Part 4Complaints

Part 4—Complaints Division 1—Making a complaint 24—Who may complain A complaint about a health or community service used, received by or sought by a person (a health or community service consumer) may be made to the Commissioner by— (a) the health or community service consumer; or (b) if the health or community service consumer is a child— (i) the child; or (ii) if the child has attained the age of 16 years—a person appointed by the child to make the complaint on the child's behalf; or (iii) if the child has not attained the age of 16 years—a parent or guardian of the child; or (d) the donee of a power of attorney from the health or community service consumer; or (da) a substitute decision‑maker appointed under an advance care directive (within the meaning of the Advance Care Directives Act 2013) given by the health or community service consumer; or (e) a person who is acting on behalf of the health or community service consumer under another law or an order of a court; or (f) a Member of Parliament; or (g) if the Commissioner is satisfied that it is unreasonable to expect the health or community service consumer to make a complaint personally—a person approved by the Commissioner to act on behalf of the health or community service consumer; or (h) a health or community service provider if the complaint is made on the ground that the relevant service is or has been provided or is or was necessary because of the actions of another health or community service provider; or (i) if the health or community service consumer has died—a person who can demonstrate to the Commissioner that he or she had an enduring relationship with the deceased person, or a personal representative of the deceased person; or (j) the Minister; or (k) the Chief Executive of the Department; or (l) any other person, or any body, that, in the opinion of the Commissioner, should be able to make a particular complaint in the public interest. 25—Grounds on which complaint may be made (1) A complaint may be made (and may only be made under this Act) on one or more of the following grounds: (a) that a health or community service provider has acted unreasonably by not providing a health or community service, or by discontinuing (or proposing to discontinue) a health or community service provided to a particular person; (b) that the provision of a health or community service or of part of a health or community service was not necessary or was inappropriate; (c) that a health or community service provider has acted unreasonably in the manner of providing a health or community service; (d) that a health or community service provider has failed to exercise due skill; (e) that a health or community service provider has failed to treat a health or community service consumer in an appropriate professional manner; (f) that a health or community service provider has failed to respect a health or community service consumer's privacy or dignity; (g) that a health or community service provider has acted unreasonably by failing to provide a health or community service consumer— (i) with sufficient information, in language and terms understandable to the consumer, on the treatment or service in order to enable the consumer to make an informed decision; or (ii) with a reasonable opportunity to make an informed choice of the treatment or services available; or (iii) with adequate information on the availability of further advice on the consumer's condition or of relevant education programs (if any); or (iv) with adequate information on the treatment or services received; or (v) with any prognosis that it would have been reasonable for the consumer to be provided with; (h) that a health or community service provider has acted unreasonably by— (i) denying a health or community service consumer access to, or restricting the consumer's reasonable access to, records relating to the consumer that were in the provider's possession; or (ii) not making available to a health or community service consumer information about the consumer's condition that the health service provider was able to make available; (i) that a health or community service provider has acted unreasonably in disclosing information in relation to a health or community service consumer to a third person; (j) that a health or community service provider has acted unreasonably by not taking proper action in relation to a complaint made to him or her by the consumer about a provider's action of a kind referred to in this section; (k) that a health or community service provider has acted in any other manner that is inconsistent with the Charter; (l) that a health or community service provider has acted in any other manner that did not conform with the generally accepted standard of service delivery expected of a provider of the kind of service to which the complaint relates. (2) Nothing in subsection (1) requires a health or community service provider— (a) to act, or to provide advice or information with respect to a matter, outside the field of expertise associated with the provider's profession or occupational group; or (b) to alter, or to hand over a copy of, medical records in the provider's possession. (3) For the purposes of subsection (1), information appropriately provided to a person lawfully acting on behalf of a health or community service consumer at the time the information is provided will be taken to have been appropriately provided to the health or community service consumer. (4) Subsection (1)(i) does not apply in relation to the disclosure of information to— (a) a legal practitioner in connection with a related legal matter; or (b) an insurer who has an appropriate interest in the information; or (c) any other person of a prescribed class. (5) If a complaint relates to an act or omission of a volunteer while working for another person or body, the complaint will be taken to be a complaint against the other person or body (as the case may be) and, subject to subsection (6), the volunteer cannot be required to participate in any proceedings under this Act and in particular cannot be the subject of the exercise of any power under Part 6 Division 2. (6) Despite subsection (5), a volunteer may be required to participate in proceedings under this Act and may be the subject of the exercise of power under Part 6 if, in the circumstances— (a) a code of conduct under section 56A applies in respect of the volunteer; and (b) the Commissioner is satisfied that conduct of the volunteer poses or has posed a risk to the health or safety of members of the public. 26—Form of complaint (1) A complaint is to be made in a manner approved or determined by the Commissioner. (2) A person must, in making a complaint, disclose to the Commissioner, to the best of the person's abilities, all grounds of complaint on which he or she intends to rely. 27—Time within which a complaint may be made (1) Subject to subsection (2), a complaint must be made within 2 years from the day on which the complainant first had notice of the circumstances giving rise to the complaint. (2) The Commissioner may extend the period under subsection (1) in a particular case— (a) if satisfied that it is appropriate to do so after taking into account— (i) whether a proper investigation of the complaint should still be possible; and (ii) whether the complaint should still be amenable to resolution under the provisions of this Act; and (iii) whether it would be in the public interest to entertain the complaint; and (iv) any other matter considered relevant by the Commissioner; or (b) if— (i) the complaint relates to the provision of a health or community service to a child; and (ii) the complainant first had notice of the circumstances giving rise to the complaint after May 2004. (3) For the purposes of subsection (1), a complainant will be presumed to have notice of the circumstances giving rise to the complaint at the time he or she might reasonably be expected to have had such notice. (4) This section does not apply in relation to a complaint made by the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People or the Guardian for Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016. 28—Further information may be required (1) The Commissioner may, at any time, require a complainant— (a) to provide further information or documents; (b) to verify all or any part of the complaint by statutory declaration. (2) When making a requirement under subsection (1), the Commissioner must specify a reasonable period within which the requirement is to be satisfied. (3) The Commissioner may extend the period specified under subsection (2) (whether before or after its expiry).