Health complaints in Tasmania 

This article states the law of Tasmania. The Health Complaints Act 1995 (Tas) uses a listed class of complainants, but with two features that soften it — a residual discretion in the Commissioner, and a separate provision opening code of conduct complaints to anyone¹. The prior question is which of the two complaint routes is engaged, because they have opposite standing rules.

Who may complain about a health service

Section 22 entitles listed persons to complain about a health service sought, used, received by or administered to a health service user. Those read include the user themselves; the donee of a power of attorney from the user whose authority includes the making of a complaint under the Act; and a person who, under any other law or an order of a court, has the care of the user's affairs.

Like the Northern Territory, Tasmania qualifies the attorney's standing by reference to the scope of authority rather than the mere existence of the power. South Australia does not.

Graduated rules for children

Paragraph (b) treats a child health service user in three ways according to age and capability, and the structure is worth setting out:

• where the child has attained 14 years, a person appointed by that child to complain on their behalf;
• where the child has not attained 14 years, a parent or guardian; and
• where the Commissioner is of the opinion that the child is capable of lodging a complaint themselves, the child.

The third limb is not confined by age. A child under 14 whom the Commissioner considers capable may complain in their own right, so the age line in the first two limbs is a default rather than a bar. That is a more nuanced treatment than the New South Wales provision, which fixes 16 as the threshold for a child appointing a representative.

The residual discretion

Paragraph (k) allows the Commissioner, where satisfied that in the circumstances of the particular case a person outside paragraphs (a) to (j) should be permitted to complain, to permit that person.

This is the safety valve that a closed list otherwise lacks. South Australia has an equivalent in its own residual provision; the Northern Territory achieves something similar through Commissioner-recognised representatives. Western Australia instead varies standing by ground. Four different techniques for the same problem — the person who ought to be able to complain but does not fit a category.

Open standing for code of conduct complaints

Section 22A is a separate route with no standing restriction at all: "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."

Two differences from s 22 matter. The subject is a health care worker rather than a health service, and the complainant need not be connected to the user at all. A member of the public, or a colleague, may complain about a code breach.

So Tasmania runs a listed class for service complaints and open standing for conduct complaints, in the same Act. Identifying which route the facts engage is the first step, and the answer changes who may bring it.

The grounds

Section 23(1) allows a person entitled under s 22 to make one or more complaints, including that a health service provider:

• acted unreasonably by not providing a health service;
• provided a service, or part of one, that was not necessary;
• acted unreasonably in the manner of providing a service;
• failed to exercise due skill;
• failed to treat a health service user in an appropriate professional manner; and
• failed to respect a health service user's privacy or dignity.

Three of these are not framed as unreasonableness at all. Failure to exercise due skill is a competence standard; failure to treat a user in an appropriate professional manner is a conduct standard; and failure to respect privacy or dignity is a rights standard. A complainant is not confined to arguing that conduct was unreasonable, which is a broader footing than the Northern Territory's largely unreasonableness-based list.

The not necessary ground appears here as it does in the Northern Territory — a complaint about over-servicing.

The Charter of Health Rights

Section 17(1) required the Commissioner to develop a draft Charter of Health Rights for the Health Minister's consideration within 18 months of commencement, with progress reports at intervals of not more than six months (s 17(2)), and s 18 provides for review of the Charter.

As elsewhere in this series, the operative content sits outside the Act. An argument resting on the Charter must cite the Charter itself.

Applying this in a problem question

1. Ask first whether the complaint is about a health service (s 22) or a health care worker's breach of a code of conduct (s 22A).
2. For a s 22 complaint, place the complainant in a listed paragraph.
3. Where an attorney complains, address whether the authority includes making a complaint.
4. For a child, work the three limbs of paragraph (b), and consider the capability limb regardless of age.
5. Where no paragraph fits, argue paragraph (k) and address why this particular case warrants it.
6. Select the s 23(1) ground precisely, and use due skill, professional manner or privacy and dignity where unreasonableness is hard to establish.

Self-check

• Have I identified which of the two complaint routes applies?
• Have I addressed the scope of an attorney's authority?
• Have I considered the capability limb for a child under 14?
• Have I chosen a ground that does not require proving unreasonableness where one fits better?