investigation) or 152 (to conduct an inquiry) and may require the provision of reports and other information under part 13. (2) Otherwise, the health ombudsman is not subject to direction by anyone about how the health ombudsman performs the health ombudsman's functions. 29 Advisory committees and panels To support the performance of the health ombudsman's functions, the health ombudsman may establish committees and panels of appropriately qualified persons to advise the health ombudsman about clinical matters or health consumer issues. Examples— 1 The health ombudsman may establish a panel of medical experts and consult a member of the panel before taking immediate action against a health practitioner under part 7. 2 The health ombudsman may establish a committee to provide the health ombudsman with advice during an investigation of a systemic issue relating to the provision of a particular health service. 30 Cooperation with other entities The health ombudsman must consult and cooperate with other public entities with functions that are relevant to, or may impact on, the health ombudsman's functions, including, for example, any of the following entities— (a) the Queensland Human Rights Commission established under the Anti-Discrimination Act 1991; (b) the Australian Human Rights Commission; (c) the Australian Privacy Commissioner; (d) the public guardian under the Public Guardian Act 2014; (e) the Crime and Corruption Commission; (f) the information commissioner and RTI commissioner under the Right to Information Act 2009; (g) the privacy commissioner under the Information Privacy Act 2009; (h) the National Agency and National Boards; (i) the ombudsman under the Ombudsman Act 2001; (j) the Queensland Police Service; (k) the State Coroner. Part 3 Health service complaints Division 1 Preliminary 31 Meaning of health service complaint A health service complaint is a complaint about a health service or other service provided by a health service provider. Examples of matters that may be the subject of a health service complaint— • the health, conduct or performance of a health practitioner while providing a health service • the treatment or care provided to an individual by a health service organisation or employee of a health service organisation • the adequacy of a response by a health service provider to a complaint made to the provider about a particular service provided by an employee of the provider • the level of compliance by a health service provider with accepted standards of professional conduct, having regard to any relevant prescribed conduct documents Division 2 Making and dealing with a complaint 32 Who may make a complaint Any person may make a health service complaint. Examples of persons who may make a health service complaint— • an individual to whom a health service is provided • a parent, guardian or other representative of an individual to whom a health service is provided • a health practitioner with concerns about the health, conduct or performance of another practitioner 33 How to make a complaint (1) A person may make a complaint to the health ombudsman— (a) orally, including by telephone; or (b) in writing, including by email or other electronic means. (2) If a complaint is made orally— (a) the health ombudsman must make a record of the complaint; and (b) if the health ombudsman decides not to accept the complaint at the time it is made and gives notice of the decision as mentioned in section 278(2), the health ombudsman must include details of the decision in the record made under paragraph (a). (3) On request, the health ombudsman must give a person reasonable assistance to make a complaint. 34 Complainant may be asked to confirm complaint or give further information (1) If a complaint is made orally, the health ombudsman may ask the complainant to confirm the complaint in writing. (2) The health ombudsman may ask the complainant for any of the following information— (a) the complainant's name and address; (b) other identifying information about the complainant; (c) the basis for the complaint; (d) information relevant to the complaint that the health ombudsman needs to deal with the complaint under this Act. (3) The health ombudsman may ask the complainant to verify by statutory declaration any information the complainant has given the health ombudsman. (4) A request may include a stated reasonable period for complying with the request. (5) The health ombudsman is not required to deal with the complaint, or deal further with the complaint, until the complainant complies with a request to the extent the complainant is reasonably able to comply. Note— Also, under section 44(1)(b)(i), a complainant's non-compliance with a request may be a ground on which the health ombudsman decides to take no further action on the complaint. 35 Deciding how to proceed generally (1) Within 7 business days after receiving a complaint, the health ombudsman must— (a) decide— (i) to accept the complaint and take particular relevant action to deal with the matter of the complaint; or (ii) to accept the complaint and take no further action in relation to it; or Note— See section 44 for the grounds on which the health ombudsman may decide to take no further action on a complaint. (iii) not to accept the complaint; and (b) give notice of the decision to the complainant and relevant health service provider under section 278. (2) For deciding the number of business days for subsection (1), the following days are not counted— (a) any business days on which there is an outstanding requirement under section 34; (b) any business days necessary to comply with division 2A for the complaint. 