Getting Your Medical Complaint Investigated

If you’ve had a poor experience with a healthcare provider in Australia, you have the right to make a complaint to the relevant authority so it can be investigated. Getting your medical complaint investigated helps to protect the quality and integrity of our health system.

But many people are confused about when they can make a medical complaint and how it’s different to making a medical negligence claim for compensation.

We’ll explain it all here and you can contact us at Main Lawyers with any questions about making a medical complaint or medical negligence claim.

A health practitioner could be:

• a practitioner who is registered with a professional board, like doctors, nurses, chiropractors and dentists
• a practitioner who is unregistered, like nutritionists, naturopaths, speech pathologists, massage therapists and alternative practitioners
• a health care organisation, like a public or private hospital.

You can make your complaint to the government body that manages and investigates complaints about health care providers in your state:

• In Queensland, it’s the Office of the Health Ombudsman.
• In NSW, it’s the Health Care Complaints Commission.

You can also report to the Australian Health Practitioner Regulation Agency, which is responsible for the National Registration and Accreditation Scheme in Australia.

Note that these authorities don’t investigate complaints about fees and charges, access to medical records or court reports. And they don’t provide medical advice or assistance.

But there are various authorities that do deal with these types of issues. Your state ombudsman can point you in the right direction.

How is this different from claiming compensation?

If you’ve suffered harm or loss as a result of your experience with the health care provider, you might be eligible to claim medical negligence compensation.

The above governing bodies don’t deal with compensation for victims. If you want to make a medical negligence compensation claim, you should engage a legal professional, as the process can be complex.

Who can make a medical complaint?

Anyone can make a medical complaint. You might be a patient who’s experienced poor service, treatment or behaviour from a health service. Or you might be the parent, guardian, relative, friend or representative of the patient.

You might even work for another health service provider, or just be a concerned person who’s observed problematic practices by a provider.

Be aware that, if you’re not the patient, privacy laws might limit how much information the complaint authority can give you. Personal information, like another patient’s health records and treatment, usually can’t be released. Additionally, you might not be informed about the provider’s response to your complaint.

If relevant, you should provide any documents that prove you are a patient’s:

• appointed guardian with the authority to make medical decisions
• enduring power of attorney (medical)
• statutory health attorney.

Evidence needed for a medical complaint

Before you make a medical complaint, collect as much supporting evidence as possible to provide to the authority. They will want to see:

• proof that you’ve tried to resolve the complaint directly with the health care practitioner or the reasons why you haven’t
• a copy of any communication you’ve received from the practitioner
• witness statements, medical records, expert reports and any other documentation you have.

Lodging your medical complaint

The process for submitting a medical complaint is usually quite simple.

But first: try to resolve your complaint with the provider directly before you go to the authority. This can often solve the issue without need for official complaint.

But if you’re not happy with the provider’s response or you don’t feel comfortable approaching them directly, you can submit a formal complaint.

Complaint authorities usually have an online complaints portal where you can complete a form, upload your documentation and submit to them. You can also download a form to complete, or even write a letter or email. Check with your state authority for their process.

When you lodge your complaint, provide as many details as possible, including:

• the names of the people involved
• date when any incidents occurred
• full details of what happened and why you have concerns about the provider
• anything you’ve done to directly resolve the problem
• what you’d like the authority to do about it (i.e. what outcome you’re looking for).

They will consider your complaint and investigate if they believe there’s a serious risk to public health or safety. They will also get submissions from the health care provider themselves and then provide their findings.

This process could take a couple of months, depending on the complexity of the issues.

Possible outcomes

There are a wide range of possible outcomes to your medical complaint.

A complaint about a registered practitioner might end in:

• prosecution of the practitioner if there is enough evidence of misconduct
• referral to the higher council or body that will provide non-disciplinary intervention
• recommendations for the practitioner on how to improve their practices, service or treatment
• no further action if the issue was one-off, already resolved or not an ongoing risk to public health or safety.

If the practitioner is unregistered, the authority might publish a ‘prohibition order’ or ‘public warning’ if they have breached their code of conduct. This alerts the public to the potential risk to their health and safety of dealing with the provider.

No matter the outcome, the authority will send a decision letter to all parties to the complaint and tell them the outcome of the investigation and the reasons for their decision. (As discussed above, you might not receive this if you choose to make an anonymous complaint.)

If you’re unhappy with how the investigation was conducted (i.e. you believe they missed something important) or you have new evidence to provide, you have the right to request a review. You can make this request in writing within 28 days of getting the decision letter.

When a complaint is eligible for compensation

A complaint about the quality of a healthcare practitioner’s treatment, service or behaviour may result in consequences for the practitioner and protection for future patients, which is very important.

But if you or a loved one has suffered injury, harm or loss due to a medical professional’s negligence, you may also be eligible to make a claim for compensation.

However, these government authorities can’t force a practitioner to provide compensation for any pain, suffering or financial loss you’ve experienced. For that, you would need to make a compensation claim for medical negligence. Knowing if you have a medical negligence case or not can be quite complex.

At this point, we recommend seeking legal advice, as this process is more complicated.

To prove that medical negligence has occurred, you need to show that:

• the practitioner didn’t behave the way that another competent medical professional would in the same situation
• the practitioner’s behaviour caused injury, loss or worsening of an existing condition.

Generally, you could receive financial compensation for:

• medical costs you’ve incurred, like medication, treatment and travel to and from your medical appointments
• a lump sum payment for pain and suffering, and quality of life
• lost wages if you can’t earn a living as a result.

If a close member of your family has been harmed due to medical negligence, you might be able to claim for the cost of caring for that person in the short or long term, and pain and suffering caused by the event.

Claiming compensation for medical malpractice is more complex than making a medical complaint. You need to provide more evidence and prove:

• loss or harm did occur
• the risk of that loss or harm occurring was foreseeable
• a reasonable person would have tried to prevent it
• the health care practitioner breached their duty of care towards you.