1. The Committee on Complaints against Private Healthcare Facilities ("Complaints Committee") was established on 1 December 2020 pursuant to the Private Healthcare Facilities Ordinance Cap 633 ("PHFO"). One of the functions is to receive and consider complaints against private healthcare facilities (“PHF”).

 

2. The Complaints Committee (“CC”) consists of a Chairperson, a deputy Chairperson, and between 24 and 48 members. The PHFO requires at least half of the members CC to be neither registered medical practitioners nor dentists. Currently, the lay members of the CC are other healthcare professionals, patient groups and the legal, engineering and consumer rights sectors.

 

3. Since the establishment of the CC, the number of complaints has risen between 2021 and 2023 due to increased public awareness. Based on the CC’s latest annual report published in 2023, the three most common complaints relate to professional practice, administrative procedures and staff performance.

 

4. The CC handles complaints relating to events occurring after 1 January 2021. It makes findings concerning matters relating to compliance with the PHFO or a Code of Practice by a PHF. Currently, the Codes and Standards are: “Code of Practice for Private Hospitals”; “Code of Practice for Day Procedure Centres”; “Standards for Clinics”; and “Standards for Scheduled Nursing Homes”.

 

The complaint

 

5. Any complaint made to the CC must be in a specified form; be substantiated by specific facts; accompanied by a statutory declaration as to the truthfulness and correctness of the information given; and include consent to PHF to disclose information about the complainant to parties including the CC and other experts appointed by the CC.  

 

The procedures: a two- tier management system

 

Tier one

 

6. Any complaint made to the CC is first dealt with by the Preliminary Processing Panel ("PPP"). The PPP consists of between 3 and 5 members of the CC, which must include at least 1 member who is neither a registered medical practitioner nor a registered dentist.

 

7. If no complaint was made to the PHF before approaching the CC, the ("PPP") would direct the PHF, in accordance with its own complaint handling procedure, to: (1) conduct an investigation; (2) reply to the complaint substantively; and (3) provide the CC with the results of the investigation and the substantive reply.

 

8. If the complainant is satisfied with the PHF’s reply, the complainant may inform the CC in writing and withdraw the complaint.   

 

Tier two

 

9. If the complaint remains unresolved, the PPP direct the PHF to produce all correspondence exchanged with the complainant relating to the complaint.  

 

10. For the purpose of considering the complaint, PPP has a wide investigation power to, by notice in writing, require a person to provide “any” information and a document (or copy) relating to a matter that the PPP “reasonably believes to be relevant to the complaint”. The notice issued by the PPP must indicate the purpose of obtaining the information or document.

 

11. The Preliminary Processing Panel will compile documents, and report to the CC on matters including whether the complaint falls within one of the 7 following grounds: 

 

1.  the subject matter of the complaint is not related to compliance with the PHFO or a Code of Practice issued under the PHFO;
2. the event to which the complaint relates occurred more than 2 years before the day when the complaint is made;
3. the complaint is made anonymously or the complainant cannot be identified or traced;
4. the subject matter of the complaint has been referred to (or is being considered by) the Coroner;
5. the complaint relates to a commercial matter;
6. the complainant has instituted legal proceedings for the same subject matter;
7. the complaint is frivolous or groundless. 

 

12. If the complaint falls within one of the 7 grounds, the CC may refuse to appoint a Case Panel to consider the complaint, in which case the CC may close the complaint and inform the complainant in writing.

 

13. However, if the CC considers the matter should be pursued further, it will appoint a Case Panel (“CP”). The CP consists of the convener and either 2 or 4 other members from the CC, which must include at least 1 registered medical practitioner or dentist, and at least 1 member who is not a registered medical practitioner or dentist.

 

14. The CP has a wider investigation power to request information compared to the PPP. In addition to requesting any information and a document referred to in §10 above, the CP may interview “any person” who is, or may be, able to provide information or other assistance in relation to the complaint

 

15. The interview must be conducted in private, and the person interviewed has the right to be accompanied by a solicitor or counsel. However, the solicitor or counsel does not have a right of audience at the interview.

 

16. The CC/CP must make a record of every interview; and the record is to be kept for the period that is necessary for performing the CC’s functions under the PHFO.

 

17. In addition, the CP may obtain professional opinions relating to the subject matter of the complaint from a regulatory authority, medical professional or another expert.

 

18. The CP does not decide on the outcome of the complaint but it must make recommendation(s) for the CC's consideration.

 

19. If the CP finds that the complaint is not substantiated, it should recommend that the complaint be closed. Otherwise, it may make recommendations including:

 

a. referring the complaint to the Department of Health for assessment of any breach of a licensing requirement by the PHF and any necessary regulatory action against it;

 

b. referring the complaint to another regulatory authority (such as the Medical Council or the Nursing Council of Hong Kong) for the investigation of the complaint;

 

c. advising the PHF on any improvement measures;

 

d. advising the complainant to seek alternative dispute resolution if the issue does not relate to compliance issues.

 

20. The CC may approve the recommendations made by the CP. The CC will close the complaint and inform the complainant in writing of the decision and action against the PHF.

 

21. If the CC does not approve the CP’s recommendations, the CC may refer the complaint back to the CP for review or make its own decision at a meeting of the CC. Such a meeting requires 13 members to form a quorum; a chairperson to preside at the meeting; and all questions for determination are to be decided by a majority of votes of the members present and voting.

 

22. In making its own decision, the CC has the same investigative powers as the CP referred to in §14 and 15. Once a decision is made by the CC, it will close the complaint and inform the complainant in writing.

 

Appeal

 

23. The PHFO does not provide an appeal process for PHFs to challenge decisions made by the CC. However, if decisions are made e.g. to revoke the licence, suspend or cancel a licence, suspend a facility service, or amend the conditions of a licence, the licensee of the PHF may appeal to the Administrative Appeals Board within 14 days of receiving notice of the decision. Any steps for an appeal should be taken promptly in view of the time limit.

 

Concluding remarks

 

24. With an increase of complaints to the CC due to public awareness, it is important for PHFs to be familiar with the CC procedures and investigative powers. We recommend that PHFs do seek formal legal advice once a CC complaint is received.  

 

PHFs should ensure the initial reply to the complainant is carefully drafted given that it will be reviewed the PPP, CP and CC who may refer the matter to other regulatory bodies such as the Medical Council. PHFs may consider referring the reply to the CC, the grounds in §11 above, if applicable.

 

 

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Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice. Please contact [email protected] if you have any questions about the article.