Division 1 The right to complain
7 What can a complaint be made about?
(1) A complaint may be made under this Act concerning:(a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100 of that Act), or(b) a health service which affects the clinical management or care of an individual client.(2) A complaint may be made against a health service provider.(3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.
A complaint may be made by any person including, in particular, the following:• the client concerned• a parent or guardian of the client concerned• a person chosen by the client concerned as his or her representative (including an Australian legal practitioner) for the purpose of making the complaint• a health service provider• a member of Parliament• the Director-General• the Minister.
(1) A complaint is made by lodging the complaint in writing with the Commission.(2) The complaint is to include particulars of the allegations on which it is founded.(3) It is the duty of staff of the Commission to help a person to make a complaint if the person requests assistance to do so.Note. This section does not prevent a person who wishes to make a complaint from first talking to the Commission about it. However, a complaint cannot be acted on until it is put in writing.It is an offence under section 99 to furnish information to the Commission for the purposes of this Act that is false or misleading in a material particular and under section 35 to furnish such information to the Commissioner or staff of the Commission.
Division 2 Liaising with registration authorities and professional councils
10 Notifying professional councils of complaints
(1) If a complaint made under this Act to the Commission is made against or directly involves a health practitioner who is or has been registered under the Health Practitioner Regulation National Law, the Commission must notify the appropriate professional council of the complaint.(2) The complaint is to be so notified as soon as practicable after it is made.
11 Complaints made to professional councils
If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission.
12 Consultation between the Commission, a professional council and the Registrar
(1) Before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the Commission must consult with the appropriate professional council (if any), subject to this section.(1A) If it is proposed, as a result of the assessment of a complaint, to refer the complaint for conciliation, the Commission must also consult with the Registrar.(2) The regulations may prescribe circumstances, such as cases of urgency, where the Commission may consult with a prescribed person on behalf of the appropriate professional council instead of consulting with the professional council itself and where the prescribed person may exercise the other functions of the professional council under this Division.(3) Consultation under this section is to include consultation about any associated complaint, to the extent the Commission and the appropriate professional council or the Registrar consider the associated complaint to be relevant.
13 The outcomes of consultation
(1) If either the Commission or the appropriate professional council is of the opinion that a complaint (or any part of a complaint) should be investigated, it must be investigated.(2) If:(a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated, but(b) either is of the opinion that it should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW) (such as performance assessment or impairment assessment),it must be referred to the professional council under section 25B.(2A) If either the Commission or the appropriate professional council is of the opinion that an associated complaint that has been discontinued or terminated and to which regard was given during consultation:(a) should be reopened or investigated—the complaint must be reopened and investigated in accordance with Division 5, or(b) should be referred to the appropriate professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW)—the complaint must be so referred,as if it had not been discontinued or terminated.(3) If:(a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated or referred to the professional council, but(b) either is of the opinion that it should be referred for conciliation and the Registrar considers that it is appropriate for conciliation,the Commission is to refer the complaint for conciliation under Division 8.
14 Suspension of action by professional council
(1) A professional council must not take any action under the Health Practitioner Regulation National Law concerning a complaint while it is subject to investigation by the Commission or is being dealt with under Division 8 or 9.(2) This section does not limit any power of a professional council under the Health Practitioner Regulation National Law to do anything to protect the life or the physical or mental health of any person.
15 Provision of information to professional councils
(1) A professional council for a particular health profession may, at any time, request information from the Commission concerning a specified complaint that is made against or directly involves a health practitioner who is or has been registered in that health profession.(2) The Commission must supply the information requested if it is reasonable to do so.Note. Division 2 enables the professional councils and the Commission to act in collaboration with each other. The Division will allow complete information sharing between the two arms in the disciplinary system, with a decision to investigate a complaint being made only after there has been consultation between the Commission and the relevant professional council. Where a disagreement occurs as to the appropriate action, both bodies will retain the ability to refer the matter for investigation, thus creating an internal checking method for all decisions which may result in disciplinary action. This two-pronged system will also apply to decisions to refer complaints for conciliation and will involve the Registrar in the consultation process.
Division 3 Notification and withdrawal of complaints
16 Person against whom complaint made to be notified of complaint
(1) The Commission must give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made. The notice must be given not later than 14 days after the Commission’s assessment of the complaint under Division 4.(2) If the Commission has assessed the complaint, the notice is to include the notice required to be given to the person under section 28.(3) The Commission may give a copy of the complaint to the person against whom the complaint is made.(4) This section does not require the Commission to give notice under this section if it appears to the Commission, on reasonable grounds, that the giving of the notice will or is likely to:(a) prejudice the investigation of the complaint, or(b) place the health or safety of a client at risk, or(c) place the complainant or another person at risk of intimidation or harassment.(5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that:(a) it is essential, having regard to the principles of natural justice, that the notice be given, or(b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.(6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice.(7) On the expiration of each consecutive period of 60 days after the complaint is assessed, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)) unless notice under this section has already been given or the Commission has discontinued dealing with the complaint.
17 Director-General to be notified of complaint made against a health organisation
On receiving a complaint against a health organisation, the Commission must give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the Director-General.
18 Can a complaint be withdrawn?
(1) A complainant may withdraw the complaint at any time by notice in writing to the Commission.(2) On the withdrawal of a complaint, the Commission may cease to deal with it but must continue to deal with the matter the subject of the complaint if it appears to the Commission that:(a) the matter raises a significant issue of public health or safety, or(b) the matter raises a significant question as to the appropriate care or treatment of a client by a health service provider, or(c) the matter, if substantiated, would provide grounds for disciplinary action against a health practitioner, or(d) the matter, if substantiated, would involve gross negligence on the part of a health practitioner, or(e) the matter, if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010.
