Chapter 15: How to Complain
Types of Complaint Agencies
Human Rights and Equal Opportunity Commission
Unlawful discrimination
Harassment or action against a person with a mental health problem
Discrimination in employment
Medical tests and questions
Superannuation and insurance
Making a complaint
The Anti-Discrimination Board of NSW
Making a complaint
NSW Health Care Complaints Commission (HCCC)
Who can complain
What can be complained about
When can complaints be made
Making a complaint
Disability Complaint Service (NSW)
People with Disability Australia Inc
Who can use the individual and group advocacy service?
How does the advocacy service help?
Complaints Resolution and Referral Service (CRRS)
What are the National Disability Services Standards?
The National Disability Abuse and Neglect Hotline
The Ombudsman
Mediation – Community Justice Centres
How to arrange for a mediation
The Disability Discrimination Legal Centre
Official Visitors
Despite the system’s best intentions, problems can arise for people with a mental illness and their family, friends and carers. Sometimes problems relate to a lack of information or to treatment people receive from doctors, hospitals or other agencies. Unfortunately, problems also arise because some people try to take advantage of others with a mental illness.
This chapter deals with some of the ways people with a mental illness (and their carers) can protect their rights. There are government and community agencies that exist specifically to assist people who have been discriminated against or who wish to complain about treatment they have received or not received. Some agencies have special resources and services to help people with a mental illness or psychiatric disability.
Types of Complaint Agencies
The first section of this chapter outlines the role of the HumanRights and Equal Opportunity Commission (HREOC) and the role of the NSW Anti-Discrimination Board. Both promote anti-discrimination and equal opportunity. HREOC has a Disability Discrimination Commissioner who is responsible for looking after the interests of people with disabilities. There are centres that assist people to make complaints under Commonwealth and NSW anti-discrimination legislation. In NSW, the Disability Discrimination Legal Centre has been set up to do this.
The NSW Health Care Complaints Commission (HCCC) is an independent body that investigates and prosecutes complaints made against health service providers. HCCC also provides information about an individual’s rights in the health system.
The Disability Complaint Serviceis community-based, funded by the Federal Government and run by People With Disabilities NSW Inc. The service helps people to make a complaint but has no legal powers to resolve a complaint.
The Ombudsman listens to complaints about government departments and endeavours to remedy them. There is a Federal Ombudsman and a State Ombudsman. Contact with either of these offices will advise which office to deal with.
As well as these agencies, there are bodies that actively assist people to deal with problems. Community Justice Centres, for example, offer a mediation service that is free, voluntary and confidential.
Human Rights and Equal Opportunity Commission
HREOC is a Federal agency that handles complaints under Commonwealth anti-discrimination laws. The President of HREOC investigates discrimination based on disability, including ‘psychiatric disability’ which is unlawful under the Federal Disability Discrimination Act (DDA).Click here for contact details of the HREOC.
Unlawful discrimination
Unlawful discrimination takes place when people with a disability are treated less favourably than other people would be treated under the same circumstances. Not all ‘different’ treatment of people with a disability is unlawful. When different treatment is intended to ensure that people have equal opportunities or when it is intended to meet their special needs, it is not unlawful discrimination.
The Disability Discrimination Actmakes it unlawful to discriminate against people with a disability which they have now, had in the past, may have in the future, or which they are believed to have. The Act also makes it unlawful to discriminate against associates or partners of people with a disability.
Discrimination based on disability is unlawful in:
- Employment;
- Education;
- Access to premises;
- Accommodation;
- Buying or selling land;
- Activities of clubs;
- Sport;
- Administration of Commonwealth laws and programs; and
- The provision of goods, services and facilities.
This also covers services including banking, insurance, grants, loans, credit or finance; entertainment, recreation or refreshment; transport or travel; telecommunications; services provided by any profession or trade; and any other services provided by government bodies.
Harassment or action against a person with a mental health problem
Harassment involves serious teasing and tormenting (this may include incidents such as psychiatric jokes, calling someone stigmatising names etc). Harassment on the basis of disability is unlawful in employment, education and the provision of goods, services or facilities.
Discrimination in employment
People with a disability have the right to equal employment opportunity. The Disability Discrimination Act makes it unlawful to discriminate against a person with a disability who can perform the ‘inherent’ (or essential) requirements of the job. An employer is obliged to make any adjustments or alterations that will enable the person with the disability to do the job unless this imposes ‘unjustifiable hardship’. Employers may be liable for disability discrimination if they have not taken reasonable steps to prevent it. Employers should have effective policies and practices to remove barriers to equal employment opportunity for people with a disability.
