South Australia: Health and Community Services Complaints Act 2004 (SA)

South Australia Health and Community Services Complaints Act 2004 An Act to provide for the making and resolution of complaints against health or community service providers; to make provision in respect of the rights and responsibilities of health and community service consumers and providers; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Objects 4 Interpretation Part 2—Health and Community Services Complaints Commissioner Division 1—Appointment and conditions of office 5 Appointment 6 Term of office and conditions of appointment 7 Remuneration 8 Temporary appointments Division 2—Functions and powers 9 Functions 10 Powers 11 Independence Division 3—Committees 12 Committees Division 4—Appointment of conciliators and professional mentors 13 Appointment of conciliators and professional mentors Division 5—Other matters 14 Staff 16 Annual report 17 Other reports 18 Immunity Part 3—Charter of Health and Community Services Rights 19 Development of Charter 20 Review of Charter 21 Consultation 22 Content of Charter 23 Approval of Charter Part 4—Complaints Division 1—Making a complaint 24 Who may complain 25 Grounds on which complaint may be made 26 Form of complaint 27 Time within which a complaint may be made 28 Further information may be required Division 1A—Certain complaints to be referred to Ombudsman 28A Commissioner to refer certain complaints to Ombudsman Division 2—Assessment 29 Assessment 30 Preliminary inquiries 31 Provision of documents etc on referral of complaint 32 Splitting or joining of complaints Division 3—No further action on complaint 33 No further action on complaint Division 4—Miscellaneous 34 Withdrawal of complaint Part 5—Conciliation of complaints 35 Function of conciliator 36 Public interest 37 Assistance at conciliation 38 Reports from conciliator 39 Conciliation may be brought to an end 40 Privilege and confidentiality 41 Professional mentor 42 Enforceable agreements Part 6—Investigations Division 1—Application of Part 43 Matters that may be investigated 44 Limitation of powers Division 2—Conduct of investigations 45 Conduct of investigation 46 Representation 47 Use and obtaining of information 48 Power to examine witnesses etc 49 Search powers and warrants 50 Reimbursement of expenses 51 Reference to another authority for investigation 52 Possession of document or other seized item Division 3—Privilege 53 Privilege Division 4—Action on investigation 54 Reports 55 Notice of action to providers 56 Right of review Division 5—Action against certain health service providers 56A Codes of conduct 56B Interim action 56C Commissioner may take action 56D Commissioner to provide details 56E Review 56EA Requirement to comply with interstate orders in this State 56F Related matters Part 7—Relationship between Commissioner and registration authorities 57 Complaints received by Commissioner that relate to registered service providers 58 Referral of complaint to registration authority 59 Action on referred complaints 60 Referral of complaint to Commissioner 61 Action on investigation reports 62 Information from registration authority 63 Information to registration authority 64 Assistance with proceedings 65 Interim action on a complaint 66 Further action by registration authority Part 9—Miscellaneous 72 Delegation 73 Adverse comments in reports 74 Protection of identity of service consumer or complainant from service provider 75 Preservation of confidentiality 76 Returns by prescribed providers 77 Returns by registration authorities and prescribed bodies 78 Offence relating to intimidation 79 Offence relating to reprisals 80 Offences relating to obstruction etc 81 Offences relating to the provision of information 82 Protection of certain information 83 Protection from civil actions 84 Informality of procedures 85 Determining reasonableness of health or community service provider's actions 86 Interaction with Ombudsman Act 1972 86A Assistance to other agencies 87 Regulations 88 Review of Act 89 Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Health and Community Services Complaints Act 2004. 3—Objects The objects of this Act are— (a) to improve the quality and safety of health and community services in South Australia through the provision of a fair and independent means for the assessment, conciliation, investigation and resolution of complaints; and (b) to provide effective alternative dispute resolution mechanisms for consumers and providers of health or community services to resolve complaints; and (c) to promote the development and application of principles and practices of the highest standard in the handling of complaints concerning health or community services; and (d) to provide a scheme that can be used to monitor trends in complaints concerning health or community services; and (e) to identify, investigate and report on systemic issues concerning the delivery of health or community services. 4—Interpretation (1) In this Act, unless the contrary intention appears— carer means a person who is a carer for the purposes of the Carers Recognition Act 2005; Charter means the Health and Community Services Rights Charter under Part 3; Commissioner means the Health and Community Services Complaints Commissioner appointed under Part 2 (and includes a person acting in that office from time to time); community service means— (a) a service for the relief of poverty, social disadvantage, social distress or hardship; or (b) a service for the provision of emergency relief or support; or (c) a service for the care or protection of any child who is, or has been or may be, at risk (within the meaning of the Children and Young People (Safety) Act 2016) and includes— (i) any service that relates to a notification that a child is, or may be, at risk; and (ii) any investigation of a case where a child is, or may be, at risk, and any subsequent action taken by a service provider arising from such an investigation; or (d) a service for the social advancement of disadvantaged groups; or (e) a service of a class included within the ambit of this definition by the regulations; or (f) an administration service directly related to a service referred to in a preceding paragraph, but does not include— (g) a service that provides employment search or placement services, or that provides employment related training or retraining; or (h) a service of a class excluded from the ambit of this definition by the regulations; Examples— The following are examples of community services: · a service that provides community support or care; · a service for the provision of emergency accommodation or relief (including by the provision of emergency financial support), or for the provision of accommodation or support to the socially disadvantaged; · a counselling, advice or community information or awareness service; · a community advocacy, self-help or mutual aid service. community service consumer means a person who uses or receives, or who is seeking to use or receive, a community service; community service provider means a person, government agency or body of persons (whether corporate or unincorporated) who or which— (a) provides a community service; or (b) holds himself, herself or itself out as being able to provide a community service; complainant means a person who makes a complaint and includes a person on whose behalf a complaint is made; complaint means a complaint under this Act; conciliator means a conciliator appointed under this Act; confidential information includes— (a) information about the identity, occupation or whereabouts of a complainant, health or community service consumer or health or community service provider involved in a complaint, investigation or inquiry under this Act; (b) information disclosed by a complainant, health or community service consumer or health or community service provider for the purposes