Copyright © Government of South Australia 2002
All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Copyright. The Copyright Act, 1968 (Cth) permits certain reproduction and publication of South Australian legislation. In particular s. 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For the reproduction or publication beyond that permitted by the Act, permission should be sought in writing from the South Australian Attorney-General's Department. Requests in the first instance should be addressed to the Attorney-General.
HEALTH AND COMMUNITY SERVICES COMPLAINTS BILL
Speech: The Hon. L. STEVENS (Minister for Health) obtained leave and introduced a bill for an act to provide for the making and resolution of complaints against health or community service providers; to make provision in respect of the rights and responsibilities of health or community service users and providers; and for other purposes. Read a first time.
The Hon. L. STEVENS: I move:
That this bill be now read a second time.
I seek leave to have the second reading explanation inserted in Hansard without my reading it.
TAKE IN H:\2READEXP\HACSCB.DOC
health and community services complaints bill 2002 The purpose of the Health and Community Services Complaints Bill 2002 is to provide for the making and resolution of complaints against health or community service providers; to make provision in respect of the rights and responsibilities of health and community service users and providers; and for other purposes.
Before detailing the purposes and provisions of the Bill it is worth recalling the background to the development of this legislation.
This initiative to establish a Health and Community Services Ombudsman is long overdue. Every day our fellow South Australians in their thousands approach health and community services for help, support and care. They do this at a time in their lives when they are at their most vulnerable due either to physical or mental illness, disability, or the despair brought on by family crises, unemployment, poverty and social exclusion.
Most people can and do approach these vital health and community services with confidence, certain in the knowledge that they will receive the help they need in a caring, respectful and professional manner. South Australia's dedicated health and community service providers, whether in government, nongovernment or private sectors, have an enviable and well-deserved reputation for delivering high quality services that meet `world's best' standards of care.
While this picture is true for most people who use these services there is another more disturbing experience which can confront consumers. The sad reality is that things can go wrong when they should not. People can be poorly cared for, or receive the wrong treatment or medication, or can be dealt with in a disrespectful or at times careless manner. They can have their rights denied or be further damaged, or worse, by the very services meant to assist them.
Before honourable members come to debate the provisions of this bill I ask that we all remember one critical thing, and that is that problems and complaints about health and community services are intensely personal and affect individuals every day when they are at their most vulnerable. I am sure that all honourable members have dealt with women trying to escape from domestic violence situations who have not been helped by crisis service, or the mental health patient who cannot get the community support she needs, or the daughter whose elderly parent is not being cared for properly in an aged care facility, or the son whose mother received the wrong medication, or the expecting mother whose antenatal care is compromised because the GP and the specialist are not coordinating their services, or the teenager who has been mistreated by the care system designed to protect him or her.
Sometimes these problems can arise because of lack of resources or through misunderstanding and confusion. But we cannot discount the possibility of poor practices, improper or unethical behaviour or things just plainly going wrong when they should not.
In these times when people are at their most vulnerable the last thing they need is for a care service to further harm them or exclude them. The last thing they need is to be abandoned. The Labor Government is pledged to stand by people to provide them with the means of having their complaints and concerns addressed and resolved. At the very centre of the Government's Election Policy in Health and Community Services was the commitment to introduce this legislation.
There is now an established system of accountability for health providers internationally and throughout every State and Territory in Australia. That is, except here in South Australia. Everywhere in Australia if people have a problem with a provider of care, either public or private, and cannot resolve it directly, they can seek the intervention of a powerful, independent complaints body. Everywhere that is except here in South Australia.
Former State Labor governments started the process of providing health consumers with protection in the South Australian health system. In the 1980s the then State Labor Government established the Health Advice and Complaints Office as part of its commitment to develop a broader based independent complaints office.
In 1993 the then State Labor Government signed the Medicare Agreement committing the Government to establish a Charter for Health Consumer Rights and an Independent Health Complaints Agency. The former Minister for Health and former Member for Elizabeth, the Honourable Martyn Evans, concluded a broad based consultative process and developed clear proposals for a Charter and draft legislation to establish such a Complaints Agency. Today, I wish to acknowledge and commend his work.
It was not until 1996 that the former Minister for Health Dr Michael Armitage finally moved to establish a small Unit with limited powers and jurisdiction, within the Office of the State Ombudsman. I emphasise that this however only provided for limited coverage of the State Public Health System.
