Health and Disability Services (Complaints) Regulations 2010

The Health and Disability Services (Complaints) Regulations 2010 (the regulations) set out detailed, operative rules that implement and supplement provisions of the Health and Disability Services (Complaints) Act 1995 (the Act) as referenced throughout the instrument. Mechanically, the regulations do the following.

• Fix commencement timing: regs 1-2 establish the short title and staged commencement, with regulations other than r 1 and r 2 operating the day after publication (r 2).
• Prescribe offences for purposes of specified Act provisions: regulation 2A lists categories of offences and cross-references Schedule 1A, so that particular criminal and regulatory provisions become "prescribed offences" for the purposes of s 52B(3), s 52H(3) and s 52R(2) of the Act (r 2A(1); Schedule 1A). This links criminal offences under a range of statutes (including the Criminal Code, the Australian Consumer Law, Voluntary Assisted Dying Act 2019, and others) to the Act’s complaint and prohibition powers.
• Recognise interstate orders: regulation 2B identifies particular interstate statutory orders as qualifying "interstate interim prohibition orders" and "interstate prohibition orders" for the purposes of the Act’s definition in s 52Q(1). The regulation lists the specific counterpart sections in SA, NSW, VIC, QLD and ACT legislation (r 2B(1)-(2)).
• Prescribe timelines, providers and forms tied to the Act: regulation 3 prescribes a "prescribed time" of 31 days for the purpose of s 75(1) of the Act; regulation 4 prescribes certain named providers and classes of providers for s 75(1) reporting obligations, and regulation 5 prescribes the form of the return (Form 1 in Schedule 2) for s 75(2).
• Prescribe and apply a code of conduct: regulation 6 prescribes the code of conduct in Schedule 3 and applies it to "health care workers who are not registered providers" and to "registered providers" when they provide services unrelated to their registration (r 6; Schedule 3).

Operational outputs include an annual "return of complaints information" template (Schedule 2) with a firm date for submission to the Director (31 July each year), a defined list of private hospitals (Schedule 1) and a comprehensive code of conduct for certain health care workers (Schedule 3). The regulation also records amendment history and compilation details that show updates in 2011, 2015, 2016, 2023 and 2024.

In short, the regulations convert several of the Act’s enabling references into practical obligations, lists and forms: they identify who must report and in what form, specify a reporting deadline and data categories, prescribe a conduct standard for a defined cohort of health workers, and link particular offences and interstate orders into the Act’s remedial architecture (noting each linkage is explicitly identified in the relevant regulation or schedule).

The instrument operates by prescription and cross-reference. Key concepts are defined through the regulations’ role as an implementational layer to the Act; the regulations do not restate the Act’s powers, but they prescribe the particulars that trigger or operationalise those powers.

Prescribed offences (r 2A and Schedule 1A). Regulation 2A makes clear that for specified Act provisions (s 52B(3)(a)(ii), s 52H(3)(a)(ii) and s 52R(2)(a)(ii)), a collected list of statutory offences is to be treated as "prescribed offences". Schedule 1A then structures those offences into divisions (for example, Division 1: Australian Consumer Law offences; Division 3: Criminal Code offences; Division 9: Voluntary Assisted Dying Act 2019 offences). The regulations also capture conspiracy, attempt and incitement to commit those offences, and offences against Commonwealth or foreign law that would have been an equivalent offence in Western Australia (r 2A(1)(b)-(c)). The list is granular: items in Division 3 enumerate specific Criminal Code sections (for example s. 279 murder, s. 325 sexual penetration without consent and many more) and other Divisions list relevant provisions from different Acts.

Interstate order recognition (r 2B). For the Act’s definition of interstate prohibition orders and interstate interim prohibition orders (s 52Q(1) of the Act), r 2B specifies which orders made under certain interstate statutes qualify. It lists particular sections in South Australia, New South Wales, Victoria, Queensland and the Australian Capital Territory. This creates an express mechanism for cross-jurisdictional recognition of interim and final prohibition orders that might limit a person’s ability to provide services in Western Australia or attract action here.

Reporting timeframe and coverage (r 3-5 and Schedule 2). Regulation 3 prescribes 31 days as the "prescribed time" for the purpose of s 75(1) of the Act. Regulation 4 identifies specific prescribed providers (the chief executives of the WA prisons department, St John Ambulance WA, Royal Flying Doctor Service Western Operations and Silver Chain Nursing Association) and classes of providers (health service providers established under the Health Services Act 2016 and managers/CEOs of private hospitals listed in Schedule 1) for the same s 75(1) purpose. Regulation 5 prescribes Form 1 (Schedule 2) as the required return format under s 75(2). Schedule 2 is a detailed annual return template that requires demographic data of complainants, granular complaint categories, outcomes and time-to-resolution bands; the schedule also states the return "must be given to the Director of the Health and Disability Services Complaints Office by 31 July each year".

