Health and Disability Commissioner Act 1994, ss 8, 14

The Office of the Health and Disability Commissioner is an independent agency set up to:

• promote and protect the rights of consumers who use health and disability services
• help resolve problems between consumers and providers of health and disability services
• improve the quality of health care and disability services by holding providers accountable when needed.

The Commissioner contracts the Nationwide Health and Disability Advocacy Service to provide a free and independent advocacy service for consumers. Advocates can help by:

• giving you information about your rights under the Code
• giving you information about how to make a complaint
• helping and supporting you with the complaint.

When you contact a health and disability advocate, they will explain your legal rights to you, help you identify and clarify the issues, help you consider the options available to you, and support you when you take action.

If you decide to complain to the health professional or disability service directly, an advocate can help with this. This includes support with specific things like getting access to your medical files and dealing with the various health or disability professionals involved.

The advocate will try to help you and the other side resolve the problem yourselves. However, they’re not a neutral mediator – their job is to support and represent you.

If you can’t reach an agreement, the advocate will help you complain to the provider’s professional body – for example, if it’s a doctor this will be the NZ Medical Council – or will pass on your complaint to the Health and Disability Commissioner.

The Code of Rights also allows you to complain directly to the particular health or disability service or to complain directly to an advocate.

The advocate will begin by trying to help you resolve the problem by agreement with the provider. If this can’t be done, the advocate must then pass your complaint on to the Health and Disability Commissioner.

Nothing – the Health and Disability Advocacy Service is free.

You don’t have to do this on your own. For example, you can ask a family member or friend to come along to support you or to speak on your behalf.

You can also approach a Health and Disability Advocate for support in making your complaint (see: “Getting help from a Health and Disability consumer advocate” above).

If this first attempt to resolve the problem isn’t successful, you should ask for a copy of the provider’s complaints procedure and follow the steps for making a formal complaint to them. Every health or disability professional or agency must have a proper complaints procedure.

The provider must acknowledge your complaint in writing within five working days. They must make sure you’re given all the information they hold that could be relevant to your complaint. They must also tell you about their internal complaints procedure and also about the right to complain to a health and disability advocate and to the Health and Disability Commissioner.

They then have 10 working days to decide whether or not they agree with your complaint. They can take more time to investigate if they need it – but if they decide they’ll need more than 20 working days’ additional time, they must tell you this and tell you why the extra time is necessary.

They have to keep you informed, at least monthly, about progress with your complaint.

Once the provider has decided whether they agree with your complaint, they must tell you about their decision and the reasons for it. They must also say what action, if any, they intend to take, plus any appeal process they have set up for complaints.

You can complain to the Health and Disability Commissioner right at the outset, without first complaining directly to the particular health or disability service. However, the Commissioner recommends that you begin by complaining first to the particular provider, as this will probably be the fastest and most effective way of dealing with the problem. If raising the problem with the provider directly doesn’t work, you can then complain to the Commissioner.

If you begin by complaining to the Commissioner, they may decide to pass your complaint on to a Health and Disability Advocate in any case, to see if it can be resolved by agreement between you and the provider.

Your complaint doesn’t have to be in writing. You can either –

• phone the Commissioner’s office toll-free on 0800 11 22 33
• email them at hdc@hdc.org.nz,
• fill in the complaint form online at the Commissioner’s website – go to hdc.org.nz/making-a-complaint
• use the New Zealand Relay service
• write to them at PO Box 1791, Auckland.

You can make your complaint yourself, or someone else can complain on your behalf.

Health and Disability Commissioner Act 1994, s 33

The Health and Disability Commissioner first gets together all the relevant information and does a preliminary assessment of your complaint, which is basically to work out what kind of complaint it is and the appropriate way to deal with it. They then have a range of options.

• Starting with an advocate – The Commissioner can pass on (“refer”) your complaint to a health and disability advocate, to see if it can be resolved by agreement. Here, the advocate acts as your representative and supporter, not as a neutral mediator. The Commissioner can also arrange mediation between you and the service that you’re complaining about. If your complaint can’t be resolved in this way, the Commissioner can start a formal investigation.
• Formal investigation – In the most serious cases the Commissioner will begin a formal investigation without trying to resolve the dispute by agreement – for example, if what you’re claiming happened involved quite serious misconduct, or if there’s a question of the wider public interest.
• Back to the health or disability service – The Commissioner can refer your complaint back to the people you’re complaining about if the Commissioner thinks they can resolve your complaint appropriately and there’s no risk to public health or safety.
• Health/disability officials – The Commissioner can refer your complaint to another official or agency from the health and disability sector. If there’s doubt about the competence of the individual you’re complaining about, then the Commissioner could refer it to the relevant professional body (the Nursing Council for example). Or they could refer it to the Director-General of Health if there are problems with the provider’s systems or practices that could be a risk to public health or safety.
• Other complaint bodies – The Commissioner can refer the complaint to the Human Rights Commission, the Ombudsman or the Privacy Commissioner if the complaint seems to fall into their areas.

