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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Health Services (Conciliation and Review)
(Amendment) Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Amendment of definitions 2
5. Functions of the Commissioner 3
6. Distribution of information 4
7. Reports 4
8. Removal of members of Health Services Review Council 6
9. Functions of the Council 6
10. Complaints on behalf of deceased users 7
11. Preliminary assessment of complaints 7
12. New section 19A inserted 8
19A. Splitting of complaints 8
13. Conciliation 9
14. Investigation of complaints 11
15. Notices and procedures 12
16. Update of reference to VCAT 13
17. Powers relating to evidence and investigations 13
18. Confidentiality 14
19. Commissioner to specify report periods 16
ENDNOTES 17
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PARLIAMENT OF VICTORIA
Initiated in Assembly 26 September 2001
A BILL
to amend the Health Services (Conciliation and Review) Act 1987
to make miscellaneous amendments relating to the operation of the
Act and for other purposes.
Health Services (Conciliation and
Review) (Amendment) Act 2001
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Health Services (Conciliation and Review) Act
1987 to make miscellaneous amendments relating
5 to its operation.
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2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
5 operation before 1 December 2002, it comes into
operation on that day.
3. Principal Act
See:
In this Act, the Health Services (Conciliation Act No.
and Review) Act 1987 is called the Principal Act. 25/1987.
Reprint No. 3
as at
1 July 2000
and
amending
Act Nos
18/2000,
74/2000 and
2/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
10 4. Amendment of definitions
In section 3(1) of the Principal Act--
(a) in the definition of "health service", in
paragraph (h), after "welfare" insert "and
social work";
15 (b) in the definition of "health service", after
paragraph (h), insert--
"(ha) therapeutic counselling and
psychotherapeutic services;
(hb) laundry, cleaning and catering services,
20 where those services affect health care
or treatment of a person using or
receiving a service referred to in this
definition;";
(c) in the definition of "health service"--
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(i) for "but does not include" substitute
"and includes";
(ii) for "any Department" substitute "the
Department";
5 (d) in the definition of "provider", after
paragraph (a), insert--
"(ab) a person or body which holds himself,
herself or itself out as providing a
health service; and";
10 (e) for the definition of "user" substitute--
' "user" means a person who uses or
receives or has used or received a
health service and includes a person
who has made a complaint under
15 section 16(1)(a) that a provider has
acted unreasonably by not providing a
health service for the person;';
(f) insert the following definitions--
' "Council" means the Health Services
20 Review Council established under
section 12;
"Victorian Civil and Administrative
Tribunal" means the Victorian Civil
and Administrative Tribunal
25 established under Part 2 of the
Victorian Civil and Administrative
Tribunal Act 1998.'.
5. Functions of the Commissioner
(1) In section 9(1) of the Principal Act--
30 (a) after paragraph (f) insert--
"(fa) to refer issues to the Council for
advice;";
(b) after paragraph (n) insert--
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"(na) to provide education and information to
providers and users about the
prevention and resolution of complaints
relating to health services;
5 (nb) to provide training about the prevention
and resolution of complaints relating to
health services;
(nc) to conduct research into complaints
relating to health services and
10 mechanisms for resolving complaints
relating to health services;".
(2) In section 9 of the Principal Act, for sub-sections
(3) and (4) substitute--
"(3) The Commissioner may perform the
15 Commissioner's functions even though the
Commissioner has not developed a code of
practice in relation to those functions.".
6. Distribution of information
In section 10 of the Principal Act, after
20 paragraph (g) insert--
"(ga) encourage providers to distribute, display or
make available material and information
produced by the Commissioner about the
resolution of complaints relating to health
25 services;".
7. Reports
In section 11 of the Principal Act, for sub-section
(5) substitute--
"(5) A report made by the Commissioner under
30 sub-section (1) or (2) may name a person
if--
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(a) the Commissioner believes on
reasonable grounds that naming the
person is reasonably necessary to
prevent or lessen the risk of a serious
5 threat to--
(i) the life, health, safety or welfare
of any person; or
(ii) the health, safety or welfare of the
public; or
10 (b) the person is a provider who has
unreasonably failed to take action that
has been specified in a notice under
section 22(6) to remedy a complaint
and has been given a notice under
15 section 22(12).