The regulations name specific actors and classes of actors and impose obligations that fall primarily on providers, health care workers, certain chief executives and the entities defined as recipients of reporting obligations.

Named prescribed providers (r 4(1)). The following office-holders are explicitly prescribed under r 4(1): the chief executive officer of the department principally assisting in the administration of the Prisons Act 1981; the chief executive of St John Ambulance Western Australia Ltd; the chief executive of the Royal Flying Doctor Service of Australia (Western Operations); and the chief executive of Silver Chain Nursing Association Incorporated. These named individuals or their organisations are placed within the operational scope of s 75(1) of the Act as interpreted by the regulations.

Prescribed classes of providers (r 4(2)). Two classes are prescribed. First, health service providers established by order under the Health Services Act 2016 s 32(1) are captured; second, people who manage or are chief executives of the private hospitals listed in Schedule 1 are captured. Schedule 1 provides a specific list of private hospitals and related facilities (for example Hollywood Private Hospital; St John of God Hospitals at Bunbury, Geraldton, Murdoch and Subiaco; Mercy Hospital; Perth Clinic; and others). Where a given person is a manager or CE of a listed private hospital, the regulations treat them as a prescribed provider for s 75(1) purposes.

Health care workers affected by the code (r 6 and Schedule 3). The code in Schedule 3 is made applicable by r 6 to two overlapping cohorts: health care workers who are not registered providers, and registered providers when they provide health services that are unrelated to their registration. This captures unregistered practitioners (for example some allied health practitioners not registered under national registration schemes) and registered providers acting outside the scope of their registration. The code imposes duties (competence, consent, infection control, recordkeeping, display of documents, insurance, etc.) that apply directly to those health care workers.

Providers with reporting obligations (r 3-5 and Schedule 2). The annual return in Schedule 2 is directed at providers required by s 75 of the Act to give information to the Director. Regulation 5 prescribes the form and Schedule 2 sets the contents and deadline (must be given to the Director by 31 July each year). The content is detailed and requires demographic breakdowns of complainants, categories of complaints, outcomes and time-to-resolution. The reporting obligation therefore affects any prescribed provider or provider class captured by the Act and the regulations.

The regulations set out discrete duties and prescriptive obligations that operate alongside the Act. The duties fall into three operational clusters: reporting and administrative obligations, the code-of-conduct obligations, and cross-jurisdictional recognition obligations. Rights are less directly specified in the text but follow from the obligations the regulations impose on providers and workers.

Reporting and administrative duties. Regulation 3 prescribes a "prescribed time" of 31 days for the purposes of s 75(1) of the Act. Regulation 4 prescribes named providers and classes of providers for s 75(1), and regulation 5 prescribes Form 1 in Schedule 2 as the required annual return format for s 75(2). Schedule 2 sets out the content of the annual return and instructs that "This return must be given to the Director of the Health and Disability Services Complaints Office by 31 July each year". The duty is therefore to compile and submit detailed complaints data annually, including demographic breakdowns of complainants, categories of complaint, complaint outcomes, and elapsed times to resolution. The right implicit here is a director’s statutory entitlement to receive standardised complaint data from prescribed providers.

Code-of-conduct duties (Schedule 3). The code imposes a suite of duties on the categories of health care workers to which it applies (r 6). Notable duties include:

• Competence and scope limitations: maintain competence; do not practise outside experience or training; recognise limitations and refer appropriately (Schedule 3 cl 1(a)-(d)).
• Consent: obtain consent appropriate to the treatment in accordance with the laws of the State prior to commencing treatment (clause 2).
• Communication and treatment advice: respect a client's right to make informed choices; do not attempt to dissuade a client from seeking or continuing medical treatment; communicate and cooperate in clients’ best interests (Schedule 3 cl 3).
• Reporting concerns about colleagues: refer reasonable beliefs that another worker places clients at serious risk to the Health and Disability Services Complaints Office (clause 4).
• Adverse events: take appropriate and timely measures to minimise harm; provide first aid; obtain emergency assistance; disclose adverse events to clients and report to relevant authorities "if appropriate" (clause 5).
• Infection control: adopt standard precautions and comply with Health (Skin Penetration Procedure) Regulations 1998 for invasive procedures (clause 6).