The Commissioner can decide to take no action if, for example, they think that the health or disability service has already responded appropriately to you, or that it’s too long since the events happened so that it’s now impractical to take any action, or that your complaint is trivial or not made in good faith (that is, you’re complaining for some other reason that’s not legitimate).

Health and Disability Commissioner Act 1994, ss 40, 41

If the Commissioner’s office decides to investigate, it will appoint an investigation officer for the case. This person will notify both sides that the Commissioner intends to investigate, and will then collect information about your complaint. This will usually involve getting information from you, the health or disability professionals involved, and other people connected to the case.

The Commissioner has broad investigative powers – they can summon witnesses, take evidence under oath, and require either side to produce documents.

Once all the necessary information is gathered, the Commissioner may ask an expert to assess whether the provider met the appropriate standards. The Commissioner will then look at all the information and the expert’s advice and decide whether the Code of Rights was breached. The Commissioner must act impartially and not take sides. The Commissioner’s final decision will be in the form of a written report on the case.

The Commissioner can also arrange mediation to try to help settle the dispute.

A relatively straightforward investigation will usually take six to nine months. More complicated investigations can take 18 months to two years.

Health and Disability Commissioner Act 1994, ss 43–49

If the Commissioner finds that your rights under the Health and Disability Code have been breached, they can do one or more of the following things:

• Recommend how to fix the problem – The Commissioner can make recommendations to the health or disability service about what they should do about the complaint. This could include apologising to you in writing, reimbursing you for costs, having some training in specific areas, and reviewing and changing how they do things.
• Report to professional bodies or other officials – The Commissioner can report their opinion, with any recommendations, to the appropriate professional body (for example the NZ Medical Council if the complaint is about a doctor, or to ACC, or to the Minister of Health, or to anyone else the Commissioner thinks should hear about this – like the Director-General of Health).
• Complain to the individual’s professional body – The Commissioner can formally complain to the appropriate professional body, or help you do this if you want to.
• Direct it to the Human Rights Review Tribunal – In a very small number of cases, the Commissioner will pass on your complaint to an independent prosecutor called the “Director of Proceedings,” who can then take the complaint to the Human Rights Review Tribunal or to the Health Practitioners Disciplinary Tribunal.

Yes. You could ask the Ombudsman to review the Commissioner’s decision or the way the Commissioner investigated your complaint. The Ombudsman can’t overturn the decision, but they can make recommendations to the Commissioner, and their recommendations are usually taken very seriously.

You could also apply to the High Court for a review of the processes the Commissioner followed in dealing with the complaint – but this is likely to be slow and expensive and for most people isn’t a practical way of resolving the problem (see: “Going to the courts: “Judicial review””).

If the Health and Disability Commissioner passes your complaint on to the Director of Proceedings, the Director can decide to take your case to the Human Rights Review Tribunal, which is like a court. As well as disputes under the Health and Disability Code of Rights, the Tribunal also hears privacy and information complaints under the Privacy Act 2020 and complaints about discrimination and unfair treatment under the Human Rights Act 1993.

If the Director of Proceedings does take your case to the Human Rights Review Tribunal, you’ll probably have to go along to the hearing to appear as a witness in front of the Tribunal members.

It won’t cost you anything if the Director takes your case to the Tribunal.

In that case you can take your complaint to the Review Tribunal yourself. However, if you hire a lawyer you’ll have to pay their fees yourself.

The Director of Proceedings can also lay disciplinary charges with the Health Practitioners Disciplinary Tribunal. The Director can do this instead of, or as well as, taking a complaint to the Human Rights Review Tribunal.

The Human Rights Review Tribunal has the power to set things right for you. By contrast, the Health Practitioners Disciplinary Tribunal will focus on taking appropriate action against the health professional concerned if the Tribunal finds that they are guilty of professional misconduct or some other wrongdoing.