Health Rights Commission Act 1991

Queensland Health Rights Commission Act 1991 Reprinted as in force on 22 October 2003 Reprint No. 5B * This reprint is prepared by the Office of the Queensland Parliamentary Counsel Warning—This reprint is not an authorised copy NOT FURTHER AMENDED LAST REPRINT BEFORE REPEAL See 2006 Act No. 25 s 218 * Minor differences in presentation between this reprint and another reprint with the same number are due to the conversion to new styles. The content has not changed.

Information about this reprint This Act is reprinted as at 22 October 2003. The reprint— • shows the law as amended by all amendments that commenced on or before that day (Reprints Act 1992 s 5(c)) • incorporates all necessary consequential amendments, whether of punctuation, numbering or another kind (Reprints Act 1992 s 5(d)). The reprint includes a reference to the law by which each amendment was made—see list of legislation and list of annotations in endnotes. Also see list of legislation for any uncommenced amendments. Minor editorial changes allowed under the provisions of the Reprints Act 1992 have also been made to use aspects of format and printing style consistent with current drafting practice (s 35). This page is specific to this reprint. See previous reprints for information about earlier changes made under the Reprints Act 1992. A table of reprints is included in the endnotes. Also see endnotes for information about— • when provisions commenced • editorial changes made in earlier reprints. Dates shown on reprints Reprints dated at last amendment All reprints produced on or after 1 July 2002, hard copy and electronic, are dated as at the last date of amendment. Previously reprints were dated as at the date of publication. If a hard copy reprint is dated earlier than an electronic version published before 1 July 2002, it means the legislation was not further amended and the reprint date is the commencement of the last amendment. If the date of a hard copy reprint is the same as the date shown for an electronic version previously published, it merely means that the electronic version was published before the hard copy version. Also, any revised edition of the previously published electronic version will have the same date as that version. Replacement reprint date If the date of a hard copy reprint is the same as the date shown on another hard copy reprint it means that one is the replacement of the other.

Queensland Health Rights Commission Act 1991 Contents Part 1 1 2 3 4 5 6 Part 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Objectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Crown bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Report after 2 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Health Rights Commission Establishment of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Application of various public sector Acts . . . . . . . . . . . . . . . . . . . 13 Appointment of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Commissioner’s functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Commissioner’s independence . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Qualifications for appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Disqualifications from appointment . . . . . . . . . . . . . . . . . . . . . . . 15 Terms and conditions of appointment. . . . . . . . . . . . . . . . . . . . . . 15 Period of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Preservation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Vacancy in commissioner’s office . . . . . . . . . . . . . . . . . . . . . . . . . 16 Removal or suspension of commissioner. . . . . . . . . . . . . . . . . . . 17 Grant of leave to commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Crown and commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Commission officers employed under Public Service Act . . . . . . 18 Commissioner’s power to delegate . . . . . . . . . . . . . . . . . . . . . . . 18 Commissioner may appoint authorised persons . . . . . . . . . . . . . 18 Commissioner may issue identity card . . . . . . . . . . . . . . . . . . . . . 19

26 27 28 29 30 31 32 33 34 35 36 Part 3 37 38 39 Part 4 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Part 5 Division 1 57 2 Health Rights Commission Act 1991 Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cooperation with interested organisations . . . . . . . . . . . . . . . . . . Assistance to providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner’s general power . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner’s procedures informal . . . . . . . . . . . . . . . . . . . . . . Minister’s directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minister may direct inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commission’s budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Response to adverse comment . . . . . . . . . . . . . . . . . . . . . . . . . . Development of code Code of Health Rights and Responsibilities . . . . . . . . . . . . . . . . . Consultation on code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Content of code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health Rights Advisory Council Establishment of council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Council’s functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner to report to council . . . . . . . . . . . . . . . . . . . . . . . . Council’s general power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Membership of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vacation of member’s office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Removal of member from office . . . . . . . . . . . . . . . . . . . . . . . . . . President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vacation of president’s office . . . . . . . . . . . . . . . . . . . . . . . . . . . . Removal of president from office . . . . . . . . . . . . . . . . . . . . . . . . . Minister to appoint to vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . Council meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minister may call meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dissenting opinion to be reported . . . . . . . . . . . . . . . . . . . . . . . . Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fees and allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaints Health service complaints Health service complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 19 20 20 20 20 21 22 22 23 23 24 24 24 25 25 26 27 27 27 28 28 28 28 28 28 29 29 29 30 30 31

58 59 60 61 62 63 64 65 66 Division 2 67 68 69 70 71 72 73 74 75 76 77 78 79 Division 3 80 Part 6 81 82 83 84 85 86 3 Health Rights Commission Act 1991 Commissioner may deal with complaint as 2 or more complaints ................................ Who may complain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaints about persons who are no longer registered providers ..................................... Representative complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to make a health service complaint . . . . . . . . . . . . . . . . . . . Oral complaints to be confirmed in writing . . . . . . . . . . . . . . . . . . Complainant to reveal identity . . . . . . . . . . . . . . . . . . . . . . . . . . . Further information from complainant . . . . . . . . . . . . . . . . . . . . . Commissioner may require affidavit . . . . . . . . . . . . . . . . . . . . . . . Assessment of health service complaints Commissioner to immediately assess all health service complaints ................................... Commissioner may refer complaint to registration board without assessment ............................. Notices of decision to assess complaint. . . . . . . . . . . . . . . . . . . . Submissions about health service complaint . . . . . . . . . . . . . . . . Assessment of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of assessment decision. . . . . . . . . . . . . . . . . . . . . . . . . . . Action on acceptance of complaint about provider other than registered provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action on acceptance of complaint about registered provider . . . Conciliation of complaints referred under s 74 . . . . . . . . . . . . . . . Time limit on assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to immediately refer certain complaints to registration board ........................................ Commissioner’s powers during assessment . . . . . . . . . . . . . . . . Decisions not to take action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General General powers to gather information and facilitate resolution of complaints ................................... Conciliation Appointment of conciliator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conciliators functions exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . Conciliation to be separately performed . . . . . . . . . . . . . . . . . . . . Conciliation function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Progress reports from conciliator . . . . . . . . . . . . . . . . . . . . . . . . . 32 34 34 35 36 36 36 37 37 37 38 39 39 40 42 42 43 45 46 46 48 48 50 50 51 51 51 51 53

87 88 89 90 91 92 93 94 Part 7 Division 1 95 96 97 98 99 100 101 102 103 Division 2 104 105 106 107 108 109 110 Division 3 111 112 114 115 116 Division 4 117 118 119 4 Health Rights Commission Act 1991 Results report from conciliator . . . . . . . . . . . . . . . . . . . . . . . . . . . Action on report of unsuccessful conciliation . . . . . . . . . . . . . . . . Enforceable agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner may end conciliation . . . . . . . . . . . . . . . . . . . . . . . Conciliation privileged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Confidentiality of conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Professional mentor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administrative support staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Investigation Commissioner’s investigations Commissioner’s investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice to provide information or a record . . . . . . . . . . . . . . . . . . . Oral information on oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Retention and copying of provided record . . . . . . . . . . . . . . . . . . Offence not to provide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to another entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Investigation by other entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner’s powers not affected by reference . . . . . . . . . . . . Inquiry hearing Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Oral hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure of witness to attend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Refusal of witness to cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . Contempt of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises powers Power limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Identity card to be produced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entry and search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General powers of authorised person in relation to premises . . . Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False or misleading information Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . False or misleading record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 54 54 55 55 56 56 57 57 58 59 59 59 59 60 60 60 61 61 61 62 62 62 62 63 63 63 65 66 67 67 67

Division 5 120 121 122 123 Division 6 124 125 126 127 127A Part 8 128 129 130 Part 9 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 Part 10 149 5 Health Rights Commission Act 1991 Privilege Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Witness privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claim of unjustifiable exercise of power . . . . . . . . . . . . . . . . . . . . Supreme Court applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action on investigation Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner’s reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . To whom reports may be given. . . . . . . . . . . . . . . . . . . . . . . . . . . Response to adverse comment . . . . . . . . . . . . . . . . . . . . . . . . . . Conciliation after investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . Registration boards Information from registration board . . . . . . . . . . . . . . . . . . . . . . . Registration board may ask commissioner for information. . . . . . Commissioner may intervene in disciplinary proceedings . . . . . . General Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Record copy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dispensing with notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner may give combined notice . . . . . . . . . . . . . . . . . . Commissioner may provide information . . . . . . . . . . . . . . . . . . . . Investigation despite proceedings . . . . . . . . . . . . . . . . . . . . . . . . Giving of information protected . . . . . . . . . . . . . . . . . . . . . . . . . . False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . Reports privileged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawful reprisal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Damages entitlement for reprisal . . . . . . . . . . . . . . . . . . . . . . . . . Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings for offences generally . . . . . . . . . . . . . . . . . . . . . . . Proceedings for indictable offences . . . . . . . . . . . . . . . . . . . . . . . Change to committal proceeding during summary proceeding . . Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional and other provisions Transitional for Health Rights Commission Act 1991 (Act No. 88 of 1991) ....................................... 68 68 68 69 69 70 70 70 71 71 72 72 73 73 73 73 74 74 74 75 75 76 76 78 79 79 79 79 80 80 81

