Health Services (Conciliation and Review) Act 1987FILE/87-25a051.docx · Web viewHealth Services (Conciliation and Review) Act 1987No. 25 of 1987. Section. Page. i. ii. 2. 1

Version No. 051

Health Services (Conciliation and Review) Act 1987

No. 25 of 1987

Version incorporating amendments as at 1 July 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 2

1 Purposes 22 Commencement 23 Definitions 24 Objective 7

PART 2—ADMINISTRATION 8

5 Health Services Commissioner 86 Suspension and vacation of office 87 Acting Health Services Commissioner 97A Repealed 107B Superannuation 108 Delegation 109 Functions of Commissioner 1110 Powers of the Commissioner 1311 Reports 1412 Health Services Review Council 1613 Procedure of Health Services Review Council 1814 Functions of Health Services Review Council 19

PART 3—COMPLAINTS 20

15 Who may complain 2016 What may be included in a complaint 2117 How to complain 2218 Representation 2319 Preliminary assessment of complaints 2319A Splitting of complaints 2620 Conciliation 2721 Investigation of complaints 3122 Notices and procedures 33

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23 Commissioner's duty to stop proceedings 3624 Registration boards to give information 38

PART 4—GENERAL 40

25 Commissioner's powers to compel attendance and call for evidence and documents 40

26 Restrictions on Commissioner's powers 4027 Warrants 4128 Offences 4529 False statements 4530 Person not to be penalized because of complaining to

Commissioner 4631 Protection for Commissioner, officers and parties to

proceedings 4632 Confidentiality 4733 Prescribed provider must give certain information 5034 Proceedings for offences 5035 Regulations 5036 Transitional provision—term of appointment of current

Council members 51__________________

SCHEDULE 52

═══════════════

ENDNOTES 53

1. General Information 53

2. Table of Amendments 54

3. Explanatory Details 59

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Version No. 051

Health Services (Conciliation and Review) Act 1987

No. 25 of 1987

Version incorporating amendments as at 1 July 2012

PreambleWHEREAS it is desired to recognise certain guiding principles for providers and users in the Victorian health care system so as to promote—

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

(b) considerate health care; and

(c) respect for the privacy and dignity of persons being given health care; and

(d) the provision of adequate information on services provided or treatment available, in terms which are understandable; and

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

(f) an environment of informed choice in accepting or refusing treatment or participation in education or research programmes; and

* * * * *AND WHEREAS it should be the aim of service providers to satisfy these guiding principles:

AND WHEREAS users of the Victorian health care system should have the option to have their complaints about the system dealt with by an independent and accessible mechanism:

1

Preamble amended by No. 2/2001 s. 105(a).

AND WHEREAS it is proposed by this Act to set up that mechanism, and through it—

(a) to deal with user's complaints; and(b) to suggest ways in which the guiding

principles may be carried out; and

(c) to help service providers to improve the quality of health care.

The Parliament of Victoria therefore enacts as follows:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are—

(a) to provide an independent and accessible review mechanism for users of health services; and

(b) to provide a means for reviewing and improving the quality of health service provision; and

(c) to set out the functions and powers of the Health Services Commissioner.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Definitions

(1) In this Act—

Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal;

2

s. 1

S. 3(1) def. of Australian Industrial Relations Commission inserted by No. 74/2009 s. 14(1).

Commissioner means the Health Services Commissioner under this Act and includes the Acting Health Services Commissioner under this Act;

conciliator means a person employed or authorised under section 20 to perform conciliation functions;

Council means the Health Services Review Council established under section 12;

Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;

guiding principles means the principles set out in paragraphs (a) to (f) of the first recital of the preamble;

health service includes any of the following services—

(a) medical, hospital and nursing services;

(b) dental services;

(c) psychiatric services;

(d) pharmaceutical services;

(e) ambulance services;

(f) community health services;

(g) health education services;

3

S. 3(1) def. of Commiss-ioner substituted by No. 112/1993 s. 13.

S. 3(1) def. of Council inserted by No. 75/2001 s. 4(f).

S. 3(1) def. of Fair Work Australia inserted by No. 74/2009 s. 14(1).

S. 3(1) def. of guiding principles amended by No. 2/2001 s. 105(b).

S. 3(1) def. of health service amended by Nos 42/1991 s. 4(a)(i)-(iii), 46/1998 s. 7(Sch. 1), 18/2000 s. 110(a), 75/2001 s. 4(a)–(c), 29/2010 s. 59(1)(a).

s. 3

(h) welfare and social work services necessary to implement any services referred to in paragraphs (a) to (g);

(ha) therapeutic counselling and psychotherapeutic services;

(hb) laundry, cleaning and catering services, where those services affect health care or treatment of a person using or receiving a service referred to in this definition;

(i) services provided by chiropodists, chiropractors, osteopaths, dietitians, optometrists, audiologists, audiometrists, prosthetists, physiotherapists and psychologists;

(j) services provided by optical dispensers, masseurs, occupational therapists and speech therapists;

(k) services provided by practitioners of naturopathy, acupuncture and in other alternative health care fields;

(ka) services provided by Chinese herbal medicine practitioners, acupuncturists and Chinese herbal dispensers;

(l) a service prescribed as a health service for the purposes of this Act—

and includes any service provided by the Department of Health and the Secretary to the Department of Health;

S. 3(1) def. of Industrial Tribunal amended by Nos 83/1992 s. 184(Sch. 6 item 9(a)(b)), 59/1996 s. 10(Sch. 2 item 9), 46/1998 s. 7(Sch. 1), substituted as industrial tribunal by No. 74/2009 s. 14(2).s. 3

4

s. 3

industrial tribunal means Fair Work Australia or the Australian Industrial Relations Commission;

provider includes—

(a) a person or body providing a health service; and

(ab) a person or body which holds himself, herself or itself out as providing a health service; and

(b) the Secretary to the Department of Health; and

(c) a registered provider; and

(d) a person who manages a health care institution and who is registered, certificated or licensed by the Secretary to the Department of Health; and

(e) a health care institution which is registered, certificated or licensed by the Secretary to the Department of Health; and

(f) any public hospital, private hospital, supported residential service, registered community health centre, ambulance service, psychiatric hospital or clinic, mental health hospital or clinic; and

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S. 3(1) def. of provider amended by Nos 42/1991 s. 4(b), 73/1997s. 7(a)–(c), 46/1998 s. 7(Sch. 1), 75/2001 s. 4(d), 79/2008 s. 3, 29/2010 s. 59(1)(b)–(d).

(fa) a residential care service within the meaning of the Health Services Act 1988; and

(g) the chief executive officer of any body listed in paragraph (f) or (fa); and

(h) any local government body providing a health service; and

(i) a person or organisation that is prescribed as a provider for the purposes of this Act or that is included in a class of persons or organisations prescribed as providers for the purposes of this Act;

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

registration board means a body that is—

(a) a body listed in the Schedule; or

(b) a body prescribed as a registration board for the purposes of this Act;

Secretary to the Department of Health means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;

user means a person who uses or receives or has used or received a health service and includes a person who has made a complaint under section 16(1)(a) that a provider has acted unreasonably by not providing a health service for the person;

Victorian Civil and Administrative Tribunal means the Victorian Civil and Administrative Tribunal established under

6

s. 3

S. 3(1) def. of Secretary to the Department of Health inserted by No. 29/2010 s. 59(1)(e).

S. 3(1) def. of user substituted by No. 75/2001 s. 4(e).

S. 3(1) def. of Victorian Civil and Administra-tive Tribunal inserted by No. 75/2001 s. 4(f).

Part 2 of the Victorian Civil and Administrative Tribunal Act 1998.

(2) This Act does not apply to a health service provided before the commencement of this section.

(3) For the purposes of this Act, a person is not to be regarded as a user merely because he or she has arranged a health service for another user.

