Depending on the nature of the complaint and the outcome sought, there are various steps a complainant can take. It is usually best to start with the most informal and direct approach. Below are steps that could be taken to resolve a complaint:
- talking directly to the professional
- making a complaint to the professional association
- making a complaint to the regulatory board
- seeking review of the complaint in the Queensland Civil and Administrative Tribunal (available for some professions)
- commencing legal proceedings (suing someone).
Some complaints would not warrant being pursued through to court proceedings, even if the complainant is unhappy with the result.
In most cases there are time limits, so complaints should be made promptly.
Talking directly to the professional
Many complaints against professionals result from poor communication or misunderstandings.
Professional people sometimes fail to appreciate that their clients or patients do not share their expertise. A competent professional should explain, in non-technical language, their work and the likely results.
Speaking directly to the professional to request information and explanation may resolve the problem.
If not, a complaint can be lodged with the respective professional association or regulatory board.
Making a complaint to the professional association
Professional associations usually:
- are established by professionals to regulate their own conduct
- control the activities of their members and preserve the good public image that most professions enjoy
- set standards of ethical conduct to which their members are expected to conform
- recommend the level of fees that should be charged for various services
- receive and investigate complaints about the conduct of their members; and take disciplinary action, when appropriate
- attempt to settle complaints by discussion or negotiation, rather than by formal inquiry
- deal with less serious complaints concerning delay, discourtesy or excessive fees
- do not have the power to award compensation.
A complaint should generally be in writing and include as much detail as possible. If the professional organisation is unable to deal with the matter, it will normally notify the complainant and recommend alternative avenues for making the complaint.
If a complaint alleges that a professional is negligent, dishonest or unfit to practise in that profession, the association will usually refer the complaint to the regulatory board.
Making a complaint to the regulatory board
Regulatory boards usually:
- are established by government
- control the licensing, registration and practice of professionals
- receive and investigate complaints about the conduct of their members
- ensure that only people with sufficient training and good character, if applicable, are registered
- take disciplinary action or pursue a prosecution where necessary
- do not have the power to award compensation.
Seeking review of the complaint in the Queensland Civil and Administrative Tribunal
- a complainant is unhappy with a disciplinary decision made by a board or association or
- the professional involved does not abide by the organisation’s decision, the body can apply directly to QCAT for further disciplinary proceedings or enforce its decision.
Also, if a complaint is serious, a professional association or regulatory board can refer the complaint directly to QCAT.
Decisions of QCAT can generally be appealed to the QCAT Appeals Tribunal and then to the Court of Appeal.
Commencing legal proceedings (suing someone)
Not every complaint will give rise to the right to sue someone. Anyone contemplating legal proceedings should seek expert legal advice about their chance of succeeding.
Legal proceedings should only be considered when the complainant can show financial loss, damage to property or injury to health. Sometimes, a complaint will not be worth taking to court because the cost of the legal proceeding is more than the compensation that is likely to be obtained.
For a claim to be successful, it must be shown that the professional’s conduct amounted to either a ‘breach of contract’ or ‘negligence’.
A breach of contract case will depend upon the terms of the contract.
To prove that conduct is negligence, other professionals in the same field will have to give evidence about how the work fell short of the standard of most professionals. It may be difficult to find an expert who is prepared to give the necessary evidence. It can also be expensive to have expert reports prepared.
In some cases, it is possible to negotiate a settlement with the professional’s insurers without having to sue.
Legal advice should also be obtained before signing settlement documents that discharge the professional from liability for their conduct.