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How to Make a Complaint to the Office of the Health Ombudsmen

What is the OHO?

The Office of the Health Ombudsman (‘OHO’) is Queensland’s health service complaints agency. This system was set up to handle complaints in Queensland about health service providers. If you or a family member are unhappy with treatment or medical advice you have received by a health care provider, you are entitled to make a complaint.

Objectives

Their main objectives are to:

  • protect the health and safety of the public
  • promote professional, safe and competent practice by health practitioners
  • promote high standards of health service delivery by organisations
  • maintain public confidence in the provision of health services in Queensland
  • manage complaints relating to health services

Overall, the OHO’s role is to protect all Queenslanders in the provision of health services.

Making a complaint 

Who can make a complaint?

  • a patient who received a health service
  • a parent or guardian of a patient
  • a relative, friend or representative chosen by the patient
  • a health service provider
  • any other concerned person.      

Who can I complain about?

You can make a formal complaint about any health service, health service provider or practitioner, anywhere in Queensland. This includes registered and unregistered health practitioners.

This not only includes doctors, but also nurses, optometrists, dentists, chiropractors, occupational therapists, osteopaths, physiotherapists, nutritionists, massage therapists, naturopaths, homoeopaths, dieticians, speech pathologists and social workers.

You can also make a complaint against a public or private health care facility, such as a hospital, private clinic, ambulance service, mental health service and community health services.  

What can I complain about?

You can complain about any aspect of healthcare services that you received. This includes the following:

  • treatment you have received
  • the quality of care provided to you
  • your diagnosis
  • medication you have been prescribed
  • referrals from your practitioner to others
  • the surgical procedure you underwent
  • your post-operative care
  • your practitioner’s behaviour

Is it free to make a complaint?

Yes.

Should I make a complaint?

Before making a formal complaint, it is recommended that you talk to your health care provider.

Being up front about your concerns and asking questions is often the most effective way to solve your complaint. This can also lead to a resolution much quicker.  You can do this in person or you could write a letter to your health service provider.

However, sometimes medical treatment may not be acceptable. In these cases, if you are not happy with the response you receive from your treating practitioner or this conversation is too upsetting, you can proceed with making a formal complaint to the Health Ombudsman.

How do I lodge my complaint?

You can complete an online health service complaint form and submit this online. Alternatively, you can print the complaint form and return as follows:

  • Mail:               PO Box 13281, George Street Brisbane QLD 4003
  • Email:             [email protected]

Alternatively, you can phone 133 646 and complain over the telephone or attend the Brisbane office.

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t      (07) 3231 0604

e     [email protected] 

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Medical Law © 2020 Privacy & Disclaimer

Do You Know The Boundaries of a Patient/Doctor Relationship?

When consulting with a doctor you have a right to feel: -

  • Informed
  • Heard
  • Safe
  • Comfortable

As patients, we have the utmost trust and faith in our doctors and treatment providers. An integral part of the doctor patient relationship is open communication and honesty. We tell our doctors things we would never tell anyone else, and we place our trust in our doctors to provide advice and undertake appropriate investigation and management.

Given the nature of this relationship, it is clear the doctor patient relationship is one which is inherently unequal.

Doctors have an ethical and legal obligation to make sure their patients feel safe, informed, and comfortable when receiving care and treatment.

Unfortunately, some doctors and medical providers use their position of power to exploit their vulnerable patients for their own gain.

Given the vulnerability of patients in this relationship, it is important that patients be aware of what constitute a breach of the doctor’s guidelines and the doctor patient boundaries.

What is considered a breach of the boundaries?

Generally speaking, behaviours that would constitute a breach include, but are not limited to: -

  • Forming emotional or sexual relationships with patients (regardless of patient consent)
  • Conducting physical examinations that are not clinically indicated or warranted
  • Sexual humour
  • Inappropriate touching, hugging or communications with a patient (including written communication)
  • Requesting details of sexual history or preference when not reasonably necessary to treatment
  • Engaging in a sexual relationship with a former patient or relative of a patient

Consent

Both the AMA and AHPRA have identified the issues surrounding patient consent to enter into sexual/intimate relationships with their treatment providers.

The issue with consent stems from the influence a doctor has over a patient and whether that consent is in fact informed consent, whether the patient has capacity, and whether the treatment being provided by the doctor could be expected to influence the patient’s decision making.

Relationships with former patients are also considered to be a breach of the guidelines as it is considered that the influence and power imbalance of the doctor patient relationship could extent long after the doctor ceases treating the patient.

Issues for Patients

Most patients who have been exploited by their doctors do not know what has occurred until sometime later as patients rarely understand what constitutes a breach of the guidelines and legal obligations of doctors and treatment providers.