(4) If under the Public Administration Act 2004 the name of the Department of Health is changed, a reference in the definitions of health service, provider and Secretary to the Department of Health in subsection (1) to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name.

4 Objective

The objective of this Act is to set up a health services review system that will—

(a) enable users of Victorian health services to have their complaints about those services resolved by an independent and accessible mechanism; and

(b) encourage health service providers to follow the guiding principles; and

(c) lead to improvements in the quality of health care and in the extent to which the guiding principles of providers and users are followed.

__________________

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s. 4

S. 3(4) inserted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 97.1), substituted by No. 29/2010 s. 59(2).

PART 2—ADMINISTRATION

5 Health Services Commissioner

(1) There shall be a Health Services Commissioner.

(2) The Commissioner is to be appointed by the Governor in Council.

(3) The Commissioner is to hold office for a term, not exceeding 5 years, specified in the instrument of his or her appointment, but is eligible for reappointment.

(4) The Governor in Council may specify other terms and conditions of appointment in the Commissioner's instrument of appointment.

(5) The Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.

6 Suspension and vacation of office

(1) The Governor in Council may suspend the Commissioner from office.

(2) The Minister must cause to be laid before each House of Parliament a full statement of the grounds for suspending the Commissioner within 7 days after the suspension if that House is then sitting or, if that House is not then sitting, within 7 days after the day on which that House next sits.

S. 5 substituted by No. 112/1993 s. 14.

s. 5

S. 5(1) amended by No. 2/2001 s. 105(c).


Part 1—Preliminary

Health Services (Conciliation and Review) Act 1987No. 25 of 1987

8

(3) The Commissioner must be removed from office by the Governor in Council if each House of Parliament, within 7 sitting days after the day on which the statement is laid before it, declares by resolution that the Commissioner ought to be removed from office.

(4) Unless each House of Parliament makes a declaration of the kind specified in subsection (3) within the time specified in that subsection the Governor in Council must remove the suspension and restore the Commissioner to office.

(5) The Commissioner can only be removed from office in accordance with subsections (1) to (3).

(6) The Commissioner may resign from office by writing delivered to the Governor.

7 Acting Health Services Commissioner

(1) The Governor in Council may appoint an Acting Health Services Commissioner—

(a) during a vacancy in the office of Commissioner for Health Services; or

(b) during any period when the Commissioner for Health Services is absent or, for any reason, is unable to perform the functions of Commissioner.

(2) An acting appointment is for the period and on any other terms and conditions determined by the Governor in Council.

(3) The Acting Health Services Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.

(4) While acting in the place of the Commissioner of Health Services, the Acting Commissioner has all the powers, functions and duties of the Health Services Commissioner.


s. 7Part 1—Preliminary


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(5) Sections 5 and 6 do not apply to the Acting Health Services Commissioner.

(6) This section does not affect the operation of section 110 of the Public Administration Act 2004 or any corresponding previous enactment.

* * * * *

s. 7BS. 7B inserted by No. 112/1993 s. 14.

7B Superannuation

If immediately before his or her appointment the Commissioner was an officer within the meaning of the State Superannuation Act 1988, then while he or she is Commissioner, he or she continues, subject to that Act, to be an officer within the meaning of that Act.

8 Delegation

The Commissioner may, by instrument, delegate all or any of the powers or functions of the Commissioner under this Act to a person employed for the purposes of this Act or a class of those persons except this power of delegation.

S. 7(6) amended by No. 46/1998 s. 7(Sch. 1), substituted by No. 108/2004 s. 117(1) (Sch. 3 item 97.2).

S. 7A inserted by No. 112/1993 s. 14, substituted by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 97.3), repealed by No. 80/2006 s. 26(Sch. item 49).



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9 Functions of Commissioner

(1) The following are the functions of the Commissioner under this Act—

(a) to investigate complaints relating to health services;

(b) to review and to identify the causes of complaints, and to suggest ways of removing and minimizing those causes;

(c) to investigate any matter referred to the Commissioner by either House of Parliament or by any Committee of either House or both Houses;

(d) to conciliate between users and providers where a complaint has been made;

(e) to consider ways of improving health complaints systems;

(f) to provide advice to the Health Services Review Council;

(fa) to refer issues to the Council for advice;

(g) to take steps to bring to the notice of users and providers details of complaints procedures under this Act;

(h) to develop programmes for the training of health complaints officers and others in the handling of complaints;

(i) to record all complaints received by the Commissioner and to maintain a central register of all such complaints and all

S. 9(1) amended by No. 2/2001 s. 105(d).

S. 9(1)(fa) inserted by No. 75/2001 s. 5(1)(a).



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complaints shown on returns supplied by providers;

(j) to publish at prescribed intervals information about complaints;

(k) to determine what action has been taken by providers where complaints have been found to be justified;

(l) subject to approval from the Minister, to initiate inquiries into—

(i) matters referred by the Health Services Review Council; and

(ii) broader issues of health care arising out of complaints received;

(m) to inquire into matters referred by the Minister;

(n) to suggest ways in which providers may follow the guiding principles;

(na) to provide education and information to providers and users about the prevention and resolution of complaints relating to health services;

(nb) to provide training about the prevention and resolution of complaints relating to health services;

(nc) to conduct research into complaints relating to health services and mechanisms for resolving complaints relating to health services;

(o) to develop, after consultations considered appropriate by the Commissioner with users, providers and persons who, in the Commissioner's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the

S. 9(1)(na) inserted by No. 75/2001 s. 5(1)(b).

S. 9(1)(nb) inserted by No. 75/2001 s. 5(1)(b).

S. 9(1)(nc) inserted by No. 75/2001 s. 5(1)(b).



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Commissioner intends to carry out some or all of the Commissioner's functions.

(2) The Commissioner may do all things necessary to perform the Commissioner's functions.

(3) The Commissioner may perform the Commissioner's functions even though the Commissioner has not developed a code of practice in relation to those functions.

* * * * *

10 Powers of the Commissioner

In performing the Commissioner's functions under this Act, the Commissioner may do any of the following—

(a) consult with such persons or bodies as the Commissioner considers appropriate;

(b) develop, and suggest ways of implementing, procedures for dealing with complaints relating to health services and for making existing procedures more effective in relation to both public and private health services;

(c) provide advice to users on the making of complaints to registration boards;

(d) provide advice to users of other avenues available for dealing with complaints;

(e) provide advice to providers on the making of responses to complaints to registration boards;

(f) encourage the development of quality assurance arrangements throughout the Victorian health care system;

S. 9(3) substituted by No. 75/2001 s. 5(2).

S. 9(4) repealed by No. 75/2001 s. 5(2).

S. 10 amended by No. 2/2001 s. 105(e)(i).



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(g) advise providers, users and the Minister generally on any matter relating to health complaints;1

(ga) encourage providers to distribute, display or make available material and information produced by the Commissioner about the resolution of complaints relating to health services;

(h) assist a registration board if requested to do so by the board;

(i) with the consent of the board or the approval of the Minister, appear or be represented at any proceedings before a registration board and cross-examine or call and examine witnesses and make submissions;

(j) seek information from users and providers about the working of the health complaints system.

11 Reports

(1) The annual report of the Commissioner must contain any information required by the Minister and may contain any information considered by the Commissioner to be appropriate.

(2) The Commissioner may at any time place a report before each House of Parliament on any matter the Commissioner considers necessary arising from an individual complaint or in relation to the Commissioner's operations.

(3) At any time—

(a) either House of Parliament; or

(b) any committee of either or both Houses—

may refer to the Commissioner for investigation any matter which the House or committee

S. 10(g) amended by No. 74/2000 s. 3(Sch. 1 item 60).S. 10(ga) inserted by No. 75/2001 s. 6.



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considers should be investigated by the Commissioner.

