Section 49Q - Conciliation by Health Complaints Commissioner
Extract of legislation
| 49Q | Conciliation by Health Complaints Commissioner | ||
| (1) | This section applies if a person has a right to apply for a review under section 49A of a decision of an agency or Minister in relation to a document containing health information relating to the person. | ||
| (2) | Subject to subsection (4), the person may apply to the Health Complaints Commissioner for conciliation under Division 3 of Part 6 of the Health Records Act 2001 instead of making an application under section 49A of this Act. | ||
| (3) | Division 3 of Part 6 of the Health Records Act 2001 (except section 63) applies to the conciliation as if it were a conciliation of a complaint made under that Act. | ||
| (4) | An application may be made under subsection (2) in relation to a document that is an exempt document referred to in section 32, 33 or 38 but an application cannot be made under that subsection in relation to any other exempt document under this Act. | ||
| (5) | An application under subsection (2) must be made within— | ||
| (a) | 70 days, in the case of a decision referred to in section 27(1)(da); or | ||
| (b) | 28 days, in any other case— | ||
| after the day on which notice in writing of the decision is given to the applicant in accordance with section 27. | |||
| (6) | If the Health Complaints Commissioner has attempted unsuccessfully to conciliate a matter on an application under this Division, he or she must give notice in writing to— | ||
| (a) | the applicant; and | ||
| (b) | the principal officer of the agency or the Minister responsible for the agency or the Minister to whom the request was made; and | ||
| (c) | the Information Commissioner. | ||
Guidelines
Applying to the Health Complaints Commissioner for a review of a document containing health information in certain cases
If these conditions are met, an applicant may elect to use the conciliation process under the Health Records Act 2001 (Vic), instead of under the FOI Act.
The Health Complaints Commissioner may only try to conciliate the matter. It cannot make a formal decision on the review, like OVIC. OVIC’s processes also try to informally resolve matters.
If an applicant chooses to apply for conciliation by the Health Complaints Commissioner, they must apply within 28 days after receiving the agency or Minister’s decision.9
However, if the agency or Minister’s decision refuses to grant access to a document containing health information on the grounds that providing access would pose a serious threat to the life or health of the individual, then the applicant has 70 days to apply for conciliation.10
If conciliation is not successful
If the Health Complaints Commissioner’s attempt to conciliate is not successful, they must write to the applicant, the principal officer of the agency or the Minister to whom the request was made, and the Office of the Victorian Information Commissioner and notify them of the result of the conciliation.13
If conciliation is not successful, the Victorian Civil and Administrative Tribunal may review the decision.14
More information
For more information on conciliation by the Health Complaints Commissioner, see the Health Complaints Commissioner’s website.
For more information on reviews by VCAT, see section 50 – Applications for review by Tribunal.
- Freedom of Information Act 1982 (Vic), section 49PQ(1).
- Freedom of Information Act 1982 (Vic), section 49PQ(1).
- Freedom of Information Act 1982 (Vic), section 49PQ(4).
- Freedom of Information Act 1982 (Vic), section 49PQ(5)(b).
- Freedom of Information Act 1982 (Vic), section 49PQ(6).
- Freedom of Information Act 1982 (Vic), section 49PQ(1).
- Freedom of Information Act 1982 (Vic), section 49PQ(1).
- Freedom of Information Act 1982 (Vic), section 49PQ(4).
- Freedom of Information Act 1982 (Vic), section 49PQ(5)(b).
- Freedom of Information Act 1982 (Vic), section 49PQ(6).
- Freedom of Information Act 1982 (Vic), sections 49PQ(5)(a) and 27(1)(da); Health Records Act 2001 (Vic), section 36.
- Freedom of Information Act 1982 (Vic), section 50(3C).
- Freedom of Information Act 1982 (Vic), sections 49PQ(5)(a) and 27(1)(da); Health Records Act 2001 (Vic), section 36.
- Freedom of Information Act 1982 (Vic), section 50(3C).