In other circumstances there is a delayed recognition of breach by patients due to patient: -

  • Vulnerability
  • Being medicated
  • Not having capacity
  • Feeling threatened
  • Fear of losing the relationship
  • Being told not to tell anyone
  • Not understanding the behaviour is wrong until being advised by a third party

The delay in recognition is very common due to the nature and circumstances of the relationship.

Unfortunately, a breach of the boundaries can have detrimental effects on patients including: -

  • Significant psychological injury
  • Inappropriate care and treatment provided by the doctor resulting in further injury
  • Injury, loss, and damage

If these circumstances sound familiar, and it appears there has been a breach of the doctor patient relationship the patient may be entitled to bring a medical negligence claim against that doctor.

By bringing a medical negligence claim against the doctor the patient may be entitled to compensation for the injury, loss, and damage sustained as a result of that breach.

Find Out More

To find out more on medical negligence damages, see our blog post: 4 MOST COMMON DAMAGES CLAIMED IN MEDICAL NEGLIGENCE MATTERS & WHAT THEY MEAN FOR YOU.

For more information on the doctor patient relationship visit:

For mental health support, contact: -
  • Beyond Blue & Youth Beyond Blue - 1300 224 636
  • Health Information Line - Women (QLD) - 1800 017 676
  • Lifeline - 131 114
  • Mental Health Access Line (QLD) - 1300 642 255

One download between you and your key to compensation...

  • Printable or accessible as an interactive PDF;
  • Complete with examples, hints and tips, and space to do your working
  • 1 download for our entire 5-part online series

Want to fast track the process with our free interactive workbook?

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0604

e     [email protected] 

a     345 Queen St, Brisbane City


Medical Law © 2020 Privacy & Disclaimer

4 TIPS TO BE SUCCESSFUL IN YOUR MEDICAL NEGLIGENCE CLAIM

  • Prove you were owed a duty of care
  • Prove the medical provider breached the standard of care
  • Prove that breach caused you harm 
  • Prove that harm is not insignificant and has caused you damage 

Proving the duty of care relationship

Inherent in all patient and medical provider relationships is a duty of care to provide reasonable care and skill when treating a patient. This duty extends to any actions taken, proposed to be taken or any decisions not to act at all.

This relationship exists between a broad range of medical providers and their patients including but not limited to; doctors, nurses, hospitals, and allied health professionals.

Generally, it is easy to establish that a duty of care relationship exists between medical providers and their patients.

Once the duty of care relationship is established, the next step is to prove the medical provider breached that duty and the standard of care.

Breach of Standard of care


  • A breach of standard of care must be established with evidence.
    Often patients think that simply because they have suffered an injury there has been a breach. However, this is not always the case as some injuries are caused by complications or inherent risks of treatment/surgery which are not the fault of the medical provider and are unavoidable.
    Inherent risks and complications make establishing breach of standard of care very difficult.
    Some examples of a breach of standard of care include: -
  • Providing incorrect advice
  • Failing to appropriately investigate
  • Providing incorrect treatment
  • Providing unnecessary treatment
  • Providing treatment outside the field of expertise and training
  • Failing to diagnose
  • Delayed diagnosis
  • Failing to warn of risks
  • Failure to provide appropriate pre-operative and post-operative care and management

After proving there has been a breach of the standard of care the next step is to prove that the breach caused harm / injury.

Prove the breach caused you harm

Otherwise known as causation, it will need to be established that the breached caused injury and harm that could have been avoided.

Relating the injury and harm back to the breach can often be challenging as there are usually other factors at play which have, at least in part, contributed to the injuries sustained.

This means that any ordinary rehabilitation or healing associated with the procedure / treatment undertaken must be distinguished from any additional injury and harm caused by the breach.

Once the harm / injury resulting from the breach is identified, the loss sustained must be identified in order to claim compensation.

Damages

When it comes to putting a value on the loss caused by the breach, the following should be considered: -

  • Whether the injuries / loss / damage arising from the breach is ongoing and likely to cause problems in the future
  • Whether the breach has caused treatment needs that would otherwise not be required
  • The injuries have caused a loss of amenities and capacity
  • In NSW whether the breach has caused pain and suffering
  • In QLD whether you have sustained an injury severe enough to warrant an ISV assessment

Calculating damage as a result of breach can often be challenging as there are a number of “heads of damage” to consider which include general damages, economic loss, medical treatment, and domestic assistance.

While compensation for injury and loss will not put the injured party back in the position they were in prior to the breach occurring, the compensation received will certainly assist with injury maintenance and healing, and help the injured party find closure and focus on the future.

Therefore, it is very important to properly assess the damages in medical negligence claims so an appropriate amount of compensation can be obtained for the injury sustained.

Find Out More

To find more information on the damages you may be entitled to see out blog article: 4 MOST COMMON DAMAGES CLAIMED IN MEDICAL NEGLIGENCE MATTERS & WHAT THEY MEAN FOR YOU.

