Health and the law

There are two formal ways to lodge a complaint about health practitioners or healthcare services in Victoria.

A complaint may be lodged with the:

• Victorian Health Complaints Commissioner (‘HC Commissioner’); or 
• Australian Health Practitioner Regulation Agency (Ahpra);

These processes are described below.

For a designated public sector mental health service, complaints may be lodged with the Victorian Mental Health Complaints Commissioner. (See also Chapter 8.4: Mental illness.)

Most public hospitals have complaints liaison officers who can help resolve a complaint. If a person is not satisfied with a health service they received, the HC Commissioner asks the person to raise their concerns with the organisation directly, before lodging a complaint with the HC Commissioner. Speaking directly with the health service provider is often the quickest and easiest way to resolve complaints. If the person remains dissatisfied, then the HC Commissioner may deal with the complaints, as set out below.

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.

The HC Commissioner is an independent and impartial statutory body that began operation on 1 February 2017 under the Health Complaints Act 2016 (Vic) (‘HC Act’).

The HC Commissioner supports safe and ethical health care in Victoria by:

• resolving complaints about health services and the handling of health information in Victoria;
• investigating providers who pose a serious risk to the health, safety or welfare of the public;
• monitoring and reviewing trends in complaints data;
• providing an accessible service that is a free alternative to legal proceedings; and
• educating consumers and providers about their rights and responsibilities.

The definition of ‘health service’ in the HC Act 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 HC Act (sch 2) legislates a Code of Conduct for general health service providers (those that are not registered with Ahpra).

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 HC Commissioner (e.g. a consumer, carer, or a third party). The HC Act contains a flexible approach to complaints handling and retains the strong confidentiality provisions for conciliation. The HC Commissioner can require a response from a health service provider; failure to provide a response may result in penalties.

A complaint can be made via telephone, the online complaint form, in writing, and in person.

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 HC Commissioner reasonably believes that a complaint should be investigated and:

• 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; or
• there has been a contravention of the Code of Conduct.

The HC Commissioner has the capacity to hold a hearing as part of an investigation and to conduct a commissioner-initiated investigation following consultation with the President of the HC Commissioner Advisory Council.

The HC Commissioner can make public health warning statements and general health service warning statements and can apply both interim and ongoing prohibition orders for non-registered health workers. These orders are appealable to VCAT and there are significant penalties to both individuals and corporations for contravention of those orders.

Complaint Data Reviews gather information about the complaints received by the HC Commissioner and the HC Commissioner can make recommendations to health services about any trends identified by those reviews.

In accordance with the HC Act, the HC Commissioner has developed complaint-handling standards in consultation with health service providers, the public and other interested stakeholders.

There are 15 health professions that are 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;
• paramedics;
• pharmacists;
• physiotherapists;
• podiatrists; and
• psychologists.

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 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 Regulation National Law (Victoria) 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 New South Wales, 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 national 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.

Under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), the HC 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.