A breach finding is the Health and Disability Commissioner's opinion, at the end of a formal investigation, that your care or conduct did not meet one or more rights in the Code of Health and Disability Services Consumers' Rights. It is not a disciplinary finding and does not itself affect your registration. What follows it does. The Commissioner makes recommendations, publishes the decision, tells your Council or Board the outcome, and can refer you to the Director of Proceedings. The Director decides whether to bring a claim before the Human Rights Review Tribunal, to lay a charge before the Health Practitioners Disciplinary Tribunal, or to take no proceedings. Your Council or Board, with the decision in hand, can order a competence review or appoint a Professional Conduct Committee. The period between the provisional opinion and the final decision is when your response, your apology and your evidence of remediation are read, and it is the part of the process you control.
The Commissioner's findings
An investigation under the Health and Disability Commissioner Act 1994 ends in a written opinion. The Commissioner sends you a provisional opinion first, with the expert advice relied on, and you respond to it before the final opinion is issued. The final opinion makes one of the following findings against each provider and each part of the complaint.
- Breach. The Commissioner finds that you breached a named right of the Code: Right 4 for services of an appropriate standard, Right 6 for information, Right 7 for informed consent, Right 1 for respect, Right 5 for communication, or another. The opinion explains the finding against the expert advice and the record.
- No breach. The Commissioner finds that the care met the Code. The decision may still include comment.
- Adverse comment. The Commissioner does not find a breach but records criticism of an aspect of your care or conduct. Adverse comment is published with the decision and is sent to your authority with it.
Where the complaint also engaged an employer or a practice, the opinion makes separate findings about the organisation, including whether it breached the Code in its own right or is vicariously liable for your breach. The guide to what happens when a complaint goes to the Health and Disability Commissioner describes the stages before the opinion.
Recommendations and publication
With a breach finding the Commissioner makes recommendations. In published decisions these have included a written apology to the consumer, sent through the Commissioner; a written reflection on the care; completion of courses on the topic of the breach, with evidence of completion; a review of the relevant policy or process; an audit of records over a defined period; and a report back to the Commissioner within a set period. A recommendation is not an order, but the Commissioner follows it up, your authority sees whether it was met, and the Tribunal, if a charge is later laid, reads what you did with it.
The Commissioner publishes investigation decisions on its website. The practitioner is referred to by a letter rather than a name unless the Commissioner decides that naming is in the public interest under its naming policy; an organisation can be named. A published decision is read by consumers, by other providers and by your authority, and it stays available.
Referral to the Director of Proceedings
After a breach finding the Commissioner decides whether to refer you to the Director of Proceedings. The Director is an independent statutory officer within the Commissioner's office whose decisions about proceedings are the Director's own. The Commissioner's published decisions show referral where the breach is serious, where there is more than one event, where the consumer suffered harm, or where the practitioner's response shows no understanding of the concern, and no referral where the practitioner has acknowledged the shortfall, apologised and remedied it. The Commissioner's reasons for referring or not referring are given in the decision.
- Referral. The Commissioner refers the matter to the Director with the investigation file and the final opinion, and tells you and your authority that the referral has been made.
- Consideration. The Director reviews the file and can obtain further information. Your adviser can make submissions to the Director before the decision is made.
- Decision. The Director decides whether to bring proceedings before the Human Rights Review Tribunal, to lay a charge before the Health Practitioners Disciplinary Tribunal, to do both, or to take no proceedings.
- Proceedings, if taken. A claim before the Human Rights Review Tribunal seeks a declaration that the Code was breached and can seek damages and other orders. A charge before the HPDT alleges professional misconduct or another ground for discipline and is heard as the guide to what happens at a Tribunal hearing describes.
- Outcome. The Tribunal that hears the matter decides it. Where the Director takes no proceedings, the consumer can bring their own claim before the Human Rights Review Tribunal, and your authority can still act under the HPCA Act.
A charge laid by the Director is heard by the HPDT in the same way as a charge laid by a Professional Conduct Committee. If the charge is proved the Tribunal can censure you, fine you, impose conditions, suspend your registration for up to three years, or cancel it, and it can order costs. Its decisions are published with your name unless suppression is ordered.
What the finding means for your Council or Board
The Commissioner tells your responsible authority the outcome of the investigation, and the authority holds the decision on your file. Under the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) the authority then decides its own course. Where the Commissioner refers the complaint to the authority, the Act requires it to be referred to a Professional Conduct Committee. Where the Commissioner has not referred it, the authority can still take no action, order a competence review under section 36 if the finding raises a question about your competence across your practice, open the health route under section 45 if a condition is in question, or appoint a Professional Conduct Committee if conduct is in question. The guide to how a Professional Conduct Committee process runs explains that stage, and the guide to what happens after a notification to your Council or Board sets out how an authority chooses between the routes.