of any complaint, investigation or inquiry under this Act; (c) personal information about a complainant, health or community service consumer or health or community service provider under this Act; (d) information the release of which would cause personal distress to a person; (e) information provided on a confidential basis or otherwise affected by a requirement as to confidentiality; corresponding law means a law, or part of a law, of a State or a Territory of the Commonwealth declared by the regulations to be a corresponding law for the purposes of this Act; Department means the department of the Minister to whom the administration of this Act has been committed; government agency means— (a) a department or administrative unit of the Public Service; or (b) any other agency or instrumentality of the Crown; or (c) a local government council; health professional means— (a) a registered service provider; or (b) an audiologist, audiometrist, optical dispenser, dietitian, prosthetist, psychotherapist, radiographer, therapeutic counsellor, social worker or provider of forensic or pathology services; or (c) any other person who has an occupation that is based on providing health care or treatment to others; or (d) a person who is training to become a person engaged in an occupation referred to in a preceding paragraph and who, as part of that training, is engaged in the provision of health care or treatment to others, but does not include a person whose occupation is excluded from the ambit of this definition by the regulations; health service means— (a) a service designed to benefit or promote human health; or (b) a service provided in association with the use of premises for the care, treatment or accommodation of persons who are aged or who have a physical disability or mental dysfunction; or (c) a diagnostic or screening service; or (d) an ambulance service; or (e) a service to treat or prevent illness, injury, disease or disability; or (f) a service provided by a health professional; or (g) a service involving the provision of information relating to the promotion or provision of health care or health education; or (h) a service of a class included within the ambit of this definition by the regulations; or (i) a social, welfare, recreational or leisure service if provided as part of a service referred to in a preceding paragraph; or (j) an administration service directly related to a service referred to in a preceding paragraph, but does not include— (k) the process of writing, or the content of, a health status report; (l) a service of a class excluded from the ambit of this definition by the regulations; Examples— The following are examples of health services: · a service provided at a hospital, health institution or aged care facility; · a medical, dental, pharmaceutical, mental health, community health or environmental health service; · a laboratory service; · a laundry, dry cleaning, catering or other support service provided in a hospital, health institution or aged care facility. health service consumer means a person who uses or receives, or who is seeking to use or receive, a health service; health service provider means a person, government agency or body of persons (whether corporate or unincorporated) who or which— (a) provides a health service; or (b) holds himself, herself or itself out as being able to provide a health service; health status report means a report prepared by a person, agency or body on the physical, mental or emotional health of a person where the purpose for preparing the report is not for the purpose of providing a health service within the meaning of paragraphs (a) to (j) (inclusive) of the definition of health service; local government council means— (a) a council under the Local Government Act 1999; or (b) a body established by a council under the Local Government Act 1999; or (c) a body that is pursuant to an Act vested with the powers and functions of a council under the Local Government Act 1999; nationally registered health practitioner means a registered health practitioner under the Health Practitioner Regulation National Law and includes a person who was, but is no longer, registered in a health profession under that law (or a previous corresponding Act of the State); power of attorney includes a medical power of attorney; professional mentor means a professional mentor appointed under Part 2; register means register, license, approve, admit, certify (including by way of practising certificate) or authorise in any other manner pursuant to an Act (including pursuant to the Health Practitioner Regulation National Law (South Australia)) a person to provide a health or community service or to practise as a health or community service provider; registered service provider means a health or community service provider registered by a registration authority; registration authority means— (a) the body with the function, under a registration law, of determining an application for registration under that law and includes a body vested with disciplinary powers under a registration law; or (b) any other body brought within the ambit of this definition by the regulations; registration law means— (a) the Health Practitioner Regulation National Law; or (b) the Health Practitioner Regulation National Law (South Australia) Act 2010; or (d) an Act brought within the ambit of this definition by the regulations; relevant registration authority in relation to a person, means a registration authority that has registered that person; State Ombudsman means the Ombudsman under the Ombudsman Act 1972; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; volunteer means a person who receives no remuneration for acting in a particular capacity (being a capacity associated with the provision of a health or community service). (2) A registration authority will not be taken to be a health or community service provider for the purposes of this Act. Part 2—Health and Community Services Complaints Commissioner Division 1—Appointment and conditions of office 5—Appointment (1) There is to be a Health and Community Services Complaints Commissioner. (2) The Commissioner is appointed by the Governor. 6—Term of office and conditions of appointment (1) The Commissioner is appointed on conditions determined by the Governor and for a term, not exceeding 7 years, specified in the instrument of appointment. (2) An appointment may be renewed but a person must not hold office as Commissioner for more than 2 consecutive terms. (3) The Governor may remove the Commissioner from office on the presentation of an address from both Houses of Parliament seeking the Commissioner's removal. (4) The Governor may suspend the Commissioner from office on the ground of incompetence or misbehaviour and, in that event— (a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and (b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Commissioner's removal has not been presented to the Governor, the Commissioner must be restored to office. (5) The office of Commissioner becomes vacant if the Commissioner— (a) dies; or (b) resigns by written notice given to the Minister; or (c) completes a term of office and is not reappointed; or (d) is removed from office by the Governor under subsection (3); or (e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or (f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or (h) becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office. (6) Except as is provided by this section, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant. 7—Remuneration The Commissioner is entitled to remuneration, allowances and expenses determined by the Governor. 