Tasmania: Health Complaints Act 1995 (Tas)

Health Complaints Act 1995 An Act to provide for the making, conciliation, investigation and resolution of complaints against health service providers, to make provision in respect of the rights and responsibilities of health service users and providers and for related purposes [Royal Assent 24 November 1995] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Health Complaints Act 1995 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – Charter means the Charter of Health Rights developed, and as varied from time to time, under Part 3 ; child means a person who has not attained the age of 18 years; code of conduct means a code of conduct prescribed under section 56AAA ; Commissioner means the Health Complaints Commissioner appointed under section 5 ; committee means a committee established under section 10 ; complaint means – (a) a complaint made under Part 4 ; or (b) any issue arising out of that complaint; complainant means a person who makes a complaint; conciliator means a conciliator appointed under section 15 ; confidential information includes – (a) information about the identity, occupation or whereabouts of the complainant, health service user or health service provider to which a complaint, investigation or inquiry relates or of any person who assists an investigation or inquiry; and (b) information disclosed by a complaint; and (c) information of personal concern to an individual; and (d) information that, if disclosed, may cause detriment to a person; exempt information means information of a kind that is prescribed to be exempt information; functions includes duties; Government department has the same meaning as in the State Service Act 2000 ; health care worker means a person who provides, or holds himself or herself out as being able to provide, a health service on a paid or voluntary basis and who – (a) is not a registered health practitioner (including a person who is de-registered); or (b) is a registered health practitioner but provides a health service that is unrelated to his or her registration; or (c) is a student, within the meaning of the Health Practitioner Regulation National Law (Tasmania), but provides a health service that is unrelated to his or her area of study; or (d) is a student of an unregistered health profession; Health Department means the responsible Department in relation to the Health Act 1997 ; Health Minister means the Minister to whom the administration of the Health Act 1997 is assigned; health service means – (a) a service provided to a person for, or purportedly for, the benefit of human health – (i) including services specified in Part 1 of Schedule 1 ; but (ii) excluding services specified in Part 2 of Schedule 1 ; or (b) an administrative service directly related to a health service specified in paragraph (a) – but does not include a service that is prescribed by the regulations as not being a health service; health service provider means – (a) a person who provides a health service; or (b) a person who holds himself, herself or itself out as being able to provide a health service; or (c) a health care worker; or (d) a registered health practitioner; health service user means a person who uses or receives a health service; interim prohibition order means an order made under section 56AAB ; local registration board means a body specified in Schedule 2 ; National Board means a National Health Practitioner Board established by the Health Practitioner Regulation National Law (Tasmania); notification has the same meaning as in the Health Practitioner Regulation National Law (Tasmania) and includes part of a notification; Ombudsman has the same meaning as in the Ombudsman Act 1978 ; prescribed means prescribed by this Act or the regulations; professional mentor means a professional mentor appointed under section 15 ; prohibition order means an order made under section 56AAC ; public authority means an incorporated or unincorporated body or authority, other than a Government department – (a) which is established by or under an Act or the Royal Prerogative; and (b) which comprises, or of which the governing body comprises, wholly or partly, persons appointed by the Governor, a Minister of the Crown or another public authority; public warning statement means a statement prepared and published in accordance with section 56AAE ; register includes license, approve, admit, certify (including by way of practising certificate), or authorize in any other manner a person, as required by or under any law, to provide a health service or practise as a practitioner of a health service; registered health practitioner means a health practitioner registered by a registration board; registration board means a National Board or a local registration board; regulations means regulations made and in force under this Act; relevant law means a law prescribed by the regulations as a relevant law; relevant registration board, in relation to a person, means a registration board that has registered that person; staff member means a person appointed or employed under section 14 or 15 (2) . 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Health Complaints Commissioner 5. Health Complaints Commissioner (1) The Governor may appoint a person as Health Complaints Commissioner. (2) Schedule 3 has effect with respect to the Commissioner and the appointment of the Commissioner. 6. Functions of Commissioner The functions of the Commissioner are – (a) to prepare and regularly review a Charter of Health Rights as required under Part 3 ; and (b) to identify and review issues arising out of complaints and suggest ways of improving health services and preserving and increasing health rights; and (c) to provide information, education and advice in relation to – (i) the Charter; and (ii) health rights and responsibilities; and (iii) procedures for resolving complaints; and (iv) a code of conduct; and (d) to receive, assess and resolve complaints; and (e) to encourage and assist health service users to resolve complaints directly with health service providers; and (f) to assist health service providers to develop procedures to resolve complaints; and (g) to inquire into and report on any matter relating to health services at his or her own discretion or on the direction of the Health Minister; and (ga) to investigate in accordance with Part 6 , on his or her own motion and with or without a complaint, any matter relating to a possible breach of a code of conduct; and (gb) to monitor compliance with, and the effectiveness of, prohibition orders and interim prohibition orders; and (h) to advise and report to the Minister and the Health Minister on any matter relating to health services or the administration of this Act; and (i) to provide information, advice and reports to registration boards; and (j) to maintain links with – (i) health service providers generally; and (ii) organizations that have an interest in the provision of health services; and (iii) organizations that represent the interests of the users of health services; and (k) to consult and co-operate with any public authority that has a function to protect the rights of individuals in Tasmania, including – (i) the Ombudsman; and (ii) the Human Rights and Equal Opportunity Commission of the Commonwealth; and (l) to perform any other functions imposed on the Commissioner by or under this or any other Act. 7. Independence of Commissioner In performing his or her functions, the Commissioner must act independently, impartially and in the public interest. 