19 October 2015

National Health Practitioner Ombudsman

The latest report of the National Health Practitioner Ombudsman and Privacy Commissioner, an entity that is independent of the Commonwealth Privacy Commissioner and has attracted little attention (arguably resulting in a low number of complaints), states
The office of the National Health Practitioner Ombudsman and Privacy Commissioner is an independent, statutory agency established under the Health Practitioner Regulation National Law (the National Law) as enacted in participating states and territories. The office provides ombudsman, privacy and freedom of information services, and has an important role in promoting public and health practitioner confidence in the administration of health practitioner regulation. ...
The National Health Practitioner Ombudsman and Privacy Commissioner was established on 1 July 2010, to coincide with the introduction of the National Law. In the past, the office had difficulties with resourcing and effectively managing its statutory responsibilities.
Following an independent review in early 2014, the Australian Health Ministers’ Advisory Council appointed Ms Pauline Ireland as Ombudsman. Ms Ireland employed a number of staff to manage the complaints backlog and set up improved complaints handling and financial management procedures for the office. In 2014, the Australian Health Ministers’ Advisory Council also agreed to provide funding of $1.5 million a year to resource the office, as recommended by the independent review.
When I started my appointment in late 2014, I was pleased to find that due to the work of Ms Ireland and staff, the complaints backlog had been significantly reduced and the office was operating effectively and efficiently.
In mid May 2015, the office moved to more suitable accommodation at the premises of the Victorian Department of Health and Human Services at 50 Lonsdale Street, Melbourne. This co-location will reduce administration costs as it allows us to use the Department of Health and Human Services infrastructure, services and systems on a shared services basis. Work on the complaints backlog is now complete, with 350 complaints, including a number of older complex and difficult cases, finalised during 2014–15. ...
Now that the complaints backlog has been finalised, the office can deal with complaints as they are received and focus on longer-term priorities. The recruitment of two suitably qualified and experienced staff members has now been completed, which will ensure the office has sufficient expertise to manage its statutory and administrative requirements now and in the future.
Longer-term priorities for the office include: • sourcing a complaints management and reporting system • updating the office website.
A complaints management and reporting system will allow us to better manage our workload and provide accurate monitoring and reporting. It will also enable us to deal with complaints more effectively and efficiently and improve complaint-handling timeframes. Updating and improving our website will provide better information to stakeholders, including health practitioners and the public, and make the site more accessible and user friendly. It will also raise the profile of the office and our services, particularly outside Victoria.
A key role for the National Health Practitioner Ombudsman and Privacy Commissioner is promoting confidence in the national regulatory scheme, particularly in relation to the administrative actions of the Australian Health Practitioner Regulation Agency and the 14 national boards that regulate health professionals. We act as an independent and impartial third-party reviewer in relation to complaints about aspects of the national scheme. We also provide feedback to the Australian Health Practitioner Regulation Agency and the national boards about systemic issues identified through complaints and assist them to improve their processes.
We aim to provide a complaints handling service to consumers and health practitioners that is independent, objective, accessible and timely. Many of the complaints the office receives are of a complex and difficult nature. This means we need staff who are well qualified and experienced in investigation and complaints handling. The office has a relatively narrow jurisdiction, which focuses on the administrative actions of the Australian Health Practitioner Regulation Agency and the boards in respect of their regulation of Australian health practitioners. Administrative actions include actions taken by the Australian Health Practitioner Regulation Agency to assess and investigate notifications under the National Law, and the way the relevant board makes decisions on matters raised. We examine whether due process is followed and if relevant considerations are taken into account.
As Ombudsman, I have no power to overturn the decisions of the Australian Health Practitioner Regulation Agency or a board. However, based on evidence, I can raise issues with these bodies and make recommendations for them to consider. The office also has jurisdiction to investigate complaints about privacy and freedom of information issues, but these complaints currently form only a very small portion of our complaint caseload.
The majority of complaints concern the administrative actions of the Australian Health Practitioner Regulation Agency and the boards in relation to notifications about matters such as the health, conduct or performance of health practitioners. Other issues include complaints by health practitioners in relation to their registration and a small number of complaints about privacy issues. In 2014–15, almost half (47 per cent) the complaints were lodged by members of the public in relation to the way their notification about a health practitioner was handled by the Australian Health Practitioner Regulation Agency and the boards. Twenty-three per cent were lodged by health practitioners regarding the way a notification about them was handled by the Australian Health Practitioner Regulation Agency and the boards. Twenty-four per cent of complaints were from health practitioners regarding problems with their registration.
The office received a total of 75 complaints during 2014–15, which is a significant decline from the 196 complaints received in 2013–14. The decline in complaints in 2014–15 may be due to: • improved timeframes and communication with notifiers and registrants by the Australian Health Practitioner Regulation Agency • national boards not making significant changes to registration requirements during this time • finalising many older complaints brought to the Australian Health Practitioner Regulation Agency for review after the introduction of the National Law on 1 July 2010.
