New ZealandHDC complaints · Proceedings
Referral to the HDC Director of Proceedings: What It Means and What Follows
You have been found in breach of the Code of Rights and the Commissioner has referred you, or is proposing to. This guide explains the two separate decisions involved, what the Director of Proceedings weighs, the three ways it can end, and what you can sensibly do at each step, whatever your profession or type of service.
Reviewed October 2026 against the Health and Disability Commissioner Act 1994, the HPCA Act 2003, HDC's Director of Proceedings guidance and annual reports, and Ministry of Justice information on the Human Rights Review Tribunal
Short answer: A referral to the Director of Proceedings means the Health and Disability Commissioner has found a serious breach of the Code of Rights and has passed your case to a lawyer who works independently of the Commissioner to decide whether legal action should follow. The Director can take no proceedings, lay a disciplinary charge before the Health Practitioners Disciplinary Tribunal (registered practitioners only), bring civil proceedings before the Human Rights Review Tribunal (any provider, including organisations), or do both. A referral is not a charge and not a finding of professional misconduct, but it is the most serious outcome HDC can reach on its own, so get legal advice early.
Key takeaways
- There are two decisions by two different people: the Commissioner decides whether to refer (section 45(2)(f)), and the Director of Proceedings decides independently what, if anything, to bring (sections 15 and 49).
- You must be given a chance to comment on a proposed referral before it is made (section 44(1)). That comment is your best opportunity to show remediation and insight before the matter leaves HDC.
- Referrals are rare. In 2024/25 HDC received 3,477 complaints, found a breach in 145 investigations and referred 12 providers to the Director.
- The Tribunals do different jobs. The HPDT decides professional misconduct and can suspend or cancel registration; the HRRT decides whether the Code was breached and can award damages, including punitive damages where ACC would otherwise bar a claim.
- Several recent cases ended with the practitioner or provider accepting the charge or consenting to the proceedings. How you engage is within your control, even when the outcome is not.
- Remediation you have already completed is evidence. In one recent HPDT case the Tribunal imposed no practice conditions because a Medical Council performance assessment and educational programme had already addressed them.
What a referral is, and what it is not
The Director of Proceedings sits inside HDC but is a separate statutory role. Section 15 of the Health and Disability Commissioner Act 1994 requires the Commissioner to designate one of its employees as Director, and says that person "shall not be responsible to the Commissioner but shall act independently". HDC describes the Director as a lawyer whose team has not seen your case before it is referred. The Director answers to the Commissioner only for the efficient, effective and economical management of the role, and the same person cannot also be Director of Advocacy.
If you have read our overview of fitness to practise in New Zealand, you will know that only two bodies can lay a charge before the Health Practitioners Disciplinary Tribunal: a professional conduct committee appointed by your responsible authority, and the Director of Proceedings. This guide goes into the second route in depth: why a case is referred, how the Director decides, and how you can respond.
A referral is not
- A disciplinary charge. No charge exists until the Director decides to lay one.
- A finding of professional misconduct. Only the HPDT can make that finding.
- A criminal matter. HDC is explicit that HPDT charges are not criminal charges.
- An automatic route to a hearing. The Director can decide to take no proceedings.
- Something you can appeal. HDC says the Director's decision cannot be appealed.
A referral is
- A sign the Commissioner regards the breach as among the most serious it sees.
- A handover to an independent lawyer who reviews the evidence afresh.
- A decision point between no further action, the HPDT, the HRRT or both.
- A matter your responsible authority will usually learn about through HDC's report.
- The point where specialist legal advice stops being optional in practice.
A referral can only follow a formal investigation that ends in a breach opinion. If you are still at the stage of answering HDC's first letter, our guide to responding to an HDC complaint is the place to start. If you have just received a draft opinion, read how to read and respond to an HDC provisional opinion first, because that is often where a proposed referral first appears.
Two decisions, made by two different people
Most confusion about this process comes from treating it as one decision. It is two, and the law controls each one differently.
The Commissioner refers
After a formal investigation, section 45 lets the Commissioner do any or all of several things where the provider breached the Code: report to the provider with recommendations, report to your responsible authority, ACC or others, report to the Minister, make or assist a complaint, and, under section 45(2)(f), refer one or more providers to the Director of Proceedings.
Before referring, the Commissioner must give you a chance to comment (section 44(1)) and must consider the factors in section 44(3). Those factors are then passed on to the Director (section 45(3)).
The Director decides
Under section 49, the Director decides whether to institute proceedings before the Human Rights Review Tribunal under section 50, disciplinary proceedings, or both, and whether to take any of the supporting actions in section 47. If the Director decides proceedings should be taken, the Director brings them.
