Complaints and Compensation

Contributed by Robin Gibson and current to 1 October 2017

Complaints and Whistleblowing

A complaint about a health care provider in the ACT can be made directly to the ACT Health Services Commissioner, who is located within the ACT Human Rights Commission.

A complaint may be made by a person over 18 years of age or a guardian or parent, ordered by the court or have been given permission by the ACT Health Services Commissioner. Many grounds for complaints are based on the concept that the doctor or medical provider acted unreasonably. These are set out in section 39 of the Human Rights Commission Act 2005 (ACT) and can include:
  • provision of unnecessary services;
  • improper disclosure of information;
  • failure to demonstrate consideration or to respect dignity or privacy;
  • failure to provide adequate information about the service or alternatives;
  • failure to exercise due care and skill.
If you feel that you have grounds for a complaint, you should take a friend or relative with you, write down your concerns, the questions you want answered and how you would like the complaint to be resolved. A written form is available to lodge a complaint with the ACT Health Services Commissioner. The Commissioner can then
  • ask the health care provider to respond directly to the complainant;
  • undertake an assessment;
  • offer confidential conciliation;
  • undertake an investigation and make recommendations for service improvements;
  • work with registration boards when disciplinary action is appropriate.
If you wish to complain about some aspect of treatment at the Canberra Hospital, telephone (02) 6244 2222 and ask for either the "Complaints Officer" or the Corporate-Culture team "Consumer Liaison Officer". The direct number is (02) 6244 2974. Staff will permit you to complain over the phone, however a complaint in writing is preferred, as details tend to be clearer. The complaints officer will take up the matter in the relevant service management team (SMT) where the particular health professional works.

The object of a complaint may be to either register concern, get a written explanation, or a letter of apology if required. A record is kept of every call and conversation. The usual time to get back to the complainant with a "concrete" response is ten days. The SMT area may refer the matter to the clinical review committee (which does root cause analysis of adverse events to see if a pattern is emerging) or clinical ethics committee (to better shape the complaint and support the complainer, or "whistleblower", if required).

If compensation is sought, the Hospital's solicitor (the ACT Government Solicitor) will be brought in. The ACT Health Services Commissioner may become involved to organise conciliation. Writing directly to the office of the ACT Minister for Health may lead to a more successful outcome for some complaint claims. All proceedings during conciliation are confidential and information obtained cannot be used as evidence in court. If a settlement is reached at the end of conciliation, a deed of release may be prepared, which will set out the obligations of both parties. In some cases, an acceptable outcome may involve the provider paying compensation to the patient. A patient may seek legal advice before signing the release but, once it has been signed, he or she will be unable to take any legal action against a provider who is observing the terms of the settlement.

If your complaint is about a person who is employed by the ACT and is engaging in conduct amounting to a substantial and specific danger to the health or safety of the public, then you may make a public interest disclosure to the appropriate agency (ie. public hospital). A person lodging a complaint must establish that the complaint is reasonable, it was made bona fide, it was made in the public interest and that it was not vexatious. This complaint will be protected from unlawful reprisals (ie. sacking) by the Public Interest Disclosure Act 1994 (ACT).

Registration Boards

Since July 2010, health professionals have been regulated by the Health Practitioner Regulation National Law (National Law). This legislation was originally passed as Schedule 4 to the Health Practitioner Regulation National Law Act 2009 (Qld). With some variations, the National Law applies Australia-wide.

The National Law established a unified registration scheme that has brought together under one Act a number (currently 14) of health professions and health profession boards. This legislation is designed to encourage an awareness of the rights and responsibilities of both users and providers of health and professional services. It also aims to assist in the maintenance of minimum standards for health service providers through investigation and resolution of complaints about registered health practitioners. A major purpose of the registration process is to ensure that health professional services are provided by people who are suitably qualified and able to provide them. The overriding philosophy of the National Law appears in s 3(2)(a) as follows:

to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.

