Western Australia act

Health and Disability Services (Complaints) Act 1995

In ForceWA

Jurisdiction

Western Australia

Collection

act

Plain English Summary

8/10 complexity

Mechanically, the Act creates the Health and Disability Services Complaints Office and gives its Director powers to receive, conciliate and investigate complaints about health and disability services in Western Australia, to compel documents and entry, require remedial action, and to impose or publish restrictions on health care workers. It covers users, carers, providers (registered and unregistered) and some public providers.

The Act’s stated purpose is an accessible, confidential complaints pathway; that purpose produces compliance and reporting obligations for providers, significant enforcement discretion for the Director, and sanctions (fines, prohibitions, public warnings) that change practitioner incentives.

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What it does

This Act creates and runs the Health and Disability Services Complaints Office (the Office) and confers on its Director a statutory complaints, conciliation and investigative regime for health and disability services in Western Australia. Mechanically, the Act:

Establishes the Office and the statutory office of Director (ss 6-9; Schedule 2) and sets out the Director’s functions (s 10) and administrative arrangements (ss 11-18; ss 13-17).
Confers a right to make complaints about health services and prescribes who may complain (users, recognised representatives, carers, providers in some circumstances and, for some matters, any person) (ss 19-23, 25).
Prescribes the scope of “health service” for complaints (broadly defined at s 3(1), including diagnosis, treatment, palliative care, voluntary assisted dying, prescribing, ambulances, ancillary services and prescribed services).
Sets statutory procedures, time limits and stages: preliminary assessment (28 days, s 34), notice to provider (14 days, s 35), provider response (28 days, s 36A), negotiated settlement (56 days default, s 36B), conciliation (Parts 3A Div 2, ss 36-43), investigation (ss 44, 44A, 48) and remedial action (decision and notice within 14 days, s 50; provider report within 45 days, s 51).
Gives the Director powers to obtain information, summon witnesses, inspect or retain documents and apply for warrants to enter premises (ss 59-66, 60(1)-(5), 63-65), subject to legal professional privilege, self‑incrimination and limits on disclosure of medical records (s 67).
Introduces enforcement tools and public safety measures added by later amendments: Director‑initiated investigations (s 44A), interim prohibition orders (up to 12 weeks, s 52B), prohibition orders (permanent or time‑limited, s 52H), publication of orders (s 52O) and public health warning statements about named health care workers where the Director reasonably believes a serious/imminent risk exists (ss 52R-52T). All such orders and statements are reviewable by the State Administrative Tribunal (ss 52P, 52U).

Current sections

Direct links to the current provisions in Health and Disability Services (Complaints) Act 1995.

Part 1

Preliminary

Part 1 — Preliminary

Short title 2
Commencement 2

3A. Act to be read with other legislation about health and disability complaints 2

Terms used 2
Guiding principles for the provision of health services 6
Crown bound 7

Part 2

Administrative arrangements

Part 2 — Administrative arrangements

Health and Disability Services Complaints Office 8
Director of Office 8
Tenure, salary etc. of Director 8
Judicial notice of Director’s appointment and signature 8
Director’s functions 9
Minister may give Director directions 10
Minister to have access to information 11
Financial provisions 12
Staff 13
Consultants 13
Use of other government staff etc. 13
Oath of office by Director and staff 13

17A. Identity cards 14

Delegation by Director 14

Part 3

Complaints generally

Part 3 — Complaints generally

Div 1

Right to complain conferred

Division 1 — Right to complain conferred

Who may complain 15
Representatives of users 15
Representative not to be paid 16
Provider may complain for user 16
Complaints to public providers, referral under administrative instructions 17
Time limit for complaints 17
What complaints can be about 18
Complaints that must be rejected 19

Div 2

Initial procedures

Division 2 — Initial procedures

How to complain 20
Referral of complaint where Act inapplicable 20
Withdrawal of complaint 21
User or carer must try to resolve matter 21
Complaints not dealt with by National Board under Health Practitioner Regulation National Law (Western Australia) 22

32A. Notice that complaint being dealt with by National Board 22

Referral to other bodies 22
Director’s duties if complaint referred under s. 32 23
Preliminary assessment by Director 23
Notice to provider and others 25

36A. Response by provider 26

36BA. Protection of provider’s statements 26

Part 3A

Settlement and conciliation of certain complaints

Part 3A — Settlement and conciliation of certain complaints

Division 1 — Negotiated settlement

36B. Resolving complaints by negotiation 28

36C. Protection of statements made 29

Division 2 — Conciliation

Assignment of conciliator 29
Notice of referral for conciliation 30
Role of conciliator 30
Representation in conciliation process 30
Reports by conciliator 31
Parties may resolve complaint 32
Protection of statements made 32
Director’s duties after conciliator’s recommendation 32

Part 3B

Investigations generally

Part 3B — Investigations generally

Notice of investigation by Director 34

44A. Director may conduct Director‑initiated investigation 34

Further power to investigate 34
Conciliator must not investigate 35
Purpose of investigation, and procedure 35

Part 3C

Remedial action

Part 3C — Remedial action

Remedial action where complaint justified 36
Provider must report on remedial action 37

52A. Report to Parliament if report not made under s. 51 or remedial action not taken 37

Part 3D

Interim prohibition orders, prohibition orders and interstate orders

Part 3D — Interim prohibition orders, prohibition orders and interstate orders

Division 1 — Interim prohibition orders

52B. Director may make interim prohibition order 39

52C. Notice of interim prohibition order 40

52D. When interim prohibition order takes effect 40

52E. Variation of interim prohibition order 40

52F. Revocation of interim prohibition order 41

52G. Offence for failure to comply with interim prohibition order 42

Division 2 — Prohibition orders

52H. Director may make prohibition order 42

52I. Show cause process for prohibition orders 43

52J. Notice of prohibition order 43

52K. When prohibition order takes effect 44

52L. Variation of prohibition order 44

52M. Revocation of prohibition order 44

52N. Offence for failure to comply with prohibition order 45

Div 3

Publication of information about orders

Division 3 — Publication of information about orders

52O. Publication of information about interim prohibition orders and prohibition orders 46

Div 4

Review by State Administrative Tribunal

Division 4 — Review by State Administrative Tribunal

52P. Review of decisions to make interim prohibition orders and prohibition orders 46

Div 5

Interstate orders

Division 5 — Interstate orders

52Q. Offence for failure to comply with interstate order 47

Part 3E

Public health warning statements relating to health care workers

Part 3E — Public health warning statements relating to health care workers

52R. Public health warning statements 48

52S. Revoking public health warning statements 49

52T. Correcting public health warning statements 50

52U. Review of decision to publish public health warning statement 50

Part 3F

Miscellaneous provisions relating to complaints, investigations and reports to Parliament

Part 3F — Miscellaneous provisions relating to complaints, investigations and reports to Parliament

Director to stop proceedings in some cases 51
Reports to, and at request of, Parliament 52
Action if a House not sitting 53
Saving 53

Part 4

Director’s powers to obtain information and entry to premises

Part 4 — Director’s powers to obtain information and entry to premises

Restriction on powers 54
Power to summons and related powers 54
False statements 55
Failure to comply with notice or direction given under s. 60 56
Application for warrant to enter premises etc. 56
Issue of warrant 57
Execution of warrant 58
Offences relating to warrants 59
Information etc. that may be withheld 60

Part 5

General

Part 5 — General

68A. Disclosure of information to other Commonwealth, State or Territory entities 61

68B. Disclosure to protect health or safety of users and other persons 62

Protection of Director etc. from personal liability 63
Protection of other persons 63
Confidentiality 64

71A. Criminal record checks 65

False statements 66
Person not to be threatened etc. because of complaining to Director 66
Application of Parliamentary Commissioner Act 1971 66
Prescribed provider must give certain information 66
Prosecutions 67
Regulations 67

77A. Codes of conduct 67

Transitional provision 68
Review of Act 68

79A. Review of amendments made by Health and Disability Services (Complaints) Amendment Act 2022 68

Transitional provisions 69

Sch 2

Tenure, salary, conditions of service, etc., of Director

Schedule 2 — Tenure, salary, conditions of service, etc., of Director

Tenure of office 70
Salary and entitlements 70
Superannuation 70
Appointment of public service officer 71
Removal from office 71
Other conditions of service 72

Notes

Compilation table 73

Uncommenced provisions table 76

Other notes 76

Defined terms

An Act to establish a readily accessible agency to which complaints may be made about the provision of health and disability services, to establish a means of having such complaints dealt with in confidence, and for related purposes.

[Long title inserted: No. 33 of 2010 s. 4.]

Part 1 — Preliminary

1. Short title

This Act may be cited as the Health and Disability Services (Complaints) Act 1995.

[Section 1 amended: No. 33 of 2010 s. 5.]

2. Commencement

(1) The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation.

(2) If any provision of this Act does not come into operation within the period of 18 months from the day on which this Act receives the Royal Assent, that provision comes into operation on the first day after the end of that period.

3A. Act to be read with other legislation about health and disability complaints

This Act is to be read with the following —

(a) the Disability Services Act 1993 Part 6;

(b) the Mental Health Act 2014 Part 19 Divisions 3 and 4.

[Section 3A inserted: No. 25 of 2014 s. 64.]