By 1996 the rest of the country had already moved beyond the terms of the 1993 Medicare Agreement. By 1996 all other States and Territories in Australia had either implemented or were in the process of establishing comprehensive independent health complaints commissioners or ombudsmen, which had the powers to cover both the public and private system. These moves were in line with recommendations of the 1996 Final Report of the Task Force on Quality in Australian Health Care.
It is clear to anyone who has had to use a health or community service or who provides such services that people can and often do receive assistance from many different professionals and providers across the public, non government and private systems. A person can approach a general practitioner, be admitted to both a public and then private Hospital at different stages of care, use the services of a specialist, have tests performed by pathologists or radiologists and receive after care by Domiciliary Care or RDNS, and they may then also approach community support agencies for ongoing assistance. On each occasion of service they move across an unseen border between the public and private system. If all is well this movement should present no problem. But when things go wrong who is to say where a proper investigation must go in order to identify an error and reach a resolution? In South Australia the State Ombudsman's Consumer Health Complaints Unit can only intervene with the public sector, not the private and nongovernment care services.
In July 1998 Labor introduced a Private Member's Bill into the House to amend the South Australian Health Commission Act. This amendment would have broadened the powers of the State Ombudsman to include private and nongovernment health care providers within his or her jurisdiction.
In March 2000 and again in October 2000 Labor tabled a more comprehensive proposal than the one contained in the 1998 Bill. The provisions of that Bill tabled in 2000, are very similar to those I am presenting today. That Bill also sought to establish a Health and Community Services Ombudsman with wide powers to investigate, conciliate and resolve complaints not just across the public, nongovernment and private sectors but also across the broad sweep of health and community services. That Bill has been available for debate, discussion and broad community consultation for over two years. Many well considered responses from the community and service provider groups were received. Their views have helped strengthen the current form of the Bill I am tabling today and the Government thanks them for their contribution.
The former Minister for Human Services finally tabled some legislation in 2001, as a result of Labor's actions and as a result of community pressure. However that Bill was deeply flawed and was based on minimal consultation. It was never debated.
The Health and Community Services Ombudsman established by this Bill will have wide powers of investigation. The principal aim though is to seek resolution and remedy. The Bill builds on the well-established reputation for independence, which is the cornerstone of the public's confidence in an Ombudsman role. The Health and Community Services Ombudsman does not take sides, but rather has the authority to seek out the truth of a complaint and has the authority to construct a remedy.
The Bill is far-reaching in its jurisdiction simply because it reflects the diversity of providers of health and community services. In today's world, health and community services are delivered in a wide variety of settings including: government, nongovernment and private operators, registered professionals, unregistered care providers, alternative and complementary therapists, volunteers, large institutions, shopfront and neighbourhood centres. To this point no one Authority has had the ability to go with people, protect their interests, investigate their grievances and provide an avenue for redress, resolution and remedy. This Bill will allow this to happen.
The Health and Community Services Ombudsman does not duplicate the role of professional Registration Boards. It is clear that the Health and Community Services Ombudsman's role is complementary. Registration Boards are there to protect the public interest, but whatever disciplinary steps may be taken by a Board or Tribunal it can still leave the complainant outside of the process and without a sense of resolution.
Unfortunately also, for some members of the public, Registration Boards are seen as professional clubs, closed shops designed to protect the interests of the professionals. Whilst this is not the Government's view, we believe such a perception underscores the absolute necessity of having a Health and Community Services Ombudsman who is and who is seen to be completely independent of any professional group or provider. Only then can the public approach the Health and Community Services Ombudsman with confidence.
The other limitation on the role of the Boards is that they are only empowered to examine the conduct of one particular professional group like doctors or nurses or physiotherapists. Today, health and community services are more often than not based on multidisciplinary teamwork where a consumer can receive a variety of services from a range of registered professionals or unregistered care providers at the same time. A Registration Board is unable to look at the full range of issues, which could arise.
In addition to the conduct of any one professional a problem or complaint may cut across a number of professional groups or care workers, the organisations they work for, or the methods of their coordination and communication. Only the Health and Community Services Ombudsman has the ability to investigate the total care process.
