New ZealandHDC investigations · All professions
HDC Provisional Opinions: How to Read and Respond to One
The provisional opinion is the last point at which you can change what the Health and Disability Commissioner says about your care. This guide takes it apart section by section, shows you which parts are still open to influence, and sets out what a strong, well-judged response contains.
Reviewed October 2026 against the Health and Disability Commissioner Act 1994, HDC's investigation process guidance, naming policy, guidelines for independent advisors, 2024/25 annual report and HDC decisions published in 2026
Short answer: An HDC provisional opinion is the Commissioner's draft finding on whether you breached the Code of Rights, sent to you before anything is final. HDC normally asks for your comments within 15 working days. Use them to correct factual errors, add missing context or new evidence, respond to the clinical advice, show what you have already changed, and comment on the proposed recommendations and any proposed naming. HDC considers every response, and the final report includes a fair and accurate summary of yours.
Key takeaways
- A provisional opinion is a draft, not a decision. Findings of fact, the breach analysis and the recommendations can all still move, in either direction.
- You receive one because section 67 of the HDC Act bars the Commissioner from publishing comment adverse to you unless you have had a reasonable opportunity to be heard and to answer in writing.
- The complainant is also given an opportunity to review the provisional opinion, so your account and theirs meet again at this stage.
- The most persuasive responses are specific: they cite the record, separate fact from opinion, engage with the clinical advice on its own terms and show completed remediation with evidence.
- Published reports usually anonymise individual practitioners. HDC's naming policy reserves naming for wilful disregard, serious risk, repeated breaches, refusal to comply or a clear public interest.
- There is no appeal from the final opinion, so the provisional stage is your main opportunity to influence the result. The Ombudsman and the High Court can review only how the investigation was handled.
Where the provisional opinion sits in an HDC investigation
Most complaints to the Health and Disability Commissioner (HDC) never reach this stage. They are closed, referred to the Advocacy Service or another agency, or resolved with recommendations after an assessment. HDC's 2024/25 annual report says formal investigations make up only around 7 to 8% of complaints. Our fitness to practise overview maps the whole pathway from complaint to the Disciplinary Tribunal. This guide zooms in on one document inside that pathway.
If you are reading this, you are probably already some way into a formal investigation. You will have received notice of the investigation and a copy of the complaint, and you will have sent your first written response, which HDC usually asks for within 15 days. (Our guide to responding to an HDC complaint covers that first letter.) HDC will then have gathered records, statements and policies, and in most clinical cases obtained advice from an independent peer. Only when that work is complete does the Commissioner or a Deputy Commissioner draft a provisional opinion.
Health and Disability Commissioner annual report 2024/25 (year to 30 June 2025). HDC also opened 160 new investigations, and 177 closed investigations resulted in recommendations.
Those figures explain why the provisional stage matters. Once a matter is formally investigated, a breach finding against someone is the usual outcome: about three in every four closed investigations in 2024/25. But "someone" is often an organisation rather than an individual. Several recent HDC decisions find a district of Health New Zealand or a care provider in breach for system failures, while individual clinicians receive no finding or only adverse comment. Your response can affect which side of that line you land on.
How long it all takes varies. HDC's own publications give different estimates: its guide for providers says many investigations take around 12 months, while its formal investigations page and leaflet say many take two to three years, and both note that complex, multi-provider cases take longer. The initial assessment before a formal investigation is on top of that. Expect the provisional opinion to arrive well after the events, which is one reason your response needs to work from the record rather than memory.
Why HDC must show you the draft: section 67
The provisional opinion is not a courtesy. Section 67 of the Health and Disability Commissioner Act 1994 says the Commissioner must not, in a report or recommendation made under the Act, make any comment that is adverse to a person unless that person has been given a reasonable opportunity to be heard and to make a written statement in answer. If you ask, your statement or a fair and accurate summary of it must be included in or appended to the report.
Section 59 adds that the Commissioner does not have to hold a hearing and that, subject to section 67 and one other provision, no one is entitled to be heard as of right. In practice, the written provisional opinion process is the main form your "hearing" takes.
HDC's guide for providers puts it plainly: if the Commissioner forms a provisional opinion that the Code was breached, you are entitled to a reasonable opportunity to respond before the opinion is finalised. Because section 67 covers any adverse comment, you can also receive provisional findings where you are not found in breach but are criticised. The breast cancer decision HDC published in October 2026, for example, found one radiologist in breach, a second radiologist not in breach, and made adverse comment about a screening service and Health NZ.
| Provisional finding | What it means | What your response should focus on |
|---|---|---|
| Breach of a named right | The Commissioner's draft view is that you did not meet a duty under the Code, for example Right 4(1), reasonable care and skill | Facts and context the finding relies on, the clinical advice, whether the reasonable actions defence applies, and the recommendations |
| Adverse comment, no breach | Criticism of an aspect of your care or a system, without a formal breach finding | Accuracy and fairness of the wording; any learning you have already acted on |
| No breach | You are not found to have breached the Code, though others may be | Factual accuracy about you, and any recommendations still directed at you |
Anatomy of a provisional opinion
Provisional opinions follow the shape of HDC's published reports, because they are the same document in draft. Two things are worth knowing before you open one.
