Can a notification be defamation?

The issue of defamation and mandatory notification continues in Queensland. In the reported case of Akbari v State of Qld [2022] QCA 74, the decision of the District Court was reviewed in the Court of Appeal.

Dr Akbari is claiming to have been defamed by the Mandatory Notification made on 4 April 2019.

Much of the decision related to an extension of time, but the section relevant to health practitioners relates to privilege and whether the making of a mandatory notification is subject to absolute privilege or qualified privilege. The Court below determined that there was an absolute privilege attaching to matters in a notification - in this case to the Office of the Health Ombudsman.

In essence, section 237 of the National Law sets out that the privilege extends only to those who make notifications in good faith. The Court held on appeal that there was no absolute privilege, rather a qualified privilege as set out in the National Law as to good faith.

Although a practitioner making a mandatory notification will not be penalised under the National Law, if it is not made in good faith, the practitioner may still theoretically be subject to defamation proceedings and regulatory proceedings.

If a practitioner fails to make a mandatory notification, they are not subject to criminal prosecution under the National Law, but such a failure will be a matter that goes to professional conduct - see Medical Board of Australia v Al-Naser [2015] ACAT 15.

If you, as a practitioner, have doubts about whether you should make a notification, mandatory or otherwise, then you should seek proper peer advice from your indemnifier or a lawyer.