(4) If a matter is referred to the Commissioner by either House of Parliament or a committee, the Commissioner must investigate the matter immediately and must 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) A report made by the Commissioner under subsection (1) or (2) may name a person if—

(a) the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen the risk of a serious threat to—

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

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

(b) the person is a provider who has unreasonably failed to take action that has been specified in a notice under section 22(6) to remedy a complaint and has been given a notice under section 22(12).

(6) Before naming a person in a report under subsection (5), the Commissioner must, at least 14 days before naming that person—

(a) notify the person in writing that the Commissioner intends to name that person in a report; and

(b) give the person an opportunity to object to the naming of that person in the report within the period specified in the notice.

S. 11(5) substituted by No. 75/2001 s. 7.

s. 11

S. 11(6) inserted by No. 75/2001 s. 7.



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(7) A report made by the Commissioner under subsection (4) may name any person who is involved with the matter being investigated.

12 Health Services Review Council

(1) There is established a Health Services Review Council.

(2) The Council consists of 11 persons appointed by the Minister.

(3) The members of the Council must include—

(a) three persons who, in the Minister's opinion, have experience of and are able to express the interests of providers; and

(b) three persons who, in the Minister's opinion, have experience of and are able to express the interests of users; and

(c) three persons who, in the Minister's opinion, are not affiliated with any professional association for users or providers or any association which acts as a representative, advocate or adviser for providers or users; and

(d) one is a person who, in the Minister's opinion, has experience of matters affecting the privacy of individuals in relation to health information or is able to express the interests of individuals in relation to such matters; and

(e) one is a person who, in the Minister's opinion, has experience of, or is able to express the interests of, organisations that handle health information.

S. 11(7) inserted by No. 75/2001 s. 7.

s. 12

S. 12(2) amended by No. 2/2001 s. 105(f).

S. 12(3)(c) amended by No. 2/2001 s. 105(g).

S. 12(3)(d) inserted by No. 2/2001 s. 105(g).

S. 12(3)(e) inserted by No. 2/2001 s. 105(g).



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(4) The Minister must invite submissions from the public before making any appointment to the Council.

(5) The Minister must appoint one of the members to be President of the Council.

(6) A member of the Council holds office for the term, not exceeding 3 years, specified in the member's instrument of appointment and is eligible for reappointment.

(6A) A member of the Council must not serve more than 9 consecutive years as a member.

(7) The Minister may at any time remove any member of the Council from office for good cause.

(7A) For the purposes of subsection (7), good cause includes the following—

(a) the member is guilty of misconduct in carrying out the duties of his or her office;

(b) the member is mentally or physically incapable of satisfactorily carrying out the duties of his or her office;

(c) the member has failed to attend 3 consecutive meetings of the Council without leave from the Council;

(d) the member is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence;

(e) the member becomes an insolvent under administration.

(8) Despite the increase in the membership of the Council effected by section 105 of the Health Records Act 2001, the Council is deemed to be

S. 12(6) substituted by No. 79/2008 s. 4.

S. 12(6A) inserted by No. 79/2008 s. 4.


s. 12

S. 12(8) inserted by No. 2/2001 s. 105(h).



17

the same body after the commencement of that section as it was before that commencement.

13 Procedure of Health Services Review Councils. 13

S. 13(1) amended by No. 2/2001 s. 105(i).

(1) A question cannot be decided at a meeting of the Council unless there are at least 6 members present.

(2) The President is to preside at meetings of the Council at which the President is present.

(3) If the President is not present at a meeting, the members present must elect one of their number to preside at the meeting.

(4) The Council must meet at such times and places as the Minister or the President fixes.

(5) Subject to this Act and the regulations, the Council may regulate its own procedure.

(6) The decision of the majority of the members present and voting at any meeting is the decision of the Council. If there is a tied vote, the person presiding at the meeting is to have an additional or casting vote.

(7) If a member of the Council disagrees with a majority of the Council on any decision providing advice to the Minister, the member may require—

(a) that his or her view be recorded with reasons; and

(b) that his or her view and reasons accompany any presentation of the decision to the Minister.



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(8) A member of the Council who is not an employee in the public service is entitled to receive such fees, expenses and allowances as the Minister determines.

14 Functions of Health Services Review Council

(1) The functions of the Council are—

(a) to advise the Minister on the health complaints system and the operations of the Commissioner under this Act and the Health Records Act 2001; and

(b) to advise the Minister and the Commissioner on issues referred to it by the Commissioner; and

(ba) to provide expertise, guidance and advice to the Commissioner; and

(bb) to promote the Commissioner, the operations of the Commissioner and the guiding principles; and

(c) with the Minister's approval, to refer matters relating to health service complaints, or interferences with privacy within the meaning of the Health Records Act 2001, to the Commissioner for inquiry.

(1A) The Council may perform its functions in any manner it thinks fit.

(2) The Commissioner must, if asked by the Council, report to the Council on any matter relating to the

S. 13(8) amended by No. 46/1998 s. 7(Sch. 1).

s. 14

S. 14(1)(a) amended by No. 2/2001 s. 105(j)(i).

S. 14(1)(ba) inserted by No. 75/2001 s. 9(1).

S. 14(1)(bb) inserted by No. 75/2001 s. 9(1).

S. 14(1)(c) amended by No. 2/2001 s. 105(j)(ii).

S. 14(1A) inserted by No. 75/2001 s. 9(2).

S. 14(2) amended by No. 2/2001 s. 105(k).



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operations of the Commissioner under this Act or the Health Records Act 2001.

__________________



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PART 3—COMPLAINTS

15 Who may complain

(1) A user may complain to the Commissioner about any of the matters set out in section 16.

(2) A user may choose a representative to complain to the Commissioner on the user's behalf.

(3) The Commissioner may recognise as a user's representative a person who is not chosen by the user, and may allow that person to complain to the Commissioner on the user's behalf, if, in the Commissioner's opinion, the user is unable to complain to the Commissioner and unable to choose a person to complain on the user's behalf and the person who wishes to represent the user has, in the Commissioner's opinion, a sufficient interest in the subject-matter of the complaint.

(3A) The Commissioner may—

(a) recognise as the representative of a user who has died a person who, in the Commissioner's opinion, has a sufficient interest in the subject-matter of the complaint; and

(b) allow that person to complain to the Commissioner on the user's behalf.

(4) A provider may complain to the Commissioner on behalf of a user about any of the matters set out in section 16 if the provider can satisfy the Commissioner that, because of the user's state of health or general situation, it would be difficult or impossible for the user to make a complaint.

s. 15


S. 15(4) amended by No. 42/1991 s. 5.



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(5) If a complaint relates to a health service to which this Act does not apply the Commissioner may refer the complaint to the appropriate State or Commonwealth organisation or to the Victorian or Commonwealth Ombudsman.

(6) A person who complains to the Commissioner may at any time withdraw the complaint by notifying the Commissioner, and the Commissioner must then stop dealing with the complaint.

16 What may be included in a complaint

(1) A user or a user's representative may complain to the Commissioner if the complaint is that—

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

(b) a provider has acted unreasonably in the manner of providing a health service for the user; or

(c) a provider has acted unreasonably in providing a health service for the user; or

* * * * *

(f) a public or private health care institution has acted unreasonably by not properly investigating, or not taking proper action upon, a complaint made to the institution by a user about a provider's action which is of a kind mentioned in paragraphs (a) to (c).

s. 16

S. 16(1)(d)(e) repealed by No. 2/2001 s. 105(l)(i).

S. 16(1)(f) amended by No. 2/2001 s. 105(l)(ii).



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(2) A complaint may be made under subsection (1) if the complaint is that a provider has acted unreasonably in any of the ways set out in that subsection by not following the guiding principles, but that subsection is not limited to those kinds of complaints.

