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.

Introduction

There are two formal ways to lodge a complaint about practitioners or health care services in Victoria. A complaint may be lodged with the Victorian Health Complaints Commissioner or with the Australian Health Practitioner Regulation Agency (AHPRA) (seeContacts”). These processes are described in greater detail below.

For a designated public sector mental health service, complaints may be lodged with the Victorian Mental Health Complaints Commissioner (www.mhcc.vic.gov.au). (See also Mental illness.)

Most public hospitals have complaints liaison officers who can help resolve a complaint (therefore removing the need to use a more formal mechanism).

Where there has been a significant problem with management of a health service, a complaint may be made to the Victorian Government Department of Health and Human Services (seeContacts”).

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

Victorian Health Complaints Commissioner

The Health Complaints Act 2016 (Vic) (“HC Act”) commenced operation on 1 February 2017. The HC Act replaces the Health Services (Conciliation and Review) Act 1987 (Vic) (“HSCR Act”).

The purposes of the HC Act are:

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

to establish the office of the Victorian 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.

A complaint can be made via telephone, email, the online complaint form, in writing, and in person (for the Victorian Health Complaints Commissioner’s contact details, seeContacts”).

For straightforward matters, a staff member at the Office of the Health Complaints Commissioner may telephone the health provider and ask the provider to respond directly to the complainant.

When a complaint falls within the jurisdiction of the HC Act, and needs to be acted on, the matter is assigned to a resolutions officer.

For more complex matters, a resolutions officer deals with the complaint through conciliation or other formal complaints resolution processes. These processes may involve meetings, requesting the complainant’s medical records, or obtaining an independent expert report.

An investigation may occur if:

the complaint is not suitable for a complaints resolution process; or

the complaints resolution process has not been successful; or

the health service provider, without a reasonable excuse, does not participate in the complaints resolution process.

The HC Act (sch 2) legislates a Code of Conduct for general health service providers (those that are not registered with AHPRA) 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 HC Act 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 conduct a commissioner-initiated investigation following consultation with the President of the Health Complaints Commissioner Advisory Council. There remains a capacity to administer an oath or affirmation and the requirement to attend a hearing.

The Health Complaints Commissioner is 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 and there are significant penalties to both individuals and 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 HC Act requires the development of complaints handling standards by the Health Complaints Commissioner within two years; 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.

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, dental therapists);

medical practitioners;

medical radiation practitioners;

nurses and midwives;

occupational therapists;

optometrists;

osteopaths;

pharmacists;

physiotherapists;

podiatrists; and

psychologists.

In early 2018, a fifteenth health profession – paramedics – will also be regulated under the scheme.

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

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 entities 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 (seeContacts”).

Under the Health Practitioner National Law, the Health Complaints 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.