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Private Health Insurance Bill 2007

Part 6-2 Private Health Insurance Ombudsman

Division 235 Introduction

235-1   Principal object of this Part

                   The principal object of this Part is to establish the office of, and set out the powers and functions of, the Private Health Insurance Ombudsman so that he or she may protect the interests of people who are covered by private health insurance by:

                     (a)  assisting people who have made complaints relating to private health insurance to resolve those complaints; and

                     (b)  investigating the practices and procedures of private health insurers, * private health insurance brokers and * health care providers; and

                     (c)  mediating between private health insurers and health care providers; and

                     (d)  disseminating information about private health insurance and the rights and obligations of privately insured people.

235-5   Private Health Insurance (Ombudsman) Rules

                   Matters relevant to this Part are also dealt with in the Private Health Insurance (Ombudsman) Rules. The provisions of this Part indicate when a particular matter is or may be dealt with in these Rules.

Note:          The Private Health Insurance (Ombudsman) Rules are made by the Minister under section 333-20.



 

Division 238 Establishment and functions

238-1   Establishment of office of Private Health Insurance Ombudsman

                   For the purposes of this Act, there is to be a Private Health Insurance Ombudsman.

Note:          See Division 253 for matters relating to the office of Private Health Insurance Ombudsman.

238-5   Functions of Private Health Insurance Ombudsman

                   The Private Health Insurance Ombudsman has the following functions:

                     (a)  dealing with complaints under Division 241;

                     (b)  conducting investigations under Division 244;

                     (c)  publishing (in written form and on the Private Health Insurance Ombudsman’s website) a report, called the State of the Health Funds Report, as soon as practicable after the end of each financial year providing comparative information on the performance and service delivery of all private health insurers during that financial year;

                     (d)  collecting and publishing (in written form and on the Internet) information about the * complying health insurance products available to people, in order to assist people to understand the entitlements and benefits available under those products;

                     (e)  publishing, in aggregate form, information (not * personal information) about complaints under Division 241;

                      (f)  reporting and making recommendations to the Minister under sections 241-60 and 244-15;

                     (g)  reporting to the Minister or to the Department about the practices of particular private health insurers or * private health insurance brokers;

                     (h)  reporting (as part of reports mentioned in paragraph (g)) to the Minister or to the Department about the practices of particular * health care providers, to the extent to which those practices relate to:

                              (i)  the application of * private health insurance arrangements or classes of private health insurance arrangements to services or goods provided, or to goods manufactured or supplied, by the health care providers; or

                             (ii)  private health insurance arrangements or classes of private health insurance arrangements to which those kinds of health care providers may be party;

                      (i)  making recommendations to the Minister or the Department about regulatory practices or industry practices relating to private health insurers or private health insurance brokers;

                      (j)  making recommendations (as part of recommendations mentioned in paragraph (i)) to the Minister or to the Department about regulatory practices or industry practices relating to health care providers, to the extent to which those practices relate to:

                              (i)  the application of private health insurance arrangements or classes of private health insurance arrangements to services or goods provided, or to goods manufactured or supplied, by the health care providers; or

                             (ii)  private health insurance arrangements or classes of private health insurance arrangements to which those kinds of health care providers may be party;

                     (k)  promoting a knowledge and understanding of the Private Health Insurance Ombudsman’s functions;

                      (l)  any other functions that are incidental to the performance of any of the preceding functions.



 

Division 241 Complaints

Subdivision 241-A Relevant complaints

241-1   Who may make a complaint

             (1)  A complaint may be made to the Private Health Insurance Ombudsman by any of the following:

                     (a)  a person who is, or was at the time of the incident to which the complaint relates, insured or seeking to be insured under a * private health insurance policy;

                     (b)  a private health insurer;

                     (c)  a * health care provider;

                     (d)  a * private health insurance broker.

             (2)  A complaint may be made by a person on behalf of a person mentioned in subsection (1).

241-5   Persons against whom complaints may be made

                   A complaint may be made to the Private Health Insurance Ombudsman against any of the following:

                     (a)  a private health insurer;

                     (b)  a * health care provider;

                     (c)  a * private health insurance broker.

241-10   Grounds for complaint

             (1)  The complaint may be about:

                     (a)  any matter arising out of or connected with a * private health insurance arrangement; or

                     (b)  any matter arising out of or connected with Chapter 2.