The regulations do not themselves create new criminal penalties; they implement and specify particulars relevant to enforcement and remedial mechanisms that are located in the Act. The instrument contributes to enforcement in three principal ways: by prescribing offences that feed into Act-based powers, by identifying interstate orders that can be relied upon, and by creating reporting and display duties that may be enforced under the Act’s broader administrative regime.

Prescribed offences as enforcement triggers (r 2A and Schedule 1A). Regulation 2A expressly states that each item in Schedule 1A is a "prescribed offence" for the purposes of s 52B(3)(a)(ii), s 52H(3)(a)(ii) and s 52R(2)(a)(ii) of the Act. Those sections of the Act (not reproduced here) are the statutory hooks for specific Act remedies; the regulations therefore operate to expand the catalogue of conduct that can trigger Act remedies. Schedule 1A spans numerous offences , for example, select consumer law offences (Division 1), a large range of Criminal Code offences (Division 3), public health offences (Division 7A), and voluntary assisted dying offences (Division 9). The practical enforcement consequence is that acts falling within these listed offences can be treated as prescribed for the Act’s purposes, enabling the Director and the Complaints Office to consider prohibition or other administrative measures available under the Act.

Interstate prohibition order recognition (r 2B). Regulation 2B prescribes particular interstate orders as interstate interim prohibition orders or interstate prohibition orders for the Act’s s 52Q(1) definition. That recognition allows the WA scheme to give effect to interstate administrative determinations that restrict practice or impose conditions under the equivalent interstate regimes. Enforcement therefore has a cross-jurisdictional enforcement mechanism: an interstate regulator’s order of the types listed can be operative in WA insofar as the Act provides for recognition.

Administrative enforcement of reporting and display obligations. The regulations create reporting obligations (Schedule 2) and display duties (Schedule 3 cl 17). Non-compliance with such obligations would, in practice, be actionable under the Act’s administrative framework , for example, the Director may have investigative and enforcement powers , but the regulations themselves do not set a separate penalty level for failing to submit the annual return or for failing to display the code. The regulations rather prescribe the form and timeframe; enforcement of non-compliance would depend on the Act’s enforcement provisions and any administrative sanctions or orders available under the Act.

The regulations are expressly cross-referential. They do not stand alone; their operative force depends on and intersects with both the Act and a number of other statutes and subordinate instruments. The text itself names multiple external instruments and statutory provisions, creating points of interface and mutual effect.

Primary interface: the Health and Disability Services (Complaints) Act 1995. The regulations repeatedly note that specific prescriptions are "for the purposes of" particular sections of the Act (for example r 2A refers to Act ss 52B(3), 52H(3) and 52R(2); r 2B refers to Act s 52Q(1); r 3 and r 4 refer to Act s 75(1); r 5 to s 75(2); r 6 to s 77A). That structure means the regulations perform the Act’s delegated functions: prescribing providers, timeframes, forms and codes which then operate under the Act’s administrative and enforcement schemes.

Interaction with Commonwealth law and national schemes. Regulation 2A(2) defines "Australian Consumer Law" to include the Competition and Consumer Act 2010 (Commonwealth) s 4(1) and the Australian Consumer Law (WA) as defined in the Fair Trading Act 2010 s 17(1). Schedule 1A includes offences under the Australian Consumer Law (for example ss 151, 155, 156). Schedule 3 cl 14 requires compliance with "relevant privacy laws that apply to clients’ health information, including the Privacy Act 1988 (Commonwealth)". Schedule 3 cl 17(3)(d) references the Aged Care Act 1997 (Commonwealth) in respect of approved providers, creating an exclusion for aged care premises regulated under federal law. These cross-references show the regulations’ interaction with Commonwealth statutes, particularly where national standards or data privacy law apply.

Interaction with other WA statutes and subordinate instruments. The regulations reference and incorporate requirements from multiple WA statutes and subordinate regulations:

• Health Services Act 2016 (r 4(2)(a) and Schedule 3 cl 17(3)(a)) for definitions of "health service provider" and premises exclusions.
• Private Hospitals and Health Services Act 1927 s 2(1) for the definition that affects the display duty exclusion (Schedule 3 cl 17(3)(b)); Schedule 1 lists private hospitals relevant to r 4(2)(b).
• Health (Skin Penetration Procedure) Regulations 1998 (Schedule 3 cl 6(2)) require compliance by workers carrying out skin penetration or invasive procedures.
• Voluntary Assisted Dying Act 2019 (Schedule 1A Division 9) with specified offences in that Act linked as prescribed offences.

The regulations include an explicit compilation and amendment record that identifies the original instrument and a sequence of amendments up to 2024. The compilation table in the notes provides the authoritative chronology of changes to the regulations and schedules.

