Health and disability services complaints in Western Australia 

This article states the law of Western Australia. The Health and Disability Services (Complaints) Act 1995 (WA) does something none of the other jurisdictions does: it makes standing depend on which ground is alleged¹. The prior question is therefore not who the complainant is but what the complaint is about, because the two are linked by s 19.

Standing varies with the ground

Section 19 creates three tiers, each keyed to paragraphs of s 25(1), which lists what a complaint may be about.

For the grounds in s 25(1)(a)–(h), a complaint may be made by a user, a user's representative recognised under s 20, or a provider to whom s 22 applies (s 19(1)).

For the ground in s 25(1)(h) specifically, a complaint may also be made by a carer (s 19(2)). What is confined to that single ground is standing as a carer — which is not the same as the carer's overall position, and the distinction is where answers go wrong. A carer is also a person, so s 19(3) opens grounds (i), (j) and (k) to them like anyone else, and a carer who is also a user, or a representative recognised under s 20, has that capacity's standing too. Ask which capacity is being relied on before saying what a carer may complain about.

For the grounds in s 25(1)(i), (j) or (k), a complaint may be made by any person (s 19(3)).

So the Act is restrictive at one end and fully open at the other, within the same section. A student must identify the paragraph of s 25(1) alleged before saying whether the complainant has standing at all. That is a different analytical order from Queensland, where any person may complain about anything, and from South Australia, where standing attaches to a fixed list of capacities regardless of ground.

Representatives, including unchosen ones

Section 20(1) allows the Director to recognise as a user's representative a person whom the user has chosen to complain on their behalf.

Section 20(2) goes further and is the more useful provision in practice. The Director may recognise a representative not chosen by the user, and allow that person to complain on the user's behalf, where the user has died, or where in the Director's opinion the user is unable to complain and unable to choose someone to complain for them.

That second limb answers the case the other jurisdictions handle differently — an adult who has lost capacity and appointed nobody. South Australia reaches it through the closed list of capacities plus a residual discretion; New South Wales through the genuine concern test; Western Australia through the Director's recognition of an unchosen representative.

A provider may complain for a user

Section 22 allows a provider to complain to the Director on behalf of a user about a health service provided by another provider, if the provider satisfies the Director that the user has died or that, because of the user's state of health or general situation, it would be difficult or impossible for the user to complain.

This is an unusual route and worth naming. It permits a treating clinician who becomes aware of poor care elsewhere to bring the matter forward without the patient having to act.

The 24-month time limit

Section 24 is mandatory in form: the Director "must reject a complaint about an incident which occurred more than 24 months before the complaint is made" unless, in the Director's opinion, the person who made it has shown good reason for the delay.

Two points follow. The obligation to reject is the default, so the complainant carries the burden of showing good reason once the period has passed. And the period runs from the incident, not from discovery — which matters in exactly the cases where harm surfaces late.

None of the other complaints statutes examined imposes an equivalent general limit, so this is a jurisdiction-specific trap.

The guiding principles

Section 4(1) declares, for the guidance of providers, that health services should be provided so as to promote quality health care given as promptly as circumstances permit; respect for privacy and dignity; adequate information about services, treatment, effects and costs in understandable terms; participation in decision-making; informed choice in the acceptance or refusal of treatment or participation in education or research; reasonable access to one's own records, subject to stated exceptions; and protection of personal health records and information from disclosure except for proper purposes.

Section 4(2) then gives the principles operative work: the Director is to have regard to them in deciding under s 48(1) whether unreasonable conduct or other conduct has occurred, and in making decisions under ss 26 and 34. They are not merely aspirational — they inform the statutory judgements the Director must make.

Applying this in a problem question

1. Identify the paragraph of s 25(1) the complaint alleges before considering standing.
2. Apply the matching tier of s 19: the restricted class for (a)–(h), a carer for (h), any person for (i)–(k).
3. Where the user cannot act, consider s 20(2) recognition of an unchosen representative rather than concluding no one can complain.
4. Consider s 22 where another provider is aware of the matter.
5. Check the s 24 time limit against the date of the incident, and address good reason if more than 24 months have passed.
6. Where the Director's decision is challenged, use s 4(2) to bring the guiding principles into the specified decisions.

Self-check

• Have I identified the ground before asking who may complain?
• Have I noticed that a carer's standing is confined to one paragraph?
• Have I considered an unchosen representative under s 20(2)?
• Have I run the time limit from the incident rather than from discovery?