Division 4 Assessment of complaints
19 Initial assessment of complaints
(1) On its receipt by the Commission, a complaint is to be assessed.(2) This section does not apply to a matter that is to be investigated in accordance with section 59.
(1) The assessment of a complaint is for the purpose of deciding whether:• the complaint should be investigated• the complaint should be conciliated or dealt with under Division 9• the complaint should be referred to the Director-General in accordance with section 25 or 25A• the complaint should be referred to another person or body in accordance with section 25B or 26• the Commission should decline to entertain the complaint.(2) Unless the Commission decides to decline to entertain a complaint, the Commission is, as part of its assessment of the complaint and as soon as practicable after commencing its assessment:(a) to identify the specific allegations comprising the complaint and the person or persons whose conduct appears to be the subject of the complaint, and(b) to use its best endeavours to confirm with the complainant and with any other person who provided relevant information in relation to the complaint that the matters so identified accord with the information provided by them.
20A Duty of Commission to review assessment of complaint
(1) The Commission is to keep under review its assessment of a complaint while it is dealing with the complaint.(2) At any time while dealing with a complaint (including during or at the end of the investigation of a complaint) and after consultation with the appropriate professional council, the Commission may revise its assessment of the complaint and take any of the following actions:(a) deal with the complaint under Division 9,(b) refer the complaint for conciliation,(c) investigate the complaint,(d) refer the complaint to the Director-General in accordance with section 25 or 25A,(e) refer the complaint to another person or body in accordance with section 25B or 26,(f) change the person whose conduct appears to be the subject of the complaint or include another person as a person whose conduct appears to be the subject of the complaint,(g) add to, substitute, amend or delete any of the specific allegations comprising the complaint (including add an allegation arising out of an investigation of the complaint that may not be the particular object of the complaint).Note. Section 56 limits the Commission’s power to investigate a matter that has been dealt with under Division 8.(3) If the Commission revises its assessment of a complaint to include another person as referred to in subsection (2) (f), sections 16 and 28 apply to the giving of notice to that person as if a reference in those sections to the assessment of the complaint were a reference to the revision of the assessment under this section.(4) If the Commission revises its assessment of a complaint and as a result determines that the conduct of a person previously being investigated by the Commission will no longer be investigated or that different conduct of the person will be investigated, the Commission is to give the person notice in writing that the person’s conduct is no longer under investigation or that other conduct of the person is now under investigation (as appropriate).(5) In this section, complaint includes any part of a complaint.
21 Commission may require further information
For the purposes of the assessment, the Commission may require the complainant to provide further particulars of the complaint within such time, not exceeding 60 days, as may be specified by the Commission.
21A Power of Commission to obtain information, records and evidence
(1) If the Commission is assessing a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the assessment, the Commission may, by written notice given to the person, require the person to do any one or more of the following:(a) to give the Commission, in writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation), and within the reasonable time and in the way specified in the notice, any such information of which the person has knowledge,(b) to produce to the Commission, in accordance with the notice, any such documents,(c) to appear before the Commissioner, or a member of staff of the Commission authorised by the Commissioner, at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents.(2) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B or 6C of Part 2 of the Health Administration Act 1982).(3) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement.Maximum penalty: 20 penalty units.
22 Time for completion of assessment
The Commission must carry out its assessment of a complaint:(a) within 60 days after receiving the complaint, or(b) if, under section 21, the Commission has required the complainant to provide further particulars of the complaint, within 60 days after the date by which the Commission specified that those particulars were to be provided.
22A Associated complaints to be taken into account
(1) In assessing, and reviewing its assessment of, a complaint relating to a health practitioner or a health organisation, the Commission is to have regard to any of the following matters, to the extent the Commission reasonably considers the matter to be relevant to the complaint:(a) any associated complaint,(b) if the complaint relates to a health practitioner:(i) any decision made in respect of the practitioner by an adjudication body within the meaning of the Health Practitioner Regulation National Law, and(ii) any previous finding, determination, recommendation or decision made in respect of the practitioner by a committee, tribunal or panel under a repealed Act.(2) In this section, repealed Act means any of the following Acts:(a) Chiropractors Act 2001,(b) Dental Practice Act 2001,(c) Dental Technicians Registration Act 1975,(d) Medical Practice Act 1992,(e) Nurses and Midwives Act 1991,(f) Optometrists Act 2002,(g) Osteopaths Act 2001,(h) Pharmacy Practice Act 2006,(i) Physiotherapists Act 2001,(j) Podiatrists Act 2003,(k) Psychologists Act 2001.
(1) The Commission must investigate a complaint:(a) if, under section 13 (1), the appropriate professional council is of the opinion that the complaint should be investigated, or(b) if, following assessment of the complaint, it appears to the Commission that the complaint:(i) raises a significant issue of public health or safety, or(ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or(iii) if substantiated, would provide grounds for disciplinary action against a health practitioner, or(iv) if substantiated, would involve gross negligence on the part of a health practitioner, or(v) if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010.(2) A complaint is to be investigated in accordance with Division 5.(3) (Repealed)(4) The Commission may investigate a complaint despite any agreement the parties to the complaint may have reached concerning the complaint.