Key dates and instruments:

• Original instrument: Health Services (Conciliation and Review) Regulations 2010 published 21 May 2010; r 1 and r 2 commenced 21 May 2010 and the rest commenced 22 May 2010 (compilation table).
• Amendment: Health Services (Conciliation and Review) Amendment Regulations 2011; Gazette 20 May 2011; resulted in the reprint as the Health and Disability Services (Complaints) Regulations 2010 as at 12 Aug 2011 (reprint 1).
• Amendment: Health and Disability Services (Complaints) Amendment Regulations 2015; Gazette 29 Dec 2015; these amendments were registered and commenced in late 2015 (compilation table).
• Amendment: Health Services (Consequential Amendments) Regulations 2016 Pt. 6; Gazette 24 Jun 2016; commenced 1 July 2016 (compilation table).
• Amendment: Health and Disability Services (Complaints) Amendment Regulations 2023 (SL 2023/115) , registers 26 July 2023 with remaining regs commencing 27 July 2023. This instrument inserted r 2A, r 6 and Schedule 3, and made other structural changes indicated by the text footnotes (for example r 2A was inserted: SL 2023/115 r 4; r 6 inserted: SL 2023/115 r 6; Schedule 3 inserted: SL 2023/115 r 8).
• Amendment: Health Regulations Amendment (Abortion Legislation Reform) Regulations 2024 Pt. 2 (SL 2024/20) , registered 21 Feb 2024 and commenced 27 Mar 2024. This amendment inserted Division 7A into Schedule 1A to include a Public Health Act 2016 offence (s 202MN) as a prescribed offence (Schedule 1A Division 7A).
• Amendment: Health and Disability Services (Complaints) Amendment Regulations 2024 (SL 2024/54) , registered 1 May 2024 and commenced 2 May 2024; r 2B was amended by SL 2024/54 r 4 as recorded in r 2B’s footnote.
• Amendment: Health and Disability Services (Complaints) Amendment Regulations (No. 2) 2024 (SL 2024/145) , registered 10 Jul 2024 and commenced 15 Jul 2024; Schedule 1A Division 3 was amended (SL 2024/145 r 4), adding or modifying items such as s. 318B (assault on retail workers) in the Criminal Code list.

Substantive changes across amendments. The 2023 amendment (SL 2023/115) is significant: it introduced r 2A (prescribed offences) and Schedule 1A, and it introduced r 6 and Schedule 3 (the code of conduct). These insertions materially expanded the regulations’ substantive reach by specifying offences that interact with Act powers and by formally prescribing a code of conduct for certain health care workers. The 2024 amendments updated Schedule 1A to reflect changes in other WA statutes (such as the Public Health Act insertion) and refined interstate recognition lists (r 2B), indicating an ongoing administrative alignment with both state and interstate legal changes.

The regulations themselves do not include or cite judicial decisions, and the text contains no record of litigation or case law. The instrument’s "Notes" and compilation table list only statutory amendments and commencement details; they do not document any legal challenges, decisions, or judicial interpretations of the regulations.

Implications for practitioners. Because the regulations set out prescriptive operational details (prescribed offences, forms, a code of conduct, prescribed providers, and interstate order recognition), most litigation or review arising from them would likely fall into a few categories:

• Administrative law challenges about the exercise of powers under the Act where the regulations prescribe criteria or lists used in administrative decision-making. For example, recognition of interstate orders (r 2B) or the treatment of a listed "prescribed offence" (r 2A) could be judicially reviewed if an affected person sought relief against an Act-based order that relied on those regulatory prescriptions.
• Disputes about the obligations imposed by the code of conduct (Schedule 3), for example where an alleged breach is said to justify disciplinary action, prohibition orders or other administrative remedies under the Act. Because the code applies to non‑registered workers and to registered providers acting outside registration (r 6), enforcement or consequential referrals might appear in administrative proceedings or professional tribunal processes.
• Data protection or privacy disputes arising from the annual returns (Schedule 2), for example where a provider’s reporting is challenged on privacy grounds; Schedule 3 cl 14 explicitly requires compliance with privacy law.

Absence of case citations. The regulations do not name any cases, nor do they include footnotes referencing judicial interpretation. The absence of litigation history in the instrument means that practitioners must undertake independent case law research to find any decisions applying or interpreting the regulations or their interplay with the Act.

