New South Wales: Health Care Complaints Act 1993 (NSW)

Health Care Complaints Act 1993 No 105 An Act to provide for the making, resolution, investigation and prosecution of health care complaints; to constitute a joint committee of members of Parliament, the Health Care Complaints Commission and the Health Conciliation Registry and to specify their functions; to amend certain Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Health Care Complaints Act 1993. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of— (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. 3A Outline of role and principles of Commission and related government agencies in health care system (1) This section provides an outline of the Commission's role in relation to government agencies with functions in connection with the health care system. (2) Health Care Complaints Commission The Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with appropriate professional councils. (3) Health Secretary The Health Secretary is responsible for— (a) facilitating the achievement and maintenance of adequate standards of patient care within public hospitals and in relation to other services provided by the public health system, and (b) inquiring into the administration, management and services of public health organisations and arranging, as appropriate, inspection of such organisations, and (c) developing and overseeing the implementation of health policy and regulation and responding to policy and regulatory issues as they emerge. (4) Public health organisations conducting health services Public health organisations have the functions set out in Chapter 2 of the Health Services Act 1997. They are responsible for achieving and maintaining adequate standards of patient care and services, which may include a role in resolving complaints at a local level. Their role involves liaising with the Commission and professional councils. (5) Registration authorities Registration authorities are responsible for the registration of health professionals. (5A) Professional councils Professional councils are responsible for the management of complaints in conjunction with the Commission and protecting the public through promoting and maintaining professional standards. (5B) Principles The Commission and other government agencies with functions in connection with health care complaints under this Act are, in carrying out those functions, to have regard to the following principles— (a) the Commission and those government agencies are to be accountable to the New South Wales community, (b) the decision-making processes are to be open, clear and understandable for clients and health service providers, (c) an acceptable balance is to be maintained between protecting the rights and interests of clients and health service providers, (d) the processes of the Commission and those government agencies are to be effective in protecting the public from harm, (e) the Commission and those government agencies are to strive to improve the efficiency of the administration of those functions so as to benefit the New South Wales community, (f) the Commission and those government agencies are to be flexible and responsive as the health care system evolves and changes. (6) This section is explanatory only and does not affect any other provision of this Act, or any other Act, or any instrument made under this or any other Act. 4 Definitions In this Act— associated complaint means a complaint made or referred to the Commission in respect of a health practitioner who is, or a health organisation that is, the subject of another complaint being assessed or investigated by the Commission or being prosecuted by the Commission before a disciplinary body, and includes— (a) a complaint made at any time prior to the completion of the assessment, investigation or prosecution of that other complaint, and (b) a complaint that has been discontinued or terminated. authorised person means an officer of the Commission who is authorised as referred to in section 31 or 63C, and includes the Commissioner. client means a person who uses or receives a health service, and includes a patient. Commission means the Health Care Complaints Commission constituted by section 75. complainant means— (a) the person making a complaint, except as provided by paragraph (b), or (b) the client on whose behalf a complaint is made if the complaint is made by a person chosen by the client as his or her representative for the purpose of making the complaint. complaint means a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act. conciliator means a person appointed to be a conciliator under section 89. Director of Proceedings means the Director of Proceedings appointed under Part 6A. disciplinary action includes— (a) the making of a prohibition order in relation to a health practitioner or a relevant health organisation, and (b) the issue of a statement under section 41A in relation to a health practitioner or under section 45C in relation to a relevant health organisation. disciplinary body means the following bodies under the Health Practitioner Regulation National Law (NSW)— (a) a responsible tribunal, (b) a Professional Standards Committee. exercise of a function includes the performance of a duty. function includes a power, authority or duty. Health Conciliation Registry means the Health Conciliation Registry established by section 85. health organisation means a body that provides a health service (not being a health practitioner). health practitioner means a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law). Health Practitioner Regulation National Law means— (a) the Health Practitioner Regulation National Law— (i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, and (ii) as it applies (including with any modifications) as a law of New South Wales or another State or Territory, or (b) the law of another State or Territory that substantially corresponds to the law referred to in paragraph (a). Health Secretary means the Secretary of the Ministry of Health. health service includes the following services, whether provided as public or private services— (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)–(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. health service provider means a person who provides a health service (being a health practitioner or a health organisation). interim prohibition order means an interim prohibition order made under section 41AA or 45B. Joint Committee means the Committee on the Health Care Complaints Commission appointed as referred to in section 64. parties to a complaint means the complainant and the person