8—Temporary appointments The Minister may appoint a person (who may but need not be an employee in the Public Service) to act as the Commissioner— (a) during a vacancy in the office of Commissioner; or (b) when the Commissioner is absent from, or unable to discharge, official duties; or (c) if the Commissioner is suspended from office under this Act. Division 2—Functions and powers 9—Functions (1) The Commissioner has the following functions: (a) to prepare and regularly review the Charter of Health and Community Services Rights under Part 3; and (b) to identify and review issues arising out of complaints and to make recommendations for improving health and community services and preserving and increasing the rights of people who use those services; and (c) to review and identify the causes of complaints and to— (i) recommend ways to remove, resolve or minimise those causes; and (ii) detect and review trends in the delivery of health or community services; and (d) to provide information, education and advice in relation to— (i) the Charter; and (ii) health and community service rights and responsibilities; and (iii) procedures for resolving complaints; and (iv) other matters (if any) determined to be appropriate by the Commissioner; and (e) to receive, assess and resolve complaints; and (f) to encourage and assist health and community service consumers to resolve complaints directly with health and community service providers; and (g) to assist health and community service providers to develop or improve procedures to resolve complaints; and (h) to inquire into and report on any matter relating to health or community services on the Commissioner's own motion or at the request of the Minister; and (i) to advise, and report to, the Minister on any matter relating to health or community services or the administration or operation of this Act; and (j) to provide information, advice and reports to registration authorities and to work with registration authorities to develop or improve procedures relating to the assessment and investigation of complaints and grievances; and (k) to maintain links with— (i) health and community service providers; and (ii) organisations that have an interest in the provision of health or community services; and (iii) organisations that represent the interests of the consumers of health or community services; and (l) to consult and cooperate with other agencies and authorities that are involved in protecting the interests and rights of members of the community in the area of the provision of health or community services, including— (i) the State Ombudsman; and (ii) the Australian Human Rights Commission; and (m) to perform other functions conferred on the Commissioner by or under this or any other Act. (2) The Commissioner must, in providing information and advice, and in the assessment and consideration of any complaint, take into account, to such extent as may be appropriate, the position of persons within special needs groups. (3) For the purposes of subsection (2), special needs groups are particular classes of persons who, because of the nature of the classes to which they belong, may suffer disadvantage in the provision of services unless their needs are recognised. (4) The Commissioner must, in acting under this Act, give particular attention to the position of volunteers and to their value in providing health and community services within the community and should not unnecessarily involve them in any proceedings under this Act. 10—Powers The Commissioner has the powers necessary or expedient for, or incidental to, the performance of the Commissioner's functions. 11—Independence (1) In performing and exercising his or her functions and powers under this Act, the Commissioner must act independently, impartially and in the public interest. (2) The Minister cannot control how the Commissioner is to exercise the Commissioner's statutory functions and powers1. Note— 1 This provision does not derogate from any express power of the Minister under this Act. Division 3—Committees 12—Committees (1) The Commissioner— (a) may, after consultation with the Minister, establish such committees as the Commissioner considers appropriate; and (b) must, at the direction of the Minister in relation to a matter or matters of public safety, interest or importance, establish a committee or committees in accordance with that direction, to assist the Commissioner in the performance of the Commissioner's functions under this Act. (2) Subject to any direction of the Minister, the membership and functions of a committee will be determined by the Commissioner. (3) A member of a committee is entitled to any remuneration, allowances or expenses determined or approved by the Minister. (4) The procedures to be observed by a committee will be— (a) as determined by the Minister or the Commissioner; or (b) insofar as a determination is not made under paragraph (a)—as determined by the committee. Division 4—Appointment of conciliators and professional mentors 13—Appointment of conciliators and professional mentors (1) The Commissioner may appoint suitable persons as conciliators or professional mentors for the purposes of this Act. (2) An appointment will be made for a term, not exceeding 3 years, determined by the Commissioner and on conditions determined or approved by the Minister. (3) The conditions under subsection (2) may include conditions as to the remuneration, allowances or expenses to be paid to the relevant person. (4) An appointment may be renewed from time to time. (5) Nothing in this section prevents the Commissioner, or a member of the Commissioner's staff, acting as a conciliator under this Act. Division 5—Other matters 14—Staff (1) The Commissioner's staff consists of— (a) Public Service employees assigned to work in the office of the Commissioner under this Act; and (b) any person appointed under subsection (3). (2) The Minister may, by notice in the Gazette— (a) exclude Public Service employees who are members of the Commissioner's staff from specified provisions of the Public Sector Act 2009; and (b) if the Minister thinks that certain provisions should apply to such employees instead of those excluded under paragraph (a)—determine that those provisions will apply, and such a notice will have effect according to its terms. (3) The Commissioner may, with the consent of the Minister, appoint staff for the purposes of this Act. (4) The terms and conditions of employment of a person appointed under subsection (3) will be determined by the Governor and such a person will not be a Public Service employee. (5) The Commissioner may, by agreement with the Minister responsible for an administrative unit of the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit. 16—Annual report (1) The Commissioner must, on or before 30 September in every year, forward a report to the Minister on the work of the Commissioner under this Act during the financial year ending on the preceding 30 June. (1a) Without limiting matters that may be included in a report of the Commissioner under subsection (1), each report— (a) must include the following information relating to the relevant financial year: (i) the number, type and sources of complaints made; (ii) a summary of all assessments and determinations made under section 29 in relation to a complaint; (iii) a summary of all determinations under section 33 to take no further action in relation to a complaint; (iv) if a complaint was referred for conciliation—the outcome of the conciliation; (v) if a complaint was dealt with under Part 7—the outcome of any action taken by a registration authority; (vi) a summary of all investigations conducted by the Commissioner under Part 6, including the outcomes of those investigations; (vii) a summary of the time taken for complaints to be dealt with under the Act; (viii) a summary of all complaints not finally dealt with by the Commissioner; and (b) may include the following information relating to the relevant financial year: (i) such information relating to complaints (other than that required to be included under paragraph (a)) as the Commissioner thinks fit; (ii) any report made to the Minister under section 54; (iii) if a complaint was dealt with under Part 7—a summary of any advice, notification or information provided to the Commissioner in relation to the complaint by a registration authority. (1b) Matters included in a report under subsection (1)— (a) are to be reported, as far as practicable, according to professional groupings (as determined by the Commissioner); and (b) must not identify a person who has made a complaint, a person in relation to whom a complaint has been made or a person who has been subject to an investigation under this Act, unless the identity of the person has already been lawfully made public. (2) The Minister must, within 6 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament. 