INSIGHTS: What do I need to know about the new Health Complaints Act 2016 (Vic)?

In April, the Victorian Parliament passed the Health Complaints Act 2016 (the ‘Act’). The new Act repeals the Health Services (Conciliation and Review) Act 1987 and establishes a new legal framework for complaints about the provision of health services in Victoria. The Act also establishes the Office of the Health Complaints Commission (OHCC), replacing the existing Office of the Health Services Commissioner (OHSC), as well as creating the Health Complaints Commissioner Advisory Council. The Act is expected to commence operation on 1 February 2017.

What are the key changes?

The OHSC was responsible for handling complaints concerning healthcare in Victoria. The Act greatly expands the reach of the former OHSC, with the aim of providing a more comprehensive health complaints system to better protect the public. The OHSC’s core objective is to facilitate the voluntary and timely resolution of complaints against health practitioners. The Act seeks to enhance the powers of the OHSC, through the establishment of the OHCC, which aims to provide a lower cost, more effective and swift alternative to otherwise costly and prolonged legal proceedings for those who make a complaint about healthcare practitioners.

As with the old regime, the OHCC seeks to resolve complaints in the form of an apology by the practitioner with a refund and/or compensation. However there are changes to the complaints resolution process, namely:

A complaint to the OHCC can be made by anyone, including a family member, health service staff and carers. Under the previous regime only the person who sought out the health service could make the complaint.

• The OHCC will have the power to investigate any matter on its own initiative, following consultation with the President of the Health Complaints Commissioner Advisory Council.
• The Act encourages complainants to make a complaint to the health service provider in the first instance, unless it would be unreasonable or inappropriate to do so.
• The OHCC is obliged to address the complaint in the least formal manner appropriate to resolve the complaint.

In order to comply with its obligation, to address and resolve a complaint in the least formal manner appropriate, we expect that the OHCC will be directly communicating with practitioners by telephone, rather than sending formal correspondence. Meridian Lawyers warn practitioners not to inadvertently breach their professional and legal obligations when responding to the OHCC.

How does Meridian Lawyers recommend you respond to a call from the OHCC?

Meridian Lawyers recommend:

1. You obtain the complaint details and before responding, contact your Association or insurer for guidance.
2. You inform your professional indemnity insurer.
3. You do not make any admission without first seeking advice from your insurer.
4. You request a copy of the complaint, and details of what the complainant is seeking, in writing. This will ensure that you have an opportunity to seek guidance from your professional indemnity insurer. Most importantly, it will allow you the time to consider the complaint with reference to your records, and to provide an ‘informed’ response.
5. Due to practitioners’ obligations to maintain patient confidentiality, we strongly recommend that you do not disclose health information until you have received a request to do so from the OHSC in writing. Only when a written request is received is disclosure required by law and thus permitted under the Health Records Act 2001.

Please contact Principal Kellie Dell’Oro for more information.