"This is the second article in our series on complaints management for aged care providers. You can read the first article, Managing Complaints Well: A Practical Guide for Aged Care Providers, here."

Receiving a letter from the Health and Disability Commissioner (HDC) about a complaint can feel confronting. The formal tone, references to legislation, and extensive information requests often make providers fear the worst.

In reality, most complaints are resolved early and without formal investigation.

In the year to 30 June 2025, the HDC received 154 complaints about aged residential care providers.

While this makes aged care the fourth most complained-about provider group, the number is low when considered against the scale and complexity of care delivered across the sector.

Understanding how the HDC process works can help providers respond calmly, confidently, and constructively.

The Code of Health and Disability Consumers' Rights

Residents in aged residential care have the same rights as all health and disability consumers, which are set out in the Code of Health and Disability Consumers' Rights (the Code).

These include rights to:

• Services of an appropriate standard;
• Dignity and respect;
• Effective communication and informed consent; and
• Make a complaint.

Importantly, the Code recognises the realities of care delivery. A provider will not be in breach if they can show they took reasonable actions in the circumstances.

This includes factors such as:

• Available resources;
• Clinical complexity; and
• The resident’s individual needs.

This is particularly relevant in aged care settings.

What happens when a complaint is made?

In many cases, a complaint is made to the HDC after attempts to resolve concerns directly with the provider. However, sometimes the first indication of a complaint is a letter from the HDC.

1. Preliminary assessment

The HDC must assess each complaint as soon as reasonably practicable.

This usually involves:

• Writing to the provider for a response;
• Requesting relevant information or documents; and
• Identifying specific issues the HDC considers important.

The HDC will also be interested in what (if any) steps have already been taken to resolve the complaint.

2. Likely outcomes of preliminary assessment

Most complaints are resolved at the preliminary stage. The most common outcomes are:

• No further action(with or without recommendations or educational comment) - ~58%
• Referral to the provider to resolve directly - ~23%
• Referral to Advocacy Service - ~7%

Only a small proportion of complaints progress further.  

3. Investigation (uncommon)

Approximately 7-8% of complaints result in formal investigation. The HDC will usually only investigate where it appears from the preliminary assessment that there has been a breach of the Code and:

• The potential breach is serious;
• There are public safety concerns; or
• Wider systemic issues may be involved.  

Investigations are formal and can take time, although they are usually completed through correspondence rather than an in-person hearing. The investigation process typically involves:

1. Gathering records, staff statements and relevant policies;
2. Obtaining independent clinical advice, often from the HDC's in-house clinical advisers;
3. Issuing a provisional opinion;
4. Allowing the provider and complainant to respond;
5. Issuing the final decision (including any recommendations) to provider and complainant; and
6. Final decision published online (usually naming group providers if a breach is found).

Information requests and privilege

During an investigation the HDC has broad powers to require information from any person.  

However, providers do not need to disclose:

• Legal advice;
• Documents prepared for legal proceedings (which may include internal investigations if these were carried out primarily for the purpose of receiving advice on potential proceedings); or
• Without prejudice settlement communications.

Providers should take care when deciding whether to withhold privileged information. In some cases, voluntarily providing information (such as the outcome of an internal investigation) can demonstrate that actions taken were reasonable or highlight relevant circumstances.

4. Outcomes of investigations

Because the HDC only investigates complaints where there does appear to be a breach of the Code, a higher proportion of investigations do result in adverse findings.

Of 190 investigations completed in the year to 30 June 2025:

• 145 resulted in at least one breach finding; and
• 24 results in adverse comment (no breach).

However, this represents only 3.8% of all complaints closed.

Even where no breach is found, the HDC often makes recommendations focused on improvement and providers are usually asked to report back.

5. Director of Proceedings (rare)

In very rare cases the HDC may refer a matter to the Director of Proceedings to consider whether to initiate any proceedings against the provider. Proceedings could be in the Health Practitioners Disciplinary Tribunal (for regulated health practitioners) or the Human Rights Review Tribunal (HRRT) (for group providers or unregulated health service providers).

Just 12 providers were referred to the Director of Proceedings in the year to 30 June 2025.

Proceedings in the HRRT involving aged care providers are incredibly rare.  However, when the Director has brought proceedings against aged care providers these have always proceeded by a declaration of breach by consent. This involves the Director of Proceedings and provider filing an agreed summary of facts and consent to the HRRT making a declaration of breach on the basis of those facts. This avoids a full hearing and keeps other settlement terms, such as any compensation paid, confidential.  

Key takeaways for providers

• Complaints to the HDC are relatively uncommon.
• Most HDC complaints are resolved early, without formal investigation.
• While accountability is important, the HDC is also focused on learning and improvement.
• Constructive engagement with the process at an early stage and demonstrating a commitment to learning and improvement can significantly influence outcomes.

How can we help?

Our Retirement Villages and Aged Care Team regularly advises providers on responding to HDC complains and navigating the complaints process with confidence and empathy.

We can assist with:

• Responding to HDC enquiries and information requests;
• Assessing investigation risk and strategy;
• Supporting communication with residents and families;
• Assisting with system and policy improvements following complaints; and
• Representation in the rare event of referral to the Director of Proceedings.

With the right support the HDC process can be managed in a way that minimises disruption and supports continuous improvement.

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