8. Powers of Commissioner The Commissioner has power to do all things necessary or convenient to be done in connection with the performance and exercise of his or her functions and powers. 9. Delegation The Commissioner may, in writing, delegate any of his or her functions or powers other than this power of delegation. 10. Committees (1) The Commissioner – (a) may establish such committees as the Commissioner considers appropriate; and (b) if directed to do so by the Minister, must establish a committee in accordance with that direction. (2) A member of a committee is entitled to be paid such remuneration and allowances as are determined by the Minister. (3) The Commissioner may give written directions to a committee in relation to the calling of, and the conduct of business at, its meetings. (4) A committee must comply with a direction given under subsection (3) . (5) Subject to subsection (4) , a committee may regulate the calling of, and the conduct of business at, its meetings. (6) A committee may obtain assistance, information and advice from any person. 11. Acting Commissioner (1) In this section, the Commissioner is absent if he or she – (a) is absent from duty; or (b) is absent from Australia; or (c) is suspended from the office of Health Complaints Commissioner; or (d) is otherwise unable to perform the functions of that office. (2) The Minister may appoint a person to act as Commissioner during any or every period during which the Commissioner is absent. (3) While a person appointed under subsection (2) is acting as Commissioner – (a) that person is taken to be the Commissioner; and (b) this Act and any other Act applies to that person as if he or she were the Commissioner. 12. Annual report Before 30 November in each financial year, the Commissioner must – (a) prepare a report on the performance and exercise of his or her functions and powers during the preceding financial year; and (b) lay the report before each House of Parliament. 13. Special report (1) The Commissioner may provide to the Minister and the Health Minister at any time a report providing information in relation to any one or more of the following matters: (a) the performance and exercise of the Commissioner's functions and powers; (ab) an investigation under Part 6 ; (b) complaints; (c) progress and results of inquiries and conciliations; (d) contraventions of this Act; (e) any other matter relating to health services that the Commissioner considers appropriate. (2) If the Minister considers it appropriate the Minister may, or if the Commissioner requests the Minister must, within 10 sitting days after receiving a report, lay a copy of the report before each House of Parliament. (3) The Commissioner may cause a report to be published in any manner that he or she considers appropriate. (4) A report made by the Commissioner under subsection (1) that is published under subsection (3) may name a person referred to in the report if – (a) the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen a risk to – (i) the life, health, safety or welfare of any other person; or (ii) the health, safety or welfare of the public; or (b) the person is a health service provider who has unreasonably failed to take action that has been specified in a notice under section 56 to remedy an unresolved grievance. 14. Staff (1) Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purposes of enabling the Commissioner to perform and exercise his or her functions and powers under this Act. (2) The Commissioner may arrange with the Secretary of the Department for State Service officers and State Service employees employed in the Department to be made available to enable the Commissioner to perform and exercise his or her functions and powers under this Act. (3) A State Service officer or State Service employee made available under subsection (2) may serve the Commissioner in any capacity in conjunction with State Service employment. 15. Appointment of conciliators and professional mentors (1) The Commissioner may appoint a person referred to in section 14 as a conciliator or professional mentor. (2) With the approval of the Secretary of the Department, the Commissioner may appoint a person who is not a State Service officer or State Service employee as a conciliator or professional mentor. (3) . . . . . . . . (4) A person is not entitled to be appointed, or to hold office, as a professional mentor if – (a) the Commissioner is not satisfied that the person has expertise in dispute resolution; or (b) the person is a conciliator; or (c) the person investigates complaints under Part 6 . 16. Protection of Commissioner and staff (1) The Commissioner, a conciliator, a professional mentor, a staff member or a member of a committee does not incur any personal liability in respect of any act done, or omitted, in good faith in the performance or exercise, or the purported performance or exercise, of any function or power under this or any other Act. (2) A person who is or has been the Commissioner, a conciliator, a professional mentor, a staff member or member of a committee is entitled to be indemnified by the Crown against any costs incurred in contesting any action, claim or demand brought or made in respect of any act done or omitted in good faith in the performance or exercise, or purported performance or exercise, of any function or power under this Act. PART 3 - Charter of Health Rights 17. Development of Charter of Health Rights (1) The Commissioner is to develop a draft Charter of Health Rights for the consideration of the Health Minister within 18 months after the commencement of this Act or such longer period as the Health Minister determines in writing. (2) The Commissioner is to report to the Health Minister on the progress of the development of the draft Charter at intervals of not more than 6 months until it is given to the Health Minister for consideration. 18. Review of Charter The Commissioner – (a) may at any time review the Charter; and (b) if the Health Minister so directs, must review the Charter. 19. Consultation on Charter In developing the draft Charter or reviewing the Charter, the Commissioner must invite submissions from, and consult with, interested persons to the extent necessary to ensure that a wide range of views is obtained in the development of the draft Charter or review of the Charter. 