The Victorian Health Complaints Act 2016 came into force on 1 February 2017, replacing the Health Services (Conciliation and Review) Act 1987. What was previously the Office of the Health Services Commissioner (HSC) is now the Office of the Health Complaints Commissioner(HCC), which has broader powers and responsibilities.
The Health Complaints Act augments the state’s ability to support safe and ethical healthcare for all Victorians. Some key features are as follows:
- Complaints can be made against any health service, whether it is registered with AHPRA or not.
- The definition of health service is extremely broad and its precise scope has yet to be tested, however the HCC will have regard to the intent and nature of the service being offered. It includes allied health services (eg. social workers, dieticians, counsellors), naturopathy, massage therapy, tattoo removals and beauty therapy, as well as ancillary or related services such as laundry, cleaning and catering.
- There is a new general code of conduct with which all non-registered health practitioners must now comply, contained in Schedule 2 of the Health Complaints Act. The HCC has the power to warn the public about an unregistered health practitioner who is found to pose a serious risk to the public (‘public health warning statement’ or ‘general health service warning statement’). The HCC may even prohibit the practitioner from practice and impose financial penalties (‘prohibition order’).
- Complaints to the HCC can be made by anyone, not just the recipient of the health service. The complainant may be a third party, such as a spouse, parent, child – or even an unrelated third-party observer.
- Complaints can be made anonymously and may be lodged online or in person, or via telephone, fax or letter. The range of matters which may be subject to complaint is very broad.
- Efforts to resolve a complaint directly with the health service provider must be reasonably attempted over a minimum period of three months. The manner in which a complaint is handled by a health service provider may also be the subject of complaint to the HCC.
- A complaint may be declined or referred elsewhere by the HCC if it is outside of its jurisdiction, if more than 12 months have elapsed since a health service was provided or sought, or for a range of other reasons – including if the complaint is considered vexatious or not made in good faith.
- The HCC has a statutory obligation to attempt complaint resolution in the least formal way possible, and with the agreement of all parties. If a complaint is complex, lengthy, or unable to be resolved, or there are real issues of concern, it may proceed to conciliation or investigation.
- If a registered healthcare practitioner is specifically named in a complaint, the HCC (being a ‘health complaints entity’ under the National Law) has an obligation to notify AHPRA, who may request a formal referral if they wish to investigate further. The HCC may also formally refer a complaint to AHPRA under certain circumstances, and AHPRA may also refer complaints to the HCC.
If you are a health practitioner and a complaint is made against you, it is strongly advised that you contact your professional indemnity insurer for assistance.
This publication is general in nature and is not comprehensive or constitute legal or medical advice. You should seek legal, medical or other professional advice before relying on any content, and practice proper clinical decision making with regard to individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Tego Insurance Pty Ltd is not responsible to you or anyone else for any loss suffered in connection with the use of this information.