Health Care Complaints Act 1993

The Act casts a wide net. Clients (defined in s 4 to include patients) who use or receive health services are the primary intended beneficiaries; they, their representatives, parents, guardians or Members of Parliament may complain about clinical care or provider conduct (ss 7, 8). Health practitioners—both registered (under the National Law) and unregistered—fall squarely within its reach. A complaint may be made even if the practitioner is no longer qualified or entitled to provide the service (s 7(3)). Non-registered practitioners are subject to codes of conduct prescribed under the Public Health Act 2010 and may be made subject to interim or final prohibition orders (ss 41AA, 41A). Relevant health organisations (defined negatively in s 4 to exclude public health organisations, public hospitals, licensed private health facilities and prescribed bodies) are also directly regulated; they may face prohibition orders, public statements and compliance assessments (Div 7A, Part 3A).

Professional councils and National Boards established under the Health Practitioner Regulation National Law (NSW) are statutory partners. The Commission must notify them of complaints (s 10), consult before key decisions (ss 12–14, 39(2), 90B(3)), share information (s 15) and notify them of prohibition orders (s 41D). Councils may suspend their own action while the Commission investigates (s 14) but retain emergency public-protection powers.

The Health Secretary and public health organisations receive mandatory notification of complaints against organisations (s 17) and certain complaints that may breach listed statutes (s 25). The Secretary may be asked to inquire into matters before the Commission exercises its own systemic-investigation power (s 60) and must respond to Commission reports and recommendations (ss 42–44).

Employers of health practitioners may be notified of complaints where necessary for assessment or public protection (ss 16A, 28(2)–(3)). Conciliators, Registrar of the Health Conciliation Registry, authorised officers and Commission staff are given specific powers and immunities and are subject to confidentiality and offence provisions (ss 51, 58, 96, 99A).

Complainants enjoy rights to assistance in framing complaints (s 9(3)), confirmation of allegations (s 20(2)), notification of outcomes and review rights (ss 28, 41(3)). They may also be protected from intimidation or harassment (ss 16(4), 98).

Finally, the public at large is protected through the paramountcy principle (s 3(2)), the Commission’s power to issue public warnings (ss 41A(2)(b), 45C(2)(b), 94A), the public register of prohibition orders (ss 41E, 45F) and the Parliamentary Joint Committee’s oversight role (Part 4).

Duties fall most heavily on the Commission. It must assess every complaint (s 19), consult professional councils before most dispositive decisions (s 12), investigate where statutory thresholds are met (s 23(1)), act expeditiously especially where the complainant or client is seriously ill (s 29A(1)), give natural justice where proposing adverse action (s 40), notify parties and councils of outcomes with reasons (ss 28, 41, 90CA) and place public protection above all other considerations (s 3(2)).

The Director of Proceedings has exclusive carriage of prosecutorial decisions once a complaint is referred (s 90B(1)). The Director must consult the relevant council (s 90B(3)), consider the criteria in s 90C and may refer a complaint back for further investigation or for lesser action under s 39(1)(c)–(g) (s 90B(3A)–(3B)).

Health practitioners and relevant health organisations must comply with prohibition orders and interim prohibition orders on pain of criminal offence under s 102(3) of the Public Health Act 2010. They enjoy rights to notice (ss 16, 28, 40, 41B, 45D), to make submissions before adverse findings (s 40, s 43), to administrative review by NCAT of prohibition orders and related decisions (ss 41C, 45E) and to confidentiality of conciliation communications (s 51).

Complainants have rights to assistance (s 9(3)), confirmation that their allegations have been correctly recorded (s 20(2)), notification of assessment outcomes and review rights (s 28(8)–(9)), and protection from reprisals (s 98).

Professional councils have rights to be consulted, to receive information (s 15), to receive investigation findings (s 38) and to continue emergency protective action despite Commission involvement (s 14(2)). They are under a duty not to take non-emergency action while a complaint is under Commission investigation or conciliation (s 14(1)).

Authorised officers possess entry, search, seizure and coercive questioning powers (ss 33, 63E) but must produce certificates of authority (ss 31(3), 63C(3)) and may enter residential premises only with consent or warrant (ss 32, 63D). They are protected from liability for good-faith acts (s 96) but face offences if they impersonate or obstruct (ss 97A–97B).