24 Referral of complaints for conciliation or complaint resolution
(1) The Commission must refer a complaint for conciliation under Division 8 if it is required to do so under section 13 (3) or if it decides to do so under section 20A.(2) The Commission may deal with a complaint under Division 9 if the complaint is not required to be investigated, referred to a professional council under section 25B or referred for conciliation.(3) The Commission may at any time during the assessment of a complaint take any action referred to in section 58C with respect to the complaint without the need for consultation with the appropriate professional council.(4) However, subsection (3) does not affect the requirement in section 12 (1) for the Commission to consult with the appropriate professional council before making a determination on how a complaint should be dealt with as a result of an assessment of the complaint.
25 Notification of certain complaints to Director-General
(1) Following the assessment, the Commission must notify the Director-General of the details of the complaint if it appears to the Commission that the complaint involves a possible breach of any of the following Acts, or specified provisions of Acts, or any regulations made under them:• Anatomy Act 1977• Health Administration Act 1982• Health Records and Information Privacy Act 2002, section 68, 69 or 70• Health Services Act 1997• Human Tissue Act 1983• Mental Health Act 2007• Poisons and Therapeutic Goods Act 1966• Private Health Facilities Act 2007• Public Health Act 2010(2) The Commission is not required to notify the Director-General of the details of the complaint if the complaint was made by the Director-General.(3) The Director-General must notify the Commission whether the Director-General proposes to deal with the complaint and, if the Director-General does so, of the outcome of the Director-General’s dealing with the complaint.(4) This section does not prevent the Commission from dealing with a complaint (or any part of a complaint) in so far as it concerns:(a) the professional conduct of a health practitioner, or(b) a health service which affects the clinical management or care of an individual client.Note. The Director-General, under the Minister, is primarily responsible for the enforcement of the Acts listed in section 25 (other than Division 3 of Part 2A of the Public Health Act 1991). Accordingly, complaints arising under those Acts are to be referred to the Department of Health for possible action. Accountability will be maintained through obligations imposed on the Director-General to notify the Commission of the outcome.However, the section ensures that the Commission may continue to pursue questions that are not dealt with by the Director-General as well as questions that concern the professional conduct of health practitioners and the clinical management or care of individual clients.
25A Reference of complaints to be dealt with under inquiry powers of Director-General
(1) The Commission may, with the consent of the Director-General, refer a complaint (or part of a complaint) to the Director-General if the Commission is of the opinion that the complaint (or part) relates to a matter that could be the subject of an inquiry by the Director-General under section 106 of the Public Health Act 2010 or section 123 of the Health Services Act 1997.(2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to the Director-General under this section.(3) However, the Commission may continue dealing with a complaint (or any part of a complaint) in so far as it concerns:(a) the professional conduct of a health practitioner, or(b) a health service which affects the clinical management or care of an individual client.
25B Reference of complaints to be dealt with by professional councils
(1) Following the assessment, the Commission may refer a complaint to the appropriate professional council (after consultation with that council) if it appears that the complaint (or part) should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW), such as performance assessment or impairment assessment.Note. Section 13 (2) requires the Commission to refer a complaint to the professional council if either the Commission or the professional council is of the opinion that it should be referred.(2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to a professional council under this section.
26 Reference of complaint to another person or body for investigation or other action
(1) Following the assessment, the Commission may refer a complaint (or any part of a complaint):(a) to an appropriate public health organisation if it appears that the complaint (or part) may be capable of resolution at a local level and the public health organisation consents, or(b) to any person or body (other than a public health organisation or professional council) if it appears that the complaint (or part) raises issues which require investigation by the other person or body.(2) However, the Commission must continue to deal with the matter the subject of the complaint (or part) if it appears to the Commission that:(a) the matter raises a significant issue of public health or safety, or(b) the matter raises a significant question as to the appropriate care or treatment of a client by a health service provider, or(c) the matter, if substantiated, would provide grounds for disciplinary action against a health practitioner.(3) A public health organisation to which a complaint (or part) is referred under this section may refer the complaint (or part) back to the Commission if it is unable to resolve it or the public health organisation considers that the matter is appropriate to be dealt with under Division 8 or 9.(4) If a complaint (or part) has been referred back to the Commission under subsection (3), the Commission must assess the complaint (or part) again in accordance with this Division.(5) The Commission may not refer a complaint (or part) to the Director-General under this section.Note. The Commission may refer a complaint to the Director-General under section 25 or 25A but only with the consent of the Director-General.(6) In this section, public health organisation has the same meaning as in the Health Services Act 1997.
27 Circumstances in which Commission may discontinue dealing with complaint
(1) Following the assessment, the Commission may discontinue dealing with a complaint (or any part of a complaint) for any one or more of the following reasons:(a) the complaint (or part) is frivolous, vexatious or not made in good faith,(b) the subject-matter of the complaint (or part) is trivial or does not warrant investigation or conciliation or the Commission dealing with it under Division 9,(c) the subject-matter of the complaint (or part) has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings,(d) the complaint (or part) has been referred by the Commission to another person or body for investigation or for consideration of other action (including, for example, performance assessment or impairment assessment under the Health Practitioner Regulation National Law (NSW)),(e) there is or was, in relation to the matter complained of, a satisfactory alternative means of dealing with the matter by the complainant and the complainant does not have a sufficient reason for not pursuing that alternative means,(f) the complaint (or part) relates to a matter which occurred more than 5 years before the complaint was made and the complainant does not have a sufficient reason for having delayed the making of the complaint,(g) the complainant has failed, without sufficient reason, to provide further particulars of the complaint (or part) within the time specified by the Commission,(h) the complaint (or part) concerns a matter that falls within the responsibility of the Commonwealth.(2) This section does not exhaust the circumstances in which the Commission may discontinue dealing with a complaint (or part).(3) The Commission must not discontinue dealing with a complaint (or part) under this section if it appears to the Commission that the complaint (or part) raises a significant issue of public health or safety.(4) If the Commission discontinues dealing with a complaint (or part) under this section, the complaint (or part) is terminated.
