Braun v Health Ombudsman

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SUPREME COURT OF QUEENSLAND

CITATION:

Braun v Health Ombudsman [2021] QSC 209

PARTIES:

DOCTOR WILLIAM BRAUN

(applicant)

v
HEALTH OMBUDSMAN

(respondent)

FILE NO/S:

BS 10392 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2021

DELIVERED AT:

Brisbane

HEARING DATE/S:

30 April and 4 May 2021

JUDGE:

Jackson J

ORDER:

1.   Declare that the due day for the respondent to complete the investigation into the complaint made by the Metro North Hospital and Health Service on 27 February 2019 was 1 March 2020.

2.   Declare that the purported extensions of the due day made by the respondent’s delegates for that investigation were invalid.

3. Declare that the respondent is obliged in respect of that investigation to make a decision under s 90 of the Health Ombudsman Act 2013 (Qld) as soon as possible.

4.   Direct that the parties are to provide written submissions as to any other relief and costs by 6 September 2021.

5.   Liberty to apply.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – PARTICULAR CASES – where the respondent decided to carry out three investigations in March and April 2019 of matters concerning the applicant’s performance and conduct as a health practitioner – where none of the investigations was completed by the respondent before the due day under s 85(1) of the Health Ombudsman Act 2013 (Qld) that was one year after the decision to carry out the relevant investigation – where the respondent purported to extend the due day for completing each of the investigations under s 85(2) and did so more than once under s 85(3) – where the respondent purported to extend the due day for one of the investigations after the due day had passed – whether the power to extend the due day may be exercised retrospectively

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the due day may be extended under s 85(2) if the respondent reasonably considers that, in all the circumstances, it is not possible to properly complete the investigation by the due day – where the respondent’s records show the approval of requests to place each of the investigations on the public register and to make extensions to the public register and, in March 2021, expressly record the decisions to extend the due day and the reasons for the decisions – where a number of clinical advices for matters the subject of one of the investigations were not completed until after the decision in March 2021 to extend the due day – whether the respondent did not reasonably consider that it was not possible to properly complete each investigation by the due day

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent submitted that the due day for each of the investigations was extended, in part, because none of the investigations concerning the applicant had…

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Details
Case
[2021] QSC 209
Decision Date

CaseChat Overview and Summary

In the case of Braun v Health Ombudsman, the applicant, Dr Braun, sought judicial review of decisions made by the respondent, the Health Ombudsman of Queensland, regarding the investigation of complaints about Dr Braun’s performance and conduct as a health practitioner. The crux of the dispute was whether the respondent lawfully extended the deadlines for completing three investigations into Dr Braun, and whether the respondent failed to consider relevant factors in making these decisions. The case was heard in the Queensland Supreme Court.

The court was required to determine several legal issues, including whether the power to extend the due day for completing an investigation could be exercised retrospectively, whether the respondent reasonably considered that it was not possible to complete the investigations by the original deadlines, whether the respondent took irrelevant considerations into account, and what the consequences were if the due day was not validly extended. Additionally, the court needed to ascertain whether Dr Braun had standing to institute the proceedings, given the relief sought and the impact of the respondent’s actions on his rights and interests.

The court found that the power to extend the due day under s 85(2) of the Health Ombudsman Act 2013 (Qld) could not be exercised retrospectively. The court also determined that the respondent did not reasonably consider that it was not possible to complete each investigation by the original deadlines. Furthermore, the court held that the respondent took irrelevant considerations into account by considering the status of the other investigations. The court interpreted s 90 of the Act, which requires the health ombudsman to decide on further action after completing an investigation, to mean that the duty under s 90 is only engaged after the investigation is complete to the satisfaction of the health ombudsman, regardless of whether the original deadline has passed. Finally, the court found that Dr Braun had standing to bring the proceedings, as the respondent’s decisions had affected his rights and interests.

The court declared that the due day for completing the investigation into the complaint made by the Metro North Hospital and Health Service was 1 March 2020, and that the purported extensions of the due day were invalid. The court also declared that the respondent was obliged to make a decision under s 90 of the Act as soon as possible concerning that investigation. The parties were directed to provide written submissions regarding any other relief and costs by a specified date, with liberty to apply granted.

Orders

Orders of the court

1. Declare that the due day for the respondent to complete the investigation into the complaint made by the Metro North Hospital and Health Service on 27 February 2019 was 1 March 2020.

2. Declare that the purported extensions of the due day made by the respondent’s delegates for that investigation were invalid.

3. Declare that the respondent is obliged in respect of that investigation to make a decision under s 90 of the Health Ombudsman Act 2013 (Qld) as soon as possible.

4. Direct that the parties are to provide written submissions as to any other relief and costs by 6 September 2021.

5. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 90 is an important contextual provision for the operation of s 85. It provides as follows: “90 Notice of decision after investigating matter After completing an investigation of a matter under this part, the health ombudsman must—(a)decide—(i)to take particular relevant action to further deal with the matter; or(ii)to take no further action in relation to the matter; andNote—See section 44 for the grounds on which the health ombudsman may decide to take no further action on a matter under this part.(b)give notice of the decision—(i)if the investigation relates to a health service complaint—to the complainant and relevant health service provider under section 278; or(ii)otherwise—to any health service provider being investigated.”Submissions about s 85 and s 90 A number of competing submissions were made by the parties about the operation of and effect of s 90 upon s 85(1). The applicant submitted that after the due day under s 85(1) passes, the health ombudsman is under a duty to decide to take particular relevant action or to take no further action under s 90. The respondent submitted that if an investigation is not complete to the satisfaction of the health ombudsman, s 90 does not apply, whether or not the due day under s 85(1) has passed, because the duty to decide under s 90 is only engaged “[a]fter completing an investigation”. The proper construction of s 85(1) is informed by a careful consideration of the operation of both s 85(1) and s 90 on each of the constructions contended for. The effect of the applicant’s construction of s 85(1) and s 90 is that after the due day has passed and the duty under s 90 is engaged, it does not matter whether the health ombudsman is satisfied that the investigation is complete. The effect of the respondent’s submission is that the duty under s 90 is only engaged when the investigation is complete to the satisfaction of the health ombudsman, irrespective of how long that takes. There is no definition of what constitutes completing an investigation under Pt 8. That outcome is identified or recognised by the express text of four provisions in the Act.[57] As a matter ordinary meaning, and in the context of the processes provided for by the Act, the requirement in s 85(1) that the health ombudsman must “complete” an investigation by the due day is one that engages the ordinary meaning of the verb “complete”.[58] That is, “must complete” means must bring the investigation to an end, or finish, or conclude it. [57]Health Ombudsman Act 2013 (Qld), ss 85(2), 85(3), 86(1) and 90.[58]Shorter Oxford English Dictionary, 6th Ed, Volume 1, p 471, Definition “complete”. It would follow that, on the ordinary meaning, the phrase “[a]fter completing an investigation” in s 90 (or s 86) means “after bringing to an end, finishing or concluding an investigation”. It may be argued that if it were intended that the duty under s 90 would be engaged after the due day had passed, even if the investigation was not finished or concluded to the satisfaction of the health ombudsman, it would have been easy enough to say after the word “part” in s 90, “or the due day to complete the investigation has passed”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.