             (2)  A complaint against a * health care provider must, in addition to being about a matter in subsection (1), also:

                     (a)  be about either or both of the following:

                              (i)  the application of a * private health insurance arrangement to goods or a service provided, or goods manufactured or supplied, by the health care provider;

                             (ii)  a private health insurance arrangement to which the health care provider is, or was at the time of the incident to which the complaint relates, a party; and

                     (b)  satisfy at least one of the following:

                              (i)  the complaint must also be made against a private health insurer;

                             (ii)  the complainant must be a private health insurer or a person insured under a * private health insurance policy;

                            (iii)  if the complainant is another health care provider or a * private health insurance broker—a private health insurer or a person insured under a private health insurance policy must also be a complainant in relation to the complaint.

             (3)  The Private Health Insurance (Ombudsman) Rules may specify matters about which complaints cannot be made.

Subdivision 241-B Dealing with complaints

241-15   Initial receipt of complaint

                   On receiving a complaint, the Private Health Insurance Ombudsman may:

                     (a)  inform the subject of the complaint of the nature of the complaint; and

                     (b)  request information from the subject under Division 250.

241-20   Ways of dealing with complaints

             (1)  The Private Health Insurance Ombudsman may deal with a complaint by:

                     (a)  conducting mediation under Division 247; or

                     (b)  referring the complaint to the subject of the complaint under Subdivision 241-C; or

                     (c)  if section 241-45 applies—investigating the complaint under Subdivision 241-D.

             (2)  The Private Health Insurance Ombudsman must not take any action mentioned in subsection (1) unless the complainant agrees to the action being taken.

             (3)  The Private Health Insurance Ombudsman must not take, or continue to take, any action mentioned in paragraph (1)(a) or (c) if the complainant withdraws the complaint.

             (4)  The Private Health Insurance Ombudsman must not take any action mentioned in subsection (1) if the complaint is about a matter specified in the Private Health Insurance (Ombudsman) Rules for the purposes of subsection 241-10(3).

241-25   Referral to the Australian Competition and Consumer Commission

             (1)  If, in the Private Health Insurance Ombudsman’s opinion, a complaint raises a matter that could be dealt with more effectively or conveniently by the Australian Competition and Consumer Commission, the Private Health Insurance Ombudsman must, subject to subsections (2) and (3), refer the matter to the Australian Competition and Consumer Commission.

             (2)  The Private Health Insurance Ombudsman must not refer the matter to the Australian Competition and Consumer Commission unless the complainant agrees to the referral.

             (3)  The Private Health Insurance Ombudsman must not refer the matter to the Australian Competition and Consumer Commission if the complainant withdraws the complaint.

             (4)  If the Private Health Insurance Ombudsman refers the matter to the Australian Competition and Consumer Commission, the Private Health Insurance Ombudsman must:

                     (a)  tell the complainant of the matter’s referral; and

                     (b)  give the Australian Competition and Consumer Commission any information or documents that relate to the complaint and that are in the Private Health Insurance Ombudsman’s possession or under his or her control.

             (5)  The Australian Competition and Consumer Commission may investigate the matter. If it does, it must, within 30 days after the referral, report to the Private Health Insurance Ombudsman on:

                     (a)  the conduct of the investigation; and

                     (b)  any findings that it has made as a result of the investigation.

             (6)  If the Australian Competition and Consumer Commission decides not to investigate the matter, it must, within 30 days after the referral, give the Private Health Insurance Ombudsman a written notice informing the Private Health Insurance Ombudsman of its decision and of the reasons for its decision.

241-30   Referral to other bodies

             (1)  If, in the Private Health Insurance Ombudsman’s opinion, a complaint raises a matter that could be dealt with more effectively or conveniently by another body, the Private Health Insurance Ombudsman must, subject to this section, refer the matter to that body.

             (2)  The Private Health Insurance Ombudsman must not refer the matter to the other body unless the complainant agrees to the referral.

             (3)  The Private Health Insurance Ombudsman must not refer the matter to the other body if the complainant withdraws the complaint.

241-35   Deciding not to deal with a complaint

             (1)  The Private Health Insurance Ombudsman may decide not to deal, or not to continue to deal, with a complaint in accordance with this section. If the Private Health Insurance Ombudsman so decides, he or she must:

                     (a)  tell the complainant of the decision and the reasons for the decision; and

                     (b)  if requested by the complainant—give the complainant written notice of the decision and the reasons for the decision.

             (2)  The Private Health Insurance Ombudsman may decide not to take any action in relation to a complaint if the incident to which the complaint relates occurred more than 12 months before the complaint is made.

             (3)  The Private Health Insurance Ombudsman may decide not to deal with a complaint if he or she is satisfied that the complainant has not taken reasonable steps to negotiate a settlement of the complaint with the subject of the complaint.