(3) A complaint cannot be made under subsection (1) if the complaint concerns a matter that could be the subject of a complaint under the Health Records Act 2001.

(4) A complaint may be made under subsection (1) by a user's representative in relation to a user who has died whether it is alleged in the complaint that the provider acted unreasonably during the lifetime or after the death of the user.

17 How to complain

(1) A person may complain to the Commissioner orally or in writing.

(2) If the Commissioner receives an oral complaint the Commissioner must require the person who made it to confirm it in writing unless the person satisfies the Commissioner that there is good reason why the complaint should not be confirmed in writing.

(3) The Commissioner may ask a person who complains to the Commissioner to give more information about the complaint within a time fixed by the Commissioner.

(4) A person may complain to the Commissioner in person, by telephone or by sending a letter of complaint to the Commissioner.

(5) A person who complains to the Commissioner must give his or her name to the Commissioner and such other information relating to the person's identity as the Commissioner may require.

S. 16(3) inserted by No. 2/2001 s. 105(m).

S. 16(4) inserted by No. 75/2001 s. 10(2).



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(6) The Commissioner may choose to keep information given to the Commissioner under subsection (5) confidential if there are special circumstances and the Commissioner thinks it is in the complainant's interest to do so.

18 Representation

(1) Neither a person who complains to the Commissioner nor a provider may be represented by another person during the conciliation process unless in the Commissioner's opinion the process will not work effectively without that representation.

(2) A person required to appear before, or to produce documents to the Commissioner during the investigation of a complaint may be represented by another person.

19 Preliminary assessment of complaints

(1) The Commissioner must reject a complaint which in the Commissioner's opinion is frivolous, vexatious, misconceived or lacking in substance or does not warrant investigation.

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

(3) The Commissioner must reject a complaint about an incident which occurred more than 12 months before the complaint is made if in the Commissioner's opinion the person who made the complaint has not shown good reason for the delay.

s. 18

S. 19(1) amended by No. 75/2001 s. 11(1).

S. 19(2) amended by Nos 75/2001 s. 11(2)(a)–(c), 77/2008 s. 129(Sch. 2 item 11).



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(4) The Commissioner may reject a complaint if, when asked, the person who complained to the Commissioner does not—

(a) confirm the complaint in writing; or

(b) give more information about the complaint within the time fixed by the Commissioner; or

(c) give the Commissioner more information concerning the person's identity.

(5) The Commissioner must not refer a complaint for conciliation or investigate a complaint unless the Commissioner is satisfied that the user has taken all reasonable steps or, if the complaint was made on the user's behalf, all reasonable steps have been taken on the user's behalf, to resolve the matter with the provider.

(6) If a complaint relates to a registered provider the Commissioner must refer the complaint to the appropriate registration board if after consultation with the provider's registration board the Commissioner considers that the board has power to resolve or deal with the matter and the matter is not suitable for conciliation under this Act.

(7) If a complaint raises issues which, in the Commissioner's opinion, require investigation by another person, organisation or agency, the Commissioner may refer the complaint to the appropriate person, organisation or agency.

(7A) If the Commissioner refers a complaint under subsection (6) or (7), the Commissioner may also refer any information that, in the Commissioner's opinion, is relevant to the complaint to the registration board or appropriate person, organisation or agency (as the case requires).

s. 19




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(8) Within 28 days after receiving a complaint or within a further period fixed under subsection (9AA) or a further period fixed under subsection (9A), the Commissioner must decide whether, and to what extent—

(a) to accept it; or

(b) to reject it; or

(c) to refer it to a registration board or to a person, organisation or agency.

(9) To enable the Commissioner to make a decision under subsection (8) the Commissioner may make such inquiries as the Commissioner considers appropriate, but in doing so the Commissioner cannot exercise any of the Commissioner's powers—

(a) to compel persons to answer questions or produce documents; or

(b) to enter premises.

(9AA) If the Commissioner considers that a further period would allow for the resolution of the matter in accordance with subsection (5), the Commissioner may fix a period of not more than 28 days for the purposes of subsection (8).

(9A) If the Commissioner considers that—

(a) a complaint is unduly complex; or

(b) a complaint can be satisfactorily resolved within a further period fixed by the Commissioner—

the Commissioner may fix a further period of not more than 28 days for the purposes of subsection (8).

S. 19(8) amended by Nos 42/1991 s. 6(1), 75/2001 s. 11(4).

s. 19

S. 19(9AA) inserted by No. 75/2001 s. 11(5).




26

(10) If the Commissioner decides to accept a complaint in whole or in part, and if, in the Commissioner's opinion, the complaint is suitable for conciliation, the Commissioner must without delay refer it for conciliation.

19A Splitting of complaints

(1) If a complaint—

(a) deals with more than one subject-matter; or

(b) deals with more than one set of circumstances; or

(c) makes allegations against more than one provider; or

(d) makes more than one allegation against a provider; or

(e) for any other reason is suitable to be dealt with in separate parts—

the Commissioner—

(f) may if it is administratively convenient to do so; or

(g) must if it is in the best interests of the user to do so—

determine that any subject-matter, set of circumstances, allegation or part of a complaint, as the case requires, be treated as a separate complaint.

(2) The Commissioner must not make a determination under subsection (1) unless he or she is satisfied that any attempt at conciliation is unlikely to be prejudiced by the making of the determination.

S. 19A inserted by No. 75/2001 s. 12.

s. 19APart 1—Preliminary


27

20 Conciliation

(1) Conciliation functions under this Act may only be performed by a person—

(a) employed for the purposes of this Act to perform those functions; or

(b) employed for the purposes of this Act and authorised in writing by the Commissioner to perform those functions.

(2) A conciliator must not perform any function under this Act except a conciliation function or the function of assisting the Commissioner to perform the Commissioner's functions under section 9(1)(b), (e), (f), (g), (h), (i), (n), (na), (nb), (nc) or (o).

(3) A person must not perform a conciliation function under this Act unless the person is a conciliator.

(4) On referring a complaint for conciliation the Commissioner must assign one of the conciliators who is to conduct the conciliation process.

(4A) If the Commissioner thinks it appropriate to do so, the Commissioner may assign additional conciliators to assist a conciliator assigned to conduct a conciliation process.

(5) A conciliator's function is to encourage the settlement of the complaint by—

(a) arranging for 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

(c) if possible, assisting the provider and the person who made the complaint to reach agreement.

s. 20

S. 20(2) amended by No. 75/2001 s. 13(1).




28

(6) The conciliator must make reports to the Commissioner upon the progress and results of the conciliation process and in those reports—

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

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

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

(ii) make no recommendation; or

(iia) recommend that conciliation should continue; or

(iib) recommend that the Commissioner stop dealing with the complaint; or

(iii) recommend that the Commissioner should not investigate the matter—

but may not make any other recommendation.

(6A) A report under subsection (6) on the progress of the conciliation process must be provided to the Commissioner during the conciliation process at the time or times requested by the Commissioner.

(7) On the same day as a conciliator makes a report to the Commissioner under subsection (6) the conciliator must give a copy of the report to the provider and the user concerned.

(8) If the Commissioner considers that a complaint which relates to a registered provider and has been referred for conciliation cannot be resolved through the conciliation process and that the provider's registration board has power to resolve or deal with the matter, the Commissioner must

S. 20(6)(b)(iia) inserted by No. 75/2001 s. 13(2).

S. 20(6)(b)(iib) inserted by No. 75/2001 s. 13(2).

s. 20




29

without delay refer the complaint to the registration board.

(9) If a conciliator recommends that a complaint should not proceed to investigation, the Commissioner must not—

(a) investigate the complaint; or

(b) refer it again for conciliation; or

(c) deal with it in any other way authorised by this Act—

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

(10) If a conciliator recommends that conciliation should continue, the Commissioner must refer the complaint again for conciliation.