17—Other reports (1) The Commissioner may, at any time, prepare a report to the Minister on any matter arising out of the exercise of the Commissioner's functions under this Act. (2) Subject to subsection (3), the Minister must, within 2 weeks after receiving a report under this section, have copies of the report laid before both Houses of Parliament. (3) If the Minister cannot comply with subsection (2) because Parliament is not sitting, the Minister must deliver copies of the report to the President and the Speaker and the President and the Speaker must then— (a) immediately cause the report to be published; and (b) lay the report before their respective Houses at the earliest opportunity. (4) A report will, when published under subsection (3)(a), be taken for the purposes of any other Act or law to be a report of the Parliament published under the authority of the Legislative Council and the House of Assembly. 18—Immunity (1) The Commissioner, a member of a committee appointed under this Part, a conciliator or a professional mentor incurs no civil liability for an honest act or omission in the performance or exercise, or purported performance or exercise, of a function or power under this Act. (2) The immunity under subsection (1) does not extend to culpable negligence. (3) A civil liability that would, but for this section, attach to a person attaches instead to the Crown. Part 3—Charter of Health and Community Services Rights 19—Development of Charter (1) The Commissioner must develop a draft Charter of Health and Community Services Rights. (2) The draft must be presented to the Minister within 12 months after the commencement of this Part or within such longer period as the Minister may allow. (3) The Commissioner must report to the Minister on the development of the draft at intervals of not more than 4 months until the draft is presented to the Minister under subsection (2). 20—Review of Charter The Commissioner— (a) may at any time review the Charter; and (b) if the Minister so directs, must review the Charter. 21—Consultation In developing or reviewing the Charter, the Commissioner must invite submissions from, and consult with, to such extent as may be reasonable, interested persons with a view to obtaining a wide range of views in relation to the matters under consideration. 22—Content of Charter In developing or reviewing the Charter, the Commissioner may have regard to any matter considered relevant to the provision or use of health or community services and must have regard to the following principles: (a) that a person should be entitled to participate effectively in decisions about his or her health, well-being and welfare; (b) that a person should be entitled to take an active role in his or her health care and in decisions about the provision of health or community services to the person; (c) that a person should be entitled to be provided with appropriate health or community services in a considerate way that takes into account his or her background and any requirements that are reasonably necessary to ensure that he or she receives such services; (d) that both professional and non-professional providers of health and community services should be given consideration and recognition for their contribution to health care and the well-being and welfare of individuals; (e) that a person should be entitled to obtain reasonable access to records concerning his or her health or other personal information relating to the person (taking into account what is appropriate and reasonable in the circumstances of a particular case), but that otherwise the confidentiality of such information should be maintained; (f) that a person should be entitled to have access to procedures for dealing with complaints about the provision of health or community services; (g) that a person should be entitled to be supported by a person of his or her choice when making a complaint about the provision of health or community services. 23—Approval of Charter (1) The Minister may, on the receipt of a draft Charter or a variation of the Charter from the Commissioner— (a) approve the Charter or the variation; or (b) require an alteration to the Charter or the variation, after consultation with the Commissioner, and then approve the Charter or variation as altered. (2) The Minister must then cause a copy of the Charter or variation (as the case may be) to be laid before both Houses of Parliament. (3) The Charter or the variation will not come into operation— (a) until 14 sitting days of each House of Parliament have elapsed after a copy of the Charter or the variation is laid before each House; and (b) if, within those 14 sitting days, a motion for disallowance or amendment of the Charter or the variation is moved in either House, unless or until— (i) in the case of a motion for disallowance—the motion is defeated or withdrawn, or lapses; (ii) in the case of a motion for amendment—the amendment is made in accordance with subsection (4) or the motion is defeated or withdrawn, or lapses. (4) If a motion for amendment is moved under subsection (3)(b), the Minister may withdraw the Charter or the variation, make the relevant amendment, and then lay the amended Charter or variation before both Houses of Parliament. Part 4—Complaints Division 1—Making a complaint 24—Who may complain A complaint about a health or community service used, received by or sought by a person (a health or community service consumer) may be made to the Commissioner by— (a) the health or community service consumer; or (b) if the health or community service consumer is a child— (i) the child; or (ii) if the child has attained the age of 16 years—a person appointed by the child to make the complaint on the child's behalf; or (iii) if the child has not attained the age of 16 years—a parent or guardian of the child; or (d) the donee of a power of attorney from the health or community service consumer; or (da) a substitute decision‑maker appointed under an advance care directive (within the meaning of the Advance Care Directives Act 2013) given by the health or community service consumer; or (e) a person who is acting on behalf of the health or community service consumer under another law or an order of a court; or (f) a Member of Parliament; or (g) if the Commissioner is satisfied that it is unreasonable to expect the health or community service consumer to make a complaint personally—a person approved by the Commissioner to act on behalf of the health or community service consumer; or (h) a health or community service provider if the complaint is made on the ground that the relevant service is or has been provided or is or was necessary because of the actions of another health or community service provider; or (i) if the health or community service consumer has died—a person who can demonstrate to the Commissioner that he or she had an enduring relationship with the deceased person, or a personal representative of the deceased person; or (j) the Minister; or (k) the Chief Executive of the Department; or (l) any other person, or any body, that, in the opinion of the Commissioner, should be able to make a particular complaint in the public interest. 