6 Health Rights Commission Act 1991 150 151 Schedule 1 Schedule 2 Transitional for Health Practitioners (Professional Standards) Act 1999 ...................................... Validating provision for Health and Other Legislation Amendment Act 2003 ...................................... Health services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Declared registration boards 82 82 83 Endnotes 1 2 3 4 5 6 7 8 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tables in earlier reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 86 87 87 88 88 91 96

s1 7 s3 Health Rights Commission Act 1991 Health Rights Commission Act 1991 [as amended by all amendments that commenced on or before 22 October 2003] An Act to provide for independent review and conciliation with respect to services provided by health service providers to health service users and for improvements to those services Part 1 Preliminary 1 Short title This Act may be cited as the Health Rights Commission Act 1991 . 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Definitions (1) In this Act— action includes further action. authorised person means— (a) the commissioner; or (b) a person authorised by the commissioner under section 24. commission means the Health Rights Commission established under section 7. commissioner means the Health Rights Commissioner appointed under section 9. complainant means—

s3 8 s3 Health Rights Commission Act 1991 (a) a person who makes a health service complaint; or (b) a person substituted, under section 61(5), for a person mentioned in paragraph (a). conciliation means the process of conciliation under part 6. conciliator means a person appointed as a conciliator under section 81. council means the Health Rights Advisory Council established under section 40. detriment includes— (a) personal injury or prejudice to safety; and (b) property damage or loss; and (c) intimidation or harassment; and (d) adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and (e) threats of detriment; and (f) financial loss from detriment. disciplinary body means— (a) a disciplinary committee; or (b) the Health Practitioners Tribunal; or (c) the Nursing Tribunal; or (d) a professional conduct review panel; or (e) a registration board acting under the Health Practitioners (Professional Standards) Act 1999 . disciplinary committee means a disciplinary committee established under the Health Practitioners (Professional Standards) Act 1999 , section 128(1)(b). Health Complaints Unit means the Health Complaints Unit maintained within the department immediately before the commencement of this Act. Health Practitioners Tribunal means the Health Practitioners Tribunal established under the Health Practitioners (Professional Standards) Act 1999 , section 26.

s3 9 s3 Health Rights Commission Act 1991 health responsibilities means the responsibilities of a provider in relation to the provision of a health service. health rights means the rights of an individual relating to the provision of a health service. health service means— (a) a service provided to an individual for, or purportedly for, the benefit of human health— (i) including services specified in schedule 1, part 1; but (ii) excluding services specified in schedule 1, part 2; or (b) an administrative service directly related to a health service; or (c) a decision or action mentioned in subsection (3). health service complaint means a complaint mentioned in section 57. industrial organisation means a body registered as an industrial organisation, or a body whose registration was continued or preserved, under the Industrial Relations Act 1999 . inquiry means an inquiry that the Minister has directed the commissioner under section 32 to conduct. inquiry hearing means an oral hearing conducted before the commissioner for the purpose of an inquiry. inquiry matter means a matter on which the Minister has directed the commissioner to conduct an inquiry. investigate includes examine, consider or take action. notice means written notice. Nursing Tribunal means the Nursing Tribunal under the Nursing Act 1992 . obstruct includes— (a) assault, threaten, abuse, insult, intimidate or hinder; and (b) attempt to obstruct.

s 3 10 s 3 Health Rights Commission Act 1991 possession , in relation to a person having something in possession, means possession or control in any place— (a) whether for the use or benefit of the person in relation to whom the term is used or another person; and (b) whether or not another person has actual possession or custody. premises includes any— (a) building; or (b) land or place, whether or not enclosed. professional conduct review panel means a professional conduct review panel established under the Health Practitioners (Professional Standards) Act 1999 , section 15. provider means— (a) a person who provides a health service; or (b) a registered provider. record includes— (a) any information or document, however compiled, recorded or stored; and (b) a copy of a record mentioned in section 132. register includes— (a) to enrol; and (b) to issue a certificate, approval, licence or other instrument granting or recognising a person’s qualification as a practitioner of any health service. registered provider means a person registered by a registration board. registration board means a body established under an Act administered by the Minister that has the function to register, or to suspend or cancel the registration of, practitioners of any kind of health service, and includes a body specified in schedule 2. reprisal means conduct causing detriment.

s 4 11 s 4 Health Rights Commission Act 1991 user means an individual who uses or receives a health service. (2) A person is not taken to be a user merely because the person has arranged a health service for another person. (3) The commissioner may, with the written approval of the Minister, decide to treat a decision or action of an officer or employee of the department as if it were a health service. (4) A decision made for the purpose of subsection (3) may be made with respect to a particular decision, action or officer or a class of decision, action or officer. (5) For the purpose of a duty imposed by this Act on a person to take an oath or make an affidavit to verify information, the oath or affidavit the person is to take or make is an oath or affidavit that the information is true. 4 Objectives The principal objectives of this Act are— (a) to provide for oversight, review and improvement of health services by establishing an accessible, independent facility that will— (i) preserve and promote health rights; and (ii) receive and resolve health service complaints; and (iii) enable users and providers to contribute to the review and improvement of health services; and (iv) provide education and advice in relation to health rights and responsibilities and the resolution of complaints about health services, whether or not made under this Act; and (v) assist users and providers to resolve health service complaints; and (b) to provide for the development of a Code of Health Rights and Responsibilities; and (c) to provide for the appointment, functions and powers of a Health Rights Commissioner; and

s 5 12 s 7 Health Rights Commission Act 1991 (d) to provide for the establishment, functions and operation of a Health Rights Advisory Council. 5 Crown bound (1) This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities. (2) The Crown is not liable to a penalty for a contravention of this Act. (3) However, a servant or agent of the Crown who contravenes this Act is liable to a penalty prescribed by this Act in relation to the contravention. 6 Report after 2 years (1) As soon as practicable after this Act has been in operation for 2 years, the Minister is to prepare and table in the Legislative Assembly a report on— (a) the performance of the commission; and (b) the development of the Code of Health Rights and Responsibilities; and (c) the operation of this Act generally. (2) The report is to contain the Minister’s recommendations on issues raised in the report. Part 2 Health Rights Commission 7 Establishment of commission (1) A facility called the Health Rights Commission is established. (2) The Health Rights Commission is to comprise— (a) the Health Rights Commissioner; and (b) officers of the commission.

s 8 13 s 10 Health Rights Commission Act 1991 8 Application of various public sector Acts (1) The commission is— (a) a unit of public administration under the Crime and Misconduct Act 2001 and the Electoral and Administrative Review Act 1989 ; and (b) a statutory body for the purpose of the Financial Administration and Audit Act 1977 . (2) Under the Statutory Bodies Financial Arrangements Act 1982 , the commission is a statutory body. (3) The Statutory Bodies Financial Arrangements Act 1982 , part 2B 1 sets out the way in which the commission’s powers under this Act are affected by the Statutory Bodies Financial Arrangements Act 1982 . 9 Appointment of commissioner The Governor in Council may appoint a person to be the Health Rights Commissioner. 10 Commissioner’s functions The functions of the commissioner are— (a) to identify and review issues arising out of health service complaints; and (b) to suggest ways of improving health services and of preserving and increasing health rights; and (c) to provide information, education and advice in relation to— (i) health rights and responsibilities; and (ii) procedures for resolving health service complaints; and (d) to receive, assess and resolve health service complaints; and 1 Statutory Bodies Financial Arrangements Act 1982 , part 2B (Powers under this Act and relationship with other Acts)

s 11 14 s 12 Health Rights Commission Act 1991 (e) to encourage and assist users to resolve health service complaints directly with providers; and (f) to assist providers to develop procedures to effectively resolve health service complaints; and (g) to conciliate or investigate health service complaints; and (h) to inquire into any matter relating to health services at the Minister’s request; and (i) to advise and report to the Minister on any matter relating to health services or the administration of this Act; and (j) to provide advice to the council; and (k) to provide information, advice and reports to registration boards; and (l) to perform functions and exercise powers conferred on the commissioner under any Act. 11 Commissioner’s independence In performing functions of office mentioned in section 10(a) to (k), the commissioner is to act independently, impartially and in the public interest. 12 Qualifications for appointment (1) In the selection of a person to be appointed as commissioner, regard is to be had to the person’s knowledge, experience or demonstrated interest in relation to— (a) health services; and (b) the resolution of disputes; and (c) the needs of users; and (d) the needs of providers; and (e) the aspirations, values and special needs of special needs groups. (2) In this section—

s 13 15 s 15 Health Rights Commission Act 1991 special needs groups means particular classes of persons who, because of the nature of the classes to which they belong, may suffer disadvantage in the provision of health services unless their special needs are recognised and given attention, and includes for example— (a) Aborigines and Torres Strait Islanders; and (b) persons with disabilities; and (c) persons who— (i) can not communicate in English; or (ii) have difficulty in communicating in English; or (iii) have a cultural background significantly different to that which generally applies in the community. 13 Disqualifications from appointment (1) A person who is— (a) a registered provider; or (b) a current member of a professional association of health service providers; is not qualified to be appointed as commissioner. (2) For the purpose of subsection (1)(b), a professional association of health service providers does not include— (a) an industrial organisation; or (b) an association of health administrators. 14 Terms and conditions of appointment (1) Subject to this Act, the terms and conditions of appointment of a person as commissioner are to be determined by the Governor in Council. (2) The commissioner is to be appointed under this Act, and not under the Public Service Act 1996 . 15 Period of appointment A person may be appointed as commissioner for up to 5 years.

s 16 16 s 17 Health Rights Commission Act 1991 16 Preservation of rights (1) This section applies if a person who is an officer of the public service is appointed as commissioner. (2) The person— (a) retains all rights that have accrued to the person because of employment as an officer of the public service; and (b) is entitled to all rights that would accrue in the future to the person if the person’s service as commissioner were service as an officer of the public service. (3) If the person has not attained 65 years at the end of the person’s term of office or resignation— (a) the person is entitled to be appointed to an office in the public service at a salary level not less than the salary level, at that time, of an office equivalent to the one the person held before being appointed as commissioner; and (b) the person’s service as commissioner is to be regarded as service in the public service for the purpose of determining the person’s rights as an officer of the public service. 17 Vacancy in commissioner’s office The office of commissioner becomes vacant if the commissioner— (a) dies; or (b) resigns office by signed notice given to the Minister; or (c) becomes a registered provider or a member of a professional association of health service providers mentioned in section 13(1)(b); 2 or (d) is removed from office under section 18. 2 Section 13 (Disqualifications from appointment)

s 18 17 s 20 Health Rights Commission Act 1991 18 Removal or suspension of commissioner (1) The Governor in Council may remove a person from office as commissioner if the person— (a) becomes bankrupt or takes advantage, as a debtor, of the laws relating to bankrupt or insolvent debtors; or (b) is convicted in Queensland of an indictable offence or is convicted elsewhere in respect of an act or omission that, if it happened in Queensland, would constitute an indictable offence; or (c) is guilty of misconduct, neglect of duty or incompetence; or (d) becomes mentally or physically incapable of performing satisfactorily the duties of office. (2) For the purpose of inquiring into a matter that may warrant the removal of a person from office as commissioner, the Governor in Council may suspend the person from office for a period of not more than 6 months. 19 Grant of leave to commissioner The Minister may grant leave of absence to the commissioner on terms and conditions the Minister considers appropriate. 20 Acting commissioner (1) The Governor in Council may appoint a person to act as commissioner— (a) during a vacancy in office; or (b) during a period or all periods when the commissioner is absent from duties or from the State or is, for any reason, unable to satisfactorily perform the duties of office. (2) Sections 14 and 16 3 apply in relation to the appointment of a person to act as commissioner as they apply to the appointment of a person as commissioner. 3 Sections 14 (Terms and conditions of appointment) and 16 (Preservation of rights)