Medical tests and questions
Under the Disability Discrimination Act, people can be asked for information about their disability only if it is for a non-discriminatory purpose. For example, employers and providers of goods may need to ask questions about an employee’s or customer’s disability so that they can make necessary adjustments. Employers should not ask employees personal questions that do not relate to their ability to do the job.
Superannuation and insurance
Insurance companies and superannuation schemes can impose different conditions (or refuse cover) for people with a disability only if this can be objectively justified by reference to actuarial data (facts and figures) or other evidence. They cannot impose special conditions because of their own feelings or prejudices. They must have evidence of how and why a disability might affect their decision to insure or to allow someone to join a superannuation fund.
Making a complaint
If someone feels there has been discrimination, they can complain to the HREOC President who is responsible for handling complaints. Complaints can be lodged:
- By a person directly affected by discrimination, or
- On behalf of someone affected by discrimination.
HREOC staff can give confidential advice by telephone but a formal complaint must be made in writing. HREOC staff will assist if necessary. People may discontinue their complaint at any time. There is no fee for lodging a complaint.
HREOC investigates complaints relating to matters within its powers. Where a complaint appears to involve an unlawful act of discrimination, the Commission will attempt to reach a settlement by conciliation. Conciliation involves bringing the two sides together to resolve the complaint on terms acceptable to both sides. The conciliation provess is private and confidential and HREOC staff are prohibited by Federal law from disclosing details of any individual case.
Where a complaint cannot be resolved by conciliation, a person can take the complaint to the Federal Court or the Federal Magistrates’ Court. Conciliation, or orders made by the Court, can result in payment of damages; reinstatement or promotion; an apology; and/or changes in policies or practices. However, if a case is not successful the applicant may be liable for extensive legal costs. People should discuss their matter with HREOC prior to proceeding to the Federal Court.
The Anti-Discrimination Board of NSW
The Anti-Discrimination Board was set up under the NSW Anti-Discrimination Act 1977 (ADA) for complaints related to NSW laws. This Act specifies that discrimination on the grounds of:
- Race;
- Sex (including sexual harassment and pregnancy);
- Age (including compulsory retirement);
- Marital status;
- Homosexuality;
- Disability;
- Transgender; and/or
- Carer’s responsibilities (in employment only)
Is unlawful in the areas of:
- Employment (except by religious organisations and private schools);
- Public education;
- Provision of goods and services;
- Registered clubs; and
- Accommodation.
The ADA also covers race, HIV/AIDS, transgender and homosexual vilification.
Making a complaint
A complaint may be made by an individual or group. Sometimes a complaint can be made on behalf of another person such as a person with a disability.Complaints must be made in writing and within twelve months of the act of discrimination occuring. There is no fee for lodging a complaint.
Click for contact details for the Anti Discrimination Board.
NSW Health Care Complaints Commission (HCCC)
The HCCC reviews investigates and resolves health care complaints to maintain, promote and improve health standards and the quality of health care services in NSW.
HCCC was established under the Health Care Complaints Act 1993. The HCCC:
- Receives and deals with complaints concerning the care and treatment provided by health practitioners and health services;
- Resolves complaints with the parties;
- Provides opportunities and support for people to resolve complaints or concerns locally;
- Investigates complaints and takes appropriate action;
- Prosecutes disciplinary cases before disciplinary bodies;
- Publishes and distributes information on the Commission’s work and activities;
- Advises the Minister and others on trends in complaints; and
- Consults with consumers and other key stakeholders.
Who can complain
Everyone has the right to make a complaint including:
- A person who has received a health care service, or their nominee;
- An observer who could be a friend, relative or fellow patient, concerned about the conduct of a health care practitioner or the treatment given to someone by a health care practitioner or health care service;
- A person providing a health care service, such as a doctor, dentist, pharmacist or nurse;
- A health care facility such as a public or private hospital or nursing home;
- Professional associations, such as the Australian Medical Association or the NSW Nurses' Association; or
- NSW health registration authorities, such as the Medical Board, the Dental Board, Nurses Registration Board or the Pharmacy Board.
What can be complained about
Complaints may be made about the care and treatment of an individual patient or the professional conduct of a health care practitioner in NSW. For example, a complaint may be made about:
- An aspect of care or treatment including inadequate care, inadequate diagnosis, incorrect prescribing, lack of consent, communication;
- The care provided by a hospital, a nursing home, a community health service, a private clinic or any other service that provides health care;
- The care and treatment provided by a doctor, nurse, dentist, chiropractor or any other health care practitioner including unregistered health care practitioners, such as acupuncturists, social workers, naturopaths; or
- Access to medical records, privacy, breaches of confidentiality, discrimination or other health rights; or the inappropriate behaviour, unethical or unprofessional conduct of a health care practitioner.