against whom the complaint is made. professional council means, in relation to a health practitioner in a health profession for which a Council is established under section 41B of the Health Practitioner Regulation National Law (NSW), the Council for that health profession. prohibition order means a prohibition order made under section 41A or 45C. registered includes enrolled. registered health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). Registrar means the Registrar of the Health Conciliation Registry. registration authority means, in relation to a health practitioner in a health profession for which a National Board (within the meaning of the Health Practitioner Regulation National Law (NSW)) is provided—that National Board. relevant health organisation means a person that is a health organisation other than the following— (a) a public health organisation within the meaning of the Health Services Act 1997, (b) a public hospital within the meaning of the Health Services Act 1997, (c) a private health facility licensed under the Private Health Facilities Act 2007, (d) an organisation or class of organisation prescribed by the regulations for the purposes of this definition. Note— The Interpretation Act 1987 defines person to include an individual, a corporation and a body corporate or politic. student has the same meaning as in the Health Practitioner Regulation National Law (NSW). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 5 Act binds the Crown This Act binds the Crown. 6 Notes in the text Notes and charts appearing in this Act are explanatory notes and do not form part of this Act. They are provided to assist understanding. Part 2 Complaints Division 1 The right to complain 7 What can a complaint be made about? (1) A complaint may be made under this Act concerning— (a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100(1)(a) or (b) of that Act), or (a1) an alleged breach by a relevant health organisation of Division 1 or 3 of Part 7 of the Public Health Act 2010 or of a code of conduct prescribed under section 100(1)(c) of that Act, or (b) a health service which affects, or is likely to affect, the clinical management or care of an individual client. (2) A complaint may be made against a health service provider. (3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned. 8 Who may make a complaint? (1) A complaint may be made by any person including, in particular, the following— • the client concerned • a parent or guardian of the client concerned • a person chosen by the client concerned as his or her representative (including an Australian legal practitioner) for the purpose of making the complaint • a health service provider • a member of Parliament • the Health Secretary • the Minister. (2) The Commissioner may make a complaint under this Act, but only if it appears to the Commissioner that the matter that is the subject of the complaint— (a) raises a significant issue of public health or safety, or (b) raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client, or (c) if substantiated, would— (i) provide grounds for disciplinary action against a health practitioner or relevant health organisation, or (ii) be found to involve gross negligence on the part of a health practitioner, or (iii) result in the health practitioner or relevant health organisation being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010. (3) The provisions of this Part apply to the making of a complaint by the Commissioner, subject to any modifications prescribed by the regulations. 9 How is a complaint made? (1) A complaint is made by lodging the complaint in writing with the Commission. (2) The complaint is to include particulars of the allegations on which it is founded. (3) It is the duty of staff of the Commission to help a person to make a complaint if the person requests assistance to do so. Note— This section does not prevent a person who wishes to make a complaint from first talking to the Commission about it. However, a complaint cannot be acted on until it is put in writing. It is an offence under section 99 to furnish information to the Commission for the purposes of this Act that is false or misleading in a material particular and under section 97A to furnish such information to the Commissioner or staff of the Commission. Division 2 Liaising with registration authorities and professional councils 10 Notifying professional councils of complaints (1) If a complaint made under this Act to the Commission is made against or directly involves a health practitioner who is or has been a registered health practitioner, the Commission must notify the appropriate professional council of the complaint. (2) The complaint is to be so notified as soon as practicable after it is made. 11 Complaints made to professional councils If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission. 12 Consultation between the Commission, a professional council and the Registrar (1) Before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the Commission must consult with the appropriate professional council (if any), subject to this section. (1A) If it is proposed, as a result of the assessment of a complaint, to refer the complaint for conciliation, the Commission must also consult with the Registrar. (2) The regulations may prescribe circumstances, such as cases of urgency, where the Commission may consult with a prescribed person on behalf of the appropriate professional council instead of consulting with the professional council itself and where the prescribed person may exercise the other functions of the professional council under this Division. (3) Consultation under this section is to include consultation about any associated complaint, to the extent the Commission and the appropriate professional council or the Registrar consider the associated complaint to be relevant. 13 The outcomes of consultation (1) If either the Commission or the appropriate professional council is of the opinion that a complaint (or any part of a complaint) should be investigated, it must be investigated. (2) If— (a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated, but (b) either is of the opinion that it should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW) (such as performance assessment or impairment assessment), it must be referred to the professional council under section 25B. (2A) If either the Commission or the appropriate professional council is of the opinion that an associated complaint that has been discontinued or terminated and to which regard was given during consultation— (a) should be reopened or investigated—the complaint must be reopened and investigated in accordance with Division 5, or (b) should be referred to the appropriate professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW)—the complaint must be so referred, as if it had not been discontinued or terminated. (3) If— (a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated or referred to the professional council, but (b) either is of the opinion that it should be referred for conciliation and the Registrar considers that it is appropriate for conciliation, the Commission is to refer the complaint for conciliation under Division 8. 