             (4)  The Private Health Insurance Ombudsman may decide not to deal, or not to continue to deal, with a complaint if the complainant does not agree to a matter relating to the complaint being referred to another body under section 241-30.

             (5)  The Private Health Insurance Ombudsman may decide not to deal, or not to continue to deal, with a complaint, if he or she believes that:

                     (a)  the subject of the complaint has dealt, or is dealing, adequately with the complaint, or has not yet had an adequate opportunity to do so; or

                     (b)  the Private Health Insurance Ombudsman has dealt adequately with the complaint; or

                     (c)  the complainant is capable of assisting the Private Health Insurance Ombudsman in dealing with the complaint but does not do so on request; or

                     (d)  the complainant does not have a sufficient interest in the subject matter of the complaint; or

                     (e)  the matter is trivial; or

                      (f)  the complaint is frivolous or vexatious or was not made in good faith; or

                     (g)  the complaint is mainly about commercial negotiations and, having regard to the object of this Part, it is not appropriate to deal, or to continue to deal, with the complaint; or

                     (h)  the complaint is mainly about clinical matters and, having regard to the object of this Part, it is not appropriate to deal, or continue to deal, with the complaint; or

                      (i)  the complainant has exercised, or exercises, a right to have the matter to which the complaint relates reviewed by a court or tribunal constituted by or under a law of the Commonwealth or of a State or Territory; or

                      (j)  both:

                              (i)  the complainant has, or had, a right to have the matter to which the complaint relates reviewed by a court or by a tribunal constituted by or under a law of the Commonwealth or of a State or Territory, but has not exercised that right; and

                             (ii)  it is, or would have been, reasonable for the complainant to exercise that right.

Subdivision 241-C Referral to subjects of complaints

241-40   Referral to the subject of the complaint

             (1)  The Private Health Insurance Ombudsman may, at any time and whether or not mediation has been conducted under Division 247, refer a complaint to the subject of the complaint and request the subject:

                     (a)  to investigate the complaint; and

                     (b)  to report to the Private Health Insurance Ombudsman on the outcome of the investigation and any action that the subject proposes to take as a result, before the end of the period specified in the request.

Note:          The Private Health Insurance Ombudsman must have the complainant’s agreement to act under this section (see subsection 241-20(2)).

             (2)  The subject may, before the end of the period specified in the request, ask the Private Health Insurance Ombudsman to extend that period.

             (3)  If the Private Health Insurance Ombudsman refuses the request, the Private Health Insurance Ombudsman must give his or her reasons for refusing.

Note:          A refusal to extend the period is reviewable under Part 6-9.

Subdivision 241-D Investigation of complaints

241-45   Investigation of complaint

                   The Private Health Insurance Ombudsman may investigate a complaint if:

                     (a)  the complaint is not resolved to the complainant’s satisfaction by mediation under Division 247; or

                     (b)  the Private Health Insurance Ombudsman is not satisfied with the outcome of a referral under Subdivision 241-C.

Note:          The Private Health Insurance Ombudsman must have the complainant’s agreement to act under this section and cannot continue if the complaint is withdrawn (see subsections 241-20(2) and (3)).

241-50   Minister may direct Private Health Insurance Ombudsman to investigate, or to continue to investigate, a complaint

             (1)  If the Private Health Insurance Ombudsman decides under section 241-35 not to investigate, or not to continue to investigate, a complaint made by a person, the person may apply, in writing, to the Minister for a direction by the Minister to the Private Health Insurance Ombudsman to investigate, or to continue to investigate, the complaint.

             (2)  If the Minister directs the Private Health Insurance Ombudsman to do so, the Private Health Insurance Ombudsman must:

                     (a)  investigate, or continue to investigate, the complaint; and

                     (b)  report to the Minister under section 241-60 on the findings of his or her investigation.

Subdivision 241-E Recommendations and reports

241-55   Recommendations as a result of referral or investigation

             (1)  The Private Health Insurance Ombudsman may make recommendations under this section after:

                     (a)  receiving a report from the subject of a complaint after referral under Subdivision 241-C; or

                     (b)  investigating a complaint under Subdivision 241-D.

             (2)  The Private Health Insurance Ombudsman may recommend any or all of the following:

                     (a)  to a private health insurer, that the insurer take a specific course of action in relation to the complaint or make changes to its * rules, or both;

                     (b)  to a private health insurer, that the insurer request a * health care provider or * private health insurance broker to take a specific course of action in relation to the complaint;

                     (c)  to a health care provider or private health insurance broker, that the provider or broker take a specific course of action in relation to the complaint.