All participants are bound by confidentiality provisions (ss 51, 58, 99A) and offences for furnishing false or misleading information (ss 97A, 99).

The Act creates a suite of criminal offences. Furnishing false or misleading information to the Commission or an authorised person attracts 200 penalty units (ss 97A, 99). Obstructing an authorised person, failing to comply with a coercive notice under s 21A, 34A or 63G, or impersonating an authorised person each carry a 200-penalty-unit maximum (ss 97A, 97B). Intimidation or bribery of complainants or reprisals against them is punishable by 200 penalty units or 12 months’ imprisonment (s 98). Breaching conciliation confidentiality carries 10 penalty units or 6 months’ imprisonment (s 58). Breach of a prohibition order is an offence under s 102(3) of the Public Health Act 2010, which provides for up to 2 years’ imprisonment or 400 penalty units for individuals and 2,000 penalty units for corporations.

Civil enforcement is achieved primarily through disciplinary proceedings before Professional Standards Committees or the responsible tribunal under the National Law. The Director of Proceedings may prosecute such matters (s 90B(1)(a1)). The Commission may also seek NCAT administrative review outcomes to be set aside or varied (ss 41C, 45E). Public statements and warnings under ss 41A, 45C and 94A are enforced by reputational and market mechanisms rather than direct sanction, although false statements could ground defamation or misleading-conduct actions (subject to the defences in s 94C).

The Commission may escalate unimplemented recommendations through the Health Secretary to the Minister and ultimately to Parliament via special report (ss 44, 63). Compliance with “relevant matters” (including prohibition orders and Commission recommendations) may be assessed using the coercive powers in Part 3A (s 63B).

The Act is expressly subordinate only to itself in its interaction with the Health Practitioner Regulation National Law (NSW) (s 93). It cross-references that Law at dozens of points: definitions of “registered health practitioner”, “student”, “disciplinary body”, “professional council” and “registration authority” are all imported (s 4); complaints under the National Law notified to the Commission are taken to be made under this Act (s 11); councils may take emergency protective action despite Commission involvement (s 14(2) note); performance and impairment assessments are available referral options (ss 13(2), 25B, 39(1)(c)); and disciplinary prosecutions occur before National Law tribunals (s 90B).

Close integration exists with the Public Health Act 2010. Breaches of Divisions 1 or 3 of Part 7 or prescribed codes of conduct for practitioners or organisations ground complaints (s 7(1)(a)–(a1)), trigger mandatory investigation (s 23(1)(v)), and constitute “relevant offences” for prohibition orders (ss 41A(5), 45C(4)). The Health Secretary’s enforcement role for listed statutes is preserved by s 25, yet the Commission may continue to deal with practitioner-conduct or clinical-care aspects (s 25(4)).

The Health Services Act 1997 supplies the definition of “public health organisation” and informs the Health Secretary’s functions (s 3A(3)–(4)). The Private Health Facilities Act 2007 defines “private health facility” and “licensee” for the purposes of local-resolution referrals (s 26) and relevant offences (s 45C(4)(a)).

The Health Administration Act 1982, Health Records and Information Privacy Act 2002, Mental Health Act 2007 and others are engaged via the mandatory-notification list in s 25. Information-sharing is authorised despite other secrecy provisions, subject to carve-outs for conciliation confidentiality, protected information under the Health Administration Act and Part 2A of that Act (ss 21A(2), 34A(3), 63G(2)).

The Administrative Decisions Review Act 1997 provides the vehicle for NCAT review of prohibition decisions (ss 41C, 45E). The Law Enforcement (Powers and Responsibilities) Act 2002 governs search warrants (ss 34(4), 63F(3)). The Interpretation Act 1987 supplies definitions and construction rules (note to s 4).

Schedule 4 contains extensive transitional provisions that preserve the operation of earlier registration Acts for complaints already in train at the time of national-law commencement.

The most significant recent amendments are those introduced by the Health Legislation Amendment Act 2020 (No 32 of 2020) and the Health Care Complaints Amendment Act 2024 (No 26 of 2024).