28 Notice of action taken or decision made following assessment
(1) The Commission must give the parties to the complaint notice in writing of the action taken or decision made by the Commission following its assessment of the complaint. The notice is to be given within 14 days after the Commission takes that action or makes that decision.(2) If the Commission decides to investigate a complaint against a health practitioner, the Commission must give notice in writing of the decision:(a) if the health practitioner has provided the health service in respect of which the complaint is made under a contract or agreement with a person who is, or who conducts, a hospital or other health care facility, to the person, or(b) if the health practitioner has provided the health service in the capacity of an employee, to the health practitioner’s employer.(3) If the Commission decides to investigate a complaint against a health practitioner, the Commission may give notice in writing of the decision to a person who currently employs or engages the health practitioner as a health practitioner.(4) This section does not require the Commission to give notice of action taken or a decision made to investigate a complaint if it appears to the Commission, on reasonable grounds, that the giving of the notice will:(a) prejudice the investigation of the complaint, or(b) place the health or safety of a client at risk, or(c) place the complainant or another person at risk of intimidation or harassment, or(d) unreasonably prejudice the employment of the health practitioner in the case of a health practitioner who has provided the health service in the capacity of an employee.(5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that:(a) it is essential, having regard to the principles of natural justice, that the notice be given, or(b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.(6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice.(7) On the expiration of each consecutive period of 60 days after the Commission has decided to investigate a complaint, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)), unless notice under this section has already been given or the Commission has discontinued dealing with the complaint.(8) The Commission’s notice to the complainant must include:(a) advice that the complainant may ask the Commission to review the decision made after assessing the complaint if the decision is:(i) not to investigate the complaint, or(ii) to refer the complaint to the Director-General under section 25 or 25A, or(iii) to refer the complaint to another person or body under section 25B or 26, or(iv) to discontinue dealing with the complaint under section 27, and(b) the reasons for the decision.(9) The Commission may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision.Note. A complainant also has the right under section 41 (3) to request a review of a decision made by the Commission under section 39 at the end of its investigation of a complaint.
28A Notification of other persons following assessment
(1) The Commission is to use its best endeavours to give notification of the outcomes of the assessment of a complaint to a client whose treatment is the subject of the complaint and who is not required to be given notice under section 28 unless the client:(a) is deceased, or(b) is incapable of understanding the notification.(2) If a complaint relates to the treatment of a client at a hospital or other health care facility, the Commission is to use its best endeavours to give notification of the outcomes of the assessment of the complaint to any person recorded by the hospital or health care facility as being a contact for the client.(3) Without affecting the Commission’s obligations under subsections (1) and (2), the Commission may, if it thinks it appropriate and it is practicable to do so, give notification of the outcomes of the assessment of a complaint to any person who is associated with a client whose treatment is the subject of the complaint (including a legal representative of the client or of the estate of the client).(4) The Commission may only give notification to a person under subsection (2) or (3) if the client concerned:(a) is deceased, or(b) is incapable of understanding the notification and the client’s authorised representative (as defined in section 8 of the Health Records and Information Privacy Act 2002) has consented to the Commission giving the notification.(5) On request by the Commission, a person who is, or who conducts, a hospital or health care facility is to supply the Commission with any information in its possession that is necessary for the Commission to fulfil its obligations under subsections (1) and (2). The information may be provided to the Commission despite any other Act or law.(6) This section does not require the Commission to give notice of the outcomes of the assessment of a complaint if it appears to the Commission, on reasonable grounds, that the giving of the notice will:(a) prejudice the investigation of the complaint, or(b) place the health or safety of a client at risk, or(c) place the complainant or another person at risk of intimidation or harassment, or(d) unreasonably prejudice the employment of the health practitioner in the case of a health practitioner who has provided the health service in the capacity of an employee.(7) Despite subsection (6), the Commission must give the notice if the Commission considers on reasonable grounds that:(a) it is essential, having regard to the principles of natural justice, that the notice be given, or(b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.(8) If the Commission decides that subsection (6) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give that form of notice.(9) On the expiration of each consecutive period of 60 days after the Commission has decided to investigate a complaint, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (8)), unless notice under this section has already been given or the Commission has discontinued dealing with the complaint.
Division 5 Investigation of complaints
Note. The bulk of Commission investigations under this Division will deal with matters arising under the Health Practitioner Regulation National Law (NSW) relating to health practitioners. The Commission will investigate with a view to moving to prosecution of the complaint before the appropriate professional board, committee or tribunal. The Commission will also use its powers under this Division for matters relating to unregistered health practitioners and for other matters referred to it, such as a matter which is referred for investigation under section 59, or where the Commission is operating in conjunction with the Department of Health under general health legislation.
29 The purpose of investigation
(1) The investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint.(2) (Repealed)
(1) Without affecting the generality of section 92A, the investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. Expedition is particularly appropriate if the complainant or the person on whose behalf the complaint is made is seriously ill.(2) Before investigating a complaint, the Commission is to consider conducting a concurrent investigation into any associated complaint (other than one that has been discontinued or terminated and not reopened).(3) In investigating a complaint, the Commission is to have regard to any associated complaint that is not being investigated concurrently, to the extent the Commission considers the associated complaint to be relevant.
