Association of Remedial Masseurs

HEALTH CARE COMPLAINTS COMMISSION

HANDLING COMPLAINTS

Information for Unregistered Health Practitioners

General principles

Timeliness
Respond to complaints as soon as possible, even if it is just to explain the process.

Give a commitment to a certain timeframe and stick to it. Keep the complainant informed and if there is a delay and explain the reasons for this.

Address all aspects
Provide a full response that addresses the important issues and shows the complainant that the complaint has been taken seriously.

Acknowledge areas of disagreement, or varying accounts without dismissing what the complainant has said.

Try not to be defensive
Acknowledge the distress of the complainant.

Acknowledge any errors that did occur and apologies, if appropriate. In any event be sympathetic.

Try to understand the situation from the complainant's perspective. Find out what would resolve the matter for them, for example a written response, a phone discussion, changes in policy or procedure, or a meeting.

Avoid official or technical language, jargon and clichés. Consider the cultural background and the use of interpreters.

Lessons learned
Where there has been an error, outline what went wrong, how it happened, what is being done to stop it happening again and that you are sorry that it happened.

When a complaint is lodged with the Health Care Complaints Commission

The Health Care Complaints Commission is an independent body dealing with complaints about health service providers in NSW.

This includes complaints about unregistered practitioners, such as acupuncturists, naturopaths or masseurs.

What is an unregistered practitioner?
An unregistered practitioner is any health practitioner, who is not required to be registered under a health registration Act (for example the Medical Practice Act), or who provides services that are unrelated to their registration.

What is the legislative framework for dealing with complaints?
The key features of legislation regarding complaints against unregistered health practitioners are:
 

• Code of Conduct for unregistered health service providers that came into effect on 1 August 2008.
• The Health Care Complaints Commission's power to deal with and investigate complaints about an unregistered health service provider breaching the code of conduct.
• The Commission's powers to take action against unregistered health practitioners, including issuing prohibition orders, is an offence for an unregistered It health service provider to continue to provide a health service in breach of a prohibition order.
• It is an offence for an unregistered health service provider to provide a health service in breach of a prohibition order.
• It is an offence for a deregistered health practitioner to provide health services in breach of an order of the relevant Tribunal or board.
• Any health practitioner who has been deregistered from a profession and who continues to offer a health service must inform clients about that deregistration before commencing to provide that health service.

Code of Conduct
A code of conduct for unregistered health practitioners came into effect on 1 August 2008.
The intention of the code is to set out the minimum practice and ethical standards with which unregistered health service providers are required to comply.

The code of conduct informs consumers what they can expect from practitioners and the mechanisms by which they may complain about the conduct of, or services provided by, an unregistered health service provider.

A full copy of the code is printed in the centre pages of the current Journal – to remove and use for display in your work place

The key aspects of the code are:

• Health practitioners must provide health services in safe and ethical manner.
• Health practitioners diagnosed with an infectious medical condition must ensure that he or she practices in a manner that does not put clients at risk.
• Health practitioners must not make claims to cure certain serious illnesses.
• Health practitioners must adopt standard precautions for infection control.
• Health practitioners must not dissuade clients from seeking or continuing with treatment by a registered medical practitioner and must accept the rights of their clients to make informed choices in relation to their health care.
• Health practitioners must not practice under the influence of alcohol or drugs.
• Health practitioners must not practice with certain physical or mental conditions.
• Health practitioners must not financially exploit clients.
• Health practitioners are required to have an adequate clinical basis for treatments.
• Health practitioners must not misinform their clients.
• Health practitioners must not engage in a sexual or improper personal relationship with a client.
• Health practitioners must comply with relevant privacy laws.
• Health practitioners must keep appropriate records.
• Health practitioners must keep appropriate insurance.
• Health practitioners must display code and other information (with some exceptions).

Powers of the Commission

The Commission has the power to: 

• Issue an order prohibiting the person from providing health services for a period of time
• Issue an order placing conditions on the provision of health services provide a warning to the public about the practitioner and his or her services.

To do so, the Commission must find that the provider has: 

• Breached the code of conduct; or
• Been convicted of an offence under Part 2A of the Public Health Act; or
• Been convicted of an offence under the Fair Trading Act 1987 (NSW) or the Trade Practices Act 1974 (Cth) relating to the provision of health care services.

Stages in the complaints process

When dealing with complaints about unregistered health practitioners the Commission will generally take the following steps:

1. Commission receives complaint
When the Commission receives a complaint, it will contact the complainant to clarify the issues; notify the provider and seek their response to the complaint.

