Health Care Complaints Act 1993 No 105
Current version for 4 July 2014 to date (accessed 25 November 2014 at 03:09)
Part 2Division 4

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.

20   The purpose of assessment

(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 Health Secretary 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 Health Secretary 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.

23   Investigation of complaint

(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 Health Secretary

(1)  Following the assessment, the Commission must notify the Health Secretary 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 Health Secretary of the details of the complaint if the complaint was made by the Health Secretary.
(3)  The Health Secretary must notify the Commission whether the Health Secretary proposes to deal with the complaint and, if the Health Secretary does so, of the outcome of the Health Secretary’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, or is likely to affect, the clinical management or care of an individual client.
Note. The Health Secretary, under the Minister, is primarily responsible for the enforcement of the Acts listed in section 25 (other than Division 3 of Part 7 of the Public Health Act 2010). 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 Health Secretary 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 Health Secretary 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 Health Secretary

(1)  The Commission may, with the consent of the Health Secretary, refer a complaint (or part of a complaint) to the Health Secretary 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 Health Secretary 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 Health Secretary 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, or is likely to affect, 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 Health Secretary under this section.
Note. The Commission may refer a complaint to the Health Secretary under section 25 or 25A but only with the consent of the Health Secretary.
(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 parties to the complaint 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 Health Secretary 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.
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