Making Complaints

A Guide for Practitioners

What to do if you believe a registered practitioner poses a risk of harm to the public:

Incompetent Practitioners

Under the HPCA Act if you believe that another health practitioner may pose a risk of harm to the public through incompetence, you may give the Registrar written notice of the reasons on which the belief is based (HPCA Act section 34(1)).

The notice must provide sufficient information for the complaint to be investigated. This includes:

• the reason(s) for the belief; and
• the times, dates, place(s) and people involved in important events.

We prefer not to receive anonymous complaints, as there is no way to accurately assess both sides of the situation.

When a health practitioner is dismissed for posing a risk of harm to the public or when a practitioner resigns for reasons relating to competence, his/her employer must immediately before the resignation or dismissal, give the Registrar written notice of the reasons for the resignation or dismissal (section 34(3)). No action can be taken against the person giving such a notice unless the person acts in bad faith (section 34(4)).

 What the Registrar Does

After receiving such a notice, the Registrar must notify:

• the practitioner’s employer
• ACC
• Health and Disability Commissioner
• Director-General of Health

These people also need to be informed if the Council considers that there is no longer a risk of harm to the public (section 35(1)) and the practitioner concerned, must be given a copy of both notices.

What the Council Does

Promptly after receiving such a notice the Council will make inquiries into the matter and if it considers that the notice is neither frivolous nor vexatious (s36(3)) may review the competence of the practitioner, providing that the practitioner is registered and holds a current practising certificate. If the practitioner is not registered and/or does not hold a current practising certificate, the matter is investigated by the Ministry of Health.

 How to minimise the likelihood of complaints

You should:

• communicate clearly with every patient, making sure that you understand what they are telling you; and
• explain to them what you are going to do and why; and
• ensure that you have their consent to do what you say you are going to do.

If a patient says that they don’t want a particular treatment then you can’t do it, even if you think that not doing it will be detrimental to their health or wellbeing. In such a situation it might be helpful to try and explain what you want to do and why in a different way, or offer an alternative treatment.

Always offer a gown or towel for patients to cover themselves if they wish.

Keep clear notes of each consultation that are sufficiently detailed for:

1. another person to be able to carry on with treatment if you are unable to do so for any reason
2. you to be able to recall exactly what happened should a complaint be made against you.

See “Complaints and Discipline under the HPCA Act 2003” for information about what happens when a complaint is made.

 What to do if you know of someone who is claiming to be an osteopath, but is not registered and/or does not hold a current practicing certificate:

Notify the Registrar of the Council, or the Ministry of Health.

You will need to provide sufficient information to enable an investigation to take place. Information could include:

• an advertisement in the Yellow Pages under “Osteopath”;
• a business card or an advertisement in a newspaper that suggests or states that the person is an osteopath or is practising osteopathy.
• a sign outside the person’s business that suggests that they practice osteopathy
• an advertisement on the Internet that suggests that the person practices osteopathy.

If such a complaint is made to the Registrar, she may send a warning to the person involved if it the first time that it has come to the Council’s attention, or forward it to the Ministry of Health for investigation. The Ministry of Health will investigate and may prosecute if they think that the breach is serious.

Note: It is not illegal to be unregistered and do what an osteopath does, except for HVLA (restricted activity) as long as the practitioner makes it clear to each patient that he/she is not an osteopath and does not hold him/herself out to be an osteopath.

Unregistered practitioners are not eligible to be registered with ACC.

To confirm if a practitioner is currently registered to work as an osteopath in New Zealand, you can search the register here or contact the Registrar directly.

Complaints and Discipline under the HPCA Act 2003

If the Council considers that it has information which raises one or more questions about the appropriateness of the conduct or the safety of the practice of an osteopath, it may refer the question(s) to a professional committee (PCC), s68(3).	The Council receives a complaint about an osteopath. Does the complaint allege that the practice or conduct of an osteopath has affected a particular health consumer, s64(1)?	When a notice of conviction is given to the Council, in accordance with s67, the Council must refer the notice to a PCC, s68(2)

The council must promptly forward to the Health and Disability Commissioner any complaint alleging that the practice or conduct of an osteopath has affected a health consumer s64(1).

If the Health and Disability Commissioner refers a complaint to the Council, the Council must promptly assess the complaint and consider the action(s) that should be taken, s65(1). The Act does not specifically state what actions may be taken, However, it does state that the Council may decide to refer the complaint to a PCC, s65(2). Some suggested options for the council at this point are set out below.

 

Review the osteopath's competence under Part 3 of the Act.	Refer the complaint to a PCC, s65(2)	Address concerns about the osteopath's fitness to practise under Part 3 of the Act.	Take no further action.