s 21 18 s 24 Health Rights Commission Act 1991 21 Crown and commissioner The commissioner represents the Crown. 22 Commission officers employed under Public Service Act The officers of the commission are to be employed under the Public Service Act 1996 . 23 Commissioner’s power to delegate The commissioner may delegate to a commission officer any of the commissioner’s powers, other than those under part 6. 4 24 Commissioner may appoint authorised persons (1) The commissioner may authorise a person mentioned in subsection (3) to exercise a power conferred by this Act on an authorised person. (2) The authorisation may be general or specific as to— (a) the person or class of person who may exercise a power; or (b) the power or class of power that may be exercised. (3) An authorised person is to be— (a) a commission officer; or (b) an officer of the public service; or (d) an officer of a public authority established under an Act administered by the Minister. (4) Before authorising a person mentioned in subsection (3)(b) or (d) to exercise a power conferred on an authorised person, the commissioner must obtain the approval of the chief executive of the public authority or department of which the person is an officer. 4 Part 6 (Conciliation)

s 25 19 s 27 Health Rights Commission Act 1991 25 Commissioner may issue identity card (1) The commissioner may issue an identity card to an authorised person. (2) The identity card is to— (a) contain a recent photograph of the authorised person; and (b) be in a form approved by the commissioner. (3) If the authorised person ceases to be an authorised person, the person is to return the card to the commissioner as soon as practicable. Maximum penalty for contravention of this subsection—2 penalty units. 26 Committees (1) For the purpose of performing any of the commissioner’s functions, the commissioner— (a) may establish a committee of persons the commissioner considers appropriate; and (b) if directed to do so by the Minister—is to establish a committee in accordance with the Minister’s direction. (2) A member of a committee is to be paid the fees and allowances (if any) for service as a member that the Governor in Council determines. 27 Cooperation with interested organisations The commissioner is to— (a) maintain effective links with— (i) providers generally; and (ii) organisations that have a demonstrated interest in the provision of health services; and (b) consult and cooperate with any public authority that has a function to protect the rights of individuals in Queensland, including for example—

s 28 20 s 31 Health Rights Commission Act 1991 (i) the ombudsman; and (ii) the Human Rights and Equal Opportunity Commission of the Commonwealth; and (iii) the Anti-Discrimination Commission. 28 Assistance to providers The commissioner may provide advice and assistance to providers in relation to the resolution of disputes or disagreements with users. 29 Commissioner’s general power The commissioner may do all things necessary or convenient to be done for the purpose of the commissioner’s functions. 30 Commissioner’s procedures informal (1) Subject to subsection (2), in performing a function and exercising a power, the commissioner— (a) is to proceed with as little formality and technicality, and with as much expedition, as is practicable; and (b) is not bound by rules or the practice of any court or tribunal as to evidence or procedure. (2) In performing a function and exercising a power, the commissioner is to have regard to the rules of natural justice. 31 Minister’s directions (1) The Minister may give a written direction to the commissioner— (a) to provide a report on a specified matter to the Minister; or (b) to establish a specified committee under section 26; or (c) to provide, or not provide, a report to the council under section 42(3); or

s 32 21 s 32 Health Rights Commission Act 1991 (d) to investigate a health service complaint under part 7, including one made by the Minister; or (e) to intervene in disciplinary proceedings against a registered provider under section 130. (2) A direction may specify a period within which, or a way in which, a direction is to be complied with. (3) The commissioner is to comply with a direction despite section 11. 5 32 Minister may direct inquiry (1) The Minister may give the commissioner a written direction to conduct an inquiry in relation to a matter— (a) consisting in a health service complaint, including one made by the Minister; or (b) concerning the provision of a health service; or (c) concerning the use of premises for the reception, care or treatment of— (i) aged persons; or (ii) persons with a mental or physical illness; or (iii) persons with a disability; or (iv) persons in receipt of pensions, allowances or benefits because of age, illness or disability. (2) Before giving the direction, the Minister is to consult with the commissioner for the purpose of determining the inquiry matter. (3) In determining the inquiry matter, the Minister is to state the purpose of the inquiry. (4) An inquiry matter is taken to include all matters arising directly or indirectly with respect to the matter. (5) The direction may include terms the Minister considers appropriate for the conduct of the inquiry, including for example— 5 Section 11 (Commissioner’s independence)

s 33 22 s 34 Health Rights Commission Act 1991 (a) the exclusion of a power under part 7 from being used for the purpose of the inquiry; or (b) the fixing of a day by which a report of the progress of the inquiry is to be provided to the Minister; or (c) the fixing of a day by which the inquiry is to be finished or a final report is to be given to the Minister. (6) The commissioner is to comply with the direction despite section 11. 33 Commission’s budget (1) The commissioner must prepare and give to the Minister a draft budget for the commission for each financial year in the form and when the Minister directs. (2) The Minister must decide the commission’s budget for the financial year. (3) The commissioner must authorise spending only under the budget decided by the Minister unless the Minister otherwise directs. 34 Annual report (1) The commissioner is to include in each annual report prepared for the commission under section 46J of the Financial Administration and Audit Act 1977 — (a) information required by the Minister; and (b) a report of any direction given to the commissioner by the Minister that relates to the financial year for which the report is prepared. (2) Subject to section 36, the commissioner may include in an annual report information, opinion and recommendations disclosing details of— (a) health service complaints, inquiry matters and offences against this Act; or (b) the progress or results of investigations into health service complaints, inquiry matters or offences against this Act.

s 35 23 s 36 Health Rights Commission Act 1991 35 Special report (1) The commissioner may, at any time, give to the Minister a report providing information in relation to the activities of the commission. (2) Subject to section 36, the commissioner may include in the report information, opinion and recommendations disclosing details of— (a) health service complaints, inquiry matters or contraventions of this Act; or (b) results of investigations into health service complaints, inquiry matters or contraventions of this Act. (3) The Minister is to lay a copy of the report before the Legislative Assembly within 10 sitting days of receiving the report. 36 Response to adverse comment (1) In an annual report or a report given to the Minister under section 35, the commissioner is not to include comment adverse to a person or body identifiable from the report unless the person or body has been given a reasonable opportunity— (a) to make submissions to the commissioner in relation to the comment; and (b) to give a written statement to the commissioner in relation to the comment. (2) If the person or body who provides a written statement under subsection (1)(b) requests that the statement be included in the report, the commissioner is to include the statement, or a fair summary of the statement, in the report.

s 37 24 s 39 Health Rights Commission Act 1991 Part 3 Development of code 37 Code of Health Rights and Responsibilities (1) Within 3 years after the commencement of this Act, the commissioner is to develop a Code of Health Rights and Responsibilities for the consideration of the Minister. (2) The commissioner is to report to the Minister on the progress of the development of the code at intervals of not more than 1 year until it is given to the Minister for consideration. 38 Consultation on code In developing the Code of Health Rights and Responsibilities, the commissioner is to— (a) consult with the council; and (b) invite submissions from and consult with interested persons and bodies to the extent necessary to ensure that a wide range of views is available in the development of the code. 39 Content of code (1) In developing the Code of Health Rights and Responsibilities, the commissioner is to consider and make recommendations to the Minister, in relation to its content, application, enforcement and regular review. (2) In developing the content of the code, the commissioner— (a) may have regard to all matters relevant to the provision and use of health services; and (b) is to have regard to the principles mentioned in subsection (3). (3) The principles to which the commissioner is to have regard in determining the content of the code are— (a) that an individual should be entitled to participate effectively in decisions about the individual’s health; and

s 40 25 s 41 Health Rights Commission Act 1991 (b) that an individual should be entitled to take an active role in the individual’s health care; and (c) that an individual should be entitled to be provided with health services in a considerate way that takes into account the individual’s background, needs and wishes; and (d) that an individual who— (i) provides a health service; or (ii) provides care for another individual receiving a health service; should be given consideration and recognition for the contribution the individual makes to health care; and (e) that the confidentiality of information about an individual’s health should be preserved; and (f) that an individual should be entitled to reasonable access to records concerning the individual’s health; and (g) that an individual should be entitled to reasonable access to procedures for the redress of grievances with respect to the provision of health services. Part 4 Health Rights Advisory Council 40 Establishment of council A council called the Health Rights Advisory Council is established. 41 Council’s functions The functions of the council are— (a) to advise the Minister in relation to— (i) the redress of grievances relating to health services; and

s 42 26 s 42 Health Rights Commission Act 1991 (ii) the means of advising, educating and informing providers and users of health services; and (iii) the general operation of the commission; and (iv) any matter on which the Minister requests advice; and (b) to advise the commissioner in relation to the redress of health service complaints generally; and (c) to refer matters relating to health service complaints to the commissioner for advice. 42 Commissioner to report to council (1) Subject to subsections (2) and (3), the commissioner, if requested to do so in writing by the council, is to report in writing to the council on any specified matter relating to the operation of the commission. (2) The commissioner may decline to provide the report and refer the request to the Minister for directions if the commissioner considers that the disclosure of the report to the council would be— (a) unlawful; or (b) in breach of confidence; or (c) contrary to the public interest; or (d) detrimental to conciliation; or (e) detrimental to the performance of the commissioner’s functions. (3) The Minister is to consider the council’s request and— (a) if the Minister considers that the report should not be provided to the council for a reason mentioned in subsection (2)(a) to (e)—the Minister is to direct the commissioner in writing not to provide the report; and (b) in any other case—the Minister is to direct the commissioner in writing to provide the report.

