Health and Disability Commissioner
Excerpt of
Standard Operating
Procedure
9.5.8
Distribution of PO
Prior to sending out a PO, Investigators should contact consumers/complainants and providers
to advise that the PO is about to be issued. The Investigator then sends the PO to the relevant
parties by CourierPost. A PO may concern more than one provider, or include adverse
comment about a third party. In these cases, usually the provider should receive only the
“information gathered” and “opinion” section of the PO (including the expert advice) that
relates directly to that provider. The complainant should receive only a copy of the
“information gathered” section — the cover letter explains why. The complainant should not
receive a copy of the expert advice report at this stage.
Generally, the Commissioner gives all parties 15 working days to respond to the PO.
The Investigator may distribute a PO in electronic form with the approval of the Investigations
Manager. Where the PO is to be sent via email, the Investigator must confirm the email
address with the recipient in advance, and the PO must be password protected, with the
password sent by separate correspondence and noted on ECDS.
Disclosed under the
or the Privacy Act 1993
Official Information Act 1982
Approved: April 2017
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Office of the Health and Disability Commissioner
Enquiries and Complaints Manual
Section 5
Commissioner’s Opinion
5.2 Provisional Report
Report Subject to Senior Investigation Review
At the conclusion of an investigation the investigation officer shall prepare a draft report
for the Commissioner’s consideration. Before being sent to the Commissioner the
report shall be carefully proof read and reviewed by the Senior Investigation Officer
who shall sign the cover sheet to this effect. Facts must be checked as correct and the
Senior Investigation Officer must record on the cover sheet whether he or she is in
agreement with the report outcome.
After review by the Senior Investigation Officer the draft report and file shall be
forwarded to the Legal Division for legal review of its content prior to being sent to the
Commissioner. This review will be undertaken with urgency and the report and file
forwarded to the Commissioner by the Legal Manager on its completion. Any
suggested amendments will be marked up on the report for the Commissioner’s
consideration.
Commissioner Review
On the basis of the draft report and file the Commissioner shall form a provisional view
on whether there has been a breach of the Code. Any amendments made by the
Commissioner to the draft report shall be discussed with the investigation officer who
will arrange typing and check for accuracy.
Provider Response
In all cases the Commissioner’s provisional report shall be sent for comment to the
provider against whom there is a finding of breach of the Code prior to its finalisation.
Disclosed under the
Complainant Response
or the Privacy Act 1993
A provisional report may occasionally be sent for comment to the complainant where no
breach of the Code is found. This will depend on the circumstances and will usually
occur where the matter is complex, or serious, or the facts are contentious. The letter to
the complainant should advise that the report will be finalised if no further relevant
Official Information Act 1982
information is provided by a set date.
Effective Date: 1 November 2001
Section 5
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Enquiries and Complaints Manual
Section 5
Commissioner’s Opinion
The general practice is not to advise the complainant that a provisional report has been
sent, but if necessary to advise that further comments are being sought. This is to avoid
problems which may arise if, for example, a complainant is advised of a provisional
breach opinion but that opinion is subsequently altered in light of comments by the
provider. (The same principle applies if the provider is informed of a provisional no
breach opinion which is later reversed.) However, while the opinion itself should not be
sent, the provisional findings of fact may sometimes be sent to the complainant,
especially where these are in dispute.
Covering Letters
The party to whom the provisional report is sent shall be advised in a covering letter,
using the standard format, that this is an opportunity to provide any further comment,
for example, to dispute any findings of fact, before the report is finalised.
At the time of sending the provisional report, any provider subject to investigation who
has not been found in breach should be advised by way of a standard letter.
Adverse Comment
The provisional report also provides parties with an opportunity to respond to any
adverse comment by the Commissioner in accordance with s67. This entitles anyone
exercising their right to make a written statement in answer to adverse comment to
require that statement (or a summary of it if the Commissioner considers a summary
more appropriate), to be included in, or appended to, the report.
The requirement that an opportunity be given to respond to adverse comment extends
beyond the parties to
any person against whom adverse comment is made in a report or
recommendation. Where the Commissioner proposes to make adverse comment about
any person who has not previously been heard (for example, because that person was
not a party to the complaint), he or she must be given an opportunity to be heard and to
make a written statement in answer to the adverse comment before the report is
finalised.