(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under the Health Practitioner Regulation National Law) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint.(2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made.(2A) If the Commission seeks to obtain a report from a person under this section in relation to a complaint, the Commission is to provide the person with all relevant information concerning the complaint that is in the possession of the Commission.(3) The person giving the report must include in it, or annex to it, a statement in the following form, completed as appropriate:I have/do not have a personal, financial or professional connection with the person against whom the complaint is made. Particulars of the connection are as follows:
............................................................
............................................................
............................................................
Dated:
Signature............................................................(4) Such a report may be used in disciplinary or related proceedings under the Health Practitioner Regulation National Law (NSW) but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made.(5) A person from whom such a report is obtained, the Commission or the Commissioner may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings.(6) In this section, report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.
31 Authorisation of persons to carry out investigations
(1) The Commission may authorise an officer of the Commission, in writing, to exercise the functions under section 33.(2) The Commission must provide an authorised person with a certificate of authority in the form set out in Schedule 1.(3) An authorised person in exercising in any place a function conferred on the authorised person under section 33 must, if so requested by a person apparently in charge of the place, produce the certificate to the person.
32 Functions to be exercised only with consent or under search warrant
An authorised person may not enter any premises and exercise a function under section 33 except with the consent of the owner or occupier of the premises or under the authority of a search warrant.
33 Powers of entry, search and seizure
(1) An authorised person may, for the purpose of investigating a complaint, do any one or more of the following:(a) at any reasonable time, enter and inspect any premises if the authorised person reasonably believes it is necessary to enter those premises for the purpose of investigating the matter with which the complaint is concerned,(b) examine, seize, retain or remove any equipment that the authorised person reasonably believes is, has been or may be used in connection with that matter,(c) require the production of and inspect any stocks of any substance or drugs in or about those premises,(c1) if authorised to do so under a search warrant, seize any stocks of any substance or drugs in or about those premises,(d) require any person within those premises to produce any records in the possession or under the control of that person relating to that matter,(e) take copies of, or extracts or notes from, any such records,(f) remove any such records, with the consent of the owner of the records, for a maximum period of 24 hours for the purpose of taking copies of, or notes from, those records,(f1) if authorised to do so under a search warrant, remove any such records for the purposes of taking copies of, or notes from, those records.(g) require any person at those premises to answer questions or otherwise furnish information in relation to that matter,(h) require the owner or occupier of those premises to provide the authorised person with such assistance and facilities as is or are reasonably necessary to enable the authorised person to exercise the functions of an authorised person under this section.(2) If an authorised person removes any records under the authority of a search warrant for the purposes of taking copies of, or notes from, those records, the authorised person must return the records to the owner of the records as soon as practicable.
(1) An authorised person may apply to an authorised officer for a search warrant if the person has reasonable grounds for believing that entry to premises is necessary for the purpose of investigating a complaint that, if substantiated, may provide grounds for:(a) the suspension or disqualification (by deregistration or cancellation of enrolment) of the person against whom the complaint is made, or(b) the criminal prosecution of that person, or(c) the taking of other disciplinary action against that person.(2) An authorised person may not apply for a search warrant to search premises for the purpose of investigating a complaint against a health practitioner who is or was, at the relevant time, registered under the Health Practitioner Regulation National Law (or whose registration is or was suspended) unless the authorised person or the Commission has caused the President or Chairperson of the appropriate professional council to be notified of the application.(3) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the search warrant to enter the premises and to exercise there the functions of an authorised person under section 33.(4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(5) In this section:authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
34A Power of Commission to obtain information, records and evidence
(1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following:(a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge,(b) to produce to the Commission, in accordance with the notice, any such documents,(c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents.(2) (Repealed)(3) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B or 6C of Part 2 of the Health Administration Act 1982).(4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement.Maximum penalty: 20 penalty units.
Note. Failure of a health practitioner to comply with a requirement under subsection (4) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).
35 Offence: obstructing an authorised person, Commission etc
A person who:(a) prevents an authorised person from exercising a function under section 33, or(b) hinders or obstructs an authorised person in the exercise of such a function, or(c) without reasonable excuse, refuses or fails to comply with a requirement made or to answer a question of an authorised person asked in accordance with section 33, or(d) furnishes information knowing that it is false or misleading in a material particular to an authorised person, the Commissioner or a member of staff of the Commission in connection with the exercise of their functions under this Act with respect to a complaint,is guilty of an offence.Maximum penalty: 20 penalty units.
36 Offence: impersonating an authorised person
A person who impersonates or falsely represents that he or she is an authorised person is guilty of an offence.Maximum penalty: 20 penalty units.
37A Protection from incrimination
(1) Self-incrimination not an excuse
A person is not excused from a requirement under section 21A or 34A to give information, to answer a question or to produce a document on the ground that the information, answer or document might incriminate the person or make the person liable to a penalty.(2) Information or answer not admissible if objection made
However, any information or answer given by a natural person in compliance with a requirement under section 21A or 34A is not admissible in evidence against the person in any civil or criminal proceedings (except disciplinary proceedings or proceedings for an offence under this Part) if:(a) the person objected at the time to doing so on the ground that it might incriminate the person, or(b) the person was not warned on that occasion that the person may object to giving the information or answer on the ground that it might incriminate the person.(3) Documents admissible
Any document produced by a person in compliance with a requirement under section 21A or 34A is not inadmissible in evidence against the person in any proceedings on the ground that the document might incriminate the person.(4) Further information
Further information obtained as a result of a document produced or information or answer given in compliance with a requirement under section 21A or 34A is not inadmissible in any proceedings on the ground:(a) that the document, information or answer had to be produced or given, or(b) that the document, information or answer might incriminate the person.(5) The Commission, the Commissioner or a member of staff of the Commission cannot be required (whether by subpoena or any other procedure) to produce, in connection with any proceedings, a document that contains any information or answer that has been obtained as a result of a requirement under section 21A or 34A if the information or answer is not admissible in evidence in those proceedings because of this section.