35A Non-acceptance of complaint The health ombudsman may decide not to accept a complaint if the health ombudsman is satisfied— (a) the complaint would be more appropriately dealt with by an entity other than the health ombudsman or an entity to whom the health ombudsman may refer the complaint under this Act; or (b) the complainant has not sought a resolution of the complaint with the relevant health service provider and it is reasonable in the circumstances for the complainant to first seek the resolution. Division 2A Dealing with complaint concerning registered health practitioner 35B Application of division (1) This division applies if the health ombudsman accepts a complaint concerning the health, conduct or performance of a registered health practitioner. (2) Nothing in this division prevents the health ombudsman deciding to take immediate action under part 7 in relation to the complaint. 35C Notifying National Agency of complaint (1) The health ombudsman must, as soon as practicable after accepting the complaint— (a) notify the National Agency that the health ombudsman has accepted the complaint; and (b) give to the National Agency— (i) a copy of the complaint or, if the complaint was not made in writing, a copy of the health ombudsman's record of the details of the complaint; and (ii) any other information the health ombudsman has that is relevant to the complaint. (2) The National Agency may give the health ombudsman the Agency's preliminary view about how the complaint should be dealt with within 5 business days after the Agency is notified of the complaint. 35D Dealing with complaint if no preliminary view (1) This section applies if the National Agency does not provide a preliminary view about how the complaint should be dealt with within the period stated in section 35C(2). (2) The health ombudsman may deal with the complaint under this Act without further consulting the National Agency, other than to the extent required under division 2B. 35E Dealing with complaint if agreement on preliminary view (1) This section applies if the National Agency provides a preliminary view about how the complaint should be dealt with within the period stated in section 35C(2) and the health ombudsman agrees with the preliminary view. (2) The health ombudsman must ensure the way the complaint is dealt with under this Act is consistent with the agreed view. 35F Further negotiation if disagreement on preliminary view (1) This section applies if the National Agency provides a preliminary view about how the complaint should be dealt with within the period stated in section 35C(2) and the health ombudsman does not agree with the preliminary view. (2) The health ombudsman must attempt to reach agreement with the National Agency about how the complaint is to be dealt with within 15 business days after the Agency gives its preliminary view. 35G Dealing with complaint if no agreement after further negotiation or no further negotiation (1) This section applies if the health ombudsman and National Agency do not reach an agreement about how the complaint should be dealt with under section 35F. (2) The health ombudsman must deal with the complaint as follows— (a) if the health ombudsman believes the complaint indicates a serious matter within the meaning of section 91C— (i) the health ombudsman must not refer the serious matter to the National Agency and must deal with the serious matter under this Act; and (ii) the health ombudsman must deal with any other matter arising from the complaint as mentioned in paragraph (b) to (d) as if the other matter were the subject of a separate complaint; (b) if the health ombudsman believes the complaint should be the subject of an assessment under part 5, an investigation under part 8 or a referral to the director of proceedings under part 10, division 2—the health ombudsman must not refer the complaint to the National Agency and must deal with the complaint under this Act; (c) if neither paragraph (a) nor (b) applies and the health ombudsman, or the National Agency, believes the complaint should be referred to the National Agency—the health ombudsman must refer the complaint to the National Agency to deal with under the National Law; (d) otherwise—the health ombudsman must deal with the complaint under this Act, whether or not in further consultation with the National Agency. 