Complaints are a fundamental right of healthcare in New Zealand. Receiving a complaint is unsettling, but this is a normal part of working with patients – and an efficient and robust complaints process can help both your patients and your practice.
The Physiotherapy Board (the Board) complaints process is based on the principles of natural justice for both physiotherapists and complainants.
What happens if there is a complaint against a physiotherapist?
Complaints against physiotherapists can be laid directly with the Health and Disability Commissioner (HDC) or the Board. The law states that any complaint that involves the rights of consumers must go to the HDC (typically most complaints). If the Board receives this type of complaint, it is immediately sent to the HDC. If the Board is concerned about the safety of the public, it can impose interim orders (such as practice limitations or supervision) while HDC is deliberating.
What does the Health and Disability Commissioner do?
The HDC’s main role is to ensure that the rights of consumers are upheld. Once the HDC has received a complaint, it has the first right to investigate, and this can take time. If HDC decide not to investigate the complaint, the complaint will be sent back to the Board to decide if it will investigate the matter.
If the HDC feels the complaint does warrant discipline, it is forwarded to the Director of Proceedings (DP) to prosecute at the Health Practitioners Disciplinary Tribunal (HPDT). The DP is a lawyer appointed under the Health and Disability Commissioner Act 1994 who reviews the case and makes an independent decision on whether to take further action at the HDPT.
What is the Physiotherapy Board’s role?
The Board deals with cases that have been referred from the HDC, as well as the complaints that don’t concern consumer rights – e.g. ACC fraud. These can either be dismissed or referred to a Professional Conduct Committee (PCC).
What is a Professional Conduct Committee?
PCCs are independent statutory committees appointed by the Board to investigate questions over a practitioner’s conduct.
A PCC has three members (two physiotherapists and one lay member). It may investigate however it sees fit and has wide powers to receive evidence. However, due to the responsibility of ensuring natural justice, good decision-making, disclosure of information, and timeliness this process can take around a year at a minimum. It can recommend suspension of the practitioner at any time during the investigation if it believes the therapist is a serious risk of harm to the public.
Following completion of the investigation the PCC can recommend a competence review, a review of the practitioner’s health or scope of practice, a police referral, or for the Board to ‘counsel’ the therapist. The PCC can determine no further action, conciliation, or lay disciplinary charges at the HPDT.
What is the Health Practitioners Disciplinary Tribunal (HPDT)?
The HPDT is the court for health practitioners. When the Tribunal sits to hear and determine a charge, it comprises five people. The ‘sitting’ Tribunal comprises a chairperson or one of the Tribunal’s deputy chairpersons, a lay person appointed from the panel, and three health professionals appointed from the panel who are professional peers of the health practitioner who is the subject of the hearing. The Minister of Health appoints all members of the Tribunal.
The Tribunal was created by section 84 of the Health Practitioners Competence Assurance Act 2003 – so (like PCCs) it is totally independent of the Physiotherapy Board, and this is why practitioners pay a separate Disciplinary Levy to cover the costs of PCC and HPDT hearings. The Tribunal decision can include fines, costs of proceedings (usually a percentage), suspension or cancellation of registration, name suppression (usually to safeguard the public), and impose practice conditions.