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Communtity Law Manual | Disability rights | Complaining about a breach of your rights

Health and disability services: Your rights and how to enforce them

Complaining about a breach of your rights

Overview

Code of Health and Disability Services Consumers’ Rights, Right 10

You have the right to complain if you’re not happy about the health or disability services you’ve received. You can complain directly to the particular service or health professional (see below, “Making a complaint to a health provider”) or you can complain to someone else who can do something about the problem, like an independent Health and Disability Advocate or the Health and Disability Commissioner (see below, “Making a complaint to the Health and Disability Commissioner”).

What does the Health and Disability Commissioner do?

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.

The Commissioner contracts health and disability advocates – 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.

Getting help from a Health and Disability advocate

Health and Disability Commissioner Act 1994, ss 30, 31

Health and disability advocates work for the Health and Disability Commissioner’s Office, providing a free, independent advocacy service throughout New Zealand. They provide free help and support for people wanting to complain about a breach of their rights under the Code of Health and Disability Services Consumers’ Rights. (For information about contacting an advocate, see “Other resources” in this chapter.)

How can health and disability advocates help?

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 help 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.

How much does it cost to get help from a consumer advocate?

Nothing – the Health and Disability Advocacy Service is free.

Complaining directly to the particular health professional or disability service

Code of Health and Disability Services Consumers’ Rights, Right 10

If you believe your rights under the Code of Rights have been breached, you’ve got the right to complain directly to the health professional or disability service that provided you with the treatment or service.

They’re required to have a fair, simple, fast and efficient complaints procedure and keep you informed about how your complaint is progressing.

You can begin by speaking directly to the health professional concerned. You should explain what the problem is and what you’d like done to put it right.

Where can I get help for making my complaint?

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 above: “Getting help from a Health and Disability consumer advocate”).

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.

What do they have to do after they receive my complaint?

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, and must tell you about any appeal process they have set up for complaints.

Case: Health and Disability Commissioner report, case 13HDC01204

Example: Failing to deal with a complaint properly

Mrs C complained to the disability services company about the inadequate care it was providing for her brother Mr B, a 35-year-old man with a learning disability. In this case the Health and Disability Commissioner not only found that her complaint of inadequate care was justified, but that the poor way in which they’d dealt with her complaint also breached the Code of Rights.

The company’s response to the complaint – What response?

Mrs C complained by phone on 4 March 2013, then by email on 11 March. She didn’t get a response from the company and so contacted a health and disability advocate, who wrote to the company on 16 April (roughly six weeks after Mrs C first complained by phone). On 7 June (13½ weeks after the complaint) the company finally sent the advocate a written response, enclosing their investigation report, which was dated 9 April.

The Health and Disability Commissioner found that the company had breached all their specific obligations here under the Code of Rights (Rights 10(4), (6), (7)) for communicating with Mrs C. They had failed to acknowledge her complaint in writing within five working days. They failed to then come back with a decision on the complaint within another 10 working days, or, if they had decided they were going to need more than 20 working days extra time, to let Mrs C know this and tell her the reason for the delay. They also failed to give her progress reports on their investigation, at least monthly.

The company’s investigation – Disrespecting the disabled person

The Commissioner also criticised the company for not interviewing Mr B himself, the disabled person, when they investigated the complaint. Mr B was quite capable of expressing his views with the help of an interpreter, and the Commissioner said the company disrespected Mr B by excluding him from the process.

The resolution meeting – Poorly managed by the company

Finally, the Commissioner also criticised the way the company managed a resolution meeting held on 8 July (four months after the initial complaint). At this meeting Mr D, the caregiver, had a support person, who also had a relationship with the company. This support person denied the accusations against Mr D and acted defensively.

The company itself later agreed that this support person had overreacted and that their behaviour had been unprofessional and unacceptable. The Commissioner found that the company should have intervened at that meeting when the support person began overreacting. Because the support person also had a relationship with the company, it was inappropriate for them to be at the resolution meeting anyway – this was a conflict of interest.

The Commissioner said that, in general, the company had managed this meeting poorly, and that this was a breach of their duty under the Code of Rights (Right 10(3)) to “facilitate the fair, simple, speedy, and efficient resolution” of the complaint.

For that and the other breaches about standards of care, the Commissioner recommended that the company and the caregiver apologise to Mr B, the person being cared for, and that it do a range of things to fix the problems the complaint had identified – like giving staff proper training, reviewing its various processes, and developing new policies about staff communication skills and conflicts of interest.

Complaining to the Health and Disability Commissioner

Health and Disability Commissioner Act 1994, s 31

The Health and Disability Commissioner’s Office is an independent organisation that’s been set up to promote and protect the rights of people who use health and disability services, and to improve the quality of the services. This includes investigating and helping to resolve complaints made under the Code of Health and Disability Services Consumers’ Rights.

You can complain either verbally (for example, by phone), or in writing, or by using the New Zealand Relay service. You can also get someone else to complain on your behalf – the complaint doesn’t have to be made directly by you.

At what point should I complain to the Health and Disability Commissioner?

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.

How do I make a complaint to the Commissioner?

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

  • phone the Commissioner’s office toll-free on 0800 11 22 33, or
  • email them at hdc@hdc.org.nz, or
  • fill in the complaint form online at the Commissioner’s website – go to www.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.

What happens when the Commissioner gets my complaint?

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 what’s 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. 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 – like the relevant professional body (the Nursing Council for example) if there’s doubt about the competence of the individual you’re complaining about, or the Director-General of Health if problems with the provider’s systems or practices could be a risk to public health or safety.
  • Other complaint bodies – The Commissioner can refer the complaint to the Human Rights Commission, the Ombudsmen 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).

How does the Commissioner investigate a complaint?

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.

How long will the investigation take?

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

What happens if the Commissioner decides your rights have been breached?

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.

Can I challenge the Commissioner’s decision if I don’t agree with it?

Yes. The Health and Disability Commissioner’s decision is final, so you can’t challenge it by appealing to some other official or court. However, you could ask the Ombudsmen to review the Commissioner’s decision or the way the Commissioner investigated your complaint. The Ombudsmen 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. For more details, see the chapter “Dealing with government agencies”.

Complaints referred to the Director of Proceedings and the Review Tribunal

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 1993 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.

What if the Director of Proceedings decides not to take my complaint to the Review 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.

Complaints decided by the Human Rights Review Tribunal

Health and Disability Commissioner Act 1994, ss 50–58

The Human Rights Review Tribunal, which is like a court, can hear complaints made under the Health and Disability Code.

As well as dealing with disputes about discrimination and unfair treatment under the Human Rights Act 1993 (see the chapter “Discrimination”), and privacy and information-related complaints under the Privacy Act 1993 (see the chapter “Privacy and information”).

If the Human Rights Review Tribunal is satisfied that the provider has breached the code, it can order the provider to:

  • stop doing things that breach the code
  • change their procedures
  • pay you compensation
  • do anything else the Tribunal thinks is appropriate.

Director of Proceedings can also lay disciplinary charges

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, the consumer. 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.

Note: As this edition of the 2019–20 Manual goes to print, the Human Rights Review Tribunal has a huge waiting list which has been causing significant delays. However, the government has recently announced the appointment of five new deputy chairpersons to address the backlog.

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