35H Dealing with complaint if agreement after further negotiation (1) This section applies if the health ombudsman and National Agency reach an agreement about how the complaint should be dealt with under section 35F. (2) The health ombudsman must ensure the way the complaint is dealt with under this Act is consistent with the agreement. Division 2B Proposal to take no further action in relation to registered health practitioner 35I Application of division (1) This division applies if— (a) the health ombudsman— (i) accepts a complaint concerning the health, conduct or performance of a registered health practitioner; and (ii) proposes to take no further action in relation to the complaint; and (b) the subject matter of the complaint has not been referred to the National Agency under another provision of this Act or the National Law. (2) However, this division does not apply if the proposal is consistent with the preliminary view, about how the complaint should be dealt with, provided by the National Agency under division 2A. 35J Notifying National Agency of proposal The health ombudsman must, as soon as practicable after forming the proposal— (a) notify the National Agency that the health ombudsman proposes to take no further action in relation to the complaint, and include in the notification the health ombudsman's reasons for the proposal; and (b) give to the National Agency— (i) a copy of the complaint or, if the complaint was not made in writing, a copy of the health ombudsman's record of the details of the complaint; and (ii) any other information the health ombudsman has that is relevant to the complaint. 35K National Agency may request referral (1) The National Agency may ask the health ombudsman to refer the subject matter of the complaint to the Agency, to be dealt with under the National Law, within 7 business days after the Agency is notified of the health ombudsman's proposal under section 35J. (2) The health ombudsman must comply with a request made under subsection (1). (3) If the health ombudsman refers a matter to the National Agency under this section, the health ombudsman must give notice of the referral to the complainant and the registered health practitioner. 35L Dealing with complaint if no referral If the National Agency does not make a request under section 35K within the period stated in that section, the health ombudsman may deal with the complaint under this Act without further consulting the National Agency. Division 3 Other matters dealt with as complaints 36 Notifications under the National Law Under the National Law, section 146, this Act applies to a notification made to the health ombudsman under the National Law, part 8, division 2 or 3, as if the notification were a complaint made under division 2 of this part. 37 Matters referred by other entities (1) This section applies if the health ombudsman— (a) becomes aware of a particular matter, other than a health service complaint, by way of— (i) a referral under the National Law from the National Agency or a National Board; or (ii) information received from a government entity; and (b) decides to take relevant action to deal with the matter. (2) The health ombudsman may, with a person's agreement, deal with the matter as if it were a complaint and the person were the complainant. Example— When investigating a health care related death under the Coroners Act 2003, a coroner becomes aware of a matter that may be dealt with under this Act and brings the matter to the attention of the health ombudsman. With the agreement of a member of the family of the person who died, the health ombudsman may deal with the matter as if it were a complaint and the family member were the complainant. Part 4 How complaints and other matters are dealt with 38 Meaning of relevant action (1) Each of the following is a relevant action for dealing with a health service complaint— (a) assessing the complaint under part 5; (b) facilitating local resolution of the complaint under part 6; (c) taking immediate action under part 7; (d) investigating the subject matter of the complaint under part 8; (e) issuing a prohibition order under part 8A; (f) referring the complaint to the National Agency or an entity of the State, another State or the Commonwealth under part 9; (g) for a health service complaint concerning a registered health practitioner, referring the complaint to the director of proceedings under part 10, division 2 for decision about whether to refer the complaint to QCAT; (h) conciliating the complaint under part 11; (i) carrying out an inquiry into the subject matter of the complaint under part 12. (2) However, the health ombudsman may deal with a complaint by facilitating local resolution of it, or conciliating it, only if— (a) it relates to the provision of a health service to the complainant; or (b) the complainant has made the complaint on behalf of someone else and the health ombudsman is satisfied the complainant has a sufficient interest in it, for example, because— (i) the complaint concerns a health service provided to a child and the complainant is the child's parent; or (ii) the complaint concerns a health service provided to a person with impaired capacity and the complainant is the person's guardian under the Guardianship and Administration Act 2000; or (iii) the complaint concerns a health service provided to a person who has died and the complainant is a member of the person's family; or (iv) the complaint concerns a health service provided to another person who has asked the complainant to make the complaint. (3) Each of the following is a relevant action for dealing with a matter relating to a health service other than as part of a health service complaint— (a) taking immediate action under part 7; (b) investigating the matter under part 8; (c) issuing a prohibition order under part 8A; (d) referring the matter to the National Agency or an entity of the State, another State or the Commonwealth under part 9; (e) for a matter relating to a registered health practitioner, referring the matter to the director of proceedings under part 10, division 2 for decision about whether to refer the matter to QCAT; (f) carrying out an inquiry into the matter under part 12. 