             (3)  The Private Health Insurance Ombudsman may request the person to whom the recommendation was made, or an * officer of that person, to report to the Private Health Insurance Ombudsman, before action is taken to give effect to the recommendation, on the action proposed to be taken. The request must specify the period within which the report is to be given.

             (4)  A person commits an offence if:

                     (a)  a request is made of the person under subsection (3); and

                     (c)  the person does not comply with the request.

Penalty:  30 penalty units.

             (5)  Strict liability applies to subsection (4).

Note:          For strict liability , see section 6.1 of the Criminal Code .

241-60   Report to Minister on outcome of investigation under Subdivision 241-D

             (1)  The Private Health Insurance Ombudsman may report and make recommendations under this section after completing an investigation of a complaint against a particular subject under Subdivision 241-D.

             (2)  The Private Health Insurance Ombudsman may report to the Minister on the outcome of the investigation (including any recommendations made to the subject of the complaint and any responses to those recommendations).

             (3)  The Private Health Insurance Ombudsman may recommend to the Minister either or both of the following:

                     (a)  general changes in regulatory practice or industry practices relating to the kind of subject of complaint;

                     (b)  possible means of dealing with specific problems arising in relation to the particular subject of the complaint.

             (4)  The Private Health Insurance Ombudsman may make recommendations under paragraph (3)(b) concerning * health care providers or a particular health care provider only to the extent to which the recommendations relate to:

                     (a)  the application of a * private health insurance arrangement or a class of private health insurance arrangements to services or goods provided, or goods manufactured or supplied, by that kind of health care provider; or

                     (b)  a private health insurance arrangement or a class of private health insurance arrangements to which that kind of health care provider may be party.

             (5)  Before reporting to the Minister under this section, the Private Health Insurance Ombudsman must:

                     (a)  inform the subject of the complaint that the Private Health Insurance Ombudsman proposes to make the report and of the nature of any criticism of the subject’s conduct that will appear in the report; and

                     (b)  invite the subject to comment on such criticism, before the end of the period specified in the invitation.

The Private Health Insurance Ombudsman must include in the report any comments made by the subject.

Subdivision 241-F Miscellaneous

241-65   Complainant to be kept informed

             (1)  The Private Health Insurance Ombudsman must keep the complainant informed about the Private Health Insurance Ombudsman’s handling of the complaint.

             (2)  The Private Health Insurance Ombudsman must inform the complainant in writing of:

                     (a)  any action taken by a private health insurer, a * health care provider or * private health insurance broker as a result of the Private Health Insurance Ombudsman’s handling of the complaint; and

                     (b)  any recommendations made by the Private Health Insurance Ombudsman under section 241-55;

and the reasons for the action or recommendation.



 

Division 244 Investigations

Subdivision 244-A Investigations

244-1   Initiating investigations

             (1)  The Private Health Insurance Ombudsman may, on his or her own initiative, investigate the practices and procedures of a private health insurer or a * private health insurance broker.

             (2)  The Private Health Insurance Ombudsman may, on his or her own initiative, investigate the practices and procedures of a * health care provider together with an investigation of a private health insurer under subsection (1), if:

                     (a)  the investigation relates to a matter arising out of or connected with a * private health insurance arrangement; and

                     (b)  the practices and procedures relate to either or both of the following:

                              (i)  the application of a private health insurance arrangement to services or goods provided, or to goods manufactured or supplied, by the health care provider;

                             (ii)  a private health insurance arrangement to which the health care provider is, or was in the period to be investigated, a party; and

                     (c)  the Private Health Insurance Ombudsman considers, having regard to the object of this Part, that investigation of the health care provider together with the private health insurer is necessary or appropriate in order to consider the matter effectively.

Note:          An investigation may include mediation (see section 247-1).

244-5   Investigations at Minister’s request

             (1)  The Minister may request the Private Health Insurance Ombudsman to investigate the practices and procedures of a private health insurer or a * private health insurance broker.

             (2)  The Minister may request the Private Health Insurance Ombudsman to investigate the practices and procedures of a * health care provider together with an investigation of a private health insurer under subsection (1), if:

                     (a)  the investigation relates to a matter arising out of or connected with a * private health insurance arrangement; and

                     (b)  the practices and procedures relate to either or both of the following:

                              (i)  the application of a private health insurance arrangement to services or goods provided, or to goods manufactured or supplied, by the health care provider;

                             (ii)  a private health insurance arrangement to which the health care provider is, or was in the period to be investigated, a party; and

                     (c)  the Minister considers, having regard to the object of this Part, that investigation of the health care provider together with the private health insurer is necessary or appropriate in order to consider the matter effectively.

