Health Services (Conciliation and Review) (Amendment) Act 2001 (Vic)

Health Services (Conciliation and Review)

(Amendment) Act 2001

Act No. 75/2001

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2
4.	Amendment of definitions	2
5.	Functions of the Commissioner	3
6.	Distribution of information	4
7.	Reports	4
8.	Removal of members of Health Services Review Council	6
9.	Functions of the Council	6
10.	Complaints on behalf of deceased users	7
11.	Preliminary assessment of complaints	7
12.	New section 19A inserted	8

19A. Splitting of complaints 8

13.	Conciliation	9
14.	Investigation of complaints	11
15.	Notices and procedures	12
16.	Update of reference to VCAT	13
17.	Powers relating to evidence and investigations	13
18.	Confidentiality	14
19.	Commissioner to specify report periods	16

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ENDNOTES 17

i

Victoria

No. 75 of 2001

Health Services (Conciliation and Review) (Amendment) Act 2001†

[Assented to 27 November 2001]

The Parliament of Victoria enacts as follows:

1. Purpose

The main purpose of this Act is to amend the
Health Services (Conciliation and Review) Act
1987 to make miscellaneous amendments relating
to its operation.

Health Services (Conciliation and Review) (Amendment) Act
2001

s. 2 Act No. 75/2001

2. Commencement

(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into

operation before 1 December 2002, it comes into

operation on that day.

3. Principal Act

See:

Act No.	In this Act, the Health Services (Conciliation
25/1987.	and Review) Act 1987 is called the Principal Act.
Reprint No. 3
as at
1 July 2000
and
amending Act Nos 18/2000, 74/2000 and 2/2001. LawToday: dpc.vic. gov.au

4. Amendment of definitions

In section 3(1) of the Principal Act—

(a)	in the definition of "health service", in paragraph (h), after "welfare" insert "and social work";
(b)	psychotherapeutic services;

in the definition of "health service", after "(ha) therapeutic counselling and

(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;";

(c) in the definition of "health service"—

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(i)  for "but does not include" substitute "and includes";

(ii)  for "any Department" substitute "the Department";

(d)

in the definition of "provider", after "(ab) a person or body which holds himself,

herself or itself out as providing a

health service; and";

(e) for the definition of "user" substitute— ' "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;';

(f) insert the following definitions—
' "Council" means the Health Services

Review Council established under

section 12;

"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.'.

5. Functions of the Commissioner

(1) In section 9(1) of the Principal Act—

(a) after paragraph (f) insert— "(fa) to refer issues to the Council for

advice;";

(b) after paragraph (n) insert—
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2001

s. 6 Act No. 75/2001

"(na) to provide education and information to

providers and users about the
prevention and resolution of complaints
relating to health services;

(nb) to provide training about the prevention and resolution of complaints relating to health services;

(nc) to conduct research into complaints

relating to health services and
mechanisms for resolving complaints
relating to health services;".

(2) In section 9 of the Principal Act, for sub-sections

(3) and (4) substitute—
"(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.".

6. Distribution of information

In section 10 of the Principal Act, after
paragraph (g) insert—
"(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;".

7. Reports

In section 11 of the Principal Act, for sub-section
(5) substitute—

"(5) A report made by the Commissioner under

sub-section (1) or (2) may name a person
if—

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Act No. 75/2001	s. 7
(a)

the Commissioner believes on 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

(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).

(6) Before naming a person in a report under

sub-section (5), the Commissioner must, at least 14 days 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.

(7) A report made by the Commissioner under

sub-section (4) may name any person who is
involved with the matter being
investigated.".

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8.  Removal of members of Health Services Review Council

In section 12 of the Principal Act, after sub- section (7) insert—

"(7A) For the purposes of sub-section (7), "good cause" includes the following—

(a)	the member is guilty of misconduct in carrying out the duties of his or her office;
(b)

the member is mentally or physically the duties of his or her office;

(c)

the member has failed to attend without leave from the Council;

(d)	the member is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence;
(e)	the member becomes an insolvent under administration.".

9. Functions of the Council

(1) In section 14(1) of the Principal Act, after

paragraph (b) insert—

"(ba) to provide expertise, guidance and advice to

the Commissioner; and

(bb) to promote the Commissioner, the operations

of the Commissioner and the guiding
principles; and".

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(2) In section 14 of the Principal Act, after sub-

section (1) insert—

"(1A) The Council may perform its functions in any manner it thinks fit.".

10. Complaints on behalf of deceased users

(1) After section 15(3) of the Principal Act, insert—

"(3A) The Commissioner may—

(a)	recognise as the representative of a user who has died a person who, in the Commissioner's opinion, has a sufficient interest in the subject-matter of the complaint; and
(b)	allow that person to complain to the Commissioner on the user's behalf.".

