Legislative Update – Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022

The Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) was passed with amendment on 13 October 2022. A link to the Bill can be found here:

Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 – Queensland Legislation – Queensland Government

The Bill amends the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law Act 2009 (Qld) across a number of areas. We highlight some of the key changes below.

Show cause process

Amendment of Health Ombudsman Act 2013 (Qld), s59

This section applies where the Health Ombudsman proposes to take immediate registration action in relation to a health practitioner, other than an action that is accepting an undertaking from the practitioner. It is proposed that the Health Ombudsman must give the registered health practitioner a notice 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.

This will hopefully allow practitioners the opportunity to fully respond to immediate action notices, at least in relation to action proposed by the Health Ombudsman.

Public statements

Insertion of new Part 8AA in the Health Ombudsman Act 2013 (Qld) and new Part 23 Health Practitioner Regulation National Law Act 2009 (Qld)

Both the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law Act 2009 (Qld) have been amended to include provision for the authorities (both the Health Ombudsman and AHPRA) to make public statements where applicable about a health practitioner.

The amendments will permit the Health Ombudsman and AHPRA to make a public statement about a person if:

1. the authority reasonably believes the person is contravening, or has contravened, a relevant provision; and/or
2. the person’s conduct, performance or health is the subject of an assessment or an investigation; and
3. the authority reasonably believes that because of the person’s conduct, performance or health, the person poses a serious risk to persons and it is necessary to issue a public statement to protect public health or safety.

No liability will be incurred by the Health Ombudsman and/or AHPRA for the making of a public statement under this section in good faith.

The making of a public statement can occur at the same time as an investigation or assessment process, and in advance of a decision being made as to whether the conduct was below standard.

If the Health Ombudsman and/or AHPRA proposes to make a public statement, they must give the person a notice that includes the following information:

1. that the authority proposes to make a public statement about the person;
2. the way in which it is proposed to make the public statement;
3. the content of the proposed public statement;
4. that the person may make written or verbal submissions, within the reasonable period stated in the notice, about the proposed public statement.  If a submission is made, the authority may decide:
   1. not to make the public statement;
   2. to make the public statement as proposed; or
   3. to make the public statement in a different way or with different content.

The Health Ombudsman and/or AHPRA must give notice of their decision as soon as practicable after the decision is made. If the decision is to make the public statement, they must give notice of at least one business day before the statement is made.

If the decision is to make the public statement, the Health Ombudsman and/or AHPRA must provide the following further information:

1. that the person may appeal against the decision;
2. describe how an application for an appeal may be made; and
3. describe the period within which the application must be made.

The Health Ombudsman and/or AHPRA will also be able to revise a public statement if necessary, and/or revoke a public statement if the grounds on which the statement was made no longer exist or did not exist at the time the statement was made.

Insertion of new s3A in Health Practitioner Regulation National Law Act 2009 – Guiding principles

A new section has been established to identify the guiding principles of the national registration and accreditation scheme which can be summarised as follows:

• protection of the public;
• public confidence in the safety of services provided by registered health practitioners and students;
• operate in a transparent, accountable, efficient, effective and fair way;
• promote the reasonableness of fees, having regard to the efficient and effective operation of the scheme; and
• impose restrictions on the practice of a health profession only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

Practical implications

The amendments relating to public statements are likely to cause concern to the medical community, particularly in circumstances where AHPRA or the Health Ombudsman can make a statement without a proper investigation occurring, and arguably without the practitioner having access to principles of natural justice.

While there are avenues of appeal, these can be timely, and the public statement may cause reputational harm in the meantime.

This article was written by Audrey Lacey, Partner and Marisa Maruca, Solicitor.