One download between you and your key to compensation...

  • Printable or accessible as an interactive PDF;
  • Complete with examples, hints and tips, and space to do your working
  • 1 download for our entire 5-part online series

Want to fast track the process with our free interactive workbook?

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0604

e     [email protected] 

a     345 Queen St, Brisbane City


Medical Law © 2020 Privacy & Disclaimer

The 4 Most Common Damages Claimed in Medical Negligence Matters

In medical negligence in order to be successful in your claim, you must prove with evidence that the defendant owed you a duty of care, breached that duty of care, and as a result of that breach caused you injury, loss, and/or damage.

If you are successful in establishing a breach you will be entitled to compensation for your injury, loss, and/or damage.

The compensation you receive is assessed under heads of damages.

The four (4) most common heads of damages are: -

  • General Damages /  Non-economic loss
  • Economic loss
  • Medical treatment & Out of Pocket Expenses
  • Care & Assistance

Damages Explained

General Damages/Non-Economic Loss

General Damages: In QLD, general damages are calculate on an “injury scale value” (ISV) as per the Civil Liability Act 2003 QLD.

The ISV scale ranges from 1 – 100 with 100 representing the most severe damage. 

The ISV that you are assessed at is entirely dependent on the injuries you have sustained.

General damages are payable on a scale up to the maximum of $398,700 which is reserved for the most serious of injuries.

Your ISV must be assessed by an expert which your lawyer will arrange for you.

Non-Economic Loss (NSW): In effect, non-economic loss represent a pain and suffering as a percentage of a most extreme case (MEC).

Non-economic loss is only payable for injuries of at least 15% of a most extreme case as per the Civil Liability Act 2002 (NSW).

Ultimately, the compensation you are entitled to receive depends on the individual needs and circumstances of your case and will take into consideration elements such as; your suffering, the extent of your injuries, disabilities, and damage, your future prospects, and generally the impact your injuries have on your quality of life.

Economic Loss

If as a result of your injuries you have had to take time off work, reduce your work capacity or ceased work in its entirety, you can claim compensation for your loss.

Your economic loss claim can be made in relation to your past and expected future economic loss including the associated loss of superannuation.

All claims for past economic loss must be supported with evidence such as, payslips, tax returns and medical certificates.

Claims for future economic loss must be supported by expert evidence setting out the nature and extent of your injuries and disabilities and the impact they have on your future employment. Your lawyer will arrange for you to be assessed for economic loss.

Medical Treatment and Out-of-Pocket Expenses

These damages include any treatment or expenses you have incurred in the past as a result of your medical negligence injuries. Past treatment and out of pocket are expenses are only claimable with evidence. Therefore, it is important you keep all receipts so you may recover your expenses.

Tip!

  • if you are required to take medication you can ask your pharmacist/chemist to open an account for you and keep a running tally of your purchases. That way, when your lawyer asks for your medical and out of pocket expenses you can request a print out of your entire purchase history.

Damages are also payable for your future medical treatment for the remainder of your life. Your claim for future treatment will be based on expert opinion. Your lawyer will arrange for you to be assessed for your future medical treatment needs.

Medical Treatment and Out-of-Pocket Expenses

If as a consequence of your injuries you require care and assistance undertaking your usual daily duties, domestic tasks, or self-care and personal hygiene needs you may be entitled to claim damages for care and assistance.

Care and assistance is compensable on both a gratuitous (provided by friends and family) and commercial (paid) basis.

In order to claim damages on a gratuitous basis, a friend of family member must be providing care and assistance for a minimum of six (6) hours per week for a minimum of six (6) months.

All claims for gratuitous care and assistance must be supported by evidence. The type of evidence required to support your gratuitous care and assistance claim could be; a calendar showing rotations/shifts of family and friends providing assistance, a schedule of care and assistance, or a statement by the person providing that gratuitous care and assistance.

Claims for paid care and assistance in the past must be supported with evidence such as receipts for payments for services. If you are paying for care and assistance, make sure you keep your receipts in a safe place so you can provide them to your lawyer to support your claim.

All future paid care and assistance will need to be supported with expert evidence detailing your injuries, associated symptoms, and restrictions, and how they affect your day to day life.

Usually your lawyer will arrange for an assessment by an Occupational Therapist (OT) to discuss your ongoing care and assistance needs.

KEY TAKEAWAYS

  • The damages claimable are entirely dependent on the nature and extent of the injuries suffered and your individual circumstances.

To learn more about damages in medical negligence claims, see our book on calculating damages here:

One download between you and your key to compensation...

  • Printable or accessible as an interactive PDF;
  • Complete with examples, hints and tips, and space to do your working
  • 1 download for our entire 5-part online series

Want to fast track the process with our free interactive workbook?