s 43 27 s 45 Health Rights Commission Act 1991 43 Council’s general power Subject to this Act, the council may do all things necessary or reasonably required to be done in connection with, or incidental to, the discharge of its functions. 44 Membership of council (1) The council is to consist of 6 members namely— (a) 2 members appointed to represent the interests of providers; and (b) 2 members appointed to represent the interests of users; and (c) 2 other members. (2) A member of the council is to be appointed by the Minister and holds office, subject to this Act, for the term specified in the instrument of appointment. 45 Vacation of member’s office The office of a member of the council becomes vacant— (a) if the member’s term of office expires; or (b) if the member dies; or (c) if the member resigns by signed notice given to the Minister; or (d) if— (i) the member is absent, without reasonable cause, from 3 consecutive meetings of the council after being given notice of the meetings; and (ii) is not, within 6 weeks after the last meeting, excused by the council for the absence; or (e) if the member is removed from office under section 46.

s 46 28 s 51 Health Rights Commission Act 1991 46 Removal of member from office The Minister may remove a member of the council from office as member for any reason the Minister considers sufficient. 47 President (1) The Minister is to appoint 1 of the members of the council as president of the council. (2) The appointment may be by the instrument by which the person appointed as president is appointed as a member or by another instrument. 48 Vacation of president’s office (1) The office of president becomes vacant if the president— (a) ceases to be a member of the council; or (b) resigns office as president by notice given to the Minister; or (c) is removed from office as president under section 49. (2) The president may resign office as president without resigning office as a member of the council. 49 Removal of president from office The Minister may remove a person from office as president of the council for any reason the Minister considers sufficient. 50 Minister to appoint to vacancies If a vacancy in the office of a member or the president happens, the Minister is to appoint a person to the vacancy so that the council is constituted as required by sections 44 and 47. 51 Council meetings (1) The procedure—

s 52 29 s 54 Health Rights Commission Act 1991 (a) for the calling of council meetings; and (b) for the conduct of business at council meetings; subject to this Act, is to be as determined by the council. (2) The president of the council or, in the absence of the president, a member chosen by the members present at the meeting to act as president, may preside at any meeting of the council. (3) Three members form a quorum at a meeting of the council. (4) A duly convened meeting of the council at which a quorum is present is competent to transact the business of the council and perform all its functions. (5) The person presiding at a meeting of the council, in the event of an equality of votes, has in addition to a deliberative vote, a second or casting vote. (6) A decision supported by a majority of the votes of the members present and voting at a meeting of the council is the decision of the council. 52 Minister may call meeting (1) The Minister may direct the council to convene a meeting in order to consider a matter specified by the Minister. (2) The council is to comply with the Minister’s direction. 53 Minutes The council is to keep written minutes of its meetings. 54 Dissenting opinion to be reported (1) A member of the council attending a meeting of the council who objects to a decision made at the meeting in relation to the provision of advice to the Minister on a matter may require the member’s objection, and the member’s reasons for the objection, to be— (a) recorded in the minutes of the meeting; and

s 55 30 s 56 Health Rights Commission Act 1991 (b) reported in writing to the Minister when the advice is provided. (2) The council is to comply with the requirement. 55 Disclosure of interests (1) If a pecuniary interest of a member of the council in a matter that is to be considered by the council is such that it could conflict, or be seen to conflict, with the proper performance of the member’s duties of office, the member is to disclose the interest to the council. (2) The disclosure is to be made— (a) as soon as practicable after the relevant facts come to the member’s knowledge; and (b) at a meeting of the council. (3) A record of the disclosure is to be made in the minutes of the meeting. (4) Unless the council otherwise determines, the member is not— (a) to be present at the deliberations of the council concerning the matter; or (b) to take part in the council’s decision in relation to the matter. (5) In this section— pecuniary interest means a direct or indirect pecuniary interest, but does not include an interest that a member holds in common with other members of a calling, or section of a calling, to which the member belongs. Maximum penalty—20 penalty units. 56 Fees and allowances A member of the council is to be paid the fees and allowances (if any) for services as a member that the Governor in Council determines.

s 57 31 s 57 Health Rights Commission Act 1991 Part 5 Complaints Division 1 Health service complaints 57 Health service complaint (1) A complaint may be made to the commissioner— (a) that a provider has acted unreasonably by not providing a health service for a user; or (b) that a provider has acted unreasonably in the way of providing a health service for a user; or (c) that a provider has acted unreasonably in providing a health service for a user; or (d) that a provider has acted unreasonably by denying or restricting a user’s access to records relating to the user in the provider’s possession; or (e) that a provider has acted unreasonably in disclosing information in relation to a user; or (f) that a registered provider acted in a way that would provide a ground for disciplinary action against the provider under the Health Practitioners (Professional Standards) Act 1999 ; or (g) that a provider acted in a way that would provide a ground for making a complaint against the provider under the Nursing Act 1992 , section 102; 6 or (h) that a public or private body that provides a health service has acted unreasonably by— (i) not properly investigating; or (ii) not taking proper action in relation to; a complaint made to the body by a user about a provider’s action of a kind mentioned in paragraphs (a) to (g). 6 Nursing Act 1992 , section 102 (Complaints concerning conduct)

s 58 32 s 58 Health Rights Commission Act 1991 (2) In determining for any purpose under this Act whether a provider has acted unreasonably as mentioned in subsection (1)(a) to (e) or (h), the commissioner is to have regard to— (a) the principles mentioned in section 39(3); 7 and (b) the generally accepted standards of health services expected of providers of that kind. 58 Commissioner may deal with complaint as 2 or more complaints (1) This section applies if— (a) a health service complaint is about more than 1 provider; or (b) a health service complaint contains more than 1 allegation about the same provider; or (c) a health service complaint is about more than 1 health service event involving the same health care provider; or (d) the health service complaint is a complaint that the commissioner otherwise reasonably believes should be dealt with as 2 or more complaints. Example for subsection (1)(a)— The health service complaint by the person is about the treatment received for the person’s broken leg from the person’s local medical practitioner and also a specialist medical practitioner at a public hospital. Example for subsection (1)(b)— The health service complaint by the person is that in the course of an examination a physiotherapist touched the person inappropriately and failed to diagnose the person’s condition correctly. Example for subsection (1)(c) — The health service complaint by the person is that a week after attending a dentist in March for a filling, the filling fell out and 3 weeks after visiting the same dentist in July the same year for a check up, urgent dental work was required to remove another tooth that was in a state of advance decay and was not identified. 7 Section 39 (Content of code)

s 58 33 s 58 Health Rights Commission Act 1991 (2) The commissioner may decide to deal with the complaint as if it were 2 or more complaints, including, for example, by dealing with it as— (a) separate complaints about more than 1 provider; or (b) if the complaint contains more than 1 allegation about the same provider, separate complaints for each allegation; or (c) separate complaints about more than 1 health service event. (3) If the commissioner decides to deal with a health service complaint as if it were 2 or more separate complaints, the commissioner must deal with the complaints (the separate complaints ) as if each of the separate complaints had been made as health service complaints under this part. (4) However, the commissioner must not conciliate a separate complaint until the commissioner has received— (a) for a complaint about a registered provider being dealt with by a registration board other than the Queensland Nursing Council—a notice about the complaint under the Health Practitioners (Professional Standards) Act 1999 , section 383; 8 or (b) for a complaint about a registered provider being dealt with by the Queensland Nursing Council—a notice about the complaint under the Nursing Act 1992 , section 118A; 9 or (c) for a complaint about a registered provider being dealt with by another relevant entity—a report about the complaint under section 74(8); or (d) for a complaint about another provider—a report about the complaint under section 73(5). (5) Subsection (4) does not apply if— 8 Health Practitioners (Professional Standards) Act 1999 , section 383 (Board to give notice to commissioner at end of dealing with complaint) 9 Nursing Act 1992 , section 118A (Council to give notice to commissioner at end of dealing with matter)

s 59 34 s 60 Health Rights Commission Act 1991 (a) the provider has agreed to conciliation for the sole purpose of arranging a financial settlement or other compensation with the user; and (b) the commissioner and the registration board or other entity conducting the investigation or disciplinary or other proceedings for the complaint from which the separate complaint was separated agree that the conciliation will not compromise or interfere with the investigation or disciplinary or other proceedings. (6) In this section— health service event means each occasion when a health service is provided. 59 Who may complain (1) A health service complaint may be made to the commissioner by— (a) the user; or (b) a person mentioned in section 61(1), (3) or (4) acting on behalf of the user; or (c) the Minister; or (d) if the commissioner considers that the public interest requires that a person other than a person mentioned in paragraph (a), (b) or (c) should be permitted to make a health service complaint—that person. (2) The Minister may make a health service complaint despite a previous health service complaint having been made in relation to the same matter by another person. 60 Complaints about persons who are no longer registered providers (1) This section applies if— (a) the commissioner receives a complaint about a person who was a registered provider; and (b) the complaint relates to the conduct or practice of the person as a registered provider; and

s 61 35 s 61 Health Rights Commission Act 1991 (c) the person is no longer registered. (2) The commissioner must deal with the complaint as if the complaint were a health service complaint about a registered provider. (3) This Act applies, with any necessary changes, to the person about whom the complaint was made as if a reference to a registered provider included the person. 61 Representative complaints (1) Subject to subsections (3) to (5), a health service complaint may only be made to the commissioner by a person acting on behalf of the user if the commissioner is satisfied that it would be difficult or impossible for the user to make the complaint personally. (2) The person making the health service complaint on behalf of the user is to be— (a) a person that the commissioner is satisfied has been chosen by the user; or (b) if the commissioner is satisfied that it would be difficult or impossible for the user to choose anybody to make a complaint in the user’s place—a person the commissioner is satisfied has a sufficient interest. (3) Any of the following persons may make a health service complaint on behalf of a user who has impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000 — (a) an attorney for the user under an enduring power of attorney, or advance health directive, under the Powers of Attorney Act 1998 ; (b) a statutory health attorney under the Powers of Attorney Act 1998 ; (c) a guardian for the user under the Guardianship and Administration Act 2000 ; (d) the adult guardian under the Guardianship and Administration Act 2000.

