Health and Disability Commissioner
Complaints where the conduct or competence of a health practitioner has affected a health consumer (patient) are considered by the Health and Disability Commissioner in the first instance. The Commissioner promotes and protects the rights of consumers and receives all complaints against health practitioners.
The Commissioner considers complaints in reference to the Code of Health and Disability Services Consumers' Rights. You can view the Code and information on the Commissioner's complaint processes by visiting the Commissioner's website located at www.hdc.org.nz
After considering a complaint, the Commissioner may decide to refer the matter to the Psychotherapists Board for consideration. If this happens, the Board will promptly notify the complainant and psychotherapist involved, consider the complaint, and decide on a course of action to be taken.
Complaints from clients and notifications to the Board made by health practitioners and/or colleagues about the conduct, competence or health of a psychotherapist are considered by the Board's Notifications and Complaints Committee (NCC).
When considering a complaint or notification, the NCC will:
1. Acknowledge receipt of the complaint or notification.
2. Advise the psychotherapist involved of the process by which the matter is to be considered, and provide them with a copy of the complaint or notification.
3. Invite the psychotherapist to provide the NCC (or Board*) with their comment on the complaint or notification as well as any information they consider may be relevant for the NCC's (or Board's*) consideration.
4. Consider all information in determining what action, if any, may need to be taken regarding the complaint or notification. This may include:
- an educational letter to the psychotherapist suggesting ways in which they could avoid such complaints or notifications in the future
- referring the matter to another agency, if more appropriately dealt with by them (e.g. the Privacy Commissioner)
- referring the matter to the Board for consideration of whether the matter may need to be referred to a Professional Conduct Committee for investigation
- referring the matter to the Board for consideration of whether the psychotherapist may need to undergo a competence review
- referring the matter to the Board for consideration of whether the psychotherapist's fitness to practise (health) may need to be reviewed
- taking no further action on the matter.
5. Advise the psychotherapist of the outcome of the NCC's (or Board's*) consideration of the matter.
6. Advise the complainant or notifier that the Board has concluded its consideration of the matter, and depending on the outcome, may advise the complainant or notifier what action has been taken.
There are a range of processes which can be used to address a complaint or concern, and most of these are intended to provide support, education and/or rehabilitation rather than administer discipline.
Where possible, the Board will refrain from issuing orders to interim suspend a psychotherapist's practising certificate or to impose interim conditions on their scope of practice while enquiries are conducted into the concerns raised. This will be determined on a case by case basis in conjunction with the perceived level of risk posed to the public.
*If the NCC considers that the complaint or notification raises serious concern for public health and safety, the NCC may refer the matter directly to the Board for consideration.
Difference between a 'complaint' and a 'notification'
The Board considers that a notification is written notice of a health practitioner's general concerns about the competence, conduct and/or health of another practitioner, as opposed to a complaint about their competence, conduct and/or health in relation to care provided to a specific client or patient.
If a health consumer (patient/client) is unable or unwilling to lay a complaint with the Health and Disability Commissioner, and you feel strongly that a complaint should be made, you can make a complaint yourself with the Commissioner and can do so by contacting the office of the HDC. Should you decide to take this action, the Board recommends that you first advise the practitioner and their client that you will be doing so.
For information on making a notification, please refer to the information available on the Board's website under 'For Psychotherapists' 'Raising concerns.'
Under section 36(4) of the HPCA Act, the Board may at any time review the competence of a psychotherapist who holds a current practising certificate, whether or not there is reason to believe that the psychotherapist's competence may be deficient or the Board receives a notification.
In conducting a competence review, the Board must consider whether, in the Board's opinion, the psychotherapist's practice of the profession meets the required standard of competence. The Board will consider this in conjunction with the Board's set standards of clinical and cultural competence.
The form of a competence review is at the Board's discretion under the HPCA Act, but in every case the Board must give the psychotherapist:
- A notice containing sufficient particulars to inform the psychotherapist clearly of the substance of the grounds (if any) on which the Board has decided to conduct the review; and
- Information relevant to his or her competence that is in the possession of the Board; and
- A reasonable opportunity to make written submissions and be heard on the matter, either personally or by his or her representative.
