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TASMANIA
__________
HEALTH COMPLAINTS AMENDMENT BILL
2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 13 amended (Special report)
6. Section 22 amended (Who may complain)
7. Section 23 amended (Making a complaint)
8. Section 24A inserted
24A. Notification of complaints to registration boards
9. Section 25 amended (Assessment)
10. Section 25A inserted
25A. Early resolution of complaints
11. Section 26 amended (Enquiries during assessment)
12. Sections 29A and 29B inserted
29A. Powers of Commissioner
29B. Power of Commissioner to give information to
registration board
13. Section 32A inserted
32A. Duty to attend initial meeting
14. Section 35 amended (Results report from conciliator)
[Bill 61]-VI
15. Section 40 amended (Matters that may be investigated)
16. Section 43 amended (Conduct of investigation)
17. Section 47A inserted
47A. Entry of premises
18. Section 52 substituted
52. Witness privilege and production of documents
19. Section 54 amended (Supreme Court applications)
20. Section 55 amended (Reports)
21. Section 56A inserted
56A. Commissioner to be informed when registration
board receives grievance
22. Section 58 amended (Investigation of complaints or
grievances)
23. Section 59 amended (Action on investigation reports)
24. Section 61 amended (Information to registration board)
25. Section 62A inserted
62A. Power of registration board to give information
to Commissioner
26. Section 62B inserted
62B. Freedom of disclosure and communication to
Commissioner
27. Schedule 1 amended (Health Services)
28. Schedule 3 amended (Health Complaints Commissioner)
2
HEALTH COMPLAINTS AMENDMENT BILL
2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Health Complaints Act 1995
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Health Complaints
Amendment Act 2004.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
Principal Act
3. In this Act, the Health Complaints Act 1995* is
referred to as the Principal Act.
*No. 95 of 1995
[Bill 61] 3
s. 4 No. Health Complaints Amendment 2004
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended by inserting
after the definition of "Charter" the following definition:
"child" means a person who has not attained the
age of 18 years;
Section 13 amended (Special report)
5. Section 13 of the Principal Act is amended as follows:
(a) by inserting the following paragraph after
paragraph (a) in subsection (1):
(ab) an investigation under Part 6;
(b) by inserting the following subsections after
subsection (2):
(3) The Commissioner may cause a
report to be published in any manner that he
or she considers appropriate.
(4) A report made by the Commissioner
under subsection (1) that is published under
subsection (3) may name a person referred to
in the report if
(a) the Commissioner believes on
reasonable grounds that naming
the person is reasonably necessary
to prevent or lessen a risk to
(i) the life, health, safety or
welfare of any other person;
or
(ii) the health, safety or welfare
of the public; or
4
2004 Health Complaints Amendment No. s. 6
(b) the person is a health service
provider who has unreasonably
failed to take action that has been
specified in a notice under
section 56 to remedy an
unresolved grievance.
Section 22 amended (Who may complain)
6. Section 22 of the Principal Act is amended as follows:
(a) by omitting paragraph (b) and substituting the
following paragraph:
(b) in the case of a health service user
who is a child
(i) where the child has attained
the age of 14 years, a person
appointed by that child to
make the complaint on that
child's behalf; or
(ii) where the child has not
attained the age of 14 years,
a parent or guardian of that
child; or
(iii) where the Commissioner is
of the opinion that the child
is capable of lodging a
complaint himself or herself,
the child;
(b) by omitting paragraph (c);
(c) by omitting paragraph (g) and substituting the
following paragraph:
(g) a health service provider;
5
s. 7 No. Health Complaints Amendment 2004
(d) by omitting from paragraph (k) "the public
interest requires that" and substituting "in the
circumstances of the particular case".
Section 23 amended (Making a complaint)
7. Section 23 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "section 22 (1)"
and substituting "section 22";
(b) by omitting from subsection (2) "section 22 (1)"
and substituting "section 22".
