HEALTH RECORDS ACT 2001 - SECT 51 Circumstances in which Health Complaints Commissioner may decline to entertain complaint

HEALTH RECORDS ACT 2001 - SECT 51

S. 51(1) amended by No. 22/2016 s. 195(a).

    (1)     The Health Complaints Commissioner may decline to entertain a complaint made under section 45(1) by notifying the complainant and the respondent in writing to that effect within 90 days after the day on which the complaint was lodged if the Health Complaints Commissioner considers that—

        (a)     the act or practice about which the complaint has been made is not an interference with the privacy of an individual; or

        (b)     the complaint is made on behalf of a complainant by a person who is not authorised by section 47 to do so; or

S. 51(1)(c) amended by No. 22/2016 s. 195(b).

        (c)     although a complaint has been made to the Health Complaints Commissioner about the act or practice, the complainant has not complained to the respondent; or

S. 51(1)(d) amended by No. 22/2016 s. 195(c).

        (d)     the complaint to the Health Complaints Commissioner was made more than 12 months after the complainant became aware of the act or practice; or

        (e)     the complaint is frivolous, vexatious, misconceived or lacking in substance; or

        (f)     the act or practice is the subject of—

              (i)     an application under another enactment; or

              (ii)     a proceeding in a court or tribunal—

and the subject-matter of the complaint has been, or is being, dealt with adequately by that means; or

        (g)     the act or practice could be made the subject of an application under another enactment for a more appropriate remedy; or

        (h)     the complainant has complained to the respondent about the act or practice and either—

              (i)     the respondent has dealt, or is dealing, adequately with the complaint; or

              (ii)     the respondent has not yet had an adequate opportunity to deal with the complaint.

S. 51(2) amended by No. 22/2016 s. 195(d).

    (2)     A notice under subsection (1) must state that the complainant, by notice in writing given to the Health Complaints Commissioner, may require the Health Complaints Commissioner to refer the complaint to the Tribunal for hearing under Division 6.

S. 51(3) amended by Nos 23/2006 s. 241(b), 6/2012 s. 38(b), 60/2014 s. 140(Sch. 3 item 25.3(b)), 22/2016 s. 195(e), 20/2017 s. 134(Sch. 1 item 10.3), 19/2019 s. 264(2)(c).

    (3)     If the act or practice could be made the subject of an application under—

S. 51(3)(a) substituted by No. 60/2014 s. 140(Sch. 3 item 25.3(a)).

        (a)     the Privacy and Data Protection Act 2014 ; or

        (b)     the Privacy Act 1988 of the Commonwealth; or

S. 51(3)(ba) inserted by No. 23/2006 s. 241(a).

        (ba)     the Disability Act 2006 ; or

S. 51(3)(bb) inserted by No. 6/2012 s. 38(a).

        (bb)     Part VIA of the Freedom of Information Act 1982 ; or

S. 51(3)(c) amended by No. 19/2019 s. 264(2)(a).

        (c)     the Ombudsman Act 1973 ; or

S. 51(3)(d) inserted by No. 19/2019 s. 264(2)(b).

        (d)     the National Disability Insurance Scheme Act 2013 of the Commonwealth—

the Health Complaints Commissioner may refer the complaint to the Information Commissioner, the Federal Privacy Commissioner, the Disability Services Commissioner, the Ombudsman or the NDIS Commissioner, as the case may be, and notify the complainant and the respondent in writing of the referral.

S. 51(4) amended by No. 22/2016 s. 195(f).

    (4)     If the document to which the individual seeks access is a document referred to in section 16, the Health Complaints Commissioner may advise the complainant to make a request for access to the document under the Freedom of Information Act 1982 .

S. 51(5) amended by No. 22/2016 s. 195(g).

    (5)     Within 60 days after receiving the Health Complaints Commissioner's notice declining to entertain a complaint, the complainant, by notice in writing given to the Health Complaints Commissioner, may require him or her to refer the complaint to the Tribunal for hearing under Division 6.

S. 51(6) amended by No. 22/2016 s. 195(h).

    (6)     The Health Complaints Commissioner must comply with a notice under subsection (5).

S. 51(7) amended by No. 22/2016 s. 195(i).

    (7)     If the complainant does not notify the Health Complaints Commissioner under subsection (5), the Health Complaints Commissioner may dismiss the complaint.

S. 51(8) amended by No. 22/2016 s. 195(j).

    (8)     As soon as possible after a dismissal under subsection (7), the Health Complaints Commissioner must, by written notice, notify the complainant and the respondent of the dismissal.

    (9)     A complainant may take no further action under this Act in relation to the subject-matter of a complaint dismissed under this section.