20. Content of Charter (1) In developing the draft Charter or reviewing the Charter, the Commissioner is to consider and make recommendations to the Health Minister in relation to its content, application, enforcement and regular review. (2) In developing or reviewing the content of the Charter, the Commissioner may have regard to all matters relevant to the provision and use of health services. (3) In developing or reviewing the content of the Charter, the Commissioner must have regard to the following principles: (a) that a person should be entitled to participate effectively in decisions about his or her health; (b) that a person should be entitled to take an active role in his or her health care; (c) that a person should be entitled to be provided with health services in a considerate way that takes into account his or her background, needs and wishes; (d) that a health service provider should be given consideration and recognition for the contribution he or she makes to health care; (e) that a person who provides care for another person receiving a health service should be given consideration and recognition for the contribution he or she makes to health care; (f) that the confidentiality of information about a person's health should be preserved; (g) that a person should be entitled to reasonable access to records concerning his or her health; (h) that a person should be entitled to reasonable access to procedures for the redress of grievances with respect to the provision of health services. 21. Approval of Charter (1) The Health Minister may approve, in writing, a draft Charter or a variation of the Charter. (2) After approving a draft Charter or a variation of the Charter, the Health Minister must lay the draft Charter or variation on the table of each House of Parliament. (3) A House of Parliament is taken to have approved a draft Charter or variation of the Charter if – (a) the draft Charter or variation is approved by the House; or (b) at the expiration of 5 sitting days after the draft Charter or variation was laid on the table of the House, there was no notice of a motion to disapprove it before the House; or (c) at the expiration of that 5 day period such a notice was before the House, the notice is later withdrawn or the motion is later negatived. (4) A House of Parliament may request the Health Minister to amend a draft Charter or variation of the Charter. (5) If the Health Minister agrees to the request of a House of Parliament to amend a draft Charter or variation of the Charter, the Health Minister must withdraw the draft Charter or variation from both Houses of Parliament and lay the amended draft Charter or amended variation on the table of each House of Parliament. (6) On the approval by both Houses of Parliament of a draft Charter or variation of the Charter, the draft Charter becomes the Charter or the Charter is varied as approved, whichever the case requires. PART 4 - Complaints Division 1 - Making complaints 22. Who may complain Any of the following persons is entitled to make a complaint to the Commissioner about a health service sought, used or received by, or administered to, a health service user: (a) the health service user; (b) in the case of a health service user who is a child – (i) where the child has attained the age of 14 years, a person appointed by that child to make the complaint on that child's behalf; or (ii) where the child has not attained the age of 14 years, a parent or guardian of that child; or (iii) where the Commissioner is of the opinion that the child is capable of lodging a complaint himself or herself, the child; (c) . . . . . . . . (d) the donee of a power of attorney from the health service user whose authority includes the making of a complaint under this Act; (e) where a person, under any other law or an order of a court, has the care of the affairs of the health service user, that person; (f) where it is difficult or impossible for the health service user to make a complaint, or to make a complaint that complies with section 23 , a person approved by the Commissioner; (g) a health service provider; (h) the Minister; (i) the Health Minister; (j) the Secretary of the Health Department; (k) if the Commissioner considers that in the circumstances of the particular case a person other than a person referred to in paragraph (a) to (j) (inclusive) should be permitted to make a complaint, that person. 22A. Complaints relating to health care workers Any person may make a complaint to the Commissioner that a health care worker has acted in a manner that is in breach of a code of conduct. 23. Making a complaint (1) A person who is entitled to make a complaint under section 22 may make one or more of the following complaints to the Commissioner: (a) a health service provider acted unreasonably by not providing a health service; (b) the provision of a health service or of part of a health service was not necessary; (c) a health service provider acted unreasonably in the manner of providing a health service; (d) a health service provider failed to exercise due skill; (e) a health service provider failed to treat a health service user in an appropriate professional manner; (f) a health service provider failed to respect a health service user's privacy or dignity; (g) a health service user was not provided– (i) in language and terms understandable to the user, with sufficient information on the treatment and health services available to enable the user 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 user's condition or of relevant education programmes; or (iv) with adequate information on the treatment or services received; or (v) with any prognosis that it would have been reasonable for the user to be provided with; (h) a health service provider acted unreasonably by– (i) denying a health service user access to, or restricting the user's access to, records relating to the user that were in the provider's possession; or (ii) not making available to a health service user information about the user's condition that the health service provider was able to make available; (i) a health service provider acted unreasonably in disclosing information in relation to a health service user; (j) a health service provider acted unreasonably by not taking proper action in relation to a complaint made to him or her by the user about a provider's action of a kind referred to in this section; (k) a health service provider acted in any other manner that was inconsistent with the Charter. (2) A person who is entitled to make a complaint under section 22 may make the complaint even though the circumstances that give rise to the complaint occurred before the commencement of this Act if the complainant became aware of those circumstances not earlier than 2 years before the commencement of this Act. (3) Subject to this section, a complaint – (a) is to be in writing; and (b) is to be signed by the complainant; and (c) is to disclose the name and address of the complainant. (4) The Commissioner may accept a complaint that does not comply with subsection (3) . (5) If the Commissioner accepts an oral complaint, the Commissioner must require the complainant to put the complaint in writing and sign it unless satisfied that there are good reasons for not doing so. (6) If a complainant changes his or her name or address, the complainant must notify the Commissioner of that change in writing. (7) If the Commissioner becomes aware that a complainant has changed his or her name or address without notifying the Commissioner, the Commissioner must require the complainant to provide his or her name or address. 