Health complaints and carers recognition in Victoria 

This article states the law of Victoria. Two statutes sit at the edge of the aged care and disability systems: the Health Complaints Act 2016 (Vic), which routes complaints about health services, and the Carers Recognition Act 2012 (Vic), which defines the care relationship and states principles about it. Each departs from the New South Wales and South Australian equivalents in a way worth knowing before answering.

Complaints go to the provider first

The Victorian scheme is two-tier, and that is its defining feature. Section 5(1) provides that a person may complain to the health service provider about the unreasonable provision of a health service; an unreasonable failure to provide a service sought; an unreasonable failure to act consistently with the health service principles; the provision of a service in an unreasonable manner; any failure to comply with the duty of candour under Part 5A of the Health Services Act 1988 (Vic); or the manner in which the provider dealt with a complaint, including inconsistency with complaint handling standards¹.

The duty of candour ground was inserted in 2022 and is worth noticing: a failure to be open with a patient about what happened is itself a complainable matter, not merely evidence about something else.

When a complaint may go straight to the Commissioner

Section 5(2) states four routes to the Commissioner, and identifying which one is engaged is the analytical step most often skipped.

First, a complaint may go directly to the Commissioner about anything within s 5(1), without first complaining to the provider, if it would be unreasonable or inappropriate to resolve the matter by a provider complaint (s 5(2)(a)). Second, a complaint may be made about a general health service provider failing to comply or act consistently with an applicable code of conduct, or failing to comply with an interim prohibition order or a prohibition order. Third, a complaint may go to the Commissioner about a matter already complained of to the provider if that complaint is not resolved within three months (s 5(2)(c)). Fourth, a complaint may be made about the manner in which the provider dealt with the s 5(1) complaint.

The three-month route is a hard-edged trigger and the one most likely to decide a problem on the facts.

Section 6 extends both tiers to a complaint about a health service received or sought by another person, so a family member or advocate is not shut out.

The contrast with New South Wales and South Australia

Three jurisdictions, three approaches to getting a complaint heard:

• Victoria requires the provider complaint first, subject to defined exceptions, with an unresolved-after-three-months route to the Commissioner.
• New South Wales routes community services complaints straight to the Ombudsman, with standing set by a genuine concern test and controlled by an unjustifiable interference bar.
• South Australia routes complaints straight to the Commissioner, with standing attached to a closed list of capacities, including an attorney and an advance care directive substitute decision-maker.

Victoria's design is about sequence; New South Wales's is about who; South Australia's is about capacity. An answer must engage the right question.

The care relationship covers both parties

The Carers Recognition Act 2012 (Vic) defines the relationship more broadly than its interstate counterparts. Under s 4(1), a person is in a care relationship if he or she provides another person, or receives from another person, care because one of the persons in the relationship has a disability, is older, has a mental illness, or has an ongoing medical condition including a terminal or chronic illness or dementia².

The phrase "provides another person, or receives from another person" is the distinctive drafting. Both parties are in the care relationship, and the Act's principles run to both: s 7 states principles relating to carers, and s 8 states principles relating to persons being cared for. New South Wales and South Australia define the carer alone.

Section 7 requires that a carer be respected and recognised as an individual with their own needs, as a carer, and as someone with special knowledge of the person in their care, and be supported including through changes in the relationship. Section 8 requires that the person being cared for be respected, recognised and supported as an individual and as a person in a care relationship, and have their views taken into account together with their needs, cultural identity and best interests.

Section 4(2) extends care relationships to certain arrangements under the Children, Youth and Families Act 2005 (Vic), including permanent care orders and child care agreements.

What the Carers Act yields to

Section 6 is short and consequential: "If there is any inconsistency between this Act (other than section 12) and any other Act, the provisions of the other Act prevail."

That is an unusually complete subordination. Where the Carers Recognition Act conflicts with any other Victorian Act, it gives way — with one carved-out exception. A student should not deploy the care relationship principles against a specific statutory scheme without addressing s 6 first. Compare New South Wales, where s 9 of its Carers (Recognition) Act forecloses any civil cause of action; Victoria achieves a comparable practical result by a different route.

Applying this in a problem question

1. Identify whether the complaint is being made to the provider under s 5(1) or to the Commissioner under s 5(2).
2. If it goes straight to the Commissioner, name the s 5(2) route relied on, and for s 5(2)(a) explain why a provider complaint would be unreasonable or inappropriate.
3. Check the three-month trigger in s 5(2)(c) where a provider complaint has already been made.
4. Consider whether the duty of candour ground in s 5(1)(da) is engaged on the facts.
5. For a carer question, apply s 4(1) and note that either party may be the one in the relationship, then apply s 7 or s 8 as appropriate.
6. Before relying on the carer principles against another statute, address s 6.

Self-check

• Have I identified which tier the complaint belongs to?
• Have I named the s 5(2) route rather than assuming direct access?
• Have I noticed that the Victorian care relationship reaches both parties?
• Have I addressed s 6 before relying on the carer principles?