Of the 109,957 registered nurses and midwives in NSW as at 30 June 2019, fewer than 700 NSW nurses and midwives had complaints made about them (nurses 634) (midwives 32). That said, the chances are that most nurses or midwives will experience a notification (complaint) at some point in their career, whether as the recipient or indirectly in relation to a colleague or student.

This information sheet sets out the framework in NSW for dealing with complaints about nurses and midwives who are currently registered.

Formal Complaints

NSW has a co-regulatory framework, which essentially means that complaints and notifications about the conduct, performance or health of nurses, midwives and students in NSW are jointly dealt with by:

• The NSW Health Care Complaints Commission (HCCC) and
• The Nursing and Midwifery Council of NSW (the Council).

The NSW scheme means that complaints can be made by patients, relatives, employers, and other health professionals to any one of:

• The Council
• The HCCC
• AHPRA (Australian Health Practitioner Regulation Agency)
• The Board (Nursing and Midwifery Board of Australia)

 

What is the role of the Board?

The Nursing and Midwifery Board of Australia sets the professional and ethical standards for the profession. It also sets the amount of registration fees. Its role is not to act as representative or advocate for the profession.

The Board is appointed to regulate the profession in the public interest, which it does in part by ensuring only suitably qualified practitioners provide care to the Australian public. In States and Territories other than NSW (and now also Queensland), the Board has a greater role in regulation because it not only regulates registration of practitioners but it also deals with notifications (complaints) about them.

The Board is responsible for the profession’s code of conduct and it also issues guidelines such as those relating to mandatory reporting, advertising, use of social media and expectations regarding continuing professional development and education. This information is readily available on its website.

Matters about registration are dealt with nationally by the Nursing and Midwifery Board of Australia (the Board) and the Australian Health Practitioner Regulation Agency (AHPRA). However, all other aspects of regulation of health practitioners are dealt with differently in NSW compared with other States and Territories.

What is the role of the Council?

The Nursing and Midwifery Council of NSW is a statutory body established in July 2010 under the Health Practitioner Regulation National Law Act (NSW). The Council does not manage registration matters, but works alongside the HCCC to manage complaints in NSW.

The Council generally handles those complaints that don’t warrant prosecution by the HCCC. These might include complaints about a practitioner’s health impairment or performance as well as lower level conduct matters to be resolved by counselling or other non-disciplinary responses.

What is the role of the HCCC?

The NSW HCCC works in consultation with the Council to manage and investigate all complaints about nurses and midwives working in NSW. The HCCC also deals with complaints about health organisations as well as those about unregistered practitioners (which includes registered practitioners providing health services outside of their scope, such as personal care assistants and doulas). This information sheet focuses on complaints against registered health practitioners providing services within their scope.

Whilst the HCCC is the independent investigator and prosecutor of complaints, it is obliged to consult with the Council at various decision-making stages. Whenever a complaint is lodged, all relevant bodies are notified. A representative from the HCCC meets regularly with the Council to discuss the best way to deal with new complaints as well as reviewing the progress of previously received complaints.

How are complaints dealt with?

Matters involving clinical judgment are usually referred to the HCCC Assessment Committee, which determines whether there has been a breach of standards.

The HCCC also deals with boundary issue complaints including those involving inappropriate relationships with patients as well as other serious criminal matters such as fraud or sexual assault.

First stage – HCCC Assessment

The HCCC has 60 days in which to assess a complaint. This time limit does not include time taken to consult with the Council.

The HCCC is required to notify a practitioner that a complaint has been made. Usually a copy of the complaint is provided to the practitioner and they will be asked for an initial response.

Sometimes the details of the complaint are withheld if there are concerns that disclosing it at this stage presents risks to the health or safety or a person (including risk of intimidation), employment repercussions or if doing so might prejudice an investigation.

How to respond to a formal complaint

There is no one-size-fits-all approach to responding to a complaint. They vary in complexity and seriousness and the issues raised will be specific to the individual complaint. (Some general guidance is contained in our information sheet How to Deal With Complaints.)

