Information sheet 8.6 Suspected official misconduct Health system induction Module no. 8 Public accountability Key facts:  Section 21 of the Hospital and Health Boards Act 2011 (HHB Act) specifies that Hospital and Health Services (HHSs) are a Unit of Public Administration (UPA) under the Crime and Misconduct Act 2001 (CM Act).  As a UPA, a HHS is accountable and responsible for consideration, assessment and reporting of suspected official misconduct that arises within the HHS.  HHSs are required to report allegations directly to the Crime and Misconduct Commission (CMC). Section 38 of the CM Act places an obligation on the Chief Executive Officer of a UPA, to refer complaints of suspected official misconduct to the CMC. In a HHS this is the responsibility of the Health Service Chief Executive (HSCE).  The CMC will assess all referrals it receives and provide advice back to the HHS regarding how the complaint is to be dealt with. It is likely the complaint will be referred back to the HHS to manage. The level of monitoring and oversight by the CMC will depend on the seriousness of the complaint and the capability of the HHS.  Each HHS has nominated a designated CMC Liaison Officer who will be the CMC’s key contact for complaint referrals and their management. Management of Complaints  If the CMC determines the allegations amount to suspected official misconduct, it may determine how the complaint allegations should be dealt with pursuant to section 46 of the CM Act. For example, the CMC may deal with a complaint, may refer a complaint to a public official to deal with, or may require a joint investigation between the CMC and a public official.  A public official is defined in the CM Act as the Chief Executive of a unit of public administration (for example, the Director-General of Department of Health or the HSCE of a HHS.  The CMC may determine it is not practicable to refer the allegations to the HSCE to deal with, for example, because the allegations relate to the HSCE, or a Hospital and Health Board member, and may instead refer the matter to the Director-General.  If the CMC elects not to investigate a matter themselves, it may request the Director-General or HSCE to appoint a health service investigator, pursuant to their authority under section 190 of the HHB Act.  The Director-General may appoint the Department’s Ethical Standards Unit (ESU) to conduct an investigation into a HHS matter referred to the Director-General by the CMC.  On referring the allegations, the CMC determines the level of oversight it wishes to have in the investigation. There are three options: – outcome advice only – no general oversight by the CMC during the investigation/enquiries. The CMC requires provision of copies of outcome advice letters to the subject officer and discloser at the completion of the enquiry or disciplinary process. – review after action taken – CMC maintains some oversight of the investigation and may request interim reports. It may also provide direction about necessary enquiries. The final investigation report and outcome correspondence are provided to the CMC for review after the decision maker has made any disciplinary findings. – review before action taken – as per review after action, however, the final investigation report and outcomes are provided to the CMC for review before the decision maker is provided with the report. The CMC reviews the process and proposed recommended findings and determines if sufficient investigation has been undertaken.  At the conclusion of the investigation, an investigation report is prepared by the health service investigator for the appointer (i.e. Director-General or HSCE), pursuant to section 199 of the HHB Act. A copy of the report may also be required to be provided to the CMC for review.  The Director-General does not have authority to make any findings relating to an investigation into the conduct of a HHB member, the HSCE, or a health executive employed in a HHS. Pursuant to section 199 of the HHB Act, the Director-General may take the action he considers appropriate in relation to the matters identified in the report, including provision of the report to the relevant decision maker to make disciplinary findings. In the case of a HHB member, the report is provided to the Minister for Health. In the case of a HSCE it is provided to the HHBoard through the Chair, unless the Chair is in a position of conflict; and in the case of a health executive employed in a HHS, it is provided to the HSCE, unless the HSCE is in a position of conflict.  The relevant decision maker is asked to advise of the final outcomes to enable the information to be provided to the CMC to close the matter.  Where a matter has been referred by the CMC to the Director-General or a HSCE for investigation, the CMC has no decision-making authority as it is no longer a CMC investigation. Frequently asked questions:  What is Official Misconduct?  The CM Act defines official misconduct. The CMC guide ‘Facing the Facts’ summarises the definition as conduct: 1. relating to the performance of a person’s duties that 2. is dishonest or lacks impartiality, or involves a breach of the trust placed in an officer by virtue of their position, or is a misuse of officially obtained information AND 3. is a criminal offence or conduct serious enough to justify dismissal.  What are some common types of Official Misconduct?  Whilst each matter is assessed according to its particular circumstances, some common types of Official Misconduct are: – Fraud (e.g. timesheets, cab charge) – Drug/Medication theft or misuse – Patient assaults – Systemic non-compliance (non compliance with legislation, and directives) – Failure to report suspected Official Misconduct (depending on circumstances) – Unauthorised disclosure of patient information – Process corruption (e.g. recruitment, purchasing processes).  What can happen as a result of an investigation into suspected Official Misconduct?  The investigator provides an investigation report to the relevant decision maker (normally a HSCE). The report contains findings as to whether the allegations could be substantiated based on the available evidence and will also include recommendations in relation to any systemic issues. The decision maker is then responsible for taking appropriate action based on the report. This may include the commencement of ‘show cause’ proceedings if the allegations are substantiated and disciplinary action is proposed. The CMC will maintain oversight of investigations and may review them prior to any action being taken by the HSCE. Information sheet -2-  Should all suspected official misconduct be investigated?  No. Generally an investigation is a last resort, or reserved for the most serious allegations. Investigations can be time-consuming, resource intensive and impact negatively on the morale of work units. There are a number of alternatives to investigations such as: – an existing system or process e.g. a clinical review – preliminary inquiries – managerial resolution – the mediation process – the grievance process – systems review – commence disciplinary action – take no action. The feasibility of other resolution methods will be examined first before recommending an investigation. Useful references: Document Name Link / Location Queensland Legislation Website https://www.legislation.qld.gov.au/OQPChome.htm Crime and Misconduct Commission http://www.cmc.qld.gov.au/ CMC Guide ‘Facing the Facts’ http://www.cmc.qld.gov.au/topics/misconduct/advice/dealing-with-suspected-misconduct Contact for further information: Contact Office of Health Statutory Agencies Telephone Email 3234 1705 [email protected] Revision history: Date Version No. 11/07/2012 v.1.0 Endorsed First Version 02/05/2013 v.2.0 Reviewed April 2013 28/02/2014 v.3.0 Updated January-February 2014 to include further detail on management of complaints Information sheet Description of Change/Revision -3-