Section 24A inserted
8. After section 24 of the Principal Act, the following
section is inserted in Division 1:
Notification of complaints to registration
boards
24A. As soon as practicable after receiving a
complaint, the Commissioner is to notify any
relevant registration board stating
(a) the name of the health service provider
against whom the complaint is made;
and
(b) the substance of the complaint; and
(c) the date or dates on which the events
forming the basis of the complaint
occurred; and
(d) any other details that the Commissioner
considers relevant.
6
2004 Health Complaints Amendment No. s. 9
Section 25 amended (Assessment)
9. Section 25 of the Principal Act is amended by omitting
subsection (1) and substituting the following subsections:
(1) The Commissioner must assess a
complaint within 45 days after receiving it and he or
she may, if of the opinion that it is appropriate to do
so
(a) where the complaint relates to a matter
that falls within the functions imposed
by a law of Tasmania, another State, a
Territory or the Commonwealth on the
Ombudsman, a relevant registration
board or any other person, refer the
complaint to the Ombudsman, relevant
registration board or other person, as
the case requires; or
(b) refer the complaint to a conciliator for
conciliation under Part 5; or
(c) investigate the complaint under Part 6;
or
(d) dismiss the complaint.
(1A) The Commissioner may refer a complaint
to both a relevant registration board and a
conciliator or defer the matter of conciliation until
the relevant registration board has reported to him
or her on the matter.
(1B) The Commissioner may extend the period
for assessment referred to in subsection (1) for an
additional period not exceeding 45 days if
(a) the Commissioner has, under
section 25A, attempted to facilitate the
7
s. 10 No. Health Complaints Amendment 2004
early resolution of the complaint and the
attempt has been unsuccessful; or
(b) the Commissioner considers it necessary
for the purposes of assessment to extend
the period.
(1C) The Commissioner must notify the
complainant and the relevant health service
provider of any extension of the period for
assessment under subsection (1B).
(1D) Nothing in this section prevents the early
resolution of a complaint under section 25A.
Section 25A inserted
10. After section 25 of the Principal Act, the following
section is inserted in Division 2:
Early resolution of complaints
25A. (1) As soon as practicable after receiving a
complaint, the Commissioner may, if he or she is of
the opinion that it is reasonable to do so and if the
complainant consents, attempt to facilitate the early
resolution of the complaint to the satisfaction of the
parties without the need for the Commissioner to
proceed to assessment under section 25.
(2) Without limiting the Commissioner's
powers of resolution, the Commissioner may provide
mediation.
Section 26 amended (Enquiries during assessment)
11. Section 26 of the Principal Act is amended by
inserting after subsection (2) the following subsections:
8
2004 Health Complaints Amendment No. s. 11
(3) If the Commissioner, having made
enquiries in accordance with subsection (1), is
unable to obtain relevant information from a person
and has reason to believe that a person other than
the complainant is capable of providing information
or producing a document relevant to an assessment,
the Commissioner may, by notice in writing
provided to the latter person, require that person to
do one or more of the following:
(a) provide that information to the
Commissioner in writing signed by that
person or, in the case of a body
corporate, by an officer of the body
corporate;
(b) produce that document to the
Commissioner;
(c) attend before a person specified in the
notice and provide information by
answering questions relevant to the
assessment.
(4) A notice referred to in subsection (3) is to
specify the period within which, or the day on which
and the time and place at which, the person is
required to provide the information or document or
attend to answer questions.
(5) Nothing in subsection (3) authorises the
Commissioner to require the provision of exempt
information or any part of a document containing
exempt information.
(6) Where a document is produced in
accordance with a requirement under this section,
the Commissioner may take possession of, make
copies of or take extracts from the document.
