Lodgement and assessment of complaints
This chapter focuses on the first part of the complaints process, up to
and including assessment.
Submitters' main concerns about this part of the complaints process
knowing where to lodge a complaint; and
eliminating vexatious complaints.
In relation to the second issue, this chapter considers the concerns
raised by submitters, the evidence regarding the prevalence of vexatious
complaints and examines some of the proposed solutions.
Knowing where to lodge a complaint
Before a complaint can be lodged, people seeking to make a complaint about
a health practitioner need to find the appropriate forum to do so. In most
jurisdictions there are multiple entities to which a complaint may be made.
Consumers are required to identify which entity is the most appropriate to deal
with their concerns. Depending on the circumstances, it may not be clear where
they should lodge a complaint.
The Health Practitioner Regulation National Law (the National Law)
refers to a complaint about a registered health practitioner as a notification.
The person that makes the notification is referred to as the notifier.
A concerned potential notifier may choose to approach the practice or
entity where the patient received treatment, the health complaints entity
(often a health complaints commissioner) in their state or territory or the
Australian Health Practitioner Regulation Agency (AHPRA).
As noted in Chapter 1, matters about a registered health practitioner or
student are referred to the relevant national board that regulates the profession.
To assist notifiers, the National Law requires that if a health
complaints entity receives a complaint about a registered health practitioner,
it is required to notify the relevant board and provide a copy of the
The complaints entity and the national board must then seek to reach agreement
on how the complaint ought to be managed.
The committee received evidence from the heads of the health complaints
entities in the Australian Capital Territory, South Australia and Queensland
about the process through which complaints were referred to the relevant
national board, through AHPRA, in those jurisdictions. Each of these
jurisdictions reported a positive relationship with AHPRA that included regular
meetings to monitor progress.
The commissioners reported that they were kept informed at each stage of
the process at those regular meetings.
Mr Steve Tully, Commissioner, Health and Community Services Complaints
Commissioner (SA) noted that:
...there has been a significant improvement around consultation
and keeping up to date with where things are at, and we can certainly raise
issues at any time.
Despite these efforts, other submitters noted that confusion remains
about responsibilities for handling complaints about health practitioners. 
It appears that notifiers who initially lodge their complaints with the
health complaints entity are then transferred to AHPRA if their notification
requires it. Mr Tully explained to the committee that, currently, a lot of
notifiers come back to the health complaints entity if they are dissatisfied
with the outcome of the AHPRA process rather than directly approaching the
National Health Practitioner Ombudsman and Privacy Commissioner. 
To improve the experience of notifiers, AHPRA has established an online
AHPRA started surveying notifiers about their experiences in November
2016 in an attempt to improve their experience of the process.
Survey data provided with AHPRA's submission revealed that:
53 per cent of respondents agreed or strongly agreed that it was
easy to find information about how to make a complaint with AHPRA;
78 per cent of respondents said locating the online portal was 'very
easy' or 'easy';
75 per cent of respondents said that using the online portal was
very easy or easy.
However, as Dr Judith Healy commented to the committee:
...it is very complicated to find out where you go. So it
certainly helps to have one portal... you can go to lodge a complaint. But I do
not know how well it is advertised to the public. I do not think it is...I think
people are just not very clear on where that information lies.
The committee notes that navigating where to lodge a complaint has been
confusing for consumers. The committee supports the work AHPRA is undertaking
to attempt to make the process of lodging a complaint easier for consumers.
This is a complex area of regulation with many possible points of entry.
The committee acknowledges that knowing where to lodge a complaint continues to
be an ongoing issue for some people.
During the committee's previous inquiry, it found that the complaints
process can sometimes be used by health practitioners for bullying or
Similarly, most of the submissions to this inquiry from health
practitioners, or groups aligned with health practitioners, considered vexatious,
or baseless, notifications to be a significant issue for the complaints process.
It has been proposed by several witnesses that when vexatious
notifications are not identified early in the complaints process, health
practitioners can be subjected to unmerited adverse consequences including
misrepresentation in media reporting;
significant levels of stress;
and risks the loss of the practitioner's employment.
The problem for the committee was that it received only limited
independent evidence about the prevalence of these types of complaints.
Evidence of prevalence
Most of the evidence the committee received about vexatious complaints
was from practitioners who expressed concern that complaints made against them,
their colleagues or members of their association were vexatious.
For example, the Australian Dental Association (ADA) reported to the
committee that of the 421 notifications made against New South Wales dental
practitioners in the 2015–16 financial year, 208 were dismissed by the Dental
Council of New South Wales.
The inference seemed to be that the 208 notifications were vexatious, although
that is not necessarily the case.
The Association of Family and Conciliation Courts (AFCC) explained that
single expert witnesses in family law proceedings have been subjected to
notifications initiated by family law litigants seeking to 'find fault or
discredit opinions given in the course of family law proceedings'.
The considerable anecdotal evidence provided by practitioners stood in
contrast to independent evidence provided to the committee by the National
Health Practitioner Ombudsman and Privacy Commissioner (NHPOPC).
The NHPOPC provided the committee with analysis of complaints lodged
with her office. The NHPOPC's analysis suggests that there are not a
significant number of cases in which the respective health practitioner
believed the notification against them was made vexatiously.
In response to a question on notice to the committee's previous inquiry,
NHPOPC submitted that she received two vexatious notifications each year in
2014–15 and 2015–16. As a proportion of NHPOPC's total notifications for these
periods, vexations notifications comprised three per cent and one per cent
NHPOPC's submission to the committee also indicates vexatious
notifications for the 2016–17 year were trending higher than in the previous
two years, with an estimated twelve complaints received at the time of
submission, or 6.5 per cent of the total notifications received during the
The conflict between the perspectives of the practitioners and the findings
of the NHPOPC may be explained by differing interpretations of the use of the
During the hearing on 31 March 2017, AHPRA's Community Reference Group
were asked about what constituted a vexatious complaint. In their answer to the
question on notice, AHPRA's Community Reference Group provided 13 possible
definitions of the word 'vexatious'.
