Health and Community Services Complaints Act 2004

This

Act may be cited as the Health and Community Services Complaints Act 2004.

The objects of this Act are—

to improve the quality and safety of health and community services in

South Australia through the provision of a fair and independent means for the assessment, conciliation, investigation and resolution of complaints; and

to provide effective alternative dispute resolution mechanisms for consumers and providers of health or community services to resolve complaints; and

to promote the development and application of principles and practices of the highest standard in the handling of complaints concerning health or community services; and

to provide a scheme that can be used to monitor trends in complaints concerning health or community services; and

to identify, investigate and report on systemic issues concerning the delivery of health or community services.

In this Act, unless the contrary intention appears—

carer means a person who is a carer for the purposes of the Carers

Recognition Act 2005;

Charter means the Health and Community Services Rights Charter under Part 3;

Commissioner means the Health and Community Services Complaints Commissioner appointed under Part

2 (and includes a person acting in that office from time to time);

community service means—

a service for the relief of poverty, social disadvantage, social distress or hardship; or

a service for the provision of emergency relief or support; or

a service for the care or protection of any child who is, or has been or may be, at risk (within the meaning of the Children and Young People (Safety) Act 2016) and includes—

any service that relates to a notification that a child is, or may be, at risk; and

any investigation of a case where a child is, or may be, at risk, and any subsequent action taken by a service provider arising from such an investigation; or

a service for the social advancement of disadvantaged groups; or

a service of a class included within the ambit of this definition by the regulations; or

an administration service directly related to a service referred to in a preceding paragraph, but does not include—

a service that provides employment search or placement services, or that provides employment related training or retraining; or

a service of a class excluded from the ambit of this definition by the regulations;

Examples—

The following are examples of community services:

· a service that provides community support or care;

· a service for the provision of emergency accommodation or relief (including by the provision of emergency financial support), or for the provision of accommodation or support to the socially disadvantaged;

· a counselling, advice or community information or awareness service;

· a community advocacy, self-help or mutual aid service.

community service consumer means a person who uses or receives, or who is seeking to use or receive, a community service;

community service provider means a person, government agency or body of persons (whether corporate or unincorporated) who or which—

provides a community service; or

holds himself, herself or itself out as being able to provide a community service;

complainant means a person who makes a complaint and includes a person on whose behalf a complaint is made;

complaint means a complaint under this Act;

conciliator means a conciliator appointed under this Act;

confidential information includes—

information about the identity, occupation or whereabouts of a complainant, health or community service consumer or health or community service provider involved in a complaint, investigation or inquiry under this Act;

information disclosed by a complainant, health or community service consumer or health or community service provider for the purposes of any complaint, investigation or inquiry under this Act;

personal information about a complainant, health or community service consumer or health or community service provider under this Act;

information the release of which would cause personal distress to a person;

information provided on a confidential basis or otherwise affected by a requirement as to confidentiality;

corresponding law means a law, or part of a law, of a State or a Territory of the

Commonwealth declared by the regulations to be a corresponding law for the purposes of this Act;

Department means the department of the Minister to whom the administration of this Act has been committed;

government agency means—

a department or administrative unit of the Public Service; or

any other agency or instrumentality of the Crown; or

a local government council;

health professional means—

a registered service provider; or

an audiologist, audiometrist, optical dispenser, dietitian, prosthetist, psychotherapist, radiographer, therapeutic counsellor, social worker or provider of forensic or pathology services; or

any other person who has an occupation that is based on providing health care or treatment to others; or

a person who is training to become a person engaged in an occupation referred to in a preceding paragraph and who, as part of that training, is engaged in the provision of health care or treatment to others, but does not include a person whose occupation is excluded from the ambit of this definition by the regulations;

health service means—

a service designed to benefit or promote human health; or

a service provided in association with the use of premises for the care, treatment or accommodation of persons who are aged or who have a physical disability or mental dysfunction; or

a diagnostic or screening service; or

an ambulance service; or

a service to treat or prevent illness, injury, disease or disability;

or

a service provided by a health professional; or

a service involving the provision of information relating to the promotion or provision of health care or health education; or

a service of a class included within the ambit of this definition by the regulations; or

a social, welfare, recreational or leisure service if provided as part of a service referred to in a preceding paragraph; or

an administration service directly related to a service referred to in a preceding paragraph, but does not include—

the process of writing, or the content of, a health status report;

a service of a class excluded from the ambit of this definition by the regulations;