(10A) If a conciliator makes a recommendation other than a recommendation referred to in subsection (9) or (10), the Commissioner may—

(a) investigate the complaint; or

(b) refer it again for conciliation; or

(c) stop dealing with the complaint if the Commissioner is of the view that—

(i) the complaint cannot be conciliated; and

(ii) no further action is warranted; or

(d) deal with it in any other way authorised by this Act.

(10B) The Commissioner may stop dealing with a complaint, whether or not a recommendation of a conciliator has been made, if the Commissioner is of the view that—

(a) the complaint cannot be conciliated; and

(b) no further action is warranted.



s. 20

S. 20(10B) inserted by No. 75/2001 s. 13(4).



30

(11) At any time after the Commissioner has received a complaint the person who made it and the provider may resolve the matter by agreement, whether through the conciliation process or not.

(12) If a person who made a complaint and the provider have resolved the matter by agreement and the Commissioner becomes aware that the complaint has been resolved the Commissioner must stop dealing with the complaint under this Act.

(13) If the person who made a complaint and the provider resolve the matter by agreement the person who made the complaint must without delay give notice of the fact to the Commissioner.

(13A) The Commissioner may re-open any complaint that the Commissioner has stopped dealing with under subsection (10A) or (10B) if—

(a) the user has provided new or additional information; and

(b) in the Commissioner's opinion, the user is able to show good reason as to why the information was not previously provided.

(13B) A conciliator may discuss any matter arising in relation to the performance of his or her functions as a conciliator under this Act with any other conciliator.

(14) 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 Commissioner as a ground for exercising a power of investigation or inquiry.


s. 20




31

(15) A conciliator must not disclose information gained during the conciliation process or gained from another conciliator—

(a) in any further conciliation process; or

(b) to any person employed for the purposes of this Act—

except for the purposes of—

(c) reporting to the Commissioner under this section; or

(d) discussing a matter with another conciliator in accordance with subsection (13B).

Penalty:10 penalty units.

21 Investigation of complaints

(1) The Commissioner may investigate—

(a) a complaint which the Commissioner has decided to accept if, in the Commissioner's opinion, the complaint is not suitable for conciliation; or

(b) a complaint which under section 20 the Commissioner may investigate—

and decide whether or not the complaint is justified.

(2) In deciding whether the provider has acted unreasonably in the way set out in the complaint, the Commissioner must consider any failure by the provider to follow the guiding principles and the extent to which that failure is also a failure to meet what are, in the Commissioner's opinion, generally accepted standards for health care delivery by providers of that kind.




32

(3) In conducting an investigation—

(a) the Commissioner's procedure is in the Commissioner's discretion; and

(b) the Commissioner must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and proper investigation of the matter permit; and

(c) the Commissioner 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

(d) the Commissioner is bound by the rules of natural justice.

(4) If in the Commissioner's opinion the person who made the complaint and the provider cannot resolve the complaint and after investigating the complaint the Commissioner decides that the complaint is justified, the Commissioner must decide what action should be taken to remedy the complaint.

(5) If the Commissioner decides that a complaint is justified the Commissioner must give the appropriate notice under section 22.

(6) The Commissioner must not decide whether a complaint is justified or what action is to be taken in a way which conflicts with the provisions of any Act, or subordinate instrument or any rule of law or practice.

(7) If, in the course of investigating a complaint, the Commissioner decides the complaint is suitable for conciliation, the Commissioner must, without delay, refer the complaint for conciliation.

s. 21

S. 21(7) inserted by No. 75/2001 s. 14.



33

22 Notices and proceduress. 22

S. 22(1) amended by No. 42/1991 s. 8(1).

(1) Unless subsection (5A) applies, within 14 days after referring a complaint about a registered provider to a registration board, the Commissioner must give written notice of the referral to the provider.

(2) If the Commissioner has referred a complaint to a registration board, the Commissioner must give to the provider and the user a copy of each written communication which the Commissioner gives to the board concerning the complaint including a copy of any information referred to the registration board, on the same day on which the Commissioner gives the communication to the board.

(3) Unless subsection (5A) applies, within 14 days after deciding to accept a complaint the Commissioner must give written notice of that decision to the provider concerned.

(4) Unless subsection (5A) applies, within 14 days after the Commissioner refers a complaint for conciliation the conciliator must give written notice of that decision to the provider and the person who made the complaint, and must include in the notice details of the arrangements made for conciliation discussions between the provider and that person, and must state in the notice that a provider may make submissions to the conciliator.

(5) Unless subsection (5A) applies, within 14 days after starting to investigate a complaint the Commissioner must give written notice of the decision to investigate (including details of the complaint) to the provider to whom the complaint relates.

S. 22(2) amended by No. 75/2001 s. 15(1).

S. 22(3) amended by No. 42/1991 s. 8(1).

S. 22(4) amended by No. 42/1991 s. 8(1).

S. 22(5) amended by No. 42/1991 s. 8(1).



34

(5A) Where the Commissioner is of the opinion that if a notice or document under this section is given to a provider—

(a) the health or safety of the user may be put at risk; or

(b) the proper investigation of the complaint would be prejudiced—

and the Minister approves the deferral of notice, the Commissioner need not comply with subsections (1), (3), (4) and (5).

(5B) If subsection (5A) applies, the Commissioner must give written notice to the provider without delay after the Commissioner is satisfied that—

(a) the risk is at an end; or

(b) there is no further likelihood of prejudice to the proper investigation of the complaint—

but in any case not later than 6 months after the complaint was made or, if the investigation ends before that time, before the end of the investigation.

(6) Within 14 days after deciding whether or not a complaint is justified the Commissioner must give written notice of the decision (including the reasons for the decision and any action which the Commissioner considers ought to be taken to remedy the complaint) to the user and the provider.

(6A) A notice under subsection (6) must also advise the user and the provider that the Commissioner may conduct an inquiry into what action the provider has taken upon a complaint.



s. 22




35

(7) In the case of a registered provider the Commissioner may give a copy of a notice under subsection (5) to the appropriate registration board if the Commissioner thinks it appropriate to do so and must, if the Commissioner decides to do this, notify the provider in writing.

(8) If asked by the Minister, the Commissioner must give a copy of a notice under subsection (5) to the Minister.

(9) Within 45 days after a provider receives notice under subsection (6), or before the end of any extension of time granted by the Commissioner, the provider must report in writing to the Commissioner about what action the provider has taken upon the complaint.


(10) Within the 45 day period mentioned in subsection (9) or a period specified in a notice given under subsection (12), a provider may ask the Commissioner to extend the time within which the provider must report or produce information (as the case requires) to the Commissioner.

(11) If asked under subsection (10), the Commissioner may extend the time within which the provider must report or produce information (as the case requires) by no more than 15 days.

(12) After the 45 day period referred to in subsection (9) (or if an extension of time has been granted by the Commissioner, at the end of the period of that extension) the Commissioner may, by notice in writing, require a provider to produce to the Commissioner information about what action the provider has taken upon the complaint, including action to remedy the complaint within the period specified in the notice.

S. 22(9) amended by No. 75/2001 s. 15(3).

s. 22

S. 22(10) amended by No. 75/2001 s. 15(4)(a)(i)(ii).

S. 22(11) amended by No. 75/2001 s. 15(4)(b).

S. 22(12) inserted by No. 75/2001 s. 15(5).



36

(13) The Commissioner may require a provider to produce information by a notice given under subsection (12)—

(a) in addition to any report received by the Commissioner under subsection (9) or even if no report has been received under subsection (9); and

(b) any number of times until the Commissioner is satisfied that the provider has taken appropriate action to remedy the complaint.

