New ZealandHDC complaints · Clinical advice
How HDC Uses Independent Clinical Advice to Assess Your Care
When the Health and Disability Commissioner looks at your care, a clinician from your own field is often asked to review the file. This guide explains who that advisor is, the rules they work to, what "mild, moderate or severe" really signals, how the Commissioner weighs the report, and how to comment on it so your side is properly heard.
Reviewed October 2026 against the Health and Disability Commissioner's Guidelines for Independent Advisors, provider guidance, the Code of Rights and published HDC decisions
Short answer: HDC usually asks a peer of the provider, a clinician in the same field, to advise whether your care was consistent with accepted practice at the time and, if it was not, whether the departure was mild, moderate or severe. The advisor gives an opinion only; the Commissioner (or a Deputy) finds the facts and decides whether the Code of Rights was breached, weighing the advice alongside everything else. In most cases you receive a copy of the advice to comment on before HDC finishes, and a focused, evidence-based comment can change how the advice is used.
Key takeaways
- Clinical advice is often sought at the assessment stage and can be sought again, and added to, during a formal investigation. HDC also has its own in-house clinical advisors in general practice, midwifery, aged care and nursing.
- Advisors must judge your care against the accepted standard when the services were provided, not best practice and not today's standard. The outcome for the patient is not meant to colour that judgement.
- HDC's guidelines tell advisors to grade any departure as mild, moderate or severe, but they do not define the three levels. The guiding question is how most of the advisor's peers would regard that aspect of care.
- Advisors are not allowed to make findings of fact or judge credibility. Where accounts conflict, they should give an opinion on each version. Use that in your comments.
- The Commissioner can accept the advice, go beyond it or depart from it. In a decision published on 19 October 2026, the Commissioner accepted two radiologists' evidence about what the standard was at the time, even though the advisor's view remained unchanged.
- The strongest comments correct facts with records, add the context that was known at the time, cite the guidance then in force, raise genuine systems factors, and accept what was fairly criticised.
Where clinical advice sits in an HDC complaint
Most practitioners first meet HDC's clinical advice when a thick envelope or secure email arrives containing a report written by someone they have never met, about care they may have given years earlier. It helps to know that this report is a routine, built-in step, not a sign that your case has been singled out. Our fitness to practise overview maps the whole system from HDC to the Tribunal; this guide zooms in on the one step that shapes most clinical findings.
HDC's own description is simple. Independent advisors give the Commissioner clinical advice about professional and ethical standards. That advice is weighed with all the other information gathered, and helps HDC decide how to resolve a complaint or, in a formal investigation, whether the Code was breached. It can also shape any recommendations for changes to systems and practice.
Assessment stage: quick, often in-house advice
Every complaint is assessed first. HDC's plain-language guide to its complaint process says that, at this stage, HDC may ask the provider to respond, ask others for information, and ask for advice from someone who works in the same field as the provider complained about. One possible outcome it lists is that an independent advisor tells HDC the care was appropriate, and the complaint goes no further.
HDC's 2023 guidelines say it has in-house clinical advisors in general practice, midwifery, aged care and nursing. So if you work in one of those fields, the advice on your care may come from one of HDC's own clinical advisors rather than an external peer. At the end of assessment, the decision-maker chooses one of six options: refer the complaint back to the provider to resolve, refer it to the Nationwide Health and Disability Advocacy Service, refer it to another body such as a regulatory authority, call a mediation conference, start a formal investigation, or close it with or without an educational comment or recommendations.
Investigation stage: an independent peer report
Formal investigations are the minority of complaints. Once one opens, HDC gathers the facts (your written response is usually required within 15 days) and then, in its own words, "often" requests advice from clinical advisors in the relevant field. That report is the document most practitioners mean when they talk about "HDC expert advice". If the Commissioner then forms a provisional view that the Code was breached, you receive a provisional opinion; how to respond to that document as a whole is covered in our guide to the HDC provisional opinion. If you are still at the first-response stage, start with responding to an HDC complaint.
Who the advisors are
Practitioners often worry that the advisor will be an academic super-specialist or someone with an axe to grind. HDC's selection rules are designed to prevent both.