2. Assessment
When assessing a complaint the Commission may obtain health records to assist the assessment of clinical issues; and may seek advice from independent experts in the area.

The Commission assesses all relevant information, including the complaint, any response from the provider, health records and any expert advice.

At the end of the assessment, the Commission may:

Refer to another body
In some cases, it is appropriate to refer a complaint to another body to be dealt with by them. This may include referral to a body such as the Therapeutic Good Administration or the Office of Fair Trading to consider taking appropriate action.

Refer to assisted resolution
Often a complaint may be resolved with the assistance of a Resolution Officer. Participation in assisted resolution is voluntary.

Refer to conciliation
Some complaints are suitable for conciliation and are referred to the Health Conciliation Registry. The Registry maintains a panel of independent expert conciliators who can facilitate a meeting of the parties to the complaint and guide them in finding a resolution. Conciliation is a voluntary and confidential process.

Discontinue
The Commission can discontinue dealing with a complaint for many reasons including the age of the matter or that it might be better dealt with by some alternative means of redress.

Investigate
The Commission refers complaints about individual practitioners for formal investigation where the complaint

• raises a significant issue of public health
• evidence of a breach of the code of conduct.

3. Investigation
The purpose of an investigation is to obtain information so that the Commission can determine the most appropriate action (if any) to take. The focus of investigations is on the protection of public health and safety.

At the end of an investigation the Commission may:

Terminate
That is to take no further action. This involves cases where the investigation found no evidence of inappropriate conduct, care or treatment.

Refer matter to Director of Public Prosecutions
The Commission may refer the matter to the Director of Public Prosecutions for the consideration of criminal charges.

Make comments
The Commission will make comments to a health practitioner where poor care or treatment was provided, but there is insufficient evidence to justify placing conditions on the practitioner, making a prohibition order, or issuing a public warning.

Issue a public warning
If the Commission finds that that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, the Commission may issue a public warning.

This allows the Commission to quickly and effectively warn the public about unregistered health service providers who provide services that are a risk to the public.

Issue a prohibition order placing conditions
If the Commission finds that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, the Commission can issue a prohibition order that places conditions on the provision of health services.

The power to limit a prohibition to a particular type of health service allows the Commission to take action to protect the public from those aspects of the person's practice that are of particular concern or danger to the public whilst allowing the person to continue to practice in areas that do not present a risk.

The unregistered practitioner must advise potential patients of the provisions of the prohibition order before treating them. A breach of the order is a criminal offence.

Issue a blanket prohibition order
The final option open to the Commission if it finds that that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, is the issuing of a prohibition order against an unregistered health practitioner.

The power to impose a blanket prohibition on a person providing health services allows the Health Care Complaints Commission to ensure that unregistered health service providers who have practiced in a highly unethical or dangerous fashion are prohibited from providing future health services to the public.

Right to appeal
The practitioner has the right to appeal against the Commission's decision. The appeal has to be made to the Administrative Decisions Tribunal within 28 days from the date of the Commission's decision.

COMMNICATION WITH THE HEALTH SERVICE PROVIDER

In dealing with a complaint against an unregistered health practitioner, the Commission is obliged to communicate with the practitioner during the handling of the complaint against them.

The key steps where the Commission will usually communicate or notify a practitioner are:

• On receipt of the complaint
• After an assessment decision has been made
• In the closing stages of the investigation the Commission must notify the practitioner that the Commission is proposing to either:

1.    Make comments to the practitioner
2.    Issue a public warning
3.    Place conditions on the practitioner
4.    Issue a prohibition order

This allows the practitioner to make a submission in relation to the proposed action.
After the receipt of the practitioners submission, if the Commission decides to place conditions, or issue a public warning or prohibition order, the Commission will provide the practitioner with a statement of the decision.
Communication with other parties
In addition to communicating with the practitioner, the Commission is obliged to notify an employer when it decides to investigate a practitioner.

More information
For more information about the Commission, please visit the website www.hccc.nsw.gov.au.

To access the legislation and the notice to display, please use the following link
http://www.health.nsw.gov.au/aboutus/legal/amendreg2008.asp

Contact the Commission

Office address
Level 13, 323 Castlereagh Street, Sydney NSW 2000

Hours of business
9.00am to 5.00pm Monday to Friday

Postal address
Locked Mail Bag 18 Strawberry Hills, NSW 2012 or
DX11617 SYDNEY DOWNTOWN

Telephone:  (02) 9219 7444
Toll Free in NSW: 1800 043 159
Fax:  (02) 9281 4585