Health and Disability Commissioner Amendment Act 2003

1: Title
1: This Act is the Health and Disability Commissioner Amendment Act 2003.
2: In this Act, the Health and Disability Commissioner Act 1994 the principal Act
2: Commencement
This Act comes into force on the day that is 1 year after the date on which this Act receives the Royal assent.
3: Interpretation
1: Section 2(1) Deputy Commissioner the a
2: Section 2(1) disciplinary proceedings any health registration enactment any former health registration enactment or the Health Practitioners Competence Assurance Act 2003
3: Section 2(1) health professional body health registration enactment registered health professional
4: Section 2(1) appropriate authority section 178(1) of the Health Practitioners Competence Assurance Act 2003 authority section 5 of the Health Practitioners Competence Assurance Act 2003 former health registration enactment Schedule 1 health practitioner
a: has the same meaning as in section 5(1) of the Health Practitioners Competence Assurance Act 2003
b: includes—
i: a former health practitioner within the meaning of that section; and
ii: a person who was conditionally or unconditionally registered, or has held a certificate of registration, under a former health registration enactment; and
iii: a person who is receiving training or gaining experience under the supervision of a health practitioner .
4: Definition of health care provider
Section 3 paragraph (h)
h: any health practitioner: .
5: Section 4 The principal Act is amended by repealing section 4
6: New
section 9 The principal Act is amended by repealing section 9
9: Deputy Commissioners
1: There may be appointed 1 or more Deputy Health and Disability Commissioners.
2: A Deputy Commissioner is appointed in the same manner as the Commissioner, except that the Minister must, before recommending a person for appointment as Deputy Commissioner, consult with the Commissioner.
3: Sections 10 to 13
4: A Deputy Commissioner has and may exercise or perform any of the powers, duties, and functions of the Commissioner that the Commissioner may delegate to that Deputy Commissioner either generally or in any particular case.
5: A delegation under subsection (4)
6: In the case of absence from duty of the Commissioner (from any cause) or on the occurrence of a vacancy in the office of Commissioner (whether because of death, resignation, or otherwise) and from time to time while the absence or vacancy continues, all or any of the powers, duties, and functions of the Commissioner may be exercised and performed by—
a: a Deputy Commissioner who has, before the occurrence of the absence or vacancy, been nominated for the purpose by the Commissioner by a written notice that is in effect at the time of the absence or vacancy; or
b: if there is no such notice at that time, by the Deputy Commissioner longest in that office.
7: The fact that a Deputy Commissioner exercises any power, duty, or function under this section is, in the absence of proof to the contrary, sufficient evidence of his or her authority to do so.
7: Functions of Commissioner
1: Section 14(1)(c) disability services providers, and purchasers, and disability services providers
2: Section 14(1) paragraph (d)
da: to act as the initial recipient of complaints about health care providers and disability services providers, and to ensure that each complaint is appropriately dealt with: .
3: Section 14(1)(e) or, in the case of conduct that occurred before the enactment of the Code, in breach of certain disciplinary standards
4: Section 14(1)(g) of the Code
8: Functions of advocates
Section 30(i)(i) a health professional body an authority
9: New
Part 4 sections 31 to 45 The principal Act is amended by repealing the Part 4 sections 31 35 41 31 to 45
4: Complaints and investigations
Receipt of complaints
31: General right to make complaints
1: Any person may complain orally or in writing to an advocate or to the Commissioner alleging that any action of a health care provider or a disability services provider is or appears to be in breach of the Code.
2: Any person may complain orally or in writing to an advocate or to the Commissioner about any action of a health practitioner that was taken at any time before 1 July 1996, if it is alleged or it appears that the action—
a: affected a health consumer; and
b: was, at the time that it was taken, a ground for bringing disciplinary proceedings against the health practitioner under a former health registration enactment; but
c: was not referred to the body that, under that enactment, had jurisdiction to consider it.
3: If a complaint is made under this section to an advocate and the advocate is unable to resolve the complaint, the advocate must—
a: refer the complaint to the Commissioner; and
b: inform the parties concerned of that referral and the reasons for it.
32: Complaints referred to Commissioner
For the purposes of this Part, a complaint that is referred to the Commissioner under section 31(3) of this Act section 64(1) of the Health Practitioners Competence Assurance Act 2003
33: Preliminary assessment
1: As soon as reasonably practicable after receiving a complaint, the Commissioner must make a preliminary assessment of the complaint to decide—
a: whether to take 1 or more of the following courses of action:
i: to refer the complaint to an agency or person in accordance with section 34 or section 36
ii: to refer the complaint to an advocate:
iii: to call a conference, under section 61
iv: to investigate the complaint himself or herself; or
b: whether to take no action on the complaint.
2: The Commissioner must promptly notify the complainant and the health care provider or the disability services provider to whom the complaint relates of the Commissioner's preliminary assessment.
3: This section does not preclude the Commissioner from revising a preliminary assessment and from subsequently exercising 1 or more of his or her other powers in relation to the complaint concerned.
4: If the Commissioner revises a preliminary assessment, the Commissioner must promptly notify the following persons and agencies of the revised assessment:
a: the complainant:
b: the health care provider or the disability services provider to whom the complaint relates:
c: any agency or any person to whom the complaint has, in accordance with section 34 or section 36
d: any advocate to whom the complaint has been referred. Referral of complaints to agencies, persons, statutory officers, or advocates
34: Referral of complaint to agencies or persons involved in health or disability sector
1: At any time after completing a preliminary assessment of a complaint, the Commissioner may refer the complaint, in whole or in part,—
a: to the appropriate authority if it appears from the complaint that the competence of a health practitioner or his or her fitness to practise or the appropriateness of his or her conduct may be in doubt; or
b: to the Accident Compensation Corporation if it appears from the complaint that the aggrieved person may be entitled to cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001
c: to the Director-General of Health if it appears from the complaint that failures or inadequacies in the systems or practices of the health care provider or the disability services provider concerned may harm the health or safety of members of the public; or
d: to the health care provider or the disability services provider to whom a complaint relates if the complaint does not raise questions about the health or safety of members of the public and can, in the Commissioner's opinion, be appropriately resolved by the provider.
2: At any time before or after referring a complaint, in whole or in part, to an agency or person mentioned in subsection (1)
3: After referring a complaint, in whole or in part, to an agency or person mentioned in subsection (1)
4: The Commissioner may refer a complaint, in whole or in part, to more than 1 agency or person mentioned in subsection (1)
5: A reference of a complaint under subsection (1)
35: Agencies or persons to keep Commissioner informed about referred complaints
Each agency or person to whom a complaint is referred under section 34
a: promptly acknowledge receipt of the complaint; and
b: promptly advise the Commissioner of any significant step taken in its consideration or examination of the complaint; and
c: promptly advise the Commissioner of the outcome of its consideration or examination of the complaint.
36: Referrals of complaints to certain statutory officers
1: If, at any time after completing a preliminary assessment of a complaint, the Commissioner considers that the complaint relates, in whole or in part, to a matter that is more properly within the scope of the functions of one of the statutory officers specified in subsection (4)
2: As soon as reasonably practicable after consulting with the officer concerned, the Commissioner must determine whether the complaint should be dealt with, in whole or in part, under this Act.
3: If the Commissioner determines that the complaint should be dealt with, in whole or in part, by one of the officers specified in subsection (4)
a: refer the complaint or, as the case requires, the appropriate part of the complaint to that officer; and
b: notify the complainant and the health care provider or the disability services provider to whom the complaint relates of the action that has been taken.
4: The statutory officers referred to in subsection (1)
a: the Chief Commissioner under the Human Rights Act 1993
b: the Chief Ombudsman:
c: the Privacy Commissioner.
37: Commissioner may refer complaint to advocate
1: At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), the Commissioner may refer the complaint to an advocate for the purpose of resolving the matter by agreement between the parties concerned.
2: On a referral of a complaint, under subsection (1)
a: use his or her best endeavours to resolve the complaint by agreement between the parties concerned; and
b: report the results of those endeavours to the Commissioner.
3: Every report made under subsection (2)(b)
a: the terms of any agreement reached between the parties concerned; and
b: if agreement is not reached on all matters, those matters on which agreement is reached and those matters on which no agreement is reached; and
c: any other matters that the advocate thinks fit.
4: A copy of every report made under subsection (2)(b) Decision to take no action
38: Commissioner may decide to take no action on complaint
1: At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.
2: The Commissioner's consideration under subsection (1)
a: the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:
b: whether the subject matter of the complaint is trivial:
c: whether the complaint is frivolous or vexatious or is not made in good faith:
d: whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:
e: whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.
3: Subsection (2) subsection (1)
4: In any case where the Commissioner decides to take no action, or no further action, on a complaint, the Commissioner must inform the following persons and agencies of that decision and the reasons for it:
a: the complainant:
b: the health care provider or the disability services provider to whom the complaint relates:
c: any agency or any person to whom the complaint has, in accordance with section 34 or section 36
d: any advocate to whom the complaint has been referred. Commissioner required to share certain information
39: Commissioner to inform agencies of certain risks
1: Whenever the Commissioner has reason to believe that the practice of a health practitioner may pose a risk of harm to the public, the Commissioner must promptly notify the appropriate authority of that belief and the reasons for it.
2: Whenever the Commissioner has reason to believe that failures or inadequacies in the systems or practices of a health care provider or a disability services provider are harming or are likely to harm the health or safety of members of the public, the Commissioner must promptly notify the Director-General of Health of that belief and the reasons for it.
3: If, during or after an investigation, the Commissioner is of the opinion that there is evidence of a significant breach of duty or misconduct on the part of a health care provider or disability services provider or an officer or employee or member of a health care provider or disability services provider, the Commissioner must promptly refer the matter to the appropriate person or agency. Investigations by Commissioner
40: Commissioner may investigate breaches
1: The Commissioner may decide to investigate any action of a health care provider or a disability services provider if the action is, or appears to the Commissioner to be, in breach of the Code.
2: The Commissioner may investigate any action of a health practitioner that was taken at any time before 1 July 1996, if it appears that the action affected a health consumer and was, at the time that it was taken, a ground for bringing disciplinary proceedings against the health practitioner under a former health registration enactment.
3: The Commissioner may investigate an action under this section either on complaint or on the Commissioner's own initiative.
41: Complainant and provider to be notified of investigation
1: Before proceeding to investigate a matter under this Part, the Commissioner—
a: must, by written notice, inform the complainant (if any), the health care provider or the disability services provider to whom the investigation relates, and any person alleged to be aggrieved (if not the complainant) of the Commissioner's intention to make the investigation; and
b: must, by written notice, inform the health care provider or the disability services provider to whom the investigation relates of—
i: the details of the complaint (if any) or, as the case may be, the subject matter of the investigation; and
ii: the right of that person to submit to the Commissioner, within 15 working days of the date of the notice, a written response in relation to the complaint or, as the case may be, the subject matter of the investigation.
2: The Commissioner may, at his or her discretion, extend the deadline of 15 working days set by a notice given under subsection (1)(b)
42: On notification of investigation authority not to take disciplinary action until further notice
1: In any case where, after deciding to investigate the action of a health care provider or a disability services provider, it appears to the Commissioner that the investigation directly concerns a health practitioner, the Commissioner must promptly give notice of the investigation to the appropriate authority.
2: Once the authority has received the notice, no disciplinary action under the Health Practitioners Competence Assurance Act 2003
a: the Commissioner notifies the authority—
i: that the matter is not to be investigated, or investigated further, under this Act; or
ii: that the complaint or matter has been resolved; or
iii: that the matter is not to be referred to the Director of Proceedings under section 45(2)(f)
b: the Director of Proceedings notifies the authority of his or her decision under section 49
3: This section does not prevent any action under the Health Practitioners Competence Assurance Act 2003
a: under any of sections 36 to 42, 45 to 51, or 69 of that Act
b: in bringing and completing disciplinary proceedings initiated by a charge laid by the Director of Proceedings.
43: Information about result of investigation
1: As soon as reasonably practicable after the Commissioner completes an investigation, the Commissioner must advise the persons specified in subsection (2)
a: of the results of the investigation; and
b: of any further action that the Commissioner proposes to take or that the Commissioner proposes to take no further action.
2: The persons referred to in subsection (1)
a: any complainant whose complaint led to the investigation:
b: any person alleged to be aggrieved (if not the complainant):
c: the health care provider or the disability services provider whose action was the subject of the investigation:
d: if the investigation directly concerns a health practitioner, the appropriate authority.
44: Consultation required before matter referred to Director of Proceedings
1: The Commissioner may not, under section 45(2)(f)
2: The Commissioner must have regard to any relevant factors of the kind specified in subsection (3) section 45(2)(f)
3: The kinds of factors referred to in subsection (2)
a: the wishes of the complainant (if any) and the aggrieved person (if not the complainant) in relation to the matter; and
b: any comments made under subsection (1)
c: the need to ensure that appropriate proceedings are instituted in any case where the public interest (whether for reasons of public health or public safety or for any other reason) so requires.
45: Procedure after investigation
1: This section applies if, after making an investigation under this Part, the Commissioner is of the opinion that any action that was the subject matter of the investigation—
a: was in breach of the Code; or
b: in the case of an action of a health practitioner that was taken at a time before 1 July 1996, affected a health consumer and was, at the time that it was taken, a ground for bringing disciplinary proceedings against the health practitioner under a former health registration enactment.
2: If this section applies, the Commissioner may do all or any of the following:
a: report the Commissioner's opinion, with reasons, to any health care provider or disability services provider whose action was the subject matter of the investigation, and may make any recommendations as the Commissioner thinks fit:
b: report the Commissioner's opinion, with reasons, together with any recommendations that the Commissioner thinks fit, to all or any of the following:
i: any authority or professional body:
ii: the Accident Compensation Corporation:
iii: any other person that the Commissioner considers appropriate:
c: make any report to the Minister that the Commissioner thinks fit:
d: make a complaint to any authority in respect of any person:
e: if any person wishes to make such a complaint, assist that person to do so:
f: refer 1 or more health care providers or disability services providers to the Director of Proceedings for the purpose of deciding whether any 1 or more of the following actions should be taken in relation to those providers:
i: any of the actions contemplated by section 47
ii: the institution of proceedings under section 50
iii: the institution of disciplinary proceedings.
3: On referring 1 or more health care providers or disability services providers to the Director of Proceedings under subsection (2)(f) section 44(3)
4: Subsection (2)(f)(ii) subsection (1)(b)
10: Implementation of recommendations of Commissioner
Section 46(1) section 45(a) section 45(2)(a)
11: Director of Proceedings' right to participate in disciplinary and other proceedings
Section 47(1)
a: by omitting from paragraph (a) health professional body authority or tribunal
b: by omitting from paragraph (b)(i) (ii) a health professional body an authority or a tribunal
12: Section 48 Section 48
13: Functions of Director of Proceedings
1: Section 49(1) paragraph (a) section 45(f) section 45(2)(f)
2: Section 49 subsections (2) (3)
14: Proceedings before Human Rights Review Tribunal
Section 50(2) 49(2) 44(1)
15: Aggrieved person may bring proceedings before Tribunal
Section 51 paragraphs (a) (b)
a: the Commissioner, having found a breach of the Code on the part of the person to whom that section applies, has not referred the person to the Director of Proceedings under section 45(2)(f)
b: the Director of Proceedings declines or fails to take proceedings.
16: Powers of Human Rights Review Tribunal
Section 54(5) registered health professional health practitioner
17: Mediation conference
Section 61(1) of an investigation by of a complaint made to, or an investigation by,
18: Further provisions relating to delegations
Section 69 section 68 subsections (1) (3) (4) (6) section 9
19: Revocation of delegations
Section 71(1) section 68 section 9
20: Schedule 1 The heading to Schedule 1 HEALTH FORMER
21: Schedule 2
1: Clause 3 subclause (5)
5: There must be paid to each Deputy Commissioner—
a: a salary at a rate agreed between the Minister and the Deputy Commissioner; and
b: any allowances agreed between the Minister and the Deputy Commissioner.
2: Clause 4
5: For the purposes of this clause, Commissioner
3: Clause 5 the Deputy Commissioner a Deputy Commissioner
22: Transitional provisions
1: The provisions of Part 4 section 31 33 Part 4
2: All investigations under the principal Act that have been commenced before the commencement of this Act and that have not been completed before that commencement are to be continued and completed as if this Act had not been enacted.