3. Terms used

(1) In this Act, unless the contrary intention appears —

carer means a person who is a carer as defined in section 4 of the Carers Recognition Act 2004 in relation to a user;

code of conduct means a code of conduct prescribed under section 77A;

conciliator means a person to whom the task of conciliation is assigned under section 36 and includes persons assigned to be joint conciliators;

Director means a person appointed as Director under section 7(1);

Director‑initiated investigation has the meaning given in section 44A;

excluded service means a health service that is provided without remuneration in a rescue or emergency situation;

health care worker means an individual who provides a health service (whether or not the individual is a registered provider);

Health Department has the meaning given to Department by section 3 of the Health Legislation Administration Act 1984;

health service means any service provided by way of —

(a) diagnosis or treatment of physical or mental disorder or injury, or suspected disorder or injury; and

(b) health care, including —

(i) palliative health care; and

(ii) voluntary assisted dying as defined in the Voluntary Assisted Dying Act 2019 section 5;

and

(ba) prescribing or dispensing a drug or medicinal preparation; and

(bb) prescribing or dispensing an aid for therapeutic use; and

(d) medical or epidemiological research,

and includes any —

(e) ambulance service; and

(ea) surgical or related service; and

(f) welfare service that is complementary to a health service; and

(g) service coming within paragraph (a), (b), (ba), (bb) or (c) that is provided by a person who advertises or holds himself or herself out as a person who provides any health care or treatment; and

(ga) service that —

(i) is ancillary to any other service to which this definition applies; and

(ii) affects or may affect persons who are receiving any other service to which this definition applies;

and

(h) prescribed service,

but does not include an excluded service;

industrial tribunal means —

(a) the Australian Industrial Relations Commission; or

(b) The Western Australian Industrial Relations Commission under the Industrial Relations Act 1979 and each constituent authority under that Act;

interim prohibition order has the meaning given in section 52B(2);

member of the staff means an officer or person referred to in section 14 or 15 and any person whose services are used under section 16;

Office means the Health and Disability Services Complaints Office continued by section 6(1);

Office’s website means a website maintained by or on behalf of the Office;

prohibition order has the meaning given in section 52H(2);

provide, in relation to a health service, includes the carrying out of medical or epidemiological research;

provider includes —

(a) an individual or a group of individuals or a body that renders or provides any health service;

(b) a person who manages or is the chief executive of —

(i) a body by which or an institution in which any health service is rendered or provided; or

(ii) a body or institution that provides a health service and that is prescribed or belongs to a class that is prescribed for the purposes of this paragraph;

(c) the chief executive officer of the Health Department in respect of any health services provided or rendered by persons carrying out the functions of the Health Department, but not including a health service provided or rendered in a public hospital as defined in the Health Services Act 2016 section 6;

(d) a body or a group of individuals that provides a health service and that is prescribed as a provider;

(e) an individual or group of individuals or a body that provides a health service and that is included in a class that is prescribed as providers;

public health warning statement means a statement published under section 52R(1) or (2);

public provider means a provider that represents the Crown, and includes any person acting on behalf of a representative of the Crown;

registered provider means a person licensed, registered or certificated by a registration board;

registration board means a National Health Practitioner Board established under the Health Practitioner Regulation National Law (Western Australia);

user means a person who —

(a) uses or receives a health service; or

(b) is the subject of medical or epidemiological research,

but a person is not within this definition merely because he or she has arranged a health service for a user.

[(2) deleted]

(3) The fact that the definition of provider in subsection (1) —

(a) in paragraph (b) refers to a person who manages or is the chief executive of a body or institution; and

(b) in paragraph (c) refers to the chief executive officer of the Health Department,

is not to be read as limiting the exercise of any power that the person or chief executive officer has to delegate the performance of his or her functions.

[Section 3 amended: No. 37 of 2004 s. 31; No. 28 of 2006 s. 257; No. 33 of 2010 s. 7; No. 11 of 2016 s. 292; No. 4 of 2018 s 112(2); No. 27 of 2019 s. 172; No. 35 of 2022 s. 4.]

4. Guiding principles for the provision of health services

(1) For the guidance of providers it is declared that health services should be provided so as to promote —

(a) quality health care, given as promptly as circumstances permit; and

(b) respect for the privacy and dignity of persons receiving health care; and

(c) the provision of adequate information on services provided or treatment available and the effects and costs of treatment, in terms that are understandable; and

(d) participation in decision‑making affecting individual health care; and

(e) informed choice in the acceptance or refusal of treatment or participation in education or research programmes; and

(f) reasonable access to information in records relating to personal use of the health care system, except information that is expressly prohibited by law from being disclosed or information contained in personal notes by a person giving health care; and

(g) the protection of personal health records and personal information from disclosure except for proper purposes.

(2) In deciding for the purposes of section 48(1) whether unreasonable conduct, or other conduct, has occurred, and in making decisions under sections 26 and 34, the Director is to have regard to —

(a) the guiding principles set out in subsection (1); and

(b) whether there has been a failure by a provider to comply with any professional standards commonly accepted by members of the provider’s profession.

(3) If it appears to the Director that a standard referred to in subsection (2)(b) is in conflict or inconsistent with a provision of the guiding principles the Director is to have regard to the standard to the exclusion of that provision.

(4) This section does not create any duty that may found an action for breach of statutory duty.

[Section 4 amended: No. 35 of 2022 s. 5.]

5. Crown bound

This Act binds the Crown.

Part 2 — Administrative arrangements

6. Health and Disability Services Complaints Office

(1) The body called the “Office of Health Review”, established previously under this Act, continues under the name “Health and Disability Services Complaints Office”.

(2) The Office consists of the Director and the members of the staff of the Office.

(3) The Office is an agent of the Crown.

[Section 6 amended: No. 33 of 2010 s. 8.]

7. Director of Office

(1) The Governor is to appoint a person to be the Director of the Office.

(2) The office of Director is not an office in the Public Service and is not to be included in the Senior Executive Service provided for by the Public Sector Management Act 1994.

8. Tenure, salary etc. of Director

Schedule 2 has effect with respect to the tenure, salary and conditions of service of the Director and the other matters provided for in that Schedule.

9. Judicial notice of Director’s appointment and signature

All courts and persons acting judicially are to take judicial notice —

(a) of the fact that a person holds or held the office of Director; and

(b) of the official signature of a person who holds or has held the office of Director.

10. Director’s functions

(1) The functions of the Director are as follows —

(a) to deal with complaints in accordance with this Act;

(aa) to conduct investigations under this Act;

(b) in collaboration with groups of providers or groups of users or both, to review and identify the causes of complaints, and to suggest ways of removing and minimizing those causes and bringing them to the notice of the public;

(d) to assist providers in developing and improving complaints procedures and the training of staff in handling complaints;

(e) with the approval of the Minister, to inquire into broader issues of health care arising out of complaints received;

(f) subject to subsection (4), to cause information about the work of the Office to be published from time to time;

(g) to provide advice generally on any matter relating to complaints under this Act, and in particular —

(i) advice to users on the making of complaints to registration boards; and

(ii) advice to users as to other avenues available for dealing with complaints; and

(iii) advice about removing or minimising the causes of complaints;

(h) any other function conferred on the Director by this Act or another written law.

(2) The Director may do all things that are necessary or convenient to be done for the performance of the Director’s functions.

(3) Without limiting subsection (2) the Director may with the approval of a registration board or the State Administrative Tribunal, as the case may be —

(a) appear at any proceedings before that board or the State Administrative Tribunal and call witnesses and otherwise adduce evidence and make submissions; and

(b) do any of those things through a representative.

(4) The function of the Director under subsection (1)(f) does not include the publication of information in a form that —

(a) discloses the identity of a user involved in a complaint; or

(b) might enable the identity of any such person to be ascertained,

but nothing in this subsection affects the operation of section 56.

(5) The Director is to perform any function conferred on or imposed on the Director under any other Act.

[Section 10 amended: No. 44 of 1999 s. 28(2); No. 55 of 2004 s. 493; No. 33 of 2010 s. 9; No. 35 of 2022 s. 6.]

11. Minister may give Director directions

(1) The Minister may give directions in writing to the Director with respect to the performance of the functions of the Director, either generally or in relation to a particular matter, and the Director is to give effect to any such direction.

(2) Without limiting section 45, the Minister cannot under subsection (1) direct the Director with respect to the performance of the Director’s functions in respect of —

(a) a particular person; or

(b) a particular complaint; or

(3) The text of any direction given under subsection (1) is to be —

(a) laid before each House of Parliament within 14 sitting days of that House after the direction is given; and

(b) included in the annual report submitted by the accountable authority in respect of the Office under Part 5 of the Financial Management Act 2006.

(4) In subsection (1) —

functions of the Director does not include the functions of the Director under the Disability Services Act 1993.

[Section 11 amended: No. 57 of 2004 s. 36; No. 77 of 2006 Sch. 1 cl. 82(1); No. 35 of 2010 s. 80.]

12. Minister to have access to information

(1) The Minister is entitled —

(a) to have information in the possession of the Director; and

(b) where the information is in or on a document, to have, and make and retain copies of, that document.

(2) For the purposes of subsection (1) the Minister may —

(a) request the Director to furnish information to the Minister; and

(b) request the Director to give the Minister access to information; and

(c) for the purposes of paragraph (b) make use of the staff of the Office to obtain the information and furnish it to the Minister.

(3) The Director is to comply with a request under subsection (2) and make staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4) The Minister is not entitled to have information under this section in a form that —

(a) discloses the identity of a person involved in a complaint; or

(b) might enable the identity of any such person to be ascertained,

unless that person has consented to the disclosure.

(5) In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Director.

13. Financial provisions

(1) An agency special purpose account called the Health and Disability Services Complaints Office Account is established under section 16 of the Financial Management Act 2006 to which —

(a) all funds of the Office are to be credited; and

(b) all expenditure incurred by the Office is to be charged.

(2) The Health and Disability Services Complaints Office Account is a continuation of the account formerly called the Office of Health Review Account.

(3) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Office and its operations.

[Section 13 amended: No. 28 of 2006 s. 258; No. 77 of 2006 Sch. 1 cl. 82(2) and (3); No. 33 of 2010 s. 10.]

14. Staff

Public Service officers are to be appointed or made available under Part 3 of the Public Sector Management Act 1994 to enable the Director to perform his or her functions.

15. Consultants

(1) The Director may, with the approval of the Minister, engage persons under contracts for services to provide such professional, technical or other assistance as the Director considers necessary for the carrying out of this Act.

(2) An approval of the Minister under subsection (1) may be specific or may be given in general terms.

16. Use of other government staff etc.

(1) The Director may by arrangement make use, either full‑time or part‑time, of —

(a) the services of staff employed in the Public Service or in a State agency or instrumentality or otherwise in the service of the Crown in right of the State; or

(b) any facilities of a department of the Public Service or of a State agency or instrumentality.

(2) An arrangement under subsection (1) is to be made between the Director and the relevant employing authority and on such terms as they agree.

17. Oath of office by Director and staff

(1) Before commencing to carry out his or her duties under this Act the Director and each member of the staff of the Office are to take an oath or make an affirmation that he or she —

(a) will faithfully and impartially perform those duties; and

(b) will not, except in accordance with this Act, divulge any information received under this Act.

(2) The Director’s oath or affirmation is to be taken by a Judge and that of a member of the staff is to be taken by the Director.

17A. Identity cards

(1) The Director may give an identity card to a member of the staff of the Office.

(2) An identity card must —

(a) identify the person as a member of the staff of the Office; and

(b) contain a recent photograph of the person.

(3) A person must, within 14 days after ceasing to be a member of the staff of the Office, return the person’s identity card to the Director.

(4) Subsection (3) does not apply if the person has a reasonable excuse.

[Section 17A inserted: No. 35 of 2022 s. 7.]

18. Delegation by Director

(1) The Director may by instrument in writing delegate to a member of the staff of the Office the performance of any of the functions of the Director under this Act, but not including the power to delegate under this section.

(2) A delegation may be general or as otherwise provided by the instrument of delegation.

(3) A delegate remains subject to the direction and control of the Director.

(4) Performance of a function by a delegate is to be treated as performance by the Director.

Part 3 — Complaints generally

[Heading amended: No. 35 of 2022 s. 8.]

