73 My Battle to Make the Health Insurers Obey the Law Part 17, Section 4: 29 October 2024

 

Possible Crimes Arising from the Emma Cotterill Letter Dated 29 March 2022(2)

What I said in Blog 72 about the need for a Court to make a finding of guilt in any criminal matter, also applies to the crimes and civil liabilities summarised in this Blog.  Guilt or liability must be decided by the Court.

Abuse of Public Office

Section 142.2 of the Criminal Code makes it a crime for an Australian “public official” to misuse his or her powers as a public official to gain a personal benefit or to cause a detriment to another person. 

Section 142.2 is headed “Abuse of public office” and section 142.2(1) says this.

(1)  A Commonwealth public official commits an offence if:                      (a)  the official:                               (i)  exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or                              (ii)  engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or                             (iii)  uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and                      (b)  the official does so with the intention of:                               (i)  dishonestly obtaining a benefit for himself or herself or for another person; or                              (ii)  dishonestly causing a detriment to another person. Penalty:  Imprisonment for 5 years.

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Writing the letter to Lauren Whiting was intended to deter Lauren from telling Lift patients they had a right of complaint to the Ombudsman about the conduct of the health insurers.  The demand was perverse and I believe no reasonable public official could have properly made this demand.  There is an almost irresistible inference that the motivation of the letter was a desire to provide a benefit to the health insurers.

As a minimum, the letter aimed to cause great commercial disadvantage to Lift.  

It was implicit in the letter that the Ombudsman would not properly consider any complaints made by Lift patients.  This would give the health insurers a significant commercial advantage.

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I believe there are strong grounds to believe a crime under section 142.2(1) was committed.

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The suspicion of corrupt conduct by the Ombudsman is very strong. 

I believe that someone working at the Ombudsman clearly acted “dishonestly” to  “cause a detriment” to both Margaret and me and others.

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It was rationally and legally impossible for the Ombudsman to dismiss our complaints unless someone at the Ombudsman committed the offence created by section 142.2(1)

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Misfeasance in Public Office and Other Matters

I believe the Ombudsman letter dated 29 March 2022 amounts to the tort (or legal wrong) of Misfeasance in Public Office.  If correct, Emma Cotterill should be subject to disciplinary action and could be sued by Lift for damages or any other appropriate remedy.

The following information about misfeasance in public office is from Legal Briefing Number 115, issued by the Australian Government Solicitor.  

The following elements are required to constitute misfeasance in public office.

1.      The defendant must be the holder of a public office.

Emma Cotterill says she is “Senior Assistant Ombudsman, Industry Branch” at the “Commonwealth Ombudsman”.  She obviously held public office.

2.      The defendant must have purportedly exercised a power that was an incident of that office. 

In her position as “Senior Assistant Ombudsman, Industry Branch”, Emma Cotterill wrote to Lift saying it should cease “encouraging” its patients to exercise rights given under the very statute which created the Ombudsman.  She said:

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

 

These words must be interpreted an official order for Lift to stop informing its patients about their legal rights.

3.      The defendant’s exercise of power must have been invalid or otherwise lacking lawful authority.

A direction such as the Emma Cotterill gave was clearly unlawful. 

It was unlawful for Emma Cotterill to exercise her authority under the Ombudsman Act to try and persuade people not to exercise their legal rights.

4.      The exercise of power must have been accompanied by one of the following types of ‘bad faith’:

4.1.         The defendant must have exercised the power knowing that it was in excess of power AND with the intention of causing harm (sometimes referred to as ‘targeted malice’).

4.2.         The defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of causing harm.

4.3.         The exercise of power must have been productive of loss.

I believe these requirements are satisfied. 

Senior Assistant Ombudsman Emma Cotterill must have known her position required her to encourage patients with a grievance to exercise their right to complain to the Ombudsman. 

She must have known she was acting in excess of the power given to her as Senior Assistant Ombudsman.  

Even though there is no direct evidence she intended to cause harm to Lift, she was clearly indifferent to the probability this would happen.  She effectively urged Lift to accept the financial loss caused by the unlawful actions of the health insurers.

The Emma Cotterill letter was part of conduct by the Ombudsman which had, at the date of the Cotterill letter, already resulted in serious financial harm to Lift.  The refusal of the Ombudsman to perform its duty caused the accumulation of large debts because of the refusal of the insurers to pay Lift what the law required them to pay.  If the Ombudsman had done its duty, those debts would never have arisen. 

Later that year, a senior Ombudsman officer claimed the eventual payment of the Lift debts by the health insurers was the result of action by the Ombudsman.  This was a direct lie.

I will give details later of my continued “letter war” which eventually forced the insurers to to obey the law.  That payment would have happened much sooner if the Health Department and the Ombudsman had not been running a “protection racket” for the health insurers.

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Another Relevant But Nasty Fact

A very reprehensible aspect of the Cotterill letter is that Lift Cancer Care Services was entitled to make its own complaints to the Ombudsman about the refusal of the health insurers to obey the law. 

If Lift had exercised this right, the Ombudsman would in theory have been legally obliged to accept those complaints and resolve them.  The Emma Cotterill letter made clear that if Lift had exercised its right of complaint to the Ombudsman, there was zero chance those complaints would be assessed impartially. 

As “Senior Assistant Ombudsman, Industry Branch” at “Commonwealth Ombudsman”, Emma Cotterill must have known Lift also had a right to complain to the Ombudsman.  By writing her letter, she effectively nullified that right.