Australia: Health Ombudsman Act 2013 (QLD): A New Landscape for the Regulation of Health Professionals in Queensland


In March 2012, a former Medical Board of Queensland investigator turned whistle-blower, reported to the Crime and Misconduct Commission serious allegations of widespread medical malpractice being covered up in Queensland. Her allegations prompted three investigations which led to a number of recommendations.

The Queensland Minister for Health, Mr Lawrence Springborg, subsequently announced dramatic changes to the administration of health complaints in Queensland. On 20 August 2013 the Health Ombudsman Act (the Act) was passed into law in Queensland. The Act has been proclaimed and all provisions will commence on 1 July 2014. Mr Leon Atkinson-MacEwen has been appointed Queensland Health Ombudsman and a newly appointed Medical Board has been announced. The Board will be headed by Associate Professor Susan Young from the University of Queensland School of Nursing and Midwifery.

Health Ombudsman Act

The Act represents a significant change to the regulation of health professionals in Queensland and a complete overhaul of the complaints and investigations system that previously existed. All complaints previously referred to as notifications pursuant to the Health Practitioner National Law Act 2009 (the National Law), are to be made to the Health Ombudsman.

The Health Ombudsman will replace the existing Health Quality and Complaints Commission (HQCC) and will act as a single point of contact for all health complaints within Queensland. The Health Ombudsman will also deal with serious disciplinary matters.

The Act combines a number of functions previously exercised by the HQCC and the National Law. The National Law will continue to be read in conjunction with the Act. All existing complaints before the HQCC not finally dealt with as at 1 July 2014 will be dealt with as a health service complaint by the Health Ombudsman.

The more important aspects of the Act are:

  1. Immediate Action

The Health Ombudsman will have the power to take immediate action in response to a Health Service Complaint. The immediate action concerns immediate registration action (suspension or placement of conditions on a registered health practitioner) or issuing an interim prohibition order (prohibiting or imposing conditions on a health practitioner's practice).

The Health Ombudsman can take either action without seeking clinical advice or submissions from the individual concerned.

When the Health Ombudsman proposes to take immediate registration action, he/she must give notice to the practitioner and invite a submission. The Health Ombudsman must allow 14 days for the submission and is to have regard to any submissions before deciding to take immediate action. However, the requirement to issue a show cause notice is suspended if the Health Ombudsman is satisfied that to do so would put the health and safety of an individual or the public at risk.

A practitioner to whom notice of proposed immediate registration action has been given can apply to the Queensland Civil and Administrative Tribunal (QCAT) for review of the decision. Of importance, the Act provides that QCAT must not grant a stay of the decision to take immediate action. Once the Health Ombudsman has made a decision to take immediate registration action he/she must start an investigation under the Act, refer the matter to the Australian Health Practitioners Regulation Authority or refer the matter to the Director of Proceedings, who is empowered with deciding whether proceedings should be taken against the health practitioner in QCAT.

Investigations must be completed within one year of a decision to conduct an investigation. Extensions will not be granted beyond three months. The Health Ombudsman is required to keep a public register on a publicly accessible website, of investigations not completed within one year after the decision to carry them out.

  1. Interim Prohibition Orders (Division 2)

The Act gives the Health Ombudsman power to issue an Interim Prohibition Order which either, prohibits a health practitioner from providing any health service or a stated health service or imposes a restriction on the provision of any health service, or a State health service provided by that health practitioner.

The Health Ombudsman has the power to issue an Interim Prohibition Order if he or she is satisfied on reasonable grounds that the practitioner poses a serious risk to persons as a result of the practitioner's health, conduct, or performance and it is necessary to issue the order to protect the public's health or safety.

The Interim Prohibition Orders can also be issued at any time irrespective of whether or not a complaint has been made.

  1. Publication of Orders

The Health Ombudsman must publish on its publicly accessible website, information about each current Interim Prohibition Order including:

  1. the name of the health practitioner to whom the order was issued;
  2. the day the order took effect;
  3. the details of the order made against the health practitioner.

The Act also provides that the Health Ombudsman must publish information about corresponding interstate Interim Orders it is aware of. The Health Ombudsman has a discretion to publish the information any way he or she considers appropriate.

