72 My Battle to Make the Health Insurers Obey the Law Part 17, Section 3: 28 October 2024

 

Possible Crimes Arising from the Emma Cotterill Letter Dated 29 March 2022

 

The only way to establish that a crime has been committed is to institute a proper criminal law process.  The prosecution must lay a charge.  The charge must be heard before a Court, and the Court must make a finding that the charge has been proved.

Before any finding can be made by a Court, there must be an investigation where evidence is uncovered that indicates a crime may have been committed.  I have no powers of investigation and I am unable to predict the result of any prosecution in a Court.

Even with these handicaps, I can identify relevant criminal offences which I believe may have been committed based on the facts known to me.  In the following analysis, I do not assert that specific crimes were definitely committed by anyone.  Instead, I identify specific crimes which I believe may have been committed based on the information I currently have.

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In my opinion, the 29 March 2022 letter from the Ombudsman to Lauren Whiting, Chief Executive of Lift Cancer Care, may have resulted in at least one crime and possibly more than one crime having been committed by the Ombudsman as a statutory corporation and personally by Emma Cotterill, Senior Assistant Ombudsman.  These potential crimes are listed in sections 135 to 142 of the Australian Criminal Code Act, 1995. 

Proper investigation would be needed before specific individuals other than Emma Cotterill could be identified as having also possibly committed crimes. 

In the following sections, I summarise the relevant Criminal Code Act provisions which the letter may have violated. 

It is indeed possible that other crimes created by different laws may also have been violated, but I have not tried to identify other possible crimes.

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Unwarranted demands

Section 139.2 of the Criminal Code makes it a crime for an Australian “public official” to make an “unwarranted demand” in his or her capacity as a public official.  Section 139 is headed “Unwarranted demands”.  Section 139.2 is headed “Unwarranted demands made by a Commonwealth public official”.  Section 139.2 says this.

139.2 Unwarranted demands made by a Commonwealth public official                    A Commonwealth public official commits an offence if:                      (a)  the official makes an unwarranted demand with menaces of another person; and                      (b)  the demand or the menaces are directly or indirectly related to:                               (i)  the official’s capacity as a Commonwealth public official; or                              (ii)  any influence the official has in the official’s capacity as a Commonwealth public official; and                      (c)  the official does so with the intention of:                               (i)  obtaining a gain; or                              (ii)  causing a loss; or                             (iii)  influencing another Commonwealth public official in the exercise of the other official’s duties as a Commonwealth public official. Penalty:  Imprisonment for 12 years.

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The writing of the letter to Lauren Whiting contained a clear demand that she not tell Lift patients they had a right to make complaints to the Ombudsman .  This demand was even more menacing because it was made by the Ombudsman to Lift.  On the assumption the Ombudsman was familiar with its own legislation, Ms Cotterill must have known that Lift Cancer Care Services was itself entitled to make complaints to the Ombudsman . 

The underlying threat in the letter was clear.  Unless Lift did as the letter demanded, it would receive zero help from the Ombudsman if it ever made its own formal complaints.  

The letter include these words –

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

 

these words did nothing at all to alleviate the clear message in the letter that:

·         The Ombudsman had no objectivity in relation to Lift;

·         The Ombudsman would act to injure Lift if it kept telling its patients they had the right to complain to the Ombudsman.

The inherent threat contained in the letter is particularly potent given that the “Public Health Insurance Ombudsman” (to which complaints about the health insurers had to be formally addressed) was and still is a sub division of the “Office of the Ombudsman”. 

I believe there was a clear threat contained in the letter.  

Unless Lift complied with the demands in the letter, Emma Cotterill, Senior Assistant Ombudsman, implied she would use her influence in her capacity as an officer at the Commonwealth Ombudsman to –

o   Cause loss or injury to Lift Cancer Care Services; and/ or

o   Influence officers working in the Private Health Insurance Ombudsman to perform their duties in a manner which would have undesirable consequences for Lift Cancer Care Services and any of its patients who might complain to the Public Health Insurance Ombudsman.

Making the demand made in the letter was perverse and no public official performing his or her official duties could have reasonably made this demand.  The letter raises gives a strong impression that it was motivated by a wish to give a substantial and unlawful advantage to the health insurers. 

This is particularly so given that as at the date of this letter, the stated reason for refusal to pay the Lift Cancer Care Services claims were definitely known to be false by the Ombudsman .  The Ombudsman knew the stated reasons were false because I had already told the Ombudsman this. 

According to the Ombudsman, the stated reason for non payment – was that requests for additional information had been ignored by Lift. 

I had provided the Ombudsman with complete documentation for every one of Margaret’s claims.  This documentation conclusively proved the falsity of the claim that requests for additional information had been ignored.

The Ombudsman knew this claim was a completely lie.

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In my opinion, when Emma Cotterill, Senior Assistant Ombudsman, wrote and sent the 29 March 2022 letter to Lift Cancer Care Services, the requirements for commission of a crime under section 139.2 of the Criminal Code were satisfied..