25—Grounds on which complaint may be made (1) A complaint may be made (and may only be made under this Act) on one or more of the following grounds: (a) that a health or community service provider has acted unreasonably by not providing a health or community service, or by discontinuing (or proposing to discontinue) a health or community service provided to a particular person; (b) that the provision of a health or community service or of part of a health or community service was not necessary or was inappropriate; (c) that a health or community service provider has acted unreasonably in the manner of providing a health or community service; (d) that a health or community service provider has failed to exercise due skill; (e) that a health or community service provider has failed to treat a health or community service consumer in an appropriate professional manner; (f) that a health or community service provider has failed to respect a health or community service consumer's privacy or dignity; (g) that a health or community service provider has acted unreasonably by failing to provide a health or community service consumer— (i) with sufficient information, in language and terms understandable to the consumer, on the treatment or service in order to enable the consumer to make an informed decision; or (ii) with a reasonable opportunity to make an informed choice of the treatment or services available; or (iii) with adequate information on the availability of further advice on the consumer's condition or of relevant education programs (if any); or (iv) with adequate information on the treatment or services received; or (v) with any prognosis that it would have been reasonable for the consumer to be provided with; (h) that a health or community service provider has acted unreasonably by— (i) denying a health or community service consumer access to, or restricting the consumer's reasonable access to, records relating to the consumer that were in the provider's possession; or (ii) not making available to a health or community service consumer information about the consumer's condition that the health service provider was able to make available; (i) that a health or community service provider has acted unreasonably in disclosing information in relation to a health or community service consumer to a third person; (j) that a health or community service provider has acted unreasonably by not taking proper action in relation to a complaint made to him or her by the consumer about a provider's action of a kind referred to in this section; (k) that a health or community service provider has acted in any other manner that is inconsistent with the Charter; (l) that a health or community service provider has acted in any other manner that did not conform with the generally accepted standard of service delivery expected of a provider of the kind of service to which the complaint relates. (2) Nothing in subsection (1) requires a health or community service provider— (a) to act, or to provide advice or information with respect to a matter, outside the field of expertise associated with the provider's profession or occupational group; or (b) to alter, or to hand over a copy of, medical records in the provider's possession. (3) For the purposes of subsection (1), information appropriately provided to a person lawfully acting on behalf of a health or community service consumer at the time the information is provided will be taken to have been appropriately provided to the health or community service consumer. (4) Subsection (1)(i) does not apply in relation to the disclosure of information to— (a) a legal practitioner in connection with a related legal matter; or (b) an insurer who has an appropriate interest in the information; or (c) any other person of a prescribed class. (5) If a complaint relates to an act or omission of a volunteer while working for another person or body, the complaint will be taken to be a complaint against the other person or body (as the case may be) and, subject to subsection (6), the volunteer cannot be required to participate in any proceedings under this Act and in particular cannot be the subject of the exercise of any power under Part 6 Division 2. (6) Despite subsection (5), a volunteer may be required to participate in proceedings under this Act and may be the subject of the exercise of power under Part 6 if, in the circumstances— (a) a code of conduct under section 56A applies in respect of the volunteer; and (b) the Commissioner is satisfied that conduct of the volunteer poses or has posed a risk to the health or safety of members of the public. 26—Form of complaint (1) A complaint is to be made in a manner approved or determined by the Commissioner. (2) A person must, in making a complaint, disclose to the Commissioner, to the best of the person's abilities, all grounds of complaint on which he or she intends to rely. 27—Time within which a complaint may be made (1) Subject to subsection (2), a complaint must be made within 2 years from the day on which the complainant first had notice of the circumstances giving rise to the complaint. (2) The Commissioner may extend the period under subsection (1) in a particular case— (a) if satisfied that it is appropriate to do so after taking into account— (i) whether a proper investigation of the complaint should still be possible; and (ii) whether the complaint should still be amenable to resolution under the provisions of this Act; and (iii) whether it would be in the public interest to entertain the complaint; and (iv) any other matter considered relevant by the Commissioner; or (b) if— (i) the complaint relates to the provision of a health or community service to a child; and (ii) the complainant first had notice of the circumstances giving rise to the complaint after May 2004. (3) For the purposes of subsection (1), a complainant will be presumed to have notice of the circumstances giving rise to the complaint at the time he or she might reasonably be expected to have had such notice. (4) This section does not apply in relation to a complaint made by the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People or the Guardian for Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016. 28—Further information may be required (1) The Commissioner may, at any time, require a complainant— (a) to provide further information or documents; (b) to verify all or any part of the complaint by statutory declaration. (2) When making a requirement under subsection (1), the Commissioner must specify a reasonable period within which the requirement is to be satisfied. (3) The Commissioner may extend the period specified under subsection (2) (whether before or after its expiry). Division 1A—Certain complaints to be referred to Ombudsman 28A—Commissioner to refer certain complaints to Ombudsman (1) Subject to this section, the Commissioner must refer a complaint that is a prescribed child protection complaint to the Ombudsman to be dealt with under the Ombudsman Act 1972. (2) The Commissioner and the Ombudsman may enter into an administrative arrangement to identify classes of prescribed child protection complaints that are to be dealt with by the Commissioner under this Act (and subsection (1) will be taken not to apply to such complaints). (3) An administrative arrangement may be varied or revoked by agreement between the Commissioner and the Ombudsman. (4) A copy of an administrative arrangement, as in force from time to time, must be published on a website determined by the Minister. (5) The Minister must, within 6 sitting days after an administrative arrangement is entered into under subsection (2), cause a copy of the administrative arrangement to be laid before both Houses of Parliament. (6) Without limiting a provision of the Ombudsman Act 