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Chapter 3 Section F: Standards of care

Anyone who is cared for and treated by a health care professional or a health care provider has to be cared for and treated to the appropriate standard of care.

Standards of care come from various sources and cannot be found written in one place.

In this section you can find out more about:

  • Standards of care generally; and
  • Breaches of the Mental Health Act 2007 (NSW) and relevant standards

3F.1: Standards of care in general

NSW Health has policies and protocols, service plans and guidelines that form part of the standards for public health care providers and health care professionals that work within the health care system in NSW. Physical health care within mental health services and clinical care of people who may be suicidal are examples of such policy directives.

All health care professionals in NSW (for example, doctors, nurses, dentists, pharmacists) are regulated by separate Acts of Parliament (and Regulations) that deal with their registration and provide for the maintenance of standards. Some health professions have codes of conduct and ethical practice for their profession. Medical specialists also have ‘colleges’, which have written standards of practice.

If a health care professional is subject to disciplinary proceedings, his or her conduct will also be subject to ‘peer review’ by similarly accredited health care professionals with the same level of experience and authority. Peer review is undertaken to assess whether or not the conduct met the standards for their profession.

Standards of care are different to ‘best practice’ and usually a health care professional is only subject to disciplinary proceeding if they ‘significantly depart’ from the relevant standards. A health care professional might have made a mistake, but not necessarily be found to have significantly breached standards.

A breach of a standard of care in the civil law (relevant if you are taking legal action in the courts for compensation) would be tested using a similar but nevertheless different test from a breach of professional standards. A mistake by a health care professional could be ‘negligence’ in the civil law but not a significant departure from standards in disciplinary proceedings.

A health care professional is much more likely to face disciplinary proceedings for a breach of standards if he or she makes the same mistake or carries out the same unethical conduct more than once, despite warnings. Civil claims for compensation are usually about one particular incident of negligent conduct that has caused significant injury and loss to the person bringing the case.

If you make a complaint, in particular to the Health Care Complaints Commission (HCCC) about things that happen to you in hospital or with your contact with health care professionals, these are all issues that the HCCC will look at to decide what to do about your complaint.

Find more information about Health Care Standards in Chapter 2.

3F.2: Breaches of the Mental Health Act 2007 (NSW) and standards

The Mental Health Act 2007 (NSW) also provides for certain consumer rights, please see Chapter 4 for more information.

For more information about these rights and the actions you can take if they are breached follow this link.

Sections relating to your care and treatment under the Act if you are an involuntary patient in NSW deal with things like:

  • Notices that should be given to you before Mental Health Inquiries are conducted by the Mental Health Review Tribunal and reviews and other hearing conducted by the Mental Health Review Tribunal;
  • How you should be presented to these hearings;
  • Your involvement in treatment and discharge plans;
  • Notices about your rights as a patient generally;
  • What must happen if you are being discharged from hospital .

However, there are no penalties set out in the Mental Health Act 2007 (NSW) if these things don’t happen. There is no court, tribunal or other forum you can approach if you believe these requirements have not been followed (that is, the requirement has been ‘breached’), except to general complaints bodies. One exception to this may be if you have been unlawfully detained in a Mental Health Facility because there is a serious defect in the process that led to your detention. If you think this may have happened you should obtain legal advice from the Mental Health Advocacy Service.

You can also raise these matters with the Mental Health Review Tribunal, but it has no legal power to deal with breaches of the Mental Health Act 2007 (NSW). Raising these issues with the Tribunal may lead to the Tribunal referring the matter to an appropriate other authority for action or making a (non-enforceable) recommendation or comment to staff or the Medical Superintendent at the Mental Health Facility.

If these sections of the Mental Health Act 2007 (NSW) are breached and you complain, the sections will in fact be treated the same as standards. Proving that someone has not done what they are meant to under these sections of the Act will not necessarily guarantee that a member of staff is disciplined, either internally, or through the more formal professional disciplinary process referred to in the separate section on standards of health care.

This does not mean that complaining about breaches of the Mental Health Act 2007 (NSW) won’t have any effect. Complaints can lead to changes in behaviour and conduct of health care professionals and the practices of health care providers and bring about very positive outcomes. However, such outcomes cannot be guaranteed, and if your complaint is dealt with through a process internal to the health care provider, you will not (for privacy reasons) be told whether a health care professional has been disciplined or counselled. The NSW Government’s policy of ‘open disclosure’ does, however, encourage public health care providers to give feedback to people who have made complaints about any systemic change that has come about because of their complaint, and to apologise and explain when mistakes are made.

Updated October 29, 2019