If, after conducting a review, the Board considers that the psychotherapist fails to meet the required standard of competence, the Board must make one or more of the following orders under section 38(1) of the HPCA Act:
- that the psychotherapist undertake a competence programme;
- that one or more conditions be included in the psychotherapist's scope of practice;
- that the psychotherapist sit an examination or undertake an assessment specified in the order;
- that the psychotherapist be counselled or assisted by one or more nominated persons.
Professional Conduct Committees
A Professional Conduct Committee (PCC) is a committee of three people (2 psychotherapists and a layperson) appointed by the Board to investigate a complaint or conviction, under section 71 of the HPCA Act 2003. The PCC's role is to investigate the circumstances that lead to the complaint or conviction and then to decide on an appropriate course of action.
The PCC may regulate its own procedure and can appoint a legal adviser to advise it on matters of law, procedure or evidence, and may appoint an investigator to collect information required by the PCC and to investigate complaints.
At the end of its investigation, the PCC must make one or more recommendations or determinations under section 80 of the HPCA Act.
The PCC can recommend
- That the Board review the psychotherapist's competence to practise
- That the Board review the psychotherapist's fitness to practise (health)
- That the Board review the psychotherapist's scope of practice
- That the Board refer the matter to the Police
- That the Board counsel the psychotherapist.
The PCC can reach one of the following determinations:
- That no further steps be taken
- In the case of a complaint, that the matter be referred to conciliation
- That a charge be brought against the psychotherapist before the Health Practitioners Disciplinary Tribunal.
A flowchart of the PCC process is available here - Click here to download the document.
Should the Board refer a complaint to a PCC for investigation, the psychotherapist involved will be notified and provided with the following information on PCCs and what to expect - Click here to download the document.
A copy of the information provided to a complainant about how PCCs operate is available here - Click here to download the document. The flowchart mentioned in this document is available for download above.
Health Practitioners Disciplinary Tribunal (HPDT)
professional misconduct as a result of malpractice or negligence
If a PCC (or the Health and Disability Commissioner's Director of Proceedings) lays a charge against a health practitioner, the charge will be heard by the Health Practitioners Disciplinary Tribunal (HPDT). The grounds upon which a practitioner may be disciplined are outlined in section 100 of the HPCA Act and include:
professional misconduct that may bring or has brought the profession into disrepute
being convicted of an offence that reflects adversely on his/her fitness to practise
practising without a practising certificate
performing a health service within his/her scope of practice that is not permitted by that scope of practice
failure to observe any conditions in his/her scope of practice
breach of an order made by the HPDT under section 101.
Penalties available to the HPDT in the event that any of the above cases is found to apply are:
cancellation of the practitioner's registration
suspension of the practitioner's registration for no more than 3 years
imposition of conditions on the practitioner's scope of practice
a fine of no more than $30,000
a requirement that the practitioner contribute to the costs of the proceedings or the PCC's costs, or the Director of Proceedings' costs
For information on HPDT processes and outcomes, please visit the HPDT's website located at www.hpdt.org.nz
Fitness to Practise (health) Reviews
If health concerns are raised about a psychotherapist, the Board has specific powers under section 49 of the HPCA Act to require that the psychotherapist submit themselves for examination or testing with a medical practitioner in order to determine whether there is a mental or physical condition affecting their ability to practise safely. This medical practitioner will provide a report to the Board on their findings, including any recommendations for supporting the psychotherapist to return to safe practice. A copy of this report is provided to the psychotherapist once it has been received by the Board.
Raising concerns about a colleague
To protect the safety of clients, psychotherapists have a professional obligation to take action if concerned about a colleague's conduct or competence, as well as a legal responsibility to take action if concerned about a colleague's health.
The Board understands that it can be very difficult deciding when to take action and what action to take, so the Board has developed a 'Statement for the profession on what to do when you are concerned about a colleague.'
A copy of this statement is available on our Board Policies page
If you have questions about the Board's processes, please contact the Registrar on 04 918 4727 or email firstname.lastname@example.org