Under the HPCA Act, a charge laid by the Director must be prosecuted by the Director at the hearing (section 91(3)). The same office that decides to prosecute also runs the case.
Section 47 is easy to overlook. After a referral, the Director can also give a complainant financial or other help in proceedings before another authority or tribunal, represent them or another party in related proceedings, appear and be heard in related court proceedings, or bring proceedings in the Director's own right about the investigated matter. In practice the HPDT and HRRT routes are the ones that matter most to a referred provider, but section 47 explains why the Director's interest in a case can extend beyond those two Tribunals.
Section 34(2) of the HPCA Act says that if the Commissioner or the Director of Proceedings has reason to believe a practitioner may pose a risk of harm to the public by practising below the required standard of competence, they must promptly give the Registrar of the practitioner's responsible authority written notice of the circumstances. That is separate from any decision about proceedings, and it is one reason your authority may act on competence or safety while the Director is still considering the case.
The pathway at a glance
The diagram traces a case from HDC's breach opinion to each possible end point. The section numbers refer to the Health and Disability Commissioner Act 1994 unless marked as the HPCA Act.
What shapes the decision to refer and the decision to prosecute
HDC's public pages on the Director of Proceedings explain the process but do not publish a decision checklist for the Director. What is on the record is the statutory test for referral, which the Commissioner must apply and pass on to the Director, and HDC's own descriptions of the cases it refers. The table separates the factors written into law from the practical considerations that follow from the way the Act and the Tribunals work.
| Factor | Where it comes from | What it means for you |
|---|---|---|
| Seriousness of the breach | HDC describes referral as reserved for "the most severe breaches of the Code" and for a "serious breach" of a person's rights | Referral is rare. In 2024/25, 12 providers were referred out of 145 investigations with a breach finding. |
| Wishes of the complainant and the aggrieved person | Section 44(3)(a); passed to the Director under section 45(3) | The complainant's view matters but is not decisive. The Director's team keeps them informed and may ask them for confirmation or more information. |
| Your comments on the proposed referral | Sections 44(1) and 44(3)(b) | A referral cannot be made until you have had a chance to comment, and the Commissioner must take what you say into account. |
| The public interest | Section 44(3)(c): the need for appropriate proceedings where the public interest requires it, whether for public health or safety or another reason | Public safety and accountability both count. In one published referral the Deputy Commissioner said there was public interest in holding a service to account for its failures. |
| Which Tribunal fits | HDC Act section 49; HPCA Act section 91 | Only registered practitioners can be charged before the HPDT. Organisations and unregistered providers can only face HRRT proceedings. |
| Whether the matter has already been settled | Section 53 | Neither the Director nor the aggrieved person can bring HRRT proceedings about a matter already resolved by agreement under the Act, unless a term of that agreement has not been honoured. |
| ACC cover for the injury | Section 52(2) | If the harm is a personal injury covered by ACC, compensatory damages cannot be sought. Punitive damages for flagrant disregard of rights remain possible. |
Section 44(3) binds the Commissioner when deciding whether to refer. Section 49 gives the Director a broad discretion and lists no factors. Do not assume the Director will re-run the same test, and do not assume a weak spot in the referral decision will stop proceedings once the Director has decided to act.
How often referrals happen
The Director of Proceedings deals with a very small fraction of HDC's work. The figures below come from HDC's last two annual reports.
Health and Disability Commissioner annual report for the year ended 30 June 2025.
Health and Disability Commissioner annual report 2024/25. Bars are to scale; the referral bar is drawn at a minimum visible width.
| Measure | 2023/24 | 2024/25 |
|---|---|---|
| Referrals to the Director | 9 referrals (8 providers, 13 consumers) | 12 providers (15 complaints) |
| Director decisions to act | 10 decisions to take proceedings | 5 decisions to take proceedings and/or pursue a restorative outcome |
| HRRT proceedings concluded | 2, both with a declaration of breach | 7, all with a declaration of breach |
| HPDT prosecutions | 1, professional misconduct found | 2, professional misconduct found in both |
Two points follow. First, a referral is not a prosecution in waiting: the Director can decide not to issue proceedings, and HDC's 2024/25 figures group decisions to take proceedings with decisions to pursue a restorative outcome, a reminder that Tribunal action is not the only result. Second, when the Director does take a case to a Tribunal, it usually succeeds: in 2024/25 every HRRT proceeding the Director concluded ended in a declaration of breach, and both HPDT prosecutions ended in professional misconduct findings. That is a reason to treat the period between referral and decision as the time to act, not to wait.