Division 1 — Right to complain conferred

19. Who may complain

(1) A complaint alleging one or more of the matters set out in section 25(1)(a), (b), (c), (d), (e), (f), (g) or (h) may be made to the Director by —

(a) a user; or

(b) a user’s representative recognized under section 20; or

(2) A complaint alleging a matter referred to in section 25(1)(h) may be made to the Director by a carer.

(3) A complaint alleging 1 or more of the matters set out in section 25(1)(i), (j) or (k) may be made to the Director by any person.

[Section 19 amended: No. 37 of 2004 s. 32; No. 35 of 2022 s. 9.]

20. Representatives of users

(1) The Director may recognize as a user’s representative a person whom the user has chosen to complain on the user’s behalf.

(2) The Director may recognize as a user’s representative a person who is not chosen by the user, and may allow that person to complain to the Director on the user’s behalf, if —

(a) the user —

(i) has died; or

(ii) in the Director’s opinion, is unable to complain to the Director and unable to choose a person to complain on the user’s behalf;

and

(b) the person who wishes to represent the user has, in the Director’s opinion, a sufficient interest in the subject matter of the complaint.

(3) The Director is not to recognize a person as a representative unless the person satisfies the Director that he or she —

(a) is acting without remuneration; and

(b) except in the case of a relative of the user, has no financial interest in the outcome of the complaint.

(4) In subsection (3) —

relative, in relation to a user, includes a de facto partner of the user.

[Section 20 amended: No. 28 of 2003 s. 79; No. 33 of 2010 s. 11.]

21. Representative not to be paid

A person must not demand or receive any remuneration for acting as a representative of a user for the purposes of this Part.

Penalty: $1 000 for a first offence;

$10 000 for any subsequent offence.

22. Provider may complain for user

A provider may complain to the Director on behalf of a user about a health service provided for the user by another provider if the provider satisfies the Director that the user has died or, because of the user’s state of health or general situation, it would be difficult or impossible for the user to make a complaint.

[Section 22 amended: No. 33 of 2010 s. 12.]

23. Complaints to public providers, referral under administrative instructions

(1) If —

(a) a complaint has been made to a public provider alleging one or more matters set out in section 25(1)(a), (b), (c), (d), (e), (f), (g) or (h); and

(b) there are administrative instructions in force under subsection (4) about the resolution of such complaints; and

the complaint is to be referred to the Director in accordance with those administrative instructions.

(2) A complaint by a person that is referred under subsection (1) is to be treated by the Director as if it were a complaint made by that person under section 19.

(3) The referral does not require the consent of the person who made the complaint.

(4) The Minister may issue administrative instructions for the purposes of this section by publishing the same in the Government Gazette, and may in the same way revoke or amend any instructions in force.

(5) The administrative instructions are not subsidiary legislation for the purposes of the Interpretation Act 1984.

[Section 23 amended: No. 35 of 2022 s. 10.]

24. Time limit for complaints

The Director must reject a complaint about an incident which occurred more than 24 months before the complaint is made unless in the Director’s opinion the person who made the complaint has shown good reason for the delay.

[Section 24 amended: No. 33 of 2010 s. 13.]

25. What complaints can be about

(1) A complaint must allege that one or more of the following has occurred —

(a) a provider has acted unreasonably by not providing a health service for the user;

(b) a provider has acted unreasonably in the manner of providing a health service for the user, whether the service was requested by the user or a third party;

(d) a provider has acted unreasonably by denying or restricting the user’s access to records kept by the provider and relating to the user;

(e) a provider has acted unreasonably in disclosing or using the user’s health records or confidential information about the user;

(f) a manager has acted unreasonably in respect of a complaint made to an institution by a user about a provider’s action which is of a kind mentioned in paragraphs (a) to (e) by —

(i) not properly investigating the complaint or causing it to be properly investigated; or

(ii) not taking, or causing to be taken, proper action on the complaint;

(g) a provider has —

(i) acted unreasonably by charging the user an excessive fee; or

(ii) otherwise acted unreasonably with respect to a fee;

(h) a provider that is an applicable organisation as defined in section 4 of the Carers Recognition Act 2004 has failed to comply with the Carers Charter as defined in that section;

(i) a health care worker has failed to comply with a code of conduct that applies to the health care worker;

(j) a health care worker has failed to comply with an interim prohibition order;

(k) a health care worker has failed to comply with a prohibition order.

(2) In subsection (1)(f) —

manager means a person who comes within paragraph (b) of the definition of provider in section 3(1) or the chief executive officer of the Health Department as mentioned in paragraph (c) of that definition.

[Section 25 amended: No. 37 of 2004 s. 33; No. 28 of 2006 s. 259; No. 33 of 2010 s. 14; No. 35 of 2022 s. 11.]

26. Complaints that must be rejected

(1) The Director must reject a complaint that in the Director’s opinion —

(a) is vexatious, trivial or without substance; or

(b) does not warrant any further action; or

(2) If an issue raised in a complaint has already been determined by a court, the State Administrative Tribunal, an industrial tribunal or a registration board, the Director must reject the complaint to the extent to which it relates to that issue unless in the Director’s opinion it relates to matters that were not determined by the court, tribunal or board.

(3) Nothing in this section affects the operation of section 28.

[Section 26 amended: No. 55 of 2004 s. 494.]

Division 2 — Initial procedures

27. How to complain

(1) A person may complain to the Director orally, including by telephone, or in writing.

(2) If the Director receives an oral complaint the Director must require the person who made it to confirm it in writing.

(3) A person who complains to the Director must give to the Director —

(a) his or her name; and

(b) such other information relating to the person’s identity as the Director may require.

(4) The Director may choose to keep information given to the Director under subsection (3) confidential if there are special circumstances and the Director thinks it is in the complainant’s interest to do so.

(5) The Director may require a person who complains to give more information about the complaint within a time fixed by the Director.

(6) If a person does not comply with a requirement of the Director under subsection (2), (3) or (5), the Director may reject the complaint.

28. Referral of complaint where Act inapplicable

If a complaint relates to an excluded service the Director may, with the written consent of the person who made the complaint, refer the complaint to an appropriate person or body (if any).

29. Withdrawal of complaint

(1) A person who complains to the Director may at any time withdraw the complaint by notifying the Director, and the Director must then —

(a) stop dealing with the complaint; and

(b) if notice has been given under section 35(1), notify the provider or other person of the withdrawal.

(2) Despite subsection (1)(a), the Director may decide to proceed to deal with the complaint under this Act if the complaint alleges 1 or more of the matters set out in section 25(1)(i), (j) or (k).

(3) If the Director decides under subsection (2) to proceed to deal with the complaint, the Director is not required to —

(a) give notice of the withdrawal under subsection (1)(b); or

(b) provide to the person who complained any further information under another provision of this Act that would otherwise require the provision of information to the person.

[Section 29 amended: No. 35 of 2022 s. 12.]

30. User or carer must try to resolve matter

The Director may reject a complaint if the Director is not satisfied that —

(a) the user or carer, as the case may be, has taken reasonable steps to resolve the matter with the provider; or

(b) in the case of a user, if the complaint was made on the user’s behalf, all reasonable steps to resolve the matter have been taken on the user’s behalf.

[Section 30 amended: No. 37 of 2004 s. 34; No. 33 of 2010 s. 15.]

31. Complaints not dealt with by National Board under Health Practitioner Regulation National Law (Western Australia)

If a complaint, or an element of a complaint, relates to a registered provider and the complaint, or the element of the complaint, is not to be dealt with under the Health Practitioner Regulation National Law (Western Australia) section 150 by the National Board established for the provider’s health profession, the Director may deal with the complaint, or the element of the complaint, under this Act.

[Section 31 inserted: No. 35 of 2010 s. 81; amended: No. 35 of 2022 s. 13.]

32A. Notice that complaint being dealt with by National Board

If a complaint, or an element of a complaint, is being dealt with by a National Board under the Health Practitioner Regulation National Law (Western Australia) section 150, the Director must within 28 days of the Board beginning to so deal with it notify the user or the person who complained to the Director that the Board is dealing with it.

[Section 32A inserted: No. 35 of 2010 s. 81; amended: No. 35 of 2022 s. 14.]

32. Referral to other bodies

(1) If a complaint raises issues that in the opinion of the Director require investigation by another person or body, other than a registration board, the Director may refer the complaint to that person or body.

(2) A referral under subsection (1) may only be made with the consent of the person who made the complaint.

33. Director’s duties if complaint referred under s. 32

If the Director has referred a complaint to a person or body under section 32, the Director must —

(a) within 28 days notify the user or the person who complained to the Director and the provider of the referral; and

(b) give to the user or the person who complained to the Director and the provider a copy of each written communication that the Director gives to the person or body concerning the complaint, on the day on which that communication is given.

[Section 33 amended: No. 35 of 2010 s. 82; No. 35 of 2022 s. 15.]

34. Preliminary assessment by Director

(1) Within 28 days after receiving a complaint, or an element of a complaint, that is not to be dealt with by the National Board established for a registered provider’s health profession, the Director must decide whether, and to what extent —

(a) to accept it; or

(b) to reject it under section 24, 26 or 30; or

but the Director may extend the 28 day period for a further period not exceeding 28 days if it is for the benefit of the person who made the complaint to do so.

(2) To enable the Director to make a decision under subsection (1) the Director may make such inquiries as the Director considers appropriate.

(3) If there is a delay in obtaining information requested by the Director, he or she may extend the period within which a decision must be made under subsection (1).

(4) If the Director decides to accept a complaint alleging 1 or more of the matters set out in section 25(1)(a), (b), (c), (d), (e), (f), (g) or (h) in whole or in part, the Director must then —

(a) attempt to settle it in accordance with Part 3A Division 1; or

(b) refer it for conciliation under Part 3A Division 2 if the Director is of the opinion it is suitable to be dealt with under that Division; or

(i) it is not suitable to be dealt with under either Part 3A Division 1 or 2; and

(ii) an investigation is warranted, taking into account the likely costs and benefits of the investigation.

(5) If the Director decides to accept a complaint alleging a matter referred to in section 25(1)(i) in whole or in part, the Director must then —

(a) attempt to settle it in accordance with Part 3A Division 1; or

(b) refer it for conciliation under Part 3A Division 2; or

(5A) If the Director decides to accept a complaint alleging a matter referred to in section 25(1)(j) or (k) in whole or in part, the Director must then investigate it.

(6) If the Director decides —

(a) to reject a complaint; or

(b) that a complaint is not suitable to be dealt with under either Part 3A Division 1 or 2 and does not warrant investigating,

the Director must, in writing, advise the person who made the complaint of the decision and that the Director will take no further action on the complaint.

(7) While performing functions under this section in relation to a complaint, the Director must not try to settle the complaint.