First, the terminology has shifted. HDC's guidance still says "provisional opinion", but some reports published in 2026 refer to a "provisional decision" instead, sometimes alongside "provisional opinion", and newer case numbers use a CAS- format. It is the same stage. Second, the layout has changed. Older opinions ran from the facts to the analysis and ended with recommendations. Several 2026 reports open with an executive summary and put the recommendations near the front, before the background. Read the whole document whichever format you receive.
| Part | What it contains | How open it is to your response |
|---|---|---|
| Cover letter | Invitation to comment on the findings and recommendations, the deadline, and any proposal to name | Sets the rules; note the date and anything specifically asked of you |
| Introduction or executive summary | Who complained, about whom, the issue being determined and the headline findings | Changes if the findings change; check the framing of the issue is accurate |
| Information gathered (facts) | The chronology built from records, statements and your earlier response; sometimes findings on disputed facts | Highly open. Factual errors and missing context here carry through to every conclusion |
| Clinical advice | The independent advisor's view on whether care met accepted standards, often quoted in the opinion and attached in full as an appendix | Open, if you engage on clinical grounds. HDC may ask the advisor to comment on your response |
| Opinion or analysis | The Commissioner's reasoning, right by right and provider by provider: breach, no breach or adverse comment | Open, mainly through the facts and advice it rests on |
| Changes made since the events | What you and other providers have done in response, as reported to HDC | Very open. Update it with anything completed since your first response |
| Recommendations | Proposed actions with deadlines: apology, audit, training, policy review, reporting back to HDC | Open on detail, proportionality and timing; less so on the principle |
| Follow-up actions | Who receives the final report: your responsible authority, your college, other agencies, and publication on HDC's website | Open on naming and identifying details; standard distribution rarely changes |
Published reports include a section headed "Responses to provisional opinion" or "Responses to provisional decision". It summarises what each party said, for example that a complainant agreed with the findings or that a provider disputed part of the clinical advice, and notes that comments were incorporated where relevant. Write your response knowing that a summary of it will sit in the final report.
How to read it before you write anything
A provisional opinion lands with weight. It is long, it describes your care in the third person, and if it finds a breach it may feel like a verdict on your whole career. Read it at least twice before drafting a word: once to absorb it, once to work it.
- Read it once, start to finish, and then stop
Let the first reaction pass. A draft breach finding is distressing to read, and a response written in the first hours rarely reads well later. Talk to someone you trust before you start drafting.
- Note the deadline and what you are asked to do
The cover letter usually invites comment within 15 working days of receipt. Count working days, not calendar days, and diary a date for your own draft at least five working days earlier.
- Mark up the facts against the record
Go through the information gathered section line by line with the clinical notes beside you. Tag each discrepancy as an error, an omission or a disputed interpretation.
- Separate the three layers of the opinion
Distinguish what HDC says happened, what it concludes about the standard of your care, and what it proposes you do next. Each layer needs a different kind of response.
- Trace every adverse finding to its foundation
For each criticism, ask which facts and which part of the clinical advice it depends on. If a foundation is wrong, the finding may fall with it.
- Decide what you accept
Some findings will be fair. Identify them early. A response that accepts what is right is more credible when it contests what is wrong.
Findings of fact
What happened, when and who did what. This is where errors are most common and easiest to correct with documents.
Findings on the standard
Whether your care met accepted practice and the Code. Shaped by the clinical advice and by context such as workload, systems and the information you had at the time.
Proposed recommendations
Apology, audit, training, reporting back. You can comment on scope and timing, and show which items you have already completed.
Keep the right being applied in view. If the finding is under Right 4(1), the question is reasonable care and skill. Under Right 4(2), it is compliance with legal, professional, ethical and other relevant standards. Under Rights 5, 6 or 7, it is about communication, information and consent. Our practitioner's guide to the Code of Rights explains each right and the clause 3 reasonable actions defence, where the onus is on you to show you took reasonable actions in the circumstances.
Responding to a provisional opinion: what to address
HDC describes the provisional stage as your opportunity to correct factual errors and to respond to the Commissioner's provisional view. Those two things, plus comments on the recommendations and any naming proposal, are the whole of your task. Everything in your response should serve one of them.
1. Factual errors
Point out each error precisely: the paragraph number, what the draft says, what the record shows, and where to find it. Attach the page of the notes, the log entry or the rota rather than describing it. Small errors matter when a finding depends on them, for example a time that makes a delay look longer, or an entry attributed to you that someone else made.