s 62 36 s 64 Health Rights Commission Act 1991 (4) Also, a health service complaint may be made by a person on behalf of a user, after the user’s death, if the commissioner is satisfied the person has a sufficient interest. (5) A person may be substituted as the complainant for a health service complaint if— (a) the original complainant dies; and (b) the commissioner is satisfied the person has a sufficient interest. 62 How to make a health service complaint A person may make a health service complaint to the commissioner— (a) orally, either in person or by any form of distance communication; or (b) in writing given to the commissioner. 63 Oral complaints to be confirmed in writing (1) If a person makes a health service complaint orally to the commissioner, the commissioner is to require the person to confirm the complaint in writing unless the person satisfies the commissioner that there is good reason that the complaint need not be confirmed in writing. (2) The commissioner is to fix a reasonable time within which the health service complaint is to be confirmed in writing. 64 Complainant to reveal identity (1) A complainant is to provide to the commissioner— (a) the complainant’s name and address; and (b) other information relating to the complainant’s identity that the commissioner may reasonably require; unless subsection (3) applies. (2) The commissioner may choose to keep information provided by a complainant under subsection (1) confidential if— (a) there are special circumstances; and

s 65 37 s 67 Health Rights Commission Act 1991 (b) the commissioner thinks it is in the complainant’s interests to do so. (3) The commissioner may accept an anonymous health service complaint in the public interest. 65 Further information from complainant The commissioner may request a complainant to provide more information about the complaint within a reasonable time fixed by the commissioner. 66 Commissioner may require affidavit The commissioner may at any time require a health service complaint or information provided by a complainant to be verified by the complainant by oath or affidavit. Division 2 Assessment of health service complaints 67 Commissioner to immediately assess all health service complaints (1) The commissioner must immediately assess a health service complaint. (2) However, the commissioner must not start the assessment until— (a) the commissioner is satisfied the complainant is eligible to make the complaint under section 59 or 61; 10 and (b) if the complaint was made orally—the complainant confirms it in writing or the commissioner decides under section 63(1) that there is good reason that the complaint need not be confirmed in writing; and (c) the complainant provides the commissioner with the information required under section 64(1) or the 10 Section 59 (Who may complain) or 61 (Representative complaints)

s 68 38 s 68 Health Rights Commission Act 1991 commissioner decides to accept the complaint under section 64(3); and (d) if the commissioner requests further information about the complaint under section 65 or requires the complaint or further information to be verified by affidavit under section 66—the complainant complies with the request or requirement. (3) Also, this section is subject to sections 68 and 77. 11 68 Commissioner may refer complaint to registration board without assessment (1) This section applies if— (a) the commissioner receives a health service complaint about a registered provider; and (b) the commissioner considers that it is in the public interest for the complaint to be immediately referred to the registered provider’s registration board; and (c) after consulting with the registration board about the complaint, the board agrees it is in the public interest for the board to immediately deal with the complaint. (2) The commissioner— (a) must refer the health service complaint to the registered provider’s registration board; and (b) must not take any further action in relation to the complaint. (3) If the commissioner refers the complaint to the registered provider’s registration board, the commissioner must give written notice of the referral to the complainant and the registered provider within 14 days after the referral. 11 Section 77 (Duty to immediately refer certain complaints to registration board)

s 69 39 s 70 Health Rights Commission Act 1991 69 Notices of decision to assess complaint (1) Within 14 days of starting the assessment of a health service complaint, the commissioner must give notice that the complaint is being assessed to— (a) the complainant; and (b) the provider to whom the complaint relates; and (c) if the provider is a registered provider—the registered provider’s registration board. (2) The notice to the registration board must be accompanied by a copy of the complaint. (3) This section is subject to section 133. 12 70 Submissions about health service complaint (1) In assessing the health service complaint, the commissioner— (a) may invite submissions from the complainant or the provider about the complaint by written notice, including, for example, by the notice mentioned in section 69; and (b) if the complaint relates to a registered provider—must invite submissions from the registered provider’s registration board. (2) The notice must state— (a) for a notice to a provider—the day, not less than 7 days after receipt of the notice, by which the provider must advise the commissioner if the provider intends to make a submission; and (b) for a notice to any other person—the day, not less than 14 days after receipt of the notice, by which the submissions must be given to the commissioner. (3) A provider who is invited to provide submissions must, within the period stated in the notice, advise the commissioner whether the provider intends to make a submission. 12 Section 133 (Dispensing with notice)

s 71 40 s 71 Health Rights Commission Act 1991 (4) If a provider advises the commissioner that the provider intends to make a submission, the provider may only make a submission within the period stated in the notice. (5) If a submission is made within the time provided under this section, by the complainant, provider or, if relevant, the registration board, the commissioner must have regard to the submissions in assessing the health service complaint. (6) The registration board may delegate its power to make submissions about the health service complaint to— (a) a board member; or (b) a committee of the board; or (c) the executive officer of the Office of Health Practitioner Registration Boards appointed under the Health Practitioner Registration Boards (Administration) Act 1999 ; or (d) with the executive officer’s agreement—another member of the staff of the Office of Health Practitioner Registration Boards. 71 Assessment of complaint (1) On assessing a health service complaint, the commissioner is to— (a) make a decision to accept the complaint for action; or (b) make a decision not to take action on the complaint under section 79. (2) Before deciding to accept a health service complaint for action, the commissioner is to be satisfied— (a) that all reasonable steps have been taken by the complainant to resolve the complaint with the provider; or (b) that a reasonable opportunity has been given to the complainant to resolve the complaint with the provider; or

s 71 41 s 71 Health Rights Commission Act 1991 (c) that it is not practicable for steps mentioned in paragraph (a) to be taken or for the opportunity mentioned in paragraph (b) to be given. (3) Also, before making a decision under subsection (1) about a complaint about a registered health provider, the commissioner must consult with the provider’s registration board about the complaint. (4) The consultation between the commissioner and the registration board may be in the form of a standing arrangement or more specific consultation. (5) The registered provider’s registration board must give the commissioner the board’s comments about the complaint within— (a) 14 days of the commissioner consulting with the board; or (b) a longer period agreed to by the commissioner. (6) The commissioner— (a) must not take any action about the complaint until the first of the following happens— (i) the commissioner receives the registration board’s comments about the complaint; (ii) the registration board advises the commissioner that the board does not intend to give the commissioner comments about the complaint; (iii) the period mentioned in subsection (5) for the registration board to provide comments has ended; and (b) must have regard to any comments made by the registration board in making a decision about the action to be taken in relation to the complaint. (7) The commissioner must not decide not to take action on the complaint under section 79 if the registered provider’s registration board has advised the commissioner it considers the complaint warrants investigation or other action by the board.

s 72 42 s 73 Health Rights Commission Act 1991 72 Notice of assessment decision (1) Subject to section 133, 13 the commissioner is to give notice of the commissioner’s decision on assessing a health service complaint under section 71 to the complainant and the provider. (2) If the decision is to take action on the complaint, the notice is to state the action the commissioner has decided to take under section 73 or 74. (3) If the decision is not to take action on the complaint, the notice given to the complainant is to state the grounds of the decision. 73 Action on acceptance of complaint about provider other than registered provider (1) This section applies if the commissioner decides under section 71 to accept a health service complaint about a provider for action, other than a complaint about a registered provider. (2) The commissioner may take 1 or more of the following actions— (a) conciliate the health service complaint under part 6; (b) investigate the health service complaint under part 7; (c) refer the health service complaint to another entity. (3) Subject to subsections (6) and (7), the commissioner is to try to resolve the complaint by conciliation if the commissioner considers it can be resolved in that way. (4) In deciding whether to conciliate the health service complaint, the commissioner must take into account the public interest. (5) If the commissioner refers the health service complaint to another entity, the entity— (a) must, if requested by the commissioner, provide the commissioner with reports about the progress and results of the action taken by the entity about the complaint; and 13 Section 133 (Dispensing with notice)

s 74 43 s 74 Health Rights Commission Act 1991 (b) may provide the commissioner with any other reports about the progress and results of the action taken by the entity about the complaint as it considers appropriate; and (c) must, within 28 days after ceasing to deal with the complaint, give the commissioner a written report of the results of the action taken by the entity about the complaint. (6) The commissioner must not start a conciliation of a complaint that has been referred to another entity until the commissioner receives the entity’s report under subsection (5)(c). (7) However, the commissioner may start the conciliation of the complaint before receiving notice from the entity if— (a) the provider has agreed to conciliation for the sole purpose of arranging a financial settlement or other compensation with the user; and (b) the commissioner and the entity agree that the conciliation will not compromise or interfere with the entity’s action in relation to the complaint. 74 Action on acceptance of complaint about registered provider (1) This section applies if the commissioner decides under section 71 to accept a health service complaint about a registered provider for action. (2) The commissioner— (a) if the commissioner and the registered provider’s registration board agree that the complaint requires investigation or other action by the board—must immediately refer the complaint to the board; or (b) if either the commissioner or the registered provider’s registration board, but not both, consider that the complaint should be referred to the board—must immediately refer the complaint to the Minister; or (c) if neither paragraph (a) nor (b) applies—

s 74 44 s 74 Health Rights Commission Act 1991 (i) may refer the complaint to another entity (a relevant entity ); or (ii) may conciliate the complaint under part 6. (3) If the commissioner takes action under subsection (2)(a) or (b) the commissioner may decide to also take action under subsection (2)(c)(i) or (ii) or both. (4) Subject to subsection (5) and section 75, the commissioner is to try to resolve the complaint by conciliation if the commissioner considers it can be resolved in that way. (5) In deciding whether to conciliate a complaint, the commissioner must take into account the public interest. (6) If the commissioner refers a complaint to a registration board, the commissioner must, at the time of the referral, advise the registration board if the commissioner intends to conciliate the complaint, or a complaint from which it was separated under section 58, 14 after the board has finished dealing with it. (7) If the commissioner refers the complaint to the Minister— (a) the commissioner must ensure the Minister is fully informed about the commissioner’s and board’s views about why the complaint does or does not require referral to the board; and (b) the Minister must, as soon as practicable after the complaint is referred, decide whether the complaint requires referral to the registration board and inform the commissioner of the decision; and (c) the commissioner must immediately refer the complaint to the registration board if the Minister informs the commissioner that the complaint should be referred. (8) If the commissioner refers the complaint to a relevant entity, the entity— (a) must, if asked by the commissioner, provide the commissioner with reports about the progress and results of the action taken by the entity about the complaint; and 14 Section 58 (Commissioner may deal with complaint as 2 or more complaints)