[Section 34 amended: No. 35 of 2010 s. 83(1) and (4); No. 33 of 2010 s. 16 (as amended: No. 35 of 2010 s. 83(3)); No. 35 of 2022 s. 16.]

35. Notice to provider and others

(1) Subject to this section, within 14 days after deciding to accept a complaint the Director —

(a) must give written notice of the decision to the provider; and

(ba) may give the provider a written notice requiring the provider to give the Director a written response to the complaint in accordance with section 36A; and

[(b) deleted]

(2) If the Director considers that on account of particular circumstances the disclosure of the complainant’s identity in a notice under paragraph (a) of subsection (1) —

(a) may result in the health or safety of the user being put at risk; or

(b) would prejudice the proper investigation of the complaint,

the Director in giving the notice under that paragraph is not to disclose the identity of the complainant.

(3) Where the Director has acted under subsection (2), the Director must give notice to the provider of the identity of the complainant if the Director later becomes satisfied that the circumstances described in that subsection no longer apply.

(4) Subject to subsection (2), a notice given under this section must include a copy or the details of the complaint concerned.

[Section 35 amended: No. 33 of 2010 s. 17(1)(b) and (2) (as amended: No. 35 of 2010 s. 84(2)); No. 35 of 2010 s. 84.]

36A. Response by provider

(1) A provider who is given a notice under section 35(1)(a) may give the Director a written response to the complaint concerned.

(2) A provider who is given a notice under section 35(1)(ba) must give the Director a written response to the complaint concerned.

(3) Any response given under subsection (1) or (2) must be given to the Director within 28 days, or any longer period allowed under subsection (4), after the date on which the provider receives a notice given under section 35(1)(a) or (ba), as the case requires.

(4) The Director may extend that 28 day period for good reason.

(5) If a provider does not comply with subsection (2), the Director may nevertheless deal with the complaint under this Act.

(6) A provider who does not comply with subsection (2) does not commit an offence.

(7) The Director must include in the Office’s annual report required by the Financial Management Act 2006 Part 5 the details of any breach of subsection (2) that, in the Director’s opinion, was committed without a reasonable excuse.

[Section 36A inserted: No. 33 of 2010 s. 18; amended: No. 35 of 2022 s. 17.]

36BA. Protection of provider’s statements

(1) Evidence of anything said in a response given by a provider under section 36A is not admissible in proceedings before a court or tribunal.

(2) Despite the Parliamentary Commissioner Act 1971 section 20(3), evidence referred to in subsection (1) may be disclosed to the Parliamentary Commissioner for Administrative Investigations for the purposes of an investigation under that Act.

[Section 36BA inserted: No. 33 of 2010 s. 18.]

Part 3A — Settlement and conciliation of certain complaints

[Heading inserted: No. 35 of 2022 s. 18.]

Division 1 — Negotiated settlement

[Heading inserted: No. 35 of 2022 s. 19.]

36B. Resolving complaints by negotiation

(1A) This section does not apply to a complaint alleging a matter referred to in section 25(1)(j) or (k).

(1) Having accepted a complaint and complied with section 35, the Director may, by negotiating with the person who made the complaint and the provider, attempt to bring about a settlement of the complaint that is acceptable to the parties to it.

(2) For the purposes of subsection (1) the Director may make any inquiries the Director considers appropriate.

(3) If within 56 days, or any longer period allowed under subsection (4), after the date of complying with section 35 the complaint has not been settled under subsection (1), the Director must —

(a) refer it for conciliation under Division 2 if the Director is of the opinion it is suitable to be dealt with under that Division; or

(b) investigate it if the Director is of the opinion that —

(i) it is not suitable to be dealt with under Division 2; and

(ii) an investigation is warranted, taking into account the likely costs and benefits of the investigation.

(4) The Director may extend that 56 day period if it is for the benefit of the person who made the complaint to do so.

(5) If the Director decides a complaint is not suitable to be dealt with under Division 2 and does not warrant investigating, the Director must, in writing, advise the person who made the complaint of the decision and that the Director will take no further action on the complaint.

[Section 36B inserted: No. 33 of 2010 s. 19; amended: No. 35 of 2022 s. 20.]

36C. Protection of statements made

(1) Evidence of anything said or admitted during any negotiation conducted under section 36B(1) is not admissible in proceedings before a court or tribunal.

[Section 36C inserted: No. 33 of 2010 s. 19.]

Division 2 — Conciliation

[Heading inserted: No. 35 of 2022 s. 21.]

36. Assignment of conciliator

(1) On referring a complaint for conciliation the Director must assign the task of conciliating the complaint to a member of the staff whose duties consist of or include the conciliation of complaints.

(2) The Director may under subsection (1) assign 2 or more persons to be joint conciliators.

(3) If a conciliator becomes for any reason unavailable to carry out or complete his or her functions in any particular case, the Director must assign another conciliator to that case.

37. Notice of referral for conciliation

(1) Within 14 days after the Director refers a complaint for conciliation the conciliator must give written notice of that decision to the provider and the person who made the complaint.

(2) The notice must include —

(a) details of the arrangements made for conciliation discussions between the provider and that person; and

(b) a statement that the provider may make submissions to the conciliator.

[Section 37 amended: No. 74 of 2003 s. 65.]

38. Role of conciliator

A conciliator’s function is to encourage the settlement of the complaint by —

(a) arranging for the provider and the person who made the complaint to hold informal discussions about the complaint; and

(b) helping in the conduct of those discussions; and

39. Representation in conciliation process

(1) Neither a person who has complained to the Director nor a provider may be represented by another person during the conciliation process unless the Director otherwise determines on the ground that the process will not work effectively without that representation.

(2) A determination under subsection (1) does not prevent the personal attendance of any other person who may, in the opinion of the conciliator, help in the conciliation.

40. Reports by conciliator

(1) The conciliator —

(a) may make reports to the Director on the progress of the conciliation process; and

(b) must make a final report on the result of that process.

(2) A report made under subsection (1)(b) —

(a) must include details of any agreement reached; and

(b) if no agreement has been reached, may —

(i) recommend that the Director should investigate the matter; or

(ii) make no recommendation; or

(iii) recommend that the Director should not investigate the matter,

and may not make any recommendation except one referred to in this paragraph.

(3) The conciliator must give a copy of a report under subsection (1)(b) —

(a) to the provider and the user or the person who made the complaint concerned; and

(b) if the provider is a registered provider, to the provider’s registration board.

(4) A copy must be given —

(a) under subsection (3)(a), on the same day as the conciliator makes the report to the Director; and

(b) under subsection (3)(b), within 30 days after that day.

[Section 40 amended: No. 35 of 2022 s. 22.]

41. Parties may resolve complaint

(1) Nothing in this Act prevents the person who has made a complaint and the provider resolving the matter by agreement at any time, whether or not with the help of the Office.

(2) If such a resolution occurs the person who made the complaint must without delay give notice of the fact to the Director.

(3) When the Director or a conciliator becomes aware that a complaint has been resolved he or she must stop dealing with the complaint under this Act.

[Section 41 amended: No. 33 of 2010 s. 20.]

42. Protection of statements made

(1) Evidence of anything said or admitted during the conciliation process —

(a) is not admissible in proceedings before a court or tribunal; and

(b) cannot be used by the Director as a ground for exercising a power of investigation.

(2) Despite section 20(3) of the Parliamentary Commissioner Act 1971, the contents of a report by a conciliator under section 40 may be disclosed to the Parliamentary Commissioner for Administrative Investigations for the purposes of an investigation under that Act.

[Division heading deleted: No. 35 of 2022 s. 23.]

43. Director’s duties after conciliator’s recommendation

(1) If a conciliator recommends that the Director should not investigate a complaint, the Director must not —

(a) investigate the complaint; or

(b) refer it again for conciliation; or

unless asked to do so by the person who made the complaint.

(2) If a conciliator makes no recommendation about a complaint or recommends that the Director should investigate the matter the Director may —

(a) investigate the complaint; or

(b) refer it again for conciliation; or

[Section 43 amended: No. 35 of 2010 s. 85.]

Part 3B — Investigations generally

[Heading inserted: No. 35 of 2022 s. 24.]

44. Notice of investigation by Director

[(1) deleted]

(2) Within 14 days after commencing an investigation the Director must give to the provider written notice of the investigation, including, if it is of a complaint, details of the complaint.

[Section 44 amended: No. 33 of 2010 s. 21; No. 35 of 2010 s. 86.]

44A. Director may conduct Director‑initiated investigation

The Director may, on the Director’s own initiative, conduct an investigation (a Director‑initiated investigation) into whether or not —

(a) a health care worker has failed to comply with a code of conduct that applies to the health care worker; or

(b) an offence under section 52G, 52N or 52Q(2) has been committed.

[Section 44A inserted: No. 35 of 2022 s. 25.]

45. Further power to investigate

Where the Minister is of the opinion that —

(a) the health or welfare of any person is or may be at risk and circumstances exist in relation to that person that would justify a complaint being made under this Act; or

(b) it is in the public interest on a matter of general importance relating to health that an investigation be carried out,

the Minister may direct the Director to conduct an investigation under this Part with such terms of reference as the Minister may specify.

[46. Deleted: No. 35 of 2010 s. 87.]

47. Conciliator must not investigate

A person who has under section 36 been assigned the task of conciliating a complaint must not investigate that complaint.

48. Purpose of investigation, and procedure

(1) The purpose of an investigation of a complaint or under section 45(a) is to enable the Director to decide whether any unreasonable conduct, or other conduct, described in section 25 has occurred.

(2) In conducting an investigation of a complaint, a Director‑initiated investigation or an investigation under section 45 the Director —

(a) must proceed with as little formality and technicality and as speedily as the requirements of this Act and proper investigation of the matter permit; and

(b) is not bound by the rules of evidence but may inform himself or herself of any matter in such manner as he or she considers appropriate; and

[Section 48 amended: No. 33 of 2010 s. 22; No. 35 of 2022 s. 26.]

Part 3C — Remedial action

[Heading inserted: No. 35 of 2022 s. 27.]

[49. Deleted: No. 35 of 2010 s. 88.]

50. Remedial action where complaint justified

(1) If after investigation the Director decides that unreasonable conduct described in section 25 has occurred the Director must decide what action should be taken to remedy the matter.

(2A) Before making a decision under subsection (1), the Director must —

(a) consult the provider; and

(b) if any action that the Director considers ought to be taken to remedy the matter is likely to have an impact on other providers, consult a group of those providers.

(2) Within 14 days after making a decision under subsection (1), the Director must give written notice of the decision to the user and the provider, which must include —

(a) the reasons for the decision; and

(b) where the decision is that unreasonable conduct described in section 25 has occurred, any action that the Director considers ought to be taken to remedy the matter.

(3) Where the provider is a registered provider the Director must give a copy of a notice under subsection (2) to the provider’s registration board.

