Section 30(i)(i) of the principal
Act is amended by omitting the words "a health professional body'',
and substituting the words "an authority''.
The principal Act is amended by
repealing the Part 4 heading, the headings above sections 31, 35,
and 41, and sections 31 to 45, and substituting the following
headings and sections:
"PART
4 - COMPLAINTS AND
INVESTIGATIONS
"Receipt of
complaints
"31. General right to make
complaints
"(1) Any person may complain orally
or in writing to an advocate or to the Commissioner alleging that
any action of a health care provider or a disability services
provider is or appears to be in breach of the Code.
"(2) Any person may complain orally
or in writing to an advocate or to the Commissioner about any
action of a health practitioner that was taken at any time before 1
July 1996, if it is alleged or it appears that the action
"(a) affected a health consumer;
and
"(b) was, at the time that it was
taken, a ground for bringing disciplinary proceedings against the
health practitioner under a former health registration enactment;
but
"(c) was not referred to the body
that, under that enactment, had jurisdiction to consider it.
"(3) If a complaint is made under
this section to an advocate and the advocate is unable to resolve
the complaint, the advocate must
"(a) refer the complaint to the
Commissioner; and
"(b) inform the parties concerned of
that referral and the reasons for it.
"32. Complaints referred to
Commissioner
"For the purposes of this Part, a
complaint that is referred to the Commissioner under section 31(3)
of this Act or section 64(1) of the Health Practitioners Competence
Assurance Act 2003 must be treated as if it had been made to the
Commissioner.
"33. Preliminary assessment
"(1) As soon as reasonably
practicable after receiving a complaint, the Commissioner must make
a preliminary assessment of the complaint to decide
"(a)whether to take 1 or more of the
following courses of action:
"(i) to refer the complaint to an
agency or person in accordance with section 34 or section 36:
"(ii) to refer the complaint to an
advocate:
"(iii) to call a conference, under
section 61, of the parties concerned:
"(iv) to investigate the complaint
himself or herself; or
"(b) whether to take no action on
the complaint.
"(2) The Commissioner must promptly
notify the complainant and the health care provider or the
disability services provider to whom the complaint relates of the
Commissioner's preliminary assessment.
"(3) This section does not preclude
the Commissioner from revising a preliminary assessment and from
subsequently exercising 1 or more of his or her other powers in
relation to the complaint concerned.
"(4) If the Commissioner revises a
preliminary assessment, the Commissioner must promptly notify the
following persons and agencies of the revised assessment:
"(a) the complainant:
"(b) the health care provider or the
disability services provider to whom the complaint relates:
"(c) any agency or any person to
whom the complaint has, in accordance with section 34 or section
36, been referred:
"(d) any advocate to whom the
complaint has been referred.
"Referral of complaints
to agencies, persons, statutory officers, or
advocates
"34. Referral of complaint to
agencies or persons involved in health or disability sector
"(1) At any time after completing a
preliminary assessment of a complaint, the Commissioner may refer
the complaint, in whole or in part,
"(a) to the appropriate authority if
it appears from the complaint that the competence of a health
practitioner or his or her fitness to practise or the
appropriateness of his or her conduct may be in doubt; or
"(b) to the Accident Compensation
Corporation if it appears from the complaint that the aggrieved
person may be entitled to cover under the Injury Prevention,
Rehabilitation, and Compensation Act 2001; or
"(c) to the Director-General of
Health if it appears from the complaint that failures or
inadequacies in the systems or practices of the health care
provider or the disability services provider concerned may harm the
health or safety of members of the public; or
"(d) to the health care provider or
the disability services provider to whom a complaint relates if the
complaint does not raise questions about the health or safety of
members of the public and can, in the Commissioner's opinion, be
appropriately resolved by the provider.
"(2) At any time before or after
referring a complaint, in whole or in part, to an agency or person
mentioned in subsection (1), the Commissioner may consult with that
agency or person as to the most appropriate means of dealing with
the complaint.
"(3) After referring a complaint, in
whole or in part, to an agency or person mentioned in subsection
(1), the Commissioner must notify the complainant and the health
care provider or the disability services provider to whom the
complaint relates of the action that has been taken.
"(4) The Commissioner may refer a
complaint, in whole or in part, to more than 1 agency or person
mentioned in subsection (1), as long as each referral is authorised
by a paragraph of that subsection.
"(5) A reference of a complaint
under subsection (1) does not preclude the Commissioner from taking
action on the complaint himself or herself.
"35. Agencies or persons to keep
Commissioner informed about referred complaints
"Each agency or person to whom a
complaint is referred under section 34 must
"(a) promptly acknowledge receipt of
the complaint; and
"(b) promptly advise the
Commissioner of any significant step taken in its consideration or
examination of the complaint; and
"(c) promptly advise the
Commissioner of the outcome of its consideration or examination of
the complaint.
"36. Referrals of complaints to
certain statutory officers
"(1) If, at any time after
completing a preliminary assessment of a complaint, the
Commissioner considers that the complaint relates, in whole or in
part, to a matter that is more properly within the scope of the
functions of one of the statutory officers specified in subsection
(4), the Commissioner must promptly consult with that officer in
order to determine the appropriate means of dealing with the
complaint.
"(2) As soon as reasonably
practicable after consulting with the officer concerned, the
Commissioner must determine whether the complaint should be dealt
with, in whole or in part, under this Act.
"(3) If the Commissioner determines
that the complaint should be dealt with, in whole or in part, by
one of the officers specified in subsection (4), the Commissioner
must promptly
"(a) refer the complaint or, as the
case requires, the appropriate part of the complaint to that
officer; and
"(b) notify the complainant and the
health care provider or the disability services provider to whom
the complaint relates of the action that has been taken.
"(4) The statutory officers referred
to in subsection (1) are
"(a) the Chief Commissioner under
the Human Rights Act 1993:
"(b) the Chief Ombudsman:
"(c) the Privacy Commissioner.
"37. Commissioner may refer
complaint to advocate
"(1) At any time after completing a
preliminary assessment of a complaint (whether or not the
Commissioner is investigating, or continuing to investigate, the
complaint himself or herself), the Commissioner may refer the
complaint to an advocate for the purpose of resolving the matter by
agreement between the parties concerned.
"(2) On a referral of a complaint,
under subsection (1), the advocate must
"(a) use his or her best endeavours
to resolve the complaint by agreement between the parties
concerned; and
"(b) report the results of those
endeavours to the Commissioner.
"(3) Every report made under
subsection (2)(b) must record
"(a) the terms of any agreement
reached between the parties concerned; and
"(b) if agreement is not reached on
all matters, those matters on which agreement is reached and those
matters on which no agreement is reached; and
"(c) any other matters that the
advocate thinks fit.
"(4) A copy of every report made
under subsection (2)(b) must, on request, be made available by the
Commissioner to each of the parties concerned.
"38.Commissioner may decide to take
no action on complaint
"(1) At any time after completing a
preliminary assessment of a complaint (whether or not the
Commissioner is investigating, or continuing to investigate, the
complaint himself or herself), the Commissioner may, at his or her
discretion, decide to take no action or, as the case may require,
no further action on the complaint if the Commissioner considers
that, having regard to all the circumstances of the case, any
action or further action is unnecessary or inappropriate.
"(2) The Commissioner's
consideration under subsection (1) may, in particular, take into
account any of the following matters:
"(a) the length of time that has
elapsed between the date when the subject matter of the complaint
arose and the date when the complaint was made:
"(b) whether the subject matter of
the complaint is trivial:
"(c) whether the complaint is
frivolous or vexatious or is not made in good faith:
"(d) whether the person alleged to
be aggrieved does not want any action taken or, as the case may be,
continued:
"(e) whether there is in all the
circumstances an adequate remedy or right of appeal, other than the
right to petition the House of Representatives or to make a
complaint to an Ombudsman, that it would be reasonable for the
person alleged to be aggrieved to exercise.
"(3) Subsection (2) does not detract
from the generality of subsection (1).
"(4) In any case where the
Commissioner decides to take no action, or no further action, on a
complaint, the Commissioner must inform the following persons and
agencies of that decision and the reasons for it:
"(a) the complainant:
"(b) the health care provider or the
disability services provider to whom the complaint relates:
"(c) any agency or any person to
whom the complaint has, in accordance with section 34 or section
36, been referred:
"(d) any advocate to whom the
complaint has been referred.
"Commissioner required to
share certain information
"39. Commissioner to inform agencies
of certain risks
"(1) Whenever the Commissioner has
reason to believe that the practice of a health practitioner may
pose a risk of harm to the public, the Commissioner must promptly
notify the appropriate authority of that belief and the reasons for
it.
"(2) Whenever the Commissioner has
reason to believe that failures or inadequacies in the systems or
practices of a health care provider or a disability services
provider are harming or are likely to harm the health or safety of
members of the public, the Commissioner must promptly notify the
Director-General of Health of that belief and the reasons for
it.
"(3) If, during or after an
investigation, the Commissioner is of the opinion that there is
evidence of a significant breach of duty or misconduct on the part
of a health care provider or disability services provider or an
officer or employee or member of a health care provider or
disability services provider, the Commissioner must promptly refer
the matter to the appropriate person or agency.
"Investigations by
Commissioner
"40. Commissioner may investigate
breaches
"(1) The Commissioner may decide to
investigate any action of a health care provider or a disability
services provider if the action is, or appears to the Commissioner
to be, in breach of the Code.
"(2) The Commissioner may
investigate any action of a health practitioner that was taken at
any time before 1 July 1996, if it appears that the action affected
a health consumer and was, at the time that it was taken, a ground
for bringing disciplinary proceedings against the health
practitioner under a former health registration enactment.
"(3) The Commissioner may
investigate an action under this section either on complaint or on
the Commissioner's own initiative.
"41. Complainant and provider to be
notified of investigation
"(1) Before proceeding to
investigate a matter under this Part, the Commissioner
"(a) must, by written notice, inform
the complainant (if any), the health care provider or the
disability services provider to whom the investigation relates, and
any person alleged to be aggrieved (if not the complainant) of the
Commissioner's intention to make the investigation; and
"(b) must, by written notice, inform
the health care provider or the disability services provider to
whom the investigation relates of
"(i) the details of the complaint
(if any) or, as the case may be, the subject matter of the
investigation; and
"(ii) the right of that person to
submit to the Commissioner, within 15 working days of the date of
the notice, a written response in relation to the complaint or, as
the case may be, the subject matter of the investigation.
"(2) The Commissioner may, at his or
her discretion, extend the deadline of 15 working days set by a
notice given under subsection (1)(b), and may do so before or after
the deadline.
"42. On notification of
investigation authority not to take disciplinary action until
further notice
"(1) In any case where, after
deciding to investigate the action of a health care provider or a
disability services provider, it appears to the Commissioner that
the investigation directly concerns a health practitioner, the
Commissioner must promptly give notice of the investigation to the
appropriate authority.
"(2) Once the authority has received
the notice, no disciplinary action under the Health Practitioners
Competence Assurance Act 2003 may be taken in relation to any
subject matter of the investigation until
"(a) the Commissioner notifies the
authority
"(i) that the matter is not to be
investigated, or investigated further, under this Act; or
"(ii) that the complaint or matter
has been resolved; or
"(iii) that the matter is not to be
referred to the Director of Proceedings under section 45(2)(f);
or
"(b) the Director of Proceedings
notifies the authority of his or her decision under section 49 not
to institute disciplinary proceedings in relation to the
matter.
"(3) This section does not prevent
any action under the Health Practitioners Competence Assurance Act
2003
"(a) under any of sections 36 to 42,
45 to 51, or 69 of that Act; or
"(b) in bringing and completing
disciplinary proceedings initiated by a charge laid by the Director
of Proceedings.
"43. Information about result of
investigation
"(1) As soon as reasonably
practicable after the Commissioner completes an investigation, the
Commissioner must advise the persons specified in subsection
(2)
"(a) of the results of the
investigation; and
"(b) of any further action that the
Commissioner proposes to take or that the Commissioner proposes to
take no further action.
"(2) The persons referred to in
subsection (1) are
"(a) any complainant whose complaint
led to the investigation:
"(b) any person alleged to be
aggrieved (if not the complainant):
"(c) the health care provider or the
disability services provider whose action was the subject of the
investigation:
"(d) if the investigation directly
concerns a health practitioner, the appropriate authority.
"44. Consultation required before
matter referred to Director of Proceedings
"(1) The Commissioner may not, under
section 45(2)(f), refer 1 or more health care providers or
disability services providers to the Director of Proceedings for a
decision as to whether proceedings should be instituted or action
taken in respect of a person unless the Commissioner has given that
person an opportunity to comment on that proposed referral.
"(2) The Commissioner must have
regard to any relevant factors of the kind specified in subsection
(3) when the Commissioner considers whether or not to refer, under
section 45(2)(f) 1 or more health care providers or disability
services providers to the Director of Proceedings for a decision as
to whether proceedings should be instituted or any action
taken.
"(3) The kinds of factors referred
to in subsection (2) are
"(a) the wishes of the complainant
(if any) and the aggrieved person (if not the complainant) in
relation to the matter; and
"(b) any comments made under
subsection (1) in relation to the matter; and
"(c) the need to ensure that
appropriate proceedings are instituted in any case where the public
interest (whether for reasons of public health or public safety or
for any other reason) so requires.
"45. Procedure after
investigation
"(1) This section applies if, after
making an investigation under this Part, the Commissioner is of the
opinion that any action that was the subject matter of the
investigation
"(a) was in breach of the Code;
or
"(b) in the case of an action of a
health practitioner that was taken at a time before 1 July 1996,
affected a health consumer and was, at the time that it was taken,
a ground for bringing disciplinary proceedings against the health
practitioner under a former health registration enactment.
"(2) If this section applies, the
Commissioner may do all or any of the following:
"(a) report the Commissioner's
opinion, with reasons, to any health care provider or disability
services provider whose action was the subject matter of the
investigation, and may make any recommendations as the Commissioner
thinks fit:
"(b) report the Commissioner's
opinion, with reasons, together with any recommendations that the
Commissioner thinks fit, to all or any of the following:
"(i) any authority or professional
body:
"(ii) the Accident Compensation
Corporation:
"(iii) any other person that the
Commissioner considers appropriate:
"(c) make any report to the Minister
that the Commissioner thinks fit:
"(d) make a complaint to any
authority in respect of any person:
"(e) if any person wishes to make
such a complaint, assist that person to do so:
"(f) refer 1 or more health care
providers or disability services providers to the Director of
Proceedings for the purpose of deciding whether any 1 or more of
the following actions should be taken in relation to those
providers:
"(i) any of the actions contemplated
by section 47:
"(ii) the institution of proceedings
under section 50:
"(iii) the institution of
disciplinary proceedings.
"(3) On referring 1 or more health
care providers or disability services providers to the Director of
Proceedings under subsection (2)(f), the Commissioner must advise
the Director of Proceedings of any relevant factors of the kind
specified in section 44(3).
"(4) Subsection (2)(f)(ii) does not
apply if this section applies because of subsection (1)(b).''
10. Implementation
of recommendations of Commissioner
Section 46(1) of the principal Act
is amended by omitting the expression "section 45(a)'', and
substituting the expression "section 45(2)(a)''.
11. Director of Proceedings' right to
participate in disciplinary and other
proceedings
Section 47(1) of the principal Act
is amended
(a) by omitting from paragraph (a)
the words "health professional body'', and substituting the words
"authority or tribunal''; and
(b) by omitting from paragraph
(b)(i) and (ii) the words "a health professional body'' in each
place where it occurs, and substituting in each case the words "an
authority or a tribunal''.
12. Section 48
repealed
Section 48 of the principal Act is
repealed.
13. Functions of
Director of Proceedings
(1)Section 49(1) of the principal
Act is amended by omitting from paragraph (a) the expression
"section 45(f)'', and substituting the expression "section
45(2)(f)''.
(2)Section 49 of the principal Act
is amended by repealing subsections (2) and (3).
14. Proceedings before Human Rights Review
Tribunal
Section 50(2) of the principal Act
is amended by omitting the expression "49(2)'', and substituting
the expression "44(1)''.
15. Aggrieved person may bring
proceedings before Tribunal
Section 51 of the principal Act is
amended by repealing paragraphs (a) and (b), and substituting the
following paragraphs:
"(a) the Commissioner, having found
a breach of the Code on the part of the person to whom that section
applies, has not referred the person to the Director of Proceedings
under section 45(2)(f); or
"(b) the Director of Proceedings
declines or fails to take proceedings.''
16. Powers of Human Rights Review
Tribunal
Section 54(5) of the principal Act
is amended by repealing the words "registered health professional''
in both places where they occur, and substituting in each case the
words "health practitioner''.
17. Mediation
conference
Section 61(1) of the principal Act
is amended by omitting the words "of an investigation by'', and
substituting the words "of a complaint made to, or an investigation
by,''.
18. Further provisions
relating to delegations
Section 69 of the principal Act is
amended by inserting, before the expression "section 68'' wherever
it occurs in subsections (1), (3), (4), and (6), the words "section
9 or''.
19. Revocation of
delegations
Section 71(1) of the principal Act
is amended by inserting, before the expression "section 68'', the
words "section 9 or''.
20. Schedule 1
amended
The heading to Schedule 1 of the
principal Act is amended by inserting, before the word "HEALTH'',
the word "FORMER''.
21. Schedule 2
amended
(1) Clause 3 of Schedule 2 of the
principal Act is amended by repealing subclause (5), and
substituting the following subclause:
"(5) There must be paid to each
Deputy Commissioner
"(a) a salary at a rate agreed
between the Minister and the Deputy Commissioner; and
"(b) any allowances agreed between
the Minister and the Deputy Commissioner.''
(2) Clause 4 of Schedule 2 of the
principal Act is amended by adding the following subclause:
"(5)For the purposes of this clause,
'Commissioner' includes any Deputy Commissioner.''
(3) Clause 5 of Schedule 2 of the
principal Act is amended by omitting the words "the Deputy
Commissioner'', and substituting the words "a Deputy
Commissioner''.
22. Transitional
provisions
(1) The provisions of Part 4 of
the principal Act, as amended by this Act, apply, so far as they
are applicable, to any complaint received, before the commencement
of this Act, under section 31 or section 33 of the
principal Act (as in force before that commencement) in respect of
which no investigation has, before that commencement, been
commenced under Part 4 of the principal Act.
(2) All investigations under the
principal Act that have been commenced before the commencement of
this Act and that have not been completed before that commencement
are to be continued and completed as if this Act had not been
enacted.
Legislative history
28 Aug 2003 Divided
from Health Practitioners Competence Assurance Bill (Bill 230-2) as
Bill 230-3A
11 Sept 2003 Third
reading