38 Notification of findings of investigation to appropriate professional council
(1) The Commission must notify the appropriate professional council (if any) of the findings of an investigation.(2) If the Commission is required to consult with the professional council under section 39 (2), the notification may be given at the time of consultation.
Division 6 Outcomes of investigations into health practitioners
39 What action is taken after an investigation?
(1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following:(a) refer the complaint to the Director of Proceedings,(b) (Repealed)(c) refer the complaint to the appropriate professional council (if any) for consideration of the taking of action under the Health Practitioner Regulation National Law (NSW), such as the referral of the health practitioner for performance assessment or impairment assessment,(d) make comments to the health practitioner on the matter the subject of the complaint,(e) terminate the matter,(f) refer the matter the subject of the complaint to the Director of Public Prosecutions,(g) take action under section 41A.(1A) The Commission is not required to take action under this section if it reviews its assessment of the complaint and takes action under section 20A.(2) The Commission must consult with the appropriate professional council before deciding what action to take.(3) (Repealed)
40 Opportunity for persons investigated to make submissions
(1) If, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to do any of the things referred to in section 39 (1) (a), (c), (d) or (g), it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions.(2) Any such submission must be made in writing within 28 days after the health practitioner is so informed.(3) The Commission is not required by this section to inform a health practitioner of the substance of the grounds for its proposed action if:(a) the grounds relate to the sufficiency of the physical or mental capacity of the practitioner to practise as a health practitioner under the impairment provisions of the Health Practitioner Regulation National Law (NSW), and(b) the practitioner has been notified by the appropriate professional council of action to be taken pursuant to those provisions.Note. Section 40 (3) will ensure that professional councils can act to deal with impaired practitioners pursuant to any powers they may have under the Health Practitioner Regulation National Law (NSW), without awaiting advice from the Commission.
41 Notification of results of investigations and review of decisions
(1) After the Commission has complied with section 39 and any requirement under section 40, it must notify the parties to the complaint and the appropriate professional council, in writing, of the results of the investigation, the action taken under section 39 and the reasons for taking that action and include advice that the complainant may ask the Commission to review the decision made under section 39.(2) The Commission may, at its discretion, also provide the same information to:(a) an appropriate professional or similar association, if there is no appropriate professional council, or(b) any person or body it could have referred the matter to under section 26 if it is of the view that the matter requires investigation by that person or body, or(c) any person to whom it could have given notice under section 28A of its assessment of the complaint, or(d) any other person or body that is, in the Commission’s opinion, a relevant person or body.(3) The Commission must review a decision made under section 39 if asked to do so by the complainant.
Division 6A Action against unregistered health practitioners
41AA Interim prohibition orders
(1) The Commission may, during any investigation of a complaint against an unregistered health practitioner, make an order (an interim prohibition order) in respect of the unregistered health practitioner.(2) The Commission may make an interim prohibition order only if:(a) it has a reasonable belief that the health practitioner has breached a code of conduct for unregistered health practitioners, and(b) it is of the opinion that:(i) the health practitioner poses a serious risk to the health or safety of members of the public, and(ii) the making of an interim prohibition order is necessary to protect the health or safety of members of the public.(3) An interim prohibition order may do one or both of the following:(a) prohibit the health practitioner from providing health services or specified health services,(b) place such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner.(4) An interim prohibition order remains in force for a period of 8 weeks or such shorter period as may be specified in the order.(5) The Commission must notify the health practitioner of its decision to make an interim prohibition order and provide the health practitioner with a written statement of the decision that sets out the grounds on which the decision was made as soon as practicable after the decision is made.(6) In this section, code of conduct for unregistered health practitioners means a code of conduct prescribed by regulations under section 100 of the Public Health Act 2010.
41A Prohibition orders and public statements
(1) The Commission may take action under this section if:(a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and(b) it finds that the health practitioner has breached a code of conduct for unregistered health practitioners or has been convicted of a relevant offence, and(c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public.(2) The action that the Commission may take under this section is either or both of the following:(a) make an order (a prohibition order) that does any one or more of the following:(i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently,(ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently,Note. Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.(b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner.(3) If the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is registered under the Health Practitioner Regulation National Law, the Commission is, before making the prohibition order, to notify the relevant professional council of the proposed order and give that council an opportunity to make a submission.(4) The Commission may revoke or revise a statement under subsection (2) (b).(5) In this section:code of conduct for unregistered health practitioners means a code of conduct prescribed by regulations under section 100 of the Public Health Act 2010.
relevant offence means:
(a) an offence under Part 7 of the Public Health Act 2010, or(b) an offence under the Fair Trading Act 1987 or the Competition and Consumer Act 2010 of the Commonwealth that relates to the provision of health services.