(2) At the end of section 16 of the Principal Act

insert—

"(4) A complaint may be made under sub-section

(1) by a user's representative in relation to a
user who has died whether it is alleged in the
complaint that the provider acted
unreasonably during the lifetime or after the

death of the user.".

11. Preliminary assessment of complaints

(1) In section 19(1) of the Principal Act, for "or

trivial" substitute ", misconceived or lacking in

substance".

(2) In section 19(2) of the Principal Act—

(a) after "a court" insert "or a coroner";

(b) for "Administrative Appeals Tribunal"
substitute "Victorian Civil and
Administrative Tribunal";

(c) after "the court," insert "coroner,".

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s. 12 Act No. 75/2001

(3) In section 19 of the Principal Act, after sub-

section (7) insert—

"(7A) If the Commissioner refers a complaint

under sub-section (6) or (7), the
Commissioner may also refer any
information that, in the Commissioner's
opinion, is relevant to the complaint to the
registration board or appropriate person,
organisation or agency (as the case

requires).".

(4) In section 19(8) of the Principal Act after "or

within" insert "a further period fixed under sub-
section (9AA) or".

(5) After section 19(9) of the Principal Act, insert— "(9AA) If the Commissioner considers that a further

period would allow for the resolution of the
matter in accordance with sub-section (5),
the Commissioner may fix a period of not
more than 28 days for the purposes of sub-

section (8).".

12. New section 19A inserted

After section 19 of the Principal Act insert—

"19A. Splitting of complaints

(1) If a complaint—

(a)	deals with more than one subject- matter; or
(b)	deals with more than one set of circumstances; or
(c)	makes allegations against more than one provider; or
(d)	makes more than one allegation against a provider; or

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Act No. 75/2001	s. 13
(e)	for any other reason is suitable to be dealt with in separate parts—

the Commissioner—

(f)	may if it is administratively convenient to do so; or
(g)	must if it is in the best interests of the user to do so—

determine that any subject-matter, set of
circumstances, allegation or part of a
complaint, as the case requires, be treated as

a separate complaint.

(2) The Commissioner must not make a

determination under sub-section (1) unless
he or she is satisfied that any attempt at
conciliation is unlikely to be prejudiced by

the making of the determination.".

13. Conciliation

(1) In section 20(2) of the Principal Act, after "(n)"

insert ", (na), (nb), (nc)".

(2) In section 20(6)(b) of the Principal Act, after sub- paragraph (ii) insert—

"(iia) recommend that conciliation should

continue; or

(iib) recommend that the Commissioner stop dealing with the complaint; or".

(3) In section 20 of the Principal Act, after sub-

section (6) insert—

"(6A) A report under sub-section (6) on the

progress of the conciliation process
must be provided to the Commissioner
during the conciliation process at the
time or times requested by the
Commissioner.".

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2001

s. 13 Act No. 75/2001

(4) In section 20 of the Principal Act, for sub-section

(10) substitute—

"(10) If a conciliator recommends that conciliation

should continue, the Commissioner must refer the complaint again for conciliation.

(10A) If a conciliator makes a recommendation

other than a recommendation referred to in sub-section (9) or (10), the Commissioner may—

(a) investigate the complaint; or

(b) refer it again for conciliation; or

(c)	stop dealing with the complaint if the Commissioner is of the view that—
(i)	the complaint cannot be conciliated; and

(ii) no further action is warranted; or

(d) deal with it in any other way authorised by this Act.

(10B) The Commissioner may stop dealing with a

complaint, whether or not a recommendation
of a conciliator has been made, if the
Commissioner is of the view that—

(a) the complaint cannot be conciliated; and

(b) no further action is warranted.".

(5) In section 20 of the Principal Act, after sub-

section (13) insert—

"(13A) The Commissioner may re-open any complaint that the Commissioner has stopped dealing with under sub-section

(10A) or (10B) if—

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(a)	the user has provided new or additional information; and
(b)	in the Commissioner's opinion, the user is able to show good reason as to why the information was not previously provided.

(13B) A conciliator may discuss any matter arising

in relation to the performance of his or her
functions as a conciliator under this Act with
any other conciliator.".

(6) In section 20 of the Principal Act, for sub-section

(15) substitute—

"(15) A conciliator must not disclose information

gained during the conciliation process or
gained from another conciliator—

(a) in any further conciliation process; or

(b) to any person employed for the purposes of this Act—

except for the purposes of—

(c)	reporting to the Commissioner under this section; or
(d)

discussing a matter with another section (13B).

Penalty: 10 penalty units.".

14. Investigation of complaints

In section 21 of the Principal Act, after sub-
section (6) insert—
"(7) If, in the course of investigating a complaint,

the Commissioner decides the complaint is suitable for conciliation, the Commissioner must, without delay, refer the complaint for conciliation.".

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s. 15 Act No. 75/2001

15. Notices and procedures

(1) In section 22(2) of the Principal Act, after "the

complaint" insert "including a copy of any

information referred to the registration board".