Disclosed under the
To ensure a fair process, providers and others must be given an opportunity to respond
to adverse comment about themselves before it is shown to others. Where a provisional
or the Privacy Act 1993
report concerns more than one provider, or includes adverse comment about a third
party, only that part of the report which relates to the particular individual concerned,
plus the findings of fact, should be released to that individual for comment.
Official Information Act 1982
Effective Date: 1 November 2001
Section 5
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Enquiries and Complaints Manual
Section 5
Commissioner’s Opinion
Similarly, only those parts of the provisional report which relate to a direct breach of the
Code by an employer, or which relate to a finding of vicarious liability by the employer,
should be released to the employer for comment. However, employers have an interest
in the wellbeing of their staff and may want to know that a provisional opinion has been
sent. For this reason, when employees of a hospital are sent a provisional report, the
hospital should be advised that the provisional report has been sent but not of the
content of that report.
Recommendations
Where a provisional report contains proposed recommendations or identifies actions the
Commissioner is considering taking, the report should not set any date by which the
recommendations are to be met. This would be premature, as no breach of the Code has
yet been found.
In formatting recommendations, consideration must be given to the educative function
of the report. It is important that others are informed of the lessons learnt.
Consideration should therefore be given to distribution of the report as well as to the
actions necessary to prevent a recurrence of the breach, and recommended actions
should be listed even if investigation officers are aware they have already been taken in
the particular case. Once confirmation of compliance with the recommendation is
provided, this can be acknowledged at final report stage.
In drafting recommendations consideration should be given to whether an agency other
than the Commissioner should review their implementation, e.g. the Ministry of Health,
the Pharmaceutical Society, etc. The Commissioner has a watchdog role in the sector
and should not take over the monitoring function of other agencies.
Depending on the circumstances it may be appropriate to recommend at this stage that
the parties try to reach agreement at mediation, especially if the matter is one otherwise
likely to be referred to the Director of Proceedings for a decision on whether action
should be taken at the Complaints Review Tribunal.
Disclosed under the
Public Interest
Consideration should always be given at provisional report stage to the public interest in
or the Privacy Act 1993
making the report public (i.e. publication beyond distribution to other interested
agencies). Investigation officers will need to consider, amongst other things:
whether the provider has been informed of the possibility of the report being made
Official Information Act 1982
public (information to this effect is usually included in the standard notification of
investigation letter)
Effective Date: 1 November 2001
Section 5
Approved By:
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Enquiries and Complaints Manual
Section 5
Commissioner’s Opinion
the public’s right to be informed about matters which may impinge on safety
the frequency of complaints about the particular provider
the consumer’s wishes
whether disciplinary proceedings are contemplated
whether the matter is already in the public arena
any reasons by the provider as to why the matter should not be made public
whether public confidence in the provider would be affected.
It is important that the Commissioner’s intention to make the matter public is set out in
the provisional report so that the provider has an opportunity to comment on this as well
as on the content of the report.
In all cases where it is intended that the matter be made public there must be
coordination with the Education/Communication Division at the time the provisional
report is being drafted. Likewise, there must be coordination if a matter becomes public
during
an
investigation.
All
press
clippings
will
be
forwarded
by
Education/Communications for inclusion on the investigation file.
Time Frames for Response
The time given to respond to the provisional report will vary from case to case – the
more complex the investigation, the greater the time which should be allowed. As a
general rule, in the majority of cases a response can be expected within a 10-15 working
days.
If no response has been received a few days before the set date, a follow up phone call
should be made. The investigation officer may use his or her discretion to discuss the
recommendations with the provider(s) during this phone call in an attempt to send final
letters which close the file e.g. if the provider also sends an apology letter with the
response and information confirming other recommendations, then the file will be
closed.
All extensions of time must be with the Commissioner’s agreement and should be
Disclosed under the
recorded in a letter from the Commissioner or action note. If no response (or
explanation of delay) is received by the set date, the Commissioner shall proceed to
form
his
or
her
final
opinion.
or the Privacy Act 1993
Official Information Act 1982
Effective Date: 1 November 2001
Section 5
Approved By:
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Disclosed under the
or the Privacy Act 1993
Official Information Act 1982
Effective Date: 1 November 2001
Section 5
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