9
s. 12 No. Health Complaints Amendment 2004
Sections 29A and 29B inserted
12. Before section 30 of the Principal Act, the following
sections are inserted in Division 3:
Powers of Commissioner
29A. (1) The Commissioner may add further
grounds, persons or particulars to a complaint
received under section 23 if at any stage the
Commissioner is of the opinion that any such
matters should form part of the complaint.
(2) On adding further grounds, persons or
particulars to a complaint, the Commissioner must
notify the complainant, the health service provider
and any relevant registration board.
Power of Commissioner to give information to
registration board
29B. For the purpose of assisting a registration
board to perform its functions under this or any
other Act, the Commissioner may make available to
the board any information that he or she receives in
the administration of this Act.
Section 32A inserted
13. After section 32 of the Principal Act, the following
section is inserted in Part 5:
Duty to attend initial meeting
32A. Where the Commissioner has referred a
complaint for conciliation, the complainant and the
health service provider must attend an initial
meeting, but any subsequent participation in the
conciliation by the parties is voluntary and either
10
2004 Health Complaints Amendment No. s. 14
party may withdraw from the conciliation process at
any time.
Section 35 amended (Results report from
conciliator)
14. Section 35 of the Principal Act is amended by
inserting after subsection (3) the following subsection:
(4) A relevant registration board is not
entitled to receive a copy of the report but the
Commissioner may inform the registration board
that the conciliation process has been concluded and
that agreement has or has not been reached.
Section 40 amended (Matters that may be
investigated)
15. Section 40 of the Principal Act is amended by
inserting after subsection (2) the following subsection:
(2A) An investigation referred to in
subsection (1)(b) may be carried out whether or not
(a) the relevant complaint has been
withdrawn; or
(b) the Commissioner has decided to
dismiss the relevant complaint.
Section 43 amended (Conduct of investigation)
16. Section 43 of the Principal Act is amended by
inserting after subsection (2) the following subsections:
(3) The Commissioner may, when conducting
an investigation into a complaint, refer the
11
s. 17 No. Health Complaints Amendment 2004
complaint or any part of, or issue arising out of, the
complaint for conciliation under Part 5.
(4) An investigation may be conducted jointly
by the Commissioner and a registration board.
Section 47A inserted
17. After section 47 of the Principal Act, the following
section is inserted in Division 2:
Entry of premises
47A. (1) For the purposes of carrying out an
investigation under this Act, the Commissioner or, if
so authorised by the Commissioner, any State
Service officer or State Service employee may at any
reasonable time enter any premises occupied or used
by a health service or a health service provider and
inspect the premises or anything for the time being
on or within them.
(2) The powers conferred by this section to
enter premises occupied or used by a health service
or a health service provider are not to be exercised
unless previous notice of the intention to do so has
been given in writing to
(a) the owner or occupier of the premises in
which the health service is provided; or
(b) the health service provider.
Section 52 substituted
18. Section 52 of the Principal Act is repealed and the
following section is substituted:
12
2004 Health Complaints Amendment No. s. 18
Witness privilege and production of
documents
52. (1) Neither the Crown or any other person is
entitled to prevent or obstruct the provision of
information or the production of any document or
evidence from being given for the purpose of an
investigation under this Act, notwithstanding any
entitlement that might arise if the investigation
were a legal proceeding held before a court.
(2) A person is not excused from providing any
information, producing any document or answering
a question, when required to do so under this Act, on
the ground that to do so would disclose legal advice
furnished to a health service provider or other
person to whom this Act applies.
(3) Notwithstanding section 62B or anything
in subsections (1) and (2) of this section, if the
Attorney-General provides the Commissioner with a
certificate that the disclosure of information
concerning a specified matter (including the giving
of information in answer to a question) or the
disclosure of the contents of a specified document
would be contrary to the public interest because the
information or document would, if disclosed,
prejudice the taking of proceedings for a crime or
other offence, the Commissioner is not entitled to
require a person to
(a) provide the information; or
(b) answer questions concerning the matter
or the document; or
(c) produce the document to the
Commissioner.
