The Health Complaints Commissioner offers an impartial way to help parties resolve complaints through a process called conciliation.
What is conciliation?
Conciliation is a process that gives the parties – both the person making the complaint and the health service provider – an opportunity to discuss the issues. Conciliation is a confidential process, which encourages open and honest communication in a safe environment.
The goal of conciliation is to help the parties share their perspectives and understand each other’s experiences and concerns. The process supports them to work towards resolving the complaint and achieving an outcome that is acceptable for both. We help by proposing options to resolve the complaint. If the parties reach an agreement, we will document the terms of that agreement.
Conciliation usually involves a meeting, or a series of meetings, facilitated by one of our impartial conciliators.
What complaints are suitable for conciliation?
If both of the parties are open to discussing the issues, conciliation may be suitable for resolving complaints where:
- there has been a breakdown in the relationship between the parties
- the parties want to understand or explain what happened and why it happened
- the person making the complaint wants to see improvements in the quality of the health service or how it’s provided
- an apology, acknowledgement or explanation may help resolve the concerns
- a practical, mutually acceptable resolution can be achieved.
The Health Complaints Commissioner’s role
The role of the conciliator from the office of the Health Complaints Commissioner is to facilitate the discussion. They guide the conversation and support the parties to explore options for resolving the complaint. The conciliator does not decide who is right or wrong or decide how a complaint should be resolved. They support both parties by:
- helping them understand the complaint
- identifying what matters most to each of them
- exploring possible options for resolving the complaint
- documenting any agreement that the two parties reach.
Conciliation process
Confidential and privileged
All parties must keep information provided in conciliation confidential. All information provided in a conciliation process is also privileged. This means that anything said and any information given during conciliation cannot be used as evidence in a court or tribunal. The Health Complaints Commissioner cannot use anything said in conciliation as the basis for an investigation.
Before conciliation
When a person makes a complaint to us about a health service they have received, we may refer the complaint to conciliation if we assess that it is appropriate to do so. The conciliator will:
- notify both parties that the complaint has been referred to conciliation
- discuss the conciliation process with both parties before the meeting
- discuss with both parties what the conciliation meeting will cover, develop an agenda for the meeting, and discuss available days and times to meet
- discuss with the person making the complaint whether they need a support person for the meeting
- discuss the outcomes both parties want and whether those outcomes can be achieved.
During the conciliation meeting
Both parties must attend the first conciliation meeting. The conciliator from the office of the Health Complaints Commissioner also attends the meeting. They facilitate the meeting and make a record of the discussions and any agreements. The conciliator performs an independent and impartial role throughout the process. They:
- provide a fair environment for both parties
- make sure the participants are authorised to resolve the complaint
- make sure both parties have an equal opportunity to share their understanding of the issues, and express their views and concerns
- encourage respectful, focused and constructive discussions between the parties
- support the parties to identify issues and concerns, and explore possible solutions
- help the parties to negotiate an outcome, without directing the outcome or imposing a decision
- may suggest options or approaches to help resolve the complaint, while remaining neutral
- summarise the key points and agreed outcomes
- make sure both parties understand any agreements reached
- make sure both parties know what the next steps will be.
Concluding the conciliation process
At the end of the conciliation process, the conciliator will provide a report to the Health Complaints Commissioner. The report will put in writing any agreements the parties reached during the conciliation meetings.
If the written record of the agreements is signed by both parties within 14 days from when the agreements were reached, it will be binding on both parties. This means both parties will be legally required to do what they agreed to do.
What outcomes are possible from conciliation?
Explanation
The person making the complaint may get a detailed explanation from the health service provider that helps them understand what happened and why it happened. This can often resolve a dispute.
Changes in policy or procedure
Through listening to the person who has made the complaint and discussing it with them, a provider may realise there are problems with their processes or policies. This can help them correct those problems. This can prevent the same thing happening to someone else. It improves the quality of the health service.
Apology
Conciliation can encourage a health service provider to acknowledge if they did something wrong. They can then apologise to the person making the complaint for any negative consequence they experienced.
Financial settlement
During conciliation, the parties can explore payment of compensation. The outcome must be agreed by both parties. The conciliator cannot decide or award compensation.
Frequently asked questions
How long does conciliation take?
This depends on how complex the complaint is and how willing the parties are to resolve the issues.
Do I need a lawyer?
Neither party needs a lawyer to participate in conciliation. However, parties may seek legal advice at any time, including in conciliation.
Where there is a claim for a refund of fees or compensation, health service providers usually seek advice from their medical insurer or lawyer. People making complaints may also wish to seek legal advice about how much to claim.
Can I still take legal action if conciliation is unsuccessful?
Yes. If the complaint is not resolved in conciliation, you still have the right to take action through the courts. This may be subject to time limitations on bringing actions to court. The parties to conciliation need to remember that information provided in conciliation cannot be used as evidence in any later legal action.
Are conciliation records subject to the Right to Information Act 2009?
The Right to Information Act 2009 (Tas) does not apply to information the Health Complaints Commissioner has except for information about the administration of the Commissioner’s office. Therefore, conciliation records cannot be released under the Right to Information Act.
Do I have to come to Hobart for conciliation meetings?
No. The conciliation can be held at a convenient location and in some cases can be conducted by video call, telephone, mail or email.