Mental illness

The Victorian Mental Health Complaints Commissioner (MHCC) was established on 1 July 2014 in Part 10, Division 1 of the Mental Health Act 2014 (Vic) (‘MHA 2014’).

The MHCC is a specialist independent body that is charged with handling complaints about any matter arising from the provision of or failure to provide mental health services by a MHSP.

For more information about the MHCC, visit the MHCC’s website.

The MHCC’s functions (s 228 MHA 2014) include:

• accepting, assessing, managing and investigating complaints relating to MHSPs;
• resolving complaints in a timely manner using formal and informal dispute resolution as appropriate, including conciliation;
• issuing compliance notices;
• providing advice on any matter relating to a complaint;
• assisting MHSPs to manage complaints;
• assisting consumers and other persons to resolve complaints directly with MHSPs;
• identifying, analysing and reviewing quality, safety and other issues arising out of complaints and making recommendations for improving the provision of mental health services; and
• at the request of the Minister of Mental Health, investigating, and reporting on, any matter relating to MHSPs.

In addition to making a complaint directly to the relevant MHSP or the Health Complaints Commissioner, a person can make a complaint about a MHSP to the MHCC. The MHCC accepts complaints about matters that occurred on or after 1 July 2013.

A complaint about an individual doctor or psychiatrist can also be made to the Australian Health Practitioners Regulation Agency.

Who can make a complaint to the Mental Health Complaints Commissioner?

A complaint may be made by a consumer or someone acting on their request, or another person with a genuine interest in their wellbeing. 

‘Consumer’ is defined in section 3 of the MHA 2014. A consumer is 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 that were or are not provided.

Other agencies may also refer complaints to the MHCC.

The complaints process

A 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) MHA 2014).

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).

Once the written complaint is received, the MHCC has 20 business days to either close or accept the complaint.

The MHCC has discretion to refer a complaint, without the consumer’s consent, to another body if it is 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).

It is 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.

How does the Mental Health Complaints Commissioner resolve complaints?

Once a complaint is accepted, the MHCC can use a range of methods to try to resolve the complaint, including:

• formal and informal dispute resolution;
• conciliation; 
• serving compliance notices to MHSPs (in certain circumstances); and
• conducting an investigation.

If the matter is referred to conciliation, the consumer is entitled to have legal representation and another support person attend the conciliation conference.

If conciliation fails to resolve the complaint, the conciliator may recommend the MHCC investigate.

It is an offence to fail to comply with a compliance notice, and there are significant penalties attached.

Note there is no right to appeal the matter to VCAT, for example, or to take the matter further through this process.