(6) Before naming a person in a report under
sub-section (5), the Commissioner must, at
least 14 days before naming that person--
(a) notify the person in writing that the
20 Commissioner intends to name that
person in a report; and
(b) give the person an opportunity to object
to the naming of that person in the
report within the period specified in the
25 notice.
(7) A report made by the Commissioner under
sub-section (4) may name any person who is
involved with the matter being
investigated.".
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8. Removal of members of Health Services Review
Council
In section 12 of the Principal Act, after sub-
section (7) insert--
5 "(7A) For the purposes of sub-section (7), "good
cause" includes the following--
(a) the member is guilty of misconduct in
carrying out the duties of his or her
office;
10 (b) the member is mentally or physically
incapable of satisfactorily carrying out
the duties of his or her office;
(c) the member has failed to attend
3 consecutive meetings of the Council
15 without leave from the Council;
(d) the member is convicted of an
indictable offence or an offence that, if
committed in Victoria, would be an
indictable offence;
20 (e) the member becomes an insolvent
under administration.".
9. Functions of the Council
(1) In section 14(1) of the Principal Act, after
paragraph (b) insert--
25 "(ba) to provide expertise, guidance and advice to
the Commissioner; and
(bb) to promote the Commissioner, the operations
of the Commissioner and the guiding
principles; and".
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(2) In section 14 of the Principal Act, after sub-
section (1) insert--
"(1A) The Council may perform its functions in
any manner it thinks fit.".
5 10. Complaints on behalf of deceased users
(1) After section 15(3) of the Principal Act, insert--
"(3A) The Commissioner may--
(a) recognise as the representative of a user
who has died a person who, in the
10 Commissioner's opinion, has a
sufficient interest in the subject-matter
of the complaint; and
(b) allow that person to complain to the
Commissioner on the user's behalf.".
15 (2) At the end of section 16 of the Principal Act
insert--
"(4) A complaint may be made under sub-section
(1) by a user's representative in relation to a
user who has died whether it is alleged in the
20 complaint that the provider acted
unreasonably during the lifetime or after the
death of the user.".
11. Preliminary assessment of complaints
(1) In section 19(1) of the Principal Act, for "or
25 trivial" substitute ", misconceived or lacking in
substance".
(2) In section 19(2) of the Principal Act--
(a) after "a court" insert "or a coroner";
(b) for "Administrative Appeals Tribunal"
30 substitute "Victorian Civil and
Administrative Tribunal";
(c) after "the court," insert "coroner,".
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(3) In section 19 of the Principal Act, after sub-
section (7) insert--
"(7A) If the Commissioner refers a complaint
under sub-section (6) or (7), the
5 Commissioner may also refer any
information that, in the Commissioner's
opinion, is relevant to the complaint to the
registration board or appropriate person,
organisation or agency (as the case
10 requires).".
(4) In section 19(8) of the Principal Act after "or
within" insert "a further period fixed under sub-
section (9AA) or".
(5) After section 19(9) of the Principal Act, insert--
15 "(9AA) If the Commissioner considers that a further
period would allow for the resolution of the
matter in accordance with sub-section (5),
the Commissioner may fix a period of not
more than 28 days for the purposes of sub-
20 section (8).".
12. New section 19A inserted
After section 19 of the Principal Act insert--
"19A. Splitting of complaints
(1) If a complaint--
25 (a) deals with more than one subject-
matter; or
(b) deals with more than one set of
circumstances; or
(c) makes allegations against more than
30 one provider; or
(d) makes more than one allegation against
a provider; or
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(e) for any other reason is suitable to be
dealt with in separate parts--
the Commissioner--
(f) may if it is administratively convenient
5 to do so; or
(g) must if it is in the best interests of the
user to do so--
determine that any subject-matter, set of
circumstances, allegation or part of a
10 complaint, as the case requires, be treated as
a separate complaint.
