Health complaints and carers recognition in South Australia 

This article states the law of South Australia. Two statutes sit at the edges of the aged care and disability systems and are easily overlooked: the Health and Community Services Complaints Act 2004 (SA), which supplies a State complaints route that runs in parallel to the Commonwealth schemes, and the Carers Recognition Act 2005 (SA), which defines who counts as a carer and what organisations must do about them. The prior question for each is a threshold one — standing in the first, and the existence of a care relationship in the second.

The Commissioner and what the office does

Section 9(1) of the Complaints Act sets out the Commissioner's functions¹. They include preparing and regularly reviewing the Charter of Health and Community Services Rights; identifying and reviewing issues arising out of complaints and recommending improvements to services and to the rights of people who use them; reviewing and identifying the causes of complaints, recommending ways to remove, resolve or minimise them, and detecting and reviewing trends in service delivery; and providing information, education and advice about the Charter and about rights and responsibilities.

The Act provides for the Commissioner's independence (s 11) and for the appointment of conciliators and professional mentors (s 13), which signals the character of the jurisdiction: this is a conciliation and systemic-improvement body rather than an adjudicative one.

Who may complain

Section 24 is the provision that decides most threshold questions, and its breadth is the point. A complaint about a health or community service used, received or sought by a person — the health or community service consumer — may be made to the Commissioner by:

• the consumer themselves (s 24(a));
• where the consumer is a child: the child; or, if aged 16 or more, a person the child appoints to complain on their behalf; or, if under 16, a parent or guardian;
• the donee of a power of attorney from the consumer (s 24(d));
• a substitute decision-maker appointed under an advance care directive within the meaning of the Advance Care Directives Act 2013 (SA) (s 24(da));
• a person acting on the consumer's behalf under another law or a court order (s 24(e));
• a Member of Parliament (s 24(f)); and
• where the Commissioner is satisfied that it is unreasonable to expect the consumer to complain personally, another person (s 24(g)).

Paragraphs (d) and (da) are where this Act joins the rest of the South Australian scheme. The instruments a person makes while capable — an enduring power of attorney, an advance care directive — carry standing to complain on their behalf later. A problem involving a person who now lacks capacity should be worked through s 24 rather than treated as one where nobody can complain.

Paragraph (g) is the residual safety valve, and it turns on the Commissioner's satisfaction rather than on any formal appointment.

Who is a carer

The Carers Recognition Act takes a different approach: it defines a relationship rather than a status². Under s 5(1), a person is in a care relationship with another if the first person — the carer — provides personal care, support or assistance to the other for one or more of five reasons: the other person has a disability; is experiencing mental ill health; has a medical condition, including a terminal or chronic illness or dementia; is frail due to age; or is experiencing alcohol or other drug dependence. Any other reason may be prescribed by regulation.

Section 5(2) then excludes three situations. A person is not in a care relationship where the care, support or assistance is provided under a contract of service or a contract for the provision of services; as a volunteer for a charitable, welfare or community organisation, other than an approved carer within the meaning of the Children and Young People (Safety) Act 2017 (SA); or as part of a course of education or training.

The exclusions define the Act's subject. It is directed at unpaid, non-institutional carers — typically family — and a paid support worker delivering identical assistance is outside it. Identifying whether the person is a carer for this Act therefore turns on the basis on which they act, not on what they do.

What the Carers Charter requires

Obligations fall on an applicable organisation, defined in s 4 as a public sector agency, or a person or body providing relevant services under a contract with a public sector agency other than a contract of employment. Ministers and chief executives of administrative units are excluded.

Section 6(1) requires such an organisation to "take all practicable measures to ensure that its employees and agents have an awareness and understanding of the Carers Charter", and that the organisation and its employees and agents take action to reflect the Charter's principles in providing relevant services. Section 6(2) extends the obligation inward: the organisation's internal human resource policies, so far as they may significantly affect an employee's caring role, must be developed having due regard to the Charter. Section 7 provides for reporting by public sector agencies.

Applying this in a problem question

1. For a complaint, start with s 24 and identify which paragraph gives the complainant standing.
2. Where the consumer lacks capacity, look for an enduring power of attorney under s 24(d) or an advance care directive substitute decision-maker under s 24(da) before concluding no one can complain.
3. Treat s 24(g) as the residual route, and frame it around what it is unreasonable to expect of the consumer.
4. For a carer question, work through the five reasons in s 5(1) and then the three exclusions in s 5(2).
5. Ask on what basis the person provides the care — paid, volunteer, or as training — because that is what the exclusions turn on.
6. For Charter obligations, confirm the body is an applicable organisation under s 4 before applying s 6.

Self-check

• Have I found the paragraph of s 24 that gives standing, rather than assuming it?
• Have I checked for a power of attorney or advance care directive before concluding nobody can complain?
• Have I applied the s 5(2) exclusions as well as the five reasons?
• Have I confirmed the body is an applicable organisation under s 4?