(4) If asked by the Minister, the Director must give a copy of a notice under subsection (2) to the Minister.

[Section 50 amended: No. 33 of 2010 s. 23.]

51. Provider must report on remedial action

(1) Within 45 days after a provider receives notice under section 50(2), or before the end of any extension of time granted by the Director, the provider must report in writing to the Director what action the provider has taken to remedy the matter.

(2) Within the 45 day period mentioned in subsection (1), a provider may ask the Director to extend the time within which the provider must report to the Director.

(3) If asked under subsection (2), the Director may extend the time within which the provider must report by no more than 15 days.

52A. Report to Parliament if report not made under s. 51 or remedial action not taken

(1) If a notice given under section 50 includes any action that the Director considers ought to be taken by the provider to remedy the matter and the provider does not report in accordance with section 51, the Director must give the Minister a copy of the notice and a written report about the refusal or failure by the provider to so report.

(2) If a notice given under section 50 includes any action that the Director considers ought to be taken by the provider to remedy the matter and the provider does not take the action within such time as in the Director’s opinion is reasonable, the Director must give the Minister a copy of the notice and a written report about the refusal or failure by the provider to take the action.

(3) After receiving the notice and a report under subsection (1) or (2) the Minister may lay both before each House of Parliament.

(4) The Director is not to include the complainant’s name in the material given to the Minister under subsection (1) or (2) unless authorised to do so by the complainant.

[Section 52A inserted: No. 33 of 2010 s. 24.]

Part 3D — Interim prohibition orders, prohibition orders and interstate orders

Division 1 — Interim prohibition orders

52B. Director may make interim prohibition order

(1) This section applies if the Director is, in an investigation under this Act, investigating whether or not a health care worker has failed to comply with a code of conduct applying to the health care worker.

(2) The Director may make an order (an interim prohibition order) in relation to the health care worker —

(a) prohibiting the health care worker from providing any health service, or a health service specified in the order, for a period, of not more than 12 weeks, specified in the order; or

(b) imposing any conditions the Director considers appropriate on the provision of any health service, or a health service specified in the order, by the health care worker for a period, of not more than 12 weeks, specified in the order.

(3) The Director must not make an interim prohibition order in relation to a health care worker unless —

(i) the Director reasonably believes that the health care worker has failed to comply with a code of conduct applying to the health care worker; or

and

(b) the Director is satisfied that it is necessary to make the interim prohibition order to avoid a serious risk to —

(4) The Director may, on the expiration of the period specified in the interim prohibition order under subsection (2)(a) or (b), make another interim prohibition order in relation to the health care worker.

[Section 52B inserted: No. 35 of 2022 s. 28.]

52C. Notice of interim prohibition order

(1) As soon as possible after making an interim prohibition order in relation to a person, the Director must give written notice of the interim prohibition order to the person.

(2) The notice must contain a statement that the person may apply under section 52P for a review of the decision to make the interim prohibition order.

[Section 52C inserted: No. 35 of 2022 s. 28.]

52D. When interim prohibition order takes effect

An interim prohibition order takes effect on the day on which notice of the interim prohibition order is given to the person to whom it relates.

[Section 52D inserted: No. 35 of 2022 s. 28.]

52E. Variation of interim prohibition order

(1) The Director must, by order, vary an interim prohibition order if the Director is satisfied that the restrictions contained in the interim prohibition order should be reduced.

(2) The order must specify the following —

(a) the name of the person to whom it relates;

(b) when the variation of the interim prohibition order takes effect under subsection (4);

(3) As soon as possible after making the order, the Director must give written notice of the order to the person to whom it relates.

[Section 52E inserted: No. 35 of 2022 s. 28.]

52F. Revocation of interim prohibition order

(1) The Director must, by order, revoke an interim prohibition order if the Director is satisfied that the interim prohibition order is no longer required to avoid a serious risk to —

(a) the life, health, safety or welfare of a person; or

(b) the health, safety or welfare of the public.

(2) The order must —

(a) specify the name of the person to whom it relates; and

(b) specify the day on which it was made; and

(d) include a statement that the Director is satisfied that the interim prohibition order is no longer required to avoid a serious risk to —

(ii) the health, safety or welfare of the public;

and

(e) include a statement of the reason why the interim prohibition order is revoked.

(3) As soon as possible after making the order, the Director must give written notice of the order to the person to whom it relates.

[Section 52F inserted: No. 35 of 2022 s. 28.]

52G. Offence for failure to comply with interim prohibition order

A person who fails to comply with an interim prohibition order commits an offence.

Penalty: a fine of $30 000.

[Section 52G inserted: No. 35 of 2022 s. 28.]

Division 2 — Prohibition orders

52H. Director may make prohibition order

(1) This section applies if the Director has conducted an investigation under this Act into a possible contravention by a health care worker of a code of conduct applying to the health care worker.

(2) The Director may make an order (a prohibition order) in relation to the health care worker —

(a) prohibiting the health care worker from providing any health service, or a health service specified in the order, permanently or for the period specified in the order; or

(b) imposing any conditions the Director considers appropriate on the provision of any health service, or a health service specified in the order, by the health care worker permanently or for the period specified in the order.

(3) The Director must not make a prohibition order in relation to a health care worker unless —

(i) the Director is satisfied that the health care worker has failed to comply with a code of conduct applying to the health care worker; or

and

(b) the Director is satisfied that it is necessary to make the prohibition order to avoid a serious risk to —

[Section 52H inserted: No. 35 of 2022 s. 28.]

52I. Show cause process for prohibition orders

(1) If the Director proposes to make a prohibition order in relation to a person, the Director must give the person written notice of the proposed prohibition order.

(2) The notice must invite the person to whom it is given to make a written or oral submission to the Director about the proposed prohibition order within a reasonable period specified in the notice.

(3) The Director must have regard to any submission made in accordance with the notice in deciding whether to make the proposed prohibition order.

[Section 52I inserted: No. 35 of 2022 s. 28.]

52J. Notice of prohibition order

(1) As soon as possible after making a prohibition order in relation to a person, the Director must give written notice of the prohibition order to the person.

(2) The notice must contain a statement that the person may apply under section 52P for a review of the decision to make the prohibition order.

[Section 52J inserted: No. 35 of 2022 s. 28.]

52K. When prohibition order takes effect

A prohibition order takes effect on the day on which notice of the prohibition order is given to the person to whom it relates.

[Section 52K inserted: No. 35 of 2022 s. 28.]

52L. Variation of prohibition order

(1) The Director must, by order, vary a prohibition order if the Director is satisfied that the restrictions contained in the prohibition order should be reduced.

(2) The order must specify the following —

(a) the name of the person to whom it relates;

(b) when the variation of the prohibition order takes effect under subsection (4);

(3) As soon as possible after making the order, the Director must give written notice of the order to the person to whom it relates.

[Section 52L inserted: No. 35 of 2022 s. 28.]

52M. Revocation of prohibition order

(1) The Director must, by order, revoke a prohibition order if the Director is satisfied that the prohibition order is no longer required to avoid a serious risk to —

(a) the life, health, safety or welfare of a person; or

(b) the health, safety or welfare of the public.

(2) The order must —

(a) specify the name of the person to whom it relates; and

(b) specify the day on which it was made; and

(d) include a statement that the Director is satisfied that the prohibition order is no longer required to avoid a serious risk to —

(ii) the health, safety or welfare of the public;

and

(e) include a statement of the reason why the prohibition order is revoked.

(3) As soon as possible after making the order, the Director must give written notice of the order to the person to whom it relates.

[Section 52M inserted: No. 35 of 2022 s. 28.]

52N. Offence for failure to comply with prohibition order

A person who fails to comply with a prohibition order commits an offence.

Penalty: a fine of $30 000.

[Section 52N inserted: No. 35 of 2022 s. 28.]

Division 3 — Publication of information about orders

52O. Publication of information about interim prohibition orders and prohibition orders

(1) As soon practicable after making an interim prohibition order or prohibition order, the Director must publish on the Office’s website the following information about the order —

(a) the name of the person to whom the order relates;

(b) the details of the order mentioned in section 52B(2)(a) or (b) or 52H(2)(a) or (b), as is relevant, that apply to the person;

(d) if the order expires on a day specified in the order — the day on which the order expires.

(2) As soon as practicable after making an order under section 52E(1), 52F(1), 52L(1) or 52M(1), the Director must publish the order on the Office’s website.

[Section 52O inserted: No. 35 of 2022 s. 28.]

Division 4 — Review by State Administrative Tribunal

52P. Review of decisions to make interim prohibition orders and prohibition orders

If the Director makes an interim prohibition order or prohibition order in relation to a person, the person may apply to the State Administrative Tribunal for a review of the Director’s decision to make the order.

[Section 52P inserted: No. 35 of 2022 s. 28.]

Division 5 — Interstate orders

52Q. Offence for failure to comply with interstate order

corresponding law means a law of another State, a Territory or the Commonwealth that contains provisions that substantially correspond with the provisions of this Act;

interstate interim prohibition order means an order that is made under a corresponding law and prescribed to be an interstate interim prohibition order;

interstate order means an interstate interim prohibition order or interstate prohibition order;

interstate prohibition order means an order that is made under a corresponding law and prescribed to be an interstate prohibition order.

(2) A person commits an offence if —

(a) an interstate order is in force in relation to the person; and

(b) the person engages in conduct in this State that would constitute a failure to comply with the interstate order if it occurred in the jurisdiction in which the interstate order is in force.

Penalty for this subsection:

(a) for an individual, a fine of $30 000;

(b) for a body corporate, a fine of $60 000.

[Section 52Q inserted: No. 35 of 2022 s. 28.]

Part 3E — Public health warning statements relating to health care workers

52R. Public health warning statements

(1) The Director may publish a statement setting out the name of a health care worker if the Director has commenced an investigation under this Act in relation to a health care worker and the Director reasonably believes that —

(a) the health care worker has failed to comply with a code of conduct that applies to the health care worker; and

(b) it is necessary to publish the statement to avoid an imminent and serious risk to —

(2) The Director may publish a statement setting out the name of a health care worker if —

(i) after completing an investigation under this Act, the Director is satisfied that the health care worker has failed to comply with a code of conduct applying to the health care worker; or

and

(b) the Director reasonably believes that it is necessary to publish the statement to avoid a serious risk to —

(3) The Director may set out in a public health warning statement any other details that are reasonably relevant to advise the public of the serious risk identified by the Director.

(4) A public health warning statement —

[Section 52R inserted: No. 35 of 2022 s. 28.]

52S. Revoking public health warning statements

(1) The Director may revoke a public health warning statement by publishing a statement that —

(a) advises the public that the serious risk no longer exists; and

(b) sets out the reason for the revocation of the statement.

