Settlement of Complaints by Conciliation: Resolving Patient Complaints under the Health Practitioners Competence Assurance Act 2003

Abstract

Every patient has a legal right to complain about their health provider, and every health provider has a corresponding duty to facilitate the fair, simple, speedy and efficient resolution of such complaints.¹ But, if a patient is dissatisfied with the response, or feels unable to pursue a complaint directly with the provider, this may result in a formal complaint to an external agency. In particular, complaints may be made (or referred) to a responsible authority established under the Health Practitioners Competence Assurance Act 2003 (HPCA Act).

Responsible authorities, which regulate health practitioners of various health professions,² may appoint a Professional Conduct Committee (PCC) to investigate concerns about a practitioner’s conduct or practice.³ After completing an investigation a PCC may choose, among other options, to submit a complaint for settlement by conciliation.⁴ Notwithstanding this, PCCs rarely, if ever, do so. Indeed, a review of the available annual reports of responsible authorities for the past 5 years reveals no reference to any complaints being submitted to (or resolved by) conciliation.

The reason why conciliation is underutilised has not previously been explored, although the apparent reluctance is arguably at odds with the perceived benefits of facilitated outcomes in patient complaints, particularly where there is an ongoing therapeutic relationship. With this in mind, this paper critically examines and comments on the statutory scheme for conciliation under the HPCA Act, with a view to identifying the possible reasons for its lack of use and to consider its future. It explores what is meant by conciliation, the reasons for its inclusion in the HPCA Act and the statutory model itself. It determines that little thought was given to the meaning, form or purpose of conciliation, or its interface with the role of the Health and Disability Commissioner in resolving patient complaints. Ultimately, it concludes that while conciliation may be suitable for some patient complaints, its lack of use points to the need for a fundamental reassessment of the statutory model, and possible legislative amendment. Robust theoretical analysis, which was lacking in its adoption, and empirical research into PCCs (and others) understanding of conciliation, is necessary to inform that process and to decide the future for conciliation.

¹ Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Right 10(1), 10(3).

² As at 21 March 2017 there are 21 health professions regulated by 16 responsible authorities. The professions include anaesthetic technicians, chiropractors, dentists, dental therapists and technicians, medical practitioners, medical laboratory scientists, medical radiation technicians, nurses, occupational therapists, optometrists, osteopaths, pharmacists, psychologists, psychotherapists, and physiotherapists. Responsible authorities include, for example, the Medical Council, Nursing Council, Dental Council, and Physiotherapy Board.

³ HPCA Act, s 68(3).

⁴ Section 80(3)(c).