(2) The Commissioner must not make a
determination under sub-section (1) unless
he or she is satisfied that any attempt at
15 conciliation is unlikely to be prejudiced by
the making of the determination.".
13. Conciliation
(1) In section 20(2) of the Principal Act, after "(n)"
insert ", (na), (nb), (nc)".
20 (2) In section 20(6)(b) of the Principal Act, after sub-
paragraph (ii) insert--
"(iia) recommend that conciliation should
continue; or
(iib) recommend that the Commissioner stop
25 dealing with the complaint; or".
(3) In section 20 of the Principal Act, after sub-
section (6) insert--
"(6A) A report under sub-section (6) on the
progress of the conciliation process
30 must be provided to the Commissioner
during the conciliation process at the
time or times requested by the
Commissioner.".
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(4) In section 20 of the Principal Act, for sub-section
(10) substitute--
"(10) If a conciliator recommends that conciliation
should continue, the Commissioner must
5 refer the complaint again for conciliation.
(10A) If a conciliator makes a recommendation
other than a recommendation referred to in
sub-section (9) or (10), the Commissioner
may--
10 (a) investigate the complaint; or
(b) refer it again for conciliation; or
(c) stop dealing with the complaint if the
Commissioner is of the view that--
(i) the complaint cannot be
15 conciliated; and
(ii) no further action is warranted; or
(d) deal with it in any other way authorised
by this Act.
(10B) The Commissioner may stop dealing with a
20 complaint, whether or not a recommendation
of a conciliator has been made, if the
Commissioner is of the view that--
(a) the complaint cannot be conciliated;
and
25 (b) no further action is warranted.".
(5) In section 20 of the Principal Act, after sub-
section (13) insert--
"(13A) The Commissioner may re-open any
complaint that the Commissioner has
30 stopped dealing with under sub-section
(10A) or (10B) if--
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(a) the user has provided new or additional
information; and
(b) in the Commissioner's opinion, the user
is able to show good reason as to why
5 the information was not previously
provided.
(13B) A conciliator may discuss any matter arising
in relation to the performance of his or her
functions as a conciliator under this Act with
10 any other conciliator.".
(6) In section 20 of the Principal Act, for sub-section
(15) substitute--
"(15) A conciliator must not disclose information
gained during the conciliation process or
15 gained from another conciliator--
(a) in any further conciliation process; or
(b) to any person employed for the
purposes of this Act--
except for the purposes of--
20 (c) reporting to the Commissioner under
this section; or
(d) discussing a matter with another
conciliator in accordance with sub-
section (13B).
25 Penalty: 10 penalty units.".
14. Investigation of complaints
In section 21 of the Principal Act, after sub-
section (6) insert--
"(7) If, in the course of investigating a complaint,
30 the Commissioner decides the complaint is
suitable for conciliation, the Commissioner
must, without delay, refer the complaint for
conciliation.".
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15. Notices and procedures
(1) In section 22(2) of the Principal Act, after "the
complaint" insert "including a copy of any
information referred to the registration board".
5 (2) In section 22 of the Principal Act, after sub-
section (6) insert--
"(6A) A notice under sub-section (6) must also
advise the user and the provider that the
Commissioner may conduct an inquiry into
10 what action the provider has taken upon a
complaint.".
(3) In the penalty at the foot of section 22(9) of the
Principal Act, for "10 penalty units" substitute
"60 penalty units".
15 (4) In section 22 of the Principal Act--
(a) in sub-section (10)--
(i) after "sub-section (9)" insert "or a
period specified in a notice given under
sub-section (12)";
20 (ii) after "report" insert "or produce
information (as the case requires)";
(b) in sub-section (11), after "report" insert "or
produce information (as the case requires)".