Examples—

The following are examples of health services:

· a service provided at a hospital, health institution or aged care facility;

· a medical, dental, pharmaceutical, mental health, community health or environmental health service;

· a laboratory service;

· a laundry, dry cleaning, catering or other support service provided in a hospital, health institution or aged care facility.

health service consumer means a person who uses or receives, or who is seeking to use or receive, a health service;

health service provider means a person, government agency or body of persons (whether corporate or unincorporated) who or which—

provides a health service; or

holds himself, herself or itself out as being able to provide a health service;

health status report means a report prepared by a person, agency or body on the physical, mental or emotional health of a person where the purpose for preparing the report is not for the purpose of providing a health service within the meaning of paragraphs (a) to (j)

of the definition of health service;

local government council means—

a council under the Local

Government Act 1999;

or

a body established by a council under the Local

Government Act 1999;

or

a body that is pursuant to an Act vested with the powers and functions of a council under the Local

Government Act 1999;

nationally registered health practitioner means a registered health practitioner under the Health

Practitioner Regulation National Law and includes a person who was, but is no longer, registered in a health profession under that law (or a previous corresponding Act of the State);

power of attorney includes a medical power of attorney;

professional mentor means a professional mentor appointed under Part 2;

register means register, license, approve, admit, certify (including by way of practising certificate) or authorise in any other manner pursuant to an Act (including pursuant to the Health

Practitioner Regulation National Law (South Australia)) a person to provide a health or community service or to practise as a health or community service provider;

registered service provider means a health or community service provider registered by a registration authority;

registration authority means—

the body with the function, under a registration law, of determining an application for registration under that law and includes a body vested with disciplinary powers under a registration law; or

any other body brought within the ambit of this definition by the regulations;

registration law means—

the

Health

Practitioner Regulation National Law;

or

the

Health

Practitioner Regulation National Law (South Australia) Act 2010;

or

an

Act brought within the ambit of this definition by the regulations;

relevant registration authority in relation to a person, means a registration authority that has registered that person;

State

Ombudsman means the Ombudsman under the Ombudsman

Act 1972;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

volunteer means a person who receives no remuneration for acting in a particular capacity (being a capacity associated with the provision of a health or community service).

A registration authority will not be taken to be a health or community service provider for the purposes of this Act.

There is to be a Health and Community Services Complaints Commissioner.

The

Commissioner is appointed by the Governor.

The

Commissioner is appointed on conditions determined by the Governor and for a term, not exceeding 7 years, specified in the instrument of appointment.

An appointment may be renewed but a person must not hold office as

Commissioner for more than 2 consecutive terms.

The

Governor may remove the Commissioner from office on the presentation of an address from both Houses of Parliament seeking the

Commissioner's removal.

The

Governor may suspend the Commissioner from office on the ground of incompetence or misbehaviour and, in that event—

a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension;

and

if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of

Parliament seeking the Commissioner's removal has not been presented to the Governor, the Commissioner must be restored to office.

The office of Commissioner becomes vacant if the Commissioner—

dies;

or

resigns by written notice given to the Minister; or

completes a term of office and is not reappointed; or

is removed from office by the Governor under subsection (3);

or

becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

is convicted of an indictable offence or sentenced to imprisonment for an offence; or

becomes a member of the Parliament of this State or any other State of the

Commonwealth or of the Commonwealth or becomes a member of a

Legislative Assembly of a Territory of the Commonwealth; or

becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office.

Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant.

The

Commissioner is entitled to remuneration, allowances and expenses determined by the Governor.

The

Minister may appoint a person (who may but need not be an employee in the Public Service) to act as the Commissioner—

during a vacancy in the office of Commissioner; or

when the Commissioner is absent from, or unable to discharge, official duties; or

if the Commissioner is suspended from office under this Act.

The

Commissioner has the following functions:

to prepare and regularly review the Charter of Health and Community

Services Rights under Part

3; and

to identify and review issues arising out of complaints and to make recommendations for improving health and community services and preserving and increasing the rights of people who use those services; and

to review and identify the causes of complaints and to—

recommend ways to remove, resolve or minimise those causes; and

detect and review trends in the delivery of health or community services;

and

to provide information, education and advice in relation to—

the

Charter; and

health and community service rights and responsibilities; and

procedures for resolving complaints; and

other matters (if any) determined to be appropriate by the Commissioner;

and

to receive, assess and resolve complaints; and

to encourage and assist health and community service consumers to resolve complaints directly with health and community service providers; and

to assist health and community service providers to develop or improve procedures to resolve complaints; and

to inquire into and report on any matter relating to health or community services on the Commissioner's own motion or at the request of the Minister; and

to advise, and report to, the Minister on any matter relating to health or community services or the administration or operation of this

Act; and

to provide information, advice and reports to registration authorities and to work with registration authorities to develop or improve procedures relating to the assessment and investigation of complaints and grievances; and

to maintain links with—

health and community service providers; and

organisations that have an interest in the provision of health or community services; and

organisations that represent the interests of the consumers of health or community services; and

to consult and cooperate with other agencies and authorities that are involved in protecting the interests and rights of members of the community in the area of the provision of health or community services, including—

the

State Ombudsman; and

the

Australian Human Rights Commission; and

to perform other functions conferred on the Commissioner by or under this or any other Act.

The

Commissioner must, in providing information and advice, and in the assessment and consideration of any complaint, take into account, to such extent as may be appropriate, the position of persons within priority consumer groups.

For the purposes of subsection (2),

priority consumer groups are particular classes of persons who, because of the nature of the classes to which they belong, may suffer disadvantage in the provision of services unless their needs are recognised.

The

Commissioner must, in acting under this Act, give particular attention to the position of volunteers and to their value in providing health and community services within the community and should not unnecessarily involve them in any proceedings under this

Act.

The

Commissioner has the powers necessary or expedient for, or incidental to, the performance of the Commissioner's functions.

In performing and exercising his or her functions and powers under this

Act, the Commissioner must act independently, impartially and in the public interest.

The

Minister cannot control how the Commissioner is to exercise the

Commissioner's statutory functions and powers¹.

Note—

1 This provision does not derogate from any express power of the Minister under this Act.

The

Commissioner—

may, after consultation with the Minister, establish such committees as the Commissioner considers appropriate; and

must, at the direction of the Minister in relation to a matter or matters of public safety, interest or importance, establish a committee or committees in accordance with that direction, to assist the Commissioner in the performance of the Commissioner's functions under this Act.

Subject to any direction of the Minister, the membership and functions of a committee will be determined by the Commissioner.

A member of a committee is entitled to any remuneration, allowances or expenses determined or approved by the Minister.

The procedures to be observed by a committee will be—

as determined by the Minister or the Commissioner; or

insofar as a determination is not made under paragraph (a)—as determined by the committee.

The

Commissioner may appoint suitable persons as conciliators or professional mentors for the purposes of this Act.

An appointment will be made for a term, not exceeding 3 years, determined by the Commissioner and on conditions determined or approved by the Minister.

The conditions under subsection (2) may include conditions as to the remuneration, allowances or expenses to be paid to the relevant person.

An appointment may be renewed from time to time.

Nothing in this section prevents the Commissioner, or a member of the

Commissioner's staff, acting as a conciliator under this Act.