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Bill homepage (legislation.vic.gov.au)The main purposes of this Act are—
to provide for a complaints process and other processes about health service provision and related matters; and
to establish the office of Health Complaints Commissioner; and
to establish the Health Complaints Commissioner Advisory Council; and
to repeal the Health Services (Conciliation and Review) Act 1987; and
to make minor and consequential amendments to other Acts; and
to provide for related matters.
Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
If a provision of this Act does not come into operation before 1 February 2017, it comes into operation on that day.
In this Act—
approved practice protocol means a practice protocol approved by the Minister under section 125;
Assistant Commissioner means a person employed as an Assistant Health Complaints Commissioner under section 121;
Australian Health Practitioner Regulation Agency means the Australian Health Practitioner Regulation Agency established by section 23 of the National Law;
authorised person means a person authorised by the Commissioner under section 62;
carer has the same meaning as in the Carers Recognition Act 2012;
code of conduct means—
the general code of conduct; and
any other code of conduct in respect of a general health service that is prescribed by the regulations;
Commissioner means the Health Complaints Commissioner appointed under section 111;
Commissioner initiated investigation means an investigation under section 47;
complaint means a complaint made under section 5, 6 or 7;
complaint data review means a review conducted under section 105;
complaint data review report means a report prepared under section 107;
complaint handling standards means—
standards made by the Governor in Council under section 133 or 136; or
the interim standards referred to in section 131(1), for the period during which the interim standards apply under section 131(2);
complaint investigation means an investigation under section 45;
complaint resolution process means a process by which the Commissioner may seek an agreed resolution of a complaint under section 32(1);
complainant means a person who makes a complaint under section 5, 6 or 7;
conciliation means a complaint resolution process referred to in section 32(1)(b);
Council means the Health Complaints Commissioner Advisory Council established under section 140;
Council President means the President of the Council appointed under section 141(3);
follow up investigation means an investigation under section 53;
follow up report means a report prepared under section 56;
follow up statement means a statement published under section 82(1);
general code of conduct means—
until a general code of conduct in respect of general health services is prescribed by the regulations, the general code of conduct for general health services set out in Schedule 2; or
the general code of conduct in respect of general health services prescribed by the regulations;
general health service means a health service that is not a health profession service;
general health service provider means a person who provides a general health service;
general health service warning statement means a statement published under section 87(1) or (2);
health profession means a health profession within the meaning of the National Law;
health profession service means the practice of a health profession;
health service means the following services—
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—
to assess, predict, maintain or improve the person's physical, mental or psychological health or status; or
to diagnose the person's illness, injury or disability; or
to prevent or treat the person's illness, injury or disability or suspected illness, injury or disability;
a health related disability, palliative care or aged care service;
a surgical or related service;
the prescribing or dispensing of a drug or medicinal preparation;
the prescribing or dispensing of an aid or piece of equipment for therapeutic use;
health education services;
therapeutic counselling and psychotherapeutic services;
support services necessary to implement any services referred to in paragraphs (a) to (g);
services—
that are ancillary to any other services to which this definition applies; and
that affect or may affect persons who are receiving other services to which this definition applies;
any other prescribed services;
Example
Examples of services to which paragraph (i) applies are laundry services, cleaning services and catering services.
health service principles means the principles set out in section 4;
health service provider means a person who provides a health service;
identification, in relation to an authorised person, means the document issued by the Commissioner under section 63(1) that identifies that person;
inquiry means an inquiry conducted under section 103;
interim prohibition order means an order made under section 90;
investigation hearing means a hearing of the Commissioner conducted under section 59(3);
investigation hearing notice means a notice served under section 61(1);
investigation report means a report prepared under section 50;
member of the staff of the Commissioner means—
an Assistant Commissioner; or
an employee referred to in section 121(1); or
a person with whom the Commissioner has entered into an agreement or arrangement under section 121(3);
National Board has the same meaning as in the National Law;
National Law means the Health Practitioner Regulation National Law;
party, in relation to a complaint, means—
the complainant; or
any health service provider about whom the complaint is made; or
the person who received or sought the health service, if that person—
is not the complainant; and
has not notified the Commissioner under section 22 that the person does not wish to be a party to the complaint;
prohibition order means an order made under section 95;
public health warning statement means a statement published under section 84(1);
referral investigation means an investigation under section 46;
S. 3(1) def. of relevant law amended by Nos 19/2019 s. 263, 39/2022 s. 828.
relevant law means any of the following—
the Disability Act 2006;
the Health Records Act 2001;
the Privacy and Data Protection Act 2014;
the Mental Health and Wellbeing Act 2022;
the National Disability Insurance Scheme Act 2013 of the Commonwealth;
relevant notice or information means all or any of the following—
a copy of a formal description of a complaint under section 17(1) or (2);
a notice or information under section 13(3), 19(3), 20(3), 21(2), 28(1)(a), (c) or (d) or (2), 49(1) or (3);
Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health and Human Services.
A reference in this Act to any process under this Act does not include proceedings for an offence against this Act.
For the purposes of this Act, the following principles are the health service principles—
that a health service is able to be accessed;
that a health service is safe and of high quality;
that a health service is provided with appropriate care and attention;
that a person seeking or being provided with a health service and the person's carer are treated with respect, dignity and consideration;
that adequate and clear information is provided about a health service in respect of the treatment, options and costs in a transparent manner;
that an inclusive approach is applied in the making of decisions about a health service;
that the privacy and confidentiality of health information and personal information is respected;
that a health service provider makes provision for the person seeking or being provided with a health service to make comments or complaints and that those comments or complaints are addressed.