A peer of the provider
HDC says its usual practice is to seek advice from a peer of the provider involved in the complaint; its complaint guide describes this as someone who works in the same field as you. HDC's guidance for providers adds that advisors are respected professionals who in most cases have been recommended by the relevant professional college.
An acknowledged expert
For more complex investigations, HDC may ask an acknowledged expert in a particular area. Where a case is controversial or involves several services, it may use more than one advisor, so a hospital case can carry separate nursing, medical and specialist reports.
Conflict checks
The test is whether there is any risk, or perceived risk, of unfair bias. Personal or family links, financial interests, employment or governance roles in an involved organisation, and past working relationships must be disclosed. The decision-maker decides whether the advisor can act.
Impartial, not an advocate
Advisors have an overriding duty to assist HDC impartially and must not act for any party. They sign a confidentiality statement to join HDC's register, must never discuss the complaint with any of the parties, and must refer any outside approach to HDC.
Two practical consequences follow. First, if you know of a genuine conflict (the advisor once trained you, works for a competitor practice, or sat on a panel that criticised you), tell HDC promptly and in writing; the guidelines treat a perception of bias as enough. Second, the advisor is usually named. HDC's policy is to name advisors where their advice is relied on, and when an investigation report is published the advisor's name and qualifications are not anonymised and the full advice is usually attached. That openness is also why advisors write carefully: their report may later become the basis of evidence before the Health Practitioners Disciplinary Tribunal or the Human Rights Review Tribunal if the matter goes to the Director of Proceedings.
The questions advisors answer, and the departure scale
HDC sends each advisor a report template containing referral instructions for the case. The questions vary from case to case, but the guidelines make the core task clear: say whether the services were consistent with accepted standards of practice at the time, refer to any written standards or guidelines relied on, and, if the care fell short, quantify the degree to which it departed from accepted practice as mild, moderate or severe.
Advisors are also asked to comment on all aspects of care within their expertise, not only the questions put to them, and to state the limits of their opinion. So expect the report to raise points nobody complained about, including documentation.
| Advisor's finding | What it tells you | What it does not decide | Where to focus your comment |
|---|---|---|---|
| No departure | The advisor considers this aspect consistent with accepted practice. They may still cite the literature to emphasise a point for the complainant. | The Commissioner can still be critical, for example on communication or consent issues that sit outside clinical judgement. | Usually little to add. Confirm any facts the finding relies on. |
| Mild departure | The advisor thinks most peers would see this aspect as falling short of accepted practice, but to a limited degree. | Whether you breached the Code. A mild rating does not cap the outcome, and several mild departures can add up. | Accept it if it is fair, and show what you have changed. Challenge only with specific facts or standards. |
| Moderate departure | The advisor thinks peers would regard the shortfall as clear and more than minor. | The finding of fact underneath it, or whether a breach is yours or the organisation's. | Check the facts and the standard cited, and whether the advisor allowed for what you knew at the time. |
| Severe departure | The advisor thinks peers would regard the care as seriously outside accepted practice. | Referral to the Director of Proceedings or your regulator. Those are separate decisions for the Commissioner. | Get advice before responding. Every factual and standards point matters; so does insight into what went wrong. |
The guidelines suggest advisors ask themselves: "How would most of my peers regard this aspect of management?" and "What information was available at the time of the management event being criticised?" Read every rating in the report through those two questions. If the advisor has not explained why most peers would see it that way, or has judged you on information you did not have, say so.
The rules advisors must follow
The guidelines are not only a style guide. They set limits on what an advisor may say, and those limits are your best tools when you comment.