39 Relevant action not limited to complaints (1) The health ombudsman may take relevant action to deal with a matter whether or not a health service complaint has been made about the matter. (2) The health ombudsman's power to take relevant action to deal with a health service complaint (other than facilitating local resolution of it or conciliating it) is not affected if the complaint is withdrawn. 40 Relevant action relating to more than 1 matter (1) In making a decision about taking relevant action in relation to a health service provider, the health ombudsman may consider 2 or more health service complaints or other matters relating to the provider. Example— The health ombudsman may take immediate action under part 7 in relation to a practitioner on the basis of information about the practitioner's conduct arising from 2 or more complaints. (2) The health ombudsman may deal with 2 or more matters relating to a health service provider together, including by giving a notice under this Act that relates to 2 or more complaints or taking a particular relevant action to deal with 2 or more complaints together. 41 Complaints may be split The health ombudsman may deal separately with 2 or more matters arising from a complaint, including by dealing with a complaint concerning 2 or more health practitioners as if a separate complaint had been made for each practitioner. 42 More than 1 relevant action may be taken The health ombudsman may take more than 1 relevant action to deal with a matter. 43 Relevant action may be taken despite proceedings The health ombudsman may take relevant action to deal with a matter despite a proceeding before any court or tribunal, unless a court or tribunal with the necessary jurisdiction orders otherwise. 43A Relevant action may be taken despite referral The health ombudsman may take action under part 6 in relation to a health service complaint or other matter despite referring the complaint or matter to— (a) the National Agency under part 9, division 1; or (b) an entity of the State, another State or the Commonwealth under section 92. 44 Decision to take no further action on a matter (1) At any time, the health ombudsman may decide to take no further action on a health service complaint or other matter if the health ombudsman reasonably considers— (a) the complaint or other matter— (i) is frivolous, vexatious, trivial or not made in good faith; or (ii) is misconceived or lacking in substance; or (iii) is being adequately dealt with by another appropriate entity; or (iv) has been resolved or otherwise appropriately finalised by the health ombudsman or another appropriate entity; or (v) despite reasonable efforts by the health ombudsman or another appropriate entity, cannot be resolved; or (b) for a complaint— (i) the complainant has failed, without reasonable excuse, to— (A) satisfactorily cooperate with attempts made or arranged by the health ombudsman to resolve the complaint; or (B) comply with a request from the health ombudsman for information the health ombudsman needs to properly deal with the complaint; or (ii) the complaint is withdrawn; or (iii) the matter of the complaint arose, and the complainant was aware of the matter, at least 2 years before the complaint was made. (2) However, subsection (1)(b)(iii) does not apply if the health ombudsman reasonably considers— (a) a registered health practitioner may have behaved in a way that constitutes professional misconduct; or (b) another ground may exist for the suspension or cancellation of a registered health practitioner's registration. (3) The health ombudsman may decide to take no further action on a matter if a complainant, health service provider or other relevant person dies and the health ombudsman reasonably considers it would be appropriate to take no further action. Part 5 Assessment of complaints 45 Application of pt 5 This part applies if the health ombudsman decides to assess a health service complaint under this part. 46 How assessment is made (1) The purpose of the assessment is to obtain and analyse information relevant to the complaint and decide the most appropriate way to further deal with it. (2) The assessment may be made in the ways the health ombudsman considers appropriate including, for example— (a) analysing information provided with the complaint; and (b) considering submissions received under section 47 from the complainant or relevant health service provider; and (c) analysing information obtained under section 48 from the complainant, relevant health service provider and others; and (d) communicating with the complainant or relevant health service provider; and (e) consulting with an entity with relevant technical expertise about the matter of the complaint. 