It is always hoped that whatever the complaint may be, it can be addressed and resolved directly and immediately between the consumer and the provider. But this cannot always happen. Sometimes the power imbalance between the consumer and provider is too great, or sometimes the complaint is too serious for there to be an effective, direct avenue for remedy. By establishing the Health and Community Services Ombudsman, Parliament recognises this problem and provides a place of last resort where aggrieved parties can seek objective investigation, conciliation, resolution and remedy.
The approach taken by the Health and Community Services Ombudsman envisaged in this Bill is one that not only benefits consumers but also benefits health and community service providers. When the relationship of trust between the provider and consumer breaks down, because of actual or perceived problems in the care delivered, it can sometimes be almost impossible for providers to restore that trust by themselves. The Health and Community Services Ombudsman can be an independent third party who assists the provider and consumer examine the problem and help to conciliate their differences.
In underscoring the role of the Health and Community Service Ombudsman regarding providers of services I want to briefly mention the situation as it applies to volunteers. Volunteers in South Australia make great sacrifices to give of their time to help improve the health and welfare of their fellow community members. The Premier himself has taken on the Portfolio as Minister for Volunteers to demonstrate how important their role is and how much this Government values their significant contribution.
Volunteers of course can be the subjects of a complaint from an aggrieved consumer. That is to be expected, but volunteers have nothing to fear from this legislation. The legislation is about resolution not persecution, it is designed to ensure that providers (including volunteer providers) and consumers are fairly dealt with and can arrive at a positive solution to whatever problem may exist between them.
In the case of a volunteer they are invariably providing a service through an organisation, as such should a complaint be made about them which comes to the attention of the Health and Community Service Ombudsman, the actual process of investigation is directed at the organisation providing the service. The volunteer is providing a service as an `agent' of that organisation, be it a hospital, local community support centre or welfare group. The volunteer by definition would have to be involved in the resolution of a problem but they would not be expected to deal with this situation by themselves. Their organisation would also be intimately involved in dealing with a problem and finding a remedy if needs be.
As bold as some members think this initiative may be, all it does is to bring South Australia into line with well-established national and international moves of several years standing. Health Complaints Commissioners or Ombudsmen are established facts in all other States and Territories in Australia. Several have had their legislation drafted or specifically amended to include community services within their jurisdiction.
Where this Bill goes further is in providing clear and inclusive definitions for health and community services covered by the legislation, it also provides for a clearer role for the Health and Community Services Ombudsman in early and informal resolution of complaints and, finally, it clarifies the role between the Health and Community Services Ombudsman and other complaint handling bodies particularly Registration Boards to ensure a proper and well coordinated working relationship between all parties.
I will now detail the provisions of the Bill.
The Bill establishes a Health and Community Services Ombudsman whose independence is guaranteed by legislation. The Health and Community Services Ombudsman will have an extensive jurisdiction covering health and community services sectors in the government, non- government and private sectors. This jurisdiction reflects the diversity and complexity of the health and community sectors. The Bill confers extensive powers on the Health and Community Services Ombudsman to assess, investigate and where appropriate conciliate complaints. The chief purpose of the Bill, as I have stated, is to seek resolution and remedy.
The role of the Health and Community Services Ombudsman is extended to look at the issues of rights and quality standards and complaints more systematically. The Health and Community Services Ombudsman will be able to comprehensively monitor trends in complaints across the health and community services sectors.
The Health and Community Services Ombudsman will also have the powers to initiate investigations into emerging problems in the service delivery system and therefore will play an important part in fostering safety and quality improvement across health and community services generally.
A key task of the Health and Community Services Ombudsman will be to draft a Charter of Health and Community Services Rights for consumers. It is intended that this Charter will provide a description of consumer rights or entitlements. In other words, it will be a description of what consumers can reasonably expect from health and community service providers and other professional providers in these areas. The denial of these rights can in itself become a basis for complaint. The Health and Community Services Ombudsman must, when developing the Charter of Health and Community Services Rights, have regard to a number of important principles including the rights of a person:
×to participate effectively and have an active role in decisions about their health, wellbeing and welfare;
×to be provided with health or community services in a way considerate of their background, needs and wishes; and
×to have access to procedures for dealing with complaints about the provision of health or community services.
By introducing this Bill, this Government is presenting to Parliament a detailed set of proposals to provide consumers with a comprehensive and straight-forward system for responding to their needs when the system may have failed them in some way.
Research suggests that frequently consumers want a frank acknowledgment of the problem created, an apology from the service provider and an assurance that the issue will be addressed so that others do not have the same experience.
