Who may complain: standing in health and disability complaints compared 

A client says the care was inadequate. Before anything else, one question decides whether the matter goes anywhere: may this person complain?

The answer is jurisdictional, and the seven schemes stated here answer it in four different ways. This article compares them. It does not state the position in the Australian Capital Territory; no ACT complaints provision was established in the linked articles, and nothing is asserted here about it.

Four models

Any person. Queensland. Section 31 of the Health Ombudsman Act 2013 (Qld) permits any person to make a health service complaint, orally or in writing (s 33), and s 34 requires the health ombudsman to give reasonable assistance to make a complaint on request.¹ Queensland asks least of the complainant of any jurisdiction here, and the assistance duty is unusual.

Genuine concern. New South Wales. Section 23 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) sets standing by a genuine concern test rather than a closed list, with s 23(4) barring a person who is unjustifiably interfering in the matter.² A person who would not appear on a statutory list still has standing if their concern is genuine.

A list, with a residual discretion. South Australia, the Northern Territory and Tasmania. Section 24 of the Health and Community Services Complaints Act 2004 (SA) lists the categories, including substitute decision-makers, and — the paragraph to find — permits another person to complain where it would be unreasonable to expect the consumer to complain personally (s 24(da) and (g)).³ Section 22 of the Health and Community Services Complaints Act 1998 (NT) lists who may complain, expressly including a donee of a power of attorney with express or implied authority.⁴ Section 22 of the Health Complaints Act 1995 (Tas) lists, with a residual discretion in the Commissioner, graduated rules for children in s 22A, and an open door for code of conduct complaints under s 22(k) — so in Tasmania the standing question depends on which limb is engaged.⁵ Two of these jurisdictions expressly name a donee of a power of attorney whose authority includes making a complaint: the Northern Territory (s 22) and Tasmania (s 22(d)).

Standing tied to the ground. Western Australia. Section 19 of the Health and Disability Services (Complaints) Act 1995 (WA) makes who may complain depend on what is being complained about.⁶ Section 20(2) allows recognition of a representative where the user has died or cannot complain. This is the most technical rule in the group, and the one most likely to defeat a complaint that would succeed elsewhere.

Victoria: the destination, not the standing

Victoria's distinctive feature is not who may complain but where the complaint goes first. Sections 5 and 6 of the Health Complaints Act 2016 (Vic) establish a two-tier structure: a complaint is ordinarily made to the health service provider, with defined routes permitting a complaint directly to the Commissioner (s 5(1)(da), s 5(2)(a) and (c)).⁷

Advising a Victorian client to go straight to the Commissioner without identifying the applicable direct route is wrong more often than it is right.

Time limits

Only one of the schemes stated here has an express limitation period in the material established.

Section 22 of the Western Australian Act imposes a 24-month time limit, subject to good reason under s 24. Western Australia therefore has three gates — the right ground, the right complainant for that ground, and time — and all three must be cleared.

What may be complained about

Standing and ground are separate questions and are often conflated.

The Northern Territory states the grounds in s 23 by reference to unreasonable conduct, and requires the Commissioner to assess reasonableness against the Code. So a Territory complaint must identify the applicable code before the argument about reasonableness can begin.

Tasmania states grounds in s 23(1) including failure to exercise due skill and failure to respect privacy or dignity — the second of which is directly useful in aged and disability care, where the complaint is often about how a person was treated rather than about a clinical outcome.

Comparison

| Jurisdiction | Standing model | Key provision | |---|---|---| | Qld | Any person, orally or in writing; assistance on request | ss 31, 33, 34 | | NSW | Genuine concern; no closed list | s 23 | | SA | List, including where it is unreasonable to expect the consumer to complain | s 24 | | NT | List, expressly including a donee of a power of attorney | s 22 | | Tas | List, expressly including a donee of a power of attorney, with residual discretion; open for code of conduct complaints | ss 22, 22A | | WA | Tied to the ground; representative where the user cannot complain; 24 months | ss 19, 20(2), 22, 24 | | Vic | Two-tier destination rule rather than a standing rule | ss 5, 6 |

Why this matters in aged and disability care

The recurring fact pattern in this subject is a person who cannot readily complain for themselves — because of impaired capacity, dependence on the provider, or fear of consequences. Every one of these schemes has a provision addressed to that, and they are different provisions:

• South Australia: another person may complain where it would be unreasonable to expect the consumer to complain personally.
• Northern Territory and Tasmania: a donee of a power of attorney may complain.
• Western Australia: a representative may be recognised where the user has died or cannot complain.
• New South Wales: the genuine concern test reaches a concerned third party directly.
• Queensland: any person may complain, so the question does not arise.

Finding the right one of these is often the whole of the advice.

A working order

1. Name the jurisdiction and the Act.
2. Ask the standing question in that jurisdiction's form — any person, genuine concern, a listed category, or a category tied to the ground.
3. If the client cannot complain personally, find the jurisdiction's substitute provision before concluding that nothing can be done.
4. In Victoria, establish the destination before the standing.
5. In Western Australia, clear all three gates, and address the 24-month limit expressly.
6. Separate the ground from the standing, and in the Northern Territory identify the Code.

Self-check

• Have I asked who may complain before asking what may be complained about?
• Have I looked for the jurisdiction's provision covering a consumer who cannot complain personally?
• Have I checked whether the complaint must go to the provider first?
• Have I addressed the time limit where the jurisdiction has one?