Professional Misconduct

A report of professional misconduct can be made by any person under Part 8 of the National Law to the Australia Health Practitioner Regulation Agency (AHPRA) which will notify the relevant National Board for that health profession (or a complaint can be lodged under s 39 of the Human Rights Commission Act 2005 (ACT)). The required standard of practice is '...what might reasonably be expected of the practitioner by the public or the practitioner's professional peers' (s 144(1)(a) National Law). AHPRA can dismiss the complaint but once it is referred to a National Board, a broad range of powers exists, including immediate action, referral to a performance and professional standards panel or a health panel, or to a tribunal. In the ACT the relevant tribunal is the ACT Civil and Administrative Tribunal (ACAT).

Section 66(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), together with s 196(2) of the National Law, gives ACAT power to make a wide range of orders including:
  • suspension or removal from the register;
  • reprimanding the health practitioner;
  • requiring a written undertaking from the health practitioner;
  • imposing conditions;
  • giving directions;
  • requiring the health practitioner to take part in a review of their professional practice;
  • requiring the health practitioner to complete educational or other professional development courses;
  • requiring the health practitioner to undergo medical psychiatric or psychological assessment or counselling;
  • imposing fines.
ACAT may decide whether the conduct of the health practitioner is professional misconduct, unprofessional conduct or unsatisfactory professional performance or that the health practitioner has an impairment (s 196(1) National Law).

ACAT is required to provide a written notice of any order made within 7 days (s 59 ACAT Act), and must provide written reasons for its decision if requested by a party within 14 days after the decision (s 60 ACAT Act). An appeal may be made to the Appeals Division of ACAT (s 79 ACAT Act). An appeal from an ACAT decision on appeal may be made to the Supreme Court on a question of fact or law, with the leave of the Court (s 86 ACAT Act).

Commencing Litigation for Professional Negligence

When seeing a solicitor to commence proceedings to recover damages for medical negligence, you will be asked to sign a costs agreement providing for payment for legal services. The case may be taken on a 'no win no fee' basis. If you lose a 'no win no fee' case, the question of whether you have to pay the costs of the other side or not will depend on the terms of your costs agreement and any costs order made by the court. Normally, if the case is settled prior to the court hearing, the plaintiff doesn't have to pay the costs of the defendant. However, there are disbursements you may have to pay, even in 'no win no fee' cases, including filing fees, setting down fees, subpoena and medical reports. You must be clear about the fees that you will have to pay. You are entitled to seek independent legal advice about the terms of any costs agreement.

Many plaintiff firms provide the first appointment free of charge so that the solicitor can determine whether you have a reasonable claim or not. The solicitor will need to know the factual chronology, preferably prepared before the meeting. It must be mentioned however, that under Part 2.3 of the Civil Law (Wrongs) Act 2002 (ACT), a doctor may give an apology (an oral or written expression of sympathy or regret) which cannot be admissible as an express or implied admission of fault or liability.

Once a doctor willingly accepts a patient's request for a medical opinion, they owe that patient a duty of care. The doctor has a duty to achieve the best outcome for that patient, but is under no obligation or duty to cure them. The standard of care in general terms will be that of a reasonable doctor in the defendant's position (s 42). The court may, however, decide upon a 100% reduction of damages for contributory negligence if it is just and equitable to do so, with the result that any claim for damages is defeated (s 47).

To commence litigation proceedings against a doctor, you must have sent the doctor a written notice of claim (not the actual legal statement of claim) within 9 months of the event causing damage or when symptoms of it first appeared, or within 4 months of your first seeing a lawyer about it (s 51). The doctor must respond to that notice within a prescribed time (s 52).

The parties may agree to one person being the expert witness for both of them (s 65). However, if there is no agreement, s 67 makes provision for the claimant to choose from a panel of 3 doctors nominated by the doctor.

In the ACT there is a cap on damages for loss of weekly earnings (to three times average weekly earnings) (s 98). This can make a huge difference to the damages awarded to someone who is catastrophically injured. At present, there is no cap on damages for pain and suffering, general damages or continuing care.

Commencing a medical negligence action is a very stressful and expensive undertaking. It is unjust that this remains the only practical means of obtaining compensation after medical error. It must be stressed however that a medical negligence action only provides monetary damages for negligent conduct not merely for an adverse outcome that may not amount to negligence. A "no fault" compensation scheme such as that in operation in New Zealand is designed to provide ongoing care for an injured patient and is not tied to obtaining a judgement against an allegedly negligent medical practitioner.

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