(14) A provider must comply with a notice given under subsection (12) within the period specified in the notice.


(15) The Commissioner may conduct an inquiry into what action the provider has taken upon a complaint, including action taken to remedy the complaint, following a notice of a decision under section 22(6) requiring such action.

23 Commissioner's duty to stop proceedings

(1) The Commissioner must stop dealing with an issue raised in a complaint if—

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

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

(c) the Commissioner considers that the issue should properly be dealt with by a court or the Victorian Civil and Administrative Tribunal or a registration board.

S. 22(13) inserted by No. 75/2001 s. 15(5).

S. 22(14) inserted by No. 75/2001 s. 15(5).

S. 22(15) inserted by No. 75/2001 s. 15(5).

s. 23

S. 23(1)(c) amended by No. 75/2001 s. 16.



37

(2) Within 14 days after stopping dealing with a complaint under subsection (1) the Commissioner must give written notice of the fact to the user and the provider.

(2A) Despite subsection (1)(a), the Commissioner may, with the consent of—

(a) the user or the person who complained to the Commissioner; and

(b) the provider—

continue dealing with the matter, but only by referring it to conciliation.

(2B) Where subsection (2A) applies, the Commissioner must stop dealing with the matter when the Commissioner becomes aware that a court has commenced to hear a proceeding relating to the complaint.

(3) If the Commissioner has stopped dealing with an issue raised in a complaint and later becomes aware that the user or the provider has withdrawn legal proceedings relating to the complaint, the Commissioner may, with the consent of the user or the person who complained to the Commissioner, re-open proceedings under this Act.

(4) The Commissioner must stop dealing with a complaint about a registered provider which the Commissioner has referred to the appropriate registration board unless the board asks the Commissioner to continue dealing with the matter, or unless the Minister has referred the matter to the Commissioner for inquiry.


s. 23

S. 23(2B) inserted by No. 42/1991 s. 9.



38

24 Registration boards to give information

(1) If, in the exercise of its powers, a registration board investigates or deals with a complaint concerning the provision of a health service by a provider the board must report to the Commissioner—

(a) at such times as the Commissioner specifies by written notice given to the board; and

(b) at such other times as the board considers necessary to keep the Commissioner informed—

about the progress and results of its proceedings.

(2) A registration board must include in a report under subsection (1)—

(a) details of the nature of the complaint; and

(b) details of responses or submissions which the provider makes to the board; and

(c) details of the board's decision on the complaint; and

(d) such other information as the Commissioner by written notice given to the board requires the board to include.

(3) Before a registration board deals with a complaint about any of the matters set out in section 16, the board must give a copy of the complaint to the Commissioner.

(4) If a complaint relates to any of the matters set out in section 16, the registration board and the Commissioner may agree that the complaint is suitable for conciliation under this Act.

(5) If the registration board and the Commissioner agree that the complaint is suitable for conciliation, the complaint is to be treated as if it were a complaint under this Act.

s. 24

S. 24(3) inserted by No. 42/1991 s. 10.

S. 24(4) inserted by No. 42/1991 s. 10.

S. 24(5) inserted by No. 42/1991 s. 10.



39

(6) If the registration board and the Commissioner do not agree that the complaint is suitable for conciliation, the board may continue dealing with the complaint.

(7) Before accepting, or referring to an authority other than a registration board, a complaint about a registered provider, the Commissioner must give a copy of the complaint to the appropriate registration board.

s. 24

S. 24(6) inserted by No. 42/1991 s. 10.

S. 24(7) inserted by No. 42/1991 s. 10.



40

S. 24(8) inserted by No. 42/1991 s. 10.

(8) The giving by the Commissioner to a registration board of a copy of a complaint under subsection (7) must not be taken to be a complaint to, or a referral of the complaint to, the board for the purposes of this or any other Act and the information provided must not be used by the board as the basis for any investigation, inquiry into, or other action relating to, the complaint unless the complaint is referred to that board under section 19(6).

__________________



41

PART 4—GENERAL

25 Commissioner's powers to compel attendance and call for evidence and documents

Sections 14, 15 and 16 of the Evidence (Miscellaneous Provisions) Act 1958 apply to—

(a) the Commissioner's investigation of a complaint; and

(ab) the Commissioner's inquiries into actions taken by a provider following a notice of a decision under section 22(6) requiring action to be taken; and

(ac) the Commissioner's inquiries pursuant to section 9(1)(l); and

(b) the Commissioner's inquiries into matters referred to the Commissioner by the Minister—

as if the Commissioner were a board appointed by the Governor in Council.

26 Restrictions on Commissioner's powers

(1) The Commissioner cannot exercise the powers under section 25 while a complaint is being dealt with by a conciliator.

(2) Nothing in section 25 or the provisions of the Evidence (Miscellaneous Provisions) Act 1958 applied by that section prevents a person from—

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

S. 25 amended by No. 69/2009 s. 54(Sch. Pt 2 item 26).

s. 25

S. 25(ab) inserted by No. 75/2001 s. 17.

S. 25(ac) inserted by No. 75/2001 s. 17.

S. 26(2) amended by No. 69/2009 s. 54(Sch. Pt 2 item 26).

S. 26(2)(a) amended by No. 69/2009 s. 54(Sch. Pt 1 item 31).



42

(b) refusing to answer a question or produce a document if the answer, or the information in the document, would tend to incriminate the person; or

(c) refusing to answer a question which relates to medical records or to produce medical records unless—

(i) those medical records relate to the subject-matter of the complaint; and

(ii) the person to whom the records relate has consented to the disclosure of information in the records.

27 Warrants

(1) The Commissioner may apply to a magistrate for a warrant to be issued under this section in respect of premises.

(2) An application for a warrant—

(a) must be in writing; and

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

(c) must describe the premises which are to be entered; and

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

(3) A magistrate may require the Commissioner 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 the application does not comply with this section or if, when required to do so by the magistrate, the Commissioner does not give to the magistrate more information about the application.



43

(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.

(6) A magistrate to whom an application is made under this section may, if satisfied that there are reasonable grounds for believing that entry and inspection of the premises are necessary to enable the Commissioner to investigate a complaint under this Act, issue a warrant authorising the Commissioner, or a person other than a conciliator employed for the purposes of this Act and named in the warrant—

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

(b) if the application for a warrant describes a class of persons whom it is proposed to examine, to examine a person who is a member of that class, with the consent of that person or, if that person is unable to consent, with the consent of that person's representative recognized under section 15(3); and

(c) to require a person on the premises to answer questions or produce documents in the person's possession concerning the complaint; and

(d) to inspect and take copies of or extracts from documents produced in compliance with a requirement made under paragraph (c).



44

(7) 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

(c) a general description of the classes of persons (if any) who may be examined; and

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

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

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

(10) Nothing in this section or in section 28, or a warrant issued under this section or a requirement made in executing a warrant prevents a person from—

(a) refusing to answer a question or produce a document because the answer would relate to or the documents contain information in respect of which the person claims legal professional privilege or client legal privilege; or

(b) refusing to answer a question or produce a document, if the answer or the information in the document would tend to incriminate the person; or

(c) refusing to answer a question which relates to medical records, or to produce medical records, unless—

s. 27

S. 27(10)(a) amended by No. 69/2009 s. 54(Sch. Pt 1 item 31).



45

(i) those medical records relate to the subject-matter of the complaint; and

(ii) the person to whom the records relate has consented to the disclosure of the information in the records.

(11) A warrant ceases to have effect—

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

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

(c) when it is executed—

whichever occurs first.

(12) The person to whom a warrant is issued must give a report in writing to the magistrate who issued the warrant—

(a) stating whether or not the warrant was executed; and

(b) if the warrant was executed, setting out the results of the execution of the warrant; and

(c) if the warrant was not executed, setting out reasons why the warrant was not executed.