It is worthwhile to make reference to the 1999 report of the Expert Advisory Group on Safety and Quality in Australian Health Care, which states:
The Quality in Australian Health Care Study (Wilson et al 1995) estimated that in Australia adverse events' account for 3.3 million bed days per year, of which 1.7 million (that is, about 8 per cent of all bed days) would have been from adverse events that were potentially preventable.
The researchers also noted that:
as in other complex systems ¼ adverse events in health care seldom arise from a single human error or the failure of one item of equipment but are usually associated with complex interactions between management, organisational, technical and equipment problems, which not only set the stage for the adverse event but may be the prime cause.
These adverse events can range from relatively minor disagreements through to life-threatening errors, and in some instances even death. The causes of these events in our health system covers a wide spectrum, from problems with resources, unthinking bureaucratic procedures, poor communication, staff attitudes, inexperience and lack of junior staff. Whatever the cause, none must be tolerated. People's health is too important. The basic principle of health care is, first, do no harm. Our health and community service providers must continue to grapple with improving the quality of their services for the good of their clients and for the good of the community as a whole. But they must do it with the consumer.
This Bill then, in addition to being a mechanism for addressing individual concerns, also becomes an important mechanism to support the quality and safety of a complex system and the services it provides.
It is incumbent on government to establish an effective system that protects South Australian consumers when the health and community services system fails, or is perceived to fail, to deliver appropriate care. This Bill must therefore pass several tests. A properly established agency must have the following:
×it must be rights based; its processes must be transparent and accountable;
×its jurisdiction must be comprehensive, covering private and public health and community services to reflect modern, complex service provision networks;
×it must have extensive powers of early intervention, conciliation and investigation;
×it must be independent;
×it must offer protection to complainants and service providers alike;
×it must have the capacity for speedy and effective interventions with the minimum amount of formality necessary;
×it must be accessible to all South Australians;
×it must have the capacity for research and analysis and the ability to conduct systemic reviews when necessary;
×it must have a broad-based education function for both consumers and service providers; and
×it must have consultation and involvement mechanisms for consumers and providers to promote dialogue on emerging issues and trends.
The Health and Community Services Complaints Bill passes all these tests.
The Bill has nine parts which set out the jurisdiction, objectives, powers and functions of the Office of the Health and Community Services Ombudsman.
Part 1 of the Bill states the definition of terms.
Part 2 deals with the administration of the Act. It describes the process to appoint the office of the Health and Community Services Ombudsman and the terms and conditions of office. It also defines the functions and powers of the Health and Community Services Ombudsman ensuring the independence of the office. A key aspect of the Health and Community Services Ombudsman's role is the duty to encourage and assist direct resolution of complaints between users and service providers.
Part 2 also makes the Ombudsman responsible for identifying and reviewing issues arising out of complaints and to make recommendations for improving services, and recommend ways to preserve and increase the rights of consumers.
Part 3 provides for the development of a Charter of Health and Community Services Rights in consultation with interested persons.
Part 4 deals with the making and assessment of complaints and the process for suspending or taking no further action on complaints.
Part 5 deals with the conciliation process and Part 6 the matters that the Ombudsman may investigate and the conduct of investigations. To maximise the opportunities for access to the complaints mechanism, the Ombudsman has discretionary powers to provide appropriate assistance and encourage internal resolution and early intervention, where necessary.
Part 7 describes the relationship between the Health and Community Services Ombudsman and Registration Authorities and the process of referral between each.
Part 8 establishes the Health and Community Services Advisory Council and describes its membership and functions, the major part of which is to advise the Ombudsman and the Minister on matters related to the operation of the Act and on means to inform users, health and community service providers and the public.
Part 9 deals with miscellaneous matters not dealt with elsewhere in the Act, such as delegation of power or function, protection of identity of service user or complainant and maintenance of confidentiality, protection of consumers from intimidation and reprisals, and the scope of regulations related to the Act.
In summary, this Bill establishes a benchmark for resolving complaints in both the health and community service sector under a single piece of legislation and a single office. No other State or Territory provides for this level of support for users of health and community services in both the public and private system. In this way it is a much more comprehensive Bill than that previously proposed by the now Opposition. It ensures that the Health and Community Services Ombudsman must always act impartially, independently, and in the public interest.