47 Submissions (1) The health ombudsman may give a notice to the complainant or the relevant health service provider inviting submissions about the complaint to be given to the health ombudsman within a stated period. (2) The stated period for giving submissions must be reasonable but must not be more than 10 business days after the notice is given. (3) The health ombudsman must consider each submission received within the stated period. 48 Power to require information (1) For the purpose of the assessment, the health ombudsman may, by notice given to the complainant, relevant health service provider or any other person, require the person to give stated information to the health ombudsman within a stated period. Example— For the purpose of assessing a complaint about a health practitioner, the health ombudsman may give a notice to the practitioner's employer requiring the employer to give particular patient files to the health ombudsman. (2) The stated period for giving the information must be reasonable but must not be more than 10 business days after the notice is given. (3) The person must comply with the notice unless the person has a reasonable excuse. Maximum penalty—50 penalty units. (4) It is a reasonable excuse for an individual not to give information that giving the information might tend to incriminate the individual. (5) In this section— information includes a document. 49 Period for completing assessment (1) The health ombudsman must complete the assessment within 22 business days after deciding to carry out the assessment. (2) However, the health ombudsman may extend the period for assessing the complaint by a further period of up to 22 business days if necessary because of— (a) the size or complexity of the complaint; or (b) the time taken to obtain submissions under section 47 or information under section 48. (3) Also, for deciding the number of business days for subsection (1), any business days on which the health ombudsman is awaiting the outcome of a notification given under section 35J in relation to the complaint are not counted. 50 Decision following assessment After completing the assessment, the health ombudsman must— (a) decide— (i) to take particular relevant action to further deal with the complaint; or (ii) to take no further action in relation to the complaint; and Note— See section 44 for the grounds on which the health ombudsman may decide to take no further action on a complaint. (b) give notice of the decision to the complainant and relevant health service provider under section 278. Part 6 Local resolution of complaints 51 Application of pt 6 This part applies if the health ombudsman decides to try to resolve a health service complaint under this part. 52 How local resolution may be achieved (1) The purpose of taking action under this part is to facilitate resolution of the complaint between the complainant and relevant health service provider as quickly as possible and with minimal intervention by the health ombudsman. (2) To facilitate resolution of the complaint, the health ombudsman may take the actions the health ombudsman considers appropriate including, for example— (a) analysing information provided with the complaint; and (b) considering submissions received under section 53 from the complainant or relevant health service provider; and (c) analysing information obtained under section 54 from the complainant, relevant health service provider and others; and (d) facilitating meetings and other communications between the complainant and relevant health service provider; and (e) facilitating agreement on a course of action between the complainant and relevant health service provider. 53 Submissions (1) The health ombudsman may give a notice to the complainant or the relevant health service provider inviting submissions about the complaint to be given to the health ombudsman within a stated period. (2) The stated period for giving submissions must be reasonable but must not be more than 10 business days after the notice is given. (3) The health ombudsman must consider each submission received within the stated period. 54 Power to require information (1) For the purpose of facilitating resolution of the complaint, the health ombudsman may, by notice given to the complainant, relevant health service provider or any other person, require the person to give stated information to the health ombudsman within a stated period. (2) The stated period for giving the information must be reasonable but must not be more than 10 business days after the notice is given. (3) The person must comply with the notice unless the person has a reasonable excuse. Maximum penalty—50 penalty units. (4) It is a reasonable excuse for an individual not to give information that giving the information might tend to incriminate the individual. (5) In this section— information includes a document. 