VersionNo. 051
Health Services (Conciliation and Review) Act 1987
No. 25 of 1987
Versionincorporating amendments as at
1 July 2012
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Objective
Part 2—Administration
5Health Services Commissioner
6Suspension and vacation of office
7Acting Health Services Commissioner
7ARepealed
7BSuperannuation
8Delegation
9Functions of Commissioner
10Powers of the Commissioner
11Reports
12Health Services Review Council
13Procedure of Health Services Review Council
14Functions of Health Services Review Council
Part 3—Complaints
15Who may complain
16What may be included in a complaint
17How to complain
18Representation
19Preliminary assessment of complaints
19ASplitting of complaints
20Conciliation
21Investigation of complaints
22Notices and procedures
23Commissioner's duty to stop proceedings
24Registration boards to give information
Part 4—General
25Commissioner's powers to compel attendance and call for evidence and documents
26Restrictions on Commissioner's powers
27Warrants
28Offences
29False statements
30Person not to be penalized because of complaining to Commissioner
31Protection for Commissioner, officers and parties to
proceedings
32Confidentiality
33Prescribed provider must give certain information
34Proceedings for offences
35Regulations
36Transitional provision—term of appointment of current
Council members
______
SCHEDULE
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
VersionNo. 051
Health Services (Conciliation and Review) Act 1987
No. 25 of 1987
Versionincorporating amendments as at
1 July 2012
1
Part 1—Preliminary
Health Services (Conciliation and Review) Act 1987
No. 25 of 1987
Preamble amended by No. 2/2001 s.105(a).
Preamble
WHEREAS it is desired to recognise certain guiding principles for providers and users in the Victorian health care system so as to promote—
(a)quality health care, given as promptly as circumstances permit; and
(b)considerate health care; and
(c)respect for the privacy and dignity of persons being given health care; and
(d)the provision of adequate information on services provided or treatment available, in terms which are understandable; and
(e)participation in decision making affecting individual health care; and
(f)an environment of informed choice in accepting or refusing treatment or participation in education or research programmes; and
*****
AND WHEREAS it should be the aim of service providers to satisfy these guiding principles:
AND WHEREAS users of the Victorian health care system should have the option to have their complaints about the system dealt with by an independent and accessible mechanism:
AND WHEREAS it is proposed by this Act to set up that mechanism, and through it—
(a)to deal with user's complaints; and
(b)to suggest ways in which the guiding principles may be carried out; and
(c)to help service providers to improve the quality of health care.
The Parliament of Victoria therefore enacts as follows:
Part 1—Preliminary
1Purposes
s. 1
The purposes of this Act are—
(a)to provide an independent and accessible review mechanism for users of health services; and
(b)to provide a means for reviewing and improving the quality of health service provision; and
(c)to set out the functions and powers of the Health Services Commissioner.
2Commencement
This Act comes into operation on a day or days to be proclaimed.
3Definitions
(1)In this Act—
S. 3(1) def. of Australian Industrial Relations Commission inserted by No.74/2009 s.14(1).
Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal;
S. 3(1) def. of Commiss-ioner substituted by No. 112/1993 s.13.
Commissioner means the Health Services Commissioner under this Act and includes the Acting Health Services Commissioner under this Act;
conciliator means a person employed or authorised under section 20 to perform conciliation functions;
S. 3(1) def. of Council inserted by No. 75/2001 s.4(f).
Council means the Health Services Review Council established under section 12;
S. 3(1) def. of Fair Work Australia inserted by No.74/2009 s.14(1).
Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;
S. 3(1) def. of guiding principles amended by No. 2/2001 s.105(b).
guiding principles means the principles set out in paragraphs (a) to (f) of the first recital of the preamble;
S. 3(1) def. of health service amended by Nos 42/1991
s. 4(a)(i)-(iii), 46/1998
s. 7(Sch. 1), 18/2000 s.110(a), 75/2001 s.4(a)–(c), 29/2010 s.59(1)(a).
