AHPRA, OHO and no further action – Do I have a claim?

11th Apr 2019

It is sometimes the case that while a lawyer is investigating a medical law claim, investigations are also being carried out by the regulatory authorities: the Australian Health Practitioner Regulation Agency (AHPRA) and the Office of the Health Ombudsman (OHO).

In recent times, the findings from OHO and AHPRA investigations are coming in earlier than the time it takes to investigate the legal case. What happens when these agencies confirm that they are not taking the matter further, that there is no case to answer or that they believe the treatment by the health organisation or health practitioner was appropriate? Does this mean that the legal case should be abandoned? If the regulatory body is not critical of the health organisation or practitioner’s conduct, what is the claimant’s chance of succeeding in a medical law claim?

To answer these questions, it is important to look further into AHPRA and OHO to better understand their roles and respective agendas when investigating a healthcare complaint. Following this analysis, it is then important to determine how this is similar or different to the elements required to succeed in a medical law claim.

AHPRA Investigations

AHPRA is the organisation responsible for the registration and accreditation of sixteen health professions across Australia.[1] It also investigates complaints made against health professionals working in these fields. As a result of an investigation, a National Board may decide to take one or more of the following actions based on the allegations, facts and evidence. [2]




No grounds

National Boards can only consider a complaint or concern if it meets certain criteria (grounds).

No further action

If there is no risk to the public that a National Board needs to manage, the Board will decide to take no further action.

Referral to another entity

A National Board may determine that it is not the appropriate body to handle a matter, in which case it may refer the complaint to another agency.


An undertaking means that the practitioner agrees to do or not do something in relation to their profession.


A condition restricts a practitioner’s practice in some way.


Like a written warning, a caution is intended to act as a deterrent so that the practitioner does not repeat the conduct or behaviour.


If a practitioner’s registration is suspended, they cannot practise their profession unless the suspension is revoked.


A reprimand is a formal way of rebuking or expressing disapproval to a practitioner for something they have done.

Cancellation of registration

If a health practitioner has their registration cancelled, they are forbidden to practise in their profession or work in any way as a health practitioner in that profession in all Australian states and territories.


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.

The above list is not exhaustive but rather these points should be given some thought before a medical law claim is closed. It would be remiss of a legal practitioner simply to conclude that there is no legal case because regulatory authorities such as AHPRA/OHO chose not to take further action.


Olamide Kowalik is a Senior Lawyer at Revolution Law. She was admitted in 2003 and practises in the areas of medical negligence, motor vehicle accidents, WorkCover and public liability. She has been recognised by Doyles Guide as a Leading Medical Negligence Compensation Lawyer in Qld in 2015 and 2017. She is a member of the ALA, Women’s Legal Association of Qld, Qld Medico-Legal Society and is on the board of Triumph Alliance, a non-for profit organisation. She is married and with 3 boys, including a set of twins, who keep her active! 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Queensland Health, medicine and law Olamide Kowalik Office of Health Ombudsman Australian Health Practitioner Regulation Agency Healthcare providers Medical law