Personal Injuries Proceedings Act 2002 (Qld) health claims, s9 or s9A?
30th Nov 2017
As a junior practitioner handling medical claims in Queensland, I have noticed that confusion can arise as to the application of ss9 and 9A of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). Section 9A offers procedural direction for medical negligence matters, while s9 is to be used for all other eligible claims.
The confusion arises from the ambiguous wording found within s9A, and the lack of clearly defined terms in PIPA. It would appear that some practitioners believe that s9A applies to all claims regarding health professionals. However, this is not entirely correct.
Section 9A(1) states:
‘This section applies to a claim based on a medical incident happening on or after the commencement of this section that is alleged to have given rise to personal injury.’ (emphasis added)
Section 9A(14) provides a definition of ‘medical incident’:
‘medical incident means an accident, or other act, omission or circumstance involving a doctor happening during the provision of medical services.’ (emphasis added)
The key term is the word ‘doctor’. ‘Doctor’ is not defined in the PIPA. Through a web of legislation which ends with the Health Practitioner Regulation National Law Act 2009 (Cth) (the National Law), ‘doctor’ is consistently defined as ‘medical practitioner’. Section 9A therefore has a strict application and applies only to medical practitioners or treatment involving a medical practitioner; for example, where a claimant has been treated at hospital.
SO WHAT ABOUT ALLIED HEALTH PROFESSIONALS? DOES s9A APPLY TO THEM?
In my opinion, s9A does not apply. Section 9 would apply to health professionals as they are not considered ‘medical practitioners’. Accordingly, the appropriate way to commence a claim against allied health professionals would be to serve a Notice of Claim Part 1 required under s9 rather than the initial notice required under s9A. However, there is further confusion in practice about which of the approved forms would apply in this situation. Notice of Claim Form 1 states that it is to be used for ‘non-health care claims’ with Notice of Claim Form 2 to be used for ‘health care claims’.
PIPA defines ‘health care’ as:
‘any care, treatment, advice, service or goods provided in relation to the physical or mental health of a person’;
and ‘health care claim’ as:
‘a claim against a health care provider in relation to personal injury caused entirely or partly by the fault of the health care provider in providing health care’ . (emphasis added)
‘Provider’ is defined as an individual, other than a student, who is registered under the National Law to practice as a health profession . The National Law confirms that ‘health profession ’ includes, for example, a physiotherapist, a chiropractor, or a dentist.
Taking into account this interpretation, it is my view that in order to commence a claim against an allied health professional, a Notice of Claim Form 2 (health care claim) is required to be used and served under s9. However, having provided this to respondents’ lawyers on occasions in the past, their response was that the Notice of Claim Form 2 was non-compliant as an initial notice had not been served prior to the service of the notice of claim.
WHY DOES ALL THIS MATTER?
It comes down to costs and the time it takes to complete the pre-court process.
Section 9A allows the claimant up to 12 months to investigate the allegations being made. It also requires that the claimant obtain a specialist medical report confirming liability and causation before the notice of claim can be served. The respondent is not obligated to investigate the allegations until such time as the notice of claim is served, which reduces the costs to the respondent in defending the allegations. Under this section, the claimant’s legal costs are increased.
Section 9, on the other hand, allows the claimant to serve the notice of claim without a specialist report. The respondent is required to commence their investigations upon service. The claimant still needs to establish that there is a causal link between the incident and the injury, but this can be done throughout the course of the pre-court process rather than prior to the service of the notice of claim . It is more beneficial for a claimant to proceed under this section than s9A, given the length of time required to complete the pre-court process and therefore the cost savings.
As a result of the delays which may be experienced at the outset of the claim, arguing over which section applies, unnecessary costs may be incurred by both parties. Perhaps PIPA requires further amendment to clear up the confusion and enable greater uniformity within practice?
Joanne Baker graduated from the University of Southern Queensland in 2016 and recently completed her Bachelor of Laws (Honours). Her legal career started as an office junior in a small law firm in her home town in England. Over the next 20 years, she worked her way up through administration roles, from secretary to law clerk in various areas of law including criminal, property, succession and personal injuries. She is currently a first-year lawyer in the Medical Negligence team at Slater + Gordon Lawyers. Outside of work, Joanne has a passion for health and fitness and has two children who keep her on her toes.
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).
1. PIPA, s8.
2. Hospital and Health Boards Act 2011 (Qld), s14.Hospital and Health Boards Act 2011 (Qld), s14.
3. PIPA, s22.