When a complaint about you goes to the Health and Disability Commissioner (the HDC), the Commissioner assesses it against the Code of Health and Disability Services Consumers' Rights, asks you for your response and your records, and then chooses one of a fixed set of options: take no further action, refer the complaint to the advocacy service, refer it back to you to resolve, refer it to another agency, or open a formal investigation. The Commissioner tells your Council or Board that the complaint has been received and tells it the outcome. Your authority cannot act on the complaint itself until the Commissioner has finished, but it can then order a competence review, open the health route or appoint a Professional Conduct Committee. Your response to the Commissioner is the document all of those bodies will read first, and it is written with advice, against the record, and with evidence of what you have changed.
What the Health and Disability Commissioner is
The Commissioner is an independent office created by the Health and Disability Commissioner Act 1994 to promote and protect the rights of people who use health and disability services. Those rights are set out in the Code of Health and Disability Services Consumers' Rights, a regulation made under the Act. The Code gives every consumer the right to be treated with respect; to be free from discrimination, coercion, harassment and exploitation; to dignity and independence; to services of an appropriate standard; to effective communication; to be fully informed; to make an informed choice and give informed consent; to support; to rights in respect of teaching and research; and to complain. Every provider of a health or disability service, registered or not, must comply with the Code.
The Commissioner's role is to receive and resolve complaints about providers, to investigate where the Commissioner decides that is warranted, to report findings, and to refer matters to other bodies where the Act provides for it. The Commissioner does not register practitioners and does not discipline them. Discipline belongs to your responsible authority under the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) and to the Health Practitioners Disciplinary Tribunal. What links the two systems is the Commissioner's duty to tell your authority about the complaint and its outcome, and the Director of Proceedings, an independent statutory officer within the Commissioner's office who can lay a charge before the Tribunal after an investigation finds a breach. The guide to an HDC breach finding and the Director of Proceedings covers that later stage.
This site offers remediation courses for practitioners who are in a complaint or regulatory process. It does not act in HDC matters and does not give legal advice.
Who decides and what the Commissioner looks at
The Commissioner, through assessment staff, decides how the complaint is handled. The decision is made on the following.
- The complaint. What the complainant says happened and which right of the Code they say was breached. A complaint can be made by the patient, by someone on their behalf or by anyone else, and the Commissioner can also act without a complaint.
- Your response and your records. The Commissioner asks the provider for a response to the complaint and for the clinical record. Where you were an employee, the employer may be asked as well, and your own account is sought.
- Clinical advice. Where the complaint raises a question of standard of care, the Commissioner can obtain advice from an independent practitioner in the same discipline. You are given the advice and can respond to it.
- The Code. Each part of the complaint is measured against the right it engages: Right 4 for standard of care, Right 6 for information, Right 7 for consent, Right 1 for respect, Right 5 for communication.
- What has happened since. Whether the matter has been resolved with the complainant, whether you have acknowledged what fell short, and what you have changed.
What happens step by step
- Complaint received. The Commissioner acknowledges the complaint and, where you are a registered practitioner, tells your responsible authority that a complaint about you has been received.
- Assessment and your response. The Commissioner sends you the complaint or its substance and asks for your response and the records by a date. Prepare it with your adviser; the guide to writing a response to a notification gives a structure that serves an HDC response as well.
- Decision on handling. On the complaint, your response and any clinical advice, the Commissioner decides which option applies: no further action, advocacy, referral back to you for resolution, referral to another agency, or investigation.
- Investigation, if opened. The Commissioner notifies you of the investigation and its scope, gathers further information, obtains expert advice, and sends you a provisional opinion to which you respond before the final opinion is issued.
- Outcome. The Commissioner issues the decision, with any recommendations, and tells your responsible authority the outcome. After an investigation that finds a breach, the Commissioner can refer you to the Director of Proceedings.
- Your authority decides. With the Commissioner's outcome in hand, your Council or Board decides whether to take no action, order a competence review, open the health route or appoint a Professional Conduct Committee.
The options open to the Commissioner
- No further action. The Commissioner decides that the complaint does not warrant any further step, or that it has been dealt with. The decision can include comment on your care that is not a finding of breach.
- Referral to advocacy. The Nationwide Health and Disability Advocacy Service helps the complainant and the provider resolve the matter between them, with a meeting, an explanation or an apology.
- Referral back to the provider. The Commissioner asks you or your employer to resolve the complaint directly and report back.
- Referral to another agency. To your responsible authority, the Privacy Commissioner, ACC or another agency better placed to deal with it.
- Investigation. A formal process ending in a written opinion that finds a breach of the Code, no breach, or makes adverse comment, with recommendations and the possibility of referral to the Director of Proceedings.
How the complaint reaches your Council or Board
Two provisions connect the HDC process to the HPCA Act. The Health and Disability Commissioner Act requires the Commissioner to notify your responsible authority when a complaint about a registered practitioner is received, and to tell the authority the outcome. The HPCA Act requires an authority that itself receives a complaint about care given to a patient to refer it to the Commissioner, and to take no action on that complaint until the Commissioner has dealt with it. Where the Commissioner refers a complaint to the authority, the HPCA Act requires the authority to refer it to a Professional Conduct Committee.