1972, the Ombudsman, in dealing with a prescribed child protection complaint, has the same jurisdiction and any additional powers that the Health and Community Services Complaints Commissioner would have under this Act in respect of such a complaint. (7) For the purposes of the Ombudsman Act 1972, a complaint referred under this section will be taken to be a complaint received under that Act. (8) In this section— administrative act has the same meaning as in the Ombudsman Act 1972; at risk has the same meaning as in the Children and Young People (Safety) Act 2016; prescribed child protection complaint means— (a) a complaint relating to a health or community service— (i) that is provided to, or for the benefit of, a child who may be, or who has been, at risk; or (ii) that consists of, or includes, a notification (whether mandatory or otherwise) of a suspicion that a child may be at risk; or (iii) that consists of, or includes or arises out of, an investigation of a case where a child may be at risk; or (iv) that is provided to, or for the benefit of, a child who is under the guardianship, or in the custody of, the Minister or another person under the Children and Young People (Safety) Act 2016, where the provision of the service constitutes an administrative act on the part of an agency to which the Ombudsman Act 1972 applies; or (b) any other complaint of a kind declared by the regulations to be included in the ambit of this definition, but does not include a complaint of a kind declared by the regulations not to be included in the ambit of this definition. Division 2—Assessment 29—Assessment (1) The Commissioner must assess a complaint and make a determination in accordance with this section within 45 days after receiving it (or within such longer period as may be necessary in view of any delays that have occurred while the Commissioner or another person takes steps required by or under this Act, or while the Commissioner is undertaking a preliminary inquiry under section 30). (2) Subject to this Act, the Commissioner may— (a) refer the complaint to a conciliator under Part 5; or (b) investigate the complaint under Part 6; or (c) if the complaint is against or directly involves a registered service provider, deal with the complaint under Part 7; or (d) if of the opinion that the complaint relates to a matter that falls within the functions conferred on another person or body and that it is appropriate in the circumstances to make a referral under this provision, refer the complaint to the other person or body; or (e) determine to take no further action on the complaint. (3) If a complaint is against or directly involves an approved provider under the Aged Care Act 1997 of the Commonwealth— (a) the Commissioner must consult with the relevant complaints resolution bodies under that Act about the management of the complaint; and (b) the Commissioner may refer the complaint to another authority for investigation or resolution under that Act; and (c) the Commissioner may provide information and assistance to another authority concerned with the investigation or resolution of the complaint under that Act. (4) The Commissioner must not refer a complaint to a conciliator if the complaint appears to the Commissioner to indicate— (a) the existence of a significant issue of public safety, interest or importance; or (b) a significant question as to the practice of a health or community service provider. (5) A complaint should not proceed under this Act if it appears to the Commissioner that the complainant has failed, without good reason, to take reasonable steps to resolve the matter with the relevant health or community service provider before making the complaint. (6) Within 14 days after making a determination under subsection (1), the Commissioner must provide written notice of the determination— (a) to the complainant; and (b) except where the Commissioner has determined to dismiss the complaint, to the health or community service provider. (7) In subsection (1), complaint includes a complaint that has been referred, or referred back to the Commissioner, by the State Ombudsman, a registration authority or other person or body referred to in subsection (2). 30—Preliminary inquiries (1) The Commissioner may, in such manner as the Commissioner thinks fit, undertake a preliminary inquiry in connection with making a determination under section 29. (2) For the purposes of an inquiry, the Commissioner may require a health or community service provider to provide information, or any response or explanation, about any matter relevant to the inquiry. (3) The Commissioner must specify a reasonable period within which a health and community service provider is to comply with a requirement under subsection (2). (4) The Commissioner may extend the period specified under subsection (3) (whether before or after its expiry). (5) A health or community service provider must comply with a requirement under subsection (2). Maximum penalty: $10 000. (6) However, a person is not obliged to comply with a requirement under subsection (2) if to do so might tend to incriminate the person or make the person liable to a criminal penalty. (7) During the conduct of a preliminary inquiry, the Commissioner may assist the parties towards resolution of the complaint through informal mediation. (8) Informal mediation should not occur if the complaint appears to the Commissioner to indicate— (a) the existence of a significant issue of public safety, interest or importance; or (b) a significant question as to the practice of a health or community service provider. (9) Informal mediation will occur in such manner, and subject to such conditions, as the Commissioner thinks fit. (10) Anything said or done during an informal mediation, other than something that reveals a significant issue of public safety, interest or importance, is not to be disclosed in any other proceedings (whether under this or any other Act or law) except by consent of the parties. (11) An informal mediation must be brought to an end— (a) if the informal mediation reveals, in the opinion of the Commissioner— (i) a significant issue of public safety, interest or importance; or (ii) a significant question as to the practice of a health or community service provider; or (b) at the request of a party to the informal mediation. (12) The Commissioner may bring an informal mediation to an end at any time. (13) For the purposes of conducting any inquiry or informal mediation under this section, the Commissioner may obtain the assistance of a professional mentor. (14) The Commissioner may discuss any matter relevant to making a determination under section 29 or with respect to the operation of this section with a professional mentor. 31—Provision of documents etc on referral of complaint (1) If the Commissioner has referred a complaint to another person or body (including a registration authority) under this Division, the Commissioner may give to the other person or body all documents and information in the possession of the Commissioner that relate to the complaint. (2) The Commissioner may— (a) make and retain a record of information referred to in subsection (1); and (b) make copies of, or take extracts from, a document referred to in subsection (1) and retain those copies or extracts. 