| Rule in the guidelines | What it means | How to use it |
|---|---|---|
| Standard at the time | Care is assessed against the accepted standard when the services were provided, not the standard at the time of the complaint. | If a guideline changed between your care and the advice, point to the version in force then, with its date. |
| Accepted, not best, practice | It is not appropriate to criticise providers against a best-practice standard. | Flag criticism that describes an ideal ("I would have…") rather than what most peers would do. |
| Action, not outcome | Advisors look at the action, not the outcome, and must guard against hindsight bias. | Show what the clinical picture looked like at the time, before the outcome was known. |
| Local guidance first | Use local guidelines that were current at the time of the events. Only if there are none, consider international guidance, journal articles (preferably meta-analyses or literature reviews) or robust sources such as bpacnz. | Check every source the advisor relies on: is it local, was it current, does it apply to your setting? |
| No findings of fact | Finding facts is for the decision-maker. Advisors may point out contradictory or possibly mistaken facts. | If the advisor has adopted one version of a disputed event as fact, ask HDC to note that this is outside the advisor's role. |
| Every version addressed | Where accounts conflict, the advisor should give an opinion on each alternative version without judging anyone's credibility. | Check that your version has been assessed. If it has not, ask for the advisor to comment on it. |
| Plain, neutral language | No vague language, no legal terms such as "negligent", no personal comments, no view on whether the Code was breached, and technical terms explained in plain English. | Language that strays into legal conclusions or personal criticism can be politely identified. |
| Full referencing | Standards are cited with full titles and dates, and web sources with access dates. Incomplete material can be noted. | If a key document (a rota, a protocol, a later note) was not in the bundle, supply it. |
How the Commissioner weighs the advice
The single most important point in this article is this: the advisor does not decide your case. HDC's guidelines say plainly that advisors are not required to decide whether the Code was breached and that it is not their role to make findings of fact; both belong to the decision-maker, who is the Commissioner or a Deputy Commissioner acting under delegation. HDC describes the Commissioner's role as being "like a judge", running an independent and fair investigation, and forming an opinion on all of the evidence gathered.
In published decisions, you can see three different ways the advice is used:
- Accepted. The decision quotes the advice and adopts it ("I accept this advice"). This is common where the facts are clear and the advisor's reasoning is well referenced.
- Gone beyond. The Commissioner identifies an issue the advisor did not stress, often a systems issue, a medicines safety point or a communication failure, and comments on it.
- Departed from. The Commissioner prefers other evidence, such as the providers' own credible evidence of what the standard was at the time, and declines to criticise where the advisor did.
Behind all three sits clause 3 of the Code of Rights. A provider is not in breach if it took reasonable actions in the circumstances to give effect to the rights, and "the circumstances" means all the relevant circumstances, including the consumer's clinical circumstances and the provider's resource constraints. The onus is on the provider to prove it took reasonable actions. The advisor speaks to the clinical standard; the Commissioner applies clause 3 to the whole picture, which is why context you supply can matter even where the clinical rating stands. Our guide to the Code of Rights for practitioners explains each right and the reasonable-actions defence in more depth.
Advisors may be asked to look at facility systems and policies and compare them with published standards. When the problem is really a rota gap, a broken referral pathway or a missing protocol, the Commissioner can find the organisation in breach, or make adverse comment about it, rather than (or as well as) the individual. If systems shaped your care, the advice stage is the time to say so, with evidence.
Two published decisions, read through the advice
HDC's published investigation reports usually append the advisor's report, so you can see exactly how advice and provider comments travel into the final opinion. The two decisions below are useful because they show the advice being followed closely in one case and departed from in another.
- The care
- A GP's care, over several years, of a woman with complex physical and mental health needs who died of decompensated heart failure. Issues included heart failure management, weight and nutrition, mental health, a consultation the day before her death, and record-keeping.
- The advice
- An external, vocationally registered GP advised. She described omissions in heart failure care as a significant departure and, in a revised report written after reviewing the GP's response and other parties' material, rated record-keeping as a moderate to severe departure. One aspect of the mental health documentation she called a mild departure.
- The response
- The GP commented at length, explaining the patient's context and his reasons. He accepted the documentation criticism and apologised for its deficiencies.
- How it was weighed
- The Deputy Commissioner accepted the advice on heart failure care, placed significant weight on the contemporaneous clinical documentation, and did not accept parts of the GP's reasoning that the record did not support. On mental health, despite the mild rating on documentation, she was critical that specialist input had not been sought, and she raised a separate medicines concern of her own.
- Outcome
- Breach of Right 4(1) and Right 4(2) by the GP. No breach by the medical centre. Recommendations included peer discussion, a records audit and record-keeping education.
