Overview of complaints management process

The Medical Council of Tasmania's functions and powers are limited to the provisions of the Act. The Act defines the basic "complaints process" that must be followed. Council must also take into consideration, its statutory responsibilities as prescribed in the Health Complaints Act 1995 (HCA 95).

A complainant is required to provide their complaint in writing and the Medical Council asks that they complete our Complaint Form. The completion of our complaint form allows the Medical Council to see clearly what and whom the complainant is complaining about and what they hope to achieve by making a complaint. This form must be signed before a Justice of the Peace or a Commissioner for Declarations.

Under the provisions of section 57(1)(a) of the HCA 95, Council, in the first instance, is required to provide a copy of all complaints it receives (directly from complainants) to the Health Complaints Commissioner (the Commissioner) for preliminary assessment and consultation.

Receipt of Complaints

Complaints concerning medical practitioners are received by both the Medical Council and the Health Complaints Commissioner (HCC).  The roles of the bodies differ.  The Medical Council has the responsibility to ensure that medical services in the State are of the highest possible standard and to protect the public from practitioners whose clinical performance or ethical behaviour are not of an acceptable standard.  Council's interest in complaints, therefore, is to determine if they reveal evidence of a breach of acceptable professional standards by the practitioner.  It is not Council's responsibility to satisfy the complainant; it is to protect the public.

The role of the HCC on the other hand, is to conciliate and resolve a complaint.  In some cases, this may involve the payment of compensation to the complainant by the practitioner.  The HCC, however, may not refer a complaint to a conciliator if the complaint appears to indicate the existence of an issue of public safety or public interest or raises significant questions concerning the practice of a health service provider; in such case the complaint must be referred to the Medical Council for investigation.

It is not uncommon for a complaint to raise a number of issues.  Fortunately, it is now possible for the Medical Council, when it has dealt with the professional standards elements of a complaint, to refer any remaining issues to the HCC for further consideration.

Apart from complaints made direct to Council, or referred to it by the HCC, Council may, on its own motion, investigate matters which become known to it and which might constitute grounds for complaint.

Regular meetings are held between officers of the Medical Council and the Office of the Health Complaints Commissioner (OHCC) to assess complaints against medical practitioners and determine which of the two bodies should most appropriately deal with the matter.  In the event of disagreement, the HCC's view prevails.  It has been noted that there was an increase in the amount and/or complexity of the consultation files between the OHCC and Council in 2006 and Council is very appreciative of the excellent working relationship between Council, the HCC and the OHCC staff which greatly assists in ensuring that the consultation process is an efficient and expedient as possible.

Through these meetings, Council becomes aware of all complaints against medical practitioners including those which are not referred to Council for investigation.  This can be of great value in alerting Council to the possibility that a practitioner's performance is defective.  Several complaints concerning a practitioner, none of which in itself appears serious, may be evidence of reduced competence or impairment because of age, illness or abuse of alcohol or other drugs.

Investigation of Complaints

The Medical Practitioners Registration Act 1996 ("the Act") requires Council to refer all complaints received to a Council appointed Investigator for preliminary investigation.

In the first instance, the Investigator assesses the written complaint and any associated documentation that has been provided with the complaint.  The Investigator will determine if it is appropriate to interview the complainant and the practitioner (separately), may review medical records and also determines whether an independent expert opinion should be sought.

Following the investigation, the Investigator will then report to Council and can make one of the following recommendations pursuant to Section 48B of the Act:

(a)     that the complaint be dismissed;                                                                                                                  (b)     that no disciplinary action be initiated in respect of the complaint at that time;                                            (c)     that the complaint be referred to or, if applicable, back to the Health Complaints Commissioner;                (d)     that an informal inquiry be instituted into the complaint;                                                                               (e)     that a formal inquiry be instituted into the complaint. 

The Investigator also has the ability to make a secondary recommendation to Council or advise the Council that it cannot make a recommendation and Council can provide the Investigator with assistance or advice, issue directions to the Investigator or make a determination without a recommendation.

Although Council may accept the Investigator's recommendations, it is not obliged to do so.  However, Council should not reject the recommendations unless it is satisfied that there are compelling grounds for rejection of the recommendations.  Often Council may require the Investigator to provide it with further information or evidence before it will vote on the recommendations to Council.

Some complaints do not warrant dismissal, but concern matters that are not so serious as to demand referral to the Medical Complaints Tribunal.  In such cases, the practitioner is required to appear before Council to give an explanation or provide Council with a written explanation.  These proceedings are informal and no legal representation is permitted.

The possible outcomes of an informal inquiry are:

• accept the practitioner's explanation and dismiss the complaint;
• do not accept the practitioner's explanation, but take no further disciplinary action;
• caution or reprimand the medical practitioner concerned; 
• require and accept an undertaking from the medical practitioner concerned to take or refrain from taking specified action (undertakings).

Complaints of a serious nature are, after investigation, referred to the Medical Complaints Tribunal (the Tribunal) which is the only body with the power to impose penalties on medical practitioners.

The Medical Complaints Tribunal

This body is established by the Medical Practitioners Registration Act 1996.  Its members are appointed and its costs met by Council but it acts independently.

It consists of two permanent members:  the Chairman, who must be a legal practitioner of at least 10 years standing (currently Mr David Porter QC) and a distinguished non-medical/non-legal person (currently Ms Margaret Murray).  The alternative Chairman is Mr Stephen Estcourt QC and the alternate non-medical/non-legal person is Ms Brigid Tracey.  For each inquiry three special members are appointed.  The special members are registered medical practitioners selected for their knowledge and experience relevant to the matter before the Tribunal; they cannot be members of the Medical Council.  At formal inquiries before the Tribunal, the medical practitioner who is the subject of complaint may have legal representation and evidence is taken on oath or affirmation.  Mr Philip Jackson, Barrister-At-Law is currently Counsel assisting the Tribunal at formal inquiries.  Mr Jackson is also the contracted external Legal Counsel to the Medical Council of Tasmania.

Proceedings at formal inquiries are not necessarily like those before a Court.  The Tribunal is not bound by the rules of evidence and it may inform itself on any matter, in any way that it considers appropriate.  However, it must observe the rules of natural justice and a degree of formality is required in order to give proper consideration of the matter before it.

Formal inquiries are vigorously defended as the Tribunal has far reaching powers in relation to the orders that it can make if the practitioner is found guilty of professional misconduct.  These orders include dismissing the complaint, cautioning or reprimanding the practitioner, imposing a fine, imposing conditions on the practitioner's registration, requiring the practitioner to take or refrain from taking a specified action (undertakings) to curtailing or preventing the practitioner from practising by wholly or partially suspending the practitioner's registration or ordering the removal of the practitioner's name from the register.

Download Complaint Form (PDF).

Contacts

complaints@medicalcounciltas.com.au

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