The Complaint Process with the Health Complaints Commissioner

Health services that can be investigated include all types of health services, both public and private. Providers include public or private practitioners, nursing homes, hostels or supported accommodation houses, public or private hospitals, an alternative health care provider, or any other person or place providing a health service. The health service must have been received in Tasmania.

If a provider gives an opinion or makes a decision for the purposes of a claim under the workers compensation scheme, this cannot be investigated by the Health Complaints Commissioner.

Who can make a complaint?

A complaint can be made by anyone aged 14 years or more who uses a health service, or the parent or guardian of a child under 14. The person who used the health service about which they want to complain may authorise another person to make a complaint on their behalf. A person who has legal responsibility for the health affairs of a person may register a complaint for them. Another health service provider and certain approved or prescribed persons are also permitted to lodge a complaint.
Signed approval is needed before a complaint can be investigated or before a complaint can be made for someone else. The Commissioner may grant an exemption in special circumstances with regard to who may make a complaint and the lodging of a complaint.

Types of complaints

Amongst categories of complaints that can be investigated are:

• the failure of a health service provider to provide a service or the provision of a service that was unnecessary;
• denial of a person’s dignity or privacy;
• denial of access to information about health care;
• failure to give adequate information;
• failure to treat a person in a professional manner; or
• failure to exercise due skill.

If a health service provider fails to take proper action regarding a complaint made to them or if the provider acts in any way that is inconsistent with the Tasmanian Charter, this is also the basis for a complaint.

Time limits

The complaint must be made within two years of the complainant becoming aware of the circumstances that gave rise to the complaint. The Commissioner may waive this requirement if satisfied that the complainant had good reason for not making the complaint earlier.

What will it cost?

There is no charge for making a complaint to the Health Complaints Commissioner or for any assessment, investigation or conciliation. If an independent medical opinion is needed by a complainant using the conciliation process to seek compensation, it will be paid for by the complainant.

How to make a complaint

Only after an approach is made to the health service provider and the matter is not resolved can a complaint be made to the Health Complaints Commissioner. There is a complaints form on the website.

Early resolution

Sometimes a person may call or write to the Commissioner with a relatively simple issue. For example, they may have had a billing issue and had not felt able to raise it themselves with the health provider. The Commission staff may help the person to contact the health provider and the issue may be quickly resolved with no greater involvement of the Commissioner’s Office.

If the complaint is forwarded in writing, or the complaint form sent with a package is returned signed, the complaint is registered. The complaint is then sent to the provider with a request that a response be made directly to the complainant in the first instance. There is, however, provision in the legislation, in particular instances, for the Commissioner not to disclose to the health service provider any information that would identify the health service user or complainant.

The response from the provider may resolve the issue for the complainant. If there are still outstanding issues, or the complainant believes the response contains errors of fact or omission, the complainant is requested to put those matters in writing, so an officer can discuss them directly with the provider.

The initial assessment period provides the Health Complaints Commissioner with the opportunity to assess a complaint for substance. In determining whether a health service provider has acted reasonably, the Commissioner must have regard to the principles in the Charter of Health Rights and Responsibilities and to the generally accepted standard of health service delivery expected of a provider of that kind.

For those complaints not resolved with early resolution, the Commissioner has a discretion to either:

• refer the complaint to AHPRA or a registration board where the issue is one of clinical practice standards;
• refer the complaint to an independent conciliator for conciliation;
• investigate the complaint him or herself; or
• dismiss the complaint.

Conciliation

A complaint can be referred to a conciliator for statutory conciliation if agreed to by both the complainant and the provider. Conciliation is an alternative to civil litigation where claims for compensation form part of a substantive complaint. Nothing found during the conciliation can be used in any other forum, such as court. It is a closed process.