             (3)  If the Minister makes a request under this section, the Private Health Insurance Ombudsman must conduct an investigation.

Note:          An investigation may include mediation (see section 247-1).

Subdivision 244-B Recommendations and reports

244-10   Recommendations as a result of investigation

             (1)  The Private Health Insurance Ombudsman may make recommendations under this section after conducting an investigation under this Division.

             (2)  The Private Health Insurance Ombudsman may recommend either or both of the following:

                     (a)  to a private health insurer, that the insurer take a specific course of action or make changes to its * rules, or both;

                     (b)  to a * health care provider or * private health insurance broker, that the provider or broker take a specific course of action.

             (3)  The Private Health Insurance Ombudsman may request the person to whom the recommendation was made, or an * officer of that person, to report to the Private Health Insurance Ombudsman, before action is taken to give effect to the recommendation, on the action proposed to be taken. The request must specify the period within which the report is to be given.

             (4)  A person commits an offence if:

                     (a)  a request is made of the person under subsection (3); and

                     (b)  the person does not comply with the request.

Penalty:  30 penalty units.

             (5)  Strict liability applies to subsection (4).

Note:          For strict liability , see section 6.1 of the Criminal Code .

244-15   Report to Minister on outcome of investigations under this Division

             (1)  The Private Health Insurance Ombudsman may, after completing an investigation under section 244-1, and must after completing an investigation under section 244-5:

                     (a)  report to the Minister on the outcome of the investigation and any mediation conducted as part of the investigation (including any recommendations made to the subject of the investigation); and

                     (b)  make recommendations to the Minister:

                              (i)  concerning general changes in regulatory practice or industry practices relating to that kind of subject of investigation; or

                             (ii)  concerning possible means of dealing with specific problems arising in relation to the particular subject of the investigation.

             (2)  The Private Health Insurance Ombudsman may make recommendations under paragraph (1)(b) concerning * health care providers or a particular health care provider only to the extent to which the recommendations relate to:

                     (a)  the application of a * private health insurance arrangement or a class of private health insurance arrangements to services or goods provided, or to goods manufactured or supplied, by that kind of health care provider; or

                     (b)  a private health insurance arrangement or a class of private health insurance arrangements to which that kind of health care provider may be party.

             (3)  Before reporting to the Minister under this section, the Private Health Insurance Ombudsman must:

                     (a)  inform the subject of the investigation that the Private Health Insurance Ombudsman proposes to make the report and of the nature of any criticism of the conduct of the subject that will appear in the report; and

                     (b)  invite the subject to comment on such criticism, before the end of the period specified in the invitation.

The Private Health Insurance Ombudsman must include in the report any comments made by the subject.

244-20   Consultation with Australian Competition and Consumer Commission

                   If the Private Health Insurance Ombudsman considers, as a result of an investigation under this Division, that there might have been conduct in the nature of a restrictive trade practice for the purposes of the Trade Practices Act 1974 , the Private Health Insurance Ombudsman must consult with the Australian Competition and Consumer Commission and have regard to the advice of the Australian Competition and Consumer Commission on the matter before reporting on it under section 244-15.



 

Division 247 Mediation

247-1   Conducting mediation

             (1)  The Private Health Insurance Ombudsman may, at any time, try to settle a complaint made under Division 241 by mediating between the complainant and the subject of the complaint.

             (2)  The Private Health Insurance Ombudsman may, if he or she considers it appropriate and consistent with the object of this Part, try to resolve a matter being investigated under Division 244 by mediating between a private health insurer and a * health care provider.

             (3)  A party’s participation in the mediation may be:

                     (a)  voluntary; or

                     (b)  required by a direction given to the party by the Private Health Insurance Ombudsman under section 247-5.

Note:          If mediating a complaint, the Private Health Insurance Ombudsman must have the complainant’s agreement to act under this section and cannot continue if the complaint is withdrawn (see subsections 241-20(2) and (3)).

247-5   Participation in mediation may be compulsory

             (1)  The Private Health Insurance Ombudsman may direct:

                     (a)  the subject of a complaint made under Division 241; or

                     (b)  a private health insurer that is the subject of an investigation under Division 244; or

                     (c)  a * health care provider that is the subject of an investigation under Division 244;

to participate in mediation under section 247-1.

             (2)  The Private Health Insurance (Ombudsman) Rules may set out matters to which the Private Health Insurance Ombudsman is to have regard when deciding whether or not to give a direction under subsection (1).