If you are not sure whether to bring a medical negligence claim and wish to know what damages you would may be entitled to you should contact Medical Law for a free case assessment.

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0604

e     [email protected] 

a     345 Queen St, Brisbane City


Medical Law © 2020 Privacy & Disclaimer

The Scope of GP Practice and Consent

THREE THINGS TO REMEMBER WHEN VISITING YOUR GP

  • Know you are entitled to ask your GP questions about their advice and treatment recommendations
  • If you do not understand speak up and ask for an explanation
  • If you are unsure about the advice or treatment you are being provided seek a second opinion

Duty of Care

In Australia, general practitioners are the primary port of call for our general health maintenance and are more often than not, the first person we consult for our health concerns.  

Many of us attend the same general practitioner for years, we often refer our loved ones and form a close relationship with our GP’s. Due to the nature of the doctor patient relationship we tend to form a high level of trust in the treatment and advice they provide as medical professionals.

In any relationship between a doctor and patient a duty of care exists. As a general practitioner, a duty of care is owed to the patient to: -

  • Provide medical care to the standard of a reasonably competent general practitioner  
  • To provide correct timely advice to the patient to the standard of a reasonably competent general practitioner
  • To provide treatment that is necessary and warranted
  • To warn of risks of such treatment that would be of significance to that particular patient

While this is not an exhaustive list, it is clear that a general practitioner must act in accordance with the duty of care at all times during their professional practice. This duty cannot be waived on the basis of a longstanding doctor patient relationship. The duty must be upheld in all circumstances.

Informed Consent

It was established in Rogers v Whitaker (1992) 175 CLR 479 that practitioners must warn their patients of any risks that would be of significance to that particular patient. Prior to undertaking any procedure, your GP must first warn you of the associated risks and provide your informed consent.

It is important to know that even if a consent form is signed by a patient, very little weight is given to that consent form if a patient can prove they were not appropriately advised of the particular risk of that procedure, or if their GP failed to advise of alternative treatments that may be better suited to that particular patient and their circumstances.

That being said, if consent is given for a procedure that falls outside a general practitioners scope of practice and qualification, it is irrelevant if consent is given as that treatment would be considered a breach of duty of care.

Scope of Practice

It is of the upmost importance for general practitioner to recognise the limit of their experience and qualification while practicing in their professional capacity as general practitioner in Australia, as well as the significance of informed consent.

McInnes Wilson Lawyers have been investigating claims in which patients have trusted and accepted the advice and treatment recommendations of their GP and have consented to treatment which their practitioners did not hold qualifications in Australia to undertake, and which fell outside the scope of practice in Australia resulting in the patients suffering loss, damage, and disability.

Our investigations concern patients who attended upon their general practitioner for excision of sun damaged skin/lesions and/or moles. Generally excision for biopsy is a small surgical procedure which is not considered high risk and can be undertaken by an appropriately trained general practitioner.

In this case, following the return of the initial biopsy results the general practitioner proceeded to recommend and undertake a large excision and graft to the patient’s chest. Subsequently the tissue became necrotic resulting in permanent scarring and disfigurement.

Our experts have advised that the general practitioner breached their duty of care by offering a surgery that was firstly incorrect, and secondly an extensive procedure that fell well outside the scope of general practice.

This type of extensive surgical procedures should be undertaken by appropriately trained specialists in plastic surgery or specialist dermatologist as recognised by AHPRA.

Further, our experts advised that to perform such an invasive and extensive surgery in a general practice environment was not only inappropriate but also increased the risk of complications such as infection.

These cases raise important issues about the scope of a general practitioners practice and what treatment falls within the scope of a GP practicing in Australia.

Treatment in Clinics

Generally speaking, a general practitioner’s practice in clinics is limited to: -

  • Minor biopsies of skin lesions
  • Lancing abscess
  • Skin tag removal
  • Foreign body removal
  • Freezing treatments
  • Minor suturing
  • Injections

What is certain is that extensive surgical procedures do not fall within the scope of general practitioners practicing in Australia, and should not be undertaken in general practice clinics.

If your GP is offering services over and above what would be considered a minor procedure, or if you are recommended treatment on a highly visible area such as your hands, décolletage, neck, or face, you should seek a second opinion from an appropriately trained medical specialist.

If you feel the advice you received from your general practitioner falls outside the qualifications and scope of practice of a general practitioner you should seek a second opinion.

KEY TAKEAWAYS

  • Know you are entitled to ask your GP questions about their advice and treatment recommendations
  • If you do not understand speak up and ask for an explanation
  • If you are unsure about the advice or treatment you are being provided seek a second opinion

If you think your general practitioner has breached their duty of care and has caused you loss, damage, or disability you should contact McInnes Wilson for a fee case assessment.

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0604

e     [email protected] 

a     345 Queen St, Brisbane City


Medical Law © 2020 Privacy & Disclaimer