MHCC Mental Health Rights Manual

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Chapter 10 Section B : Complaints and disputes

There are many ways that this section of the Manual may be useful to you.

Sometimes you might want to ask questions about something that has happened to you, or you may believe that your rights have been breached by someone, or you have been treated unfairly.

You may also be sued by someone else because they believe that you have infringed their rights or are a party in some other legal proceedings, such as family law proceedings or social security proceedings.

You might find yourself involved in a criminal case, as the person charged, or as a victim, or as a witness in a criminal trial.

You might be a tenant and be in dispute with your landlord.

You may have separated from your spouse or partner and be unable to agree with him or her about who should be responsible for the daily care of your children and important decisions about your children.

You might have to attend the NSW Civil and Administrative Tribunal (NCAT) in relation to a Guardianship matter about yourself or about someone close to you. 

You might be threatened with the loss of your pension or benefit.

You might be in a work situation and you feel that your boss or a fellow worker is discriminating against you because you have a mental health condition or some other type of disability, or because you having a caring responsibility for someone who does.

In all these situations you are likely to want to either have someone help you with your problem or at least want to tell someone about what has happened to you.

Before deciding what to do and where to go for help it is useful to think about the following questions:

    If you have particular complaints or concerns about your medical treatment or treatment in a health service, you can find out more in the separate section on health complaints and disputes

    10B.1: Was the action you want to complain about unlawful or simply unfair?

    Sometimes problems can be described as legal problems and you will need a lawyer to help you sort them out. Sometimes the law is unable to help you, but you still need someone to help you with your problem or someone to speak on your behalf ('an advocate').

    The answer to whether you need a lawyer or a non-legal advocate or you just need to tell a complaints body about the issue you are concerned about can depend on what outcome or result you want from the action you take.

    It can also depend on what happened. It could be that:

    • there has been a breach of a law
    • an individual or organisation has failed to meet a standard, or follow a practice, policy or procedure
    • someone’s behaviour to you was unfair
    • you feel that you have been cheated by a company that sold you something, like a fridge or a computer, or that provides you with services, such as a mobile phone company
    • you have received a letter of demand or a similar legal letter demanding payment for a bill, or something that you have done, such as a letter from the owner of a car if you were involved in a car accident that resulted in damage to the other driver’s vehicle
    • you are being prosecuted by the police, a government agency (such as Centrelink) or have been sent a notice saying you owe money for a penalty notice or a fine

    No matter which of these or any other types of legal or similar problems you have, the best place to start is to get information about where you stand in relation to the issue. You should think about contacting either an advocacy service or a legal assistance provider to get some initial advice so you can work out what you can do.

    Before you try to get that advice however, it is useful to spend a bit of time thinking about what outcome will resolve the complaint or dispute from your point of view.

    It is also useful to get together all the information you have about the situation to show to the person or organisation giving you advice.

    It is important to note that if there is a legal solution to your problem, you may also be able to complain to the provider of the service and/or a complaints body as well about the same issue. If so, you may want to think about which avenue to take. The outcomes of each process may be different. As well, the timeframes for the matter to be sorted out may also be very different in each process. Each process in itself may also be very physically and emotionally draining. But generally speaking a complaints process will be quicker, less stressful, and less costly for you than pursuing a claim in a Court or Tribunal.

    10B.2: What outcome will resolve the complaint or dispute for you?

    You may not know what is possible in terms of outcomes, but it is worth thinking a bit about what will help you feel that the issue is resolved.

    It might be that you want:

    • what happened to you not to happen again, either to you or to anyone else;an apology for what happened (either simply a verbal apology from an individual involved in what happened, or a formal written apology from an organisation that you feel was responsible);
    • the organisation you feel was responsible for what happened to have better policies and training for its staff to prevent it happening again to you or to anyone else;
    • answers to questions about what happened and/or copies of documents or information;
    • financial compensation for what happened, either for actual physical injuries, for loss of income (to date or into the future), or for the emotional or other impact on you of what happened.

    Usually, if you want compensation in the form of money, the way to get this will be to take legal action. Generally, this means taking legal action in a court. Some complaints, however, such as complaints of discrimination can result in compensation prior to Court and are dealt with through less formal processes managed by specialist complaint bodies.

    If you do decide you want compensation, you are strongly advised to get a lawyer to give you advice and represent you in the process. Unfortunately, in many areas of the law there are only very limited ways to get legal help without paying for it. There are also time limits that apply, which means that you must start your legal action within set period of time after the conduct or treatment you are concerned about happened or when you found out about it. Time limits are different for different types of law, but can be as short as two weeks, or as long as 12 months or three years. This means you should get legal advice as soon as you realise you have a problem.

    If you just want answers to your questions or you just want an apology or you want to stop something happening again, you may be better off making a complaint to a complaints body or directly to the organisation that you have a problem with.

    Sometimes taking legal action may also give you answers about what happened to you and why you were treated in a particular way, but there are often easier and less expensive ways to find the answers to your questions.

    You could make a complaint or ask questions yourself or you may be able to get someone to help you make a complaint. A lawyer could help you make a complaint, but a private lawyer will usually charge you for helping this way. Some Community Legal Centres and advocacy organisations may also be able to help, and this is usually free.