When can complaints be made
Complaints about health care providers can be made at any time. It is better to resolve complaints as soon after the event as possible, and by dealing directly with the health care provider. However, in some cases, for example, of sexual or physical assault, this may not be appropriate. Complaints about health care can be resolved using a number of different mechanisms depending upon the issues, services and individuals concerned.
Because of the difficulties in following up events that occurred in the distant past, the Commission has the discretion not to deal with matters more than 5 years old.
Making a complaint
Contact the HCCC Telephone Inquiry Service during business hours Monday to Friday to discuss a concern about treatment. If someone wants to pursue a matter further they must make a complaint in writing. The Commission will help put a complaint in writing if needed. The Commission will assess the matter, and if it raises a significant issue of public health and safety, it will investigate the complaint. Other resolution options are conciliation or local resolution with the help of a Resolution Officer.
Back to TopDisability Complaint Service (NSW)
People with Disability Australia Inc
People with Disability Australia Inc. (PWD) offers free individual and group advocacy services for people with disability. The service provides non-legal advocacy to individuals and groups of people with disability who have serious and urgent problems. Advocacy means actively standing up for and representing the interests of another person or group of people.
The service also gives advice and information to people with disability and their associates about how to advocate for themselves.
Who can use the individual and group advocacy service?
Anyone living in NSW with a disability can use PWD’s service. Priority is given to:
- Children with disability
- People with disability in rural and regional areas
- People with disability from Non-English speaking and Aboriginal and Torres Strait Islander backgrounds.
PWD can only provide advocacy for people with disability who have urgent problems and are unable to deal with the problems without PWD’s assistance.
How does the advocacy service help?
PWD’s advocates give people ideas and information about how they can advocate for themselves or for other people. Advocacy is also provided directly to individuals or groups of people with disability, but it is always short-term. It focuses on solving one or two major issues or problems. Advocacy may include:
- Face-to-face meetings with the person or service the person has problems with
- Letter writing
- Phone calls
- Other strategies.
The Individual Advocacy team acted as an advocate for a young mother with a mental illness whose small son was about to be adopted.
Complaints Resolution and Referral Service (CRRS)
The CRRS is a PWD service that helps people with disability sort out complaints about disability employment and advocacy services funded by the Commonwealth Department of Family and Community Services.
Who can make a complaint?
Anyone who
- Uses or wants to use disability employment or advocacy services funded by the Commonwealth Department of Family and Community Services; and/or
- Is concerned about a person who uses or wants to use these services.
If someone is making a complaint on behalf of someone else, the CRRS will ask the person for whom the complaint is being made if it is okay for them to look into it.
What can people make a complaint about?
The CRRS helps sort out complaints when a service is not meeting the National Disability Services Standards. They help if someone has a problem at work or with a service that helps find work or with an advocacy service. The CRRS will ascertain if a problem is about the Disability Services Standards. If it is not, they will advise about other services that may be able to help.
Details for PWD are located on page 155.
What are the National Disability Services Standards?
There are twelve Standards that Commonwealth-funded disability services must follow.
1. Service Access: Getting a service when someone needs it
A user can complain if a service:
- Does not have fair rules about who can use the service
- Will not help the user
- Stops helping the user
- Is not accessible (eg. the user cannot get into the building).
2. Individual Needs: Getting the help needed
A user can complain if a service does not:
- Help work out the user’s goals
- Help the user write their goals in a plan
- Help the user follow their plan
- Keep the plan up to date
- Help the user learn new skills
- Think about the user’s cultural needs.
3. Decision-making and Choice: Having a say
A user can complain if a service does not:
- Give choices
- Ask how the service can be made better
- Listen to what users have to say about the service.
4. Privacy, Dignity and Confidentiality: Keeping things private
A user can complain if a service:
- Does not keep personal information in a private place
- Gives personal information to someone else without asking the person if it is OK
- Does not treat the user with respect.
5. Participation and Integration: Taking part in the community
A user can complain if a service does not:
- Help the user to be a part of the community
- Help the user use services in the community
- Help the user get a job in the community.
6. Valued Status: Doing things the community thinks are important
A user can complain if a service does not:
- Help the user to do things in the community that other people do
- Help the user learn how to take part in the community
- Have respect for the things the user does.
7. Complaints and Disputes: Saying there is a problem and getting it fixed
A user can complain if a service:
- Does not tell the user how they can make a complaint
- Does not help the user make a complaint
- Tells the user that they are not allowed to make a complaint
- Tells the user that they will get into trouble if they make a complaint
- Does not try to fix the problem.