14 Suspension of action by professional council (1) A professional council must not take any action under the Health Practitioner Regulation National Law (NSW) concerning a complaint while it is subject to investigation by the Commission or is being dealt with under Division 8 or 9. (2) However, subsection (1) does not limit the powers of a professional council to take action under the Health Practitioner Regulation National Law (NSW), Part 8, Division 3, Subdivision 7. Note— Under the Health Practitioner Regulation National Law (NSW), Part 8, Division 3, Subdivision 7, a professional council must, in certain circumstances, take action for the protection of the public. 15 Provision of information to professional councils (1) A professional council for a particular health profession may, at any time, request information from the Commission concerning a specified complaint that is made against or directly involves a health practitioner who is or has been registered in that health profession. (2) The Commission must supply the information requested if it is reasonable to do so. Note— Division 2 enables the professional councils and the Commission to act in collaboration with each other. The Division will allow complete information sharing between the two arms in the disciplinary system, with a decision to investigate a complaint being made only after there has been consultation between the Commission and the appropriate professional council. Where a disagreement occurs as to the appropriate action, both bodies will retain the ability to refer the matter for investigation, thus creating an internal checking method for all decisions which may result in disciplinary action. This two-pronged system will also apply to decisions to refer complaints for conciliation and will involve the Registrar in the consultation process. Division 3 Notification and withdrawal of complaints 16 Person against whom complaint made to be notified of complaint (1) The Commission must give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made. The notice must be given not later than 14 days after the Commission's assessment of the complaint under Division 4. (2) If the Commission has assessed the complaint, the notice is to include the notice required to be given to the person under section 28. (3) The Commission may give a copy of the complaint to the person against whom the complaint is made. (4) This section does not require the Commission to give notice under this section if it appears to the Commission, on reasonable grounds, that the giving of the notice will or is likely to— (a) prejudice the investigation of the complaint, or (b) place the health or safety of a client at risk, or (c) place the complainant or another person at risk of intimidation or harassment. (5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that— (a) it is essential, having regard to the principles of natural justice, that the notice be given, or (b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice. (7) On the expiration of each consecutive period of 60 days after the complaint is assessed, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)) unless notice under this section has already been given or the Commission has discontinued dealing with the complaint. 16A Employer to be notified of complaint against employee (1) The Commission must give written notice of the making of a complaint, the nature of the complaint and the identity of the complainant to a person who currently employs or engages the health practitioner concerned as a health practitioner if the Commission considers on reasonable grounds that the giving of the notice is necessary— (a) to assess the matter effectively, or (b) to protect the health or safety of the public or a member of the public. (2) This section does not require the Commission to give notice under this section if it appears to the Commission, on reasonable grounds, that the giving of the notice will— (a) place the complainant or another person at risk of intimidation or harassment, or (b) unreasonably prejudice the employment or engagement of the health practitioner. 17 Health Secretary to be notified of complaint made against a health organisation On receiving a complaint against a health organisation, the Commission must give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the Health Secretary. 18 Can a complaint be withdrawn? (1) A complainant may withdraw the complainant's complaint at any time— (a) by written notice to the Commission, or (b) if the Commission considers it appropriate to accept the withdrawal of the complaint orally—by oral notice to the Commission. (1A) If the Commission accepts the withdrawal of a complaint orally, the Commission must, as soon as practicable after receiving the oral notice, make a written record of the complaint having been withdrawn. (2) On the withdrawal of a complaint, the Commission may cease to deal with it but must continue to deal with the matter the subject of the complaint if it appears to the Commission that— (a) the matter raises a significant issue of public health or safety, or (b) the matter raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (c) the matter, if substantiated, would provide grounds for disciplinary action against a health practitioner or relevant health organisation, or (d) the matter, if substantiated, would involve gross negligence on the part of a health practitioner, or (e) the matter, if substantiated, would result in the health practitioner or relevant health organisation being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010. Division 4 Assessment of complaints 19 Initial assessment of complaints (1) On its receipt by the Commission, a complaint is to be assessed. (2) This section does not apply to a matter that is to be investigated in accordance with section 59. 