Areas of controversy

Interest groups ranging from individual practitioners, the Australian Medical Association and the Queensland Nurses Union all expressed significant concern in relation to what they consider are draconian measures in the Act.

The primary concerns are as follows:

  1. Immediate action

The immediate action able to be taken by the Health Ombudsman has been raised as a concern in circumstances where such action potentially denies a practitioner natural justice by taking action before the practitioner has had sufficient time to respond in a considered way.

A practitioner can find him or herself barred from practising and unemployable before they have had a chance to query the imposition of immediate action.

  1. Short Timeframes

The Act imposes very short timeframes within which a practitioner is able to respond to the Health Ombudsman's intention to take immediate registration action or issue an Interim Prohibition Order. If a practitioner needs to obtain supporting evidentiary material and/or expert reports, it is unlikely this will be possible within the short 14 day timeframe.

The Health Ombudsman also has the power to shorten the 14 day time period as along as he/she believes it is reasonable in the circumstances.

  1. Appeals

The concerns relating to the Health Ombudsman's powers in respect of taking immediate action are exacerbated by the limitation of the right to appeal the taking of such action. QCAT has been denied the power to grant an immediate stay of a decision to take immediate action which will force practitioners to apply to the Supreme Court for review of such a decision and significantly increase the potential legal costs in managing disciplinary proceedings.

Further, whilst QCAT retains a power of review over immediate action decisions, the length of time between lodging an application and an actual hearing may be unacceptably long, particularly in circumstances where practitioners may be limited or unable to engage in the practise of medicine in the intervening period.

  1. Removal of privilege against self-incrimination

Sections 162(3) and 164(3) of the Act remove the privilege against self-incrimination in relation to enquiries undertaken by the Health Ombudsman. Pursuant to these provisions, witnesses cannot rely on privilege against self-incrimination to refuse to answer a question or supply a record. Whilst both provisions provide that any evidence given under the sections cannot be used in a civil, criminal or administrative proceedings, it has been argued the provisions nevertheless erode the fundamental right to silence in the face of self-incrimination.

  1. Publication of Orders

The concerning aspect of the provisions relating to the publication of orders is the naming and shaming of practitioners in a public forum with the potential for significant, unrecoverable damage to their reputation, even if the allegations upon which the immediate actions are taken, are not later substantiated.

  1. Single decision maker

The new Health Complaints regime will be overseen by the Minister of Health, who may direct the Health Ombudsman to investigate a particular matter and require the Health Ombudsman to give information and report to him or her regarding a particular matter. The Health Ombudsman is otherwise required to act independently, impartially and in the public interest and is not generally subject to directions.

Concern has been raised that as the provider of public health and hospital services in Queensland, the Minister for Health (and his or her Department), has an inherent conflict of interest when considering health complaint matters.

Further, there is no requirement in the Act that the Health Ombudsman be a medical practitioner or that they have clinical experience. The potential is for decisions to be made that do not reflect a balanced assessment of medical practice in Queensland at the time of the assessment.

  1. Co-Regulatory Jurisdiction

Creating a co-regulatory jurisdiction in Queensland has the potential to undermine the ability of health practitioners to practice consistently across State borders. The creation of a nationally-consistent approach under the National Law allowed practitioners to practise anywhere in Australia with the security of having a consistent approach to registration and the complaints handling process. The changes under the Act erode that nationally consistent approach.


The Act represents significant change to the regulation of health professionals and their services in Queensland. The changes will present challenges for practitioners when a complaint is made against them. This is particularly the case in the absence of a formal complaint by a patient or fellow practitioner.

There will be considerable pressure on the Health Ombudsman and Director of Proceedings to resolve matters within a very short period of time. According to the Minister for Health "the tighter timeframes for complaints assessment, investigation and completion under the Act will give Queenslanders a more rigorous, accountable health complaints system, which will be the single point of lodgement for health complaints in Queensland." One imagines the Minister for Health will be anxious to demonstrate that the changes have successfully ensured Queenslanders access health services in a safer, more accountable manner.

The emphasis is likely to be on the consumers of health services in Queensland, rather than the practitioners. The concern is that "improvements" in the complaints handling process are not achieved at the expense of practitioners being afforded due process and natural justice. Only time will tell whether the Act achieves a balance between these competing interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.