(13) A report under subsection (12) must be made within 10 days after the warrant is executed or expires, whichever occurs first.

(14) If the magistrate who issued the warrant has died, has ceased to be a magistrate or is absent—

(a) the report under subsection (12) may be given to; or

(b) the warrant may be withdrawn by—

another magistrate.

(15) This section does not limit the provisions of any other Act relating to warrants.



46

28 Offences

(1) A provider and a provider's officers, employees and agents must give the Commissioner or a person executing a warrant all the assistance which the Commissioner or person needs and they are able to give to help the Commissioner or person to execute a warrant under this Act.


(2) A person who assaults or obstructs the Commissioner or a person executing a warrant in executing a warrant under this Act is guilty of an offence.


(3) A person who, without reasonable excuse after being told by the Commissioner or a person executing a warrant what are the person's obligations in relation to the execution of a warrant—

(a) does not answer a question asked by, or produce a document required by the person executing the warrant; or

(b) in answer to a question gives information which the person knows to be false or misleading—

is guilty of an offence.


29 False statements

A person who makes a statement in a complaint, report or return under this Act which the person knows to be false or misleading in a material respect is guilty of an offence.




47

30 Person not to be penalized because of complaining to Commissioner

A person who—

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

(b) refuses to employ or dismisses another person or subjects another person to any detriment, because the other person intends to complain, or has complained, to the Commissioner, or intends to take part, is taking part, or has taken part, in discussions with or proceedings before the Commissioner—

is guilty of an offence.


31 Protection for Commissioner, officers and parties to proceedings

(1) Section 21A of the Evidence (Miscellaneous Provisions) Act 1958 applies to conciliation and investigation proceedings and inquiries under this Act and the reports of the Commissioner as if the Commissioner or the Commissioner's delegate or a conciliator were a board appointed by the Governor in Council.

(2) A proceeding or purported proceeding or a decision or purported decision of the Commissioner, the Commissioner's delegate or a conciliator cannot be quashed, declared invalid, reviewed, appealed against, challenged or otherwise called in question unless it is a proceeding or purported proceeding or decision or

s. 30

S. 31(1) amended by No. 69/2009 s. 54(Sch. Pt 2 item 26).



48

purported decision in exercise of the powers of investigation or inquiry conferred by this Act.

32 Confidentiality

(1) In this section—

confidential information means information gained because of a person's position and includes a return prepared under section 33 but does not include information to which section 90 of the Health Records Act 2001 applies gained because of a person's position, other than a position as a member of the Health Services Review Council;

position means any of the following—

(a) position as the Commissioner;

(aa) position as an officer or employee on the Commissioner's staff;

(b) position as the Commissioner's delegate or a conciliator or a person employed for the purposes of this Act;

(c) position as a participant in conciliation, inquiry or investigation proceedings under this Act, whether as principal or agent;

(d) position as a person or body to whom the Commissioner refers a complaint;

(e) position as a person who has received a copy of a notice under section 22; and

(f) position as a member of the Council.

(2) A person who holds or has held a position must not, except to the extent necessary for the purposes of this Act or to carry out official duties, powers or functions under this Act, another Act or a subordinate instrument, record, disclose,

s. 32

S. 32(1) def. of confidential information amended by Nos 42/1991 s. 11(a), 2/2001 s. 105(n).

S. 32(1) def. of position amended by Nos 42/1991 s. 11(b), 75/2001 s. 18(1)(a)(b).



49

communicate or make use of confidential information.


(2A) Despite anything to the contrary in section 12 of the Audit Act 1994, subsection (2) of this section applies to a conciliator in relation to confidential information gained by the conciliator while performing conciliation functions under section 20.

(3) In subsection (2) disclose or communicate includes giving evidence or producing a document to a court, if the evidence or document contains confidential information.

(4) Subsection (2) does not apply to a person who discloses or communicates confidential information if the disclosure or communication is—

(a) in accordance with the written authority of—

(i) the Minister, if the Minister is satisfied that the disclosure or communication is in the public interest; or

(ii) the user and the provider to whom the information relates; or

(b) for the purposes of proceedings for an offence under this Act or any other criminal proceedings.

(4A) A person who holds or who has held a position must not be required—

(a) to produce in court a document containing confidential information or permit a court to access such a document; or

(b) to disclose or communicate confidential information to a court—

unless it is necessary to do so—

S. 32(2A) inserted by No. 42/1993 s. 69, amended by No. 75/2001 s. 18(2)(a).

S. 32(3) amended by No. 75/2001 s. 18(2)(b).


s. 32




50

(c) for the purposes of proceedings for an offence under this Act; or

(d) in the case of a person referred to in paragraphs (c) to (f) of the definition of position in subsection (1), for the purposes of any other criminal proceedings.

(5) Subsection (4) does not apply to confidential information gained because of a person's position as a conciliator.

(5A) Nothing in subsection (4A) requires a person—

(a) to produce in court a document containing confidential information gained because of the person's position as a conciliator or permit a court to access such a document; or

(b) to disclose or communicate confidential information gained because of the person's position as a conciliator to a court.

(5B) The Commissioner may disclose or communicate confidential information received by the Commissioner, other than confidential information relating to a complaint—

(a) if the person who provided the information consents to that disclosure or communication; or

(b) with the written authority of the Minister, if the Minister is satisfied that the disclosure or communication is in the public interest.

(6) A document which contains confidential information included in a return under section 33 or gained during conciliation proceedings under this Act is an exempt document within the meaning of section 38 of the Freedom of Information Act 1982.

(7) Subsection (6) does not limit the operation of section 38 of the Freedom of Information Act


s. 32


S. 32(6) amended by No. 42/1991 s. 11(c).



51

1982.

33 Prescribed provider must give certain information

Within the prescribed time after the end of each financial year or any other period specified in writing by the Commissioner and published in the Government Gazette a prescribed provider or a provider that is a member of a prescribed class of providers must give to the Commissioner a return in the form prescribed for providers of that class concerning complaints received and action taken by the provider during the financial year or the period specified by the Commissioner.


34 Proceedings for offences

The Commissioner may take proceedings for offences against this Act.

35 Regulations

(1) The Governor in Council may make regulations for or with respect to—

(a) the procedure of the Health Services Review Council under this Act; and

(b) conciliation, investigation and other proceedings under this Act; and

(c) the procedure of the Commissioner in carrying out the Commissioner's functions and powers; and

(d) complaints reports returns notices and information provided for in this Act; and

(e) prescribing forms; and

(f) 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.

S. 33 amended by No. 75/2001 s. 19(a)(b).



52

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstances; and

(c) may confer or impose powers, discretions or duties on the Commissioner, an employee in the public service or any other person; and

(d) may apply, adopt or incorporate by reference a Code of Practice developed by the Commissioner under this Act either as in force at the date when the regulations are made or as amended from time to time.

S. 36 repealed by No. 69/1990 s. 3, new s. 36 inserted by No. 79/2008 s. 5.s. 36

36 Transitional provision—term of appointment of current Council members

Despite section 12(6A), a member of the Council appointed under section 12(2) before the commencement of section 4 of the Health Services Amendment Act 2008 continues to hold office for the term specified in the instrument of appointment whether or not the person at the end of that term will have served for more than 9 consecutive years as a member of the Council.

__________________

S. 35(2)(c) amended by No. 46/1998 s. 7(Sch. 1).



53

SCHEDULE

1. A National Board established under the Health Practitioner Regulation National Law.

═══════════════

S. 3(1).Sch. amended by Nos 60/1987 s. 49(2)(Sch. item 3), 76/1990 s. 8, 124/1993 s. 4(5), 23/1994 s. 117, 56/1996 s. 101, 63/1996 s. 97, 75/1996 s. 95, 78/1997s. 97(Sch. item 2.1(a)(b)), 26/1999 s. 107(Sch. item 5), 18/2000 s. 110(b), substituted by Nos 13/2010 s. 51(Sch. item 30), 27/2012 s. 21.