41B Commission to provide details of its decision to make prohibition order
(1) If the Commission makes any of the following decisions in respect of a health practitioner under section 41A, it must provide the health practitioner with a written statement of the decision as soon as practicable after the decision is made:(a) a decision that the health practitioner has breached a code of conduct for unregistered health practitioners,(b) a decision to make a prohibition order in respect of the health practitioner,(c) a decision to issue, revoke or revise a public statement about the health practitioner under section 41A.(2) The statement of a decision must:(a) set out any findings on material questions of fact, and(b) refer to any evidence or other material on which the findings were based, and(c) give the reasons for the decision.(3) The Commission, subject to subsections (4) and (5):(a) must provide a statement of the decision to the complainant, and(b) must provide a statement of the decision to any professional body or association that the Commission considers to be relevant to the health practitioner or to the area of practice to which the complaint relates, and(c) may make a statement of the decision publicly available.(4) The Commission may remove from a statement of a decision that is provided to a person or body, or made publicly available, under subsection (3), any material that it considers to be confidential information.(5) When confidential material is not included in the statement of a decision the statement should indicate that such material has been removed.(6) This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.(7) In this section:confidential information means information that:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and(b) relates to the personal or business affairs of a person, other than the person to whom the Commission is required to provide the written statement of the decision, and(c) is information:(i) that was supplied in confidence, or(ii) the publication of which would reveal a trade secret, or(iii) that was provided in compliance with a duty imposed by or under an Act, or(iv) the provision of which by the Commission would be in breach of an Act or law.
41C Appeals to Administrative Decisions Tribunal
(1) A health practitioner may apply to the Administrative Decisions Tribunal for a review of the following decisions under section 41AA or 41A:(a) a decision that the health practitioner has breached a code of conduct for unregistered health practitioners,(b) a decision to make an interim prohibition order or a prohibition order in respect of the health practitioner,(c) a decision to issue, revoke or revise a public statement about the health practitioner.(2) An application under this section is to be made within 28 days after the day on which the health practitioner is provided with the statement of the decision.
41D Commission to provide registration authorities and professional councils with details of interim prohibition orders and prohibition orders
If the Commission makes an interim prohibition order under section 41AA or a prohibition order under section 41A in respect of a health practitioner, it is to provide a copy of the statement of the decision in respect of that order to each registration authority and professional council.
Division 7 Outcomes of investigations into health organisations
42 What action is taken at the end of an investigation?
(1) At the end of the investigation of a complaint against a health organisation, the Commission must:(a) terminate the matter, or(b) make recommendations or comments to the health organisation on the matter the subject of the complaint, or(c) refer the matter the subject of the complaint to the Director of Public Prosecutions.(2) If the Commission makes recommendations or comments, it must prepare a report on the matter for the Director-General.(3) The report must include:(a) the reasons for its conclusions, and(b) the reasons for any action recommended to be taken.
43 Opportunity for health organisation investigated to make submissions
(1) If, at the end of the investigation of a complaint against a health organisation, the Commission proposes to make recommendations or comments to the health organisation on the matter the subject of the complaint, it must first inform the health organisation of the substance of the grounds for its proposed action and give the health organisation an opportunity to make submissions.(2) Any such submission must be made in writing within 28 days after the health organisation is so informed.
(1) The Commission may request the Director-General to notify it of any action taken or proposed as a consequence of its report under section 42 (2).(2) If the Commission is not satisfied that sufficient steps have been taken within a reasonable time as a consequence of its report to the Director-General, it may, after consultation with the Director-General, make a report to the Minister.(3) If the Commission is not satisfied that sufficient steps have been taken within a reasonable time as a consequence of its report to the Minister, it may make a special report on the matter to the Presiding Officer of each House of Parliament.(4) Section 63 (subsection (1) excepted) applies to a special report under this section in the same way as it applies to a special report under section 63.
45 Notification of results of investigation
(1) After the Commission has complied with any requirement under section 43, it must notify the parties to the complaint, in writing, of the results of the investigation.(2) The Commission may, at its discretion, also provide the results of its investigation to:(a) any person or body it could have referred the matter to under section 26, or(b) any person to whom it could have given notice under section 28A of its assessment of the complaint, or(c) any other person or body that is, in the Commission’s opinion, a relevant person or body.(2A) The Commission may, at its discretion, also give a copy of a report prepared under section 42 (2) on the matter the subject of the complaint to the complainant.(3) Nothing in this section authorises the release of a report prepared under section 42 (2) otherwise than as provided by subsection (2A) or section 44, unless the report is released by the Director-General or the Minister.
46 Appointment of conciliators
(1) On the referral of a complaint by the Commission to the Health Conciliation Registry, the Registrar must appoint a conciliator to conciliate the complaint.(2) The Registrar may appoint more than one conciliator to conciliate the complaint if the Registrar thinks it is desirable to do so.
47 Notification of arrangements for conciliation
Within 14 days after the referral of a complaint by the Commission to the Health Conciliation Registry, the Registrar must give written notice to the parties to the complaint of the following:(a) that the complaint has been referred for conciliation,(b) that the conciliation process is voluntary and that the consent of the parties is required,(c) the objects of the conciliation process,(d) confidentiality provisions concerning conciliation,(e) the effect of any agreements arising out of conciliation,(f) the reasons why conciliation is considered to be appropriate.
48 Conciliation to be voluntary
Participation in the conciliation process by the parties to a complaint is voluntary.
The function of a conciliator is:(a) to bring the parties to the complaint together for the purpose of promoting the discussion, negotiation and settlement of the complaint, and(b) to undertake any activity for the purpose of promoting that discussion, negotiation and settlement, and(c) if possible, to assist the parties to the complaint to reach agreement.Note. A conciliator has no power to impose a decision on the parties, to make a determination or to award compensation.
