Health and Disability Commissioner Act 1994

Decision to take no action

Heading: inserted, on 18 September 2004, by section 9 of the Health and Disability Commissioner Amendment Act 2003 (2003 No 49).

38 Commissioner may decide to take no action or no further action on complaint

(1)

At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.

(2)

The Commissioner’s consideration under subsection (1) may, in particular, take into account any of the following matters:

(a)

the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:

(b)

whether the subject matter of the complaint is trivial:

(c)

whether the complaint is frivolous or vexatious or is not made in good faith:

(d)

whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:

(e)

whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.

(3)

Subsection (2) does not detract from the generality of subsection (1).

(4)

In any case where the Commissioner decides to take no action, or no further action, on a complaint, the Commissioner must inform the following persons and agencies of that decision and the reasons for it:

(a)

the complainant:

(b)

the health care provider or the disability services provider to whom the complaint relates:

(c)

any agency or any person to whom the complaint has, in accordance with section 34 or section 36, been referred:

(d)

any advocate to whom the complaint has been referred.

Section 38: substituted, on 18 September 2004, by section 9 of the Health and Disability Commissioner Amendment Act 2003 (2003 No 49).

Section 38 heading: amended, on 5 December 2013, by section 5 of the Health and Disability Commissioner Amendment Act 2013 (2013 No 120).