What happens to you at each step, and what you can do
HDC does not publish timeframes for the Director's review. Its own investigations page says many investigations take two to three years, so by the time a referral is made the events may be several years old. The steps below describe the process from the provider's side.
- The proposed referral
Before referring you, the Commissioner must give you an opportunity to comment on the proposed referral (section 44(1)). Treat this as a formal submission, not a formality. Respond to the reasons given, set out what has changed in your practice since the events, attach evidence, and say plainly whether you accept the breach findings. If your lawyer is not already involved, involve them now.
- The final opinion
HDC's final report states that a referral has been made. Under HDC's naming policy, individual providers should not be named in an HDC opinion if they are being referred to the Director, because HPDT processes may be prejudiced if the provider has already been named. For health practitioners, naming does not occur until any Director, HRRT and HPDT processes, including appeals, are complete.
- The Director's team opens a file
The complainant receives a letter from the Director's team explaining the process. The team has not seen the case before. HDC's published material does not describe a formal stage at which providers make submissions to the Director, so do not assume you will be asked. Your lawyer can contact the team, confirm who holds the file and offer updated information.
- The review
The Director reviews the case and decides whether to issue proceedings. The complainant is kept informed and may be asked for further information or confirmations. Keep practising within any conditions that apply, keep your remediation going, and keep a dated record of it.
- The decision
The Director decides to take no proceedings, to lay an HPDT charge, to bring HRRT proceedings, or both. HDC states that the decision cannot be appealed. If proceedings are issued, the next steps are set by the Tribunal concerned. Under the HPCA Act, the HPDT chair must convene a hearing as soon as reasonably practicable after a charge is laid (section 91(6)).
- Participation
HDC says a provider cannot be compelled to take part in the Director's process, but the matter may still proceed to a hearing without them. You do not have to have a lawyer, but HDC recommends one, and the Director's team cannot give you legal advice.
Responding well once you are referred
There is no form to fill in at this stage, which is why practitioners often get it wrong. The aim is to be accurate, consistent with what you have already told HDC, and visibly committed to safe practice. These are the actions that make a difference.
Get specialist advice first
Contact your indemnity provider, professional association or union as soon as a referral is proposed. Ask for a lawyer with health disciplinary experience. Check what your cover includes before you need it.
Keep your account consistent
The Director works from HDC's file. Anything you now say that contradicts your earlier responses, notes or statements will be noticed. If you need to correct something, say so and explain why.
Separate acceptance from argument
You can accept the facts and the breach while still disputing that your conduct amounts to professional misconduct. That distinction is common in Tribunal decisions and your lawyer will advise on it.
Tell the right people
Check your employment agreement, any authority conditions and your indemnity policy for notification duties. Your responsible authority will usually already have HDC's report under section 45(2)(b).
Avoid
- Contacting the complainant or whānau directly about the referral.
- Altering, adding to or tidying clinical records from the time.
- Posting about the case, or the complainant, on social media.
- Generic remorse statements that could be written about any case.
- Waiting for the Director's decision before starting remediation.
Do
- Respond through your lawyer, in writing, and keep copies.
- Map each breach finding to a specific change you have made.
- Collect dated evidence: certificates, audits, supervision notes.
- Ask referees to address the actual concerns, having read the findings.
- Look after your own health and use your employee assistance or college support.
Remediation evidence that carries weight
What you have already done to fix the problem bears directly on what a Tribunal still needs to order. The Goel decision (HPDT 1518/Med24/617D) is a clear example. A psychiatrist faced a professional misconduct charge brought by the Director over his communications with and about three patients. He admitted negligence and discredit, and the Tribunal censured him, fined him $3,000 and ordered him to pay 40% of costs, but imposed no conditions on his practice because those issues had been addressed through a Medical Council performance assessment and educational programme.
Remediation persuades when it is specific, independent and sustained. Our guides to the Code of Rights from the practitioner's side and health practitioner codes of conduct help you link each finding to the right standard.
- Finding
- Breach of Right 7(1) (informed consent) and Right 4(2) (professional standards) after a sedative was given without the consumer's knowledge.
- Root cause
- Assumed authority to override a refusal; no documentation of the instruction; no escalation to the prescriber or manager.
- Learning
- Targeted education on consent, capacity and medication administration, with a written reflection on each finding, not a general certificate collection.
- Practice change
- Supervised medication rounds for an agreed period; a personal checklist for refusals; escalation to the prescriber every time.
- Independent evidence
- Supervisor reports, a medication record audit and a referee letter from a manager who has read the HDC opinion.