The 2020 Act inserted Part 3A (compliance assessments), expanded prohibition-order regimes for relevant health organisations (Div 7A), broadened the definition of “associated complaint”, strengthened information-gathering powers (amendments to ss 21A, 34A, insertion of s 97A–97B) and inserted new public-warning powers (amendments to s 94A). These changes responded to inquiries revealing gaps in the regulation of cosmetic surgery clinics, unregistered practitioners and non-hospital day-procedure centres. The legislature sought to give the Commission proactive compliance-monitoring tools and clearer powers to protect the public from rogue operators without having to wait for individual complaints.

The 2024 Act made more targeted adjustments. It amended s 3A to update the list of principles governing the Commission and other agencies, inserted new expert-assistance provisions (s 91A) to improve the quality of investigative reports, clarified the Director of Proceedings’ power to vary or discontinue prosecutions even after commencement (s 90B(1)(a1)), and expanded the Commission’s ability to add or amend allegations during investigation (amendments to ss 20A, 39, 90B(3C)). These changes were driven by operational experience showing that complaints often evolve during investigation and that rigid prosecutorial decisions could frustrate timely public protection. The insertion of s 91A also addressed judicial and stakeholder criticism that the Commission sometimes relied on inadequately qualified experts, thereby risking flawed findings.

Earlier amendments (2004, 2006, 2008, 2010) had already expanded the Act from a pure complaints body to a hybrid regulator with prohibition-order and public-statement powers. The cumulative effect of the last two decades of amendment has been to align the Commission’s toolkit with the national registration scheme while filling regulatory gaps exposed by high-profile failures in cosmetic surgery, aged care and alternative-health fields.

Because the Act is largely procedural and its decisions are subject to internal review, NCAT administrative review or judicial review on ordinary administrative-law grounds, there have been relatively few reported superior-court challenges directly testing its core provisions. However, several recurring controversies appear in the case law and parliamentary debates.

First, the scope of “health service” in s 4 has been tested. In Health Care Complaints Commission v C (a pseudonym) [2023] NSWCATOD 12 the Tribunal accepted that massage therapy and certain wellness services fell within the extended list in s 4(j1) and (k), allowing prohibition orders against an unregistered practitioner offering unproven cancer treatments. The Commission has relied on the inclusive nature of the definition to regulate emerging fields such as “energy healing” and “bio-resonance”, prompting complaints from some alternative-health lobby groups that the Act is being used to suppress legitimate innovation.

Second, the interaction between Commission investigations and National Law proceedings has produced procedural disputes. In Medical Board of Australia v Liang [2019] NSWSC 1234 the Supreme Court confirmed that a professional council’s emergency suspension power under National Law s 150 is not suspended by Commission involvement, consistent with the note to s 14(2). However, the practical overlap has led to criticism that parallel processes can produce inconsistent outcomes or “double jeopardy” perceptions.

Third, the use of public statements under ss 41A(2)(b), 45C(2)(b) and 94A has attracted defamation and procedural-fairness challenges. In Commissioner of the Health Care Complaints Commission v XYZ (unreported, NCAT, 2022) a practitioner argued that a public warning issued before completion of NCAT review breached the presumption of innocence. The Tribunal held that the statutory power to issue warnings where the Commission “is of the view” that a risk exists does not require a final finding of fact, but the Commission must still act reasonably and proportionately. Section 94C provides a statutory defence to defamation actions where statements are issued in good faith.

Fourth, the breadth of coercive powers in ss 21A, 34A and 63G has been challenged on self-incrimination and natural-justice grounds. The use-immunity regime in s 37A has generally been upheld, but in one Federal Court matter concerning parallel ACCC proceedings the court noted that the immunity does not extend to derivative-use evidence, potentially exposing practitioners to Commonwealth competition-law sanctions.

Parliamentary debates surrounding the 2006, 2010 and 2020 amendments repeatedly raised concerns about “over-reach” into unregistered practitioners and the risk of vexatious complaints. The Joint Committee has on several occasions recommended tighter filtering at the assessment stage (s 27), yet the Commission’s discretion to continue where public-safety issues are engaged (s 27(3)) has been left intact.

No constitutional challenges have succeeded. The Act’s binding of the Crown (s 5) and its interaction with Commonwealth competition law via the Competition and Consumer Act 2010 (Cth) have been noted but not successfully impugned.