s 75 45 s 75 Health Rights Commission Act 1991 (b) may provide the commissioner with any other reports about the progress and results of the action taken by the entity about the complaint as it considers appropriate; and (c) must, within 28 days after ceasing to deal with the complaint, give the commissioner a written report of the results of the action taken by the entity about the complaint. 75 Conciliation of complaints referred under s 74 (1) The commissioner must not start a conciliation of a complaint that has been referred to a registration board or a relevant entity until the board or entity under section 74 gives the commissioner— (a) for a registration board other than Queensland Nursing Council—a notice under the Health Practitioners (Professional Standards) Act 1999 , section 383; 15 or (b) for the Queensland Nursing Council—a notice under the Nursing Act 1992 , section 118A; 16 or (c) for a relevant entity—a report under section 74. (2) However, the commissioner may start the conciliation of the complaint before receiving notice from the registration board or relevant entity that it has finished with the matter if— (a) the provider has agreed to conciliation for the sole purpose of arranging a financial settlement or other compensation with the user; and (b) if the complaint has been referred to a registration board—the commissioner and the board agree that the conciliation will not compromise or interfere with the board’s actions in relation to the complaint; and (c) if the complaint has been referred to a relevant entity—the commissioner and the entity agree that the 15 Health Practitioners (Professional Standards) Act 1999 , section 383 (Board to give notice to commissioner at end of dealing with complaint) 16 Nursing Act 1992 , section 118A (Council to give notice to commissioner at end of dealing with matter)

s 76 46 s 77 Health Rights Commission Act 1991 conciliation will not compromise or interfere with the entity’s actions in relation to the complaint. 76 Time limit on assessment (1) The commissioner is to assess a health service complaint under section 71— (a) within 60 days of starting the assessment; 17 or (b) within a further period determined by the commissioner under subsection (3). (2) However, if the commissioner is required to consult with a registration board about the complaint under section 71(3), the period in which the commissioner must assess the complaint is extended by a period equal to the period taken to carry out the consultation. (3) For subsection (1)(b), the commissioner may decide to extend the period for assessing a health service complaint, by a period of not more than 30 days, if the commissioner considers— (a) the complaint is too complex to allow the commissioner to assess the complaint within 60 days of starting the assessment; or (b) the complaint can be satisfactorily resolved other than under part 6 or 7; or (c) information the commissioner has requested from the user, provider or any other person can not be reasonably provided within the time allowed under subsection (1), but may be provided within the extended period. 77 Duty to immediately refer certain complaints to registration board (1) This section applies if— (a) the commissioner receives a health service complaint about a registered provider; and 17 See section 67 which provides that the commissioner must not start an assessment until satisfied of certain matters.

s 77 47 s 77 Health Rights Commission Act 1991 (b) on receipt of the complaint, or at any time after receipt, the commissioner believes— (i) the registered provider poses an imminent threat to the life, physical or psychological health, safety or welfare of users of the provider’s services or another person or class of persons or the registered provider; and (ii) immediate action to suspend, or impose conditions on, the registered provider’s registration appears necessary to protect the person or persons under subparagraph (i). (2) The commission must immediately refer the complaint to the registered provider’s registration board. (3) If the commissioner refers a complaint to a registration board, the commissioner must, at the time of the referral, advise the registration board if the commissioner intends to conciliate the complaint, or a complaint from which it was separated under section 58, after the board has finished dealing with it. (4) The commissioner must not start a conciliation of a complaint referred to a registration board until the board gives the commissioner— (a) for a registration board other than the Queensland Nursing Council—a notice under the Health Practitioners (Professional Standards) Act 1999 , section 383; and (b) for the Queensland Nursing Council—a notice under the Nursing Act 1992 , section 118A. (5) Subject to section 133, 18 the commissioner must, within 14 days of referring the complaint to the board, give written notice of the referral— (a) to the provider; and (b) to the complainant. 18 Section 133 (Dispensing with notice)

s 78 48 s 79 Health Rights Commission Act 1991 78 Commissioner’s powers during assessment (1) In relation to every health service complaint that the commissioner receives, the commissioner may— (a) exercise powers under sections 63, 65 and 66; 19 and (b) seek and obtain information the commissioner considers appropriate; and (c) attempt by whatever means the commissioner considers appropriate to resolve the complaint, including for example by requesting any person the commissioner considers is in a position to do so to assist the resolution of the complaint. (2) Subsection (1)(b) does not authorise the use of a power conferred by part 7. 79 Decisions not to take action (1) The commissioner is to decide not to take action on a health service complaint if the commissioner considers that the complaint— (a) is frivolous, vexatious or trivial; or (b) is misconceived or lacking in substance; or (c) has been adequately dealt with by the commission or another public authority. (2) The commissioner is to decide not to take action on a health service complaint if the commissioner considers that the complainant has failed, without reasonable excuse, to satisfactorily cooperate with attempts made or arranged by the commissioner to resolve the complaint with the provider. (3) If an issue raised in a health service complaint has already been determined by an appropriate tribunal after the tribunal has considered the matters to which the complaint relates, the commissioner is to decide not to take action on the complaint to the extent that it attempts to reopen the issue. 19 Sections 63 (Oral complaints to be confirmed in writing), 65 (Further information from complainant) and 66 (Commissioner may require affidavit)

s 79 49 s 79 Health Rights Commission Act 1991 (4) The commissioner is to decide not to take action on a health service complaint if the user has commenced a civil proceeding seeking redress for the matter of the complaint and a court has begun to hear the matter. (5) The commissioner is to decide not to take action on a health service complaint if— (a) the matter of complaint arose more than 1 year before the complaint was made to the commissioner; and (b) the person who made the complaint was aware of the matter of complaint more than 1 year before making the complaint to the commissioner. (6) However, subsection (5) does not apply to a health service complaint about a matter that the commissioner reasonably believes may warrant the suspension or cancellation of a registered provider’s registration. (7) The commissioner may decide not to take action on a health service complaint if the complainant fails to comply with a request by the commissioner— (a) to confirm the complaint in writing; or (b) to give the commissioner more information concerning the person’s identity; or (c) to give more information to the commissioner within the time fixed by the commissioner; or (d) to verify the complaint or any information by oath or affidavit. (8) The commissioner may decide not to take action on a health service complaint if the complaint has been resolved since it was made. (9) The commissioner may decide not to take action on a health service complaint if the complainant withdraws the complaint. (10) The commissioner may decide not to take action on a health service complaint if the complaint has been conciliated. (11) In this section— appropriate tribunal , in relation to an issue mentioned in subsection (3), means—

s 80 50 s 81 Health Rights Commission Act 1991 (a) a court; or (b) an industrial tribunal; or (c) a disciplinary body; or (d) another tribunal authorised to determine the issue at law. Division 3 General 80 General powers to gather information and facilitate resolution of complaints (1) The commissioner may, at any time, in relation to any health service complaint— (a) seek and obtain the information the commissioner considers appropriate; and (b) attempt, by whatever lawful means the commissioner considers appropriate, to resolve the complaint, including, for example, by asking any person the commissioner considers may assist in the resolution of the complaint to provide assistance. Example of when power may be used — The commissioner may decide to use this power before the commissioner starts the assessment of the complaint under section 67. 20 (2) Subsection (1)(b) does not authorise the use of a power conferred by part 7. 21 Part 6 Conciliation 81 Appointment of conciliator The commissioner may appoint a person to be a conciliator for the purpose of this Act. 20 Section 67 (Commissioner to immediately assess all health service complaints) 21 Part 7 (Investigation)

s 82 51 s 85 Health Rights Commission Act 1991 82 Conciliators functions exclusive Only a conciliator may perform the function of conciliation under this part. 83 Conciliation to be separately performed A commission officer who is a conciliator is not to be involved in the investigation of health service complaints. 84 Conciliation function (1) The conciliation of a health service complaint is to be performed by 1 or more conciliators assigned by the commissioner. (2) A conciliator’s function is to encourage the settlement of the health service complaint by— (a) arranging negotiations between the provider and the complainant in question; and (b) assisting in the conduct of the negotiations; and (c) assisting the provider and the complainant to reach agreement; and (d) assisting in the resolution of the complaint in any other way. 85 Public interest (1) Before the conciliation of a health service complaint starts, the commissioner is to identify and inform the conciliator of any issue raised by the complaint that the commissioner considers involves the public interest. (2) At the start of the conciliation, the conciliator is to draw those issues to the attention of the parties. (3) In the course of the conciliation, at times the conciliator considers appropriate, the conciliator is to draw to the attention of the parties any issues involving the public interest that the conciliator considers are raised by the health service complaint.

s 85 52 s 85 Health Rights Commission Act 1991 (4) The conciliator is to report to the commissioner any issue involving the public interest that the conciliator considers is raised by the health service complaint, unless the issue has already been identified by the commissioner. (5) On receiving a report under subsection (4) or otherwise becoming aware of an issue involving the public interest, the commissioner may— (a) for a complaint about a registered provider—refer it to the registered provider’s registration board or another entity; or (b) for a complaint about a provider other than a registered provider—investigate it under part 7 or refer it to another entity. (6) The commissioner must not refer a health service complaint to a registration board or another entity without first consulting the registration board or other entity. (7) A consultation under subsection (6) may be in the form of a standing arrangement between the commissioner and the board or may be more specific. (8) If the commissioner refers a complaint to a registration board or other entity, the commissioner must, at the time of the referral, advise the registration board or entity if the commissioner intends to continue to conciliate the complaint, or a complaint from which it was separated under section 58, after the board or entity has finished dealing with it. (9) The commissioner must not continue a conciliation of a complaint referred to a registration board or other entity until the board or entity gives the commissioner— (a) for a registration board other than the Queensland Nursing Council—a notice under the Health Practitioners (Professional Standards) Act 1999 , section 383; or (b) for the Queensland Nursing Council—a notice under the Nursing Act 1992 , section 118A; or (c) for another entity—notice that the entity has finished dealing with the complaint.