- Sustained
- Linked to the next recertification cycle through a professional development plan goal.
The scenario is illustrative and loosely based on the type of conduct in Director of Proceedings v Slater (HPDT 1426/Nur24/606D), in which a nurse instructed a support worker to give a consumer clonazepam against her wishes and the GP's instructions. The nurse accepted the charge, and the Tribunal censured her, fined her $2,500, ordered costs and required her to disclose the decision to employers for two years.
Insight is the other half. Decision-makers look for evidence that you understand what went wrong, why it mattered to the consumer and their whānau, and why it will not happen again. A response that minimises, blames the system entirely or uses scripted language tends to undo good remediation. Practitioners choose learning that fits their own plan and keep the certificate as evidence; a course is never a substitute for genuine reflection, but it can give that reflection a structure.
HPDT and HRRT compared
The two Tribunals answer different questions, so the Director may choose one, the other or both. Detailed HPDT hearing procedure is beyond this guide; the comparison below covers what a referred provider needs to know.
| Feature | Health Practitioners Disciplinary Tribunal | Human Rights Review Tribunal |
|---|---|---|
| Who can be brought before it | Registered health practitioners under the HPCA Act | Any provider investigated by HDC: registered and unregistered practitioners and organisations such as Health New Zealand or aged care facilities |
| Question it decides | Whether the conduct amounts to professional misconduct warranting a penalty | Whether the provider breached the Code, on the balance of probabilities (s 54) |
| Who brings the case | The Director of Proceedings or a professional conduct committee; complainants cannot | The Director (s 50), or the aggrieved person if not referred or if the Director declines (s 51) |
| Panel | Three members of your profession, one public member and a lawyer chair | Three members: the Chairperson or a Deputy Chairperson plus two panel members; the Chair is a lawyer |
| Possible outcomes | Cancellation or suspension of registration, conditions on practice, censure, fines, and some or all costs | Declaration of breach, orders to stop or not repeat the conduct, damages, orders to redress loss, other relief (s 54) |
| Compensation | Cannot order compensation | Damages for loss, lost benefits, humiliation and injury to feelings, and flagrant disregard of rights (s 57); limited to $350,000 |
| Effect of ACC cover | Not relevant to the charge | No compensatory damages for ACC-covered injury; punitive damages still possible (s 52(2)) |
| Unintentional breach | No equivalent rule; the question is whether the conduct amounts to professional misconduct | Not a defence that the breach was unintentional (s 54(4)) |
HDC tells complainants that compensation from the HRRT is rare, because most referred cases involve injury covered by ACC legislation, which bars compensatory damages claims. That makes the HRRT's main practical outcome a formal, public declaration that the Code was breached, sometimes with orders. Damages under section 57(1)(d) for action in flagrant disregard of the aggrieved person's rights are the exception the ACC bar does not reach.
What recent cases show
HDC publishes case notes on proceedings brought by the Director. Three patterns stand out in the recent ones.
Admissions feature
In Slater (1426/Nur24/606D) the nurse accepted every particular and that her conduct was professional misconduct. In Goel (1518/Med24/617D) the psychiatrist admitted negligence and discredit and accepted misconduct at the hearing.
Penalties are graduated
Both cases ended in censure, a fine of a few thousand dollars and a share of costs, plus a disclosure-to-employers condition in Slater. Neither involved suspension or cancellation.
Consent filings
Recent HRRT cases, including [2025] NZHRRT 15 against Health New Zealand and [2026] NZHRRT 30 against a midwife, were filed by consent with the provider accepting the breach. In the midwife's case the Tribunal declared breaches of Rights 4(1), 4(2) and 6(1).
Name suppression is a separate question in every case. HDC says most cases are heard in public and Tribunals often make interim name suppression orders for the practitioner before a hearing. If a provider applies for permanent suppression, the Director's position on it is considered case by case. In both HPDT cases above, permanent name suppression was declined or not sought, and HPDT decisions are published on the Tribunal's website.
Your authority, your employer and publication
A referral does not freeze the rest of the system. Your responsible authority may have received HDC's report and recommendations under section 45(2)(b), and the Director must notify the Registrar under section 34(2) of the HPCA Act if they believe you may pose a risk of harm to the public by practising below the required standard of competence. That can lead to a competence review, conditions or other action on the competence or health pathways while the Director decides about discipline.
How that works differs by authority. See our guides to the Medical Council complaint process, Nursing Council complaints, Pharmacy Council complaints and Dental Council complaints. If the Director does not lay a charge, conduct concerns can still be considered through your authority's own processes, which our guide to professional conduct committees explains.
