Victorian Consolidated Legislation

Health Records Act 2001 - SECT 51

Circumstances in which Health Services Commissioner may decline to entertain complaint

51. Circumstances in which Health Services Commissioner may decline to
entertain complaint



(1) The Health Services Commissioner may decline to entertain a complaint made
under section 45(1) by notifying the complainant and the respondent in writing
to that effect within 90 days after the day on which the complaint was lodged
if the Health Services Commissioner considers that-

   (a)  the act or practice about which the complaint has been made is not an
        interference with the privacy of an individual; or

   (b)  the complaint is made on behalf of a complainant by a person who is
        not authorised by section 47 to do so; or

   (c)  although a complaint has been made to the Health Services Commissioner
        about the act or practice, the complainant has not complained to the
        respondent; or

   (d)  the complaint to the Health Services Commissioner was made more than
        12 months after the complainant became aware of the act or practice;
        or

   (e)  the complaint is frivolous, vexatious, misconceived or lacking in
        substance; or



   (f)  the act or practice is the subject of-

   (i)  an application under another enactment; or

   (ii) a proceeding in a court or tribunal-

and the subject-matter of the complaint has been, or is being, dealt with
adequately by that means; or

   (g)  the act or practice could be made the subject of an application under
        another enactment for a more appropriate remedy; or

   (h)  the complainant has complained to the respondent about the act or
        practice and either-

   (i)  the respondent has dealt, or is dealing, adequately with the
        complaint; or

   (ii) the respondent has not yet had an adequate opportunity to deal with
        the complaint.

(2) A notice under subsection (1) must state that the complainant, by notice
in writing given to the Health Services Commissioner, may require the Health
Services Commissioner to refer the complaint to the Tribunal for hearing under
Division 6.

(3) If the act or practice could be made the subject of an application under-

   (a)  the Information Privacy Act 2000; or

   (b)  the Privacy Act 1988 of the Commonwealth; or

   (ba) the Disability Act 2006; or





   (c)  the Ombudsman Act 1973-

the Health Services Commissioner may refer the complaint to the Privacy
Commissioner, the Federal Privacy Commissioner, the Disability Services
Commissioner or the Ombudsman, as the case may be, and notify the complainant
and the respondent in writing of the referral.

(4) If the document to which the individual seeks access is a document
referred to in section 16, the Health Services Commissioner may advise the
complainant to make a request for access to the document under the
Freedom of Information Act 1982.

(5) Within 60 days after receiving the Health Services Commissioner's notice
declining to entertain a complaint, the complainant, by notice in writing
given to the Health Services Commissioner, may require him or her to refer the
complaint to the Tribunal for hearing under Division 6.

(6) The Health Services Commissioner must comply with a notice under
subsection (5).

(7) If the complainant does not notify the Health Services Commissioner under
subsection (5), the Health Services Commissioner may dismiss the complaint.

(8) As soon as possible after a dismissal under subsection (7), the Health
Services Commissioner must, by written notice, notify the complainant and the
respondent of the dismissal.

(9) A complainant may take no further action under this Act in relation to the
subject-matter of a complaint dismissed under this section.