MHCC Mental Health Rights Manual

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Chapter 10 Section C: Complaints about a health service or medical treatment

10C.1: Introduction

Sometimes you might want to ask questions about the treatment you received in hospital. Sometimes you might think that the hospital or a particular health care professional has not acted ethically while treating you. Sometimes you might think that the care you got was sub-standard. Sometimes you might have been injured and lost money as a result of sub-standard health care or treatment. You might also think that you will suffer further financial disadvantage or continue to have pain and suffering because of the treatment you received. Sometimes you might think you have been charged too much for a health care service that was provided to you.

You might want financial compensation because of what you think was poor treatment or care in a hospital. You might not want any compensation but might want an apology. Sometimes you may want assurance that what happened to you won’t happen again to you or anyone else. Sometimes you might simply want someone to listen to your concerns or have questions that you want someone to answer.

To begin with, you probably need to consider whether it would be better to take legal action or to make a formal complaint.

For information on this, click here.

10C.2: When to take legal action and when to complain

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 or want someone to assist 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 can depend on:

It is important to note that if there is a legal outcome available for 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. The timeframes for the problem to be resolved 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.

To find out about what legal actions and complaints processes there are for health care problems, click here.

10C.2.1: Types of legal actions and complaint processes for health service and medical complaints

The options available to you to take action will depend on what happened.

If, for example, you feel that the medical service or practitioner didn't provide medical services to an adequate standard and the treatment you got meant you were injured or your existing condition got worse, you may be able to take legal action in court for medical negligence.

If, on the other hand, you feel that the way people spoke to you was inappropriate or rude or you were exposed to discriminatory attitudes or behaviour, you may be able to make a complaint.

Usually if you want compensation (in the form of money) for injuries you have suffered or for future economic loss, then the only way you usually can get this money is taking legal action in the courts.

If you do decide to take legal action, you are strongly advised to get a lawyer to give you advice and represent you in court. A problem you will need to deal with is that in relation to 'medical negligence' cases, there is virtually no legal aid or free legal assistance available. There are, however, some lawyers and law firms that specialise in medical negligence and that may agree to an arrangement whereby you don't have to pay anything for the legal work they do unless you are successful in your claim.

There are also time limits that apply. This means you must start your legal action within a set time period after the conduct or treatment you are concerned about happened or when you found out about it. The time limit differs in different situations, but is usually as short as 12 months or three years.

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 to make a complaint to the Health Care Complaints Commission (HCCC) or directly to the organisation or person who treated you.

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 can sometimes get someone to help you make a complaint. A lawyer may help you make a complaint, but a private lawyer will usually charge you a fee for helping this way. Legal aid is not normally available for legal actions in medical negligence cases.

There are a limited number of non-legal advocates from particular organisations that will help you with specified problems. Sometimes you can get a friend or relative to help you. Sometimes the organisation you are complaining about has people employed to help people with their complaints.

You may have a choice whether to take legal action or to make a complaint.

Sometimes you can do both if you choose, although usually you will need to complete the complaints process before taking legal action. Because of the time-limits that may apply to legal action you should get legal advice about this at the very beginning. There are benefits and risks or problems with both options - click on the links below to read about them: 

10C.2.2: Benefits of taking legal action

  • Possibility of getting a lot of compensation (money) for an injury and financial losses linked to that injury. 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 resolving (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 (settled), the outcome is that there is a winner and a loser: the medical service or provider may be found negligent or you may be unsuccessful in proving this.
  • Having direct contact with the health care provider or health practitioner is much less if you take legal action than you would have if you begin a complaints process; because most of the process goes through the lawyers.

10C.2.3: The downsides of taking legal action

  • Delays: civil claims for negligence often take several years to get to court.
  • It is very likely you will have to give evidence and be cross-examined and this can be extremely stressful. . Even if this is not the case, legal action is very stressful, even if you are legally represented.
  • If you lose, you are likely to be ordered by the court to pay the legal costs of the medical practitioner or service.
  • If you win, your own legal costs will often substantially reduce the amount of compensation that the court orders you to be paid.
  • It is an 'adversarial' process (there is a winner and a loser), and there is a much smaller likelihood of questions being answered voluntarily or fault being admitted with an apology.

10C.2.4: Benefits of complaining rather than taking legal action

  • Making a complaint to the Health Care Complaints Commission or about discrimination to the relevant body is free.
  • Health care providers and health care professionals are more likely to apologise or answer questions in a less formal process, especially if they are part of the NSW public health sector, where there is a policy of 'open disclosure'.
  • Complaints can lead to an apology to you or can lead to the medical service or health care provider making improvements to their service and systems.

10C.2.5: Risks and problems with making a complaint

  • There is no compensation available at the end of the Health Care Complaints Commission process, except perhaps as part of a complaint referred to conciliation.
  • Usually complaints about health care professionals are dealt with as matters about discipline or education of the health care professional. The organisations and people involved may see you as merely an informant or potential witness and not deal with the complaint from your perspective.
  • Often it is perceived that there are no ‘winners and losers’ in the complaints process: the emphasis is often on avoiding blame. (You may have an expectation of someone being held responsible when you make your complaint – this is less likely to be the case in a complaints process).

10C.3: Breach of STANDARDS, PROTOCOLS or POLICIES 

If you just want to complain and get an apology or a change in practice rather than money or if you get legal advice that for some reason cannot take legal action but still want to do something about your concerns, then you may need advice about where to complain.

Click here to for more information.

If your concerns are about your treatment or contact with a health care professional or a health care provider like a hospital or aged care facility, you should ring the Health Care Complaints Commission (HCCC) on (02) 9219 7444 or 1800 043 159* between 9.00 am and 5.00 pm Monday to Friday.

An HCCC Inquiry Officer on this number can give you advice about making a complaint to the HCCC and can help you to do this. The Inquiry Officer can also give you advice about other ways you can ask questions, and raise and resolve concerns about your health care.

For further information about the HCCC, please click here.

You can also get advice about your rights in relation to aged care facilities from the Aged Care Rights Service (TARS).

If you are complaining about your treatment or conditions in a public psychiatric hospital or unit you can also contact the Official Visitor.

For further information about the Official Visitor and how to make contact, please click here.

For information about the roles and complaint processes relevant to people with mental illness who are involuntary patients in NSW, click here.

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

 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.