A conciliator associated with the OHCC will act as conciliator in a complaint. The role of the conciliator is to assist the complainant and provider to find a way to resolve the issue or issues which gave rise to the complaint. The conciliator does not represent either party and is there to facilitate a resolution. Once an outcome is negotiated, both parties sign a document agreeing to the outcome, at which stage the matter is finished and cannot be taken up in another forum. If an agreement is reached and signed by the parties to the conciliation, the signed agreement binds as if it were a court document.

The outcomes of a conciliation could include:

• compensation
• apology
• changes to the system

Changes to the system may result where, for example, a midwife following a hospital guideline may have acted contrary to a labouring woman’s wishes. Changes to the system will usually involve a care provider following an OHCC recommendation on alteration to an existing policy or procedure manual.

Investigation

There are several situations where an investigation will take place:

• Where a matter has not been resolved, where too little of the subject matter is known,
• a review of medical or other records is warranted in order for sufficient information to be found about a complaint matter, or
• where there may be a question about the conduct of a provider of a health service, an investigation would take place.

Predominantly, investigations occur where a service is provided to more than one user, or where insufficient information has been gained for a reasonable explanation to be provided to the user of the service. Investigations also occur where there are questions about the practice of an individual provider, any results of such investigations can result in an AHPRA investigation, depending on the recommendation of the OHCC.

Statutory actions under the Health Complaints Act 1995 provide the opportunity for privileged and confidential information to be obtained, with the express view of identifying the service issues which gave rise to the complaint in the first instance. In conciliation and investigation, formal opinions can be sought on the actual service provided and medical or other records can be obtained to inform that opinion.

An investigation may involve interviews with the complainant and the health service provider, a review of services provided, examination of relevant records and research into current best practice standards. There is an obligation on a health service provider to provide the health records of the complainant. Penalties can apply.

A report with recommendations based on the findings of the investigation will be made, which identifies the actions that may be possible to ensure that type of complaint will not arise again. This report can be made to the appropriate individual or body able to implement the actions.

Confidentiality

Permission is sought from the users of health care services, firstly to refer their complaint to the provider and then to gain access to their health information. Providers are assured that, whenever a matter is under investigation, the information sought and provided can be used by the Commissioner only for the purposes of the Health Complaints Act 1995. Additionally, this privilege is strengthened further in conciliation, where any information given is confidential and is not admissible in a court or tribunal.

The confidentiality of this statutory action is guaranteed by the Act. Staff of the Commission, other than the conciliator involved and the Commissioner, do not become aware of the detail and outcome of conciliated cases. No identifying information is provided to any party outside the complaint during the informal processes.

During the informal stages of the complaints process, the main aim is to assist both parties to resolve the issues of concern directly with each other, thus improving communication and trust and demonstrating that not all matters require external intervention.

Registration Boards can be notified of all issues registered but no identifying information is provided unless the matter has not been resolved during a specified timeframe allowed under the Act for informal resolution and is to proceed to a statutory action, i.e. to investigation, conciliation or referral to a Registration Board.

Confidentiality of information held by the Health Complaints Commissioner is essential to ensure both users and providers of health care services have confidence and trust in the processes. The highest priority is to ensure that the confidentiality of both parties is maintained throughout the processes, whether informal or statutory. Confidentiality of information must rely on the cooperation of all people involved in the complaint.

Communication

Often the provider is unaware that the user has not understood medical information because the user simply sits and nods. Sometimes the provider has difficulties in keeping to the appointment schedule and does not take enough time to explain matters in a manner which allows the user to understand. This can occur in both public and private, mainstream or non-traditional service areas. Communication problems do not always equal negligence.

What happens later?

The OHCC has the power to perform a follow-up audit three months after the resolution of the complaint to assess whether the health care provider has complied with any undertakings.
The OHCC has no power itself to impose penalties or make changes. It is an advisory body, to a certain extent, and can provide conciliation for voluntary resolution of a conflict. If there is a significant issue with a health care provider that falls within the jurisdiction of AHPRA, AHPRA may decide to take up the investigation from the OHCC, and the matter may end in the Health Practitioners Tribunal for resolution.