8. Service Management: Running the service well
A user can complain if a service does not:
- Follow appropriate Standards or rules
- Have a plan to make the service better
- Ask what users think about the service
- Does not tell users how it uses money from the government.
9. Employment Conditions: Having rights at work
A user can complain if they do not get their work entitlements. eg, if the user does not:
- Get paid what they are entitled to
- Get a pay slip
- Work in a safe environment
- Get time off when they are sick.
10. Training and Support: Learning skills to work
A user can complain if an employment service does not give the training needed to:
- Find a job
- Keep a job
- Learn how to do new jobs.
11. Staff Recruitment: Employment and Training, Having staff who can help
A user can complain if a service does not:
- Know what skills the staff need to help
- Have staff with the right skills to help
- Keep training the staff.
12. Protection of Human Rights and Freedom from Abuse: Being safe, feeling safe
A user can complain if a service:
- Lets people abuse or neglect them
- Does not stand up for their rights.
What will the CRRS do?
The CRRS does not take sides. The CRRS helps people talk about complaints and solve them. When looking at a complaint the CRRS:
- Will talk to the person who makes the complaint;
- Will get the other side of the story;
- Will write a letter to the service;
- May investigate the complaint; and/or
- May hold a special meeting (conciliation).
The CRRS will check if the complaint is solved. If the complaint is not solved, the CRRS will tell the Department of Family and Community Services.
Will my complaint be kept private?
The CRRS will not give information about any complaint to anyone else unless the individual involved say it’s OK. The CRRS can also keep names private and will not tell the service that a particular person made a complaint.
The National Disability Abuse and Neglect Hotline
The Hotline aims to make a difference on an individual level and on a system level, where the reported abuse or neglect affects many people. The Hotline analyses individual reports and monitors patterns and trends in reports to identify changes that may be required to policies and procedures within government-funded services to help prevent abuse and neglect.
Reporting abuse or neglect takes courage and Hotline staff understand that there is a very real fear of retribution. They strive to provide a safe environment for people to report abuse or neglect. They take time to listen to the person making the complaint and explore their concerns about referring the report to the government funding body. If a person wants to remain anonymous, staff will spend time determining what details can be left in the report so the person is confident they cannot be identified.
The Hotline is also available to act as a sounding board for people who, at least initially, want to pursue a complaint directly through the service. Even if a report to the Hotline is not referred to the government funding body due to a fear of retribution or for other reasons, the Hotline collects data on each report that it then includes in a regular report to the Federal Government. The Hotline uses these reports to highlight areas of weakness in services that need to be reviewed to prevent abuse or neglect.
Definitions of abuse and neglect used by the Hotline are broad and include physical, sexual, psychological and emotional abuse; constraint and restrictive practices; financial, legal, civil and systemic abuse; physical, emotional and passive neglect, and wilful deprivation.
Case Study Jenny has a mental illness and needs assistance with both personal care and housework. Unfortunately, the number of hours of assistance allocated to her by her service provider was insufficient to meet all her needs. After Jenny’s request to the service provider for more support hours was refused, Jenny contacted the Hotline for help. The Hotline told Jenny this might be a case of neglect by the service. The Hotline reported Jenny’s situation to the government department that funds her service provider. After reviewing the situation, the department realised that Jenny’s health was being put at risk by the insufficient care hours allocated to her. The department discussed her situation with the service provider and together they decided to provide more hours for Jenny so that her needs could be better met. |
Hotline contact numbers are as such:
1800 880 052
TTY: 1800 301 130
NRS: 1800 555 677
TIS: 131 450
The Ombudsman
There is a Federal Ombudsman and a State Ombudsman. If you contact either of these offices you will be advised which office to deal with. Each Ombudsman listens to and monitors complaints about government departments and tries to remedy them and improve public administration.
The NSW Ombudsman has responsibilities under a range of legislation including the Ombudsman Act 1974 (NSW), Police Act 1990, Freedom of Information Act 1989, Telecommunications (Interception) (NSW) Act 1987, Protected Disclosures Act 1994, Witness Protection Act 1995, Community Services (Complaints, Appeals and Monitoring) Act 1994, Law Enforcement (Controlled Operations) Act 1997, and legislation covering each NSW University. The Ombudsman also has various powers to review the implementation of a range of legislative schemes and requirements.
The Ombudsman investigates complaints about government departments, including police, local councils and community services (which include services provided by government and some non-government agencies). The investigation powers of the State and Commonwealth Ombudsman are similar.
