Specifically, if the health ombudsman reasonably believes that a practitioner’s conduct, performance, or health “poses a serious risk to persons; and it is necessary to issue a public statement to protect public health or safety” in a way considered appropriate. He or she may also “identify, and give warnings or information about a person or a health service.” The ombudsman enjoys immunity if the statement is made in good faith.
Before and after the adoption of this law, commentary has focused on the inherent threat to free (medical) speech.
For example, in its submission to the Queensland Health and Environment Committee, the Australian Medical Association noted that it does not support the issuing of “a public warning before a tribunal has completed its actions. To do so would imply guilt and is likely to ruin a practitioner’s reputation.”
The association also pointed to any possible long-term effects of the ombudsman’s decision: “A public warning is a severe and non-retractable step and should be undertaken only after a health practitioner has been shown to have breached a code of conduct or convicted of a relevant offence.”
Similarly, the Australian Medical Professionals Society (AMPS), in its submission to the Committee, stated that it “cannot support the extension in law to publicly name and shame practitioners... without defining how risk is to be interpreted.”
AMPS is of the view that “this is yet another discretionary legislative amendment that ... could be used to publicly shame non-compliant practitioners, without the presumption of innocence, causing severe financial and permanent reputational damage, while regulators are provided with liability protection for any harms or damage caused.”
Removing Individual Medical Opinions
Prof. Augusto Zimmermann, commenting on the legislation in Quadrant, notes that the Act “subjects health practitioners to the threat of immediate suspension of their license for contradicting public health directions and government public health messaging. These powers will be used to control health practitioners by enabling a wide discretion for enforcement actions supporting public health directives.”He notes that the power conferred on the ombudsman overrides “notions of natural justice and the presumption of innocence, let alone any proper consideration of evidence put forward by highly qualified health practitioners possessing views in opposition.”
This legislation may well be used as a template by other states to ensure a uniform “national law” that will affect Australian patients to the detriment of their personal health.
These ominous warnings reveal that medical practitioners can no longer act on their professional opinions.
This state of affairs violates Article 19 of the International Covenant on Civil and Political Rights, according to which “everyone shall have the right to hold opinions without interference” and “shall have the right to freedom of expression.”
However, Article 19 also stipulates that this right is subject to “certain restrictions” for the protection of national security or of public health or morals. This provision is relied upon by proponents of the legislation to justify restricting the free speech rights of medical practitioners.
Result of COVID-19
This legislation, of course, is an unfortunate but alarming consequence of the COVID-19 pandemic. It spawned an unprecedented wave of emergency legislation which has demonstrably diminished the free speech of medical practitioners who disagree with the government’s narrative.The harmonious development of relationships between doctors and their patients was also impacted because free speech restrictions may now potentially affect the advice given to patients.
In empowering bureaucrats with the power to issue contentious health-related statements that harm the reputation of medical practitioners, emergency powers effectively suspend the free speech rights of medical practitioners for the purpose of protecting the health of Australians.
Australia’s ageing population and dissenting medical practitioners are also disproportionally affected by the dobbers’ mentality that has infected this country during the pandemic.
Australia became a dobber’s or snitching paradise, which, in the past, would have been considered decisively un-Australian.
She notes: “what we see, looking at the Crime Stopper data, is that when the government creates a state of emergency, it really starts to be enthusiastically policed, including by regular people,” and that “over the course of the pandemic, Crime Stoppers reports jumped almost 90 percent.”
The demonstrable loss of freedom of speech during, and in the aftermath of, the pandemic, nurtured by impugned legislation like the new Queensland health practitioner law, reveals the continuing relevance in today’s society of a quote attributed to Thomas Jefferson: “The price to pay for liberty is eternal vigilance.”
