COMPLAINTS RESOLUTION
"Resolution, protection, learning"
One of the objectives of the Health and Disability Commissioner Act is to "secure the fair, simple, speedy and efficient resolution of complaints". The earlier a complaint is raised and addressed, the greater the chance of achieving these objectives and a good resolution. For this reason, it is important in the first instance to consider complaining directly to the provider, or seeking the assistance of a Health and Disability Consumer Advocate to resolve your complaint.
Providers are required under the Code of Health and Disability Services Consumers’ Rights (the Code) to respond in a timely and appropriate way to complaints. Their responsibilities are spelled out in Right 10 of the Code. If they don’t fulfil these requirements, that can also be a cause for complaint.
Complaints can also be made directly to a Health and Disability Consumer Advocate. This has the advantage of allowing the complaint to be dealt with at a local level. For more information about the Nationwide Health and Disability Consumer Advocacy Service telephone 0800 555 050 or email advocacy@hdc.org.nz or click here.
HDC’s Complaints Resolution process
The Health and Disability Commissioner (HDC) can only look at matters involving the provision of a health or disability service to a consumer. Matters relating to access to services and funding are outside his jurisdiction. HDC cannot award compensation.
Anyone can make a complaint to HDC, orally or in writing. This includes not only consumers, but also their families and other support people, and other third parties such as concerned staff members in a health or disability service. HDC does not have to receive a complaint in order to take action. The Commissioner can also undertake an inquiry on his own initiative, and may do this where serious public concerns have been raised about the safety of a service.
HDC’s complaints resolution staff are located in Auckland. Complaints assessors are the primary point of telephone contact and they manage most complaint files. Their task is to acknowledge and record complaints, and gather preliminary information. The complaint is usually sent to the provider for a response.
Once sufficient information has been obtained, senior staff will assess the complaint and recommend to the Commissioner how it should be handled. The Commissioner has various options. He may decide to take no action, for example where the passage of time makes it impracticable to do so or if, after considerable information has been obtained and assessed, it is clear that the provider has already responded appropriately. The Commissioner may take an educational approach, ask for an apology or recommend action, which is followed up in the same way as recommendations arising from investigations. He may formally refer the complaint to the provider, or to advocacy or formal mediation for resolution between the parties. The outcome of these referrals has to be reported back to HDC.
Investigations
The Commissioner may also decide to begin an investigation. This is an impartial and independent process, to which the rules of natural justice apply, and it can take 12 to 18 months. About 10 percent of complaints received by HDC are formally investigated. These files are assigned to an investigator, who must identify the facts to be proved (usually, what happened, when, where, who was involved, and how and why the event complained of occurred). The investigator collates all the relevant evidence and presents it to the Commissioner or Deputy Commissioner delegated the investigation.
Before commencing an investigation, HDC will inform the parties of the intention to investigate and will advise the provider of the details of the complaint. HDC must also inform the provider of the right to submit, within a reasonable time, a written response to the complaint. During an investigation, HDC may consider oral evidence obtained during interviews with witnesses and parties; documentary evidence, such as correspondence, clinical notes, policy and practice manuals; and any other relevant evidence, such as labelled medication containers.
Where the quality of care is an issue, HDC will obtain independent expert advice from a peer of the provider with knowledge of, and experience in, the matters under investigation.
After an investigation, the Commissioner or Deputy Commissioner forms an opinion whether the provider has breached the Code, and notifies the parties of his or her findings. If the provisional finding is adverse to any provider, the provider will be given an opportunity to make a written submission; if the complaint is provisionally not upheld, the complainant is given an opportunity to make a written submission. The Commissioner or Deputy Commissioner forms and reports his or her final opinion after consideration of any responses to the provisional report and any further expert evidence that has been obtained.
While distribution of HDC’s final opinion signifies the end of the investigation, the Act provides HDC with a range of options for using the report to promote change, both in respect of the conduct of individual providers and in the sector generally. Options on finding a breach of the Code include making of reports and recommendations to the provider, the appropriate authority (eg, a registration body), the Minister of Health, or any other person HDC thinks fit. This may include the professional colleges, the Ministry of Health, District Health Boards, ACC, and consumer and provider groups. Recommendations to providers vary from case to case, but may include a written apology to the consumer; undertaking specific training; and implementing and reviewing systems to prevent further breaches. When any recommendations are made, HDC follows up to confirm that they have been implemented.
Where a final report suggests that there may be concerns about the competence of a registered health practitioner, HDC may recommend to the registration authority (eg, the Medical Council for a doctor) that it consider whether a review of the practitioner’s competence is warranted.
In reporting the final opinion, the Commissioner or Deputy Commissioner may refer the matter to the Director of Proceedings, to consider whether to bring disciplinary and/or other proceedings. On referral to the Director, the principal avenues of redress are a claim before the Human Rights Review Tribunal, and disciplinary proceedings before the Health Practitioners Disciplinary Tribunal. The Director may decide to take action in both these forums.
At any time, the Commissioner has the discretion to refer matters to another person or authority where he considers it in the public interest to do so. He must refer matters to the appropriate person or authority (eg, the Director-General of Health) when an investigation has revealed a significant breach of duty or misconduct; and at any point during the complaint handling process when he has reason to believe that the practice of a health practitioner may pose a risk of harm to the public. It is also important to note that all complaints made directly to professional registration bodies must now be referred by them to HDC. This includes all complaints about doctors, nurses, dentists, pharmacists, and so forth. Once referred to HDC, no disciplinary action can be taken by the professional body until the Commissioner, or the Director of Proceedings, has dealt with the matter and decided to take no further action. Only at this point can the professional body take up the matter itself. (It is only disciplinary action that is suspended. Professional bodies can still consider a member's fitness or competence to practise.)