Practical recommendation for research. For authoritative judicial treatment of any contentious regulatory point (for example, the scope of the code’s duties, the status of prescribed offences as triggers for prohibition orders, or the recognition of interstate orders), counsel and advisers should search WA administrative law and tribunal decisions, and also consider interstate decisions that may follow similar statutory schemes. The regulations’ references to external statutes (e.g. Health Services Act 2016, Privacy Act 1988 (Cth), various interstate health complaints statutes) mean litigation may cross jurisdictional lines.

The regulations contain several details that can produce operational surprises if not attended to. These are practical "gotchas" grounded in the text.

1. Broad reach of "prescribed offences" (r 2A and Schedule 1A). Schedule 1A imports a wide range of offences into the Act’s remedial architecture, from consumer law contraventions to very serious Criminal Code offences and offences under other statutes such as the Voluntary Assisted Dying Act 2019 and the Misuse of Drugs Act. The regulation also captures conspiracy, attempt and incitement and equivalent Commonwealth or foreign offences (r 2A(1)(b)-(c)). Gotcha: conduct that might be prosecuted under another statute can become a trigger for administrative prohibition mechanisms under the Act because the regulations designate it as a "prescribed offence". Organisations should map conduct and reporting obligations accordingly.

2. The code applies beyond unregistered workers (r 6). Regulation 6 applies the Schedule 3 code to "health care workers who are not registered providers" and importantly to "health care workers who are registered providers and who provide health services that are unrelated to their registration". Gotcha: registered providers who perform services outside their registration are subject to the code, which may impose duties and reporting obligations not otherwise captured by registration standards.

3. Extensive and granular annual return requirements (Schedule 2). The annual return template demands detailed demographic data (age bands, gender, first language, Aboriginal/Torres Strait Islander status), postcode groupings, comprehensive complaint categories, outcome types, and time-to-resolution bands. Gotcha: data collection systems need to be configured for the specific categories and to ensure privacy compliance (Schedule 3 cl 14 requires adherence to privacy laws). The deadline is absolute: "must be given to the Director... by 31 July each year".

4. Display obligation exceptions (Schedule 3 cl 17(3)). Clause 17 requires display of the code and complaint information at premises where practice is carried out, but clause 17(3) lists exceptions including premises of health service providers as defined by the Health Services Act 2016, private hospitals (other than nursing homes) as defined in a 1927 Act, premises of St John Ambulance WA, and premises of approved aged care providers under the Aged Care Act 1997 (Commonwealth). Gotcha: premises operators must check whether an exception applies before assuming they are exempt, because definitions from other statutes determine applicability.

Compliance requires a combination of governance, reporting process changes, staff training, insurance review and data-handling safeguards. The steps below map directly to the regulations and schedules.

1. Identify whether you are a prescribed provider (r 4). Check r 4(1) and r 4(2) to confirm whether your organisation or position falls into the statutory categories: chief executives named in r 4(1); health service providers established under Health Services Act 2016 s 32(1); or managers/CEOs of the private hospitals listed in Schedule 1. If you are a prescribed provider, you have reporting obligations under s 75 as given effect by the regulations.

2. Establish an annual return process and calendar (r 5; Schedule 2). The prescribed form is Form 1 in Schedule 2, and the return "must be given to the Director of the Health and Disability Services Complaints Office by 31 July each year". Implement a data collection workflow that captures the required fields: total complaints, referrals, who made complaints, demographic categories, complaint categories, outcomes, and time-to-resolution bands. Ensure that data is validated and dated so the return relates to complaints in the year ending the previous 30 June, as Schedule 2 specifies.

3. Privacy and data protection compliance (Schedule 3 cl 14 and Schedule 2). Because Schedule 2 requires sensitive information, confirm lawful bases for collection and sharing under the Privacy Act 1988 (Cth) and applicable state privacy law. Where possible, de-identify data in the return consistent with the Director’s requirements. Maintain secure storage and log transfers to the Director. Document consents and internal data minimisation efforts.

4. Map complaint categories to internal case management systems. Schedule 2’s categories are granular (Access, Communication, Decision-making, Quality of clinical care, Costs, Rights/respect/dignity, Grievances, Corporate services, Misconduct, Carers). Update your incident/complaint classification taxonomy and reporting extracts to generate the required totals and narrative where needed.

5. Align timelines to the prescribed 31 days where relevant (r 3). Regulation 3 prescribes 31 days for the purposes of s 75(1). Confirm which internal notifications, case reviews and submissions must be completed within that period. Update SLA and escalation matrices accordingly.

6. Adopt the code of conduct obligations where applicable (r 6 and Schedule 3). Assess whether staff fall within the code’s application: non-registered health care workers and registered providers providing services unrelated to registration are covered. Take these concrete steps: