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Patient concerns

Feature Articles

Cite as: November 2015 89 (11) LIJ, p.48

Aggrieved patients in Victoria can lodge a complaint with the Office of the Health Services Commissioner, the Australian Health Practitioner Regulation Agency or other specialist bodies, with varying outcomes for both patients and healthcare providers. 

By Alice O'Connell

Snapshot
  • There are several options available to Victorians who wish to raise concerns about healthcare. These include litigation, the OHSC and AHPRA as well as various specialist bodies.
  • The OHSC can investigate complaints against a wide variety of healthcare providers but there has been significant dissatisfaction with the process and outcomes of the OHSC.
  • AHPRA can investigate complaints against registered health practitioners and has significant powers to discipline health practitioners. AHPRA cannot assist with conciliation or claims for compensation.
  • Medical negligence litigation is a powerful way to obtain compensation and hold a medical practitioner or service to account. In Victoria, there are also organisations that can investigate concerns about medical treatment. The Office of the Health Services Commissioner (OHSC), the Australian Health Practitioner Regulation Agency (AHPRA) and other specialist bodies provide mechanisms for investigating complaints or concerns about healthcare providers.

    Where a patient’s objective is to maximise compensation, and evidence is obtained that meets the necessary legal requirements, litigation should be pursued.

    For some aggrieved patients or concerned observers, litigation may not be available or may not be the most effective way to address a patient’s concerns. In these circumstances, patients and practitioners should be aware of the organisations in Victoria that can investigate healthcare complaints.

    The limits of litigation

    Commencing legal proceedings is usually the best way to maximise the compensation available to an injured patient. However, some patients do not want to pursue litigation and for others litigation may not be available.

    Pursuant to s28LE of the Wrongs Act 1958 (Vic), an injured person is not entitled to recover compensation for non economic loss unless that person has suffered a significant injury. The failure to meet the significant injury thresholds set out in Part VBA of that Act often means a potential claim is too small to warrant the costs associated with litigation. Therefore, while a patient may have a valid complaint, litigation is not an option.

    Patients with complaints about medical treatment may want an outcome other than compensation, such as an apology, an explanation or a means to instigate change. Alternatively, they may want the medical practitioner held to account in a formal manner. While some of these outcomes may follow the resolution of litigation, they are not the focus of the process and cannot be guaranteed. For patients not focused solely on compensation, the complaints mechanisms available in Victoria should be considered.

    The two main organisations that manage complaints in Victoria are OHSC and AHRPA.

    The Office of the Health Services Commissioner

    The OHSC was established by the Health Services (Conciliation and Review) Act 1987 (Vic) (the Act). The functions of the OHSC are set out in s9 of the Act and include:

  • to investigate complaints relating to health services
  • to review and identify the causes of complaints, and to suggest ways of removing and minimising those causes
  • to conciliate between users and providers where a complaint has been made.
  • The OHSC can consider complaints about health organisations including public and private hospitals and private health practitioners from any discipline, including unregistered alternative health providers.

    The OHSC has other functions including improving the quality of healthcare, education and training of health practitioners, and conducting broader inquiries and investigations.

    The OHSC complaints process

    Preliminary assessment

    The complaints process is set out in Part 3 of the Act. Following receipt of a complaint, the OHSC will conduct a preliminary assessment. Section 19(1) of the Act sets out that at this stage the OHSC will reject any complaint that is vexatious or lacking substance, has already been determined by a court or tribunal, or relates to an incident that occurred more than 12 months ago (unless there is a valid reason for the delay).

    If the complaint relates to a registered health practitioner, s19(6) provides that the OHSC must refer the complaint to AHPRA for consideration of which entity should handle the complaint.

    In accordance with s19(8) of the Act, within 28 days of receiving a complaint (or longer in specified circumstances) the OHSC must:

  • accept the complaint
  • reject the complaint, or
  • refer the complaint to AHPRA or other appropriate organisation.
  • If the OHSC accepts a complaint and determines that it is suitable for conciliation, s19(10) stipulates that it must refer the matter for conciliation without delay.

    OHSC conciliation

    Matters referred for conciliation will be assigned a conciliator, whose role is to encourage the settlement of a complaint by facilitating informal discussions. Pursuant to s20(6), the conciliator is obliged to report to the Health Services Commissioner (the Commissioner) on the progress and results of the conciliation process. Where no resolution has been reached, the conciliator can recommend that:

  • the conciliation process continue
  • the OHSC cease dealing with the complaint, or
  • the complaint be investigated.
  • Section 21(3) states that the investigation process must proceed with as little formality and technicality and with as much expedition as a proper investigation permits. The OHSC is not restricted by the rules of evidence but is bound by the rules of natural justice. It is this informal model of conciliation that complainants are likely to value over formal court proceedings.

    According to s22 of the Act, at the conclusion of the investigation, if the OHSC determines that the complaint was justified, the Commissioner must issue a notice to the provider and complainant advising of the decision. The provider is required to report on what action has been taken as a result of the complaint. However, the OHSC is not given the power to compel the provider to take any action.

    OHSC outcomes

    The website of the OHSC sets out the possible outcomes that may be achieved by bringing a complaint. These include:

  • an explanation of what happened or more detailed information about the treatment received
  • an opportunity to discuss concerns in a face-to-face meeting
  • an apology
  • a change to the system or procedures so a similar incident does not happen again
  • provision of remedial treatment
  • payment of compensation.
  • Dissatisfaction with the OHSC process

    In 2012 a significant study was undertaken to assess the perceptions of those who had lodged complaints with the OHSC. The results of this study were released in a June 2013 final report entitled Study of people lodging complaints with the Victorian Health Services Commissioner (the study). The study, which surveyed 436 complainants, was conducted in the context of a review of the Act and was undertaken by an expert panel appointed by the Minister for Health.

    The study found that the majority of complainants wanted system or practice change to avoid a similar adverse event happening to someone else and/or an apology.1 However, when asked about the outcome achieved, the majority of complainants perceived that they had not achieved an outcome.2 Only 22 per cent of the complainants who participated in the study reported satisfaction with the outcome of the process.3 Of the 44 per cent of respondents who wanted institutional or practice change, only 7 per cent reported achieving this outcome.

    The study reported the following principal reasons for dissatisfaction:

  • lack of resolution or closure
  • the Commissioner’s lack of power to effect system change
  • lack of interest, assistance or support provided by the OHSC
  • lack of an outcome, or an unsatisfactory outcome.4
  • The study found that many complainants felt that the OHSC was a toothless tiger in that it did not have the power to effect change or respond to concerns in a manner that was in the public interest.5

    Addressing concerns with the OHSC process

    The OHSC responded to the study by implementing a series of changes intended to improve current practices to better meet the needs of complainants and providers. The OHSC anticipates these changes will contribute to more rapid resolution of complaints and improve satisfaction with the complaints process and outcome.6

    The review of the Act resulted in the Healthcare Quality Commissioner Bill 2014 (Vic), which was introduced into the Victorian Parliament on 2 September 2014. If passed, the Bill would repeal the Act and establish a Healthcare Quality Commissioner and Healthcare Quality Council. The proposed model aims to modernise the current system, providing more effective powers and greater flexibility for the resolution of complaints.

    The Healthcare Quality Commissioner Bill 2014 (Vic) lapsed as it was not passed before parliament concluded in November 2014. It is unclear at the time of publication whether the current Victorian government will reintroduce the Bill. However, in July 2015, the recommendations of the Expert Panel were released by the Minister for Health. The Minister noted that the system was in need of urgent reform and that consideration was being given to the best way to achieve protection for patients.7

    Australian Health Practitioner Regulation Agency

    AHPRA is a national agency with significant disciplinary powers that can investigate complaints about individual health practitioners in 14 health professions. AHPRA cannot assist individuals to seek compensation or help with conciliation between a patient and health practitioner. Nor does AHPRA consider complaints against hospitals or healthcare services. A patient who notifies AHPRA about the conduct of a medical practitioner can also pursue litigation.