Once the Commissioner's outcome reaches it, the authority chooses its own route. It can decide that no action is needed. It can order a competence review under section 36 where the complaint raises a question about your competence rather than a single event; the guide to what happens in a competence review describes that. It can open the health route under section 45 where a condition is in question. It can appoint a Professional Conduct Committee where conduct is in question; the guide to how a Professional Conduct Committee process runs covers that stage, and while a Committee investigates the authority can make an interim order under section 69, described in the guide to interim suspension and interim conditions. Profession guides describe how an HDC outcome is handled by the Medical Council for doctors, the Nursing Council for nurses and the Midwifery Council for midwives.
What you can do now
- Get advice the same day. Your indemnity insurer, your professional association or union, or a lawyer. For doctors the Medical Protection Society, for nurses NZNO, for midwives NZCOM.
- Get the records and read the complaint against them. Identify each right of the Code the complaint engages and what the record shows on each.
- Respond to the Commissioner against the record. The facts in order, your reasoning, what fell short, what you have changed, with evidence attached. Write with respect for the complainant, whatever the complaint says.
- Consider resolution. Where advocacy or a meeting is offered, take advice on whether an explanation and an apology would resolve the matter. A resolved complaint reaches your authority as a resolved complaint.
- Complete remediation before the outcome. Courses with dated certificates, supervision, an audit and a written reflection completed while the Commissioner is assessing are evidence the Commissioner and later your authority can weigh. The guide to showing insight and building a remediation plan explains what that contains.
- Tell your authority what you have done. When the outcome reaches your Council or Board, send it your reflection and your remediation plan without waiting to be asked.
Where remediation fits
Three courses match what the Commissioner and your authority read for after a complaint. Dealing with a Complaint or Investigation covers how to engage with a complaint process and what a response contains. Duty of Candour for Healthcare Professionals covers open disclosure, the explanation and the apology that the Code's rights to be fully informed and to complain call for. Rebuilding Trust of Patients, the Public and the Regulator covers what a complainant and a regulator need to see before they are satisfied.
Each course is NZ$200, takes 2 CPD hours, is self-paced with immediate access, and ends with a dated certificate issued by Healthcare Ethics Courses that you can submit to your Council or Board or put in your remediation plan. The remediation courses for every Council and Board are on the hub page, and the Council and Board investigation process explained shows where the HDC stage sits before the authority's own process.
Sources and further reading
- Health and Disability Commissioner: the Code of Health and Disability Services Consumers' Rights, how a complaint is assessed, and the Commissioner's published decisions.
- Health and Disability Commissioner Act 1994 and Health Practitioners Competence Assurance Act 2003: the Commissioner's functions, the duty to notify responsible authorities, and the authority's duty to refer a complaint to the Commissioner.
- Health Practitioners Disciplinary Tribunal: published decisions on charges laid by the Director of Proceedings after an HDC investigation.
Frequently asked questions
Does an HDC complaint go on my registration record?
Not of itself. The Commissioner tells your responsible authority that a complaint has been received and tells it the outcome, and the authority holds that on its file. What reaches the public register is an order the authority itself makes afterwards, such as conditions on your scope of practice. An HDC decision that no further action is needed, or that the matter has been resolved between you and the complainant, is not entered on the register and is not published with your name.
Can my Council or Board act on the complaint while the HDC has it?
The HPCA Act requires an authority that receives a complaint about care given to a patient to refer it to the Commissioner first and to wait for the Commissioner's outcome before it acts on the complaint. The authority can act in the meantime on a separate ground, for example a competence question raised by other material or a health concern, and it can make an interim order under the Act if it considers there is a risk of serious harm. Ask the authority in writing what it is doing with the matter while the HDC process runs.
Who sees my response to the HDC?
The Commissioner's staff, any expert the Commissioner asks for clinical advice, and the complainant, who is given your response or a summary of it so they can comment. If the Commissioner investigates, your response forms part of the file the provisional opinion is written from. Write it on the assumption that the patient, the Commissioner's expert and later your Council or Board will all read it, and have your indemnity insurer or professional association read it first.
Do I have to apologise to the complainant?
The Commissioner can recommend an apology and can refer the complaint to advocacy or back to you for resolution, where an apology is one of the steps a complainant may want. An apology given with advice, that acknowledges what the patient experienced and what you have changed, is read by the Commissioner and by your authority as part of your insight. Discuss the wording with your indemnity insurer before it goes, because it will be read beside your clinical record and your formal response.
What is the difference between an HDC complaint and a notification to my Council or Board?
An HDC complaint is about a consumer's rights under the Code and is decided by the Commissioner, who can find a breach, make recommendations and refer you to the Director of Proceedings, but cannot suspend you, impose conditions or cancel your registration. A notification to your Council or Board is about your competence, health or conduct under the HPCA Act and can end in a competence review, conditions, a Professional Conduct Committee or a charge before the Tribunal. A complaint about care to a patient goes to the Commissioner first and reaches your authority afterwards.