(2) The Director must revoke a public health warning statement published under section 52R(1) if, on the completion of the investigation concerned, the Director is satisfied that the health care worker did not contravene a code of conduct applying to the health care worker.

(3) Revocation of a public health warning statement under subsection (2) must be by publication of a statement setting out the reason for the revocation of the statement.

(4) A statement under subsection (1) or (3) —

[Section 52S inserted: No. 35 of 2022 s. 28.]

52T. Correcting public health warning statements

(1) If the Director forms the opinion that a public health warning statement is incorrect, the Director must publish a correction statement setting out the reason for the correction.

(2) A statement under subsection (1) —

[Section 52T inserted: No. 35 of 2022 s. 28.]

52U. Review of decision to publish public health warning statement

If the Director publishes a public health warning statement setting out the name of a person, the person may apply to the State Administrative Tribunal for a review of the Director’s decision to publish the public health warning statement.

[Section 52U inserted: No. 35 of 2022 s. 28.]

[Division heading deleted: No. 35 of 2022 s. 29.]

Part 3F — Miscellaneous provisions relating to complaints, investigations and reports to Parliament

[Heading inserted: No. 35 of 2022 s. 30.]

52. Director to stop proceedings in some cases

(1A) This section does not apply to a complaint alleging 1 or more of the matters set out in section 25(1)(i), (j) or (k).

(1) The Director must stop dealing with an issue that arises out of a complaint if the Director —

(a) becomes aware that the provider or user has begun legal proceedings which relate to that issue; or

(aa) becomes aware that the issue has been determined by a registration board; or

(b) becomes aware that proceedings relating to that specific issue have been initiated before the State Administrative Tribunal or an industrial tribunal; or

and must, within 14 days, give written notice of the fact that he or she has stopped to the user and the provider and, where the provider is a registered provider, to the provider’s registration board and the State Administrative Tribunal.

(2) Subsection (1)(c) does not apply to the extent that the Director considers that he or she should investigate any matter for the purpose of facilitating the Director’s participation in any further proceeding relating to the matter.

(3) If the Director has stopped dealing with an issue and later becomes aware that the user or the provider has withdrawn or abandoned legal proceedings which relate to that issue, the Director may, with the consent of the user or the person who complained to the Director, reopen proceedings under this Act.

(4) Despite the fact that legal proceedings relating to an issue in a complaint have been begun as mentioned in subsection (1)(a), the Director may refer that complaint for conciliation if —

(a) the person who made the complaint; and

(b) the provider,

consent, but the conciliation process is not to continue once the Director becomes aware that the actual hearing of the case has begun.

[Section 52 amended: No. 55 of 2004 s. 496; No. 35 of 2022 s. 31.]

[53-55. Deleted: No. 35 of 2010 s. 89.]

56. Reports to, and at request of, Parliament

(1) The Director may at any time place a report before each House of Parliament on any matter that the Director considers necessary —

(a) arising from an individual complaint or investigation; or

(b) in relation to the performance of the Director’s functions; or

(2) Subsection (1) does not limit Part 5 of the Financial Management Act 2006.

(3) At any time —

(a) either House of Parliament; or

(b) any committee of either or both Houses,

may refer to the Director for investigation any matter relating to the provision of health services or a particular health service that the House or committee considers should be investigated by the Director.

(4) If a matter is referred to the Director by either House of Parliament or a committee under subsection (3), the Director must —

(a) investigate the matter immediately; and

(b) report the result of the investigation to the presiding officer of the House or committee within any time limit set out in the referral.

(5) Any report made by the Director under this section may name any person involved in a complaint.

[Section 56 amended: No. 77 of 2006 Sch. 1 cl. 82(4); No. 33 of 2010 s. 25.]

57. Action if a House not sitting

(1) If either House of Parliament is not sitting the Director may place a report before that House for the purposes of section 56(1) by giving the report to the Clerk of that House, and that report is taken to have been placed before that House.

(2) The placing of a report before a House that is taken to have occurred under subsection (1) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the receipt of the report by the Clerk.

[Section 57 amended: No. 8 of 2009 s. 73.]

58. Saving

The validity of anything done under this Act is not affected by a failure to observe a time limit provided for by section 33, 34(1), 35(1), 37, 40(4) or 50(2).

Part 4 — Director’s powers to obtain information and entry to premises

59. Restriction on powers

The Director may exercise the powers in section 60, or apply for a warrant under section 63, for the purpose of an investigation of a complaint, a Director‑initiated investigation or an investigation under section 45 or 56(3), but not otherwise.

[Section 59 amended: No. 33 of 2010 s. 26; No. 35 of 2022 s. 32.]

60. Power to summons and related powers

(1) The Director may —

(a) by notice in writing given to a person require the attendance of the person at a place and time specified in the notice;

(b) by notice in writing given to a person require the person to produce at a place and time specified in the notice any book, document, record or other thing that is in the possession or under the control of the person and that is relevant to an investigation.

(1A) The Director may direct a person attending in response to a notice under subsection (1) —

(a) to give such information as is requested in relation to any matter; or

(b) to answer a question put to the person.

(2) The Director may —

(a) require a person who appears to take an oath or make an affirmation; and

(b) administer an oath or affirmation to the person.

(3) The Director may inspect any book, document, record or other thing produced and retain it for such reasonable period as he or she thinks fit, and make copies of it or any of its contents.

(4) A person required to appear or produce documents or other things under subsection (1) must do so in person but may be represented by another person.

(5) If the Director gives a notice to a person under subsection (1), the notice must state that —

(a) under this Act, the person is required to comply with the notice; and

(b) refusal or failure to do so may constitute an offence under section 62(1).

(6) If the Director gives a direction to a person under subsection (1A), the Director must inform the person that —

(a) under this Act, the person is required to comply with the direction; and

(b) refusal or failure to do so may constitute an offence under section 62(1).

[Section 60 amended: No. 35 of 2022 s. 33.]

61. False statements

A person must not make a statement or give any information or answer for the purposes of an investigation of a complaint, a Director‑initiated investigation or an investigation under section 45 or 56(3) that the person knows to be false or misleading in a material respect.

Penalty: a fine of $2 500.

[Section 61 amended: No. 33 of 2010 s. 27; No. 35 of 2022 s. 34.]

62. Failure to comply with notice or direction given under s. 60

(1) A person must not, without lawful excuse, refuse or fail —

(a) to attend; or

(b) to produce a book, document, record or other thing; or

as required by a notice or a direction under section 60.

(2) A person must not, without lawful excuse, refuse or fail to be sworn or make an affirmation when required to do so under section 60.

[Section 62 amended: No. 35 of 2022 s. 35.]

63. Application for warrant to enter premises etc.

(1) The Director may apply to a magistrate for a warrant to be issued in respect of premises.

(2) An application for a warrant must —

(a) be in writing; and

(b) set out the grounds for seeking the warrant; and

(d) give a general description of the class of persons at the premises (if any) whom it is proposed to medically examine.

(3) A magistrate may require the Director to give more information about an application for a warrant.

(4) A magistrate to whom an application is made under this section must refuse it if —

(a) the application does not comply with the requirements of this Act; or

(b) when required to do so by the magistrate, the Director does not give to the magistrate more information about the application.

(5) The information in an application or given to a magistrate under this section must be verified before the magistrate on oath or affirmation or by affidavit, and the magistrate may for that purpose administer an oath or affirmation or take an affidavit.

[Section 63 amended: No. 24 of 2000 s. 17.]

64. Issue of warrant

(1) A magistrate to whom an application is made under section 63 may issue a warrant, if satisfied that there are reasonable grounds for believing that entry and inspection of the premises are necessary for the purposes of an investigation of a complaint, a Director‑initiated investigation or an investigation under section 45 or 56(3).

(2) A warrant under subsection (1) authorises the Director, or a member of the staff of the Office named in the warrant —

(a) to enter and inspect premises named in the warrant; and

(aa) to inspect any thing at the premises; and

(ab) to search the premises or any thing at the premises; and

(ac) to examine, measure, test, photograph or film any part of the premises or any thing at the premises; and

(ad) to operate equipment, including (without limitation) a computer, or facilities at the premises or direct a person at the premises to do so; and

(ae) to take any thing, or a sample of or from any thing, at the premises for analysis or testing; and

(b) if the application for a warrant describes a class of persons whom it is proposed to medically examine, to arrange for the carrying out of a medical examination of a person who is a member of that class —

(i) with the consent of that person; or

(ii) if that person is unable to consent, with the consent of the person’s representative recognized under section 20;

and

(c) to take with him or her such persons, equipment and materials as are necessary for exercising the powers conferred by this section; and

(d) to require a person on the premises to answer questions or produce documents in the person’s possession concerning the investigation; and

(e) to inspect and take copies of or extracts from, download or print out documents produced in compliance with a requirement made under paragraph (d) or any other documents at the premises that may be relevant to the investigation.

(3) There must be stated in a warrant —

(a) the purpose for which the warrant is issued; and

(b) the name of the person to whom the warrant is issued; and

(d) a description of the premises that may be entered.

(4) A magistrate who issues a warrant must cause a record to be made of particulars of the grounds that the magistrate has relied on to justify the issue of the warrant.

[Section 64 amended: No. 33 of 2010 s. 28; No. 35 of 2022 s. 36.]

65. Execution of warrant

(1) If asked by the occupier or a person in charge of the premises, the person executing a warrant must produce it for inspection.

(1A) A member of the staff of the Office executing a warrant must —

(a) produce an identity card given to the member of staff under section 17A for inspection by the occupier or a person in charge of the premises; or

(b) display an identity card given to the member of staff under section 17A so it is clearly visible to the occupier or person in charge of the premises.

(2) A warrant ceases to have effect —

(a) at the end of the period of one month after its issue; or

(b) if it is withdrawn by the magistrate who issued it; or

whichever occurs first.

[Section 65 amended: No. 35 of 2022 s. 37.]

66. Offences relating to warrants

(1) A provider and a provider’s officers, employees and agents must give to the Director or a person executing a warrant issued under section 64 all the assistance that the Director or person needs and they are able to give to help the Director or person to execute that warrant.

(2) A person must not obstruct or hinder the Director or a person executing a warrant.

(3) A person must not, without reasonable excuse, after being told by the Director or a person executing a warrant what are the person’s obligations in relation to the execution of a warrant —

(a) refuse to answer a question asked by, or produce a document required by, the person executing the warrant; or

(b) in answer to a question give information that the person knows to be false or misleading in a material respect.

67. Information etc. that may be withheld

(1) Nothing in this Part or a warrant issued under this Part or a requirement made in executing a warrant prevents a person from —

(a) refusing to answer a question or produce a book, document, record or other thing because the answer would relate to, or the book, document, record or thing contains, information in respect of which the person claims legal professional privilege; or

(b) refusing to answer a question or produce a book, document, record or thing if the answer, or the information in the book, document, record or thing would tend to incriminate the person or render the person liable to a penalty; or

(i) those medical records relate to the subject matter of the complaint made under Part 3; and

(ii) the person to whom the records relate, or the person’s representative, has consented to the disclosure of information in the records.