Sch. Part 1—Preliminary


54

ENDNOTES

1. General InformationMinister's second reading speech

Legislative Assembly: 26 February 1987

Legislative Council: 24 March 1987

The long title for the Bill for this Act was "A Bill to provide for an independent and accessible review mechanism for users of health services and for other purposes.".

The Health Services (Conciliation and Review) Act 1987 was assented to on 12 May 1987 and came into operation on 24 March 1988: Special Gazette (No. 20) 24 March 1988 page 1.

EndnotesPart 1—Preliminary


55

2. Table of AmendmentsThis Version incorporates amendments made to the Health Services (Conciliation and Review) Act 1987 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Psychologists Registration Act 1987, No. 60/1987Assent Date: 27.10.87Commencement Date: Ss 1–11 on 16.10.88: Government Gazette 12.10.88

p. 3058; rest of Act on 30.12.95: Government Gazette 21.12.95 p. 3571

Current State: All of Act in operation

Health Services (Conciliation and Review) (Amendment) Act 1990, No. 69/1990Assent Date: 4.12.90Commencement Date: 4.12.90Current State: All of Act in operation

Health (Radiographers) Act 1990, No. 76/1990Assent Date: 4.12.90Commencement Date: 1.3.97: Government Gazette 27.2.97 p. 434Current State: All of Act in operation

Health Services (Conciliation and Review) (Further Amendment) Act 1991, No. 42/1991

Assent Date: 18.6.91Commencement Date: All of Act (except s. 10) on 18.6.91: s. 2(1); s. 10 on

1.4.92: Government Gazette 25.3.92 p. 667Current State: All of Act in operation

Employee Relations Act 1992, No. 83/1992Assent Date: 24.11.92Commencement Date: S. 184(Sch. 6 items 9(a)(b)) on 1.3.93: Special Gazette

(No. 63) 27.11.92 p. 1Current State: This information relates only to the provision/s

amending the Health Services (Conciliation and Review) Act 1987

Health and Community Services (General Amendment) Act 1993, No. 42/1993Assent Date: 1.6.93Commencement Date: S. 69 on 1.10.93: Government Gazette 16.9.93 p. 2548Current State: This information relates only to the provision/s


Health Services (Amendment) Act 1993, No. 112/1993Assent Date: 7.12.93Commencement Date: 7.12.93Current State: All of Act in operation



56

Health and Community Services (Further Amendment) Act 1993, No. 124/1993Assent Date: 7.12.93Commencement Date: All of Act (except Pt 3 (ss 4-8)) on 7.12.93: s. 2(1);

Pt 3 on 18.12.94: Government Gazette 15.12.94 p. 3308

Current State: All of Act in operation

Medical Practice Act 1994, No. 23/1994Assent Date: 17.5.94Commencement Date: Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94:

Government Gazette 23.6.94 p. 1672Current State: All of Act in operation

Optometrists Registration Act 1996, No. 56/1996Assent Date: 10.12.96Commencement Date: S. 101 on 1.7.97: s. 2(3)Current State: This information relates only to the provision/s


Commonwealth Powers (Industrial Relations) Act 1996, No. 59/1996Assent Date: 12.12.96Commencement Date: S. 10(Sch. 2 item 9) on 1.1.97: Special Gazette

(No. 146) 23.12.96 p. 15Current State: This information relates only to the provision/s


Chiropractors Registration Act 1996, No. 63/1996Assent Date: 17.12.96Commencement Date: S. 97 on 1.7.97: s. 2(3)Current State: This information relates only to the provision/s


Osteopaths Registration Act 1996, No. 75/1996Assent Date: 17.12.96Commencement Date: S. 95 on 1.7.97: s. 2(3)Current State: This information relates only to the provision/s


Health Services (Amendment) Act 1997, No. 73/1997Assent Date: 25.11.97Commencement Date: S. 7 on 18.12.97: Government Gazette 18.12.97

p. 3613Current State: This information relates only to the provision/s




57

Podiatrists Registration Act 1997, No. 78/1997Assent Date: 25.11.97Commencement Date: S. 97(Sch. item 2) on 1.12.98: s. 2(3)Current State: This information relates only to the provision/s


Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Dental Practice Act 1999, No. 26/1999Assent Date: 1.6.99Commencement Date: S. 107(Sch. item 5) on 1.7.00: s. 2(3)Current State: This information relates only to the provision/s


Chinese Medicine Registration Act 2000, No. 18/2000Assent Date: 16.5.00Commencement Date: S. 110 on 1.1.02: Government Gazette 4.10.01 p. 2511Current State: This information relates only to the provision/s


Statute Law Revision Act 2000, No. 74/2000Assent Date: 21.11.00Commencement Date: S. 3(Sch. 1 item 60) on 22.11.00: s. 2(1)Current State: This information relates only to the provision/s


Health Records Act 2001, No. 2/2001Assent Date: 10.4.01Commencement Date: S. 105(c)–(e)(i), (f)–(k)(n) on 16.11.01: Government

Gazette 15.11.01 p. 2839; s. 105(a)(b)(e)(ii)(l)(m) on 1.7.02: s. 2(2)

Current State: This information relates only to the provision/s amending the Health Services (Conciliation and Review) Act 1987

Health Services (Conciliation and Review) (Amendment) Act 2001, No. 75/2001Assent Date: 27.11.01Commencement Date: 25.3.02: Government Gazette 21.3.02 p. 502Current State: All of Act in operation



58

Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 97) on 5.4.05: Government

Gazette 31.3.05 p. 602Current State: This information relates only to the provision/s


Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006

Assent Date: 10.10.06Commencement Date: S. 26(Sch. item 49) on 11.10.06: s. 2(1)Current State: This information relates only to the provision/s


Coroners Act 2008, No. 77/2008Assent Date: 11.12.08Commencement Date: S. 129(Sch. 2 item 11) on 1.11.09: s. 2Current State: This information relates only to the provision/s


Health Services Legislation Amendment Act 2008, No. 79/2008Assent Date: 11.12.08Commencement Date: Ss 3–5 on 12.12.08: s. 2(1)Current State: This information relates only to the provision/s


Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 1 item 31), (Sch. Pt 2 item 26) on 1.1.10:

s. 2(2)Current State: This information relates only to the provision/s


Fair Work (Commonwealth Powers) Amendment Act 2009, No. 74/2009Assent Date: 1.12.09Commencement Date: S. 14 on 1.1.10: Government Gazette 10.12.09 p. 3215Current State: This information relates only to the provision/s




59

Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010

Assent Date: 30.3.10Commencement Date: S. 51(Sch. item 30) on 1.7.10: s. 2(2)Current State: This information relates only to the provision/s


Health and Human Services Legislation Amendment Act 2010, No. 29/2010Assent Date: 8.6.10Commencement Date: S. 59 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1Current State: This information relates only to the provision/s


Health Professions Registration (Repeal) Act 2012, No. 27/2012Assent Date: 29.5.12Commencement Date: S. 21 on 1.7.12: s. 2Current State: This information relates only to the provision/s


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60

3. Explanatory Details



61

1 S. 10(g): The amendment proposed by section 105(e)(ii) of the Health Records Act 2001, No. 2/2001 is not included in this publication as the word "and" at the end of section 10(g) was omitted by section 3(Schedule 1 item 60) of the Statute Law Revision Act 2000, No. 74/2000.

Documents

Health Services (Conciliation and Review) Act 1987FILE/87-25a051.docx · Web viewHealth Services (Conciliation and Review) Act 1987No. 25 of 1987. Section. Page. i. ii. 2. 1