The Mental Health Complaints Commissioner

 

In addition to making a complaint directly to the relevant mental health service or the Health Services Commissioner, a person can now make a complaint about a MHSP to the Mental Health Complaints Commissioner (MHCC). The MHCC was established on 1 July 2014 in part 10, division 1 of the MHA 2014. The MHCC is a specialist independent body pursuant to section 226 that is charged with handling complaints about any matter arising from the provision of or failure to provide mental health services by a MHSP.

A complaint may be made by a consumer or someone acting at their request, or another person with a genuine interest in their wellbeing. “Consumer” is defined (at s 3) to mean a person who has received or is receiving mental health services by a MHSP, or who was assessed by an authorised psychiatrist and was not provided with treatment, or who sought or is seeking mental health services which was or is not provided. Other agencies may also refer complaints to the MHCC.

The complaint may be made orally or in writing. Where a person does so orally, the MHCC must take reasonable steps to assist the person to confirm their complaint in writing (s 235(3)). A complaint must be made within 12 months of when the incident or matter the subject of the complaint took place, however the MHCC has discretion to accept a complaint after that time period if they are satisfied there is a good reason for the delay (s 236). Complaints can be accepted regarding matters that occurred on or after 1 July 2013.

Once the complaint is received in writing, the MHCC has 20 business days to either close the complaint or accept it. The MHCC also has discretion to refer a complaint, without the consumer’s consent to another body if they are satisfied that the complaint raises issues that require another body to investigate and it is in the public interest to make such a referral (s 242).

Functions of the MHCC (s 228) include to:

accept, assess, manage and investigate complaints relating to MHSPs;

resolve complaints in a timely manner using formal and informal dispute resolution as appropriate, including conciliation;

issue compliance notices;

provide advice on any matter relating to a complaint;

assist MHSPs to manage complaints;

assist consumers and other persons to resolve complaints directly with MHSPs;

identify, analyse and review quality, safety and other issues arising out of complaints and to make recommendations for improving the provision of mental health services; and

at the request of the Minister, investigate, and report on, any matter relating to MHSPs.

Once a complaint is accepted, the MHCC can use a range of methods to try resolving the complaint, including information, dispute resolution, conciliation and conducting an investigation. It can also serve compliance notices in certain circumstances and accept undertakings by the MHSP to remedy matters. If the matter is referred to conciliation, the consumer is entitled to have legal representation and another support person attend.

If the conciliation fails to resolve the complaint, the conciliator may recommend the MHCC investigate. However there is no right to appeal the matter to VCAT, for example, or to take the matter further through this process.

It is an offence to fail to comply with a compliance notice, and there are significant penalties attached. It is also an offence to threaten, intimidate or try to persuade a person to withdraw or not make a complaint, or to subject them to any detriment because of a complaint or intended complaint.

A complaint about an individual doctor or psychiatrist can also be made to the Australian Health Practitioners Regulation Agency. Community Visitors – an Office of the Public Advocate program – are empowered under part 9 of the MHA 2014 to inquire into the adequacy and standards of services and facilities. They are staffed by volunteers and have powers to inspect premises and documents, make inquiries and investigate complaints and to report on such.