keyboard-shift-1
Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

Chapter 10 Section B: Making a complaint or taking legal action

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:

  • Was the action you want to complain about unlawful or simply unfair?
  • What outcome will you be happy with to resolve the complaint or dispute?
  • What information or paperwork do you have that might be relevant or important?

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?

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 advocate, 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 provider to get some initial advice so you can work out what you can do.

Whether you need a lawyer or a non-legal advocate depends on what outcome or result you want from the action you take.

Before you seek advice about your issue, it is useful to consider 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 through the provider 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.

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

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:

  • an individual or organisation to hear your point of view;
  • an apology for what happened (either a verbal apology from an individual involved in what happened, or a formal written apology from an organisation that you feel was responsible);
  • what happened to you not to happen again, either to you or to anyone else (e.g. you want the organisation involved to change their policies or training its staff to prevent your situation being repeated);
  • answers to questions about what happened and/or information; or
  • financial compensation for what happened, either for physical injuries, for loss of income, or for the emotional or other impact on you for what happened.

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.

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

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:

  • dates (when your situation happened);
  • describe what happened;
  • who was involved (including their names if you know them); or
  • what (if anything) you have already done to try to resolve the situation.

10B.4: Benefits and risks of taking legal action or making a complaint

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:

  • Benefits of taking legal action
  • The risks or problems of taking legal action
  • Benefits of using a complaint process rather than legal action
  • The risks or problems with using a complaint process rather than taking legal action

10B.4.1: Benefits of taking legal action

Taking legal action to solve your problem, instead of making a complaint, has the following benefits:

  • if you start a legal action, this situation may put pressure on the other party to ‘settle’ (or work with you to sort out the dispute). If this happens, you will be able to avoid going to court and the stress involved in court proceedings;
  • if the legal action goes to a Court or Tribunal, a decision will be made about what happened and whether or not a person or organisation was legally responsible for an action in your situation;
  • if the legal action goes to a Court or Tribunal, the Court or Tribunal can make a ‘legally binding’ order, which means there are serious consequences for them if they do not follow the order;
  • in some situations, you may receive compensation (money) for what happened. This will depend upon the type of your legal claim, and the Court or Tribunal in which you take the legal action; and
  • you have less direct contact with the person or organisation you have a problem within a legal process, compared to a complaints process, as you will be represented by a lawyer.

10B.4.2: The risks of taking legal action

Taking legal action to solve your problem, instead of making a formal complaint, generally has the following risks:

  • delays in getting the problem resolved, as cases can take several years to get to Court;
  • legal proceedings can be difficult to understand and stressful, for example, you may have to give evidence and be cross-examined;
  • the risk of losing, which can result in you having to pay the other party’s legal costs;
  • hiring a lawyer can be expensive and legal costs will often substantially reduce any compensation you get even if you win; and
  • 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 making a formal complaint

Making a formal complaint, rather than taking legal action, to solve your problem has the following benefits:

  • the process usually won’t cost anything, except time and effort;
  • 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’ (or providing information to the public when they can);
  • 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. This can be beneficial for other people in similar situations;
  • 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;
  • some people may find the process of making a complaint empowering as it gives them an opportunity to tell their story; and
  • you may still be able to take legal action if the complaint process does not resolve the situation.

10B.4.4: The risks of making a formal complaint

Making a formal complaint, rather than taking legal action, to solve your problem has the following risks:

  • 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 it is not as long as it would take for a matter to the finalised by a Court or Tribunal; and
  • some people believe that there are no ‘winners and losers’ in the complaints process, and that the emphasis is on avoiding blame.

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.

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, 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 Disability Discrimination Act 1992 (Cth). Failure to comply with these Standards is unlawful discrimination on the basis of disability, and you can take action for 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, 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