Health Law

Complaints, Whistleblowing and Initiating Litigation

Complaints and Whistle Blowing

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. A person may make a complaint if they are 18 years of age, a guardian or parent, ordered by the court or have been given permission by the Commissioner. A wide variety of grounds for complaints are based on the concept that the doctor or medical provider acted unreasonably. These can include:

• 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.

(s 39, Human Rights Commission Act 2005 )

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.

If you wish to complain about some aspect of treatment at the Canberra Hospital, ring (02) 6244 2222 and ask for either the "complaints officer" or the corporate-culture term "consumer liaison officer". The direct number is (02) 6244 2974. Staff will permit you to "vent" over the phone, however a complaint in writing is preferred, as details tend to be clearer. The complaints officer will take up the matter in the relevant SMT ("service management team") where the impugned health professional works. The object 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 usual time to get back to the complainant with a "concrete" response is ten days. The SMT area may refer the matter to the clinical review committee (doing 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).

If compensation is sought, the Hospital's solicitor (the ACT Government Solicitor) gets involved. The ACT Health Services Commissioner may become involved to organise conciliation. Better success for some complaints claims occurs if you write directly to the office of the ACT Minister for Health. 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, this 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, he or she will be unable to take any legal action against a provider who is observing the terms of the settlement.

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

Registration Boards and Professional Misconduct

The Health Professionals Act 2004 (ACT) established a unified registration scheme that has brought together under one Act a number of health professional registration legislation and health profession boards. It involved a staged transfer of all health profession registration boards under one umbrella piece of legislation encompassing all matters related to the regulation of health professions in the ACT. This new legislation encouraged an awareness of the rights and responsibilities of users and providers of health and professional services, assisted in the maintenance of a minimum standards of health service providers through investigation and resolution of complaints about registered health professionals, and ensured that health and professional services are provided by people who are suitable and able to provide them.

A report of professional misconduct can be made under Part 9 of the Health Professionals Act 2004 to a health profession board (or a complaint can be lodged under s 8 of the Human Rights Commission Act 2005). The required standard of practice is "the exercise of professional judgment, knowledge, skill and conduct at a level that maintains public protection and safety" (s 18(1)). A professional standards panel may inquire into this and require remedial action be taken where a health professional is contravening or has contravened the required standard of practice, or does not satisfy the suitability to practice requirements (s 11).

The Health Professionals (Special Events Exemptions) Act 2000 (ACT)allows visiting health professionals to provide health services in relation to certain special events, so declared by the Minister, without being registered under ACT laws.

The Health Professionals Act 2004 (ACT) allows each regulated health profession to establish a board to assist the Minister in the administration of the Act. It is not the role of health profession boards to achieve an outcome for the consumer by virtue of compensation or an apology. The board's role then, is to investigate practitioners' practices in order to achieve higher standards for the community as a whole. The legislation provides that each health profession board must have at least two community representatives.

Until 1 February 2009, the ACT Health Professionals Tribunal, established by the Health Professionals Act, was responsible for reviewing decisions from health profession boards and deciding whether a health professional meets the required standards for practice. On 2 February 2009, the Health Professionals Tribunal was abolished and its jurisdiction was conferred on the newly established ACT Civil and Administrative Tribunal (ACAT). Section 66(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT), together with s 44(2) of the Health Professionals Act, gives the ACAT power to make a wide range of orders, including suspension or removal from the register as well as imposing conditions or requiring the health professional to take part in a review of their professional practice, or to complete educational or other professional development courses as well as to undergo medical psychiatric or psychological assessment or counselling. The ACAT is required to provide a written notice of any order made within 7 days (s 59, ACAT Act), and must provide written reasons for its decision if requested by a party within 14 days after the decision (s 60, ACAT Act). An appeal may be made to the Appeals Division of the ACAT (s 79, ACAT Act). An appeal from the ACAT decision on appeal may be made to the Supreme Court on a question of fact or law, with the leave of the Court (s 86, ACAT Act).

Commencing Litigation for Professional Negligence

In seeing a solicitor to commence proceedings to recover damages for medical negligence you are likely to be asked to sign a costs agreement providing for payment for legal services at a rate of approximately $300 per hour. If the case is taken on as "no win no fee", this won't be sought until settlement. 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 the costs order, if any, made by the court. Normally, if the case is settled prior to the court hearing, the plaintiff doesn't have to pay the costs of the defendant. However, there are disbursements you may have to pay, even in "no win no fee" cases, include a filing fee ($575), setting down fee ($607) and subpoena ($52).

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 the factual chronology, preferably prepared before the meeting. It must be mentioned however, that under Part 2.2A 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 be admissible as an express or implied admission of fault or liability.

Once a doctor willingly accepts a patient's request for a medical opinion, they owe that 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 them. The standard of care in general terms will be that of a reasonable doctor in the defendant's position (s 31E). The court may, however, decide upon a 100% reduction of damages for contributory negligence if it is just and equitable to do so, with the result that the claim for damages is defeated (s 31J).

To commence litigation proceedings against a doctor, you 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 you first seeing a lawyer about it. The doctor must respond to that notice within a prescribed time (ss 31O-P). The essence of that response should be that the notice of claim complies with the legislation, whether liability is admitted or denied, the percentage of contributory negligence claimed, whether any offer is accepted or rejected and what is a reasonable estimate of damages (s 31Y).

The parties may agree to one person being the expert witness for both of them (s 31ZX). If no such joint expert is appointed, the court may do so, either on application by one party, or on its own initiative (s 31 ZY). The role of that expert will be to assist the court on the issues impartially and not to be an advocate for a party (s 31 ZYA).

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 of damages for pain and suffering, general damages or continuing care. In the ACT the discount rate for the present value of your future economic loss damages award is 3%. This can make a huge difference to the damages awarded to someone who is catastrophically injured.

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. It must be stressed however that a medical negligence action only provides monetary damages for negligent conduct not merely for an adverse outcome.