Your response should be in writing and address all of the concerns raised. Don’t be afraid of apologising – sometimes this is what the complainant is seeking. Take it seriously and make the time to set out your perspective, what action has been taken to investigate the complaint and any future preventative measures (if any have been implemented). All professionals make mistakes but it is an individual’s response to those mistakes which determines what action will be taken. Bear in mind that the overriding function of a regulator is to protect the public – it is not to punish individuals.

The following factors are some of those which may be taken into account by the decision maker when considering what outcome is appropriate and they are also useful pointers when preparing a response:

• The gravity of the conduct
• When the conduct occurred
• The practitioner’s level of remorse
• The practitioner’s level of insight
• Any rehabilitative steps taken (such as changes to practice as a result of the complaint or further education and training initiated by the practitioner)
• Whether any further steps are required to protect the public.

 

Outcomes following HCCC Assessment

Once the Assessment Committee has completed its preliminary investigation it may recommend that the Council:

• Take no further action (if there is no evidence of departure from expected standards of care).
• Refer the complaint to the HCCC’s Resolution Service (for conciliation or resolution)
• Refer the complaint for local resolution (to the relevant public health facility)
• Deal with the complaint itself by disciplining, counselling or re-educating the practitioner.
• Refer the complaint to a more appropriate agency (such as Medicare)
• Refer the complaint to the HCCC for formal investigation (if it may result in disciplinary proceedings or it raises a serious issue of public health or safety).

 

Second stage – HCCC Investigation

The HCCC must refer for formal investigation, those complaints which:

• Raise a significant issue of public health or safety
• Raise a significant question as to the appropriate care or treatment provided to a patient
• If substantiated, would provide grounds for disciplinary action against a health practitioner.

An investigation allows for further evidence gathering from the complainant, witnesses, obtaining additional medical records, reports from independent experts about the standard of conduct or clinical treatment. Further submissions (a more detailed response) will be sought from the practitioner.

At the end of the investigation, the HCCC prepares a report summarising the allegations, evidence and findings and making a recommendation as to outcome. That report will usually be provided to the parties unless the recommendation is for referral to the Director of Proceedings to consider prosecution.

Outcomes following HCCC Investigations

There are a number of outcomes available for recommendation at the end of the HCCC Investigation. They are:

• No further action
• Make comments to practitioner to improve future practice or treatment
• Refer to Council for action
• Refer to Director of Proceedings to determine whether to prosecute unsatisfactory professional conduct or professional misconduct (See our information sheet What is a Health Discilinary Matter
• Refer to Director of Public Prosecutions to consider possible criminal charge/s.

 

Although being the subject of an HCCC investigation is likely to be a source of stress and anxiety for most practitioners, it is important to note that it is open to the HCCC at the conclusion of the investigation to take no further action, and that statistically this the most frequent outcome.

Who do I contact when I receive a complaint or notification?

Whether you are providing an initial response during HCCC Assessment or submissions during a subsequent HCCC investigation, Catherine Henry Lawyers can assist.

You may also wish to consult with your professional association, indemnity insurer, employer or a relevant senior person – supervisor, manager or consultant – whilst keeping in mind the obligation to protect the confidentiality in the complaint. If you are employed in the public sector you may wish to contact the complaints manager or the clinical governance unit of your Local Health District.

Although statistically the majority of complaints do not result in health disciplinary action, should your matter be referred to the HCCC Director of Proceedings you should immediately inform your professional indemnity insurer and seek legal advice if you haven’t already done so.

How can we help?

If you are looking for information or help in dealing with a complaint, we can help you navigate the process.

Our health law team is highly respected with specialist knowledge accumulated over 25 years. We can assist you by providing expert advice and legal support in the regulatory arena.

Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995 or info@catherinehenrylawyers.com.au or visit  www.chpartners.com.au

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.