             (3)  The direction must:

                     (a)  be in writing; and

                     (b)  name either or both of the following:

                              (i)  the subject of the complaint or investigation;

                             (ii)  an * officer, or officers, of that subject; and

                     (c)  be given to those named in it; and

                     (d)  specify the time of the mediation, which must not be earlier than 14 days after the day on which the direction is given; and

                     (e)  specify the place of the mediation.

Note:          Subsection 33(3) of the Acts Interpretation Act 1901 has the effect that the direction may be varied or revoked.

             (4)  A person commits an offence if:

                     (a)  the person is named in a direction under subsection (1); and

                     (b)  the other party to the mediation attends, or was willing to attend, the mediation; and

                     (c)  the person, or, if the person is a * medical practitioner who has appointed a representative in relation to the mediation under section 247-10, the person’s representative, fails to participate in part or all of the mediation.

Penalty:  30 penalty units.

247-10   Medical practitioners may appoint representatives

             (1)  If the Private Health Insurance Ombudsman directs a * medical practitioner under subsection 247-5(1) to participate in mediation, the medical practitioner may appoint an individual to participate in the mediation on the practitioner’s behalf.

             (2)  The appointment must be:

                     (a)  in writing; and

                     (b)  signed by the * medical practitioner; and

                     (c)  made before the mediation starts.

247-15   Conduct of compulsory mediation

             (1)  If the Private Health Insurance Ombudsman directs a party to participate in mediation, the mediation may be conducted by:

                     (a)  the Private Health Insurance Ombudsman; or

                     (b)  a person appointed by the Private Health Insurance Ombudsman under section 247-25.

             (2)  Mediation in which a party is directed to participate ceases:

                     (a)  if the parties agree to settle the matter; or

                     (b)  if the Private Health Insurance Ombudsman concludes that the matter cannot be settled by mediation.

             (3)  The Private Health Insurance (Ombudsman) Rules may set out matters to which the Private Health Insurance Ombudsman is to have regard before concluding that a matter cannot be settled by mediation.

             (4)  A person appointed by the Private Health Insurance Ombudsman under section 247-25 to conduct mediation must, as soon as practicable after the mediation is conducted or should have been conducted, report to the Private Health Insurance Ombudsman about:

                     (a)  whether the mediation was conducted; and

                     (b)  if the mediation failed—the reasons for the failure; and

                     (c)  if the parties agreed to settle the complaint—the terms of the settlement, including any action to be taken.

247-20   Admissibility of things said in mediation

             (1)  Evidence of anything said, or any admission made, during participation in mediation under section 247-1 is not admissible:

                     (a)  in any court (whether exercising federal jurisdiction or not); or

                     (b)  in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

             (2)  This section applies whether or not a party is directed to participate in the mediation.

247-25   Appointment of mediators

             (1)  The Private Health Insurance Ombudsman may appoint a person to conduct mediation in which a person is or will be directed to participate under section 247-5.

             (2)  The Private Health Insurance (Ombudsman) Rules may set out matters to which the Private Health Insurance Ombudsman is to have regard when appointing a person under this section.

             (3)  The person is appointed for the period specified by the Private Health Insurance Ombudsman in the instrument of appointment.

             (4)  Subject to Division 323 (disclosure of information), the person is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done, reasonably and in good faith, in or in relation to the conduct of the mediation.



 

Division 250 Information-gathering

250-1   Information-gathering

Information-gathering for Division 241 complaints

             (1)  The Private Health Insurance Ombudsman may, for the purposes of:

                     (a)  deciding if, and how, to deal with a complaint made under Division 241; or

                     (b)  mediating a complaint made under Division 241; or

                     (c)  investigating a complaint made under Division 241; or

                     (d)  evaluating action proposed by the subject of a complaint after referral of the complaint to the subject under Subdivision 241-C;

request the subject of the complaint, or an * officer of the subject, to give the Private Health Insurance Ombudsman the * records of the subject (relating to the complaint) that are specified in the request, before the end of the period specified in the request.

Information-gathering for Division 244 investigations

             (2)  The Private Health Insurance Ombudsman may, for the purposes of an investigation under Division 244 (including mediating as part of the investigation under Division 247), request the subject of the investigation, or an * officer of the subject:

                     (a)  to give the Private Health Insurance Ombudsman the information (relating to the practices and procedures being investigated) that is specified in the request; or

                     (b)  to give the Private Health Insurance Ombudsman the * records of the subject (relating to the practices and procedures being investigated) that are specified in the request;

before the end of the period specified in the request.

General provisions about information-gathering

             (3)  The Private Health Insurance Ombudsman may make one or more requests under subsection (1) or (2) in relation to a complaint or investigation, at any time while the Private Health Insurance Ombudsman is dealing with the complaint or investigation.