    AHPRA was established by uniform national legislation (the National Law).8 The National Law established AHPRA and 14 national health practitioner boards (the national boards), one for each of the 14 professions subject to regulation, under s31 of the National Law.

    As well as roles relating to regulation and training, AHPRA manages investigations into the professional conduct, performance or health of registered health practitioners.

    AHPRA investigation process

    The National Law sets out the process to be undertaken when AHPRA is advised of a notification (a complaint or concern). Section 166 provides that professional investigators at AHPRA will investigate notifications and provide recommendations to the national boards. On receipt of an investigation report, the relevant national board will determine whether to take further action. To further investigate a notification, ss169 and 170 of the National Law give the national boards the power to require a practitioner to undergo a health or performance assessment.

    Section 191 of the National Law includes a number of defined standards such as “unsatisfactory professional performance”, “impairment”, “unprofessional conduct” and “professional misconduct”. Notifications indicating that a practitioner’s conduct may be unsatisfactory or impaired are likely to be determined by the relevant national board. The national board may or may not decide to convene a panel hearing to make such a determination.

    If a national board or panel is satisfied that a health practitioner’s conduct was inappropriate or not of an adequate standard, it may make a decision with the aim of protecting public safety. The decisions available are set out in ss178(2) and 191(3) of the National Law and include:

  • to caution the practitioner
  • to impose conditions on the practitioner’s registration, such as a requirement to undertake further training or to undertake a period of supervised practice
  • to suspend the practitioner’s registration.
  • Where a notification about a practitioner’s performance or conduct is more serious, and may result in a finding of “professional misconduct”, s193 requires the national boards to refer the matter to the appropriate tribunal in that jurisdiction.

    Other specialist bodies

    Other specialist organisations that can be used to raise issues about healthcare include the Office of the Mental Health Commissioner, the State Coroner, the Chief Psychiatrist, the Ombudsman, the Privacy Commissioner, the Australian Aged Care Commissioner, the Equal Opportunity and Human Rights Commission, the Victorian Assisted Reproductive Treatment Authority and Victoria Police.

    These specialist bodies may be well placed to assist with complaints within the ambit of their expertise.

    Conclusion

    Patients concerned about unreasonable medical treatment in Victoria have several options to explore. In circumstances where litigation is a viable option, legal proceedings will most likely result in an injured person receiving the highest available award of compensation. Patients seeking compensation through litigation can also consider notifying AHPRA of the conduct of a registered health practitioner.

    When litigation is not an available or preferred avenue, AHPRA or the OHSC may provide alternative avenues to hold a practitioner to account.

    Alice O’Connell is a senior associate at Adviceline Injury Lawyers, a division of Holding Redlich. Her practice focuses on medical negligence litigation. 1. Study of people lodging complaints with the Victoria Health Services Commissioner, Final Report, June 2013, p9. 2. Note 1 above, p11. 3. Note 1 above, p12. 4. Note 1 above, p12. 5. Note 1 above, pp15, 28 and 29. 6. www.health.vic.gov.au/hsc/resources/lodgingacomplaint.htm. 7. “Firm head leads health complaints review” in Lawyers Weekly, 23 July 2015, at www.lawyersweekly.com.au/news/16867-firm-head-leads-health-complaints-review. 8. Health Practitioner Regulation National Law Act 2009 (Qld), Health Practitioner Regulation National Law (NSW), Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), Health Practitioner Regulation National Law (ACT) Act 2010 (ACT), Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT), Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas), Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), Health Practitioner Regulation National Law (WA) Act 2010 (WA), (the National Law).

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