The Australian Vaccination Network (AVN) which campaigns against mass public immunisation programs and promotes the use of homeopathy to prevent disease recently sought a declaration in the NSW Supreme Court that a Health Care Complaints Commission (HCCC) Investigation, Recommendation and Public Warning issued under the Health Care Complaints Act 1993 (the Act) be set aside. An order was also sought quashing the HCCC’s decision to issue a Public Warning.
The HCCC investigated a complaint and made a recommendation to AVN that it should publish a disclaimer on its website. When AVN did not comply with the HCCC’s Recommendation, it issued a Public Warning.
Under the provisions of the Act the HCCC may, if following an Investigation of a complaint, form a view that a particular treatment or health service poses a risk to public health or safety, cause a Public Warning to be issued in a manner identified by the HCCC identifying and giving warnings or information about the treatment of health service.
Under the Act, a complaint may be made in writing under this Act concerning:
- ‘The professional conduct of a health practitioner…’ (section 7(1)(a); or
- ‘A health service which affects the clinical management or care of an individual client.’ (section 7(1)(b).
Section 7(2) of the Act goes on to provide that a complaint may be made ‘against a health service provider’.
The parties to the proceedings agreed that in order for the HCCC to have jurisdiction in a matter there must be a complaint made under the Act. The issue in the proceedings was what constituted a ‘complaint’. There was no dispute that AVN was a health service provider.
The HCCC had received two allegations that the AVN had engaged in misleading or deceptive conduct in order to dissuade people from being, or having their children vaccinated. The AVN submitted that the allegations were not complaints for the purposes of the Act on the basis that the health service it provided did not affect the clinical management or care of an individual client. It was submitted that an allegation or complaint did not fall within the jurisdiction of the HCCC simply because the complaint was one against a health service provider. The complaint would have to be about the health service provider in its capacity of providing a health service.
The HCCC submitted that the complaints concerned the AVN’s health education service which affects the care of a person who received or used such education. The HCCC argued that there was not a requirement that the client be an identified person, but referred to a natural person or persons who received or used health services.
Justice Christine Adamson of the NSW Supreme Court stated that in her view the words ‘”clinical management or care of an individual client” evince an intention that only a complaint concerning a health service that has a concrete (even if indirect) effect on a particular person or persons is within jurisdiction. Complaints about health services which have a tendency to affect a person or group, but which cannot be shown to have had an effect, would appear to be excluded.’
Justice Adamson went on to hold that while the complaints concerned a health service that AVN provided, it had not been established that the health service affected the ‘clinical management or care of an individual client’. As such, the HCCC did not have jurisdiction to issue the Public Warning.
It was noted that had the HCCC apprehended that evidence of the effect of the health service on an individual was required, such evidence probably could have been obtained, however, it did not do so.
The decision is an interesting examination of what constitutes a complaint for the purposes of the Act.
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