Complaints and Compensation

Contributed by Robin Gibson and current at 16 December 2021.

Complaints and Whistleblowing

There may be occasions where you consider that your treatment has not been appropriate or that your doctor or health care provider may have done something wrong and you wish to make a complaint. A complaint about a health care provider in the ACT can be made directly to the ACT Health Services Commissioner, who is located within the ACT Human Rights Commission. Part 4 Human Rights Commission Act 2005 (ACT) deals with complaints. There is also provision for a Health Services Commissioner under Section 25 of the Human Rights Commission Act 2005 (ACT).

The general grounds for complaint in Sections 39-41 of the Human Rights Commission Act 2005 (ACT) are:

• the service is not being provided appropriately
• the provider of the service has acted inconsistently with relevant legislation or standards
• the service is not being provided.

A complaint may be made by an aggrieved person (an adult who is angry, upset or offended - see Section 43(1)(a) of the Human Rights Commission Act 2005 (ACT)) or a guardian or parent, ordered by the court, or have been given permission by the Commissioner. Examples of the kinds of matters where a complaint can be made are:

• provision of unnecessary services
• improper disclosure of information
• failure to demonstrate consideration or to respect dignity or privacy
• failure to provide adequate information about the service or alternatives
• failure to exercise due care and skill.

If you feel that you have grounds for a complaint, you should take a friend or relative with you, write down your concerns, the questions you want answered and how you would like the complaint to be resolved. A written form is available to lodge a complaint with the ACT Health Services Commissioner. The Commissioner can then:

• ask the health care provider to respond directly to the complainant
• undertake an assessment
• offer confidential conciliation
• undertake an investigation and make recommendations for service improvements
• work with registration boards when disciplinary action is appropriate.

Health care complaints may be made on the Human Rights Commission’s online complaints form (https://hrc.act.gov.au/complaints/make-a-complaint-about-a-service/?Service=health) or over the phone on 0262052222. If you require help about the complaints process or need help in completing the form, you can also email questions or concerns to HRCIntake@act.gov.au

General Complaints

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

Writing directly to the office of the ACT Minister for Health may lead to a more successful outcome for some complaint claims.

The ACT Health Services Commissioner may become involved to organise conciliation. All proceedings during conciliation are confidential and information obtained cannot be used as evidence in court. If a settlement is reached at the end of conciliation, a deed of release may be prepared, which will set out the obligations of both parties. In some cases, an acceptable outcome may involve the provider paying compensation to the patient. A patient may seek legal advice before signing the release but, once it has been signed, the patient will be unable to take any legal action against a provider who is observing the terms of the settlement.

Complaining Directly to the Hospital

The Canberra Hospital

If you wish to complain about some aspect of treatment at The Canberra Hospital, telephone (02) 5124 0000 and ask for either the ‘complaints officer’ or the consumer liaison officer’. You may complain over the phone, however a complaint in writing is preferred.

Calvary Public Hospital Bruce

If you wish to complain about some aspect of treatment at Calvary Public Hospital Bruce, telephone (02) 6201 6111 and ask for the ‘complaints officer’. You may complain over the phone, however a complaint in writing is preferred. You can also provide feedback online https://www.calvarycare.org.au/contact/feedback/].

University of Canberra Hospital

Complaints to the University of Canberra Hospital may be made on (02) 5124 0000.

The object of a complaint may be to either register concern, get a written explanation, or a letter of apology if required. A record is kept of every call and conversation. The matter may be referred to a clinical review committee (which does root cause analysis of adverse events to see if a pattern is emerging) or clinical ethics committee (to better shape the complaint and support the complainer, or ‘whistleblower’, if required).

Registration Boards

Before any health professional is permitted to practise in Australia, that person must be registered. The registration process ensures that the person concerned is properly skilled, is insured, is of good character and has not done anything which would bring the profession into disrepute.

Since July 2010, health professionals have been regulated by the Health Practitioner Regulation National Law (National Law). This legislation was originally passed as Schedule 4 to the Health Practitioner Regulation National Law Act 2009 (Qld). With some State or Territory variations, the National Law applies Australia-wide. Its chief thinking appears in Section 3(2)(a) of the National Law as follows:

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

The National Law established a combined registration scheme that has brought together under one Act a number (currently 15) of health professions and health profession boards. This legislation is designed to encourage an awareness of the rights and responsibilities of both users and providers of health and professional services, assist in the maintenance of minimum standards of health service providers through investigation and resolution of complaints about registered health practitioners, and ensure that health professional services are provided by people who are suitably qualified and able to provide them.

Professional Misconduct

Any person may report misconduct by a health professional under Part 8 of the National Law to the Australian Health Practitioner Regulation Agency (‘AHPRA’) which will notify the relevant National Board for that health profession (see Complaints and Whistleblowing, this chapter). The required standard of practice is ‘...what might reasonably be expected of the practitioner by the public or the practitioner’s professional peers’. (Section 144(1)(a) of the National Law). AHPRA can dismiss the complaint but once it is referred to a National Board, a broad range of powers exists, including immediate action, referral to a performance and professional standards panel or a health panel, or to a tribunal. In the ACT the relevant tribunal is the ACT Civil and Administrative Tribunal (‘ACAT’).

