Making a complaint

 

The health care industry is vast, encompassing everyone from traditional doctors and ambulance services to Chinese herbal medicine practitioners and osteopaths. Every health care professional must adhere to a range of laws that govern their fields of practise and, if they do not, their patients have the right to lodge an official complaint with several bodies who have the power to address these issues.

There are two formal ways to lodge a complaint about practitioners or health care services in Victoria. A complaint may be lodged with the Office of the Health Services Commissioner or with the Australian Health Practitioner Regulation Agency (AHPRA). These processes are described in greater detail below. In the case of a designated public sector mental health service, complaints may be lodged with the Mental Health Complaints Commissioner (see Mental illness).

It should be noted that most public hospitals also have complaints liaison officers who can help resolve a complaint (therefore removing the need to resort to a more formal mechanism).

Where there has been a significant problem with management of a health service, a complaint may be made to the Department of Health and Human Services or to the Minister for Health.

In 2010, the procedures for handling complaints against health professionals were extensively amended.

Health Services Commissioner

The Health Services Commissioner is appointed under the Health Services (Conciliation and Review) Act 1987 (Vic) (“HSCRA”). The objects of the HSCRA are to:

enable users of Victorian health services to have their complaints about health services resolved by an independent and accessible mechanism;

encourage health service providers to follow guiding principles that promote prompt, considerate, high quality health care that respects privacy and dignity, provides adequate and understandable information, encourages participation in decisions about treatment and an environment of informed choice; and

lead to improvements in the quality of health care and in the extent to which the guiding principles of providers and users are followed.

The types of health services the HSCRA covers include “alternative” as well as “mainstream” health services, and welfare services necessary to implement certain health services. Health services are defined broadly and include:

medical, hospital and nursing services;

dental services;

psychiatric services;

pharmaceutical services;

ambulance services;

community health services;

health education services;

associated welfare and social work services;

therapeutic counselling and psychotherapeutic services;

laundry, cleaning and catering services, where those services affect health care or treatment;

services provided by chiropodists, chiropractors, osteopaths, dieticians, optometrists, audiologists, audiometrists, prosthetists, physiotherapists and psychologists;

services provided by optical dispensers, masseurs, occupational therapists and speech therapists;

services provided by practitioners of naturopathy, acupuncture and in other alternative health care fields;

services provided by Chinese herbal medicine practitioners, acupuncturists and Chinese herbal dispensers; and

health services prescribed under the Act.

Services provided by the Department of Health and the Secretary to the Department of Health are also covered by the HSCRA.

A complaint can be made through a variety of mechanisms including via telephone, email, the online complaint form, in writing, and in person. Straightforward matters may involve a staff member telephoning the provider with a request to respond directly to the complainant or it may involve shuttle negotiation between the parties. When a complaint is made, is assessed as falling within jurisdiction and is to be acted upon, the parties are contacted and asked whether they agree for the matter to be referred into conciliation. Once referred into conciliation the provider is asked to respond to the complainant. If a satisfactory resolution is not achieved, the Commissioner will examine the complaint to assess why the dispute has not been settled and whether it warrants further attention. A recommendation may be made that the complaint be referred to AHPRA; AHPRA is the administrative body delegated to handle matters by the National Boards. The National Boards may formally consider disciplinary proceedings on the part of the practitioner.

Conciliation is seen as having certain advantages over litigation, in that it is cheaper and quicker, and an outcome satisfactory to both parties may be negotiated. All proceedings during conciliation are confidential, and information obtained cannot be used as evidence in court or tribunal, by a registration board, accessed under the Freedom of Information Act 1982 (Vic) or used as the basis of an investigation by the Commissioner. If a compensation settlement is reached at the end of conciliation, a deed of release may be prepared, which sets out the obligations of both parties. In some cases, this may involve the provider paying compensation to the complainant. A consumer may seek legal advice before signing the release but, once it has been signed, they will be unable to take any legal action against a provider who is observing the terms of the settlement.

A complaint that is unsuitable, or unable, to be conciliated, and is outside the jurisdiction of a registration board, may be investigated formally by the Commissioner. The Commissioner may question the consumer and the provider on oath, and the provider may be legally represented. The Commissioner reports annually to Parliament and may name any person investigated, but has no other power to enforce their recommendations in the event of non-compliance.

To make a complaint, contact:

Health Services Commissioner

Level 26, 570 Bourke Street, Melbourne Vic 3000

Tel: 1300 582 113

Email: hsc@dhhs.vic.gov.au

Web: www.health.vic.gov.au/hsc

Twitter: @OHSC Victoria

Health Complaints Commissioner

The Health Complaints Act 2016 (Vic) (“HCA”) was given royal assent by the Governor on 3 May 2016. The HCA replaces the HSCRA and commences no later than 1 February 2017. The purposes of the HCA are:

to provide a complaints process and other processes about health service provision and related matters;

to establish the office of Health Complaints Commissioner;

to establish the Health Complaints Commissioner Advisory Council;

to repeal the Health Services (Conciliation and Review) Act 1987 (Vic);

to make minor and consequential amendments to other Acts; and

to provide for related matters.

