Is the application valid: s.43 GIPA Act?
9The Respondent submitted that the information requested by the applicant is excluded information, and as a result, the applicant's access application is invalid.
10The Respondent referred me to the recent decision of SM Montgomery in Pertsinidis v lllawarra Shoalhaven Local Health District [2014] NSWCATAD 130. There the Tribunal referred to my decision in Miller v Director of Public Prosecutions [2012] NSWADT 38 in which I discussed the broad scope of the s.43 exemption.
11When the applicant complained to the Council it was obliged, under s.144G of the National Law, to notify the Respondent of the complaint. Section 11 of the HCC Act deems the complaint to be a complaint made to the Respondent. There is therefore no impediment to the operation of s.43 of the GIPA Act that the complaint investigated by the Respondent pursuant to its complaint handling function was not one which was directly made to it, but rather to the Council.
12I find that the application related to the Respondent's complaint handling, investigative, complaints resolution and reporting functions. It therefore was not a valid application by virtue of the operation of s.43 of the GIPA Act in that the information sought is excluded information, as defined.
13I accept that the applicant has concerns about her treatment and the treatment her son received, and it is about this that she has complained. I also accept that she is disappointed that, after investigation, no action was taken in relation to her complaint. I accept that there is little information about what precisely the Respondent did in investigating the complaint but under s.20 of the HCC Act in consultation with the Council, it determined to take no further action in relation to the complaint. In essence, the applicant seeks information about the depth of the investigation, so that she can be satisfied that her concerns were adequately explored.
1. It is useful to set out the object of the HCC Act.
3 Object and principle of administration of Act
(1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of:
(a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and
(b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and
(c) prosecuting serious complaints, and
(d) resolving or overseeing the resolution of complaints.
(2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration.
14Similarly, it is useful to review the functions of the Respondent's functions.
80 Functions of Commission
(1) The Commission has the following functions:
(a) to receive and deal under this Act with the following complaints:
- complaints relating to the professional conduct of health practitioners
- complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients
- complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW) ,
(b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2,
(c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals,
(d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part,
(e) to monitor, identify and advise the Minister on trends in complaints,
(f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with,
(g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints,
(h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process,
(i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions.
(2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act.
...
15As can be seen, the Respondent has wide powers and responsibilities. It is charged, essentially, with dealing with complaints against health practitioners. That is what it has said it has done in response to the applicant's complaint, and the Tribunal has no jurisdiction to assess the extent or the appropriateness of the Respondent's investigation. Having said that, there was no evidence to suggest it had conducted its role other than diligently.