- Lesson
- Explanations need to be anchored in the record. A rating label does not cap the outcome, and the Commissioner may raise issues the advisor did not.
- The care
- A delayed breast cancer diagnosis after a 2017 breast ultrasound and 2018 ultrasound and mammogram reported by the same radiologist; the 2018 imaging was second read by another radiologist, and the screening service and Health New Zealand were also part of the investigation.
- The advice
- An independent breast radiologist performed blind readings. She rated the 2017 care a moderate departure and the 2018 reporting a severe departure, and considered that the palpable lump called for biopsy.
- The response
- The radiologist accepted that his 2017 wording on follow-up could have been stronger, but disputed that biopsy was the standard at the time. A second reader explained how the double-read system actually worked. The advisor wrote that her opinion "remains unchanged", while agreeing that the 2018 mammogram, read in isolation without prior imaging, would have been read as normal, and that the ultrasound had not been double read.
- How it was weighed
- The Commissioner accepted the evidence of the reporting radiologist and the second reader that biopsy of fibroadenomas was not the standard at the time, so she was not critical that biopsy was not recommended. She agreed with the advisor that the follow-up wording should have been stronger, found the 2018 imaging had been misread as benign, and was critical of the failure to check for prior imaging. She also made adverse comment about BreastScreen and Health New Zealand, covering systems issues such as referral pathways and access to prior imaging.
- Outcome
- Breach of Right 4(1) by the radiologist; no breach by the second reader. Recommendations included an apology and an audit of recent reports, plus system recommendations to Health New Zealand.
- Lesson
- Specific, credible evidence about what the standard was at the time can lead the Commissioner away from the advisor's view on a point, even when the advisor does not move. It does not erase the points that were fairly made.
How to read an advisor's report
The first read is emotional; that is normal. Put the report away for a day, then read it again with a pen and a copy of your records. This six-step method keeps the second read objective.
- Check the summary of events
Advisors write a chronological summary. Mark every date, time, dose, result and quote against your notes. Small errors (a wrong time on an observation, a result attributed to the wrong day) can change how a decision looks.
- List the documents reviewed
Advisors should list what they were given and note anything incomplete. Was your full response included? Your colleagues' statements? The protocol, the rota, the later notes or the discharge summary? If something that matters was not in the bundle, that is your first point.
- Map each question to its answer and rating
Make a simple table: question, advisor's view, rating (none, mild, moderate, severe), your position (agree, agree with context, disagree). It tells you at a glance where to spend your words.
- Test the standard cited
For each criticism, find the guideline or source relied on. Check its title, version and date against the date of your care. Ask whether it is a New Zealand document, whether it applied to your setting (a rural clinic is not a tertiary unit), and whether it states a minimum or an ideal.
- Look for disputed facts
Where you and the complainant remember things differently, check that the advisor has given an opinion on both versions. If the advisor has quietly treated the complainant's account as fact, or yours, note it.
- Read the limitations and the extras
Advisors must state the limits of their opinion and may comment beyond the questions asked. Comments outside the advisor's own field, or criticism of matters nobody raised, deserve a careful, specific reply.
The advisor says a sepsis screening tool "should have been used". It was introduced at your hospital eight months after your shift. Is that a fair point to raise?
The advisor writes that "I would have ordered a CT on the first visit." Is that, on its own, a departure?
The complainant says you never explained the risks; your note records a discussion. The advisor rates a moderate departure on consent. What do you check first?
How to comment effectively on expert advice
HDC says that, in most cases, the provider receives a copy of the advisor's report for comment before HDC completes its assessment or investigation, and that the advisor may then be asked to comment further on your response. The complainant also receives a copy. Your comment is therefore read twice: by the advisor, who may revise or stand by their view, and by the decision-maker. Write for both.
Good comments are short where you agree and specific where you do not. These are the six kinds of point that carry weight.
Factual corrections, with proof
Quote the line in the report, say what is wrong, and attach the record that shows it: the timed observation chart, the audit trail, the letter. One corrected fact with a document beats three paragraphs of explanation.