20 The purpose of assessment (1) The assessment of a complaint is for the purpose of deciding whether— • the complaint should be investigated • the complaint should be conciliated or dealt with under Division 9 • the complaint should be referred to the Health Secretary in accordance with section 25 or 25A • the complaint should be referred to another person or body in accordance with section 25B or 26 • the Commission should decline to entertain the complaint. (2) Unless the Commission decides to decline to entertain a complaint, the Commission is, as part of its assessment of the complaint and as soon as practicable after commencing its assessment— (a) to identify the specific allegations comprising the complaint and the person or persons whose conduct appears to be the subject of the complaint, and (b) to use its best endeavours to confirm with the complainant and with any other person who provided relevant information in relation to the complaint that the matters so identified accord with the information provided by them. 20A Duty of Commission to review assessment of complaint (1) The Commission is to keep under review its assessment of a complaint while it is dealing with the complaint. (2) At any time while dealing with a complaint (including during or at the end of the investigation of a complaint) and after consultation with the appropriate professional council, the Commission may revise its assessment of the complaint and take any of the following actions— (a) deal with the complaint under Division 9, (b) refer the complaint for conciliation, (c) investigate the complaint, (d) refer the complaint to the Health Secretary in accordance with section 25 or 25A, (e) refer the complaint to another person or body in accordance with section 25B or 26, (f) change the person whose conduct appears to be the subject of the complaint or include another person as a person whose conduct appears to be the subject of the complaint, (g) add to, substitute, amend or delete any of the specific allegations comprising the complaint (including add an allegation arising out of an investigation of the complaint that may not be the particular object of the complaint). Note— Section 56 limits the Commission's power to investigate a matter that has been dealt with under Division 8. (3) If the Commission revises its assessment of a complaint to include another person as referred to in subsection (2) (f), sections 16 and 28 apply to the giving of notice to that person as if a reference in those sections to the assessment of the complaint were a reference to the revision of the assessment under this section. (4) If the Commission revises its assessment of a complaint and as a result determines that the conduct of a person previously being investigated by the Commission will no longer be investigated or that different conduct of the person will be investigated, the Commission is to give the person notice in writing that the person's conduct is no longer under investigation or that other conduct of the person is now under investigation (as appropriate). (5) In this section, complaint includes any part of a complaint. 21 Commission may require further information For the purposes of the assessment, the Commission may require the complainant to provide further particulars of the complaint within such time, not exceeding 60 days, as may be specified by the Commission. 21A Power of Commission to obtain information, records and evidence (1) If the Commission is assessing a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the assessment, the Commission may, by written notice given to the person, require the person to do any one or more of the following— (a) to give the Commission, in writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation), and within the reasonable time and in the way specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner, or a member of staff of the Commission authorised by the Commissioner, at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. (2) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B of Part 2 or Part 2A of the Health Administration Act 1982). (3) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement. Maximum penalty—200 penalty units. Note— Failure of a health practitioner to comply with subsection (3) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW). 22 Time for completion of assessment The Commission must carry out its assessment of a complaint— (a) within 60 days after receiving the complaint, or (b) if, under section 21, the Commission has required the complainant to provide further particulars of the complaint, within 60 days after the date by which the Commission specified that those particulars were to be provided. 22A Associated complaints to be taken into account (1) In assessing, and reviewing its assessment of, a complaint relating to a health practitioner or a health organisation, the Commission is to have regard to any of the following matters, to the extent the Commission reasonably considers the matter to be relevant to the complaint— (a) any associated complaint, (b) if the complaint relates to a health practitioner— (i) any decision made in respect of the practitioner by an adjudication body within the meaning of the Health Practitioner Regulation National Law (NSW), and (ii) any previous finding, determination, recommendation or decision made in respect of the practitioner by a committee, tribunal or panel under a repealed Act. (2) In this section, repealed Act means any of the following Acts— (a) Chiropractors Act 2001, (b) Dental Practice Act 2001, (c) Dental Technicians Registration Act 1975, (d) Medical Practice Act 1992, (e) Nurses and Midwives Act 1991, (f) Optometrists Act 2002, (g) Osteopaths Act 2001, (h) Pharmacy Practice Act 2006, (i) Physiotherapists Act 2001, (j) Podiatrists Act 2003, (k) Psychologists Act 2001. 23 Investigation of complaint (1) The Commission must investigate a complaint— (a) if, under section 13 (1), the appropriate professional council is of the opinion that the complaint should be investigated, or (b) if, following assessment of the complaint, it appears to the Commission that the complaint— (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) if substantiated, would provide grounds for disciplinary action against a health practitioner or relevant health organisation, or (iv) if substantiated, would involve gross negligence on the part of a health practitioner, or (v) if substantiated, would result in the health practitioner or relevant health organisation being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010. (2) A complaint is to be investigated in accordance with Division 5. (3) (Repealed) (4) The Commission may investigate a complaint despite any agreement the parties to the complaint may have reached concerning the complaint. 