Who can complain?
Any individual, company, organisation, association or public authority has a right to complain. If a person doesn’t wish to complain themselves, a relative, friend, solicitor, welfare worker, accountant, or anyone else can complain on their behalf. A local Member of Parliament can also make a complaint for an individual.
How to make a complaint
Before complaining to the Ombudsman, people should first attempt to resolve the problem by talking or writing to the Government department or authority concerned. This may be the quickest way of getting a satisfactory result. If a person decides to make a formal complaint, it is preferable for it to be in writing. If they find composing the letter difficult, staff at the Ombudsman’s office can help. Staff can arrange for translation and interpreter services.
What sorts of complaints go to the Ombudsman?
The Ombudsman investigates conduct that may be:
- Illegal;
- Unreasonable, unjust or oppressive;
- Improperly discriminatory;
- In accordance with any law or established pratice, but the law or practice is unreasonable, oppressive, unjust or improperly discriminatory.
- Based on improper motives, irrelevant grounds or irrelevant consideration;
- Based on a mistake of law or fact; and/or
- Where reasons should have been given but were not given.
In respect of community services, people can complain to the Ombudsman about the conduct of service providers with respect to the provision, failure to provide, withdrawal, variation or administration of a community service in respect to a particular person or a group of persons.
The NSW Ombudsman cannot investigate complaints against:
- Most private individuals or companies (apart from community service providers);
- Decisions of courts or tribunals;
- Parliament or ministers; or
- Commonwealth departments or employers – these are referred to the Commonwealth Ombudsman.
During an investigation, the Ombudsman can examine files and records held by the Department or Authority concerned, can enter the authority's premises, can question people and take evidence on oath. The Ombudsman cannot force a change of practice but can recommend it to the Minister and the head of the Department or Authority. The vast majority of recommendations by the Ombudsman do get implemented
If a Department or Authority does not accept the recommendation, the Ombudsman may send copies of the report on the matter to the Prime Minister (in the case of the Commonwealth Ombudsman) or to the Parliament. The power to bring a matter to the attention of Parliament, and thus to the public through the media, is the Ombudsman’s real power.
Complaints investigated by the Commonwealth Ombudsman include the delay or refusal by Centrelink to grant pensions and benefits. The NSW Ombudsman can also look at unreasonable use of arrest or detention powers by police.
Confidentiality
In most circumstances, a complainant’s name is given to the public authority concerned in the complaint. Beyond this, all investigations are private. Descriptions of cases are published in the Ombudsman’s annual report, but complainants are not identified without their permission. Personal details of minors are never published.
Review of the Ombudsman’s decision
If not satisfied with the Ombudsman’s response, people can write to the Ombudsman stating why they are unhappy with the decision. The Ombudsman will re-examine the decision. There is no charge for anything the Ombudsman does.
Details of the NSW and Federal Ombudsmen are located on page 155.
Mediation – Community Justice Centres
Mediation is a way of solving problems without going to court or a tribunal. In mediation, the parties in dispute agree to come together to find a solution to a problem. Anyone involved in a dispute can take steps to resolve it through mediation. For example, if someone is having a dispute with a landlord or with a case manager, they can arrange a mediation session through the Community Justice Centre (CJC). Mediation services are free, voluntary and confidential.
Mediators do not take sides or decide who is to blame. They assist the parties in dispute to reach agreement or find a solution that is fair and reasonable. Each mediation session is conducted by two mediators. Once an agreement is reached, the points of agreement are written down by the mediators with the help of the parties who are present and who sign the completed written agreement.
How to arrange for a mediation
The procedure is informal and there is no need to go to the Centre in person to arrange for mediation. Simply contact your local Community Justice Centre by phone, fax, or email . The centre will provide information about mediation and will contact other people involved in a conflict to see whether they will attend a mediation session. Mediation services are available throughout NSW.
To find out where your local CJC is located follow this link.
The Disability Discrimination Legal Centre
If someone thinks they have received less favourable treatment because of their disability, they may have grounds for lodging a complaint of discrimination with the Human Rights and Equal Opportunity Commission. The Disability Discrimination Legal Centre may be able to help with such a complaint. Contact details are on page 155.
The Disability Discrimination Legal Centre service is free to people with disabilities, their family, carers, organisations representing people with disabilities, and other community legal centres. The Centre provides information, advice and representation. It conducts seminars and workshops for other legal centres and organisations representing people with disabilities.
Official Visitors
Official Visitors can also assist with complaints. For more information on the Official Visitors Program, go to ‘Official Visitors’ in Chapter 3.