What is conciliation?
Conciliation is an opportunity for the parties to a complaint to confidentially discuss the complaint and agree on ways to resolve it. The aim is to negotiate a resolution that is acceptable to everyone involved.
Conciliation involves a meeting between the parties led by an independent person called a conciliator.
What does the conciliator do?
The conciliator assists the parties to try to reach a resolution. The conciliator’s role is to help the parties clarify the issues of concern, talk with each other about them and identify ways the concerns can be resolved. The conciliator does not have any power to make decisions about how a complaint should be resolved.
The conciliator is independent of the parties. The Minister for Health appoints the conciliators who run conciliations.
Why is the meeting confidential?
The Health Care Complaints Act provides that things said or documents created for or during the conciliation process are not admissible in a court, tribunal or other body. The only exception to this is where all of the parties who participated, or who were named during the conciliation, agree to their use elsewhere.
By agreeing to participate in conciliation, the parties agree that all the information disclosed during the conciliation process will be kept confidential.
This provides an opportunity for the parties to discuss the matters of concern without fearing that what they say will be used against them. Conciliation provides a secure environment to openly discuss the care and treatment provided and whether it fell below an acceptable standard.
It also provides a forum where discussions can occur about financial settlements without these discussions being used subsequently as admissions of liability. If this outcome is sought, the Registry should be informed prior to the conciliation so that the provider’s insurer can assess the claim.
How long will the conciliation meeting last?
Generally meetings run for 2 ½-3 hours.
When and where are conciliations held?
The Registry will schedule a date, time and venue for the conciliation that suits the parties. The venue may be at a health facility if the parties agree to this. When the parties are located in the inner Sydney area, conciliations are usually held at the Health Conciliation Registry, level 12, 323 Castlereagh Street, Sydney (close to Central Station). Where the parties are located in outer metropolitan, regional or remote areas the Registry will arrange the conciliation in a suitable meeting room in the local area.
In a very few cases, a telephone conference may be an option.
Who can I bring to the meeting?
You can bring a support person to the conciliation. Usually, a support person is a partner or parent or another close family member or friend, or work colleague. If you wish to bring a support person, let the Health Conciliation Registry know and the Registrar will discuss with you before the meeting about how a support person can assist you.
Where required, the Registry will arrange for an interpreter to attend.
How are complaints resolved?
Complaints can be resolved in many different ways, and almost any form of resolution is possible as long as the parties agree to it. Resolution can include:
- providing better information about what happened and why
- health service providers making changes to their policies and procedures
- apologising for poor or inappropriate treatment
- refunding costs and other expenses.
If a complainant feels that they have incurred expenses as a result of the treatment received, or wants to make some other claim for financial compensation, the Registry should be notified of this prior to the conciliation. This will enable the Registry to contact the provider and provide details so that advice can be obtained from their insurer.
Agreements reached in conciliation
If the parties reach an agreement, this will be put in writing and signed. Agreements are made in “good faith” for the parties to follow through and are not enforceable by the Registry or the Commission. If a resolution involves a financial element, the Registry recommends that parties formalise this in a Deed of Release, rather than the less formal conciliation agreement. If a Deed of Release is required, the parties can seek legal advice following the conciliation.
Will I need a lawyer?
The Health Care Complaints Act provides that parties at conciliation cannot be legally represented. The Registry encourages parties to seek legal advice prior to agreeing to participate in conciliation. However, the parties may seek legal advice prior to agreeing to participate in conciliation.
What happens if the other party does not wish to participate?
Because the conciliation process is voluntary, conciliation cannot proceed unless both parties are willing to participate. If either party declines to participate, neither the Registry nor the Commission can take any further action to compel a party to participate.
What if an agreement is not reached in conciliation?
The conciliator may terminate the conciliation if is it is unlikely that an agreement will be reached or significant issues have been raised that require further investigation by the Commission.