Finally this Bill stands as testament to this Government's commitment to return South Australia to national leadership in social advancement. This Government is committed to bringing about bold, much needed and well thought through reforms to improve the life of all South Australians. The measures contained in this Bill provide fair, reasonable, balanced and accountable reforms designed to protect individuals as well as improve the quality of services for all of us.
I commend this Bill to the house.
Explanation of Clauses
Clause 1: Short title
This clause is formal.
Clause 2: Commencement
The measure may be brought into operation by proclamation.
Clause 3: Interpretation
This clause sets out the definitions required for the purposes of the measure. The measure will apply to community services and health services, as defined. It will be able to exclude classes of service by regulation.
Clause 4: Appointment
There will be a Health and Community Services Ombudsman (the "HCS Ombudsman"), who is to be appointed by the Governor.
Clause 5: Term of office and conditions of appointment
The HCS Ombudsman is to be appointed on conditions determined by the Governor for a term not exceeding 7 years. An appointment may be renewed but a person must not hold the office for more than two consecutive terms. Limitations will be placed on the ability of the Governor to remove the HCS Ombudsman from office.
Clause 6: Remuneration
The HCS Ombudsman will be entitled to remuneration, allowances and expenses determined by the Governor.
Clause 7: Temporary appointments
The Minister will be able to appoint a person to act as the HCS Ombudsman in an appropriate case.
Clause 8: Functions
This clause sets out the functions of the HCS Ombudsman under the Act. These include to prepare and review the Charter of Health and Community Service Rights, to identify and review issues arising out of complaints and to make recommendations for improving health and community services, to receive and to assess and resolve complaints.
Clause 9: Powers
The HCS Ombudsman will have such powers as are necessary for the performance of the HCS Ombudsman's functions.
Clause 10: Independence
The HCS Ombudsman will act independently, impartially and in the public interest. The HCS Ombudsman will not be subject to Ministerial control.
Clause 11: Committees
This clause provides that the HCS Ombudsman may establish such committees as may be required.
Clause 12: Appointment of conciliators and professional mentors
The HCS Ombudsman will be able to appoint suitable persons as conciliators or professional mentors under the Act. An appointment will be for a term not exceeding three years determined by the HCS Ombudsman, on conditions determined or approved by the Minister.
Clause 13: Staff
The HCS Ombudsman will be assisted by staff assigned by the Minister. The HCS Ombudsman will be able to enter into arrangements for the use of the staff, equipment and facilities of a Department.
Clause 14: Annual report
The HCS Ombudsman will prepare an annual report, which must be tabled in Parliament.
Clause 15: Immunity
A person acting under the Act will not incur any personal liabilities for his or her acts or omissions (except in a case of culpable negligence). The liability will instead attach to the Crown.
Clause 16: Development of Charter
The HCS Ombudsman will be required to develop a draft Charter of Health and Community Service Rights. The draft is to be presented to the Minister within 12 months, or such longer period as the Minister may allow.
Clause 17: Review of Charter
The HCS Ombudsman will be able to review the charter, as appropriate (and will be required to do so at the direction of the Minister).
Clause 18: Consultation
The HCS Ombudsman will be required to take steps to achieve a wide range of views when developing or reviewing the charter.
Clause 19: Content of Charter
This clause sets out various principles that must be considered when the HCS Ombudsman is developing or reviewing the charter. These include having regard to principles such as the fact that a person should be entitled to participate in decisions about the person's health and well-being, that a person should be entitled to take an active role in the person's health care and that health and community services should be provided to the person in a considerate way.
Clause 20: Approval of Charter
The Charter will be subject to the approval of the Minister and will be subject to scrutiny by Parliament.
Clause 21: Who may complain
A complaint about a health or community service may be made by a user of the service, someone acting on behalf of the user of the service, a service provider if the service is having to be provided because of the actions of another provider, the Minister, the Chief Executive of the Department, or another person authorised by the HCS Ombudsman in the public interest.
Clause 22: Grounds on which a complaint may be made
This clause sets out the grounds upon which a complaint may be made. These include that a health or community service provider has acted unreasonably by not providing a health or community service or providing a service that was unnecessary or in an unreasonable manner, or the provider failed to treat a user in an appropriate professional manner or respect a user's privacy or dignity.
Clause 23: Form of complaint
A complaint is to be made in the manner approved or determined by the HCS Ombudsman.
Clause 24: Time within which a complaint may be made
A complaint must be made within two years after the day on which the complainant first had notice of the circumstances giving rise to the complaint unless the HCS Ombudsman is satisfied that it is proper to entertain the complaint in any event.
Clause 25: Further information may be required
The HCS Ombudsman may require a complainant to provide further information or document, or to verify a complaint by statutory declaration.
Clause 26: Assessment
The HCS Ombudsman must assess a complaint within 45 days after receiving it (or such longer period as may be required in view of any delays or a preliminary inquiry) and then either refer it to a conciliator under this measure, investigate it, refer the complaint to a registration authority or other person (if appropriate), or decide to take no further action. A complaint may only proceed if it appears that the complainant has taken reasonable steps to resolve the matter with the relevant health or community service provider.
Clause 27: Preliminary inquiry
The HCS Ombudsman may undertake a preliminary inquiry in relation to a complaint and during the conduct of the inquiry, assist the parties to resolve the complaint through informal mediation.
Clause 28: Provision of documents, etc., on referral of complaint
The HCS Ombudsman may hand over documents and information on a referral and may make copies or take extracts from such documents.
Clause 29: Splitting or joining of complaints
The HCS Ombudsman will be able to either split a complaint into two or more complaints, or join two or more complaints together in appropriate cases.
Clause 30: No further action on complaint
The HCS Ombudsman may at any stage, determine to take no further action on a complaint in certain circumstances. These include where the HCS Ombudsman is satisfied that the complainant is not entitled to make a complaint under this measure, or that there are no grounds for a complaint or the complaint is frivolous, vexatious or not made in good faith. The HCS Ombudsman must take no further action on a complaint if the matter has been adjudicated by a court, tribunal, authority or other body.
Clause 31: Withdrawal of complaint
A complainant may withdraw a complaint at any time. The withdrawal of a complaint under this provision does not necessarily affect the powers of a person or authority to whom the matter has been referred.
Clause 32: Function of conciliator
A conciliator will attempt to encourage settlement of the complaint by arranging discussions, assisting in the making of an amicable agreement, and taking other action with a view to resolving the complaint.
Clause 33: Public interest
The HCS Ombudsman and, if necessary, a conciliator, will identify any issues raised by the complaint that involve the public interest.
Clause 34: Assistance at conciliation
A party to a conciliation may be assisted by another person unless otherwise directed by the conciliator. A party to a conciliation must not be represented by another person unless the HCS Ombudsman is satisfied that the representation is likely to assist substantially in resolving the complaint.
Clause 35: Reports from conciliator
A conciliator must provide a written progress report to the HCS Ombudsman on request. A conciliator will provide a written report of the results of the conciliation to the HCS Ombudsman when satisfied agreement has either been reached or it is not possible to reach agreement.
Clause 36: Conciliation may be brought to an end
A conciliator may end a conciliation for any reasonable cause at any time or at the direction of the HCS Ombudsman. A conciliation must be brought to an end if the conciliator or the HCS Ombudsman considers that the complaint reveals the existence of a significant issue of public safety, interest or importance or a significant question as to the practice of a health or community service provider. If, at the end of a conciliation there are matters that remain unresolved, the HCS Ombudsman may refer the complaint to another conciliator, investigate the complaint, refer the complaint to a registration authority or other person (if appropriate), or decide to take no further action.
Clause 37: Privilege and confidentiality
Anything said in a conciliation (other than an issue of public safety, interest or importance) must not be disclosed in any other proceedings without the consent of the parties to the conciliation.
Clause 38: Professional mentor
The HCS Ombudsman may appoint a professional mentor to be available to the conciliator to discuss any matter arising in the performance of the conciliator's functions.
Clause 39: Enforceable agreements
An agreement reached through a conciliation process may be made in a binding form.
Clause 40: Matters that may be investigated
The HCS Ombudsman will be able to investigate any matter specified in a written direction of the Minister, a complaint under the measure, an issue or question arising from a complaint if it is a significant issue of public safety, interest or importance or significant question as to the practice of a health or community service provider, or any other matter relating to the provision of health and community services in South Australia.
Clause 41: Limitation of powers
The statutory powers of the HCS Ombudsman under this part of the measure may only be exercised for the purposes of an investigation.
Clause 42: Conduct of investigation
An investigation will be conducted in such manner as the HCS Ombudsman thinks fit.
Clause 43: Representation
A person required to appear or to produce documents may be assisted or represented by another person. The HCS Ombudsman may also make a determination about representation of a person to whom an investigation relates.
Clause 44: Use and obtaining of information
The HCS Ombudsman may obtain information or documents relevant to an investigation, or require a person to produce information or documents, or to attend before a specified person and answer questions. There is a maximum penalty of $5 000 for failing to comply with such a requirement.
Clause 45: Power to examine witnesses, etc.
A person may be required to take an oath or affirmation, or to verify any information or document by statutory declaration.
Clause 46: Search powers and warrants
A magistrate will be able, on the application of the HCS Ombudsman, to issue a warrant authorising a person to enter and search premises for the purposes of an investigation, seize and remove anything relevant to the investigation or require a person on the premises to answer questions or provide information relevant to the investigation.
Clause 47: Reimbursement of expenses
A person attending for the purposes of an investigation may claim expenses and allowances allowed by the HCS Ombudsman.
Clause 48: Reference to another authority for investigation
The HCS Ombudsman may refer a matter arising in an investigation to another authority, person or body (without limiting any power to investigate further).
Clause 49: Possession of document or other seized item
The HCS Ombudsman may retain documents or things seized under these provisions for such period as is necessary for the purposes of the investigation.
Clause 50: Privilege
A person is not required to answer a question or provide information or a document that might tend to incriminate a person of an offence. A person is not to be required to provide information privileged on the grounds of legal professional privilege.
Clause 51: Reports
The HCS Ombudsman may prepare reports during an investigation, and must prepare a report at the conclusion of an investigation. The HCS Ombudsman may provide copies of a report to such persons as the HCS Ombudsman thinks fit. A report may contain information, comments, opinions and recommendations for action.
Clause 52: Notice of action to providers
If the HCS Ombudsman concludes that a complaint is justified but appears incapable of being resolved, the HCS Ombudsman may make recommendations to the relevant service provider. The service provider must advise the HCS Ombudsman as to the action that he or she is willing to take to remedy any unresolved grievances. The HCS Ombudsman may publish a report together with the service provider's advice and any other commentary considered appropriate.
Clause 53: Complaints received by HCS Ombudsman that relate to registered service providers
If the HCS Ombudsman receives a complaint that involves a registered service provider, the Ombudsman should consult with the relevant registration authority in relation to the management of the complaint unless the HCS Ombudsman resolves the matter through informal mediation or decides to take no further action on the complaint.
With its agreement, the complaint may be referred to the registration authority. If the registration authority and the HCS Ombudsman are unable to agree as to who should deal with the complaint, the party that considers the complaint should be investigated will be responsible for conducting the investigation. If both parties consider the complaint warrants investigation, the registration authority must comply with the written direction of the HCS Ombudsman. If the registration authority thinks there is sufficient grounds for the matter to be heard as disciplinary proceedings in accordance with its registration Act, the HCS Ombudsman must refer the matter to the registration authority.
The registration authority and the HCS Ombudsman may agree on protocols in relation to the referral of complaints.
Clause 54: Referral of complaint to registration authority
A registration authority that receives a referral from the HCS Ombudsman must investigate the matter or otherwise deal with it under its registration Act. The registration authority must report its findings to the HCS Ombudsman and any action it has taken or proposes to take.
Clause 55: Action on referred complaints
A registration authority that receives a referral may exercise the powers and perform the functions in relation to the complaint in accordance with its registration Act.
Clause 56: Referral of complaint to HCS Ombudsman
A registration authority that receives a complaint that appears to be capable of constituting a complaint under this Act must consult with the HCS Ombudsman and may refer the matter to the HCS Ombudsman under this clause.
If the registration authority and the HCS Ombudsman are unable to agree as to who should deal with the complaint, the party that considers the complaint should be investigated will be responsible for conducting the investigation. If both parties consider the complaint warrants investigation, the registration authority must comply with the written direction of the HCS Ombudsman. If the registration authority thinks there is sufficient grounds for the matter to be heard as disciplinary proceedings in accordance with its registration Act, the HCS Ombudsman must refer the matter to the registration authority.
Clause 57: Action on investigation reports
A registration authority must inform the HCS Ombudsman whether it is going to act in relation to a matter raised in a report referred to the authority by the HCS Ombudsman. Following performance of the function in accordance with a recommendation, the authority must advise the HCS Ombudsman in relation to the results, any findings and any other action taken or proposed to be taken.