55 Period for attempting resolution (1) The health ombudsman must try to resolve the health service complaint within 22 business days after deciding to try local resolution. (2) The health ombudsman may extend the period for taking action under this part to resolve the complaint by a further period of up to 22 business days if— (a) it has not been possible to resolve the complaint within the period mentioned in subsection (1) because of the time taken to obtain submissions under section 53 or information under section 54; or (b) the complaint has not been resolved within the period mentioned in subsection (1) but the health ombudsman believes the complaint may be resolved under this part within the extended period. (3) Also, for deciding the number of business days for subsection (1), any business days on which the health ombudsman is awaiting the outcome of a notification given under section 35J in relation to the complaint are not counted. 56 Further action if complaint not resolved If the complaint is not resolved within the period provided under section 55, the health ombudsman must— (a) decide— (i) to take particular relevant action to further deal with the complaint; or (ii) to take no further action in relation to the complaint; and Note— See section 44 for the grounds on which the health ombudsman may decide to take no further action on a complaint. (b) give notice of the decision to the complainant and relevant health service provider under section 278. Part 7 Immediate action in relation to health practitioners Division 1 Immediate registration action Subdivision 1 General provisions 57 Meaning of immediate registration action In this division— immediate registration action, in relation to a registered health practitioner, means— (a) suspending, or imposing a condition on, the practitioner's registration; or (b) accepting an undertaking from the practitioner. 58 Power to take immediate registration action (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; or (b) the health ombudsman reasonably believes the practitioner's registration was improperly obtained because the practitioner or someone else gave a National Board information or a document that was false or misleading in a material particular; or (c) the practitioner's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction under the National Law; or (d) the health ombudsman reasonably believes the action is otherwise in the public interest. Example of when action may be taken in the public interest— A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners. (2) The health ombudsman may take the action at any time, whether or not a complaint has been made in relation to the registered health practitioner. Note— The National Law, section 205 provides for the relevant National Board to give effect to the health ombudsman's decision. 58A Varying particular immediate registration action on health ombudsman's own initiative (1) This section applies if, at any time after a decision to take immediate registration action in relation to a registered health practitioner, there is a material change in relation to the matter giving rise to the immediate registration action. (2) However, this section does not apply if the immediate registration action is accepting an undertaking from the registered health practitioner. (3) The health ombudsman may vary the immediate registration action only if— (a) the health ombudsman reasonably believes the material change justifies varying the decision made; and (b) the variation is on the grounds mentioned in section 58. Example of varying an immediate registration action— The health ombudsman varies an immediate registration action that suspended the registration of a health practitioner, to another immediate registration action that places conditions on the practitioner's registration so that the person can not have direct patient contact. (4) If the health ombudsman makes a decision (the variation decision) to vary the immediate registration action, sections 59 to 65, 94 and 279 apply to the variation decision as if it were, to the extent of the variation, a decision to take immediate registration action. 58B Varying particular immediate registration action on application by registered health practitioner (1) A registered health practitioner may apply to the health ombudsman to vary an immediate registration action if there is a material change in relation to the matter giving rise to the immediate registration action. (2) However, subsection (1) does not apply if the immediate registration action is accepting an undertaking from the registered health practitioner. (3) An application under subsection (1) must— (a) be in the approved form; and (b) be accompanied by any other information reasonably required by the health ombudsman. (4) In deciding the application, the health ombudsman— (a) must consider whether the material change justifies varying the action taken; and (b) is limited to the grounds mentioned in section 58. (5) The health ombudsman must decide to do 1 of the following— (a) vary the immediate registration action in the way requested in the application; (b) vary the immediate registration action in a way that is different to that requested in the application; (c) not to vary the immediate registration action. (6) If the health ombudsman decides to vary the immediate registration action in the way requested in the application— (a) the health ombudsman must give the practitioner who made the application notice of the decision; and (b) the health ombudsman must give notice of the variation to— (i) the relevant