s 86 53 s 87 Health Rights Commission Act 1991 (10) However, the commissioner may continue a conciliation of the complaint before receiving notice from the registration board or other entity that it has finished dealing with the matter if— (a) the provider has agreed to conciliation for the sole purpose of arranging a financial settlement or other compensation with the user; and (b) if the complaint has been referred to a registration board—the commissioner and the board agree that the conciliation will not compromise or interfere with the board’s actions in relation to the complaint; and (c) if the complaint has been referred to another entity—the commissioner and the entity agree that the conciliation will not compromise or interfere with the entity’s actions in relation to the complaint. (11) Subject to section 133, 22 the commissioner must, within 14 days of referring the complaint to the board or other entity, give written notice of the referral— (a) to the provider; and (b) to the complainant. 86 Progress reports from conciliator The conciliator of a health service complaint is to give to the commissioner any written report of the progress of the conciliation that the commissioner may request during the conciliation. 87 Results report from conciliator (1) At the conclusion of the conciliation of a health service complaint, the conciliator is to give a written report of the results of the conciliation to the commissioner. (2) If agreement is reached, the report is to include details of the agreement. (3) If agreement is not reached, the report— 22 Section 133 (Dispensing with notice)

s 88 54 s 89 Health Rights Commission Act 1991 (a) may recommend the action the commissioner should take under section 90(2); or (b) may make no recommendation. (4) The conciliator is to give a copy of the report to the provider and the complainant in question, if practicable on the same day as the report is given to the commissioner. 88 Action on report of unsuccessful conciliation (1) On receiving a report under section 87 that agreement was not reached in the conciliation of a health service complaint, the commissioner may— (a) take action on the complaint by— (i) for a complaint about a registered provider—referring it to the registered provider’s registration board or another entity; or (ii) for a complaint about a provider other than a registered provider investigating it under part 7 or referring it to another entity; or (b) decide under section 79 not to take action on the health service complaint; or (c) further conciliate the complaint. (2) The commissioner must not refer a health service complaint to a registration board or another entity without first consulting the registration board or other entity. (3) A consultation under subsection (2) may be in the form of a standing arrangement between the commissioner and the board or may be more specific. 89 Enforceable agreement (1) Parties reaching agreement in the conciliation of a health service complaint may enter a contract in settlement of the complaint. (2) The conciliator of the health service complaint is not to be a party to, or to attest, the contract.

s 90 55 s 91 Health Rights Commission Act 1991 (3) Subject to section 91, a contravention of subsection (2) does not affect the enforceability of the contract. 90 Commissioner may end conciliation (1) If the commissioner considers that a health service complaint that is the subject of a conciliation can not be resolved in that way, the commissioner may end the conciliation. (2) The commissioner may then— (a) take action on the complaint by— (i) for a complaint about a registered provider—referring it to the registered provider’s registration board or another entity; or (ii) for a complaint about a provider other than a registered provider—investigating it under part 7 or referring it to a another entity; or (b) decide under section 79 not to take action on the health service complaint. (3) The commissioner must not refer a health service complaint to a registration board or another entity without first consulting the registration board or other entity. (4) A consultation under subsection (3) may be in the form of a standing arrangement between the commissioner and the board or may be more specific. (5) The commissioner is to end the conciliation of a health service complaint if the Minister directs the commissioner under section 31 to investigate the complaint or under section 32 to conduct an inquiry in relation to the complaint. 91 Conciliation privileged (1) Anything said or admitted during conciliation— (a) is not admissible as evidence in a proceeding before a court, tribunal or disciplinary body; and (b) can not be used by the commissioner as a ground for investigation or inquiry.

s 92 56 s 93 Health Rights Commission Act 1991 (2) For example, anything said or admitted during a conciliation of a health service complaint can not be admitted in a proceeding to enforce a contract mentioned in section 89. (3) A document, or a copy of the document, prepared for, or in the course of, the conciliation— (a) is not admissible in any proceedings before a court, tribunal or disciplinary body; and (b) can not be used by the commissioner as a ground for an investigation or inquiry. (4) This section does not apply to evidence or a document if— (a) the persons who attended, or were named, during the conciliation consent to the admission of the evidence; or (b) for a document—the person who prepared the document, and all persons named in the document, consent to admission of the document. 92 Confidentiality of conciliation (1) A conciliator is not to disclose information gained during conciliation— (a) in any further conciliation; or (b) to any person appointed, employed or engaged for the purposes of this Act; unless the disclosure is authorised under this part. Maximum penalty—40 penalty units. (2) Subsection (1)(b) does not apply to the discussion by a conciliator of matters arising in relation to the performance of the conciliator’s functions with another conciliator or the commissioner. 93 Professional mentor (1) The commissioner is to ensure, to the extent practicable, that each conciliator is advised in the performance of the conciliator’s functions by persons with knowledge or experience in the field of dispute resolution (a professional mentor ).

s 94 57 s 95 Health Rights Commission Act 1991 (2) A conciliator may discuss all matters arising in relation to the performance of the conciliator’s functions with the conciliator’s professional mentor. (3) A professional mentor is not to be involved in the investigation of health service complaints. (4) A conciliator’s professional mentor is not to disclose information gained by the conciliator during conciliation that the conciliator has communicated to the professional mentor. Maximum penalty for contravention of this subsection—40 penalty units. 94 Administrative support staff (1) The commissioner may make arrangements for a person (the support person ) appointed, employed or engaged under this Act to give administrative support to a conciliator in the performance of the conciliator’s functions. (2) A conciliator may disclose information gained during conciliation to the support person. (3) If a conciliator discloses information gained during conciliation to a support person, the support person must not disclose the information. Maximum penalty for subsection (3)—40 penalty units. Part 7 Investigation Division 1 Commissioner’s investigations 95 Commissioner’s investigations The powers conferred by this division may only be used to investigate—

s 96 58 s 96 Health Rights Commission Act 1991 (a) a health service complaint that the commissioner decides to investigate under section 73, 88 or 90; 23 or (b) a health service complaint or other matter in relation to which the Minister has given written direction to the commissioner under section 31 to investigate or under section 32 to conduct an inquiry. 96 Notice to provide information or a record (1) The commissioner may, by notice given to a person, require the person— (a) to give specified information within a specified reasonable period and in a specified reasonable way; or (b) to attend at a specified reasonable time and place, and then and there answer questions giving specified information; or (c) to produce, at a specified reasonable time and place, a specified record in the person’s possession. (2) The commissioner may only give a notice to a person the commissioner has reason to believe is able to give the information or produce the record. (3) A notice may require the information given or record produced to be given or produced to an authorised person. (4) A notice may require information or a record to be verified by affidavit. (5) The information given or record produced in response to the notice is not admissible in evidence against the person in a proceeding, other than— (a) a disciplinary proceeding before a disciplinary body; or (b) a prosecution for an offence under division 4 24 involving the giving of the information or the producing of the record. 23 Section 73 (Action on acceptance of complaint about provider other than registered provider), 88 (Action on report of unsuccessful conciliation) or 90 (Commissioner may end conciliation) 24 Division 4 (False or misleading information)

s 97 59 s 100 Health Rights Commission Act 1991 97 Oral information on oath (1) An authorised person to whom oral information is to be given under a notice under section 96 may require the information to be verified by oath. (2) An authorised person may administer the oath. 98 Retention and copying of provided record (1) An authorised person may keep a record produced to an authorised person under section 96 for 60 days. (2) While the authorised person has possession of the record, the authorised person— (a) may take extracts from and make copies of the record; but (b) is to allow the record to be inspected or copied at any reasonable time by a person who would be entitled to inspect or copy it if it were not in the authorised person’s possession. 99 Offence not to provide Subject to division 5, 25 a person is not to fail, without reasonable excuse, to give the information or produce the record as required by a notice under section 96. Maximum penalty—10 penalty units. 100 Allowances A person required to attend at any place under section 96 to give information or produce a record is entitled to be paid expenses and allowances— (a) that are prescribed by regulation; or (b) if none are prescribed by regulation—that the commissioner determines. 25 Division 5 (Privilege)

s 101 60 Health Rights Commission Act 1991 s 103 101 Reference to another entity (1) If the commissioner considers that a matter raised by, or in the course of, investigating a health service complaint or inquiry matter should be investigated or otherwise dealt with by an entity that has a function or power under an Act of the State or the Commonwealth to investigate or otherwise deal with the matter, the commissioner may refer the matter to the entity. (2) However, the commissioner must not refer the matter to another entity without first consulting the entity. 102 Investigation by other entity (1) This section applies if the commissioner refers a matter under section 101 to an entity that has a function or power under an Act of the State to investigate or otherwise deal with the matter. (2) The entity is to perform whatever function and exercise whatever powers the entity has to investigate or otherwise deal with the matter. (3) The entity may provide the commissioner with written reports of the progress and results of the investigation or other action taken that the entity considers appropriate. (4) The commissioner may request the entity at any time to provide the commissioner with reasonable reports of the progress and results of the investigation or other action taken. (5) The entity is to comply with the commissioner’s request. (6) In every case the entity is to provide to the commissioner a written report of the results of the investigation or other action taken within 28 days of its completion. 103 Commissioner’s powers not affected by reference The commissioner’s powers to investigate a matter are not affected by the matter having been referred under section 101 to another person or body for investigation.

s 104 61 Health Rights Commission Act 1991 s 106 Division 2 Inquiry hearing 104 Powers The powers conferred by this division may only be exercised for the purpose of an inquiry. 105 Oral hearings (1) The commissioner may, by notice given to a person, summon the person to attend at an inquiry hearing at a time and place specified in the summons— (a) to give evidence; and (b) to produce a record in the person’s possession specified in the notice; in relation to the inquiry matter. (2) The evidence given or record produced by the person at the inquiry hearing in compliance with the summons is not admissible in evidence against the person in a proceeding other than a prosecution for an offence under— (a) section 108 or division 4; 26 or (b) chapter 16 of the Criminal Code; 27 involving the giving of the evidence or the production of the record. 106 Failure of witness to attend A person served with a summons to attend as a witness at an inquiry hearing is not, without reasonable excuse— (a) to fail to attend as required by the summons; or (b) to fail to attend from time to time in the course of the inquiry hearing as required by the commissioner. Maximum penalty—10 penalty units. 26 Section 108 (Contempt of inquiry) or division 4 (False or misleading information) 27 Criminal Code, chapter 16 (Offences relating to the administration of justice)

s 107 62 Health Rights Commission Act 1991 s 110 107 Refusal of witness to cooperate Subject to division 5, a person attending as a witness at an inquiry hearing is not, without reasonable excuse— (a) to fail to be sworn or to make an affirmation; or (b) to fail to answer a question that the person is required to answer by the commissioner; or (c) to fail to produce a record that the person was required to produce by a summons served on the person. Maximum penalty—10 penalty units. 108 Contempt of inquiry (1) A person is not to— (a) obstruct or improperly influence an inquiry hearing or attempt to do so; or (b) do any other act or make any other omission that would, if the commissioner in conducting an inquiry hearing were a court of record, constitute contempt of the court. Maximum penalty—30 penalty units. (2) A contravention of subsection (1) may be charged as contempt of an inquiry hearing. 109 Application of Criminal Code An inquiry hearing is a judicial proceeding for the purpose of chapter 16 of the Criminal Code. 28 110 Allowances (1) A person summoned to attend as a witness at an inquiry hearing is entitled to be paid expenses and allowances— (a) that are prescribed by regulation; or (b) if none are prescribed by regulation—that the commissioner determines. 28 Criminal Code, chapter 16 (Offences relating to the administration of justice)

s 111 63 Health Rights Commission Act 1991 s 114 (2) A regulation may prescribe expenses and allowances by reference to similar expenses and allowances payable to persons attending as a witness before a specified court. Division 3 Premises powers 111 Power limitation The power conferred by this division may only be exercised for the purpose of— (a) obtaining information, a record or a thing that may afford evidence in relation to an inquiry matter or an offence against this Act; or (b) exercising the power mentioned in section 115(1)(f). 112 Identity card to be produced An authorised person is not entitled to exercise a power under this division in relation to a person unless the authorised person first produces to the person the authorised person’s identity card. 114 Entry and search (1) Subject to subsection (3), if the commissioner has reasonable grounds for suspecting— (a) in relation to an inquiry matter mentioned in section 32(1)(c)—that there is on premises a person mentioned in that paragraph— (i) who can not, practically or otherwise, exercise an absolute right of egress from the premises; and (ii) whose health or safety may be at risk; or (b) in any case—that there is on premises a particular record or thing that may afford evidence; an authorised person may enter the premises and exercise the powers mentioned in section 115.