24 Referral of complaints for conciliation or complaint resolution (1) The Commission must refer a complaint for conciliation under Division 8 if it is required to do so under section 13 (3) or if it decides to do so under section 20A. (2) The Commission may deal with a complaint under Division 9 if the complaint is not required to be investigated, referred to a professional council under section 25B or referred for conciliation. (3) The Commission may at any time during the assessment of a complaint take any action referred to in section 58C with respect to the complaint without the need for consultation with the appropriate professional council. (4) However, subsection (3) does not affect the requirement in section 12 (1) for the Commission to consult with the appropriate professional council before making a determination on how a complaint should be dealt with as a result of an assessment of the complaint. 25 Notification of certain complaints to Health Secretary (1) Following the assessment, the Commission must notify the Health Secretary of the details of the complaint if it appears to the Commission that the complaint involves a possible breach of any of the following Acts, or specified provisions of Acts, or any regulations made under them— • Anatomy Act 1977 • Assisted Reproductive Technology Act 2007 • Health Administration Act 1982 • Health Records and Information Privacy Act 2002, section 68, 69 or 70 • Health Services Act 1997 • Human Tissue Act 1983 • Mental Health Act 2007 • Poisons and Therapeutic Goods Act 1966 • Private Health Facilities Act 2007 • Public Health Act 2010 (2) The Commission is not required to notify the Health Secretary of the details of the complaint if the complaint was made by the Health Secretary. (3) The Health Secretary must notify the Commission whether the Health Secretary proposes to deal with the complaint and, if the Health Secretary does so, of the outcome of the Health Secretary's dealing with the complaint. (4) This section does not prevent the Commission from dealing with a complaint (or any part of a complaint) in so far as it concerns— (a) the professional conduct of a health practitioner, or (b) a health service which affects, or is likely to affect, the clinical management or care of an individual client. Note— The Health Secretary, under the Minister, is primarily responsible for the enforcement of the Acts listed in section 25 (other than Division 3 of Part 7 of the Public Health Act 2010). Accordingly, complaints arising under those Acts are to be referred to the Department of Health for possible action. Accountability will be maintained through obligations imposed on the Health Secretary to notify the Commission of the outcome. However, the section ensures that the Commission may continue to pursue questions that are not dealt with by the Health Secretary as well as questions that concern the professional conduct of health practitioners and the clinical management or care of individual clients. 25A Reference of complaints to be dealt with under inquiry powers of Health Secretary (1) The Commission may, with the consent of the Health Secretary, refer a complaint (or part of a complaint) to the Health Secretary if the Commission is of the opinion that the complaint (or part) relates to a matter that could be the subject of an inquiry by the Health Secretary under section 106 of the Public Health Act 2010 or section 123 of the Health Services Act 1997. (2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to the Health Secretary under this section. (3) However, the Commission may continue dealing with a complaint (or any part of a complaint) in so far as it concerns— (a) the professional conduct of a health practitioner, or (b) a health service which affects, or is likely to affect, the clinical management or care of an individual client. 25B Reference of complaints to be dealt with by professional councils (1) Following the assessment, the Commission may refer a complaint to the appropriate professional council (after consultation with that council) if it appears that the complaint (or part) should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW), such as performance assessment or impairment assessment. Note— Section 13 (2) requires the Commission to refer a complaint to the professional council if either the Commission or the professional council is of the opinion that it should be referred. (2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to a professional council under this section. 26 Reference of complaint to another person or body for investigation or other action (1) Following the assessment, the Commission may refer a complaint (or any part of a complaint)— (a) to an appropriate public health organisation or the licensee of a private health facility if it appears that the complaint (or part) may be capable of resolution at a local level and the public health organisation or licensee consents, or (b) to a person or body, other than a public health organisation, the licensee of a private health facility or a professional council, if it appears that— (i) the complaint (or part) raises issues which require investigation by the person or body, or (ii) the person or body is able to take some other appropriate action regarding the complaint (or part). (2) However, the Commission must continue to deal with the matter the subject of the complaint (or part) if it appears to the Commission that— (a) the matter raises a significant issue of public health or safety, or (b) the matter raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (c) the matter, if substantiated, would provide grounds for disciplinary action against a health practitioner or relevant health organisation. (3) A public health organisation or the licensee of a private health facility to which a complaint (or part) is referred under this section may refer the complaint (or part) back to the Commission if it is unable to resolve it or the public health organisation or licensee considers that the matter is appropriate to be dealt with under Division 8 or 9. (4) If a complaint (or part) has been referred back to the Commission under subsection (3), the Commission must assess the complaint (or part) again in accordance with this Division. (5) The Commission may not refer a complaint (or part) to the Health Secretary under this section. Note— The Commission may refer a complaint to the Health Secretary under section 25 or 25A but only with the consent of the Health Secretary. (6) In this section— licensee and private health facility have the same meanings as they have in the Private Health Facilities Act 2007. public health organisation has the same meaning as in the Health Services Act 1997. 