    Sometimes you can get a friend or relative to help you. Sometimes the organisation you are complaining about has particular people employed to help people with their complaints.

    Quite often you have a choice about whether to take legal action or to make a complaint.

    Quite often you can do both if you choose. There are benefits and problems with taking legal action or making a complaint. Click here to see some of these.

    10B.3: What information or paperwork do you have that might be relevant or important?

    To get the most out of getting advice you should make sure you have prepared for the discussion. This means thinking about what outcome you want and collecting together the information you have about the situation, whether it is information about something that happened to you that you want advice about or letters or other documents sent to you demanding action by you or something from you (such as payment).

    It is also useful to make notes of what happened (whether it was something that happened to you that you want to complain about or you have been sent a letter or document demanding action from you about something you are said to have done), including details of:

    •  Dates (when it happened)
    • What happened
    • Who was involved (including their names if you know them
    • What (if anything) you have already done to try to resolve the situation.

    10B.4: Benefits and risks of taking action: LEGAL ACTION or COMPLAINTS

    This section compares the benefits and risks or problems with taking legal action to that of making a complaint. Click on the links below to read about them:

    10B.4.1: Benefits of taking legal action

    • Possibility of getting substantial compensation (money) for what happened. This will depend upon the type of claim you are able to make and the Court or Tribunal in which you take the legal action.
    • Possibility that the threat or start of legal action will result in the other party sorting out (settling) the dispute. If this happens you will be able to avoid going to court along with the anxiety involved in court proceedings.
    • If the problem is not resolved and the outcome is decided by a court or tribunal, there is a winner and a loser: a decision will be made about what happened and whether or not someone is to be held legally responsible for it.
    • Direct contact with the person or organisation you have a problem with is much less than you would have in a complaints process; pretty much everything is done through lawyers.

      10B.4.2: The downsides of taking legal action

      Delays in getting the problem or complaint resolved, as cases often take several years to get to court.

      You are very likely to have to give evidence and be cross-examined and deal with the very significant stress that goes with this.Even if you don’t, all legal action is very stressful, even if you are legally represented.

      The risk of losing, which can result in you having to pay the other party's legal costs.Your legal costs (if you have to pay for a lawyer) will often substantially reduce any compensation you get even if you win.

      It is an adversarial process (there is a winner and a loser), and there is a much less chance of your questions being answered voluntarily or fault being admitted with an apology given.

      10B.4.3: Benefits of using a complaint process rather than taking legal action

      • It usually won't cost anything.
      • People and organisations are more likely to apologise or answer questions in a less formal process, especially if the organisation has a policy of 'open disclosure'.
      • Complaints can lead to an apology to you or can lead to changes to the systems and processes of the organisation that you are complaining about.
      • You may be able to go through the process without having a lawyer involved, although it will be much easier if you have someone, such as an advocate, working with you.
      • You may still be able to take legal action if going through the complaint process doesn't resolve the situation.

      10B.4.4: The risks or problems with using a complaint process

      • You are likely to get less compensation (if any at all) than you might if you went to court.
      • It can take a long time for the complaint process to be completed, although usually not as long as it would take for a matter to the finalised by a Court or Tribunal.
      • Some people believe that there are no 'winners and losers' in the complaints process, and that the emphasis is on avoiding blame.

      In some situations you have to go through a complaint process before you can start a legal case in a court. An example of this is discrimination law, where you have to make a complaint to the relevant discrimination commission or board and go through the complaint resolution process before you can take legal action.

      For more about discrimination law, click here.

      It is also important to remember that in the complaints process, the organisation that deals with the complaint can't take sides and can't decide the outcome for you. While courts and tribunals are also not permitted to take sides, at the end of the process, the court or tribunal will decide on the outcome.

      10B.5: Breach of law or breach of standards?

      The differences between laws and regulations on one hand and standards, protocols and policies on the other hand are talked about elsewhere in the Manual.

      If a law is broken, it does not always mean that there is a legal action you can take and an outcome that will be available to you. There are sections of the Mental Health Act 2007 (NSW) that says certain things should happen, but there is no legal remedy if those things don’t happen, and the Act doesn’t create any offence or crime for failing to do what is meant to happen. The only option in this situation is to make a complaint.

      Generally speaking, if there were a breach of standards, protocols or policies only, the only option is to use a complaint process.

      A major exception to this is if the breach of standards is so serious that it is seen as a ‘breach of a duty of care’ under the law of negligence. Another very important exception are Standards made under the Disability Discrimination Act 1992 (Cth). Failure to comply with these Standards equals unlawful discrimination on the basis of disability, and you can take action for a contravention (a breach) of these standards as an act of discrimination. Currently there are Disability Standards in the areas of public transport, education and access to premises.

      No matter whether it is a law or a standard that you believe has been breached, the best place to start is to get information about where you stand in relation to the issue. You should think about contacting either an advocacy service or a legal assistance provider to get that initial advice so you can work out what you can do. 

       

       DISCLAIMER

      • The legal and other information contained in this Section is up to date to 30 January 2015
      • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
      • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.