Changes to Health Service Complaints in Victoria
The Health Complaints Act 2016 (the Act) is new Victorian legislation that received Royal Assent on 3 May 2016. The latest date for commencement is 1 February 2017.
The Act repeals the Health Services (Conciliation and Review) Act 1987 and establishes a new legal framework for complaints about the provision of health services or the failure to provide health services in Victoria. The Act also establishes the office of the Health Complaints Commissioner (the Commissioner) (formerly the Health Services Commissioner) and the Health Complaints Commissioner Advisory Council.
Types of providers now subject to regulation
The Health Practitioner Regulation National Law (Victoria) Act 2009 regulates 14 ‘health profession services’. The Act introduces a definition of a ‘general health service’ that is much broader and appears to capture any service or person that intends or claims to treat an illness or suspected illness.
This definition extends to include support services necessary to implement a health service and may include secretaries, receptionists and practice managers.
The definition also extends to include ancillary services such as cleaners, laundry providers and caterers if they affect or may affect a person receiving a health service.
Arguably, the definition is broad enough to capture personal trainers, gym owners, yoga instructors and the like, however, whether it will be interpreted in that way remains to be seen.
The second reading speech indicates that it captures services such as dental technicians, massage therapists, speech pathologists, counsellors, psychotherapists, homeopaths and reiki therapists.
The new legislation also makes it an offence for a general health service provider to provide a health service in Victoria if it they are prohibited from doing so in any other State/Territory.
The commissioner’s new powers
The Commissioner will have the power to issue an interim and/or final prohibition order prohibiting a general health service from providing all or part of its service.
An interim prohibition order will prohibit a general health service provider from providing their service for a period of 12 weeks while an investigation takes place. Before issuing such an order, the Commissioner must reasonably believe the provider has contravened a code of conduct, been convicted of an offence or be satisfied that such an order is necessary to avoid a serious risk to the life, health, safety or welfare of the public.The Commissioner will also have the power to issue a final prohibition order which must be published on the Commissioner’s website and in the Government Gazette.
In addition, the Commissioner will have the power to issue and publish public health warning statements setting out the name of a health service provider if, following an investigation, the Commissioner reasonably believes that there is a serious risk to the life, health, safety or welfare of a person/the public.This power to issue a public health warning extends to circumstances where a health services provider fails, without reasonable excuse, to cooperate with the Commissioner or fails to take action agreed to or recommended following an initial investigation.
These new powers appear to have been introduced to regulate practitioners who practice in more alternative forms of therapies and who have previously been able to operate without regulation. These powers may capture people such as an unqualified person who mislead followers in relation to curing her alleged brain cancer with natural healing remedies and diet, a shaman who claimed he could cure breast cancer and “gay conversion therapists” amongst others.
Who can make a complaint?
Under the new legislation, a complaint to the Commissioner can be made by anyone, including family members, health service staff and carers, unlike previous legislation where it was just the person who sought out or received the health service who could make a complaint.
In addition, the Commissioner will have the power to investigate any matter on their own initiative following consultation with the President of the Health Complaints Commissioner Advisory Council.
The new legislation also provides that a complaint should be made in the first instance to the health service provider unless it would be unreasonable or inappropriate to do so. If a complaint is made to the Commissioner, the Commissioner is required to take the least formal complaint resolution process appropriate to resolve a complaint.
Health practitioners need to be conscious of the new legislation and any implications that it may have on their practice. Importantly for medical practitioners, the new definition of a general health service means that support and ancillary services will now be subject to regulation. For example, this will likely include a receptionist if he/she regularly provides results to patients over the phone or, if, when a patient rings to make an appointment, the receptionist makes an assessment of the urgency for an appointment.
In addition, whilst it is unclear in what capacity a laundry provider, cleaner or caterer could affect a person receiving a health service, medical practitioners will need to be mindful of these ancillary services and any interaction they may have with patients as they will also be subject to regulation.
John Petts, Partner
Rose Hopkins, Solicitor