(2) In subsection (1)(c)(ii) —

person’s representative means —

(a) a representative recognized under section 20; or

(b) a guardian of the person under the Guardianship and Administration Act 1990; or

[Section 67 amended: No. 35 of 2022 s. 38.]

Part 5 — General

68. Register of complaints

(1) The Director is to establish and maintain a register of —

(a) complaints made under Part 3; and

(b) complaints shown on returns supplied by providers under section 75.

(2) A register under this section may be maintained —

(a) by making entries in or on a bound or loose‑leaf book; or

(b) by recording or storing the particulars to be entered in the register by means of a mechanical, electronic or other device, but so that the particulars so recorded or stored —

(i) will remain in the form in which they were originally recorded or stored; and

(ii) will be capable of being reproduced in written form.

(3) The form and contents of the register are to be determined by the Director.

68A. Disclosure of information to other Commonwealth, State or Territory entities

protected information means information that comes to the knowledge of the Director or a member of the staff of the Office in the course of, or because of, exercising functions under this Act;

relevant entity means —

(a) the Australian Health Practitioner Regulation Agency established under the Health Practitioner Regulation National Law (Western Australia); or

(b) a registration board; or

(c) another entity of the Commonwealth, another State or a Territory that has functions similar to functions of the Director.

(2) In exercising functions under this Act, the Director may disclose protected information to a relevant entity if the Director is satisfied that —

(a) the protected information will be collected, stored and used by the relevant entity in a way that ensures the privacy of the persons to whom it relates is protected; and

(b) the provision of the protected information to the relevant entity is necessary to enable the relevant entity to exercise the entity’s functions.

(3) If the Director makes an interim prohibition order or a prohibition order in relation to a health care worker, the Director may give a copy of the order to a relevant entity.

[Section 68A inserted: No. 35 of 2022 s. 39.]

68B. Disclosure to protect health or safety of users and other persons

(1) This section applies if the Director reasonably believes that —

(a) a provider poses, or may pose, a risk to public health; or

(b) the health or safety of a person or class of persons is or may be at risk because of the provision of a health service by a provider.

(2) The Director may give written notice of the risk and any relevant information about the provider to an entity of this State, another State, a Territory or the Commonwealth that the Director considers may be required to take action in relation to the risk.

[Section 68B inserted: No. 35 of 2022 s. 39.]

69. Protection of Director etc. from personal liability

(1) An action in tort does not lie against the Director or a member of the staff of the Office for anything that he or she has, in good faith, done in the performance or purported performance of a function under this Act.

(2) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act may have been capable of being done whether or not this Act had been enacted.

(3) This section does not relieve the Crown of any liability that it might have for the doing of anything by a person against whom this section provides that an action does not lie.

(4) In this section, a reference to the doing of anything includes a reference to the omission to do anything.

70. Protection of other persons

(1) A person to whom this section applies has the same privileges and immunities as he or she would have if the proceedings referred to in subsection (2) were proceedings in the Supreme Court.

(2) This section applies to a person —

(a) giving or tendering information or evidence for the purpose of conciliation or investigation proceedings under this Act; or

(b) representing another person for the purpose of any proceedings referred to in paragraph (a) or proceedings under section 60.

[Section 70 amended: No. 35 of 2022 s. 40.]

71. Confidentiality

(1) A person who is or has been in a situation to which this section applies must not, whether directly or indirectly, record, disclose, or make use of any information obtained because of that situation except —

(a) in the course of duty; or

(b) as required or allowed by this Act or any other law; or

(d) with the written authority of the Minister or the person to whom the information relates; or

(e) in other prescribed circumstances.

(2) Subject to subsection (1)(c), (d) or (e), the prohibition in subsection (1) extends to the giving of evidence or the production of a book, document or record to a court.

(3) This section does not apply to the disclosure of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.

(4) The exceptions in subsection (1)(c) and (d) do not apply to information obtained by a person acting as a conciliator.

(5) The situations to which this section applies are —

(a) holding the office of Director or being a member of the staff of the Office;

(b) being a participant in conciliation or investigation proceedings under this Act, whether as principal or agent;

(d) being a person who has received a notice under section 33(a), 35(1) or (3), 37, or 50(2) or (3) or a copy of a communication under section 33(b).

[Section 71 amended: No. 35 of 2010 s. 90.]

71A. Criminal record checks

Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;

criminal record, in relation to a health care worker, means the criminal record of the health care worker kept by the Commissioner of Police;

relevant decision, in relation to a health care worker, means a decision whether to —

(a) make an interim prohibition order in relation to the health care worker; or

(b) make a prohibition order in relation to the health care worker; or

(2) For the purposes of making a relevant decision in relation to a health care worker, the Director may —

(a) request that the Commissioner of Police give the Director information concerning any criminal record of the health care worker; and

(b) for the purpose of the request, give the Commissioner of Police any information concerning the health care worker that is necessary to conduct a check on the criminal record of the health care worker.

(3) On a request under subsection (2), the Commissioner of Police may give the information sought to the Director.

[Section 71A inserted: No. 35 of 2022 s. 41.]

72. False statements

A person must not make a statement in a complaint, report or return under this Act that the person knows to be false or misleading in a material respect.

73. Person not to be threatened etc. because of complaining to Director

A person must not —

(a) by threats or intimidation persuade or attempt to persuade another person not to complain to the Director or not to continue discussion with or proceedings before the Director; or

(b) refuse to employ, or dismiss, another person or subject another person to any detriment, because the other person intends to complain, or has complained, to the Director, or intends to take part, is taking part, or has taken part, in discussions with or proceedings before the Director.

74. Application of Parliamentary Commissioner Act 1971

For the purposes of section 14(4)(a) of the Parliamentary Commissioner Act 1971 the right to make a complaint under this Act is not to be regarded as a right of appeal, reference or review to or before a tribunal.

75. Prescribed provider must give certain information

(1) Within the prescribed time after 30 June in each year a prescribed provider or a provider that belongs to a prescribed class of providers must give to the Director a return concerning complaints received and action taken by the provider during the year that ended on that 30 June.

Penalty: $1 000.

(2) The return is to be in the prescribed form or the form prescribed for the class of providers, as the case may require.

76. Prosecutions

(1) Proceedings for an offence against this Act may be taken in the name of the Director by the Director or any person authorised by the Director.

(2) In any proceedings no proof is required of the appointment of the Director but a statement in a complaint that a person is the Director or is authorised by the Director under subsection (1) is to be taken to be proved in the absence of evidence to the contrary.

77. Regulations

The Governor may make regulations —

(a) in respect of complaints, conciliation, investigations, reports, returns, notices and procedures provided for by this Act; and

(b) prescribing forms to be used for the purposes of this Act; and

(c) generally prescribing any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

77A. Codes of conduct

Regulations made under section 77 may prescribe 1 or more codes of conduct relating to the provision of health services by the following —

(a) health care workers who are not registered providers;

(b) health care workers who are registered providers and who provide health services that are unrelated to their registration.

[Section 77A inserted: No. 35 of 2022 s. 42.]

78. Transitional provision

(1) The application of this Act extends to health services provided within the 12 months before the commencement of this Act.

(2) A complaint to which subsection (1) applies that would otherwise be out of time under section 24 may be accepted by the Director if, in the opinion of the Director, it is made within a reasonable time after the commencement of this Act.

79. Review of Act

(1) The Minister must carry out a review of, and prepare a report on, the operation and effectiveness of —

(a) this Act; and

(b) the Disability Services Act 1993 Part 6,

as soon as practicable after 5 years after the date on which the Health and Disability Services Legislation Amendment Act 2010 section 29 comes into operation.

(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared.

[Section 79 inserted: No. 33 of 2010 s. 29.]

79A. Review of amendments made by Health and Disability Services (Complaints) Amendment Act 2022

(1) The Minister must review the operation and effectiveness of the amendments made to this Act by the Health and Disability Services (Complaints) Amendment Act 2022, and prepare a report based on the review, as soon as practicable after the 5th anniversary of the day on which the Health and Disability Services (Complaints) Amendment Act 2022 section 43 comes into operation.

(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary.

[Section 79A inserted: No. 35 of 2022 s. 43.]

80. Transitional provisions

(1) A reference in any written law or other document to the Director of the Office of Health Review is to be taken to be a reference to the Director.

(2) A reference in any written law or other document to the Office of Health Review is to be taken to be a reference to the Office.

[Section 80 inserted: No. 33 of 2010 s. 30.]

[Schedule 1 deleted: No. 4 of 2018 s. 112(3).]

Schedule 2 — Tenure, salary, conditions of service, etc., of Director

[s. 8]

[Heading amended: No. 19 of 2010 s. 4.]

Tenure of office

(1) Subject to this Act, the Director holds office for a term, not exceeding 5 years, fixed by the instrument of appointment, and is eligible for re‑appointment once or more than once.

(2) The Director may resign his or her office by writing signed and delivered to the Governor.

Salary and entitlements

Subject to the Salaries and Allowances Act 1975, the Director —

(a) is to be paid salary and allowances at such rates per annum as the Minister determines on the recommendation of the Public Sector Commissioner; and

(b) has the same annual leave, sick leave and long service leave entitlements as a permanent officer of the Public Service.

[Clause 2 amended: No. 39 of 2010 s. 89.]

Superannuation

(1) If a person was a contributor within the meaning of the Superannuation and Family Benefits Act 1938 1 immediately before being appointed as Director, the person may continue to be a contributor under that Act after being appointed.

(2) For the purposes of subclause (1) the Office —

(a) is a department within the meaning of the Superannuation and Family Benefits Act 1938 1; and

(b) is to pay to the Board under that Act payments of the kind described in paragraph (i) of the proviso to the definition of department in section 6 of that Act.

Appointment of public service officer

(1) If a person occupied an office in the Public Service immediately before being appointed to the office of Director —

(a) the person retains existing and accruing entitlements in respect of leave of absence as if service as Director were a continuation of service in the office in the Public Service; and

(b) the person is entitled to be appointed to an office in the Public Service, not lower in classification and salary than the office which the person occupied if —

(i) the person ceases to hold office as Director on the completion of a periodical appointment; and

(ii) at that time the person is eligible to occupy an office in the Public Service.

(2) Where a person is appointed to an office in the Public Service under subclause (1)(b) the person retains existing and accruing leave entitlements as if service in the Public Service were a continuation of service in the office of Director.

Removal from office

(1) The Governor may remove the Director from office —

(a) for —

(i) misbehaviour or incompetence; or

(ii) physical or mental incapacity, other than temporary illness, impairing the performance of the Director’s functions;

(b) if the Director is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws.