24. Further information may be required (1) The Commissioner may, at any time, require a complainant – (a) to provide further information or documents; or (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 of time 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. 24A. Notice of complaints to local registration boards As soon as practicable after receiving a complaint, the Commissioner is to notify any relevant local registration board stating – (a) the name of the health service provider against whom the complaint is made; and (b) the substance of the complaint; and (c) the date or dates on which the events forming the basis of the complaint occurred; and (d) any other details that the Commissioner considers relevant. Division 2 - Assessment of complaints 25. Assessment (1) The Commissioner must assess a complaint within 45 days after receiving it. (1A) On assessing a complaint under subsection (1) – (a) if the Commissioner is of the opinion that it is appropriate to do so because the complaint relates to a matter that falls within the functions imposed on the Ombudsman, a relevant registration board or other person by a law of Tasmania, another State, a Territory or the Commonwealth, the Commissioner may refer the complaint to the Ombudsman, the relevant registration board or the other person; or (b) if the Commissioner is of the opinion that it is appropriate to do so, the Commissioner may – (i) refer the complaint to a conciliator for conciliation under Part 5 ; or (ii) investigate the complaint under Part 6 ; or (iii) dismiss the complaint. (1B) The Commissioner may refer a complaint to both a relevant registration board and a conciliator or defer the matter of conciliation until the relevant registration board has reported to him or her on the matter. (1C) The Commissioner may extend the period for assessment referred to in subsection (1) for an additional period not exceeding 45 days if – (a) the Commissioner has, under section 25A , attempted to facilitate the early resolution of the complaint and the attempt has been unsuccessful; or (b) the Commissioner considers it necessary for the purposes of assessment to extend the period. (1CA) If there is a delay in obtaining information sought by the Commissioner, the Commissioner may extend the period referred to in subsection (1) for such time as is necessary to allow the provision and consideration of the requested information. (1D) The Commissioner must notify the complainant and the relevant health service provider of any extension of the period for assessment under subsection (1C) or (1CA) . (1E) Nothing in this section prevents the early resolution of a complaint under section 25A . (2) In subsection (1) , complaint includes a complaint or notification that has been referred, or referred back, to the Commissioner by the Ombudsman, a registration board or a person referred to in that subsection. (2A) For the purposes of subsection (2) , a notification which is or is to be dealt with by the Commissioner by reason of the provisions or operation of section 150 of the Health Practitioner Regulation National Law (Tasmania) is taken to have been referred to the Commissioner by the National Board to which the notification was made. (3) The Commissioner must not refer a complaint to a registration board without first consulting that board. (4) The Commissioner must not refer a complaint to a conciliator if – (a) the complaint appears to the Commissioner to indicate – (i) the existence of a significant issue of public safety or public interest; or (ii) a significant question as to the practice of a health service provider; or (b) section 64 would prevent the Commissioner from disclosing to the health service provider information that would enable the health service user to be identified. (5) The Commissioner must dismiss a complaint if satisfied that – (a) the complainant is not a person entitled to make a complaint; or (b) the complaint does not disclose a subject matter of complaint referred to in section 23 ; or (c) the health service user became aware of the circumstances that gave rise to the complaint more than 2 years before the complaint was made; or (ca) in the case of a complaint relating to a health care worker, the complainant became aware of the circumstances that gave rise to the complaint more than 2 years before the complaint was made; or (d) the complainant has failed, without good reason, to take reasonable steps to resolve with the health service provider the grievance on which the complaint is based; or (e) all the issues arising out of the subject matter of the complaint have been adjudicated upon by a court, tribunal, board or other person established by or under a law of Tasmania, the Commonwealth, a Territory or another State; or (f) a court has commenced to hear a proceeding that relates to the subject matter of the complaint; or (g) the complainant has been given reasonable explanations and information and there would be no benefit in further entertaining the complaint; or (h) the complaint lacks substance; or (i) the complaint is frivolous, vexatious or was not made in good faith; or (j) the complaint has been resolved. (6) Subsection (5)(c) and (ca) do not apply where the Commissioner is satisfied that the complainant had good reason for not making the complaint within 2 years of becoming aware of the circumstances that gave rise to it. (7) Where the Commissioner has made a requirement on a complainant under section 24 (1) , the Commissioner may dismiss the complaint if – (a) the period for satisfying the requirement has expired; and (b) after the expiration of that period, the Commissioner notified the complainant in writing that the complaint might be dismissed unless the requirement was satisfied within 14 days after the notice was provided; and (c) that period of 14 days has expired; and (d) the requirement is unsatisfied. 