(2) In section 22 of the Principal Act, after sub-

section (6) insert—

"(6A) A notice under sub-section (6) must also advise the user and the provider that the Commissioner may conduct an inquiry into

what action the provider has taken upon a
complaint.".

(3) In the penalty at the foot of section 22(9) of the Principal Act, for "10 penalty units" substitute "60 penalty units".

(4) In section 22 of the Principal Act—

(a) in sub-section (10)—

(i)  after "sub-section (9)" insert "or a period specified in a notice given under sub-section (12)";

(ii)  after "report" insert "or produce information (as the case requires)";

(b) in sub-section (11), after "report" insert "or produce information (as the case requires)".

(5) In section 22 of the Principal Act, after sub-

section (11) insert—

"(12) After the 45 day period referred to in sub- section (9) (or if an extension of time has been granted by the Commissioner, at the end of the period of that extension) the

Commissioner may, by notice in writing,
require a provider to produce to the
Commissioner information about what action

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Act No. 75/2001 s. 16

the provider has taken upon the complaint,
including action to remedy the complaint
within the period specified in the notice.

(13) The Commissioner may require a provider to produce information by a notice given under sub-section (12)—

(a) in addition to any report received by the Commissioner under sub-section (9) or even if no report has been received

under sub-section (9); and

(b) Commissioner is satisfied that the

any number of times until the remedy the complaint.

(14) A provider must comply with a notice given

under sub-section (12) within the period
specified in the notice.
Penalty: 60 penalty units.

(15) The Commissioner may conduct an inquiry

into what action the provider has taken upon
a complaint, including action taken to
remedy the complaint, following a notice of
a decision under section 22(6) requiring such
action.".

16. Update of reference to VCAT

In section 23(1)(c) of the Principal Act, for
"Administrative Appeals Tribunal" substitute

"Victorian Civil and Administrative Tribunal".

17. Powers relating to evidence and investigations

In section 25 of the Principal Act, after
paragraph (a) insert—

"(ab) the Commissioner's inquiries into actions

taken by a provider following a notice of a

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s. 18 Act No. 75/2001

decision under section 22(6) requiring action
to be taken; and

(ac) the Commissioner's inquiries pursuant to section 9(1)(l); and".

18. Confidentiality

(1) In section 32(1) of the Principal Act, in the

definition of "position"—

(a)	in paragraph (c) for "conciliation" substitute "conciliation,";
(b)	in paragraph (f) omit "Health Service Review".

(2) In section 32 of the Principal Act—

(a)	in sub-section (2A), for "section 44A of the Audit Act 1958" substitute "section 12 of the Audit Act 1994";
(b)	in sub-section (3), for ' "communicate" ' substitute ' "disclose or communicate" '.

(3) In section 32 of the Principal Act, for sub-section

(4) substitute—

"(4) Sub-section (2) does not apply to a person

who discloses or communicates confidential
information if the disclosure or

communication is—

(a) in accordance with the written authority of—

(i)  the Minister, if the Minister is satisfied that the disclosure or communication is in the public

interest; or

(ii)  the user and the provider to whom the information relates; or

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Act No. 75/2001 s. 18

(b) for the purposes of proceedings for an offence under this Act or any other criminal proceedings.

(4A) A person who holds or who has held a position must not be required—

(a) containing confidential information or

to produce in court a document document; or

(b) to disclose or communicate confidential information to a court—

unless it is necessary to do so—

(c)	for the purposes of proceedings for an offence under this Act; or
(d)	in the case of a person referred to in paragraphs (c) to (f) of the definition of "position" in sub-section (1), for the purposes of any other criminal proceedings.".

(4) In section 32 of the Principal Act, after sub-

section (5) insert—

"(5A) Nothing in sub-section (4A) requires a

person—

(a) containing confidential information

to produce in court a document as a conciliator or permit a court to access such a document; or

(b)

to disclose or communicate confidential person's position as a conciliator to a court.

(5B) The Commissioner may disclose or

communicate confidential information

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s. 19 Act No. 75/2001

received by the Commissioner, other than
confidential information relating to a

complaint—

(a)

if the person who provided the or communication; or

(b) with the written authority of the Minister, if the Minister is satisfied that the disclosure or communication is in the public interest.".

19. Commissioner to specify report periods

In section 33 of the Principal Act—

(a)	after "each financial year" insert "or any other period specified in writing by the Commissioner and published in the Government Gazette".
(b)	after "the financial year" insert "or the period specified by the Commissioner".

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Health Services (Conciliation and Review) (Amendment) Act
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Act No. 75/2001 Endnotes

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 27 September 2001

Legislative Council: 7 November 2001

The long title for the Bill for this Act was "to amend the Health Services
(Conciliation and Review) Act 1987 to make miscellaneous
amendments relating to the operation of the Act and for other purposes."