27 Circumstances in which Commission may discontinue dealing with complaint (1) Following the assessment, the Commission may discontinue dealing with a complaint (or any part of a complaint) for any one or more of the following reasons— (a) the complaint (or part) is frivolous, vexatious or not made in good faith, (b) the subject-matter of the complaint (or part) is trivial or does not warrant investigation or conciliation or the Commission dealing with it under Division 9, (c) the subject-matter of the complaint (or part) has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings, (d) the complaint (or part) has been referred by the Commission to another person or body for investigation or for consideration of other action (including, for example, performance assessment or impairment assessment under the Health Practitioner Regulation National Law (NSW)), (e) there is or was, in relation to the matter complained of, a satisfactory alternative means of dealing with the matter by the complainant and the complainant does not have a sufficient reason for not pursuing that alternative means, (f) the complaint (or part) relates to a matter which occurred more than 5 years before the complaint was made and the complainant does not have a sufficient reason for having delayed the making of the complaint, (g) the complainant has failed, without sufficient reason, to provide further particulars of the complaint (or part) within the time specified by the Commission, (h) the complaint (or part) concerns a matter that falls within the responsibility of the Commonwealth. (2) This section does not exhaust the circumstances in which the Commission may discontinue dealing with a complaint (or part). (3) The Commission must not discontinue dealing with a complaint (or part) under this section if it appears to the Commission that the complaint (or part) raises a significant issue of public health or safety. (4) If the Commission discontinues dealing with a complaint (or part) under this section, the complaint (or part) is terminated. 28 Notice of action taken or decision made following assessment (1) The Commission must give the parties to the complaint notice in writing of the action taken or decision made by the Commission following its assessment of the complaint. The notice is to be given within 14 days after the Commission takes that action or makes that decision. (2) If the Commission decides to investigate a complaint against a health practitioner, the Commission must give notice in writing of the decision— (a) if the health practitioner has provided the health service in respect of which the complaint is made under a contract or agreement with a person who is, or who conducts, a hospital or other health care facility, to the person, or (b) if the health practitioner has provided the health service in the capacity of an employee, to the health practitioner's employer. (3) If the Commission decides to investigate a complaint against a health practitioner, the Commission may give notice in writing of the decision to a person who currently employs or engages the health practitioner as a health practitioner. (4) This section does not require the Commission to give notice of action taken or a decision made to investigate a complaint if it appears to the Commission, on reasonable grounds, that the giving of the notice will— (a) prejudice the investigation of the complaint, or (b) place the health or safety of a client at risk, or (c) place the complainant or another person at risk of intimidation or harassment, or (d) unreasonably prejudice the employment of the health practitioner in the case of a health practitioner who has provided the health service in the capacity of an employee. (5) Despite subsection (4), the Commission must give the notice if the Commission considers on reasonable grounds that— (a) it is essential, having regard to the principles of natural justice, that the notice be given, or (b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (6) If the Commission decides that subsection (4) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give such a form of notice. (7) On the expiration of each consecutive period of 60 days after the Commission has decided to investigate a complaint, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (6)), unless notice under this section has already been given or the Commission has discontinued dealing with the complaint. (8) The Commission's notice to the parties to the complaint must include— (a) advice that the complainant may ask the Commission to review the decision made after assessing the complaint if the decision is— (i) not to investigate the complaint, or (ii) to refer the complaint to the Health Secretary under section 25 or 25A, or (iii) to refer the complaint to another person or body under section 25B or 26, or (iv) to discontinue dealing with the complaint under section 27, and (b) the reasons for the decision. (9) The Commission may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision. Note— A complainant also has the right under section 41 (3) to request a review of a decision made by the Commission under section 39 at the end of its investigation of a complaint. 28A Notification of other persons following assessment (1) The Commission is to use its best endeavours to give notification of the outcomes of the assessment of a complaint to a client whose treatment is the subject of the complaint and who is not required to be given notice under section 28 unless the client— (a) is deceased, or (b) is incapable of understanding the notification. (2) If a complaint relates to the treatment of a client at a hospital or other health care facility, the Commission is to use its best endeavours to give notification of the outcomes of the assessment of the complaint to any person recorded by the hospital or health care facility as being a contact for the client. (3) Without affecting the Commission's obligations under subsections (1) and (2), the Commission may, if it thinks it appropriate and it is practicable to do so, give notification of the outcomes of the assessment of a complaint to any person who is associated with a client whose treatment is the subject of the complaint (including a legal representative of the client or of the estate of the client). (4) The Commission may only give notification to a person under subsection (2) or (3) if the client concerned— (a) is deceased, or (b) is incapable of understanding the notification and the client's authorised representative (as defined in section 8 of the Health Records and Information Privacy Act 2002) has consented to the Commission giving the notification. (5) On