32—Splitting or joining of complaints (1) If it is administratively or otherwise appropriate to do so, the Commissioner may determine that a complaint that— (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 health or community service provider; or (d) makes more than one allegation against a health or community service provider; or (e) for any other reason is susceptible to being dealt with in separate parts, be treated as 2 or more complaints for the purposes of this Act. (2) If it is administratively or otherwise appropriate to do so, the Commissioner may determine that 2 or more complaints that— (a) deal with the same subject matter; or (b) deal with the same set of circumstances; or (c) make allegations against the same health or community service provider; or (d) for any other reasons are susceptible to amalgamation, be treated as 1 complaint for the purposes of this Act. (3) The Commissioner may give such directions or make such incidental determinations as the Commissioner thinks necessary or convenient in view of a determination under subsection (1) or (2). (4) A determination or direction of the Commissioner will have effect according to its terms. (5) The Commissioner must not make a determination under subsection (1) or (2) if it appears to the Commissioner that any attempt at resolution or conciliation is likely to be prejudiced by the making of the determination. Division 3—No further action on complaint 33—No further action on complaint (1) The Commissioner may at any stage of proceedings under this Act determine to take no further action on a complaint, or to suspend action on a complaint, if the Commissioner considers or is satisfied that— (a) the complainant is not entitled to make the complaint under this Act; or (b) the complaint does not disclose a ground of complaint under this Act; or (c) the matter should be determined by way of legal proceedings; or (d) proceedings that relate to the subject matter of the complaint have been commenced before a tribunal, authority or other person or body; or (e) the complainant has been given reasonable explanations or information and there would be no benefit in further entertaining the complaint; or (f) the complainant is seeking to act on a ground that should have been disclosed by the complainant at an earlier time in accordance with the requirements of section 26(2); or (g) the complaint lacks substance, is unnecessary or unjustifiable, or is frivolous, vexatious or not made in good faith; or (h) the complainant has failed, without good reason, to comply with a requirement under this Act within a reasonable time, or to take a reasonable step in connection with making the complaint or proceeding with the complaint under this Act; or (i) the commencement or continuance of proceedings on the complaint would otherwise be an abuse of the processes under this Act; or (j) the complaint has been resolved or abandoned; or (k) there is some other reasonable cause that justifies the discontinuance or suspension of proceedings under this Act, (and such a determination will have effect according to its terms). (2) The Commissioner must take no further action on a complaint if the Commissioner is satisfied that all issues arising out of the subject matter of the complaint have been adjudicated by a court, tribunal, authority or other person or body acting under a law of the State, another State, a Territory or the Commonwealth. (3) The Commissioner must suspend action on a complaint if the Commissioner is satisfied— (a) that proceedings that relate to the subject matter of the complaint have been commenced before the court; or (b) that an inquest that relates to the subject matter of the complaint has been commenced by a coroner. (4) The Commissioner must, in a case where subsection (1), (2) or (3) applies, give written notice relating to the matter— (a) to the complainant; and (b) except where notice of the complaint has not been given to the health or community service provider, to the health or community service provider. (5) The Commissioner may recommence action on a suspended complaint for any reasonable cause by giving written notice— (a) to the complainant; and (b) to the health or community service provider. Division 4—Miscellaneous 34—Withdrawal of complaint (1) A complainant may withdraw a complaint at any time by written notice to the Commissioner. (2) If a complaint is withdrawn— (a) any investigation under this Act in relation to the matter will cease unless the Commissioner has determined to conduct or continue an investigation under section 43(1)(c); and (b) the Commissioner must— (i) if the health or community service provider has been notified of the receipt of the complaint—notify that provider of the withdrawal within 14 days; and (ii) if the Commissioner has determined to conduct or continue an investigation under section 43(1)(c)—advise the health or community service provider about the effect of the determination despite the withdrawal of the complaint. (3) If the Commissioner has referred a complaint to another person or body under this Act, the withdrawal of that complaint under subsection (1) does not affect the performance and exercise by the person or body of his, her or its functions and powers in respect of the matters raised by or in the complaint. Part 5—Conciliation of complaints 35—Function of conciliator (1) The function of a conciliator is to encourage the settlement of a complaint by— (a) arranging discussions or negotiations between the complainant and the health or community service provider; (b) assisting in the conduct of those discussions or negotiations; (c) assisting the complainant and the health or community service provider to reach agreement; (d) assisting in the resolution of the complaint in any other way. (2) A conciliator may, if the conciliator thinks it appropriate to do so, undertake a conciliation without bringing the parties together. 36—Public interest (1) Before the conciliation of a complaint begins, the Commissioner must identify and inform the conciliator about any issue raised by the complaint that the Commissioner considers involves the public interest. (2) At the start of the conciliation, the conciliator must draw any issues involving the public interest of which he or she has been informed under subsection (1) to the attention of the complainant and the health or community service provider. (3) In the course of the conciliation, the conciliator must (at an appropriate time) draw to the attention of the parties any issues involving the public interest that the conciliator considers are raised by the complaint. (4) The conciliator must report to the Commissioner any issue involving the public interest that the conciliator considers is raised by the complaint (other than an issue identified under subsection (1)). (5) The Commissioner may, with respect to any issue that the Commissioner considers involves the public interest, consult with any other person or body despite the fact that a conciliation may be proceeding. 37—Assistance at conciliation (1) A party to a conciliation may be assisted by another person. (2) However, a party cannot be assisted by a particular person if the conciliator has directed that that person not be allowed to act in the particular matter. (3) A party in a conciliation process may not be represented by another person except where the Commissioner is satisfied that such representation is likely to assist substantially in resolving the complaint. 38—Reports from conciliator (1) Without limiting subsection (2), a conciliator must provide to the Commissioner a written report of the progress of a conciliation when requested to do so by the Commissioner. (2) A conciliator must provide to the Commissioner a written report of the results of a conciliation when the conciliator is satisfied— (a) that the complainant and the health or community service provider have reached agreement on all issues raised by a complaint on which the conciliator considers agreement to be possible; or (b) that an agreement between the complainant and health or community service provider is not possible, or is not possible to reach within a reasonable period of time. 39—Conciliation may be brought to an end (1) A conciliator may end a conciliation for any reasonable cause at any reasonable time. (2) A conciliation must be brought to an end at the direction of the Commissioner. (3) A conciliation must be brought to an end if the conciliation reveals, in the opinion of the conciliator or the Commissioner— (a) the existence of a significant issue of public safety, interest or importance; or (b) a significant question as to the practice of a health or community service provider. (4) A conciliation must be brought to an end at the request of a party to the conciliation. (5) If a conciliation is brought to an end without resolution of all relevant matters, the Commissioner may— (a) refer the complaint to another conciliator; or (b) investigate the complaint under Part 6; or (c) deal with the complaint under Part 7; or (d) refer the complaint to another person or body; or (e) decide to take no further action on the complaint. 