The definition of “health service” is very broad and is defined as:

(a) an activity performed in relation to a person that is intended or claimed (expressly or otherwise) by the person or the provider of the service:

(i) to assess, predict, maintain or improve the person’s physical, mental or psychological health or status, or

(ii) to diagnose the person’s illness, injury or disability, or

(iii) to prevent or treat the person’s illness, injury or disability or suspected illness, injury or disability;

(b) a health-related disability, palliative care or aged-care service;

(c) a surgical or related service;

(d) the prescribing or dispensing of a drug or medicinal preparation;

(e) the prescribing or dispensing of an aid or piece of equipment for therapeutic use;

(f) health education services;

(g) therapeutic counselling and psychotherapeutic services;

(h) support services necessary to implement any services referred to in paragraphs (a) to (g);

(i) services:

(i) that are ancillary to any other services to which this definition applies, and

(ii) that affect or may affect persons who are receiving other services to which this definition applies;

(j) any other prescribed services.

The HCA (sch 2) legislates a Code of Conduct for general health services that brings Victoria in line with New South Wales, Queensland and South Australia in the manner the health complaints entities address serious complaints about non-registered health care workers.

In addition to the establishment of the Code of Conduct, the HCA establishes that health services should attempt to resolve matters in the first instance and that anyone can make a complaint to the Health Complaints Commissioner (e.g. a consumer, carer and third party). It introduces a more flexible approach to complaints handling and retains the strong confidentiality provisions for conciliation. It also introduces greater powers of investigation, including the capacity to hold a hearing and to initiate “own motion” investigations following consultation with the President of the Health Complaints Commissioner Advisory Council. There will remain a capacity to administer an oath or affirmation and the requirement to attend a hearing.

The Health Complaints Commissioner will be able to require a response from a health service provider and failure to provide a response may result in penalties. The Health Complaints Commissioner will be able to make public health warning statements and general health service warning statements and will be able to apply both interim and ongoing prohibition orders for non-registered health workers. These orders are appealable to the Victorian Civil and Administrative Tribunal (VCAT) and there are significant penalties to both individuals and owners corporations for contravention of those orders.

Complaints Data Reviews will also gather information about the complaints received by the Health Complaints Commissioner and will make recommendations to health services about any trends identified by those reviews.

The HCA requires the development of complaints handling standards by the Health Complaints Commissioner within two years and those standards are to be endorsed by the Governor-in-Council. There is also greater capacity to share information with relevant organisations, including the Secretary of the Department.

The mechanisms by which people will be able to complain to the Health Complaints Commissioner will remain the same as the way people can complain to the Health Services Commissioner.

Registration boards

Since 1 July 2010, 14 health professions have been regulated under the National Registration and Accreditation Scheme. These professions are:

Aboriginal and Torres Strait Islander health practitioners;

Chinese medicine practitioners;

chiropractors;

dental practitioners (including dentists dental hygienists, dental prosthetists and dental therapists);

medical practitioners;

medical radiation practitioners;

nurses and midwives;

occupational therapists;

optometrists;

osteopaths;

pharmacists;

physiotherapists;

podiatrists; and

psychologists.

There is a national board for each of these professions. The primary role of the boards is to protect the public. They set standards and policies that all registered health practitioners must meet.

The Australian Health Practitioner Regulation Agency (AHPRA) supports the 14 national boards in implementing the national scheme. AHPRA’s operations are governed by the Health Practitioner Regulation National Law in force in participating jurisdictions (e.g. Health Practitioner National Law Act 2009 (Vic)) and its regulations.

In addition, AHPRA:

manages the registration of health practitioners and students around Australia;

receives notifications from the public about the professional conduct, performance or health of registered health practitioners or the health of students;

manages investigations into the professional conduct, performance or health of registered health practitioners (except in NSW where this is undertaken by the Health Professional Councils Authority and the Health Care Complaints Commission);

publishes national registers of practitioners, so important information about the registration of individual health practitioners is available to the public;

works with Health Complaints Commissions in each state and territory to ensure the appropriate organisation investigates community concerns about individual registered health practitioners;

supports the 14 boards in the development of registration standards, codes and guidelines; and

provides advice to the Ministerial Council about the administration of the national scheme.

For more information, contact AHPRA:

Australian Health Practitioner Regulation Agency (AHPRA)

Level 8, 111 Bourke Street, Melbourne Vic 3000

Tel: 1300 419 495

Email: hsc@health.vic.gov.au

Web: www.ahpra.gov.au

AHPRA has offices in all states and territories.

Under the Health Practitioner National Law, the Health Services Commissioner and AHPRA are required to consult each other when a matter related to either’s jurisdiction is received, to determine which organisation is best suited to manage the matter.