request by the Commission, a person who is, or who conducts, a hospital or health care facility is to supply the Commission with any information in its possession that is necessary for the Commission to fulfil its obligations under subsections (1) and (2). The information may be provided to the Commission despite any other Act or law. (6) This section does not require the Commission to give notice of the outcomes of the assessment of a complaint if it appears to the Commission, on reasonable grounds, that the giving of the notice will— (a) prejudice the investigation of the complaint, or (b) place the health or safety of a client at risk, or (c) place the complainant or another person at risk of intimidation or harassment, or (d) unreasonably prejudice the employment of the health practitioner in the case of a health practitioner who has provided the health service in the capacity of an employee. (7) Despite subsection (6), the Commission must give the notice if the Commission considers on reasonable grounds that— (a) it is essential, having regard to the principles of natural justice, that the notice be given, or (b) the giving of the notice is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (8) If the Commission decides that subsection (6) applies to a complaint but that some form of notice could be given of the complaint without affecting the health or safety of a client or putting any person at risk of intimidation or harassment, the Commission may give that form of notice. (9) On the expiration of each consecutive period of 60 days after the Commission has decided to investigate a complaint, the Commission must undertake a review of a decision not to give notice under this section (or to give notice in some other form as referred to in subsection (8)), unless notice under this section has already been given or the Commission has discontinued dealing with the complaint. Division 5 Investigation of complaints Note— The bulk of Commission investigations under this Division will deal with matters arising under the Health Practitioner Regulation National Law (NSW) relating to health practitioners. The Commission will also use its powers under this Division for matters relating to non-registered health practitioners and for other matters referred to it, such as a matter which is referred for investigation under section 59, or where the Commission is operating in conjunction with the Department of Health under general health legislation. 29 The purpose of investigation (1) The investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint. (2) (Repealed) 29A Conduct of investigations (1) Without affecting the generality of section 92A, the investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. Expedition is particularly appropriate if the complainant or the person on whose behalf the complaint is made is seriously ill. (2) Before investigating a complaint, the Commission is to consider conducting a concurrent investigation into any associated complaint (other than one that has been discontinued or terminated and not reopened). (3) In investigating a complaint, the Commission is to have regard to any associated complaint that is not being investigated concurrently, to the extent the Commission considers the associated complaint to be relevant. 30 (Repealed) 31 Authorisation of persons to carry out investigations (1) The Commission may authorise an officer of the Commission, in writing, to exercise the functions under section 33. (2) The Commission must provide an authorised person with a certificate of authority in the form set out in Schedule 1. (3) An authorised person in exercising in any place a function conferred on the authorised person under section 33 must, if so requested by a person apparently in charge of the place, produce the certificate to the person. 32 Consent or search warrant required for residential premises An authorised person may not enter a part of premises used solely for residential purposes and exercise a function under section 33 except— (a) with the consent of the occupier of the premises, or (b) under the authority of a search warrant. 33 Powers of entry, search and seizure (1) An authorised person may, for the purpose of investigating a complaint, do any one or more of the following— (a) at any reasonable time, enter and inspect any premises if the authorised person reasonably believes it is necessary to enter those premises for the purpose of investigating the matter with which the complaint is concerned, (b) examine, seize, retain or remove any equipment that the authorised person reasonably believes is, has been or may be used in connection with that matter, (c) require the production of and inspect any stocks of any substance or drugs in or about those premises, (c1) seize any stocks of any substance or drugs in or about those premises, (d) require any person within those premises to produce any records in the possession or under the control of that person relating to that matter, (e) take copies of, or extracts or notes from, any such records, (f) (Repealed) (f1) remove any such records for the purposes of taking copies of, or notes from, those records. (g) require any person at those premises to answer questions or otherwise furnish information in relation to that matter, (h) require the owner or occupier of those premises to provide the authorised person with such assistance and facilities as is or are reasonably necessary to enable the authorised person to exercise the functions of an authorised person under this section. (2) If an authorised person removes any records for the purposes of taking copies of, or notes from, those records, the authorised person must return the records to the owner of the records as soon as practicable. 34 Search warrant (1) An authorised person may apply to an authorised officer for a search warrant if the person has reasonable grounds for believing that entry to premises is necessary for the purpose of investigating a complaint that, if substantiated, may provide grounds for— (a) the suspension or disqualification (by deregistration or cancellation of enrolment) of the person against whom the complaint is made, or (b) the criminal prosecution of that person, or (c) the taking of other disciplinary action against that person. (2) An authorised person may not apply for a search warrant to search premises for the purpose of investigating a complaint against a health practitioner who is or was, at the relevant time, a registered health practitioner or a student (or whose registration is or was suspended) unless the authorised person or the Commission has caused the President or Chairperson of the appropriate professional council to be notified of the application. (3) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the search warrant to enter the premises and to exercise there the functions of an authorised person under section 33. (4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (5) In this section— authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. 