Home | Browse Topics | Health & disability | Disability rights | Complaining about a breach of your rights

Health & disability

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

Complaining about a breach of your rights

Overview

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 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 “Where to go for more support” at the bottom of this page

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 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.

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 to 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, plus any appeal process they have set up for complaints.

Example: Failing to deal with a complaint properly

Case: Health and Disability Commissioner report, case 13HDC01204

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 way the company 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 a week later.. 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. This included 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 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 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 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).

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 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. 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.

It deals with disputes about discrimination and unfair treatment under the Human Rights Act 1993 (see “Discrimination”), and privacy and information-related complaints under the Privacy Act 1993 (see “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. 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.

Did this answer your question?

Disability rights

Where to go for more support

COVID-19 information

www.dpa.org.nz/resources/covid-19-information-for-the-disabled-community

The Disabled Persons Assembly (DPA) has up-to-date COVID-19 information for the disabled community on their website. They also post new information on their Facebook page and their Information Exchange newsletter. You can sign up by going to the website linked above. For more information about DPA, see below.

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

Auckland Disability Law

www.aucklanddisabilitylaw.org.nz

www.communitylaw.org.nz/centre/disability-law

ADL provides assistance and referrals to disabled people on their legal issues, and work with other Community Law Centres, legal professionals and community organisations to raise disability awareness and achieve the best outcome for disabled people.

Office for Disability Issues

www.odi.govt.nz

The Office for Disability Issues is the focal point in government on disability issues.

Human Rights Commission

www.hrc.co.nz/your-rights/your-rights/

This page on the HRC website focuses on the Commission’s work around both individual and systemic disability discrimination. There are resources available in multiple accessible formats.

Health and Disability Commissioner

www.hdc.org.nz

Phone: 0800 11 22 33
Email: hdc@hdc.org.nz

The Health and Disability Commissioner has a range of pamphlets and other information on health and disability issues.

Contact a Health and Disability Advocate

Phone: 0800 555 050

Make a complaint to the Commissioner

Phone: 0800 11 22 33
Email: hdc@hdc.org.nz

PO Box 1791, Auckland

You can make a complaint by phoning the Commissioner’s office toll-free, by email, by filling in the online complaint form or by writing to them.

Ministry of Health Services and Support

www.health.govt.nz/your-health/services-and-support

Publicly funded health and disability services available in New Zealand.

Disabled Persons Assembly

www.dpa.org.nz

The DPA is a pan-disability organisation. DPA works to improve social indicators for disabled people and for disabled people be recognised as valued members of society. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

People First

www.peoplefirst.org.nz

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning (intellectual) disability. People First has a free Disability Information and Advice Service and they also produce legal resources in Easy Read form which are free to download from their website.

Deaf Aotearoa

www.deaf.org.nz

Deaf Aotearoa is a national organisation representing the voice of Deaf people, and the national service provider for Deaf people in New Zealand.

Deaf Aotearoa also works closely with Deaf communities, government agencies and other organisations to increase awareness, promote New Zealand Sign Language and strengthen the rights of Deaf people.

Family Violence – It’s Not OK

www.areyouok.org.nz

Phone: 0800 456 450

“It’s not OK” is a community-driven behaviour change campaign to reduce family violence in New Zealand. Its goal is to change attitudes and behaviour that tolerate any kind of family violence. The website has resources for families who are experiencing abuse. It’s not OK is an initiative housed within the Ministry of Social Development.

Family violence and disabled people

www.areyouok.org.nz/resources/free-resources/domestic-violence-and-disabled-people-accessible-formats

Inclusive Education

www.inclusive.tki.org.nz

This site provides New Zealand educators with practical strategies, suggestions and resources to support the diverse needs of all learners.

Attitude Toolbox: The Whole Truth about Courts and Justice

www.youtube.com/watch?v=m9VF9iCkXS4

This accessible video has information about the New Zealand justice system and courts. The video is presented in New Zealand Sign Language and fully subtitled in English.

New Zealand Health Practitioners Disciplinary Tribunal

www.hpdt.org.nz

This Tribunal hears and determines disciplinary proceedings brought against health practitioners.

Public Trust

www.publictrust.co.nz

Public Trust is New Zealand’s largest provider of Wills and estate administration services.

Te Rōpū Taurima

www.terooputaurima.org.nz

Te Rōpū Taurima is a kaupapa Māori service that supports people of all ethnicities with intellectual impairments around New Zealand.

Le Va

www.leva.co.nz

Le Va supports Pasifika families and communities to unleash their full potential and have the best possible health and wellbeing outcomes.

Blind Low Vision NZ

(previously called Blind Foundation)

www.blindlowvision.org.nz

Blind Low Vision NZ is New Zealand’s main provider of support to New Zealanders who are blind or have low vision.

Achieve

www.achieve.org.nz

Phone: 0800 24 33 33

Achieve is a national network established to ensure equal opportunity and access to post-secondary education and training for people with impairments.

Privacy Commissioner

www.privacy.org.nz

Phone: 0800 803 909
Email: enquiries@privacy.org.nz

You can download the pamphlet “Your Health Information: Know Your Privacy Rights” from the Privacy Commissioner’s website, at: www.privacy.org.nz

You can also download a copy of the Health Information Privacy Code from: www.privacy.org.nz/the-privacy-act-and-codes/codes-of-practice/health-information-privacy-code-1994

Also available as a book

The Community Law Manual

The Manual contains over 1000 pages of easy-to-read legal info and comprehensive answers to common legal questions. From ACC to family law, health & disability, jobs, benefits & flats, Tāonga Māori, immigration and refugee law and much more, the Manual covers just about every area of community and personal life. It’s for people living in Aotearoa New Zealand (and their advocates) to help themselves.

Buy The Community Law Manual

Help the manual

We’re a small team that relies on the generosity of all our supporters. You can make a one-off donation or become a supporter by sponsoring the Manual for a community organisation near you. Every contribution helps us to continue updating and improving our legal information, year after year.

Donate Become a Supporter

Find the Answer to your Legal Question

back to top