40—Privilege and confidentiality (1) Anything said or done during conciliation under this Part, other than something that reveals a significant issue of public safety, interest or importance, is not to be disclosed in any other proceedings (whether under this or any other Act or law) except by consent of all parties to the conciliation. (2) Except where a disclosure is authorised under this Part, a conciliator must not disclose information gained during conciliation— (a) in any further conciliation; or (b) to any person appointed, employed or engaged for the purposes of this Act. Maximum penalty: $5 000. 41—Professional mentor (1) The Commissioner may appoint a professional mentor to be available to advise a conciliator in the performance of his or her functions. (2) A conciliator may discuss any matter arising in relation to the performance of his or her functions with a professional mentor. (3) A professional mentor must not disclose to a third person (other than the Commissioner) information that was gained by a conciliator during conciliation and communicated by the conciliator to the professional mentor. Maximum penalty: $5 000. 42—Enforceable agreements (1) Any agreement reached between a complainant and a health or community service provider in the course of the conciliation process may be made in a binding form. (2) However, an agreement is not binding unless it is— (a) in writing; and (b) entered into within 14 days after the verbal agreement is reached in the course of the conciliation. (3) Subsection (1) does not affect the effectiveness of any agreement reached outside the conciliation process. (4) A conciliator must not be a party to any agreement between a complainant and a health or community service provider relating to a matter that has been dealt with in a process of conciliation. Part 6—Investigations Division 1—Application of Part 43—Matters that may be investigated (1) The Commissioner may investigate— (a) any matter specified in a written direction given by the Minister; and (b) a complaint that the Commissioner has determined to investigate under this Act; and (c) an issue or question arising from a complaint if it appears to the Commissioner— (i) to be a significant issue of public safety, interest or importance; or (ii) to be a significant question as to the practice of a health or community service provider; and (d) on his or her own motion, any other matter relating to the provision of health or community services in South Australia. (2) An investigation under subsection (1)(c) may be carried out whether or not— (a) the process of assessment of the relevant complaint has been completed; or (b) any process of conciliation of the relevant complaint has been completed; or (c) the relevant complaint has been withdrawn; or (d) the Commissioner has decided not to take action (or further action) on the relevant complaint. (3) Despite subsection (2), an investigation referred to in subsection (1)(c) should not be carried out to the extent that it interferes with a process of conciliation. (4) The Commissioner is not required to cease an investigation referred to in subsection (1)(b) or (c) only because the relevant complaint has been resolved. (5) Without limiting the operation of a preceding subsection, an investigation under subsection (1)(c) may be carried out on the basis of fresh evidence that comes to the attention of the Commissioner following the completion of a particular investigation. 44—Limitation of powers The powers conferred by this Part may be exercised only for purposes of an investigation. Division 2—Conduct of investigations 45—Conduct of investigation (1) An investigation is to be conducted in such manner as the Commissioner considers appropriate. (2) The Commissioner may, in conducting an investigation under this Part, obtain expert advice, or any other advice or support, in order to assist the Commissioner in the investigation. (3) The Commissioner may, at any time, decide to attempt to deal with a complaint by conciliation. (4) The Commissioner may, in attempting conciliation under subsection (3), act personally or through a member of his or her staff. (5) The Commissioner may, if satisfied that the subject of a complaint has been properly resolved by conciliation under subsection (3), determine that the complaint should not be further investigated under this Part. (6) Anything said or done during conciliation under subsection (3), other than something that reveals a significant issue of public safety, interest or importance, is not to be disclosed in any other proceedings (whether under this or any other Act or law) except by consent of all parties to the conciliation. 46—Representation (1) Subject to subsection (2), a person required to appear or to produce documents under this Part may be assisted or represented by another person. (2) The Commissioner may determine whether any person involved in proceedings under this Part may have legal or other representation during the conduct of an investigation or proceedings relating to an investigation. (3) The Commissioner must, in making any determination under subsection (2), to such extent as is reasonably practicable, have regard to the need to ensure that representation is balanced between the parties and that any determination is fair to all persons who are involved in proceedings under this Part. 47—Use and obtaining of information (1) If the Commissioner has obtained a document or information under or in connection with the operation of this Act, the Commissioner may use that document or information for the purposes of this Part. (2) If the Commissioner has reason to believe that a person is capable of providing information or producing a document relevant to an investigation, the Commissioner may, by notice in writing provided to the person, require the person to do one or more of the following: (a) to provide that information to the Commissioner in writing signed by that person or, in the case of a body corporate, by an officer of the body corporate; (b) to produce that document to the Commissioner; (c) to attend before a person specified in the notice and answer questions or produce documents relevant to the investigation. (3) A notice under subsection (2) is to specify the period within which, or the time, day and place at which, the person is required to provide the information or document, or to attend. (4) A notice under subsection (2) must provide a period of time for compliance with a requirement under that subsection that has been determined by the Commissioner to be reasonable in the circumstances. (5) A person must comply with a requirement under subsection (2). Maximum penalty: $5 000. (6) If a document is produced in accordance with a requirement under this section, the Commissioner or other appropriate person may take possession of, make copies of, or take extracts from, the document. 48—Power to examine witnesses etc (1) The Commissioner, or a person who is to receive information under section 47(2), may administer an oath or affirmation to a person required to attend before him or her under this Part and may examine the person on oath or affirmation. (2) The Commissioner may require a person to verify by statut