(5) In section 22 of the Principal Act, after sub-
25 section (11) insert--
"(12) After the 45 day period referred to in sub-
section (9) (or if an extension of time has
been granted by the Commissioner, at the
end of the period of that extension) the
30 Commissioner may, by notice in writing,
require a provider to produce to the
Commissioner information about what action
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the provider has taken upon the complaint,
including action to remedy the complaint
within the period specified in the notice.
(13) The Commissioner may require a provider to
5 produce information by a notice given under
sub-section (12)--
(a) in addition to any report received by the
Commissioner under sub-section (9) or
even if no report has been received
10 under sub-section (9); and
(b) any number of times until the
Commissioner is satisfied that the
provider has taken appropriate action to
remedy the complaint.
15 (14) A provider must comply with a notice given
under sub-section (12) within the period
specified in the notice.
Penalty: 60 penalty units.
(15) The Commissioner may conduct an inquiry
20 into what action the provider has taken upon
a complaint, including action taken to
remedy the complaint, following a notice of
a decision under section 22(6) requiring such
action.".
25 16. Update of reference to VCAT
In section 23(1)(c) of the Principal Act, for
"Administrative Appeals Tribunal" substitute
"Victorian Civil and Administrative Tribunal".
17. Powers relating to evidence and investigations
30 In section 25 of the Principal Act, after
paragraph (a) insert--
"(ab) the Commissioner's inquiries into actions
taken by a provider following a notice of a
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decision under section 22(6) requiring action
to be taken; and
(ac) the Commissioner's inquiries pursuant to
section 9(1)(l); and".
5 18. Confidentiality
(1) In section 32(1) of the Principal Act, in the
definition of "position"--
(a) in paragraph (c) for "conciliation" substitute
"conciliation,";
10 (b) in paragraph (f) omit "Health Service
Review".
(2) In section 32 of the Principal Act--
(a) in sub-section (2A), for "section 44A of the
Audit Act 1958" substitute "section 12 of
15 the Audit Act 1994";
(b) in sub-section (3), for ' "communicate" '
substitute ' "disclose or communicate" '.
(3) In section 32 of the Principal Act, for sub-section
(4) substitute--
20 "(4) Sub-section (2) does not apply to a person
who discloses or communicates confidential
information if the disclosure or
communication is--
(a) in accordance with the written authority
25 of--
(i) the Minister, if the Minister is
satisfied that the disclosure or
communication is in the public
interest; or
30 (ii) the user and the provider to whom
the information relates; or
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(b) for the purposes of proceedings for an
offence under this Act or any other
criminal proceedings.
(4A) A person who holds or who has held a
5 position must not be required--
(a) to produce in court a document
containing confidential information or
permit a court to access such a
document; or
10 (b) to disclose or communicate confidential
information to a court--
unless it is necessary to do so--
(c) for the purposes of proceedings for an
offence under this Act; or
15 (d) in the case of a person referred to in
paragraphs (c) to (f) of the definition of
"position" in sub-section (1), for the
purposes of any other criminal
proceedings.".
20 (4) In section 32 of the Principal Act, after sub-
section (5) insert--
"(5A) Nothing in sub-section (4A) requires a
person--
(a) to produce in court a document
25 containing confidential information
gained because of the person's position
as a conciliator or permit a court to
access such a document; or
(b) to disclose or communicate confidential
30 information gained because of the
person's position as a conciliator to a
court.
(5B) The Commissioner may disclose or
communicate confidential information
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received by the Commissioner, other than
confidential information relating to a
complaint--
(a) if the person who provided the
5 information consents to that disclosure
or communication; or
(b) with the written authority of the
Minister, if the Minister is satisfied that
the disclosure or communication is in
10 the public interest.".
19. Commissioner to specify report periods
In section 33 of the Principal Act--
(a) after "each financial year" insert "or any
other period specified in writing by the
15 Commissioner and published in the
Government Gazette".
(b) after "the financial year" insert "or the
period specified by the Commissioner".
20
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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