National Board; and (ii) if the immediate registration action was taken in response to a complaint—the complainant; and (c) sections 62, 65, 94 and 279 apply to the variation decision as if it were, to the extent of the variation, a decision to take immediate registration action. (7) If the health ombudsman proposes to vary the immediate registration action in a way that is different to that requested in the application, sections 59(2) to (4), 60, 62 to 65, 94 and 279 apply to the variation decision as if it were, to the extent of the variation, a decision to take immediate registration action. (8) If the health ombudsman proposes not to vary the immediate registration action, the health ombudsman must give the practitioner who made the application notice— (a) stating the proposed decision; and (b) inviting the practitioner to make a submission to the health ombudsman, within a stated period of at least 5 business days, about the proposed decision. (9) The practitioner may make submissions orally or in writing. (10) The health ombudsman must have regard to any submissions made by the practitioner within the stated period before deciding not to vary the immediate registration action. (11) If the health ombudsman decides not to vary the immediate registration action, the health ombudsman must give notice of the decision to the practitioner stating the following— (a) the decision; (b) the reasons for the decision; (c) that the practitioner may apply to QCAT for a review of the decision; (d) how, and the period within which, the practitioner may apply for the review of the decision. 59 Show cause process for particular immediate registration action (1) This section applies if the health ombudsman proposes to take immediate registration action in relation to a registered health practitioner, other than action that is accepting an undertaking from the practitioner. (2) The health ombudsman must give the registered health practitioner a notice— (a) stating the proposed immediate registration action; and (b) inviting the practitioner to make a submission to the health ombudsman, within a stated period of at least 5 business days starting after the notice is given, about the proposed action. (3) The practitioner may make submissions orally or in writing. (4) 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. (5) 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 (2) to (4). 60 Notice about immediate registration action (1) Immediately after deciding to take immediate registration action in relation to a registered health practitioner, the health ombudsman must give notice of the health ombudsman's decision to the practitioner. (2) The notice must state— (a) the immediate registration action that the health ombudsman has decided to take; and (b) the reasons for the decision to take the immediate registration action; and (c) the further relevant action that the health ombudsman proposes to take under section 64; and (d) to the extent the immediate registration action is suspending, or imposing a condition on, the practitioner's registration— (i) that the practitioner may apply to QCAT for a review of the decision to take the action; and (ii) how, and the period within which, the practitioner may apply for the review of the decision. (3) The health ombudsman must give a copy of the notice to the relevant National Board. (4) If the immediate registration action was taken in response to a complaint, the health ombudsman must give notice of the immediate registration action to the complainant. Note— See section 279 in relation to other persons to whom the health ombudsman must or may give notice. 61 Show cause process after taking action (1) This section applies if, under section 59(5), the health ombudsman takes immediate registration action in relation to a registered health practitioner without complying with section 59(2) to (4). (2) The notice given to the practitioner under section 60 must include, or be accompanied by, an invitation for the practitioner to make a submission to the health ombudsman, within a stated period of at least 5 business days starting after the notice is given, about the immediate registration action taken. (3) If the practitioner makes a submission within the stated period, the health ombudsman must— (a) have regard to the submission and decide if the immediate registration action taken is appropriate; and (b) give the practitioner— (i) a notice confirming the action taken; or (ii) a notice under section 65 ending the action taken. 