             (4)  A person to whom a request is made under subsection (1) or (2) may, before the end of the period specified in the request, ask the Private Health Insurance Ombudsman to extend the period specified in the request.

             (5)  If the Private Health Insurance Ombudsman refuses to extend the period, the Private Health Insurance Ombudsman must give his or her reasons for refusing.

Note:          A refusal to extend the period is reviewable under Part 6-9.

             (6)  A person is not excused from giving information or producing a * record when required to do so under subsection (1) on the ground that the giving of the information, or the production of the record, might tend to incriminate the person or make the person liable to a penalty. However, the giving of the information, or the production of the record, or anything obtained as a direct or indirect consequence of the giving or production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code .

             (7)  A person commits an offence if:

                     (a)  a request is made to the person under subsection (1) or (2); and

                     (b)  the person fails to comply with the request by the end of the period specified in the request or, if that period has been extended, by the end of the extended period.

Penalty:  30 penalty units.

             (8)  Strict liability applies to subsection (7).

Note:          For strict liability , see section 6.1 of the Criminal Code .

250-5   Limits on information-gathering

             (1)  A request made to the subject of a complaint, or an * officer of the subject of a complaint, under subsection 250-1(1) must not request * records that relate to the subject’s dealings with the complainant unless the complainant consents to the records being given.

             (2)  A request made to a private health insurer, or an * officer of a private health insurer, under subsection 250-1(2) must not request information or * records that relate to a particular individual who is or was insured, or is or was seeking to be insured, under a * private health insurance policy of the insurer, unless the individual consents to the records or information being given.

             (3)  A request made to a * health care provider, or an * officer of a health care provider, under subsection 250-1(2) must not request information or * records that relate to a particular individual who is or was a patient of the health care provider, unless the individual consents to the information or records being given.

             (4)  A request made to a * private health insurance broker, or an * officer of a private health insurance broker, under subsection 250-1(2) must not request information or * records that relate to a particular individual who is or was a client of the broker unless the individual consents to the information or records being given.

250-10   Disclosure of personal information

             (1)  This section applies if a person gives a * record, information or a document to the Private Health Insurance Ombudsman, reasonably believing that this would assist the Private Health Insurance Ombudsman in:

                     (a)  mediating a complaint under Division 247 or otherwise dealing with it under Subdivision 241-B or 241-D; or

                     (b)  referring a complaint under section 241-25 or 241-30; or

                     (c)  making a decision under section 241-35 not to deal, or not to continue to deal, with a complaint; or

                     (d)  investigating a matter under section 244-1 or 244-5.

             (2)  For the purposes of:

                     (a)  the Privacy Act 1988; and

                     (b)  any provision of a law of a State or Territory that provides that * personal information contained in a * record, information or document may be disclosed if the disclosure is authorised by law;

the giving of the record, information or document to the Private Health Insurance Ombudsman is taken to be authorised by law.



 

Division 253 Provisions relating to the Private Health Insurance Ombudsman

253-1   Appointment of the Private Health Insurance Ombudsman

             (1)  The Private Health Insurance Ombudsman is to be appointed by the Minister, by written instrument, in accordance with any Private Health Insurance (Ombudsman) Rules.

             (2)  The Private Health Insurance Ombudsman may be appointed on a full-time or a part-time basis.

             (3)  The Private Health Insurance Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

253-5   Validity of appointments

                   The appointment of a person as Private Health Insurance Ombudsman is not invalid merely because there was a defect or irregularity in connection with the appointment.

253-10   Acting appointments

             (1)  The Minister may appoint a person to act as the Private Health Insurance Ombudsman:

                     (a)  during a vacancy in the office of Private Health Insurance Ombudsman (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Private Health Insurance Ombudsman is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

             (2)  Anything done by or in relation to a person purporting to act under an appointment under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

253-15   Remuneration and allowances

             (1)  The Private Health Insurance Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Private Health Insurance Ombudsman is to be paid the remuneration that is specified in the Private Health Insurance (Ombudsman) Rules.

             (2)  The Private Health Insurance Ombudsman is to be paid such allowances as are set out in the Private Health Insurance (Ombudsman) Rules.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

253-20   Outside employment

             (1)  A person who holds the office of Private Health Insurance Ombudsman on a full-time basis must not engage in any paid employment outside the duties of that office without the Minister’s written approval.

             (2)  A person who holds the office of Private Health Insurance Ombudsman on a part-time basis must not engage in any paid employment that, in the Minister’s opinion, conflicts with the proper performance of the Private Health Insurance Ombudsman’s functions.