In addition, we have worked more effectively with the Australian Health Practitioner Regulation Agency and the boards to provide feedback about complaints and to identify process improvements, which may assist in reducing the number of complaints.
The report explains that
The National Health Practitioner Ombudsman and Privacy Commissioner is responsible for providing ombudsman, freedom of information and privacy oversight of the actions of the national agencies established under the National Law.
The National Law confers specified jurisdiction on the National Health Practitioner Ombudsman and Privacy Commissioner that is derived from the Ombudsman Act 1976 (Cth) (the Ombudsman Act), the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth). These Commonwealth Acts are modified by the National Law Regulation to make them suitable for the National Registration and Accreditation Scheme for Health Practitioners (the national scheme), noting in particular that the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) both apply as if the amendments made to these Acts by the Freedom of Information Amendment (Reform) Act 2010 (Cth) had not taken effect. For efficiency, the separate Ombudsman and Privacy Commissioner roles are combined in the single office of the National Health Practitioner Ombudsman and Privacy Commissioner.
These arrangements ensure the accountability, transparency and responsiveness of the regulatory system...
These arrangements ensure the accountability, transparency and responsiveness of the regulatory system administered by the national agencies for the national scheme, namely: • the Australian Health Practitioner Regulation Agency • the national boards (Aboriginal and Torres Strait Islander Health Practice, Chinese Medicine, Chiropractic, Dental, Medical, Medical Radiation Practice, Nursing and Midwifery, Occupational Therapy, Optometry, Osteopathy, Pharmacy, Physiotherapy, Podiatry and Psychology) • the Australian Health Practitioner Regulation Agency’s Agency Management Committee • the Australian Health Workforce Advisory Council.
The Australian Health Practitioner Regulation Agency is the national agency responsible for administering the national scheme. This includes supporting the national boards to exercise their functions, which include: • registering qualified and competent health practitioners and, if necessary, imposing conditions on their registration • developing standards, codes and guidelines for the 14 registered health professions • approving accredited programs of study • overseeing the assessment and investigation of notifications (complaints) about registered health practitioners • establishing panels to conduct hearings about the performance or health of health practitioners and, where necessary, referring matters to the responsible tribunal in a participating jurisdiction.
The 14 national boards are the ultimate decision makers regarding whether a person is qualified and suitable for registration as a health practitioner, or whether action should be taken against a registered health practitioner following a notification (complaint) about the practitioner’s professional conduct.
However, some of the boards’ functions are delegated to the Australian Health Practitioner Regulation Agency, which is why the National Health Practitioner Ombudsman and Privacy Commissioner must generally take into account both the actions of the Australian Health Practitioner Regulation Agency and the national boards when considering administrative processes that are the subject of a complaint.
Notifications (complaints) under the national scheme
When notifications about matters such as the health, conduct or performance of a health practitioner are received, the relevant national board’s role is to assess the matter to determine whether the health practitioner’s conduct may warrant some action (such as cautioning the practitioner, cancelling or suspending their registration, or imposing conditions on their registration). To assist the national boards, the Australian Health Practitioner Regulation Agency makes inquiries and gathers information to inform the boards’ consideration of the issues.
The National Health Practitioner Ombudsman and Privacy Commissioner’s role is to investigate administrative actions the Australian Health Practitioner Regulation Agency and the national boards have taken in relation to a notification. Administrative actions include the actions the Australian Health Practitioner Regulation Agency takes to assess and investigate notifications under the National Law, and how a board makes decisions after considering a matter. The National Health Practitioner Ombudsman and Privacy Commissioner examines whether the Australian Health Practitioner Regulation Agency and the board followed due process and took account of relevant considerations. We do not have the power to overturn decisions of the Australian Health Practitioner Regulation Agency or the national boards. However, based on evidence we can raise issues with these agencies and make recommendations for them to consider.
The National Law does not give the National Health Practitioner Ombudsman and Privacy Commissioner, the Australian Health Practitioner Regulation Agency or the national boards the ability to determine whether compensation should be paid to individuals. ...
The National Health Practitioner Ombudsman and Privacy Commissioner cannot:
  • change the outcome of an administrative action or decision taken by the Australian Health Practitioner Regulation Agency or a national board 
  • force the Australian Health Practitioner Regulation Agency or a national board to review or change a decision 
  • provide legal advice or act as an advocate for anyone aggrieved by a decision or action taken by the Australian Health Practitioner Regulation Agency or a national board 
  • recommend that the Australian Health Practitioner Regulation Agency or a national board pay compensation 
  • force the Australian Health Practitioner Regulation Agency or a national board to release a document determined to be exempt under the Freedom of Information Act 
  • recommend that the Australian Health Practitioner Regulation Agency or a national board take an action that is not available to it under the National Law.