6th March 2025
The Personal Injuries Proceedings Act 2002 (Qld) (PIPA) mandates pre-court procedures for personal injury claims in Queensland, with its aim being the speedy resolution of those claims at an early stage (at [s4(2)]).
For medical negligence claims in Queensland, s9A of PIPA requires a claimant to give written notice (s9A Notice) to a health services provider they propose to commence a claim against. A health services provider who receives a s9A Notice must then provide a written response stating whether records are held by them concerning the medical services mentioned in the s9A Notice, as well as provide a copy of all documents held by them about the medical services. A claimant then has a period of 12 months to investigate their claim prospects and gather the necessary expert evidence to serve a Part 1 Notice of Claim in accordance with s9A(9)(d). This 12-month timeframe is critical for a claimant to assess whether or not they have a viable medical negligence claim and determine whether they should proceed.
The records that must be provided by a health services provider in response to a s9A Notice are all records ‘about the medical services’ described in the s9A Notice. Arguably, that does not extend to disclosure of any self-reporting by the health services provider to their medical indemnity insurer; no to any investigative material produced or received by them for the purpose of any investigation carried out under the Health Practitioner Regulation National Law (Qld) 2009 (National Law).
Under ss 274 and 272(8) of the Health Ombudsman Act 2013 (Qld) (HOA) any investigative records produced or received by a health services provider are not disclosable to a court or tribunal unless necessary to do so under the HOA or the National Law. The HOA is in direct conflict with s9A(8) of PIPA which seeks to provide a claimant with as much information as possible for them to assess whether they have a viable right of action before serving a Part 1 Notice of Claim.
Section 216(1) of the National Law also stipulates that a person exercising functions under the National Law must not disclose to another person ‘protected information’. ‘Protected information’ is defined to mean ‘information that comes to a person’s knowledge in the course of, or because of, the person exercising functions under the National Law’. Consequently, this also prevents a health services provider served with a s9A Notice providing complete and full disclosure of material in its possession that was submitted and/or received by them as part of an investigation by the Office of the Health Ombudsman (OHO) or Australian Health Practitioner Regulation Agency (AHPRA).
In my practice, I have encountered respondents’ solicitors relying on the HOA and National Law as a basis for withholding disclosure mandated not only by s9A(8) of PIPA but also s27(1)(i) of PIPA. Under s27(1)(i) of PIPA a respondent to a healthcare claim ‘must provide to the claimant copies of reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates’. Withholding disclosure that clearly falls under both s9A(8) and s27(1)(i) of PIPA only serves to delay a claimant’s ability to fully investigate the adverse event and ultimately increases legal fees and claim duration.
If a health services provider has self-reported an adverse event involving the claimant to their insurer or has been the subject of an investigation involving the claimant, then that information is directly relevant to a claimant’s enquiries into their claim prospects. To withhold such disclosure until a matter has progressed to a compulsory conference or even beyond closure of pleadings, as has been my experience, is not in keeping with the fundamental purpose of PIPA. If a claimant has to hand the investigation records from OHO/AHPRA and/or from the health practitioner’s own insurer, surely that aids the speedy resolution of the claim; or may in fact prevent a Notice of Claim from ever being served.
Respondent solicitors withhold disclosure by hiding behind the HOA and the National Law. However, health service providers can and should utilise ss 216(2)(c) and (d) of the National Law which permits disclosure of ‘protected information’ if it is otherwise required or permitted by law (ie, as required by PIPA); or with the agreement of the person to whom the information relates (ie, with the consent of the health services provider).
Further, The Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code) at paragraph 4.11 outlines a practitioner’s responsibility to be ‘open and honest’ in their communication with their patient pertaining to adverse events and recommends ‘explaining to the patient as promptly and fully as possible in accordance with open disclosure policies, what has happened and the anticipated short-term and long-term consequences’. Therefore, providing consent under s216(2)(b) of the National Law is consistent with a health practitioner’s obligations under the Code and the Physician’s Pledge that ‘the health of my patient will be my first consideration’ and to ‘practise my profession with conscience and dignity and in accordance with good medical practice’.
The ALA thanks Sally Asoyo for this contribution.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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