The Law Handbook 2024

1122 Section 12: Government and the individual about news or current affairs that are intended to be, or are actually, published. Victorian Health Complaints Commissioner The Victorian Health Complaints Commissioner (‘ HC Commissioner ’) administers the HR Act and accepts complaints about interference with privacy related to health, including access to health information (see ‘Complaints, rulings and investigations’, below). The HC Commissioner has the power to issue guidelines in relation to certain parts of HPP 1, 2, 6 and 10, and to approve guidelines prepared by a public sector organisation (or other person or body), and to vary any guidelines. The guidelines can lessen the protections provided by a HPP but only if it is substantially in the public interest to do so. The Governor in Council can disallow guidelines. The HC Commissioner published two statutory guidelines in February 2002: one set of guidelines on research (HPP 1.21(iii), 2.2(g)(iii)); and one set of guidelines on the transfer and closure of a practice (HPP 11). The HC Commissioner has other functions, including auditing records of health information, researching, developing educational programs, and issuing rulings and compliance notices (for the list of the HC Commissioner’s functions, see s 87 HR Act). Complaints, rulings and investigations The HC Commissioner can receive complaints about an act or practice that breaches one of the Health Privacy Principles or breaches the access and correction provisions in Part 5 of the HR Act. The complaint can be about the interference with the privacy of a deceased individual – whether or not the interference occurred before or after death. The HC Commissioner can also investigate complaints referred by the Victorian Ombudsman and the Victorian Information Commissioner. Provision is made in the HR Act (s 47) for complaints to be made on behalf of children, and on behalf of those with a physical or mental disability that makes them incapable of making a complaint. The HC Commissioner can decline to entertain a complaint on a number of grounds, including: • the complainant failed to complain to the respondent before going to the HCCommissioner; • the complaint is made more than 12 months after the complainant became aware of the matter being complained of; • the complaint is being dealt with adequately by another body; • the complaint is frivolous, vexatious or lacking in substance (for the full list, see s 51 HR Act). The HC Commissioner can refer a complaint to the Victorian Information Commissioner, the Australian Information Commissioner, or the VictorianDisability Services Commissioner. If the complaint is about a registered health practitioner, the HC Commissioner can refer any part of the complaint to the appropriate registration board (if the board has the power to deal with the matter). If the complaint is accepted, theHCCommissioner can attempt to conciliate the complaint, or make a ruling, or (if neither are appropriate) decide to not entertain the complaint any further. If the HC Commissioner declines to entertain a complaint, or conciliation or a ruling are not appropriate, or conciliation is attempted and fails, the complainant can require the HC Commissioner to refer the complaint to VCAT. The HCCommissioner can investigate a complaint that has not been declined or conciliated and make a ruling about whether the complainant’s privacy has been breached. The HC Commissioner must give a written notice of the ruling to the complainant and respondent. The notice must include reasons for the ruling, specify any action, and state the date (not exceeding a month) in which the complaint must be remedied. The respondent has to report back within a specified time and failure to do so attracts a penalty. The complainant and respondent both have rights to have the complaint referred to VCAT following a ruling by the HC Commissioner. The HC Commissioner also has the power to investigate and serve a compliance notice (whether or not a complaint has been made) if there has been a serious or flagrant contravention of the HR Act. A notice can also be served if the same type of contravention (whether or not serious or flagrant) has occurred five times or more in the last two years. In conducting an investigation, the HC Commissioner has enforceable powers to obtain infor­ mation and documents and take evidence under oath. Failure to comply with a compliance notice attracts penalties; failure to comply is an indictable offence. A recipient of a compliance notice, or any individual or organisation affected by the notice, can refer the matter to VCAT for review.