34A Power of Commission to obtain information, records and evidence (1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following— (a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. (2) (Repealed) (3) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B of Part 2 or Part 2A of the Health Administration Act 1982). (4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement. Maximum penalty—200 penalty units. Note— Failure of a health practitioner to comply with a requirement under subsection (4) may constitute unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW). 35–37 (Repealed) 37A Protection from incrimination (1) Self-incrimination not an excuse A person is not excused from a requirement under section 21A or 34A to give information, to answer a question or to produce a document on the ground that the information, answer or document might incriminate the person or make the person liable to a penalty. (2) Information or answer not admissible if objection made However, any information or answer given by a natural person in compliance with a requirement under section 21A or 34A is not admissible in evidence against the person in any civil or criminal proceedings (except disciplinary proceedings or proceedings for an offence under this Part or under section 97A or 97B) if— (a) the person objected at the time to doing so on the ground that it might incriminate the person, or (b) the person was not warned on that occasion that the person may object to giving the information or answer on the ground that it might incriminate the person. (3) Documents admissible Any document produced by a person in compliance with a requirement under section 21A or 34A is not inadmissible in evidence against the person in any proceedings on the ground that the document might incriminate the person. (4) Further information Further information obtained as a result of a document produced or information or answer given in compliance with a requirement under section 21A or 34A is not inadmissible in any proceedings on the ground— (a) that the document, information or answer had to be produced or given, or (b) that the document, information or answer might incriminate the person. (5) The Commission, the Commissioner or a member of staff of the Commission cannot be required (whether by subpoena or any other procedure) to produce, in connection with any proceedings, a document that contains any information or answer that has been obtained as a result of a requirement under section 21A or 34A if the information or answer is not admissible in evidence in those proceedings because of this section. 38 Notification of findings of investigation to appropriate professional council (1) The Commission must notify the appropriate professional council (if any) of the findings of an investigation. (2) If the Commission is required to consult with the professional council under section 39 (2), the notification may be given at the time of consultation. Division 6 Outcomes of investigations into health practitioners 39 What action is taken after an investigation? (1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following— (a) refer the complaint to the Director of Proceedings, (b) (Repealed) (c) refer the complaint to the appropriate professional council (if any) for consideration of the taking of action under the Health Practitioner Regulation National Law (NSW), such as the referral of the health practitioner for performance assessment or impairment assessment, (d) make comments to the health practitioner on the matter the subject of the complaint, (e) terminate the matter, (f) refer the matter the subject of the complaint to the Director of Public Prosecutions, (g) take action under section 41A. (1A) The Commission is not required to take action under this section if it reviews its assessment of the complaint and takes action under section 20A. (2) The Commission must consult with the appropriate professional council, if any, before deciding what action to take. (3) (Repealed) 40 Opportunity for persons investigated to make submissions (1) If, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to do any of the things referred to in section 39 (1) (a), (c), (d) or (g), it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions. (2) Any such submission must be made in writing within 28 days after the health practitioner is so informed. (3) The Commission is not required by this section to inform a health practitioner of the substance of the grounds for its proposed action if— (a) the grounds relate to the sufficiency of the physical or mental capacity of the practitioner to practise as a health practitioner under the impairment provisions of the Health Practitioner Regulation National Law (NSW), and (b) the practitioner has been notified by the appropriate professional council of action to be taken pursuant to those provisions. Note— Section 40 (3) will ensure that professional councils can act to deal with impaired practitioners pursuant to any powers they may have under the Health Practitioner Regulation National Law (NSW), without awaiting advice from the Commission. 41 Notification of results of investigations and review of decisions (1) After the Commission has complied with section 39 and any requirement under section 40, it must notify the parties to the complaint and the appropriate professional council, in writing, of the results of the investigation, the action taken under section 39 and the reasons for taking that action and include advice that the complainant may ask the Commission to review the decision made under section 39. (2) The Commission may, at its discretion, also provide the same information to— (a) an appropriate professional or similar association, if there is no appropriate professional council, or (b) any person or body it could have referred the matter to under section 26 if it is of the view that the matter requires investigation by that person or body, or (c) any person to whom it could have given notice under section 28A of its assessment of the complaint, or (d) any other person or body that is, in the Commission's opinion, a relevant person or body. (3) The Commission must review a decision made under section 39 if asked to do so by the complainant. Division 6A Acti