Health and community services complaints in the Northern Territory 

This article states the law of the Northern Territory. The Health and Community Services Complaints Act 1998 (NT) covers community services as well as health services, and organises its grounds of complaint around a single idea — unreasonableness — measured against an external Code¹. The prior question is who may complain, because the Act uses a listed class rather than an open rule.

Who may complain

Section 22 lists the persons who may complain to the Commissioner about a health service or community service. The list read includes:

• the user;
• a parent or guardian of the user;
• the donee of a power of attorney from the user whose authority, "either expressly or implicitly, includes the power to make a complaint";
• a person who, under any other law or an order of a court, has the care of the affairs of the user; and
• a person as a representative of the user who is either a person the Commissioner is satisfied has been chosen by the user, or a person recognised where the Commissioner is satisfied it would be appropriate.

Paragraph (c) repays attention. It is not enough to hold a power of attorney; the authority must include the power to complain, expressly or implicitly. The Act contemplates that a general financial power may impliedly carry it, but the point has to be argued rather than assumed. South Australia, by contrast, gives the donee of a power of attorney standing without qualifying the scope of the authority.

The representative limb performs the same function as Western Australia's s 20(2) — it provides a route where the user cannot act — but it works through the Commissioner's satisfaction rather than through defined triggers such as death or inability.

The grounds of complaint

Section 23(1) states the bases on which a complaint may be made. Those read include that a provider:

• acted unreasonably by not providing a health or community service;
• provided a service, or part of one, that was not necessary;
• acted unreasonably in providing a service;
• acted unreasonably in the manner of providing a service; and
• acted unreasonably by denying or restricting a user's access to their own records held by the provider.

Four of the five turn on unreasonableness, and the Act separates unreasonableness in providing a service from unreasonableness in the manner of providing it. A complaint should identify which is alleged.

The second ground is distinctive: a service that was not necessary. That is a complaint about over-servicing rather than under-servicing, and it does not depend on unreasonableness at all. None of the other complaints statutes examined states it as a separate ground.

The records ground also stands out for treating denial of access to one's own records as a service complaint rather than a privacy matter.

Reasonableness is measured against the Code

Section 5(1) directs that, in determining whether a provider acted reasonably in providing a health or community service, the Commissioner must have regard to the Code, and, until the Code is approved, the charter or the principles set out in the Regulations, or both.

The consequence for a student is the same one that recurs across this series: the operative standard is not in the Act. An argument about reasonableness must engage the Code, or the applicable charter or regulatory principles, and cite them.

Five approaches to standing

• Northern Territory — a listed class, with a power of attorney donee needing authority that expressly or impliedly extends to complaining, plus a Commissioner-recognised representative.
• Queensland — any person may complain, with a duty on the ombudsman to assist.
• New South Wales — any person with a genuine concern in the subject matter, subject to an unjustifiable interference bar.
• Western Australia — standing varies with the ground alleged, with a 24-month time limit.
• South Australia — a closed list of capacities including an attorney and an advance care directive substitute decision-maker.

The Northern Territory sits closest to South Australia in using a list, but qualifies the attorney's standing in a way South Australia does not.

Applying this in a problem question

1. Identify the complainant's category under s 22 before anything else.
2. Where a power of attorney is relied on, ask whether the authority expressly or impliedly includes the power to complain.
3. Where the user cannot act, consider the representative limb and what would satisfy the Commissioner.
4. Identify which s 23(1) ground is alleged, and distinguish unreasonable provision from unreasonable manner of provision.
5. Consider the not-necessary ground where the complaint is about over-servicing.
6. For reasonableness, cite the Code or the applicable charter or Regulations, not s 5 alone.

Self-check

• Have I placed the complainant in a s 22 category?
• Have I addressed the scope of the attorney's authority rather than its existence?
• Have I identified the precise s 23(1) ground?
• Have I cited the Code rather than treating reasonableness as at large?