The definitions provided are consistent with how practitioners may view the
However, Ms Georgie Haysom, Head of Advocacy at Avant noted that there
is a difference between a lay definition of vexatious and the legal definition
of vexatious. Ms Hayson explained:
The legal meaning of 'vexatious' is different from the
ordinary meaning, and at law the definition of 'vexatious' is very narrow and
the threshold for a complaint or other legal action to be considered to be
vexatious is high. So the number of complaints that fall within this legal
definition is likely to be very small. I think that the ordinary meaning of
that is broader, though, and probably the word is used in that broader meaning
by many who talk about vexatious complaints.
Power to take no further action
If vexatious notifications are identified, it is within the power of the
national boards to 'take no further action' in relation to a notification made
under the National Law.
2.33 However, it would be incorrect to assume that all matters that result in
no further action being taken were vexatious. Mr Martin Fletcher, Chief
Executive Officer of AHPRA informed the committee that this may be the case if
the practitioner 'has already taken steps to address the concern' or there is
no ongoing risk that needs to be managed.
Following the preliminary assessment of a notification, AHPRA is
required to refer a notification to the relevant national board that regulates
the registered health practitioner to which the notification pertains.
Following the receipt of a referred notification, the national board is
required to decide what action, if any, should be taken.
Under section 151 of the National Law, a national board may decide to take no
further action on the basis that the national board has reasonable grounds to
believe that the notification was made vexatiously.
The power of a national board to take no further action can be employed
at a relatively early stage in the complaints process. Despite this, some health
practitioners perceive that the power is being exercised too late.
All decisions, including those to take no further action, are required
to be assessed by the national board or a committee of the national board.
In its submission to the inquiry, AHPRA reported that in an analysis of 2718
complaints closed about doctors during the 2015–16 financial year, 64 per cent
of complaints were closed following assessment.
Complaints were closed in a median timeframe of around two months when
regulatory action was not taken.
In instances when regulatory action was taken, the median timeframe to close
the complaint was three and a half months.
NHPOPC’s submission to the inquiry noted it did not identify any issues
with AHPRA’s application of the power to dismiss vexatious notifications.
Submitters proposed a number of reforms that may assist to minimise the prevalence
of vexatious complaints.
History of complainants
Submissions from several health practitioner organisations suggested
that a complaints entity, in its early assessment of notifications, should
consider the notification history of complainants.
The rationale underpinning the proposed consideration of a complainant's
history is to address what has been described as AHPRA’s 'guilty until proven
In reviewing the history of notifications made by a complainant, vexatious
complainants may be identified earlier in the complaints process and this
information can be used to inform the subsequent deliberations of the national
Another recurring suggestion from witnesses and submitters to potentially
eliminate vexatious complaints and increase timeliness was that AHPRA should recruit
health practitioners to assist in triaging complaints.
In November 2016, AHPRA advised the committee that 42 of 180 staff
employed in its notifications division had a clinical background and that
another 15 clinically trained staff advise the notifications, registration,
compliance and legal teams.
Under the existing process, the members of the board—both practitioners
and community members—consider each notification to assess its seriousness and
whether the board ought to open an investigation.
However, Dr Joanna Flynn, Chair of the Medical Board of Australia (MBA) explained
to the committee that the MBA was currently refining its processes, saying:
...we have been trialling another process that I think is very
productive, which is that the original letter of notification goes straight to a
committee within a week of it being received.
Dr Flynn informed the committee that the trial process was also under
consideration by a number of other states and territories.
The committee was surprised to learn that the original notification is
not routinely provided to the board.
Submitters and witnesses raised the prospect that the boards and
participants may benefit from more specialised clinical input at the initial
stages of the process. For example, the AFCC suggested that complaints be
screened by someone with family law experience where notifications were made
about single expert witnesses in family law proceedings.
In its submission, AHPRA confirmed that it had:
increased clinical input into
the complaints assessment process earlier in the process, for example, through
earlier and quicker clinical triage and assessment mechanisms.
At the committee's public hearing on 31 March, Mr Fletcher reiterated
that AHPRA was focussed on improving its assessment and triage processes.
Avant Mutual Group Limited also submitted that triaging was an area that
AHPRA had worked to improve.
The committee notes the perspective of some health
practitioners—including the perspective of professional bodies representing
health practitioners—that notifications made under the National Law are, at
times, misused for the purpose of making a vexations complaint against a registered
Whilst the committee acknowledges the concerns raised by health
practitioners, the independent evidence received by the committee does not suggest
that vexatious notifications are a widespread issue; rather, they appear to be relatively
In instances where vexatious notifications are made, the committee
recognises that there can be unwarranted and disproportionate adverse
consequences for the health practitioner concerned. Accordingly, the committee
considers it is essential for vexatious complaints to be identified and
dismissed at the earliest possible stage in the complaints process through the
'take no further action' mechanism.
The committee maintains the view that it is central to the integrity of
the complaints mechanism that prospective complainants are not discouraged from
raising a notification. Excessive regulation of the 'front door' of the
complaints mechanism may increase the risk that genuine complaints are not
addressed. Such an outcome would diminish the efficacy of the regulatory
protections offered by the complaints mechanism.
To that extent, the committee commends AHPRA's efforts to triage
complaints to streamline the complaints process. The new trial process appears
to enhance the existing triaging system and supports its expansion to the
remaining jurisdictions. However, the committee considers that more can be
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