Part 2—Complaints
Division 1—Making a complaint
A person may make a complaint to a health service provider about—
any unreasonable provision of a health service by the provider to the person; or
any unreasonable failure by the provider to provide a health service to the person that the person has sought; or
any unreasonable failure by the provider to act consistently with the health service principles in the provision of or a failure to provide a health service to the person; or
the provision of a health service by the provider to the person in an unreasonable manner; or
S. 5(1)(da) inserted by No. 4/2022 s. 25.
any failure by the provider to comply with the duty of candour under Part 5A of the Health Services Act 1988; or
the manner in which a complaint by the person is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A person may make a complaint to the Commissioner about—
anything to which a paragraph of subsection (1) applies, without making a complaint to the health service provider, if it would be unreasonable or inappropriate to resolve the matter by making a complaint under subsection (1); or
any failure by a general health service provider in providing or failing to provide a general health service to the person—
to comply or act consistently with a code of conduct applying to the general health service; or
to comply with an interim prohibition order; or
to comply with a prohibition order; or
a matter that was the subject of a complaint by the person to a health service provider under subsection (1), if that complaint is not resolved within 3 months of making the complaint; or
the manner in which a complaint by the person under subsection (1) is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A person may make a complaint to a health service provider about—
any unreasonable provision of a health service by the provider to another person; or
any unreasonable failure of the provider to provide a health service to another person that the other person has sought; or
any unreasonable failure by the provider to act consistently with the health service principles in a provision of or a failure to provide a health service to another person; or
the provision of a health service by the provider to another person in an unreasonable manner; or
S. 6(1)(da) inserted by No. 4/2022 s. 26.
any failure by the provider to comply with the duty of candour under Part 5A of the Health Services Act 1988 with respect to the provision of a health service to another person; or
the manner in which a complaint—
by the person is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards; or
made by another person under section 5(1)(a), (b), (c) or (d) is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A person may make a complaint to the Commissioner about—
anything to which a paragraph of subsection (1) applies, without making a complaint to the health service provider, if it would be unreasonable or inappropriate to resolve the matter by making a complaint under subsection (1); or
any failure by a general health service provider in providing or failing to provide a general health service to another person—
to comply or act consistently with a code of conduct applying to the general health service; or
to comply with an interim prohibition order; or
to comply with a prohibition order; or
a matter that was the subject of a complaint by the person to a health service provider under subsection (1), if that complaint is not resolved within 3 months of making the complaint; or
the manner in which a complaint by the person under subsection (1) is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A carer of a person may make a complaint to a health service provider about—
any unreasonable treatment of the carer by the provider when providing or failing to provide a health service to the person cared for by the carer; or
S. 7(1)(ab) inserted by No. 4/2022 s. 27.
any unreasonable treatment of the carer by the provider in the course of complying or failing to comply with the duty of candour under Part 5A of the Health Services Act 1988 in relation to the person cared for by the carer; or
the manner in which a complaint by the carer is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A carer of a person who has sought a health service from or has been provided with a health service by a health service provider may make a complaint to the Commissioner about—
anything to which subsection (1) applies, without making a complaint to the health service provider, if it would be unreasonable or inappropriate to resolve the matter by making a complaint under subsection (1); or
a matter that was the subject of a complaint by the carer to a health service provider under subsection (1), if that complaint is not resolved within 3 months of making the complaint; or
the manner in which a complaint by the carer under subsection (1) is dealt with by the health service provider, including whether the provider has not complied with or has acted inconsistently with any complaint handling standards.
A person is not entitled to make a complaint to the Commissioner under section 5(2) or 6(2) and a carer is not entitled to make a complaint to the Commissioner under section 7(2)—
more than 12 months after the provision of the health service was completed; or
if the health service was not provided, more than 12 months after the health service was sought.
Despite subsection (1), the Commissioner may deal with a complaint lodged after the end of the 12 month period if the Commissioner is satisfied that the circumstances of the case so require.
A complaint made to the Commissioner may be made either orally or in writing.
Note
A complaint may be made by an electronic communication within the meaning of section 3(1) of the Electronic Transactions (Victoria) Act 2000.
A person who makes an oral complaint must confirm the complaint as recorded in writing by the Commissioner under section 10 as soon as practicable.
The Commissioner may waive the requirement for a person to comply with subsection (2), if the Commissioner is satisfied that it is appropriate to do so in the circumstances.
The Commissioner must make a written record of any waiver given under subsection (3).
If a complaint is made to the Commissioner, the Commissioner must make a written record on receiving the complaint.
A written record made under subsection (1) must include the date that the complaint was received by the Commissioner.
The Commissioner must give reasonable assistance to a person who is making a complaint to the Commissioner or confirming a complaint made to the Commissioner.
The Commissioner, in giving reasonable assistance to a person under this section, may assist the person to identify the parties to the complaint.
Division 2—Procedure when a complaint is made to the Commissioner
This section applies on a complaint being—
recorded by the Commissioner under section 10; and
if required by section 9(2), confirmed by the complainant.
The Commissioner may seek further information about the complaint by—
interviewing the complainant; or
requiring the complainant to give the Commissioner more information.
The Commissioner may provide advice about the options available to resolve the complaint.
The Commissioner may attempt an early resolution of the complaint with all or any of the following persons—
the complainant;
any health service provider about whom the complaint is made;
the person who received or sought the health service, if that person is not the complainant.
The Commissioner may deal with the resolution of a complaint under subsection (4) in any manner and using any means that the Commissioner considers appropriate.
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