Context known at the time
Describe what the clinical picture looked like then: the observations, the history given, the competing priorities, the patient's wishes. This answers the "what information was available at the time" question advisors are told to ask.
Guidance in force at the time
If the advisor cites a guideline, check its date. Supply the version that applied on the day, or the local protocol you were working under, and explain how your care fitted it.
Systems and resources
Under clause 3 of the Code, the circumstances include resource constraints. Staffing on the shift, the referral pathway, IT limits or missing equipment are relevant if they genuinely shaped your care. Give evidence, not complaints about your employer.
Your own peer evidence
If the dispute is about what accepted practice was, a short, independent statement from a respected peer in your field, or published local practice, can help. Make it about the standard, not about your character, and disclose any relationship.
Acceptance and change
Where a criticism is fair, say so plainly and describe what you have changed: the audit, the template, the learning. That is not a weakness; it is the insight regulators look for later.
There is a seventh, procedural point. If you think a question was never put to the advisor, or that a subspecialty view is needed (a rural GP judged by an urban GP, a midwife's decision at a home birth judged against hospital practice), you can ask HDC to put specific additional questions to the advisor or to seek advice from another advisor. HDC decides, but a precise, reasoned request is easier to say yes to.
Worked mini-examples
The following are illustrative examples written for this guide, not real cases. They show the same point made weakly and then well.
Weak: arguing with the conclusion
"I strongly disagree with the advisor, who clearly has no idea what a busy after-hours clinic is like. The patient looked fine and I followed normal practice. The criticism is unfair."
Strong: correcting the basis
"At paragraph 14 the advisor states the patient's heart rate was 118. The observation chart (attached, page 3) records 98 at 21:40 and 104 at 22:10. With those values the patient did not meet the escalation threshold in the clinic's early warning protocol in force in March 2023 (attached). I ask that the advisor be invited to reconsider paragraph 14 on the corrected figures."
Weak: blaming the system vaguely
"We were short-staffed as usual and management never listens. That is the real problem here."
Strong: evidenced systems context
"On the night shift of 4 June the ward had one registered nurse for 14 patients against a planned two (roster attached). I had escalated the gap to the duty manager at 19:20 (email attached). I accept that the 02:00 observations were late. I ask that the staffing position be considered as part of the circumstances, and I have since completed a delegation and prioritisation module (certificate attached)."
- Opening
- Thank HDC for the opportunity, confirm you have read the advice, and acknowledge the patient's or whānau experience in one or two sincere sentences.
- Agreed points
- List the criticisms you accept, briefly, with what you have changed since.
- Factual corrections
- Numbered, each quoting the report's paragraph, the correct fact and the attached record.
- Standards points
- For each disputed rating: the standard in force at the time, why your care met it or why the departure was lesser, and any peer evidence.
- Context and systems
- Only what genuinely shaped the care, with evidence.
- Requests
- Specific: "please ask the advisor to comment on my version of the 10 May conversation", "please provide the advisor with the attached protocol".
- Attachments
- Indexed and page-numbered, so the advisor and the investigator can find each one.
What not to do
Most comments that backfire do so for the same few reasons. Avoid these:
- Attacking the advisor. Questioning their competence or motives rarely helps and may read as a lack of insight. Raise a genuine conflict of interest, factually, through HDC; otherwise engage with the reasoning.
- Contacting the advisor. Advisors must not discuss the case with the parties. Everything goes through HDC.
- Rewriting the record. Never add to or alter clinical notes after the event. If you need to add context, put it in your comment and label it as your recollection now.
- Relying on the outcome. "The patient recovered" does not show the care was right, just as a bad outcome does not show it was wrong. The test is the action at the time.
- Re-litigating everything. Disputing every line, including fair points, buries your strong arguments and suggests you have not reflected.
- Missing the deadline in silence. If you need more time to get records or advice, ask HDC for an extension before the due date.
- Sending it unreviewed. Have your indemnity provider, union or lawyer read it before it goes. A colleague who knows nothing about the case can check tone.
