Other consequences of adverse events
Complaints to the hospital or health service
A disgruntled patient or relative may make a complaint to the hospital or health service. The
Health Services Commissioner encourages patients to raise their complaints with the relevant
health care provider as a first step.
Complaints should be handled efficiently and openly - often, a person who has a complaint will
be satisfied if they feel that they are being taken seriously and their complaint is being
addressed properly by the hospital or health service.
It is imperative that any compliant made to a hospital or health service, or any Freedom of
Information application made where there may be an underlying complaint, is reported to the
VMIA immediately, as the VMIA has a right to refuse indemnity if such reports are not made
promptly.
Complaints to the Health Services Commissioner
One way a person may make a complaint about a health services provider is to the Health
Services Commissioner, who effectively adopts the role of a 'health ombudsman'. This position
is established under the Health Services (Conciliation & Review) Act 1987. Any patient or
representative of the patient may make a complaint. The grounds for complaint are also set out
in the Act and may include allegations that a health service provider acted 'unreasonably' by
providing or not providing a health service, or in the manner it provided the health service, or in
not properly investigating or taking proper action on a complaint made to it.
The Health Services Commission must investigate any complaint made which falls within the
legislation and can facilitate resolution by a process called conciliation (i.e. co-operation), or
alternatively conduct a formal investigation of the complaint. The Health Services Commission
may refer a complaint to the relevant health care professionals board.
The complaint process is free of charge. It is impartial and confidential, and participation in the
process is on a voluntary basis. Open discussion is encouraged, so that all parties can be
asked to give their point of view.
While the complaint process can function as an alternative to legal proceedings, it does not
replace or preclude them so that anyone who makes a complaint to the Health Services
Commissioner is still entitled to commence court proceedings. The main role of the Health
Services Commissioner is to provide a cheap, simple and relatively fast way to resolve
complaints.
The possible outcomes of a complaint to the Health Services Commissioner include an
explanation (or the provision of more detailed information) of the treatment or medical condition,
an open forum of discussion to have concerns aired and discussed face-to-face, an apology, a
change to the system or procedures in order to prevent a similar incident from occurring, the
provision of remedial treatment, or financial compensation.
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Coronial Investigations
The purpose of a Coroner's Inquest is to determine the manner and cause of a person's death.
The function of the Coroner is to ensure all 'reportable deaths' are investigated. The Coroner's
Act 1985 defines a 'reportable death' as a death that:
x appears to have been unexpected, unnatural or violent or to have resulted, directly or
indirectly, from accident or injury;
x occurs during anaesthetic;
x occurs as a result of an anaesthetic and is not due to natural causes;
x involves a person who immediately before their death was a person held in care;
and/or
x involves a patient within the meaning of the Mental Health Act 1986.
The Coroners Act provides that a doctor present at or after a death must report the death as
soon as possible to the Coroner if:
x the death is a 'reportable death';
x the doctor does not view the body;
x the doctor is unable to determine the cause of death; and/or
x no doctor attended the person within 14 days before the death and the doctor who is
present is unable to determine the cause of death from the deceased's immediate
medical history.
The Coroners Act also requires a person who has reasonable grounds to believe that a
reportable death has not been reported to report it as soon as possible to a coroner or the
officer in charge of a police station.
Because a death has been reported does not mean an inquest will be held. Generally
Coroners have discretion to initiate an inquest except where the legislation states an inquest is
mandatory.
Generally, investigations are undertaken by the police on behalf of the Coroner. The Coroner's
assistant gathers information including autopsy reports, witness statements and possibly
independent expert opinion to prepare an inquest brief. If approached by the police, a health
care professional witness should advise that they will draft a statement and forward it at a later
date. Health care professional should avoid making statements without assistance, particularly
verbal statements,
even if pressed by the police to do so.
Although not obliged to provide statements, generally it is recommended that health care
professional witnesses do so with the assistance of a legal advisor, unless they wish to take
advantage of the rule against self incrimination (which entitles a person to refuse to answer a
question or produce a document if the answer would tend to expose that person to criminal
proceedings, a civil or administrative penalty or fine and, less commonly, to forfeiture of an
existing right).
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If the Coroner decides to conduct an inquest a date will be set once the investigation is
complete and statements have been obtained. The health care professional and/or his or her
legal advisor should examine the inquest brief prior to the inquest.
A person with a 'sufficient
interest' may appear or (with the leave of the Coroner) be represented by a lawyer. They may
be examined and cross examine other witnesses.
If a statement has been provided to the Coroner, then a health care professional witness may
be called to give evidence at the inquest. If a witness will not give evidence voluntarily, then the
Coroner may summon a person to attend as a witness or to produce any documents or other
materials, and order a witness to answer questions. If a person to whom a summons is issued
does not appear, the Coroner may issue a warrant to apprehend the person.
The Coroner is required to examine witnesses on oath or affirmation. Witnesses may refuse to
answer a question on the grounds of self incrimination. The Coroner is not bound by the rules
of evidence and has a broad discretion to conduct a proceeding. However, in practice, a
coronial inquest resembles a civil trial. A health care professional witness will be asked to read
out his or her statement, to confirm the statement is correct and if any amendments or
clarification are required. Counsel for other parties may then cross examine the witness. The
witness may then be re-examined by his or her own Counsel to clarify matters that arose during
cross-examination.
Following the investigation, the Coroner must find, if possible:
x the identity of the deceased
x how death occurred; and
x the cause of death.
The Coroner may comment on any matter connected with the death including public heath or
safety. The Coroner must not include in a finding or comment any statement that a person is or
may be guilty of an offence. The Coroner has a wide discretion to provide the finding to the
following:
x Director of Public Prosecution
x disciplinary tribunals
x professional bodies; and
x the Department of Human Services.
The Coroner may make recommendations to any minister or public statutory authority on any
matter connected with a death which a Coroner investigated, including public health or safety.
Conclusion
This manual has outlined some of the main legal issues that are anticipated to arise out of the
pilot, and has addressed specific concerns raised by participants.
It must be emphasised that the law is fluid and ever-changing, particularly in relation to medical
issues, so legal outcomes can be unpredictable and definitive answers or solutions cannot
always be offered.
This manual sets out basic principles which can be considered, however, if
problems are encountered.
If you would like to discuss any issues in further detail, or have any other questions or
concerns, please do not hesitate to contact Dr Heather Wellington or Dr Melanie Tan at DLA
Phillips Fox on 9274 5000.