253-25   Leave of absence

             (1)  If the Private Health Insurance Ombudsman holds office on a full-time basis, he or she has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Private Health Insurance Ombudsman leave of absence, other than recreational leave, on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.

253-30   Resignation

                   The Private Health Insurance Ombudsman may resign his or her appointment by giving the Minister a written resignation.

253-35   Termination of appointment

             (1)  The Minister may terminate the Private Health Insurance Ombudsman’s appointment for misbehaviour or physical or mental incapacity.

             (2)  The Minister must terminate the Private Health Insurance Ombudsman’s appointment if the Private Health Insurance Ombudsman:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

                     (b)  is appointed on a full-time basis and is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  is appointed on a full-time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (d)  is appointed on a part-time basis and engages in paid employment that, in the Minister’s opinion, conflicts with the proper performance of his or her duties; or

                     (e)  fails, without reasonable excuse, to comply with section 253-40.

253-40   Disclosure of interest by Private Health Insurance Ombudsman

                   If the Private Health Insurance Ombudsman has a material personal interest in a matter that the Private Health Insurance Ombudsman is considering or about to consider, the Private Health Insurance Ombudsman must give written notice of the interest to the Minister.

253-45   Statutory agency etc. for purposes of Public Service Act

             (1)  The staff required to assist the Private Health Insurance Ombudsman are to be persons engaged under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the Private Health Insurance Ombudsman and the APS employees assisting him or her together constitute a Statutory Agency; and

                     (b)  the Private Health Insurance Ombudsman is the Head of that Statutory Agency.

253-50   Annual report

             (1)  The Private Health Insurance Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations during that year of the office of the Private Health Insurance Ombudsman.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  The Private Health Insurance Ombudsman must include in the report:

                     (a)  the number and nature of complaints received under section 241-1; and

                     (b)  the outcomes of any actions taken, recommendations made or investigations conducted in relation to such complaints; and

                     (c)  the outcomes in relation to complaints referred to another body under section 241-30; and

                     (d)  investigations (if any) conducted by the Private Health Insurance Ombudsman under section 244-1; and

                     (e)  requests (if any) by the Minister under section 244-5 that the Private Health Insurance Ombudsman conduct an investigation; and

                      (f)  the outcomes of investigations conducted under sections 244-1 and 244-5.

253-55   Delegation

                   The Private Health Insurance Ombudsman may, by writing, delegate to a member of staff referred to in section 253-45 all or any of the Private Health Insurance Ombudsman’s powers and functions under this Act.

253-60   Private Health Insurance Ombudsman and staff not personally liable

                   Subject to Division 323 (disclosure of information), neither the Private Health Insurance Ombudsman nor a member of staff referred to in section 253-45 is personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done reasonably and in good faith:

                     (a)  in the performance or purported performance of any function of the Private Health Insurance Ombudsman; or

                     (b)  in the exercise or purported exercise of any power of the Private Health Insurance Ombudsman.



 

Division 256 Miscellaneous

256-1   Protection from civil actions

                   Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because a statement was made, or information or a document given, in good faith to the Private Health Insurance Ombudsman in connection with:

                     (a)  the making of a complaint under Division 241; or

                     (b)  the Private Health Insurance Ombudsman’s handling of such a complaint; or

                     (c)  an investigation under Division 244.

256-5   Victimisation

                   A person commits an offence if:

                     (a)  the person subjects, or threatens to subject, another person to detriment; and

                     (b)  the person does so because the other person has made, or proposes to make, a complaint under this Part.

Penalty:  Imprisonment for 6 months.

256-10   Giving information about the Private Health Insurance Ombudsman

             (1)  The Private Health Insurance Ombudsman may direct private health insurers:

                     (a)  to give * adults insured under the insurers’ * products the information specified in the direction, in the manner specified in the direction; or

                     (b)  to publish the information specified in the direction, in the manner specified in the direction.

             (2)  A direction must only specify information that relates to the functions of the Private Health Insurance Ombudsman.

             (3)  If more than one * adult is insured under a single * complying health insurance policy of a private health insurer, the insurer is taken to comply with a direction if the insurer complies with the direction in relation to only one of those adults.

             (4)  A private health insurer commits an offence if:

                     (a)  the Private Health Insurance Ombudsman gives private health insurers a direction under subsection (1); and

                     (b)  the insurer does not comply with the direction.

Penalty:  60 penalty units.

             (5)  Strict liability applies to subsection (4).

Note:          For strict liability , see section 6.1 of the Criminal Code .