56 My Battle to Make the Health Insurers Obey the Law Part 11 - Section 2: 15 October 2024

Having sent a completely meaningless response to me through Senator Griff, Health Minister Greg Hunt refused any further involvement in the unlawful conduct of the Health Insurers - even though it was his Ministerial duty under the legislation to force them to obey the law.  This was the only response that Senator Griff ever received from Minister Greg Hunt. 

Health Minister Greg Hunt was in fact already well aware of the unlawful conduct of the health insurers, but he was not seeking re-election and he had no intention of acting to make the health insurers obey the law.  

The opening words of the Greg Hunt mail were couched in language that Sir Humphrey Appleby from Yes Minister might have written himself

 

Please see advice below, which may also assist with engaging further directly with HCF

 

These fourteen words amounted to the Minister declaring that he did not intend to help in any way.

When I eventually forced the health insurers to obey the law, I had received no help at all from the Minister even though the Minister could have enforced the law by ordering the insurers to obey the law.  I believe the Minister definitely knew what was happening and he had the power to stop the unlawful behaviour but he refused to enforce the law.  I can think of no honest reason why the Minister might have acted with such complete disregard for the law and for his statutory duty.

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Everything I sent to the Ombudsman on 21 February – the letter, copies of the claim documents, copies of the rejection letters, the invoices and the receipt from Lift – was ignored.  Although the documentation showed very clearly that HCF had lied to the Ombudsman and ignored the law, the Ombudsman showed zero interest.  The Ombudsman refused to carry out its duties as required by law. 

My genuinely held belief was that the Ombudsman and the Australian Department of Health, had established a “Protection Racket” ensuring that the health insurers could break the law without incurring any consequences.

When the Ombudsman was truly needed, it had completely vanished.

 

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The task facing me was now clear.  HCF – and presumably Teachers’ Health and NIB – knew what the law required and were ignoring the law.  HCF was ignoring the law because the Australian Health Department, the key regulator, and the Ombudsman as secondary regulator, had effectively told it that they would not enforce the law.  In forcing HCF to obey the law, I could anticipate no cooperation from HCF, and no help at all from the Health Department or the Ombudsman.

 

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I reread the email forwarded by Senator Griff from the Health Minister and again wondered what I should do.  The only person who could immediately remedy the open defiance of the law by the health insurers was Health Minister Greg Hunt – and Greg Hunt had clearly decided he would do nothing.  Greg Hunt had not the slightest interest in doing his Ministerial duty.

 

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Although Margaret would almost certainly die because of her cancer, she was clearly benefitting from her treatments at Lift Cancer Care Services. In July 2020, the most optimistic prognosis for Margaret was that she might survive to Christmas 2020.  By February 2022 she had outlived that prognosis by one year and three months.  Margaret’s life had been extended by her inner strength and by her treatments.  Logic told me other Lift patients must also have benefitted from their Lift treatments. 

If the health insurers were allowed to continue to ignore the law, at the very least, people with cancer were likely to die sooner than they should.  It was possible that some patients would die when they might defeat their cancer if they received appropriate treatment.  All of these patients had private health insurance, but the conduct of the health insurers meant their insurance was useless when they needed it most.

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I decided I would persist.  I would not give up.  I could not let the health insurers get away with such vile behaviour.  I owed a duty to not just to Margaret but to other cancer sufferers - present and future.  I could not let people die needlessly while I did nothing.

I considered possible court action.

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If I went down the court action road, what court should I apply to? 

The two potential South Australian courts were the Adelaide Magistrates Court and the South Australian District Court.  There might be a possibility of bringing action in the Federal Court of Australia.  What were the advantages and disadvantages of suing in one court instead of another court?  Legal costs were certainly a matter that had to be taken into account, but I needed to consider what orders the different courts had the power to make.

What orders should I seek?

If I wanted damages, I could apply to the Magistrates Court, but a damages order would simply order HCF to pay me the money that it should have paid for Margaret’s treatments.  It would have no legal effect on the rights of other patients. 

I needed court orders that would have a general impact on all health insurers and all of their patients. 

The Magistrates Court could order people to obey the law (injunctions), but this power applied only to the parties in the specific matter before the court.  At best, the Magistrates Court might order HCF to obey the law in relation to everyone insured with HCF.  This would have no legal effect on other health insurers.

Some courts have the power to make declarations of the law that bind everyone.  These orders are called declaratory judgments.  To get an order binding all health insurers, I would need to apply to a court with the power to make a declaratory judgment.

If I did apply to a court with the power to make a declaratory judgment, what were the legal grounds on which I should apply to the selected court?  If I applied on what was eventually judged by the court to be an inappropriate legal ground, I could spend years in court and eventually lose because I had selected the incorrect legal ground.

At the end of years of legal proceedings, I might end up with nothing to show for my efforts – and Margaret’s cancer would continue to eat away at her digestive system while the court action slowly proceeded through the court system.

I reluctantly decided to institute court action if I had to, but not immediately.  I would exhaust the alternatives first.