25A. Early resolution of complaints (1) As soon as practicable after receiving a complaint, the Commissioner may, if he or she is of the opinion that it is reasonable to do so and if the complainant consents, attempt to facilitate the early resolution of the complaint to the satisfaction of the parties without the need for the Commissioner to proceed to assessment under section 25 . (2) Without limiting the Commissioner's powers of resolution, the Commissioner may provide mediation. 26. Enquiries during assessment (1) Before making a determination under section 25 (1) , the Commissioner may make enquiries and obtain information that the Commissioner considers necessary or appropriate. (2) Subsection (1) does not authorize the exercise of a power under Part 6 . (3) If the Commissioner, having made enquiries in accordance with subsection (1) , is unable to obtain relevant information from a person and has reason to believe that a person other than the complainant is capable of providing information or producing a document relevant to an assessment, the Commissioner may, by notice in writing provided to the latter person, require that person to do one or more of the following: (a) 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) produce that document to the Commissioner; (c) attend before a person specified in the notice and provide information by answering questions relevant to the assessment. (4) A notice referred to in subsection (3) is to specify the period within which, or the day on which and the time and place at which, the person is required to provide the information or document or attend to answer questions. (5) Nothing in subsection (3) authorises the Commissioner to require the provision of exempt information or any part of a document containing exempt information. (6) Where a document is produced in accordance with a requirement under this section, the Commissioner may take possession of, make copies of or take extracts from the document. 27. Notice of assessment Within 14 days after making a determination under section 25 (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 service provider. 28. Provision of documents, &c., on referral of complaint (1) Where the Commissioner has referred a complaint to another person under section 25 , the Commissioner must give to the other person 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. 29. Splitting of complaints (1) This section applies to 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 service provider; or (d) makes more than one allegation against a health service provider; or (e) for any other reason is susceptible to being dealt with in separate parts. (2) If it is administratively or otherwise convenient to do so, the Commissioner may determine that a complaint to which this section applies be treated as 2 or more complaints. (3) The Commissioner must determine that a complaint to which this section applies be treated as 2 or more complaints if it is in the interests of a health service user or complainant that the Commissioner do so. (4) The Commissioner must not make a determination under subsection (2) or (3) except where he or she is satisfied that any attempt at resolution or conciliation is not likely to be prejudiced by the making of the determination. Division 3 - Miscellaneous 29A. Powers of Commissioner (1) The Commissioner may add further grounds, persons or particulars to a complaint received under section 23 if at any stage the Commissioner is of the opinion that any such matters should form part of the complaint. (2) On adding further grounds, persons or particulars to a complaint, the Commissioner must notify the complainant, the health service provider and any relevant registration board. 29B. Power of Commissioner to give information to registration board For the purpose of assisting a registration board to perform its functions under this or any other Act, the Commissioner may make available to the board any information that he or she receives in the administration of this Act. 30. Withdrawal of complaint (1) A complainant may withdraw a complaint at any time by notifying the Commissioner in writing of the withdrawal. (2) Where a complaint is withdrawn the Commissioner must – (a) if the health service provider has been notified of the receipt of the complaint, notify that provider of the withdrawal within 14 days; and (b) take no further action in relation to the complaint other than an investigation under Part 6 . (3) If the Commissioner has referred a complaint to the Ombudsman, a relevant registration board or another person under section 25(1A)(a) , the withdrawal of that complaint under subsection (1) does not affect the performance and exercise by the Ombudsman, board or person of his, her or its functions and powers in respect of the matters raised by or in the complaint. PART 5 - Conciliation of Complaints 31. Function of conciliator 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 service provider; and (b) assisting in the conduct of any such discussions or negotiations; and (c) assisting the complainant and the health service provider to reach agreement; and (d) assisting in the resolution of the complaint in any other way. 32. Public interest (1) Before the conciliation of a complaint starts, the Commissioner must identify and inform the conciliator of any issue raised by the complaint that the Commissioner considers involves the public interest. (2) At the start of the conciliation, the conciliator is to 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 service provider. (3) In the course of the conciliation, at times the conciliator considers appropriate, the conciliator must 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 of which the conciliator has been informed under subsection (1) . 32A. Duty to attend initial meeting Where the Commissioner has referred a complaint for conciliation, the complainant and the health service provider must attend an initial meeting, but any subsequent participation in the conciliation by the parties is voluntary and either party may withdraw from the conciliation process at any time. 33. Representation at conciliation A party in a conciliation process may not be represented by another person except where – (a) the Commissioner is satisfied that such representation is likely to assist substantially in resolving the complaint; and (b) not less than 48 hours before requesting the Commissioner to allow such representation, that party has notified the other party, in writing, that he or she will be making that request. 34. Progress report from conciliator A conciliator must provide to the Commissioner a written report of the progress of a conciliation when requested to do so by the Commissioner. 