67 My Battle to Make the Health Insurers Obey the Law Part 17, Section 1: 24 October 2024

Many astonishing events happened during my battle to force the health insurers to obey the law, but perhaps the most astounding episode of the refusal of the Ombudsman to perform its statutory duty occurred on 29 March 2022.

This was the day the Ombudsman finally acted decisively – not by telling the health insurers to obey the law but by ordering Lift Cancer Care Services to stop telling its patients that they had a right to complain to the Ombudsman about their health insurers. 

I believe that a number of crimes may have been committed by Emma Cotterill, Senior Assistant Ombudsman, when she sent this letter to Lift.  Apart from the possibility of crimes having been committed by the Ombudsman, it is impossible not to notice the grossly offensive tone of the letter.

In separate future blogs, I will unpick this letter and translate it from bureaucratic bullshit jargon into normal English.  I will also set out the relevant crimes that I believe may have been committed by the sending of this letter.

This is the letter from Emma Cotterill, Senior Assistant Ombudsman, dated 29 March 2022 to the Chief Executive of Lift Cancer Care Services.  I am reproducing it in full, replicating the font colours and the layout of the letterhead on this extraordinary document.

 

COMMONWEALTH OMBUDSMAN   29 March 2022 Ms Lauren Whiting Lift Cancer Care Services   By email: admin@liftcancercare.com.au   Dear Ms Whiting   Disputes regarding claims for claimable Type C services   We understand that there is an ongoing dispute between your facility and several private health insurers about the insurers’ denial of claims for claimable Type C services. We first wrote to you about this issue in February 2020. We understand that Lift Cancer Care provides treatment, mostly for ‘exercise medicine’, which is carried out as an in-patient procedure. Some insurers have declined claims due to what they consider insufficient details on the Type C Certificate, specifically about the treatment being administered, and questions about whether the service should be provided on an outpatient basis. We are aware your facility is encouraging patients with outstanding claims to contact the Office of the Commonwealth Ombudsman (the Office) to lodge a complaint about their insurer. In line with our role to handle complaints about private health insurance arrangements, we will continue to take and assess complaints from members regarding the non-payment of claims for services provided by Life Cancer Care. However, in our view, the concerns raised in these complaints reflect a broader dispute between your facility and certain insurers. It is our expectation that, wherever possible, the hospital and insurer should endeavour to resolve such disputes between them without further inconvenience to the patient (including requiring or encouraging them to exercise a right of complaint to our Office to have the matter resolved). Further, with respect to informed financial consent, we expect the hospital to advise patients about any costs for which they may be liable prior to the commencement of treatment, to mitigate any risk of patients receiving unexpected bills afterwards. We understand the Department of Health contacted you previously to provide information about the operation of Type C Certificates. We suggest you continue to liaise with the Department about this matter, ideally with a view to obtaining its advice about the relative merits of the positions held by your facility and the various private health insurers regarding payment for these claimable Type C services. If you wish to discuss this matter further, please contact Elle Starbuck via email (elle.starbuck@ombudsman.gov.au). Kind regards [Illegible Signature]   Emma Cotterill Senior Assistant Ombudsman Industry Branch

 

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COMMONWEALTH OMBUDSMAN

 

Unpicking the words “Commonwealth Ombudsman”

The agency from which the letter supposedly came was “Commonwealth Ombudsman”.

The “Commonwealth Ombudsman” is both a physical person and also a statutory “entity” established under section 4A of the Ombudsman Act. 

Under section 4A(c), the Commonwealth Ombudsman is “the accountable authority of the Office of the Commonwealth Ombudsman”. 

The “Commonwealth Ombudsman” is a subdivision of the “Office of the Commonwealth Ombudsman” and has no legal role in the duties of Private Health Insurance Ombudsman.  The Private Health Insurance Ombudsman is the official title of the body established to enforce the health insurance laws.

Whenever the human being who is appointed as the “Commonwealth Ombudsman” also acts as Private Health Insurance Ombudsman, that human being becomes the Private Health Insurance Ombudsman and - at least officially - does NOT act as the Commonwealth Ombudsman.

Staff at the Ombudsman are probably the only human beings in Australia – apart from me – who are familiar with the legal distinctions applicable to the various subdivisions of the “Office of the Commonwealth Ombudsman”.  Using “Commonwealth Ombudsman” letterhead rather than “Private Health Insurance Ombudsman” must have been intentional – and it was certainly meant to be confusing.

The confusion created by the letterhead is increased by the complete lack of contact information.  There is no address, phone number or email address given for the letter writer.  This cannot have been accidental; it was clearly intentional. 

The desire of Emma Cotterill, Senior Assistant Ombudsman must have been to deliver a “cease and desist spray” but not have to justify delivering that “spray”.

The legal distinctions between the Ombudsman and the Public Health Insurance Ombudsman have definite legal results which I will point out in future blogs.

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Emma Cotterill, Senior Assistant Ombudsman wanted to help the health insurers, but she was also an abject coward.  She hid behind as many layers of legislation as she could.