Clause 58: Information from registration authority
A registration authority may provide to the HCS Ombudsman information, comment or recommendations relevant to a complaint. The HCS Ombudsman may request a registration authority for a report on the progress of an investigation of a complaint.
Clause 59: Information to registration authority
A registration authority may request the HCS Ombudsman to provide a report on the progress or result of an investigation of a complaint.
Clause 60: Assistance with proceedings
The HCS Ombudsman may assist a registration authority in any matter if requested by it.
The HCS Ombudsman is entitled to appear or be represented in proceedings before a registration authority and in doing so, may provide documents and other material, call evidence, examine or cross-examine witnesses or make representations and submissions.
Clause 61: Interim action on a complaint
A registration authority may take interim measures in relation to a registered service provider's right to practice under the relevant registration Act pending the outcome of any consultation or investigation under this measure, including suspension or imposing conditions on the provider's right to practice.
Clause 62: Further action by registration authority
This measure does not prevent a registration authority from taking action in relation to a registered service provider in addition to action taken or recommended by the HCS Ombudsman.
Clause 63: Establishment of Council
Clause 64: Conditions of membership
Clause 65: Functions of the Council
Clause 66: Procedure at meetings
Clause 67: Disclosure of interest
These clauses provide for the creation of the Health and Community Services Advisory Council to provide advice to the Minister and the HCS Ombudsman in relation to various matters, or to refer matters that, in the opinion of the Council, should be dealt with by the HCS Ombudsman under this measure. The Council may not provide advice in relation to the handling of a particular complaint.
Clause 68: Delegation
The Minister or the HCS Ombudsman may delegate a power or function under the measure to another person.
Clause 69: Adverse comments in reports
The HCS Ombudsman must give a person in relation to whom an adverse comment is to be made in a report (and who is identifiable) a reasonable opportunity to make submissions in relation to the matter before the comment is made unless the HCS Ombudsman is satisfied that such action is inappropriate in accordance with the terms of this provision.
Clause 70: Protection of identity of service user or complainant from service provider
The HCS Ombudsman may withhold revealing to a service provider the identity of a service user or complainant in certain cases.
Clause 71: Preservation of confidentiality
A person involved in the administration of the measure will be prevented from disclosing confidential information, other than as permitted under this clause.
Clause 72: Returns by prescribed providers
Designated health or community service providers will be required to lodge an annual return with the HCS Ombudsman containing specified information about complaints.
Clause 73: Offences relating to intimidation
It is an offence for a person to threaten or intimidate another person to refrain from making a complaint or to withdraw a complaint, fail to provide information or otherwise fail to co-operate in relation to the performance of the HCS Ombudsman's functions under the measure.
Clause 74: Offences relating to reprisals
It is an offence for a person to treat a person unfavourably on the basis that a person has made a complaint, provided information or otherwise co-operated with the HCS Ombudsman in the performance of his or her functions (unless the person made false allegations or has not acted in good faith).
Clause 75: Offences relating to obstruction, etc.
A person must not obstruct or otherwise hinder the HCS Ombudsman in performance of his or her functions under this measure.
Clause 76: Offences relating to the provision of information
A person must not provide the HCS Ombudsman or other person with information they know to be false or misleading or to fail to provide information, without which may be false or misleading in a material particular.
Clause 77: Protection from civil actions
If a person acts in good faith, he or she is not liable for any loss, damage or injury suffered by another person in relation to making a complaint, a statement or report, or providing information, documents or a report to an authorised person under the measure.
Clause 78: Informality of procedures
The HCS Ombudsman will have regard to the rules of natural justice when acting under the measure and should proceed with the minimum of formality.
Clause 79: Determining reasonableness of health or community service provider's actions
In assessing the reasonableness of the conduct of a health or service provider under the measure, the HCS Ombudsman must have regard to the Charter, principles specified under the measure, and generally accepted standards.
Clause 80: Regulations
The Governor may make regulations for the purposes of the measure.
Clause 81: Transitional provision
A complaint may be dealt with under the measure even though the circumstances arose before the commencement of the measure if the complainant was aware of the circumstances not earlier than two years before the commencement of the measure.
The Schedule specifies registration Acts for the purposes of this measure.
The Hon. I.F. EVANS secured the adjournment of the debate.