Opinion

It Is important to be aware that AHPRA’s decisions are not necessarily designed to punish a practitioner or determine the elements of negligence. They are designed to protect the public, uphold professional standards and maintain public confidence in regulated health professionals.

OHO Investigations

The OHO is Queensland's independent health complaints agency.[3]

 If a complaint is accepted, the possible outcomes are:

• there is an attempt to facilitate local resolution;
• there is an attempt to conciliate the complaint;
• the complaint is referred to the provider’s registration board, or another organisation such as AHPRA;
• the complaint is formally investigated; or
• immediate action is taken against the provider.

The complaint is kept on record to identify any patterns of provider conduct or practice, or systemic healthcare issues.[4]

A claimant is unable to seek compensation through the OHO.

Since the inception of the OHO on 1 July 2014, Queensland has been a co-regulatory jurisdiction; the OHO and the AHPRA share certain information to ensure that matters are dealt with as efficiently and effectively as possible. This includes consulting on and referring complaints in order to protect the health and safety of the public and promote professional, safe and competent practice by health practitioners. The elements of negligence are not considered.

Medical law investigations

To succeed in a medical law case the elements of negligence must be demonstrated: that a duty of care was owed, that the duty was breached and that as a consequence of that breach an individual suffered loss. The balance of proof is on a more probable than not basis. What amounts to the negligence of a professional person is a matter of opinion and judgment. The court does not base its judgment on what the patient or the practitioners have said, but on the opinions of suitably qualified experts. Often these experts disagree about the cause of the problem, or about what the practitioner should have done in the circumstances.[5]

The above potential outcomes following investigation by AHPRA and OHO demonstrates that the legal system, AHPRA and OHO all have different agendas. These differences should be considered when determining whether a claim has merit from a legal perspective following an assessment by either AHPRA and OHO that there is no case to answer or need to take any further steps.

No case to answer: Next steps

I would caution against closing a claim on the basis of AHPRA and/or OHO findings. I would advise lawyers to consider the following:

• It is imperative that you obtain the OHO/AHPRA file.
• Consider carefully what is before OHO and AHPRA for investigation – for instance, there may be multiple parties under investigation and the complaint put forward by the claimant is not one that forms the negligent act. For example, the claimant may argue that they were not warned of the risks of the surgery and this is investigated and found to be baseless without taking into account that the real negligence lies with the failure to pick up the risk when it manifested. OHO/AHPRA can be quite narrow in their investigations and tend to limit their investigations to the claimant’s concerns instead of focusing on the issues which the claimant may not be cognisant of as a lay person.
• Sometimes, if the particular party responsible for the negligent act is not included in the complaint, AHPRA/OHO might conclude that there is no case to answer and not move beyond the scope of the investigation.
• Ensure you know what outcomes were being sought by the claimant when the complaint was made. If the claimant was seeking an apology OHO might, for instance, suggest conciliation and no further action will be taken.
• If there is a specialist report on file and it is disclosed, you might be surprised that even if no further action is taken there might be criticism of aspects of the care that may warrant further investigations.
• Steps might already have been taken by the health practitioner to retrain by the time the matter is being considered by AHPRA or OHO so a decision is made to take no further action against the health practitioner. This does not mean that the treatment was appropriate but rather that steps had already been taken by the health practitioner to address their deficiency. 
• Consider what actual records were considered in the investigations: were all relevant materials considered before the decision was made?
• Has the complaint even been considered by an appropriate specialist rather than solely by the investigating officer?
• Consider whether new evidence has surfaced which was not before the investigators.
• Take into account the client’s instructions in relation to the AHPRA/OHO findings.