The Law Handbook 2024

Chapter 9.1: Health and the law 877 Most public hospitals and larger private health organisations have complaints liaison officers who can help resolve a complaint. If a person is not satisfied with a health service they received, the HC Commissioner asks the person to raise their concerns with the organisation directly, before lodging a complaint with the HC Commissioner. Speaking directly with the health service provider is often the quickest and easiest way to resolve complaints. If the person remains dissatisfied, then the HC Commissioner may deal with the complaints, as set out below. Where there has been a significant problem with management of a health service, a complaint may be made to the Victorian Government Department of Health (see ‘Contacts’ at the end of this chapter). Victorian Health Complaints Commissioner The HC Commissioner is an independent and impartial statutory body that began operation on 1 February 2017 under the Health Complaints Act 2016 (Vic) (‘ HC Act ’). The HC Commissioner supports safe and ethical health care in Victoria by: • resolving complaints about health services and the handling of health information in Victoria; • investigating providers who pose a serious risk to the health, safety or welfare of the public; • monitoring and reviewing trends in complaints data; • providing an accessible service that is a free alternative to legal proceedings; and • educating consumers and providers about their rights and responsibilities. The definition of ‘health service’ in the HC Act is very broad and is defined as: (a) an activity performed in relation to a person that is intended or claimed (expressly or otherwise) by the person or the provider of the service: (i) to assess, predict, maintain or improve the person’s physical, mental or psychological health or status, or (ii) to diagnose the person’s illness, injury or disability, or (iii) to prevent or treat the person’s illness, injury or disability or suspected illness, injury or disability; (b) a health-related disability, palliative care or aged- care service; (c) a surgical or related service; (d) the prescribing or dispensing of a drug or medicinal preparation; (e) the prescribing or dispensing of an aid or piece of equipment for therapeutic use; (f) health education services; (g) therapeutic counselling and psychotherapeutic services; (h) support services necessary to implement any services referred to in paragraphs (a) to (g); (i) services: (i) that are ancillary to any other services to which this definition applies, and (ii) that affect or may affect persons who are receiving other services to which this definition applies; (j) any other prescribed services. The HC Act (sch 2) legislates a Code of Conduct for general health service providers (those that are not registered with Ahpra). The HC Act establishes that health services should attempt to resolve matters in the first instance and that anyone can make a complaint to the HC Commissioner (e.g. a consumer, carer, or a third party). The HC Act contains a flexible approach to complaints handling and retains the strong confidentiality provisions for conciliation. The HC Commissioner can require a response from a health service provider; failure to provide a response may result in penalties. A complaint can be made via telephone, the online complaint form, in writing, and in person. For straightforward matters, a staff member at the Office of the Health Complaints Commissioner may telephone the health provider and ask the provider to respond directly to the complainant. When a complaint falls within the jurisdiction of the HC Act, and needs to be acted on, the matter is assigned to a resolutions officer. For more complex matters, a resolutions officer deals with the complaint through conciliation or other formal complaints resolution processes. These processes may involve meetings, requesting the complainant’s medical records, or obtaining an independent expert report. An investigation may occur if the HC Commissioner reasonably believes that a complaint should be investigated and: • the complaint is not suitable for a complaints resolution process; or • the complaints resolution process has not been successful; or