The Director's file is built on HDC's investigation, including the independent clinical advice HDC obtained. If you want to understand how that advice was used against your care, our guide to how HDC uses independent clinical advice explains what advisors are asked and how their reports are weighed.
If you are an organisation, not an individual
Organisations cannot be charged before the HPDT, which deals only with registered practitioners, but they can be referred to the Director and taken to the HRRT. HDC's recent HRRT list is dominated by cases against Health New Zealand and its predecessor district health boards, alongside aged care operators and disability services. In [2025] NZHRRT 15, filed by consent, Health New Zealand accepted that it failed to provide services with reasonable care and skill under Right 4(1), after a patient's deterioration was not escalated in line with the hospital's own early warning pathway.
- Identify one senior person to own the response and liaise with legal counsel.
- Show HDC's recommendations as implemented, with dates, audit results and policy versions.
- Separate system failings from individual conduct, and support staff who may face their own processes.
- Prepare for publicity: a Tribunal declaration is a public document.
- Consider whether an apology, a restorative meeting or other redress is appropriate, with legal advice.
Self-check: test your understanding
The Commissioner has told you a referral is proposed. Can you still influence it?
You are a registered practitioner. Can the Director take you to both Tribunals?
The consumer's injury is covered by ACC. Does that rule out any money award at the HRRT?
The Director decides not to bring proceedings. Is the matter over?
Frequently asked questions
Will I be told the Commissioner is considering referring me?
Yes. Section 44(1) of the Health and Disability Commissioner Act 1994 says the Commissioner may not refer a provider to the Director of Proceedings unless the provider has been given an opportunity to comment on the proposed referral. The final HDC report then records whether a referral has been made.
How long does the Director of Proceedings take to decide?
HDC does not publish a timeframe for the Director's decision. Each case depends on its complexity and on whether further information is needed. Ask your lawyer to stay in contact with the Director's team for updates.
Can I keep practising after a referral?
A referral by itself does not restrict your practice. Your responsible authority can impose conditions, order a competence review or take interim action under the HPCA Act if it considers there is a risk, and the Director must notify the Registrar if they believe you may pose a risk of harm to the public by practising below the required standard of competence.
Will my name be published?
HDC's naming policy says individual providers should not be named in an HDC opinion if they are being referred to the Director, and for health practitioners, naming does not occur until any Director, HRRT and HPDT processes, including appeals, are complete. Tribunal hearings are usually public and HPDT decisions are published, but the Tribunals can order name suppression, and often make interim orders for the practitioner before a hearing.
Can the complainant stop or force a prosecution?
Neither. The complainant's wishes are a factor the Commissioner must consider before referring, but the Director decides independently. Complainants cannot bring HPDT charges themselves. If the Director declines HRRT proceedings, the aggrieved person may bring their own claim.
Does my indemnity cover the cost of a Director of Proceedings case?
It depends on your policy. Check the terms as soon as a referral is proposed and notify your indemnity provider, professional association or union promptly, following your policy's notification terms. The HPDT can order you to pay some or all of the investigation and hearing costs if a charge is proved.
Is a referral the same as a professional conduct committee investigation?
No. A professional conduct committee is appointed by your responsible authority under the HPCA Act. The Director of Proceedings is a separate role within HDC under the Health and Disability Commissioner Act. Both can lay a charge before the HPDT, but they reach it by different routes.
Primary sources
14 official documents
- Health and Disability Commissioner Act 1994 (version as at 10 July 2026), New Zealand Legislation
- Health Practitioners Competence Assurance Act 2003 (version as at 6 June 2026), New Zealand Legislation
- Health and Disability Commissioner: Referral to the Director of Proceedings and frequently asked questions
- Health and Disability Commissioner: Referral to the Director of Proceedings leaflet (June 2023)
- Health and Disability Commissioner: Formal investigations
- Health and Disability Commissioner: Annual report for the year ended 30 June 2025
- Health and Disability Commissioner: Annual report for the year ended 30 June 2024
- Health and Disability Commissioner: Policy for naming providers in public HDC reports (June 2023)
- Health and Disability Commissioner: Director of Proceedings v Slater, HPDT 1426/Nur24/606D
- Health and Disability Commissioner: Director of Proceedings v Dr Digvijay Goel, HPDT 1518/Med24/617D
- Health and Disability Commissioner: Human Rights Review Tribunal case notes
- Health and Disability Commissioner: Disability service referred to Director of Proceedings (21HDC00035 media release)
- Ministry of Justice: Human Rights Review Tribunal
- New Zealand Psychologists Board: Health Practitioners Disciplinary Tribunal