13
s. 19 No. Health Complaints Amendment 2004
Section 54 amended (Supreme Court applications)
19. Section 54(1) of the Principal Act is amended by
omitting "section 52 or 53" and substituting "section 53".
Section 55 amended (Reports)
20. Section 55 of the Principal Act is amended as follows:
(a) by omitting paragraphs (a) and (b) from
subsection (2);
(b) by inserting the following subsection after
subsection (2):
(2A) If the Commissioner is satisfied
that it is desirable to do so having regard to
the nature of the allegations or the
seriousness of the findings, the Commissioner
must provide a copy of each report to
(a) the Minister; and
(b) the Health Minister.
Section 56A inserted
21. Before section 57 of the Principal Act, the following
section is inserted in Part 7:
Commissioner to be informed when
registration board receives grievance
56A. As soon as practicable after receiving a
grievance, a registration board is to inform the
Commissioner of the particulars of that grievance.
14
2004 Health Complaints Amendment No. s. 22
Section 58 amended (Investigation of complaints or
grievances)
22. Section 58 of the Principal Act is amended as follows:
(a) by inserting the following paragraph after
paragraph (a) in subsection (2):
(ab) a statement of the reasons for its
decision; and
(b) by inserting the following subsection after
subsection (5):
(6) An investigation may be conducted
jointly by the registration board and the
Commissioner.
Section 59 amended (Action on investigation
reports)
23. Section 59(2) of the Principal Act is amended by
inserting after paragraph (b) the following paragraph:
(ba) a statement of reasons for that finding; and
Section 61 amended (Information to registration
board)
24. Section 61 of the Principal Act is amended as follows:
(a) by inserting the following subsection after
subsection (1):
(1A) The Commissioner may, at any
time, request a relevant registration board to
provide reasonable reports on the progress and
15
s. 25 No. Health Complaints Amendment 2004
results of an investigation of a complaint or
grievance.
(b) by inserting in subsection (2) "or a registration
board" after "Commissioner";
(c) by omitting from subsection (2) "subsection
(1)" and substituting "this section".
Section 62A inserted
25. After section 62 of the Principal Act, the following
section is inserted in Part 7:
Power of registration board to give
information to Commissioner
62A. For the purpose of assisting the Commissioner
to perform his or her functions under this Act, a
registration board may make any information that it
receives in the performance of its functions under
this Act or any other Act available to the
Commissioner.
Section 62B inserted
26. Before section 63 of the Principal Act, the following
section is inserted in Part 8:
Freedom of disclosure and communication to
Commissioner
62B. Where a provision of an Act
(a) prohibits or restricts; or
(b) authorises or requires the imposition of
a prohibition or restriction on
16
2004 Health Complaints Amendment No. s. 27
the disclosure or communication of information, that
provision does not apply to, or in respect of, the
disclosure or communication of information in a
manner that will prevent or restrict the making of a
complaint to, or the carrying out of an investigation
by, the Commissioner or the performance of the
Commissioner's other functions under this Act.
Schedule 1 amended (Health Services)
27. Part 1 of Schedule 1 to the Principal Act is amended
as follows:
(a) by omitting from item 3 "in association with
the use of premises";
(b) by omitting from item 5 "referred to in item 3"
and substituting "for the care, treatment or
accommodation of persons who are aged or
have a physical disability or mental
dysfunction";
(c) by inserting the following item after item 11:
11A. A service provided at a hospital or
health institution for the temporary storage of
human remains as defined in the Burial and
Cremation Act 2002.
Schedule 3 amended (Health Complaints
Commissioner)
28. Clause 3 of Schedule 3 to the Principal Act is amended
by omitting subclause (1) and substituting the following
subclause:
17
s. 28 No. Health Complaints Amendment 2004
(1) A person is not eligible to be reappointed
as Commissioner if the person has served 3
consecutive terms of office as Commissioner.
18 Government Printer, Tasmania