35. Results report from conciliator (1) A conciliator must provide to the Commissioner a written report of the results of a conciliation when the conciliator is satisfied that – (a) the complainant and the health service provider have reached agreement on all issues raised by a complaint on which the conciliator considers agreement to be possible; or (b) no agreement between the complainant and health service provider on any issue raised by a complaint is possible. (2) The report – (a) must provide details of any agreement reached; and (b) must provide details of progress towards agreement on any issue in respect of which agreement has not been reached; and (c) may recommend action that the conciliator considers appropriate for the Commissioner to take on receipt of the report. (3) The conciliator must provide the complainant and the health service provider with a copy of the report as soon as practicable after the report has been provided to the Commissioner. (4) A relevant registration board is not entitled to receive a copy of the report but the Commissioner may inform the registration board that the conciliation process has been concluded and that agreement has or has not been reached. 36. Commissioner may end conciliation (1) If the Commissioner considers that a complaint that is the subject of a conciliation cannot be resolved in that way, the Commissioner may end the conciliation. (2) After ending a conciliation under subsection (1) , the Commissioner may – (a) investigate it under Part 6 ; or (b) refer it to a person specified in section 25(1A)(a) ; or (c) dismiss the complaint. 37. Privilege and confidentiality (1) Anything said or admitted during conciliation – (a) is not admissible as evidence in a proceeding before a court or tribunal; and (b) cannot be used by the Commissioner as a ground for investigation or inquiry. (2) Except where a disclosure is authorized 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. Penalty: Fine not exceeding 50 penalty units. 38. Professional mentor (1) The Commissioner is to ensure that each conciliator has a professional mentor available to advise the conciliator in the performance of his or her functions. (2) A conciliator may discuss all matters arising in relation to the performance of his or her functions with a professional mentor. (3) A professional mentor must not disclose information that was gained by a conciliator during conciliation and communicated by the conciliator to the professional mentor. Penalty: Fine not exceeding 50 penalty units. 39. Enforceable agreements (1) Any agreement reached between a complainant and a health service provider in the course of the conciliation process may be put in a form that is binding on them. (2) 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 – (a) must not be a party to any agreement between a complainant and a health service provider relating to a matter that has been dealt with in a process of conciliation; and (b) is not eligible to attest the signature of a party to a document that evidences such an agreement. PART 6 - Investigations Division 1 - Application of Part 6 40. Matters that may be investigated (1) The Commissioner may investigate, by exercising the powers conferred by this Part – (a) any matter specified in a written direction given by the Health Minister; and (b) a complaint that the Commissioner has determined to investigate under section 25(1A)(b)(ii) ; 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 or public interest; or (ii) to be a significant question as to the practice of a health service provider; and (d) on his or her own motion, any other matter relating to the provision of health services in Tasmania; and (e) on his or her own motion and with or without a complaint, any matter relating to a possible breach of a code of conduct by a health care worker. (2) An investigation referred to in subsection (1) (c) or (1)(e) 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 to dismiss the relevant complaint. (2A) An investigation referred to in subsection (1)(b) or (1)(e) may be carried out whether or not – (a) the relevant complaint has been withdrawn; or (b) the Commissioner has decided to dismiss the relevant complaint. (3) Notwithstanding subsection (2) , an investigation referred to in subsection (1) (c) or (1)(e) may not be carried out to the extent that it interferes with a process of conciliation. 41. Continuation of investigation after resolution The Commissioner is not required to cease an investigation referred to in section 40 (1) (b) or (c) or (e) only because the relevant complaint has been resolved. 42. Limitation of powers The powers conferred by this Part may be exercised only for purposes of an investigation. Division 2 - Conduct of investigations 43. Conduct of investigation (1) An investigation is to be conducted in such manner as the Commissioner considers appropriate. (2) A conciliator to whom a complaint had been referred under section 25(1A)(b)(i) is not eligible, in an investigation of that complaint or of an issue, matter or question arising out of it– (a) to act as the delegate of the Commissioner; or (b) to perform any function in relation to the investigation. (3) The Commissioner may, when conducting an investigation into a complaint, refer the complaint or any part of, or issue arising out of, the complaint for conciliation under Part 5 . (4) An investigation may be conducted jointly by the Commissioner and a registration board. 44. Representation A person required to appear or to produce documents under this Part may be assisted or represented by another person. 45. Use and obtaining of information (1) If the Commissioner has obtained a document or information under this Act, other than the report of a conciliator obtained under section 34 or 35 , 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 provide information by answering questions relevant to the investigation. (3) A notice referred to in 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 attend to answer questions. (4) Nothing in subsection (2) authorizes the Commissioner to require the provision of exempt information or that part of a document containing exempt information. (5) Where a document is produced in accordance with a requirement under this section, the Commissioner may take possession of, make copies of, or take extracts from, the document. 46. Power to examine witnesses, &c. (1) The Commissioner, or a person who is to receive information under section 45 (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 statutory declaration – (a) any information or document produced under this Part; or (b) a statement that the person has no relevant information or documents or no further relevant information or documents. (3) A person must comply with a requirement under subsection (2) . Penalty: Fine not exceeding 50 penalty units. 