Making the standards point well for your profession
Many disputes about advice turn on what your profession's standards actually required. Know your own regulator's code before you argue about accepted practice: our comparison of health practitioner codes of conduct sets the nursing, medical, pharmacy, dental and midwifery documents side by side. Nurses and midwives may find Professional Standards for Nurses and Midwives useful, dental practitioners Professional Standards for Dental Professionals, and pharmacists Professional Standards for Pharmacists.
After you comment: what happens next
HDC may send your comments to the advisor. In 20HDC00289 the advisor reviewed the GP's response and other material and issued a revised report; in CAS-14382-G8M0D0 the advisor stood by her opinion but conceded a specific point.
If the Commissioner forms a provisional opinion that the Code was breached, you receive a provisional opinion and a reasonable opportunity to respond, normally within 15 working days. Comments on any proposed naming are also made at this stage.
The Commissioner reviews the responses and finalises the report. HDC states that the opinion is final and cannot be appealed, although the Ombudsman or the High Court can review how an investigation was conducted.
The final report goes to you, the complainant and any other relevant people or bodies; in both decisions above, that included the Medical Council. Where a breach is found, an anonymised report is usually published, with the advice attached and the advisor named.
Your regulator may consider the report (see the Medical Council and Nursing Council processes), and the most serious cases may be referred to the Director of Proceedings.
Whatever the outcome, the advisor's report is unusually useful feedback: a named peer's structured view of your practice. Practitioners who turn it into a written reflection and a short remediation plan are better placed if a regulator asks what they have learned. Our remediation course finder groups options by profession, and Clinical Documentation and Record Keeping is worth considering if, as so often, documentation featured in the advice.
Frequently asked questions
Will I always see the advisor's report before HDC decides?
Not always, but usually. HDC says that in most cases the provider receives a copy of the advisor's report for comment before HDC completes its assessment or investigation. If a provisional opinion arrives that relies on advice you have not seen, ask HDC for a copy.
Can I choose or veto the advisor?
No. HDC selects advisors, usually a peer of the provider, and the decision-maker decides whether a disclosed conflict rules someone out. You can tell HDC about a genuine conflict of interest or ask for advice from someone with the right subspecialty experience, giving reasons.
Is "HDC expert advice" the same as an expert witness report in court?
It is similar in spirit. HDC's guidelines draw on the rules that apply to expert witnesses and give advisors an overriding duty to assist HDC impartially. If the matter later goes to the Health Practitioners Disciplinary Tribunal or the Human Rights Review Tribunal, the advisor may give evidence and the report may form the basis of their brief.
Does a "severe departure" mean I will be referred to the Director of Proceedings?
Not automatically. The advisor's rating is one input. Whether a breach is found, and whether a case is referred to the Director of Proceedings or your regulator, are separate decisions for the Commissioner, taking into account all the evidence and the circumstances.
How long does an advisor take to write the report?
HDC's guidelines say the usual timeframe for advisors is within a month, with extensions possible. Overall investigation times are much longer; HDC's own pages give estimates ranging from around 12 months to two to three years, depending on complexity.
Can I submit a report from my own expert?
You can send HDC any evidence you think is relevant, including a statement from an independent peer about what accepted practice was at the time. Keep it focused on the standard, disclose any relationship, and remember HDC still decides how much weight it carries.
Will the published decision name me or the advisor?
Published investigation reports are anonymised for the parties, under HDC's naming policy, and you can comment on any proposal to name you at the provisional stage. Advisors are treated differently: where their advice is relied on, their name and qualifications are published and the full advice is usually attached.
Primary sources
9 official documents
- Health and Disability Commissioner: The role of independent expert advisors
- Health and Disability Commissioner: Guidelines for Independent Advisors (web page)
- Health and Disability Commissioner: Guidelines for Independent Advisors, November 2023 (PDF)
- Health and Disability Commissioner: HDC's investigation process, guide for providers
- Health and Disability Commissioner: Formal investigations
- Health and Disability Commissioner: About the complaint process (PDF)
- Health and Disability Commissioner: Code of Health and Disability Services Consumers' Rights
- Health and Disability Commissioner: Decision 20HDC00289 (9 September 2024)
- Health and Disability Commissioner: Decision CAS-14382-G8M0D0, delayed diagnosis of breast cancer (19 October 2026)