Where the Director has laid a charge, the authority can make an interim order under section 69 while the charge is pending if it considers that necessary to protect the public. Profession guides describe how an HDC decision is handled by the Medical Council for doctors, the Nursing Council for nurses and the Midwifery Council for midwives.
How practitioners respond well
At every stage after the provisional opinion the decision-maker is asking whether you have understood what went wrong and whether it will happen again. The Commissioner asks it when deciding whether to refer. The Director asks it when deciding whether to lay a charge. The Tribunal asks it when deciding penalty, and in its published decisions has treated insight and remediation as mitigating and their absence as aggravating. Your authority asks it when deciding whether anything further is needed. The same evidence answers all four.
- Apologise. A written apology to the consumer, through the Commissioner, that names what fell short and what you have changed. Agree the wording with your adviser.
- Respond to the provisional opinion with care. Facts corrected from the record, shortfalls acknowledged, changes described, evidence attached.
- Meet the recommendations before you are asked. Where the provisional opinion indicates what will be recommended, do it before the final decision and send the evidence.
- Write the reflection. What happened, why, what you understand now, what you have changed. The guide to showing insight and building a remediation plan sets out the shape.
- Build the plan. Each shortfall in the opinion, the step taken, the date and the evidence: courses with dated certificates, supervision, an audit, a change to practice.
- Send it to your authority. When the outcome reaches your Council or Board, send the reflection and the plan without waiting for a request, so that the authority's first decision is made with your evidence in front of it.
Where remediation fits
Remediation completed between the provisional opinion and the final decision is evidence for the Commissioner, the Director, your authority and, if it comes to that, the Tribunal. Rebuilding Trust of Patients, the Public and the Regulator covers what a consumer and a regulator need to see after a breach. Duty of Candour for Healthcare Professionals covers open disclosure and the apology the Commissioner recommends. Remediation for Fitness to Practise covers how to build the plan and present the evidence. Ensuring No Repeat of Misconduct or Mistake covers the check that shows the change has held.
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 an HDC decision enters the authority's process. The site offers these courses; it does not act in HDC matters and does not give legal advice.
Sources and further reading
- Health and Disability Commissioner: published investigation decisions, the naming policy, and the role of the Director of Proceedings.
- Health Practitioners Disciplinary Tribunal: published decisions on charges laid by the Director of Proceedings, including the penalties imposed.
- Health and Disability Commissioner Act 1994 and Health Practitioners Competence Assurance Act 2003: the Commissioner's findings and referral powers, the Director's functions, and the authority's powers after an HDC outcome.
Frequently asked questions
Is a breach finding the same as a disciplinary finding?
No. A breach finding is the Commissioner's opinion that your care or conduct did not meet a right in the Code of Health and Disability Services Consumers' Rights. It is not a finding of professional misconduct and it does not itself suspend you, impose conditions or cancel your registration. Those outcomes belong to the Health Practitioners Disciplinary Tribunal after a charge is proved, or to your Council or Board under the HPCA Act. A breach finding is, however, the document those bodies start from, and it is published.
Will my name be published with the decision?
The Commissioner publishes investigation decisions. An individual practitioner is referred to by a letter rather than a name unless the Commissioner decides that naming is in the public interest, and the Commissioner's naming policy sets out when that is considered. An organisation can be named. If the Director of Proceedings lays a charge, the Tribunal's decision is published with your name unless the Tribunal orders suppression, and the Tribunal has said in its decisions that suppression is the exception.
Does every breach finding go to the Director of Proceedings?
No. The Commissioner decides whether to refer after a breach finding, and can decide instead to close the matter with recommendations. The Commissioner's published decisions show referral in matters where the breach is serious, where there is a pattern, or where the practitioner's response has shown no insight, and no referral where the practitioner has acknowledged the shortfall and remedied it. Nothing is promised either way; what you do between the provisional opinion and the final decision is the part you control.
What can the Director of Proceedings do?
The Director is an independent statutory officer within the Commissioner's office who decides, after a referral, whether to take proceedings. The Director can bring a claim before the Human Rights Review Tribunal, which can make a declaration that the Code was breached and award damages, and, where you are a registered practitioner, can lay a charge before the Health Practitioners Disciplinary Tribunal, which can censure, fine, impose conditions, suspend for up to three years or cancel your registration. The Director can also decide to take no proceedings.
What should I do between the provisional opinion and the final decision?
Respond to the provisional opinion with advice, correcting any fact the record does not support and acknowledging plainly what it does. Apologise to the consumer through the Commissioner if that is advised. Complete the steps a Commissioner is likely to recommend before the final decision: a written reflection, courses on the topic with dated certificates, an audit, a change to practice. Send the evidence with your response. The final decision, any referral decision and your authority's decision are all made with that evidence in front of the decision-maker.