Employer Notifications to AHPRA: Are they privileged or not?

03 June 2022

The Court of Appeal upheld the trial judge’s decision that an honest but mistaken belief justified the extension of the limitation period for a defamation claim relating to a work complaint. However, it disagreed that the claim was bound to fail on the basis that the Health Practitioner Regulation National Law only provided a qualified, not absolute, privilege for notification of complaints. As a result the limitation period for the defamation claim was extended to allow the claim to be brought.

In Issue

  • The Court of Appeal reviewed the decision of the trial judge as to extension of the limitation period applying to the applicant’s claim against his employer (Mackay Base Hospital) for defamation; being in respect of a notification made to AHPRA as to his alleged conduct in the workplace.

The background

The applicant was working as a locum psychiatrist at Mackay Base Hospital when his employment was terminated following a complaint circulated by other members of his department. Following his termination, his department head made a notification to the Health Ombudsman pursuant to section 141 of the Health Practitioner Regulation National Law (Qld) (National Law), which initiated an investigation into the applicant’s registration by AHPRA.

It took over a year for the AHPRA investigation to conclude. AHPRA eventually determined that it would take no further action against the applicant. In its decision AHPRA found that the Mackay Base Hospital made no attempt to independently substantiate the allegations raised against the applicant, which were relied upon to terminate his employment.

The applicant discussed the matter with a solicitor who had been appointed to act on his behalf by his insurer. The applicant misunderstood the advice he was given – he believed the solicitor advised him to wait for the determination of the AHPRA investigation to conclude before retaining a law firm to commence proceedings for defamation against the hospital. A few days after being notified that the AHPRA investigation was finalised, he consulted another solicitor and learned of the 1 year limitation period. He then made an application to extend the limitation period, on the basis that he was not previously aware that the statutory limitation period for an action in defamation was 1 year from the date of publication.

The decision at trial

The trial judge accepted that the limitation period should be extended. She relied on the applicant’s evidence that he earnestly believed that he was not able to commence his proceeding until the AHPRA proceeding concluded. She considered his defamation action to be futile, however, on the basis that the hospital’s communications to AHPRA were protected by absolute privilege. In those circumstances the trial judge only extended the limitation period to a date that preceded the commencement of proceedings. His action thus remained statute barred.

The issues on appeal

The Court of Appeal reviewed whether the applicant was entitled to an extension of the limitation period, and in so doing also considered whether the allegedly defamatory notification to AHPRA was protected by absolute privilege pursuant to s 237 of the National Law.

The Decision on appeal

The Court of Appeal held that the applicant reasonably believed he had to wait until the AHPRA investigation concluded to determine if he held a basis to sue for defamation. In that context the Court of Appeal extended the limitation period to commence from the date of AHPRA’s ultimate decision.

Also, and significantly, the Court of Appeal held that there was no absolute privilege which attached to the hospital’s notification to AHPRA. After reviewing the relevant legislation and case law, the Court of Appeal determined that the regime created by the National Law did not provide for such a defence. The terms of s 237 of the National Law, which extends privilege to a person who, in good faith, makes a notification under the National Law, supported this construction.

The practical result is that the National Law provides for a defence of qualified privilege (not absolute privilege) to parties making notifications to the AHPRA, meaning that whether such a defence may apply to an allegedly defamatory communication will depend on the facts and whether the communication was made in good faith.

Implications for you

When making a mandatory notification to AHPRA about a registered health professional, the communications are protected by a qualified (but not absolute) privilege. This means that there may be no liability in a subsequent claim for defamation if the communication can be shown to have been made in “good faith”.

In this context health providers and employers should consider taking steps to ensure that all information included in a notification to AHPRA is based on facts that are accurate and can ideally be independently verified.

Akbari v State of Queensland & Anor [2022] QCA 74

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation