Health practitioners and health services work hard to improve the health and wellbeing of their patients. However, there are many situations that could result in you or your practice being the subject of a complaint to the NSW Health Care Complaints Commission (the Commission) and it is important that you respond promptly and appropriately to any complaints notification.

This article explains how the investigation process works and what you should do during this process.

About the Commission

The Commission is an independent body established to handle complaints about health practitioners and health services located in New South Wales, in particular, complaints concerning:

1. The professional conduct of a health practitioner.

2. An alleged breach by a health organisation of the Public Health Act 2010 (NSW) or an applicable code of conduct.

3. A health service which affects (or is likely to affect) the clinical management or care of an individual client.

The Commission must manage complaints in accordance with the Health Care Complaints Act 1993 (NSW) (the Act).

How do I know if I am the subject of a complaint?

You or your practice will receive a notification from the Commission identifying that there is a complaint, the nature of the complaint and who the complainant is. The Commission will also notify you of any decisions it makes in relation to the complaint. 

If you receive a complaint notice, you should immediately collate all information and documents your practice holds about the patient and events that are the subject of the complaint. This will likely include all records from your medical practice software, emails and telephone call records, file notes, and interviewing any relevant staff. You will need this information to assess your potential risk and liability exposure and (if required) prepare a response in consultation with your legal representatives.

You should also contact your insurance broker to make any insurer notifications required by your insurance cover.

Does the Commission investigate all complaints?

No. The Commission must perform an initial assessment of every written complaint it receives, but it does not have to investigate all complaints. There may be circumstances in which it is appropriate to take no action in response to a complaint – e.g. if it is a complaint that falls outside of the jurisdiction of the Commission.

However, the Commission must investigate a complaint in certain prescribed circumstances – in particular, if the complaint:

1. Raises significant concerns about risks to public health and safety.

2. Raises a significant question as to the appropriate care or treatment provided by the health service provider.

3. (If substantiated) Would provide grounds for disciplinary action against a practitioner or health organisation.

4. (If substantiated) Would involve gross negligence on the part of a health practitioner.

5. (If substantiated) Would result in the health practitioner or relevant health organisation being found guilty of an offence of the Public Health Act 2010 (NSW).

The Act sets out how the Commission must determine whether any of the above grounds apply.

What do I do after the Commission investigates?

If, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to take further action against a health practitioner, it must first inform the health practitioner of the substance of the grounds for its proposed action and give them an opportunity to make submissions. A submission must be made in writing within 28 days after receiving the notice from the Commission.

If you receive a notice to this effect, it is prudent to immediately seek legal advice from a health law specialist.

If the complaint has identified an endemic problem with your policies and procedures, you should take prompt and appropriate steps to address that issue to prevent future complaints and potential risk and liability exposure.

Do you need help?

No health practitioner or health service wants to receive a complaints notification. And responding to a notification can be stressful and difficult, particularly while managing a busy practice. It is important to appoint a health law expert you can trust, to manage this process while you focus on patient care.

We are leading experts in health law. To find out more about how we can help you respond to a complaint (or better yet, prevent them) call us on 02 9199 4563 or email info@kinnylegal.com.

 This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.

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