s 114 64 Health Rights Commission Act 1991 s 114 (2) If an authorised person enters the premises and finds evidence consisting of the particular record or thing mentioned in subsection (1)(b), the following provisions have effect— (a) the authorised person may seize the evidence; (b) the authorised person may keep the evidence for 60 days or, if a prosecution in which the evidence is relevant is instituted within that period, until the completion of the prosecution and of any appeal from a decision in relation to the prosecution; (c) if the evidence is a record—while the authorised person has possession of the record, the authorised person may take extracts from and make copies of the record but is to allow the record to be inspected at any reasonable time by a person who would be entitled to inspect it if it were not in the authorised person’s possession. (3) An authorised person is not to enter the premises or exercise a power under subsection (1) unless— (a) the occupier (if any) of the premises consents to the entry or exercise of the power; or (b) a warrant under section 116 authorises the entry or the exercise of the power. (4) If in the course of searching premises under subsection (1), an authorised person— (a) finds a thing that the authorised person believes, on reasonable grounds to be a thing (other than the particular record or thing mentioned in subsection (1)(b)) that will afford evidence in relation to an inquiry matter or an offence against this Act; and (b) believes, on reasonable grounds, that it is necessary to seize the record or thing to prevent its concealment, loss or destruction; subsection (2) applies to the record or thing as evidence within the meaning of the subsection. (5) An authorised person who seizes or damages a record or thing under this section is to give notice of particulars of the record, thing or damage. (6) The notice is to be given to—

s 115 65 Health Rights Commission Act 1991 s 115 (a) if a record or thing is seized—the person from whom the thing was seized; or (b) if damage is caused to a record or thing—the person who appears to the authorised person to be the owner. 115 General powers of authorised person in relation to premises (1) The powers an authorised person may exercise under section 114(1) in relation to premises are as follows— (a) to search any part of the premises; (b) to inspect or examine anything on the premises; (c) to make inquiries on the premises; (d) to take extracts from, and make copies of, a record on the premises; (e) to take onto the premises anything the authorised person requires for the purpose of exercising a power on the premises; (f) if the premises are of a kind mentioned in section 114(1)(a)—to make arrangements to secure the health and safety of the person mentioned in that paragraph; (g) to require the occupier or any person on the premises to give to the authorised person reasonable assistance in relation to the exercise of the powers mentioned in paragraphs (a) to (f). (2) Subject to division 5, a person is not to fail, without reasonable excuse, to comply with a requirement made under subsection (1)(g). Maximum penalty—20 penalty units. (3) Information given or a record produced by a person on being required to do so by an authorised person under subsection(1)(g) is not admissible in evidence against the person in any proceedings other than a prosecution for an offence under division 4 involving the giving of the information or production of the record.

s 116 66 Health Rights Commission Act 1991 s 116 116 Warrants (1) An authorised person may apply to a magistrate for a warrant under this section in relation to particular premises. (2) Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information verified by oath or affidavit, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises— (a) if the warrant is required for the purpose of an inquiry matter mentioned in section 32(1)(c)—a person mentioned in that paragraph— (i) who can not, practically or otherwise, exercise an absolute right of egress from the premises; and (ii) whose health or safety may be at risk; or (b) a particular record or thing that may afford evidence. (3) If the magistrate requires further information concerning the grounds on which the issue of the warrant is being sought, the magistrate is not to issue the warrant unless an authorised officer has given the information to the magistrate verified by oath or affidavit as required by the magistrate. (4) The warrant is to specify— (a) that the authorised officer, with necessary and reasonable force and assistance, may— (i) enter the premises; and (ii) exercise the powers set out in section 115; and (iii) seize evidence in accordance with section 114; and (b) whether the entry is authorised to be made at any time of the day or night or during specified hours; and (c) a day no later than 7 days after the issue of the warrant on which the warrant ceases to have effect; and (d) the purpose for which the warrant is issued.

s 117 67 Health Rights Commission Act 1991 s 119 Division 4 False or misleading information 117 Application This division applies to a person who is required to give information (the information ) or produce a record (the record )— (a) under section 96(1), 105 or 115; or (b) as a witness at an inquiry hearing. 118 False or misleading information (1) A person, in response to a requirement to give the information, is not to— (a) give information that the person knows is false or misleading in a material particular; or (b) omit from information given other information without which the information given is, to the knowledge of the person, false or misleading in a material particular. Maximum penalty—20 penalty units. (2) A complaint against a person for an offence under subsection (1)(a) or (b) is sufficient if it states that the information given was false or misleading to the knowledge of the person. 119 False or misleading record A person, in response to a requirement to produce the record is not to provide a record containing information that the person knows is false or misleading in a material particular without— (a) indicating that the record is false or misleading and the respect in which the record is false or misleading; and (b) giving correct information if the person has, or can reasonably obtain, the correct information. Maximum penalty—20 penalty units.

s 120 68 Health Rights Commission Act 1991 s 122 Division 5 Privilege 120 Application This division applies to a person who is required to give information (the information ) or produce a record (the record )— (a) under section 96(1), 105 or 115; or (b) as a witness at an inquiry hearing. 121 Witness privilege (1) Subject to subsection (2), a person is not required to give the information or produce the record if the person objects on the ground of a privilege the person would be entitled to claim against giving the information or producing the record were the person a witness in a prosecution for an offence in the Supreme Court. (2) A person may only claim, on the ground of self incrimination, privilege against giving the information or producing the record on being required to do so for the purpose of an inquiry if the ground is that the information would tend to incriminate the person of an indictable offence. (3) The commissioner or the person may apply to a Supreme Court judge for a determination of the validity of a claim of privilege. 122 Claim of unjustifiable exercise of power (1) A person is not required to give the information or produce the record if it is determined by a Supreme Court judge that on balance the purpose for which the information was required to be given or the record produced does not justify— (a) the adverse affect on the financial interests of the person; or (b) the intrusion on the privacy of an individual by disclosure of private or confidential matters relating to the individual;

s 123 69 Health Rights Commission Act 1991 s 124 that would result from the giving of the information or the producing of the record. (2) Application to a Supreme Court judge for a determination mentioned in subsection (1) may be made by the person required to give the information or produce the record. 123 Supreme Court applications (1) An application to a Supreme Court judge under section 121 or 122— (a) is to be made in accordance with the rules of court or, to the extent the rules do not provide, as directed by a Supreme Court judge; and (b) is to be heard in chambers. (2) The burden of proof on an application is on the person seeking to withhold the information or record. (3) In determining an application, a Supreme Court judge may make all orders necessary for the practical operation of this division, including for example— (a) by excusing a person from giving or producing, or ordering a person to give or produce, the whole or part of the information or record; or (b) by amending the notice or order by which the information or record was required to be given or produced. (4) Costs of an application are to be borne by the commission, unless otherwise ordered by the judge on the ground that a claim to withhold the information or record was frivolous, vexatious or lacking in substance. Division 6 Action on investigation 124 Interpretation In this division— complainant means a complainant in relation to a health service complaint that is the subject of an investigation.

s 125 70 Health Rights Commission Act 1991 s 127 investigation includes an inquiry. provider means a provider who is the subject of an investigation that a report concerns. 125 Commissioner’s reports (1) The commissioner may at any time make a report in relation to an investigation conducted by the commissioner for the purpose of giving it to a person or body mentioned in section 126. (2) Subject to section 127, the report may contain information, comment, opinion and recommendations for action the commissioner considers appropriate. 126 To whom reports may be given The commissioner may give a report to— (a) the complainant; or (b) the provider; or (c) an employer of the provider; or (d) a registration board; or (e) a professional association of which the provider is eligible to be a member; or (f) the Minister; or (g) any person or body that has a function or power to take action on matters raised in the report. 127 Response to adverse comment (1) Subject to section 133, 29 the commissioner is not to include in a report comment adverse to a person or body identifiable from the report unless the person or body has been given a reasonable opportunity— 29 Section 133 (Dispensing with notice)

s 127A 71 Health Rights Commission Act 1991 s 128 (a) to make submissions to the commissioner in relation to the comment; and (b) to give to the commissioner a written statement in relation to the comment. (2) If the person or body who gives a written statement under subsection (1)(b) requests that the statement be included in the report, the commissioner is to include the statement, or a fair summary of the statement, in the report. 127A Conciliation after investigation (1) This section applies if the commissioner considers that a matter that has been the subject of an investigation under this part should be conciliated under part 6. (2) The commissioner may conciliate the complaint under part 6. Part 8 Registration boards 128 Information from registration board (1) A registration board may provide to the commissioner information, comment and recommendations in relation to a health service complaint and the registered provider against whom the complaint was made. (2) The commissioner may, at any time, make a request of a registration board to provide reasonable information in its possession in relation to a health service complaint or the registered provider against whom a health service complaint is made. (3) The registration board is to comply with a request made to it under subsection (2).