The Act establishes a new legal framework for complaints about the provision of health services in Victoria. The Act also replaces the Health Services Commissioner with the Health Complaints Commissioner and establishes the Health Complaints Commissioner Advisory Council.
This new legislation follows recommendations from a Government appointed Expert Panel, chaired by Russell Kennedy Principal, Michael Gorton AM.
1. Key Objectives of the Act
The overarching objective of the Act is to introduce a fairer, more comprehensive and more responsive Victorian health Complaints system. Specifically the Act aims to:
- Establish a modern, fair and accessible complaints scheme that maintains voluntary resolution of complaints as a fundamental function;
- Address deficiencies highlighted in recent reviews of the previous health complaints system;
- Protect the public from unethical, incompetent or impaired practitioners of health services who are not registered under the previous Health Practitioner National Law; and
- Implement a more flexible and efficient complaints system.
2. Which Health Service providers are subject to regulation under the Act?
The Act introduces a wide definition of the term "General health service". The definition covers any service or person that claims to or attempts to provide a treatment for illness or suspected illness. This is a deliberate approach to ensure that the Act will cover as many health practices as possible, and bring previously unregulated health practitioners under the complaint system. The definition will extend to health service personnel such as dental technicians, speech pathologists, homeopaths and reiki therapists.
This definition may extend to secretaries, assistants and practice managers. It also applies to support staff at health service centres, such as cleaners, laundry staff and caterers if they are in contact with patients. It is possible that the definition in the Act could extend as far as to personal trainers, gym owners and yoga instructors who purport to offer health benefits.
The legislation now makes it an offence for a health service provider to practice in Victoria if they are prohibited from doing so in any other state or territory in Australia.
3. The New Powers of the Complaints Commissioner
There are a variety of new powers given to the Commissioner. They include:
- The Commissioner will have the ability to issue an interim or final prohibition order which bans a general health service from providing some or all of its service. An interim order will institute a ban on practice for 12 weeks while the Commissioner conducts an investigation into a complaint made. Before issuing an interim order, the Commissioner must reasonably believe that the provider has contravened a code of conduct, been convicted of an offence or be satisfied that an interim order is essential to avoid a serious risk to the life, health, safety or welfare of the public;
- The Commissioner has the power to issue a public health and safety warning and name the relevant practitioner if following an investigation the Commissioner reasonably believes that the health service represents a risk to the life, health, safety or welfare of an individual or the public. This power also covers situations where a health service practitioner refuses to co-operate with an investigation, or has no reasonable excuse for not assisting an investigation, or fails to implement recommendations following an investigation;
- The Commissioner will have powers in order to follow up with health service providers in order to ensure that quality improvement recommendations made by the Commissioner during the complaints resolution process are implemented adequately; and
- The Commissioner will also have an "own motion" power, where they can investigate a matter where an official complaint has not been lodged but there could have been a cause for complaint.
These powers enable the Commissioner to regulate registered and traditional health practitioners, but also those who practice more alternate forms of medicine, that were not covered by the previous complaint mechanisms.
4. Who can make complaints under the new complaints system?
One of the most significant changes under the Act is that now anyone can make a complaint regarding a health service to the Commissioner, not just the person who sought out or received the health service. Importantly, this includes carers who will be able to lodge complaints regarding the treatment they receive in their capacity as carers.
Before making a complaint to the Commissioner, a complaint should first be made with the health service provider. This does not apply when it would be inappropriate or unreasonable to do so. When a complaint is made, the legislation requires that the Commissioner takes the least formal resolution process possible in order to resolve the issue. This should enable speedier and more flexible methods of dispute resolution.
5. What can someone complain about under the new complaints system?
Any person can make a complaint about any unreasonable treatment they receive, or someone else receives, in the course of their interactions with a health service practice. This includes failure to provide the care, failure in providing the care, failure of the practitioner or staff member to be consistent with health service principles or simply any unreasonable behaviour.
The grounds on which someone can complain to the Commissioner is broad, and health services need to be aware of the broad scope of the complaint scheme.
6. The balance between the new powers and protection of the rights of the individual and health service providers
The new powers created by the Act are designed to ensure they adequately protect the rights of individuals but also to ensure they do not interfere unnecessarily with the health care providers in carrying out their important role in society.
It is important to note that the powers granted to the Commissioner under the Act are intended to only be used as a last resort solution to a complaint. All of these powers require that the Commissioner adhere to all natural justice principles.
There are a variety of safe guards against the new powers of the Commissioner. These include;
- Reporting on the frequency of the use of the new prohibition powers and public warning statements in the Annual report;
- All prohibition orders against unregistered health service providers will be reviewable by VCAT; and
- The Commissioner must consult with the President of the Health Complaints Commissioner Advisory Council, who must be a lawyer, before commencing a Commissioner initiated investigation.
Unregistered health practitioners need to be aware of the new regulations and powers that apply to them, so they can be sure they are operating at an acceptable level in interactions with clients. A code of practice will apply to set standards and expectations.
The new legislation represent a substantial strengthening of the Commissioner's powers to deal with the poor practice by a broader range of health service provider, and offers a faster more flexible approach to resolving complaints.