health service includes any of the following services—
s. 3
(a)medical, hospital and nursing services;
(b)dental services;
(c)psychiatric services;
(d)pharmaceutical services;
(e)ambulance services;
(f)community health services;
(g)health education services;
(h)welfare and social work services necessary to implement any services referred to in paragraphs (a) to (g);
(ha)therapeutic counselling and psychotherapeutic services;
(hb)laundry, cleaning and catering services, where those services affect health care or treatment of a person using or receiving a service referred to in this definition;
(i)services provided by chiropodists, chiropractors, osteopaths, dietitians, optometrists, audiologists, audiometrists, prosthetists, physiotherapists and psychologists;
(j)services provided by optical dispensers, masseurs, occupational therapists and speech therapists;
(k)services provided by practitioners of naturopathy, acupuncture and in other alternative health care fields;
(ka)services provided by Chinese herbal medicine practitioners, acupuncturists and Chinese herbal dispensers;
(l)a service prescribed as a health service for the purposes of this Act—
s. 3
and includes any service provided by the Department of Healthand the Secretary to the Department ofHealth;
S. 3(1) def. of Industrial Tribunal amended by Nos 83/1992
s. 184(Sch. 6 item 9(a)(b)), 59/1996
s. 10(Sch. 2 item 9), 46/1998
s. 7(Sch. 1), substituted as industrial tribunal by No.74/2009 s.14(2).
s. 3
industrial tribunal means Fair Work Australia or the Australian Industrial Relations Commission;
S. 3(1) def. of provider amended by Nos 42/1991 s.4(b), 73/1997
s. 7(a)–(c), 46/1998
s. 7(Sch. 1), 75/2001 s.4(d), 79/2008 s.3, 29/2010 s.59(1)(b)–(d).
provider includes—
(a)a person or body providing a health service; and
(ab)a person or body which holds himself, herself or itself out as providing a health service; and
(b)the Secretary to the Department of Health; and
(c)a registered provider; and
(d)a person who manages a health care institution and who is registered, certificated or licensed by the Secretaryto the Department of Health; and
(e)a health care institution which is registered, certificated or licensed by the Secretaryto the Department of Health; and
(f)any public hospital, private hospital, supported residential service, registered community health centre, ambulance service, psychiatric hospital or clinic, mental health hospital or clinic; and
(fa)a residential care service within the meaning of the Health Services Act 1988; and
(g)the chief executive officer of any body listed in paragraph (f) or (fa); and
s. 3
(h)any local government body providing a health service; and
(i)a person or organisation that is prescribed as a provider for the purposes of this Act or that is included in a class of persons or organisations prescribed as providers for the purposes of this Act;
registered provider means a person licensed, registered or certificated by a registration board;
registration board means a body that is—
(a)a body listed in the Schedule; or
(b)a body prescribed as a registration board for the purposes of this Act;
S. 3(1) def. of Secretary to the Department of Health insertedby No. 29/2010 s.59(1)(e).
Secretary to the Department of Health means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;
S. 3(1) def. of user substituted by No. 75/2001 s.4(e).
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 section 16(1)(a) that a provider has acted unreasonably by not providing a health service for the person;
S. 3(1) def. of Victorian Civil and Administra-
tive Tribunal inserted by No. 75/2001 s.4(f).
Victorian Civil and Administrative Tribunal means the Victorian Civil and Administrative Tribunal established under Part 2 of the Victorian Civil and Administrative Tribunal Act 1998.
(2)This Act does not apply to a health service provided before the commencement of this section.
s. 4
(3)For the purposes of this Act, a person is not to be regarded as a user merely because he or she has arranged a health service for another user.
S. 3(4) inserted by No. 46/1998
s. 7(Sch. 1), amendedby No.108/2004 s.117(1) (Sch.3 item97.1), substitutedby No. 29/2010 s.59(2).
(4)If under the Public Administration Act 2004 the name of the Department of Health is changed, a reference in the definitions of health service, provider and Secretary to the Department of Healthin subsection (1) to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name.
4Objective
The objective of this Act is to set up a health services review system that will—
(a)enable users of Victorian health services to have their complaints about those services resolved by an independent and accessible mechanism; and
(b)encourage health service providers to follow the guiding principles; and
(c)lead to improvements in the quality of health care and in the extent to which the guiding principles of providers and users are followed.
______
Part 2—Administration
S. 5 substituted by No. 112/1993 s.14.
5Health Services Commissioner
s. 5
S. 5(1) amended by No. 2/2001 s.105(c).
(1)There shall be a Health Services Commissioner.
(2)The Commissioner is to be appointed by the Governor in Council.
(3)The Commissioner is to hold office for a term, not exceeding 5 years, specified in the instrument of his or her appointment, but is eligible for reappointment.
(4)The Governor in Council may specify other terms and conditions of appointment in the Commissioner's instrument of appointment.
(5)The Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.
S. 6 substituted by No. 112/1993 s.14.
6Suspension and vacation of office
(1)The Governor in Council may suspend the Commissioner from office.
(2)The Minister must cause to be laid before each House of Parliament a full statement of the grounds for suspending the Commissioner within 7days after the suspension if that House is then sitting or, if that House is not then sitting, within 7days after the day on which that House next sits.
(3)The Commissioner must be removed from office by the Governor in Council if each House of Parliament, within 7 sitting days after the day on which the statement is laid before it, declares by resolution that the Commissioner ought to be removed from office.
(4)Unless each House of Parliament makes a declaration of the kind specified in subsection (3) within the time specified in that subsection the Governor in Council must remove the suspension and restore the Commissioner to office.
(5)The Commissioner can only be removed from office in accordance with subsections (1) to (3).
(6)The Commissioner may resign from office by writing delivered to the Governor.
S. 7 substituted by No. 112/1993 s.14.
7Acting Health Services Commissioner
s. 7
(1)The Governor in Council may appoint an Acting Health Services Commissioner—
(a)during a vacancy in the office of Commissioner for Health Services; or
(b)during any period when the Commissioner for Health Services is absent or, for any reason, is unable to perform the functions of Commissioner.
(2)An acting appointment is for the period and on any other terms and conditions determined by the Governor in Council.
(3)The Acting Health Services Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.
(4)While acting in the place of the Commissioner of Health Services, the Acting Commissioner has all the powers, functions and duties of the Health Services Commissioner.
(5)Sections 5 and 6 do not apply to the Acting Health Services Commissioner.
S. 7(6) amended by No. 46/1998
s. 7(Sch. 1), substitutedby No.108/2004 s.117(1) (Sch.3 item97.2).
(6)This section does not affect the operation of section 110 of the Public Administration Act 2004 or any corresponding previous enactment.
S. 7A
inserted by No. 112/1993 s.14, substituted by Nos 46/1998
s. 7(Sch. 1), 108/2004 s.117(1) (Sch.3 item97.3), repealedby No. 80/2006 s.26(Sch. item 49).
*****
s. 7B
S. 7B
inserted by No. 112/1993 s.14.
7BSuperannuation
If immediately before his or her appointment the Commissioner was an officer within the meaning of the State Superannuation Act 1988, then while he or she is Commissioner, he or she continues, subject to that Act, to be an officer within the meaning of that Act.
8Delegation
The Commissioner may, by instrument, delegate all or any of the powers or functions of the Commissioner under this Act to a person employed for the purposes of this Act or a class of those persons except this power of delegation.
9Functions of Commissioner
S. 9(1) amended by No. 2/2001 s.105(d).
(1)The following are the functions of the Commissioner under this Act—
(a)to investigate complaints relating to health services;
(b)to review and to identify the causes of complaints, and to suggest ways of removing and minimizing those causes;
(c)to investigate any matter referred to the Commissioner by either House of Parliament or by any Committee of either House or both Houses;
(d)to conciliate between users and providers where a complaint has been made;
(e)to consider ways of improving health complaints systems;
(f)to provide advice to the Health Services Review Council;
S. 9(1)(fa) inserted by No. 75/2001 s.5(1)(a).
(fa)to refer issues to the Council for advice;
(g)to take steps to bring to the notice of users and providers details of complaints procedures under this Act;
s. 9
(h)to develop programmes for the training of health complaints officers and others in the handling of complaints;
(i)to record all complaints received by the Commissioner and to maintain a central register of all such complaints and all complaints shown on returns supplied by providers;
(j)to publish at prescribed intervals information about complaints;
(k)to determine what action has been taken by providers where complaints have been found to be justified;
(l)subject to approval from the Minister, to initiate inquiries into—
(i)matters referred by the Health Services Review Council; and
(ii)broader issues of health care arising out of complaints received;
(m)to inquire into matters referred by the Minister;
(n)to suggest ways in which providers may follow the guiding principles;
S. 9(1)(na) inserted by No. 75/2001 s.5(1)(b).
(na)to provide education and information to providers and users about the prevention and resolution of complaints relating to health services;
S. 9(1)(nb) inserted by No. 75/2001 s.5(1)(b).
(nb)to provide training about the prevention and resolution of complaints relating to health services;
S. 9(1)(nc) inserted by No. 75/2001 s.5(1)(b).
(nc)to conduct research into complaints relating to health services and mechanisms for resolving complaints relating to health services;
s. 9
(o)to develop, after consultations considered appropriate by the Commissioner with users, providers and persons who, in the Commissioner's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commissioner intends to carry out some or all of the Commissioner's functions.
(2)The Commissioner may do all things necessary to perform the Commissioner's functions.
S. 9(3) substituted by No. 75/2001 s.5(2).
(3)The Commissioner may perform the Commissioner's functions even though the Commissioner has not developed a code of practice in relation to those functions.
S. 9(4) repealed by No. 75/2001 s.5(2).
*****
S. 10 amended by No. 2/2001 s.105(e)(i).
10Powers of the Commissioner
s. 10
In performing the Commissioner's functions under this Act, the Commissioner may do any of the following—
(a)consult with such persons or bodies as the Commissioner considers appropriate;
(b)develop, and suggest ways of implementing, procedures for dealing with complaints relating to health services and for making existing procedures more effective in relation to both public and private health services;
(c)provide advice to users on the making of complaints to registration boards;
(d)provide advice to users of other avenues available for dealing with complaints;
(e)provide advice to providers on the making of responses to complaints to registration boards;
(f)encourage the development of quality assurance arrangements throughout the Victorian health care system;
S. 10(g) amended by No. 74/2000 s.3(Sch. 1 item 60).
(g)advise providers, users and the Minister generally on any matter relating to health complaints;[1]
S. 10(ga) inserted by No. 75/2001 s.6.
(ga)encourage providers to distribute, display or make available material and information produced by the Commissioner about the resolution of complaints relating to health services;
(h)assist a registration board if requested to do so by the board;
(i)with the consent of the board or the approval of the Minister, appear or be represented at any proceedings before a registration board and cross-examine or call and examine witnesses and make submissions;
(j)seek information from users and providers about the working of the health complaints system.
11Reports
s. 11
(1)The annual report of the Commissioner must contain any information required by the Minister and may contain any information considered by the Commissioner to be appropriate.
(2)The Commissioner may at any time place a report before each House of Parliament on any matter the Commissioner considers necessary arising from an individual complaint or in relation to the Commissioner's operations.
(3)At any time—
(a)either House of Parliament; or
(b)any committee of either or both Houses—
may refer to the Commissioner for investigation any matter which the House or committee considers should be investigated by the Commissioner.
(4)If a matter is referred to the Commissioner by either House of Parliament or a committee, the Commissioner must investigate the matter immediately and must report the result of the investigation to the presiding officer of the House or committee within any time limit set out in the referral.
S. 11(5) substituted by No. 75/2001 s.7.
(5)A report made by the Commissioner under subsection (1) or (2) may name a person if—
(a)the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen the risk of a serious threat to—
(i)the life, health, safety or welfare of any person; or
(ii)the health, safety or welfare of the public; or
s. 11
(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 section 22(12).
S. 11(6) inserted by No. 75/2001 s.7.
(6)Before naming a person in a report under subsection (5), the Commissioner must, at least 14days before naming that person—
(a)notify the person in writing that the 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 notice.
S. 11(7) inserted by No. 75/2001 s.7.
(7)A report made by the Commissioner under subsection (4) may name any person who is involved with the matter being investigated.
12Health Services Review Council
s. 12
(1)There is established a Health Services Review Council.
S. 12(2) amended by No. 2/2001 s.105(f).
(2)The Council consists of 11 persons appointed by the Minister.
(3)The members of the Council must include—
(a)three persons who, in the Minister's opinion, have experience of and are able to express the interests of providers; and
(b)three persons who, in the Minister's opinion, have experience of and are able to express the interests of users; and
S. 12(3)(c) amended by No. 2/2001 s.105(g).
(c)three persons who, in the Minister's opinion, are not affiliated with any professional association for users or providers or any association which acts as a representative, advocate or adviser for providers or users; and
S. 12(3)(d) inserted by No. 2/2001 s.105(g).
(d)one is a person who, in the Minister's opinion, has experience of matters affecting the privacy of individuals in relation to health information or is able to express the interests of individuals in relation to such matters; and
S. 12(3)(e) inserted by No. 2/2001 s.105(g).
(e)one is a person who, in the Minister's opinion, has experience of, or is able to express the interests of, organisations that handle health information.