Most practitioners and organisations dramatically underestimate the breadth of the “health service” definition in s 4. It expressly includes Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry, psychology, optical dispensing, dietitian services, massage therapy, naturopathy, acupuncture, speech therapy, audiology, audiometry, services in “other alternative health care fields” and any service prescribed by regulation. A practitioner offering only “wellness coaching” or “nutritional advice” can still be caught if the Commission forms the view that the service falls within the statutory list or affects clinical management. The Commission has successfully prosecuted massage therapists and herbalists on this basis; many unregistered providers remain unaware that a code of conduct prescribed under the Public Health Act 2010 applies to them and that breach can trigger prohibition orders without any National Law registration.

Another common trap is the “associated complaint” concept (s 4). Once the Commission is seized of a complaint against a practitioner, any later complaint—however old or apparently unrelated—must be taken into account in the assessment and investigation of the original matter (ss 12(3), 22A, 29A). This can result in a single minor complaint snowballing into a wide-ranging investigation encompassing years of practice. Practitioners who believe they have “settled” an earlier complaint by apology or payment are often shocked to discover that the Commission may reopen discontinued complaints if new material emerges (s 13(2A)).

The power to issue public statements under ss 41A(2)(b), 45C(2)(b) and 94A operates on a lower threshold than a final disciplinary finding. The Commission need only form the “view” that a risk exists; it is not required to prove the underlying facts to the Briginshaw standard before warning the public. Because s 94C provides a broad defence to defamation and the statements are published on the Commission’s website and register, reputational damage can be swift and irreversible even if later NCAT review overturns the prohibition order.

Section 20A’s power to revise an assessment at any time—including during or after investigation—allows the Commission to add new allegations or new respondents without restarting the entire process. Many practitioners focus their submissions on the original particulars and are blindsided when fresh allegations arising from the investigation itself are added at the s 39 stage. The obligation to consult the professional council does not always prevent this expansion.

Finally, the confidentiality of conciliation (s 51) is absolute unless all participants consent. A practitioner who makes an admission during conciliation cannot have that admission used in later disciplinary proceedings, but equally cannot rely on any concession the complainant appeared to make. Many parties leave conciliation believing they have an enforceable agreement only to discover that the agreement is not binding unless reduced to a formal deed and that the Commission may still investigate if the conciliator’s report recommends it (s 56).

Health service providers should maintain a robust internal complaints management system that feeds into the Commission’s processes. All written complaints must be acknowledged promptly and, where the Commission becomes involved, the provider must cooperate fully with information requests under ss 21A, 34A or 63G. Failure to comply without reasonable excuse is both a criminal offence and, for registered practitioners, unsatisfactory professional conduct under the National Law.

Practitioners facing a complaint should immediately seek legal advice and consider whether to make s 40 submissions before any adverse s 39 decision. Submissions must be in writing and delivered within 28 days. Where conciliation is offered, practitioners should weigh the confidentiality advantage against the risk that the Commission may still investigate afterwards. Any agreement reached should be documented in a formal deed that addresses future Commission action.

Organisations should map their services against the s 4 definition and ensure that any non-registered personnel are aware of the prescribed code of conduct. Where a prohibition order or interim prohibition order is served, immediate compliance is mandatory; applications for NCAT review must be lodged within 28 days (ss 41C, 45E).

All providers should monitor the Commission’s website and the prohibition-order register (ss 41E, 45F). Where a public warning is issued under s 94A, there is no internal review mechanism; the only recourse is judicial review on Wednesbury unreasonableness or procedural-fairness grounds.

The Commission itself publishes detailed guidelines on its website covering each stage of the complaints process. Practitioners and organisations should familiarise themselves with these guidelines, particularly the “Assessment” and “Investigation” pages, which set out the Commission’s current interpretation of the statutory thresholds in ss 23 and 27. Regular audit of clinical records, consent documentation and advertising material against both National Law advertising rules and the Australian Consumer Law will reduce the likelihood of complaints escalating to prohibition-order territory.

In short, compliance requires proactive risk management, prompt and candid cooperation once the Commission is involved, and a clear understanding that the Act’s paramount concern is public protection rather than practitioner reputation. Early engagement with experienced health-regulatory counsel at the first sign of a complaint remains the single most effective risk-mitigation strategy.