ACAT may decide whether the conduct of a health practitioner is professional misconduct, unprofessional conduct or unsatisfactory professional performance or that the health practitioner has an impairment (Section 196(1) National Law).

Section 66(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), together with Section 196(2) of the National Law, gives ACAT power to make a wide range of orders including:

• suspension or removal from the register
• reprimanding the health practitioner
• requiring a written undertaking from the health practitioner
• imposing conditions
• giving directions
• requiring the health practitioner to take part in a review of their professional practice
• requiring the health practitioner to complete educational or other professional development courses
• requiring the health practitioner to undergo medical psychiatric or psychological assessment or counselling
• imposing fines.

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

Commencing Litigation for Professional Negligence

The essential features to be shown in the modern legal action for negligence are that there is a duty owed by one person to another, that that duty has been breached (not been observed), and that the breach has caused damage that was foreseeable. The duty of care not to injure another arises in circumstances where there is a close relationship such that the person owing the duty should foresee that a failure to exercise reasonable foresight may cause injury to the person to whom the duty is owed. There may be an occasion where you consider that your health practitioner has done something which is below the standard reasonably expected of a health practitioner which has led to a medical error, often referred to as an adverse event. In these circumstances, you may wish to investigate whether the adverse event has been caused by negligence. However, the fact of the occurrence of a medical adverse event does not always mean that the health professional has been negligent. It may well be that the adverse event could not have been reasonably foreseen even by the most careful and competent health practitioner.

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

Many plaintiff firms provide the first appointment free of charge so that the solicitor can determine whether you have a reasonable claim or not. The solicitor will need to know what occurred, listing facts in chronological order (ie events in order of their occurrence), preferably prepared in writing before the meeting.

Once a doctor willingly accepts a patient’s request for a medical opinion, that doctor owes the patient a duty of care. The doctor has a duty to achieve the best outcome for that patient, but is under no obligation or duty to cure the patient. The standard of care in general terms will be that of a reasonable doctor in the defendant’s position (Section 42 of the Civil Law (Wrongs) Act 2002 (ACT)). The court may, however, decide upon a 100% reduction of damages for contributory negligence (ie if something you do helps cause the injury) if it is just and equitable to do so, with the result that any claim for damages is defeated (Section 47 of the Civil Law (Wrongs) Act 2002 (ACT)).

Claims Procedure

The Civil Law (Wrongs) Act 2002 (ACT) sets out the procedure for commencing a claim about a personal injury, including a medical adverse event. To commence litigation proceedings against a doctor, your solicitor must have sent the doctor a written notice of claim (not the actual legal statement of claim) within 9 months of the event causing damage or when symptoms of it first appeared, or within 4 months of your first seeing a lawyer about it. (Section 51 of the Civil Law (Wrongs) Act 2002 (ACT)). The doctor must respond to that notice within a prescribed time (Section 52 of the Civil Law (Wrongs) Act 2002 (ACT)).

The parties may agree to one person being the expert witness for both of them (Section 65 of the Civil Law (Wrongs) Act 2002 (ACT)). However, if there is no agreement, Section 67 of the Civil Law (Wrongs) Act 2002 (ACT) makes provision for the claimant to choose from a panel of 3 doctors nominated by the doctor.

In the ACT there is a cap on damages for loss of weekly earnings (to three times average weekly earnings). At present, there is no cap on damages for pain and suffering, general damages or continuing care. In the ACT the discount rate for the present value of a future economic loss damages award is 3%. This can make a huge difference to the damages awarded to someone who is catastrophically injured. (See Chapter 3 ACCIDENTS AND COMPENSATION).

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

Open Disclosure

It may be that an adverse event has occurred of which the patient is unaware, or that its occurrence is unforeseen and the patient has been injured in some way. An immediate recourse to litigation for medical negligence is not necessarily the best way to deal with a medical incident though a patient may decide to go that route when further information is available. Medical and regulatory authorities have been insistent that the most important way to deal with adverse events is to be in contact with the patient, or the patient’s family, as soon as possible. The procedure is known as Open Disclosure and involves full and complete communication by the medical practitioner or health institution. Research has shown that what patients want is:

• to know what happened and why;
• to find out who is responsible;
• to make sure that what has happened will not happen to cause a similar injury to some-one else in the future;
• a sincere apology;
• to know the short- and long-term consequences of the event.

Under the Code of Conduct developed by the Medical Board of Australia for the medical profession, medical practitioners should engage in open disclosure procedures at the earliest opportunity, even if not everything is known at that time (paragraphs 4.11 and 8.2 of Good medical practice: a code of conduct for doctors in Australia - October 2020).

You should also be aware that under Part 2.3 of the Civil Law (Wrongs) Act 2002 (ACT),a doctor may give an apology (an oral or written expression of sympathy or regret) which cannot used in court as an express or implied admission of fault or liability.