62 Period of immediate registration action (1) A decision of the health ombudsman to take immediate registration action in relation to a registered health practitioner takes effect on the day the notice under section 60 is given to the practitioner or, if a later day is stated in the notice, the later day. (2) The decision continues to have effect until the earlier of the following happens— (a) QCAT sets aside the decision— (i) on application by the practitioner for a review of the decision; or (ii) on referral of the matter to QCAT by the director of proceedings on the health ombudsman's behalf; (b) the health ombudsman— (i) ends the immediate registration action under section 65; or (ii) grants an application to revoke the immediate registration action under section 65B. 63 Application to QCAT for review (1) If the health ombudsman decides to take immediate registration action in relation to a registered health practitioner, the practitioner may apply, as provided under the QCAT Act, to QCAT for a review of the decision. (2) However, subsection (1) does not apply to the extent the immediate registration action is accepting an undertaking from the registered health practitioner. (3) If the health ombudsman gives a notice to the practitioner under section 61(3)(b)(i) confirming the decision to take the immediate registration action, an application to QCAT for a review of the decision may be made within 28 days after that notice is given. 64 Further relevant action that may be taken after immediate registration action (1) The health ombudsman may only take the following relevant action in relation to the matter giving rise to immediate registration action taken in relation to a registered health practitioner— (a) investigate the matter under part 8; (b) refer the matter to the National Agency or an entity of the State, another State or the Commonwealth under part 9; (c) refer the matter to the director of proceedings under part 10, division 2. (2) The health ombudsman must take the relevant action mentioned in subsection (1)(a), (b) or (c)— (a) if the matter is the subject of a complaint to which part 3, division 2A applies—immediately after the process under that division is completed; or (b) otherwise—immediately after the immediate registration action is taken. 65 When health ombudsman must end immediate registration action (1) This section applies if, at any time after taking immediate registration action in relation to a registered health practitioner, the health ombudsman is satisfied the immediate registration action is no longer necessary on the grounds mentioned in section 58. (2) The health ombudsman must— (a) do the following— (i) if the immediate registration action is suspending the registered health practitioner's registration—revoke the suspension; (ii) if the immediate registration action is imposing a condition on the registered health practitioner's registration—remove the condition; (iii) if the immediate registration action is accepting an undertaking from the registered health practitioner—revoke the acceptance of the undertaking; and (b) give notice of the revocation or removal to— (i) the registered health practitioner; and (ii) the relevant National Board; and (iii) if the immediate registration action was taken in response to a complaint—the complainant. Subdivision 2 Special provisions for varying or revoking accepted undertakings 65A Application to vary or revoke accepted undertaking by registered health practitioner (1) This section applies if— (a) the health ombudsman has, as an immediate registration action taken under subdivision 1, accepted an undertaking from a registered health practitioner; and (b) the undertaking is in effect; and (c) there is a material change in relation to the matter giving rise to the immediate registration action. (2) The registered health practitioner may apply to the health ombudsman to vary or revoke the undertaking. (3) The application must— (a) be in the approved form; and (b) be accompanied by any other information reasonably required by the health ombudsman. (4) An application made under this section is an undertaking application. 65B Decision about undertaking application (1) The health ombudsman must, after considering an undertaking application, decide to grant, or refuse to grant, the application. (2) The health ombudsman may grant the undertaking application only if the health ombudsman is satisfied the material change mentioned in section 65A(1)(c) for the application justifies granting the application. 65C Show cause process (1) If the health ombudsman proposes to refuse to grant an undertaking application made by a registered health practitioner, the health ombudsman must give the practitioner a notice— (a) stating the proposed decision; and (b) inviting the practitioner to make a submission to the health ombudsman, within a stated period of at least 5 business days starting after the notice is given, about the proposed decision. (2) The registered health practitioner may make submissions to the health ombudsman orally or in writing. (3) The health ombudsman must have regard to any submissions made by the registered health practitioner within the stated period before deciding whether to refuse the undertaking application. 65D Notice of decision (1) This section applies if the health ombudsman decides to grant, or refuse to grant, an undertaking application made by a registered health practitioner. (2) Immediately after making the decision, the health ombudsman must give notice of the decision to the registered health practitioner. (3) If the health ombudsman decides to grant the undertaking application, the health ombudsman must give a copy of the notice to the relevant National Board. (4) If the health ombudsman decides to refuse to grant the undertaking application, the notice must state— (a) the decision; and (b) the reasons for the decision; and (c) that the registered health practitioner may apply to QCAT for