47. Search powers and warrants (1) On the application of the Commissioner, a magistrate or justice may issue a warrant if the magistrate or justice is satisfied that there are reasonable grounds – (a) for believing that entry and inspection of premises are necessary to enable the Commissioner to carry out an investigation under this Part; or (b) for suspecting that there may be on premises a document or other thing relevant to a matter the Commissioner is investigating under this Part. (2) A warrant authorizes a person named in the warrant and any other person acting in aid of that person, with such force as is necessary – (a) to enter and remain in the premises specified in the warrant; and (b) search those premises and any person or thing in those premises; and (c) break open and search anything in those premises in which any document or other thing relevant to the investigation may be contained; and (d) take photographs; and (e) seize and remove anything in those premises which that person has reasonable grounds for believing is relevant to the investigation; and (f) examine, seize and remove, make copies of, or take extracts from, any document in those premises which that person has reasonable grounds for believing is relevant to the investigation; and (g) require a health service provider or any other person employed in those premises to provide information by answering questions which that person considers relevant to the investigation. (3) A warrant is to – (a) be in a prescribed form; and (b) specify the premises in respect of which it is made. (4) A warrant has effect for a period of 30 days after the day on which it is issued. 47A. Entry of premises (1) For the purposes of carrying out an investigation under this Act, the Commissioner or, if so authorised by the Commissioner, any State Service officer or State Service employee may at any reasonable time enter any premises occupied or used by a health service or a health service provider and inspect the premises or anything for the time being on or within them. (2) The powers conferred by this section to enter premises occupied or used by a health service or a health service provider are not to be exercised unless previous notice of the intention to do so has been given in writing to – (a) the owner or occupier of the premises in which the health service is provided; or (b) the health service provider. 48. Reimbursement of expenses A person required to attend before the Commissioner or another person under this Part is entitled to be paid the expenses and allowances – (a) that are prescribed; or (b) if none are prescribed, that the Commissioner determines. 49. Reference to another authority for investigation (1) If the Commissioner considers that a matter raised by, or during the course of, an investigation should be investigated by the Ombudsman, a registration board or another person that has functions under any law of Tasmania, another State, a Territory or the Commonwealth, the Commissioner may refer the matter to the Ombudsman, registration board or other person (as the case requires) for investigation. (2) The Commissioner must not refer a matter to a registration board without first consulting that board. (3) The Commissioner's powers to investigate a matter are not affected by the matter having been referred under subsection (1) to another person for investigation. 50. Possession by Commissioner of document or other seized item (1) Where the Commissioner or another person has taken possession of or seized a document or other thing under this Part, the Commissioner may retain possession of the document or other thing for such period not exceeding 60 days as is necessary for the purposes of an investigation. (2) Where the Commissioner or another person has taken possession of a document, the Commissioner must – (a) provide the person from whom it was taken with a copy of the document as soon as practicable and, in any case, within 48 hours after it was taken; and (b) allow a person who would be entitled to inspect the document if it were not in the possession of the Commissioner to inspect, make a copy of, or take an extract from, it at any reasonable time. Division 3 - Privilege 51. Application of Division This Division applies in relation to any information or document that a person is required to provide or produce under this Part. 52. Witness privilege and production of documents (1) Neither the Crown or any other person is entitled to prevent or obstruct the provision of information or the production of any document or evidence from being given for the purpose of an investigation under this Act, notwithstanding any entitlement that might arise if the investigation were a legal proceeding held before a court. (2) A person is not excused from providing any information, producing any document or answering a question, when required to do so under this Act, on the ground that to do so would disclose legal advice furnished to a health service provider or other person to whom this Act applies. (3) Notwithstanding section 62B or anything in subsections (1) and (2) of this section, if the Attorney-General provides the Commissioner with a certificate that the disclosure of information concerning a specified matter (including the giving of information in answer to a question) or the disclosure of the contents of a specified document would be contrary to the public interest because the information or document would, if disclosed, prejudice the taking of proceedings for a crime or other offence, the Commissioner is not entitled to require a person to – (a) provide the information; or (b) answer questions concerning the matter or the document; or (c) produce the document to the Commissioner. 53. Privilege in case of unjustifiable exercise of power (1) A person is not required to provide or produce any information or document under this Part if the Supreme Court determines that the purpose for which the information or document was required to be provided or produced does not justify – (a) the adverse effect on the financial interests of the person; or (b) the intrusion on the privacy of an individual by disclosure of private or confidential matters relating to the individual – that would likely result from the provision or production of the information or document. (2) An application to the Supreme Court for a determination referred to in subsection (1) may be made by the person required to provide or produce the information or document. 