This section of the Manual may be useful to you when deciding whether to make a complaint or take legal action, in particular against a health or support service.
You may wish to make a complaint or take legal action for a number of reasons. For example, you may want to understand why a particular decision was made about you; believe that a health service has not acted to the appropriate standard when treating you or you were injured, or experienced a financial loss, due to healthcare or treatment.
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.
You may be in a situation where you feel have you been treated unfairly. However, the treatment will only be unlawful if the action by the person or organisation breaks a law.
If a law has been broken in your situation, you will need a lawyer to help you with your legal issue. If your issue is not a legal issue, but you still need someone to help you with your problem, you can seek help from an advocateAn advocate is a person who will support someone and help them stand up for their rights, needs and wants. An advocate can also sometimes speak or write on the behalf of another person. A person’s family or friends can be their advocates, or their advocate may be a professional. An advocate may or may not be a lawyer. More, who is someone to speak on your behalf. For more information about advocates, click here.
The best place to start is to get more information about your issue. You should think about contacting either an advocacy service or a legal assistance providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More to get some initial advice so you can work out what you can do.
Whether you need a lawyer or a non-legal advocateAn advocate is a person who will support someone and help them stand up for their rights, needs and wants. An advocate can also sometimes speak or write on the behalf of another person. A person’s family or friends can be their advocates, or their advocate may be a professional. An advocate may or may not be a lawyer. More depends on what outcome or result you want from the action you take.
It is important to note that if there is a legal solution to your problem, you may also be able to complain through the providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More of the service and/or a complaints body about the same issue. If so, you may want to think about which avenue to take. Making a complaint, compared with taking legal action, can have outcomes, timeframes and costs. Each process may in itself be very physically and emotionally draining. Generally, a complaints process will be quicker, less stressful, and less costly for you than pursuing a claim in a Court or Tribunal.
You may not know all the outcomes that are available, but it is worth thinking about what will help you feel that the issue is resolved.
For example, you may want:
Usually, if you want compensation in the form of money, you will need 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 during 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 (called ‘limitation periods’) that apply, which means that you must start your legal action within a 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, and you should get legal advice as soon as you realise you have a problem.
If you want to be heard, answers to your questions, an apology or you want to a change in an organisation’s practices, you may be better off making a complaint directly to the organisation that you have a problem with or a complaints body.
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 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 staff to help people with their complaints.
You may have a choice about whether to take legal action or to make a complaint, or you may be able to do both in your situation. Click here to see the benefits and problems with taking legal action or making a complaint.
To make best use of an appointment for legal advice, you should make sure you are prepared. This means thinking about what outcome you want and collecting the information you have about the situation. For example, if you are complaining about a health service, you should present any letters, medical records or other documents given to you to your lawyer.
It is also useful to make notes about 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. It can be helpful to include details of:
This section compares the general benefits and risks or problems with taking legal action and making a formal complaint. The specific benefits and risks will depend on the type of legal action you are taking. Click on the links below to read about them:
Taking legal action to solve your problem, instead of making a complaint, has the following benefits:
Taking legal action to solve your problem, instead of making a formal complaint, generally has the following risks:
Making a formal complaint, rather than taking legal action, to solve your problem has the following benefits:
Making a formal complaint, rather than taking legal action, to solve your problem has the following risks:
In some circumstances, you have to go through a complaints 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 board first and go through the complaint resolution process before you can take legal action. You could not take legal action in a Court or Tribunal as a first step in anti-discrimination complaints.
For more about discrimination law, click here.
It is also important to remember that in a complaints process, the external organisation that deals with the complaint cannot make a legal finding that a particular party broke the law. 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.
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, for example you should be provided with a Statement of Rights if you are detained as an inpatient of a public mental health facility. However, 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 if there is 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 DisabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More Discrimination Act 1992 (Cth). Failure to comply with these Standards is unlawful discrimination on the basis of disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More, and you can take action for a breach of these standards as an act of discrimination. Currently there are DisabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More 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, which is generally either an advocacy service or a legal assistance provider to get that initial advice so you can work out what you can do.
Updated January 1, 2021