(2) In subclause (1)(a)(i) —

misbehaviour includes conduct that renders the Director unfit to hold office as Director notwithstanding that the conduct does not relate to any function of the office.

[Clause 5 amended: No. 18 of 2009 s. 40.]

Other conditions of service

Subject to this Schedule, the Governor may, on the recommendation of the Public Sector Commissioner, determine other terms and conditions of service (if any) that apply to the Director.

[Clause 6 amended: No. 39 of 2010 s. 89.]

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Notes

This is a compilation of the Health and Disability Services (Complaints) Act 1995 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title	Number and year		Assent	Commencement
Health Services (Conciliation and Review) Act 1995 2	75 of 1995		9 Jan 1996	s. 1 and 2: 9 Jan 1996; Act other than s. 1 and 2, Pt. 3 and 4 and Sch. 1: 16 Aug 1996 (see s. 2 and Gazette 16 Aug 1996 p. 4007); Pt. 3 and 4 and Sch. 1: 16 Sep 1996 (see s. 2 and Gazette 16 Sep 1996 p. 4683)
Statutes (Repeals and Minor Amendments) Act 1997 s. 70	57 of 1997		15 Dec 1997	15 Dec 1997 (see s. 2(1))
Osteopaths Act 1997 s. 97	58 of 1997		15 Dec 1997	22 Dec 1999 (see s. 2 and Gazette 21 Dec 1999 p. 6393)
Disability Services Amendment Act 1999 s. 28(2)	44 of 1999		25 Nov 1999	25 Nov 1999 (see s. 2)
Statutes (Repeals and Minor Amendments) Act 2000 s. 17	24 of 2000		4 Jul 2000	4 Jul 2000 (see s. 2)
*Reprint of the Health Services (Conciliation and Review) Act 1995* as at 1 Jun 2001** (includes amendments listed above)
Acts Amendment (Equality of Status) Act 2003 Pt. 27	28 of 2003		22 May 2003	1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Statutes (Repeals and Minor Amendments) Act 2003 s. 65	74 of 2003		15 Dec 2003	15 Dec 2003 (see s. 2)
Carers Recognition Act 2004 Pt. 5 Div. 2	37 of 2004		28 Oct 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7127)
Disability Services Amendment Act 2004 s. 36	57 of 2004		18 Nov 2004	15 Dec 2004 (see s. 2 and Gazette 14 Dec 2004 p. 5999)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 59 3	55 of 2004		24 Nov 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)
*Reprint 2: The Health Services (Conciliation and Review) Act 1995* as at 18 Mar 2005** (includes amendments listed above)
Psychologists Act 2005 Sch. 3 cl. 6	28 of 2005		12 Dec 2005	4 May 2007 (see s. 2 and Gazette 4 May 2007 p. 1963)
Optometrists Act 2005 Sch. 3 cl. 4	29 of 2005		12 Dec 2005	20 Apr 2007 (see s. 2 and Gazette 30 Mar 2007 p. 1451)
Podiatrists Act 2005 Sch. 3 cl. 4	30 of 2005		12 Dec 2005	30 May 2007 (see s. 2 and Gazette 29 May 2007 p. 2486)
Chiropractors Act 2005 Sch. 3 cl. 4	31 of 2005		12 Dec 2005	1 Aug 2007 (see s. 2 and Gazette 31 Jul 2007 p. 3789)
Physiotherapists Act 2005 Sch. 3 cl. 4	32 of 2005		12 Dec 2005	23 Feb 2007 (see s. 2 and Gazette 20 Feb 2007 p. 505)
Osteopaths Act 2005 Sch. 3 cl. 4	33 of 2005		12 Dec 2005	30 May 2007 (see s. 2 and Gazette 29 May 2007 p. 2486)
Occupational Therapists Act 2005 Sch. 3 cl. 4	42 of 2005		19 Dec 2005	1 Aug 2007 (see s. 2 and Gazette 31 Jul 2007 p. 3789)
Medical Radiation Technologists Act 2006 Sch. 3 cl. 4	21 of 2006		9 Jun 2006	1 Jul 2007 (see s. 2 and Gazette 26 Jun 2007 p. 3013)
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 9 Div. 4 4	28 of 2006		26 Jun 2006	1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347)
Nurses and Midwives Act 2006 Sch. 3 cl. 11	50 of 2006		6 Oct 2006	19 Sep 2007 (see s. 2 and Gazette 18 Sep 2007 p. 4711)
Financial Legislation Amendment and Repeal Act 2006 Sch. 1 cl. 82	77 of 2006		21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 3: The Health Services (Conciliation and Review) Act 1995* as at 12 Oct 2007** (includes amendments listed above)
Medical Practitioners Act 2008 Sch. 3 cl. 26	22 of 2008		27 May 2008	1 Dec 2008 (see s. 2 and Gazette 25 Nov 2008 p. 4989)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 73		8 of 2009		21 May 2009	22 May 2009 (see s. 2(b))
Acts Amendment (Bankruptcy) Act 2009 s. 40		18 of 2009		16 Sep 2009	17 Sep 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 4		19 of 2010		28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Health and Disability Services Legislation Amendment Act 2010 Pt. 2		33 of 2010 (as amended by 35 of 2010 s. 83(3))		30 Aug 2010	30 Nov 2010 (see s. 2(b) and Gazette 17 Sep 2010 p. 4757)
Health Practitioner Regulation National Law (WA) Act 2010 Pt. 5 Div. 25		35 of 2010		30 Aug 2010	s. 79-90 and 91(1)-(3): 18 Oct 2010 (see s. 2(b) and Gazette 1 Oct 2010 p. 5075-6); s. 91(4) and (5): 1 Jul 2012 (see s. 2(b) and Gazette 19 Jun 2012 p. 2631)
Public Sector Reform Act 2010 s. 89		39 of 2010		1 Oct 2010	1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
*Reprint 4: The Health and Disability Services (Complaints) Act 1995* as at 7 Jan 2011** (includes amendments listed above except those in the Health Practitioner Regulation National Law (WA) Act 2010 s. 91(4) and (5))
Mental Health Legislation Amendment Act 2014 Pt. 4 Div. 4 Subdiv. 13	25 of 2014		3 Nov 2014		30 Nov 2015 (see s. 2(b) and Gazette 13 Nov 2015 p. 4632)
Health Services Act 2016 s. 292	11 of 2016		26 May 2016		1 Jul 2016 (see s. 2(b) and Gazette 24 Jun 2016 p. 2291)
Health Practitioner Regulation National Law (WA) Amendment Act 2018 s. 112	4 of 2018		19 Apr 2018		1 Dec 2018 (see s. 2(d) and Gazette 13 Nov 2018 p. 4427‑8)
Voluntary Assisted Dying Act 2019 Pt. 12 Div. 4	27 of 2019		19 Dec 2019		1 Jul 2021 (see s. 2(b) and SL 2021/83 cl. 2)
Health and Disability Services (Complaints) Amendment Act 2022 s. 3‑43	35 of 2022		28 Oct 2022		27 Jul 2023 (see s. 2(b) and SL 2023/112 cl. 2)

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title	Number and year	Assent	Commencement
State Superannuation (Transitional and Consequential Provisions) Act 2000 s. 75	43 of 2000	2 Nov 2000	To be proclaimed (see s. 2(2))

Other notes

1 The Superannuation and Family Benefits Act 1938 was repealed by the State Superannuation Act 2000 s. 39, but its provisions continue to apply to and in relation to certain schemes because of the State Superannuation (Transitional and Consequential Provisions) Act 2000 s. 26.

Now known as the Health and Disability Services (Complaints) Act 1995; short title changed (see note under s. 1).

2 Now known as the Health and Disability Services (Complaints) Act 1995; short title changed (see note under s. 1).

3 The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

The Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 9 Div. 13 reads as follows:

4 The Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 9 Div. 13 reads as follows:

Div 13

Transitional provisions

Division 13 — Transitional provisions

Commissioner of Health

(1) A thing done or omitted to be done by, to or in relation to, the Commissioner of Health before commencement under, or for the purposes of, an enactment has the same effect after commencement, to the extent that it has any force or significance after commencement, as if it had been done or omitted by, to or in relation to, the CEO.

(2) In this section —

CEO has the meaning given by section 3 of the Health Legislation Administration Act 1984 as in force after commencement;

commencement means the time at which this Division comes into operation;

Commissioner of Health means the Commissioner of Health referred to in section 6(1)(a) of the Health Legislation Administration Act 1984 as in force before commencement.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

carer 3(1)

code of conduct 3(1)

Commissioner of Police 71A(1)

conciliator 3(1)

corresponding law 52Q(1)

criminal record 71A(1)

Director 3(1)

Director-initiated investigation 3(1), 44A

document 12(5)

excluded service 3(1)

functions of the Director 11(4)

health care worker 3(1)

Health Department 3(1)

health service 3(1)

industrial tribunal 3(1)

information 12(5)

interim prohibition order 3(1), 52B(2)

interstate interim prohibition order 52Q(1)

interstate order 52Q(1)

interstate prohibition order 52Q(1)

manager 25(2)

member of the staff 3(1)

misbehaviour Sch. 2 cl. 5(2)

Office 3(1)

Office’s website 3(1)

person’s representative 67(2)

prohibition order 3(1), 52H(2)

protected information 68A(1)

provide 3(1)

provider 3(1)

public health warning statement 3(1)

public provider 3(1)

registered provider 3(1)

registration board 3(1)

relative 20(4)

relevant decision 71A(1)

relevant entity 68A(1)

user 3(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Source text: opening excerpt

Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.

Western Australia

Health and Disability Services (Complaints) Act 1995

Western Australia

Health and Disability Services (Complaints) Act 1995

Contents

Part 1 — Preliminary

Short title 2
Commencement 2

3A. Act to be read with other legislation about health and disability complaints 2

Terms used 2
Guiding principles for the provision of health services 6
Crown bound 7

Part 2 — Administrative arrangements

Health and Disability Services Complaints Office 8
Director of Office 8
Tenure, salary etc. of Director 8
Judicial notice of Director’s appointment and signature 8
Director’s functions 9
Minister may give Director directions 10
Minister to have access to information 11
Financial provisions 12
Staff 13
Consultants 13
Use of other government staff etc. 13
Oath of office by Director and staff 13

17A. Identity cards 14

Delegation by Director 14

Part 3 — Complaints generally

Division 1 — Right to complain conferred

Who may complain 15
Representatives of users 15
Representative not to be paid 16
Provider may complain for user 16
Complaints to public providers, referral under administrative instructions 17
Time limit for complaints 17
What complaints can be about 18
Complaints that must be rejected 19

Division 2 — Initial procedures

How to complain 20