54. Supreme Court applications (1) An application to the Supreme Court under section 53 – (a) is to be made in accordance with the Rules of Court made under the Supreme Court Civil Procedure Act 1932 or, to the extent the rules do not provide, as directed by the Supreme Court; and (b) is to be heard in Chambers. (2) The burden of proof on an application is on the person seeking to withhold the information or document. (3) In determining an application, the Supreme Court may make all orders necessary for the practical operation of this Division and, in particular, may make orders – (a) excusing a person from providing or producing, or requiring a person to provide or produce, the whole or part of the information or document; or (b) amending the notice or order by which the information or document was required to be provided or produced. (4) The costs of an application are to be borne as ordered by the Supreme Court. Division 4 - Action on investigation 55. Reports (1) The Commissioner – (a) may prepare a report of his or her findings and conclusions at any time during an investigation; and (b) must prepare such a report at the conclusion of an investigation. (2) A copy of each report is to be provided to – (a) . . . . . . . . (b) . . . . . . . . (c) any health service provider mentioned in the report; and (d) that provider's employer; and (e) any person who, under a law of Tasmania, another State, a Territory or the Commonwealth, has a function exercisable in relation to a matter raised in the report; and (f) if the investigation is one referred to in section 40 (1) (b) or (c) , the complainant; and (g) if the investigation is one referred to in section 40 (1) (b) or (c) , any relevant registration board. (2A) If the Commissioner is satisfied that it is desirable to do so having regard to the nature of the allegations or the seriousness of the findings, the Commissioner must provide a copy of each report to – (a) the Minister; and (b) the Health Minister. (3) Subject to section 63 , a report may contain information, comments, opinions and recommendations for action. 56. Notice of action to providers (1) If, after investigating a complaint, the Commissioner forms the view that the complaint is justified but appears to be incapable of being resolved, the Commissioner may – (a) provide to the health service provider a notice of recommended action; and (b) advise the complainant of the provision of that notice. (2) A notice is to set out – (a) the particulars of the complaint; and (b) the reasons for making the decision referred to in subsection (1) ; and (c) any action that the Commissioner considers the health service provider ought to take in order to remedy each unresolved grievance disclosed by the complaint. (3) A health service provider to whom a notice is provided must, within 45 days after receiving the notice or such longer period as the Commissioner allows under subsection (4) , advise the Commissioner, in writing, of what action he, she or it has taken in order to remedy the grievances referred to in the notice. Penalty: Fine not exceeding 50 penalty units. (4) If the Commissioner receives before the end of the period of 45 days referred to in subsection (3) a written request by a health service provider to extend that period, the Commissioner may extend that period by not more than 15 days. Division 5 - Codes of conduct for health care workers 56AAA. Codes of conduct (1) The regulations may prescribe codes of conduct for the provision of health services by health care workers. (2) A code of conduct may make different provisions for different classes of health services. (3) A person who breaches a code of conduct is not, on account of the breach alone, liable to any civil or criminal action. (4) However, if a person breaches a code of conduct, the Commissioner may enforce compliance with the code of conduct in the circumstances contemplated by sections 56AAB and 56AAC . (5) Subsections (3) and (4) do not limit or derogate from any other provision of this Act or any other law. 56AAB. Making of interim prohibition orders (1) Subject to subsection (2) , the Commissioner may, at any time during the investigation of a complaint against a health care worker, make an order (interim prohibition order) doing one or both of the following: (a) prohibiting the health care worker from providing all or part of the health services being investigated; (b) imposing any conditions that the Commissioner is satisfied are appropriate on the provision by the health care worker of all or part of the health services being investigated. (2) The Commissioner must not make an interim prohibition order unless – (a) the Commissioner reasonably believes that the health care worker has – (i) breached a code of conduct applying to the health services being provided; or (ii) previously had his or her registration under the Health Practitioner Regulation National Law (Tasmania) cancelled; or (iii) been convicted or found guilty of a prescribed offence; and (b) the Commissioner is satisfied that it is necessary to make the order to avoid an immediate risk to – (i) the life, health, safety or welfare of a person; or (ii) the health, safety or welfare of the public. (3) An interim prohibition order remains in force for a period of 12 weeks or a shorter period as may be specified in the order. (4) The Commissioner may, at any time before the expiry of an interim prohibition order, renew, vary or revoke the order. (5) An interim prohibition order takes effect on the service of the order on the health care worker to whom it applies. (6) The Commissioner must notify the health care worker of the decision to make an interim prohibition order, and provide the health care worker with a written statement of decision, as soon as practicable after the decision is made. (7) A statement of decision under subsection (6) is to include a copy of the order and the grounds on which the decision was made. (8) On the expiration of the 12-week period referred to in subsection (3) , the Commissioner may make a further interim prohibition order. (9) A person who contravenes an interim prohibition order is guilty of an offence. Penalty: Fine not exceeding 150 penalty units or a term of imprisonment not exceeding one year, or both. 56AAC. Making of prohibition orders (1) Subject to subsection (2) , the Commissioner may, at the conclusion of an investigation against a health care worker, make an order (prohibition order) doing one or both of the following: (a) prohibiting the health care worker from providing all or part of the health services that were the subject of the investigation for a period specified in the order, or indefinitely; (b) imposing any conditions that the Commissioner is satisfied are appropriate, on the provision by the health care worker of all or part of the health services that were the subject of the investigation, for a specified period, or indefinitely. (2) The Commissioner must not make a prohibition order unless – (a) the Commissioner is satisfied that the health care worker has – (i) breached a code of conduct applying to the health services being provided; or (ii) previously had his or her registration under the Health Practitioner Regulation National Law (Tasmania) cancelled; or (iii) been convicted or found guilty of a prescribed offence; and (b) the Commissioner is satisfied that it is necessary to make the prohibition order to avoid an immediate risk to – (i) the life, health, safety or welfare of a person; or (ii) the health, safety or welfare of the public. (3) The Commissioner may at any time vary or revoke a prohibition order. (4) A prohibition order