What is conciliation?

Conciliation is a process which may help people resolve their complaint about a health service provider, through discussion and negotiation.

The person who assists both parties in this process is called a conciliator. The conciliator is impartial and is not an advocate for either party. 

The task of the conciliator is to encourage settlement of the complaint in a way that is acceptable to both parties.  This may involve some or all of the following:

• exchanging written information
• gathering additional clinical data
• seeking independent opinions from other practitioners
• co-ordinating informal confidential discussions between the parties
• clarifying and expanding information where necessary.

In general complaints in conciliation fall into two categories, some cases involve elements of both:

• In some cases there is a desire on the part of both parties to explain what happened and why, to share feelings and resolve problems in discussion. Face to face meetings often help in these cases. Conciliation may lead to formal agreements to change or improve services.
• In other cases there is a claim for damages, compensation or remedial treatment. These will often be resolved with the assistance of suitably qualified experts who provide independent opinions. These cases do not always involve face-to-face meetings.

Conciliation allows mutually satisfactory outcomes to be negotiated. It is an effective alternative to litigation in handling claims of negligence or personal injury, as it is inexpensive, collaborative (rather than adversarial) and confidential.

Conciliation is voluntary

Complaints are only referred for conciliation with the agreement of the person making the complaint and the person being complained about. At any stage through the conciliation process either party can decide not to proceed any further in conciliation.

Outcomes are negotiated and agreed between the parties

The Conciliator does not make judgments about the dispute and has no power to force an agreement onto the participants.

Involvement of lawyers and other parties

The parties are not represented in conciliation unless the Commissioner considers it necessary for the process to work effectively. However the parties to a claim for damages or compensation are encouraged to seek advice from lawyers and indemnity insurers. Others may choose to seek advice and support from family members, friends or colleagues.

Conciliation is privileged and confidential

The Act provides that conciliation is privileged, which means anything said or admitted during conciliation may not be quoted or used as evidence in any court or tribunal, and may not be used by the Health Complaints Commissioner as a basis for investigation or inquiry.

For conciliation to be effective everyone involved in the conciliation process should keep the information provided in conciliation in the strictest confidence. This provides the best opportunity for everyone to speak freely and seek an agreeable solution. For this reason the parties will be asked to sign a confidentiality agreement.

The Conciliator is bound under the Act not to disclose any information gained in the conciliation process to any other person except for the purpose of reporting to the Health Complaints Commissioner.

The conciliation process

After receiving the complaint, the conciliator writes to both parties explaining the conciliation process, and the privilege and confidentiality requirements that apply. 

As the conciliation process is open and flexible, the way conciliation is managed will depend on the particular issues in each case.  Each step of the process is designed and negotiated with the agreement of all parties.

Expert opinions

Where the dispute is about a health service provider's liability for negligence or personal injuries, an independent expert opinion may be sought with the agreement of the parties. 

The conciliator arranges for an opinion from an expert in the relevant field through the appropriate college, university faculty, professional organisation, or similar source. If necessary, opinions may be obtained from interstate.  These opinions are used as the basis for further negotiations.

Financial settlements

If a settlement involving financial compensation is reached in conciliation, both parties sign an agreement or written release.  A standard condition is that no future legal action will be taken in respect of the matters giving rise to the complaint.

Where the settlement involves a child it will be necessary for the settlement to be approved by the Supreme Court. Where the settlement involves a person with mental incapacity the settlement will need to be approved by the person's administrator. 

Some financial settlements may require monies to be repaid to Medicare, private health funds, Centrelink and other compensation/rehabilitation agencies.

The settlement may also impact on other benefits or result in a preclusion period. This will depend on the individual circumstances of each case and complainants are advised to seek independent advice in relation to these matters.

Concluding conciliation

Following conciliation, the conciliator must report the outcome to the Commissioner together with a summary of the discussions. Both parties are provided with a copy of the report.

If the outcome of the conciliation process is an agreement, the report ends the complaint as between the parties.  If no agreement (or only partial agreement) is reached, the conciliator may recommend the complaint be investigated, be referred to the appropriate registration board, or make no recommendations.

The Commissioner may end the conciliation process if it seems that no agreement can be reached.

Commissioner may still investigate issues that involve the public interest

If the complaint gives rise to issues that involve the public interest, notwithstanding settlement between the parties, the Commissioner may proceed to investigate those issues.

Public interest matters that are identified by the Commissioner or the conciliator must be drawn to the attention of the parties both before and during the conciliation process.

Frequently asked questions

How long does conciliation take?
This depends on the complexity of the case and the willingness of the parties to resolve the issues between them. 

Do I have to meet with the other party to the complaint face to face?
No. A face-to-face meeting is something that can be negotiated in each individual case.  If the parties do not wish to meet, there is no compulsion to do so.  Many cases are negotiated without any meetings.

Can I still take legal action if conciliation is unsuccessful?
Yes.  If a satisfactory outcome has not been reached in conciliation, you retain your right (subject to limitation periods) to take action through the courts. The parties to conciliation need to remember that any information provided for the purposes of conciliation cannot be used in any subsequent legal action.

What are some possible outcomes?
Some of the outcomes that have resulted from conciliation include:

• explanation of what happened
• financial settlement
• change in health care provision
• apology
• referral to the appropriate registration board
• quality assurance changes

If both parties agreed to compensation how is the amount determined?
The negotiation of the amount of compensation frequently requires the assistance of legal advisers.  However, sometimes the parties agree on a mutually acceptable amount.

Are conciliation records subject to FOI?
Under the Freedom of Information Act 1991 a person has a right to apply for information contained in records held by the Health Complaints Commissioner. However, there are exemptions for confidential and personal affairs information.  
 
Do I have to come to Hobart to conciliate?
No. You can be involved in the conciliation process through telephone, mail and e-mail contacts, teleconference, or by the conciliator travelling to a venue convenient to the parties.