Formal investigation – information for providers
What you need to know if you are under investigation for a complaint
This page is for providers who are involved in an HDC complaint that has progressed to a formal investigation. Learn about the process and what to expect.
An investigation explores whether a person’s rights have been breached
An investigation determines whether there has been a breach of rights under the Code of Health and Disability Services Consumers’ Rights (the Code). The investigation gathers evidence to find out what happened, and whether providers’ actions breached the Code.
The Code focuses on consumers’ rights. The Health and Disability Commissioner investigates in accordance with the HDC Act and administrative law. We recommend that providers seek independent legal advice for more information about these requirements.
What are my rights if I am subject to an investigation?
When you are under formal investigation, you have rights. You have a chance to be heard and to provide evidence. Your cooperation and support can help you and your consumer to reach a positive outcome.
You will be able to tell your side of the story
You will be asked for a written description of your version of events. The investigator may also request an interview with you. These are opportunities to tell your side of the story and provide evidence.
How long will the investigation process take?
This depends on how complicated the complaint is. While many investigations take around 12 months to complete, some more straightforward investigations can be completed in a shorter timeframe. Other investigations are very complex, involving many providers and wide-ranging issues, and can therefore take longer. We will keep you updated on progress at least every two months.
Please note that these timelines are in addition to the time taken to complete an initial assessment of your complaint before a decision is made to investigate formally.
Will I need a lawyer?
This is something you will have to decide for yourself. It may help to discuss the complaint with colleagues. Your professional body may be able to help or to put you in contact with someone who has been through the investigation process. Some health professionals use lawyers, but many do not.
What happens during an investigation?
You will be told about the investigation
As a provider under investigation, you must be told about:
- HDC’s intention to investigate
- The details of the complaint or the subject of the investigation.
Providers are almost always sent a copy of a written complaint. This written copy and the accompanying letter set out the key points and what the investigation will cover. You are then invited to make a written response, which is usually required within 15 days. It is a good idea to seek support from a peer or colleague at this stage.
Your response is important for our Commissioner. Our Commissioner will consider your information in deciding how to deal with the complaint.
An Investigator will gather evidence
Under the HDC Act our Commissioner can obtain any information relevant to an investigation. HDC’s rights to obtain information under the law will usually override any patient confidentiality concerns you may have.
We assign an Investigator to manage and research the complaint. In the letter telling you about the investigation, our Commissioner often tells you what information you must provide. This can include:
- A summary of the service provided
- Clinical notes and relevant reports
- Policies or procedures
- The names of other providers involved, or other providers who treated the consumer
- Witnesses to the events.
We seek to update you every two months about progress on your investigation. However, you can ask us for an update at any time.
When we have your evidence, we often seek advice from a clinical advisor in the relevant field/s. Our Commissioner’s advisors are highly respected professionals in their field. They are usually recommended by the relevant professional College.
We may recommend an agreement or referral to advocacy
Sometimes during an investigation, we see that the parties may be able to resolve the dispute by agreement. In this case, we may refer the person complaining to the Advocacy Service or other advocates.
Advocates act on behalf of the consumer. They often help resolve complaints around communication or misunderstanding.
You can respond to our Commissioner’s opinion of the investigation
Once our Commissioner has investigated and made a provisional decision, HDC sends a covering letter with the Commissioner’s report, inviting your comments, usually within 15 working days of receipt. This is your opportunity to respond.
You can correct any errors and respond to the Commissioner’s opinion on whether the Code of Rights was breached. All parties will have the opportunity to comment on any proposed public naming at this point. This is done based on HDC’s Naming Policy. You can also respond to any recommendations made.
For our Commissioner’s final report, we consider your response carefully. If you ask, your written response, or a fair and accurate summary of it, can be attached to the final report.
Our Commissioner’s final report about the complaint
In the final report, our Commissioner decides whether a consumer’s rights have been breached. This decision is made based on all the evidence gathered.
Our Commissioner’s report sets out all the relevant information from the investigation. The report will state whether you have breached the Code, and outline the reasons for the decision.
After the final report
HDC sends the final report to you and to the person who complained. A version of the report with identifying features is sent to any relevant persons or organisations. An anonymised copy of the report may be placed on the HDC website for educational purposes. Very rarely, where our Commissioner has found a breach of the Code, the provider may be referred to the Director of Proceedings.
If our investigation raises concerns about a registered health practitioner’s competence, HDC may recommend to the practitioner’s registration authority (for example, the Medical Council) that it consider reviewing the practitioner’s competence.
Recommendations and follow-up
When we finish a formal investigation, we follow up on our Commissioner’s recommendations. This ensures that appropriate changes occur.
Can I appeal the Commissioner’s decision?
No. Our Commissioner’s opinion is final, and cannot be appealed. However, the Office of the Ombudsman and/or the High Court can review the way the complaint was investigated. This ensures that everyone has been treated fairly.
For an overview of the HDC complaint process for providers, see What if a complaint is made about me as a provider?