Referral to the Director of Proceedings

Following an investigation by HDC, the Commissioner may refer a provider to the Director of Proceedings. 

The Director of Proceedings is independent of the Commissioner and has various statutory powers to provide assistance and to take, or provide representation, in any proceedings.

When the Director of Proceedings receives a referral from the Commissioner, the Director of Proceedings will write to both the complainant and the provider advising that the referral has been received and advising the parties about the next steps.

The Director of Proceedings will review the information provided by the Commissioner and in some cases will obtain further information.  The parties will be given an opportunity to provide input before the Director of Proceedings makes a decision about the referral. When making a decision, the Director of Proceedings will also consider factors such as the protection of consumer rights, the public interest and provider accountability.

Both the complainant and the provider will be advised in writing once the Director of Proceedings has made a decision whether or not to take further action.

The Director of Proceedings has wide powers to assist complainants, provide representation or take proceedings in the Director of Proceedings’ own right.

Most commonly the Director of Proceedings will consider:

1. Issuing proceedings against a provider at —

• The Health Practitioners Disciplinary Tribunal; and/or
• The Human Rights Review Tribunal; and/or

2. Informal resolution by way of agreement.

It is the Director of Proceedings’ sole decision to determine which actions are appropriate.

It is important to note that the Director of Proceedings has no power to award compensation.

The Health Practitioners Disciplinary Tribunal hears charges of professional misconduct against registered health professionals such as doctors, dentists, nurses, pharmacists, midwives and physiotherapists. 

Proceedings at the Health Practitioners Disciplinary Tribunal are commonly referred to as disciplinary charges. The Director of Proceedings must establish that the practitioner’s care fell below accepted professional standards and is serious enough to warrant disciplinary sanction by the Health Practitioners Disciplinary Tribunal.

Penalties may include:

1. Censure/fine;
2. Cancellation or suspension of the provider’s registration; and/or
3. The imposition of conditions on the provider’s practice.

Proceedings at the Health Practitioners Disciplinary Tribunal are heard by a panel which includes a Chairperson, who is an experienced lawyer, plus three health practitioners and one lay person.  

The Health Practitioners Disciplinary Tribunal has no power to order costs or compensation to be paid to the complainant.

The Human Rights Review Tribunal hears cases relating to privacy and human rights as well as breaches of the HDC Code of Health and Disability Services Consumers’ Rights (the Code).

Like the Health Practitioners Disciplinary Tribunal, the Human Rights Review Tribunal can hear proceedings against any provider of health and disability services (including un-registered providers).

Claims at the Human Rights Review Tribunal are heard by an appointed panel of three people which is made up of the Chair, who is an experienced lawyer, and two other members.

If a proceeding brought by the Director of Proceedings is successful, the Human Rights Review Tribunal may take any, or a combination of, the following actions:

1. issue a Declaration that the Code has been breached;
2. order that the provider cease engaging in the offending conduct;
3. order compensatory damages be paid by the provider;
4. order exemplary damages be paid by the provider;
5. order that any loss or damage is redressed by the provider; and
6. order any other relief as the Tribunal sees fit.

Awards of compensatory damages are uncommon, as most referrals to the Director of Proceedings are covered by ACC legislation, which means that claims for damages are barred.

Most cases are heard in public and, therefore, the media is entitled to attend these hearings. 

Almost always the Tribunal will order permanent name suppression for the complainant, and usually also suppresses any additional details that may lead to the identification of a complainant.

A Tribunal often also makes an interim name suppression order for the provider until the case has been heard.  

If the Director of Proceedings decides to issue proceedings against a provider, it is likely that a complainant will be required to give evidence at a hearing.  Evidence is given by reading out a pre-prepared written statement, and the Tribunal members and the provider’s lawyer will be given an opportunity to ask questions about the statement.

The Director of Proceedings or one of the Team will assist the witness in preparing this statement, and will be the contact person leading up to, and at, the hearing.

The Tribunal hearings are run like court hearings, but are not as formal.

Members of the public (including complainants) are not able to issue proceedings before the Health Practitioners Disciplinary Tribunal. 

However, a complainant can bring his or her own proceedings before the Human Rights Review Tribunal if:

• The Commissioner carries out an investigation into the person's complaint and finds a breach of the Code of Health and Disability Services Consumers' Rights; and
• The breach is either not referred to the Director of Proceedings or the breach is referred, but the Director of Proceedings decides not to issue proceedings before the Human Rights Review Tribunal.

Providers are not obliged to engage a lawyer, but it is recommended that they do so.

A lawyer will be able to give independent legal advice on this process and can represent the provider at the hearing.

If a provider chooses not to engage a lawyer, the Director of Proceedings or one of the Team will be able to provide information about the process and answer questions of a general nature, but cannot provide any legal advice.