50 Assistance to parties at conciliation
(1) At the conciliation of a complaint, a party to the complaint is not entitled to be legally represented.(2) A party to a complaint may be assisted by another person (not being an Australian legal practitioner) if the assistance is provided:(a) to the complainant, or(b) to another party to the complaint and the Registrar or conciliator gives permission because the party would be disadvantaged without the assistance.(3) This section does not prevent an officer of a corporation that is a party to a complaint from representing the corporation.(4) Contravention of this section does not invalidate the conciliation of a complaint.
51 Confidentiality of the conciliation process
(1) Evidence of anything said or of any admission made during the conciliation process is not admissible in any proceedings before a court, tribunal or body.(2) A document prepared for the purposes of, or in the course of, the conciliation process (or a copy of such a document) is not admissible in any proceedings before a court, tribunal or body.(3) This section does not apply to evidence or a document if the persons who attended, or were named during, the conciliation process and, in the case of a document, all persons named in the document, consent to admission of the evidence or document.(4) A person cannot be required (whether by subpoena or any other procedure) to produce evidence or a document that is inadmissible in evidence in proceedings before a court, tribunal or body because of this section.
52 Conclusion of the conciliation process
(1) The conciliation process is concluded:(a) if either party terminates the conciliation process at any time, or(b) if the parties to the complaint reach agreement concerning the matter the subject of the complaint.(2) The complainant must notify the Registrar without delay if the parties reach agreement otherwise than during the conciliation process.(3) The conciliation process is terminated if the conciliator terminates the process after having formed the view:(a) that it is unlikely that the parties will reach agreement, or(b) a significant issue of public health or safety has been raised.
53 Preparation and distribution of report on conclusion of conciliation process
(1) On the conclusion of the conciliation process, the conciliator who was involved in the process must prepare a report to the Registrar concerning the conciliation.(2) The report may state only:(a) the outcome of the conciliation process, and(b) whether or not a recommendation is made that the Commission investigate the complaint.(3) As soon as practicable after receipt of the report, the Registrar must give a copy of the report to the Commission, the parties to the complaint and the appropriate professional council (if any).
54 Furnishing of other information to Registrar concerning conciliation process
A conciliator who was involved in a conciliation process must furnish information to the Registrar (otherwise than in a report under section 53) sufficient to enable the Registrar to comply with section 55.
55 Six-monthly reports to professional councils
(1) As soon as practicable after 1 April and 1 October in each year, the Registrar must furnish a report to each professional council setting out the following information in relation to the complaints which have been dealt with under this Division during the previous 6 months:(a) the number of complaints dealt with,(b) the background of each complaint,(c) the nature of the issues the subject of the conciliation process,(d) any issues of a general nature arising out of each complaint relevant to the professional or educational standards of the profession concerned.(2) A report must not contain any information which identifies a party to a complaint.(3) A professional council must not use a report furnished to it under this section except for the purpose of providing general information to health practitioners concerning the professional or educational standards of their profession.
56 Complaint may be referred for investigation
(1) Despite section 20A, the Commission may investigate a complaint that has been dealt with under this Division but only if:(a) the report under section 53 contains a recommendation that the Commission investigate the complaint, or(b) new material concerning the matter the subject of the complaint becomes available and that material raises a matter that would cause the Commission to refer the complaint for investigation in accordance with section 23.(2) Before investigating the complaint, the Commission must consult with the appropriate professional council (if any). If either the Commission or the appropriate professional council (or both) is (or are) of the opinion that a complaint should be investigated, it must be investigated.
57 Health Conciliation Registry and conciliators to be independent in dealing with complaints
A member of staff of the Commission employed in the Health Conciliation Registry or a conciliator is not subject to the direction and control of the Commissioner in relation to dealing with any particular complaint that has been referred to the Health Conciliation Registry for conciliation.
58 Offence for conciliator or staff of Health Conciliation Registry to disclose information obtained in conciliation
A conciliator or a member of staff of the Commission employed in the Health Conciliation Registry must not disclose information obtained during the conciliation of a complaint (including to a member of staff of the Commission that is not employed in the Registry) except in any one or more of the following circumstances:(a) with the consent of the parties to the complaint concerned,(b) in connection with the administration or execution of this Division,(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,(d) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.
58A Offence of concealing a serious offence
A conciliator is not liable to be proceeded against under section 316 of the Crimes Act 1900 in respect of any information obtained in connection with the conciliation process.
Division 9 Complaints resolution
58B Objects of Commission under this Division
The objects of the Commission under this Division are as follows:(a) to provide an alternate and neutral means of resolving complaints that is independent of the investigative processes of the Commission,(b) to facilitate the resolution of complaints, including determining the most appropriate means of resolution having regard to the nature of the complaint and the expectations of the parties to the complaint,(c) to provide information to health service providers and members of the public on the complaints resolution functions of the Commission under this Part.
58C Function of Commission under this Division
The Commission, when dealing with a complaint under this Division, is to take appropriate measures to assist in the resolution of the complaint, including (but not limited to) any of the following measures:(a) providing information to the parties to the complaint,(b) undertaking discussions concerning the complaint with the parties to the complaint,(c) facilitating the direct resolution of the complaint between the parties to the complaint.
58D Participation in complaints resolution process to be voluntary
Participation in the complaints resolution process under this Division by the parties to a complaint is voluntary.