2. Missing context
Context is not excuse. It is information the Commissioner needs to judge reasonableness: staffing on the shift, the information available to you at the time, a system that routed results elsewhere, a patient's expressed wishes, or a protocol that did not match practice. HDC advisors are told to judge care against the standard at the time, without hindsight, and the clause 3 defence turns on the circumstances. Give context that is specific and documented, and explain why it matters to the particular finding.
3. New evidence
If you have relevant material HDC has not seen, such as a statement from a colleague, a policy in force at the time, or audit data, provide it now with a short explanation of why it is relevant. Do not hold evidence back for later. There is no appeal stage at which to produce it.
4. The clinical advice
The independent advisor is usually a peer in your field; for more complex matters HDC may ask an acknowledged expert. HDC's guidelines ask advisors whether care was consistent with accepted standards of practice and, where it was not, to grade the departure as mild, moderate or severe. Advisors are not asked to decide whether the Code was breached; that is the Commissioner's call. HDC's guidelines also say advisors may be asked for further comment on responses obtained, so your comments on the clinical advice may go back to the advisor.
That makes tone and substance important. Engage on clinical grounds: the guideline or evidence base in force at the time, a factual premise the advisor got wrong, or a body of practice the advisor has not considered. In the October 2026 breast imaging decision, the radiologist accepted that he could have worded a recommendation more strongly, while disputing on clinical grounds that biopsy was the required standard. That pattern, conceding what is fair and contesting what is not, is the one to follow. Our guide to how HDC uses independent clinical advice covers advisor selection, grading and how to answer advice in depth.
5. The recommendations
Proposed recommendations commonly include a written apology forwarded through HDC (often within three weeks of the final report), an audit of your own records, training, a review of policies, and a report back to HDC within a set period such as six or twelve months. You can comment on whether a recommendation is proportionate, workable and correctly directed. For example, a recommendation aimed at you may belong with your employer, or an audit size may be impractical in your setting. Suggest a realistic alternative rather than simply objecting.
6. Remediation you have already done
Reports have a section for changes made since the events. Update HDC on everything completed since your first response, with evidence: certificates, a reflective statement, audit results, a changed protocol, supervision arrangements. Telling HDC what is already done lets it reflect that in the report and in any recommendations. Learning that is specific to the issues found is worth far more than a list of unrelated courses.
7. Naming, identifying details and distribution
HDC's guide says all parties can comment on any proposed naming at the provisional stage. If the cover letter proposes to name you, address the naming policy criteria directly (see the naming section below). Even where no naming is proposed, check the draft for details that could identify you or the consumer once published, such as an unusual role, a small town or a distinctive event, and ask for them to be generalised.
8. Acceptance, apology and reflection
Where findings are fair, say so plainly. Acknowledging the impact on the consumer and whānau, and showing what you have learned, makes the rest of your response more credible, including the parts you contest. If an apology is likely to be recommended, think about whether to offer one now through HDC. Keep it personal, specific and free of qualification; our open disclosure course covers how to apologise well after harm.
Putting the response together
There is no prescribed form. A letter addressed to the investigator, with numbered paragraphs that refer back to the paragraph numbers of the draft, is easiest for HDC to work with. The worked outline below suits most individual practitioners.
- Opening
- Thank HDC for the opportunity to comment, confirm you have read the provisional opinion and clinical advice, and state the deadline you are meeting.
- Acknowledgement
- Acknowledge the consumer's experience and the impact on their whānau in your own words, without qualification.
- Factual corrections
- A numbered table: paragraph, what the draft says, what the record shows, attachment reference. For example, the observation chart shows the early warning score was recorded at 0410, not 0510.
- Context
- Documented circumstances relevant to the finding: one registered nurse to eight patients that night, the escalation policy in force at the time, and the doctor being called to another ward.
- Clinical advice
- Agree that a second escalation call should have been made within 30 minutes. Respectfully note that the advisor's premise of hourly observations does not match the prescribed frequency in the chart.
- Findings
- State which findings you accept and which you ask the Commissioner to reconsider, and why, in two or three sentences each.
- Changes made
- Completed sepsis and deteriorating patient training, a reflective statement discussed with your nurse educator, and the ward's new escalation prompt, with evidence attached.
- Recommendations
- Agree to provide an apology; note that the proposed training is already complete; suggest the escalation audit is directed to the ward rather than to you as an individual.
- Close
- Confirm your contact details and that you are willing to provide anything further.
Illustrative example only, not drawn from an HDC case.
Weak
"The advisor clearly has no understanding of how a busy ward actually works. I followed policy and I reject this finding entirely."
Strong
"At paragraph 34 the advice assumes hourly observations were prescribed. The chart (attachment 3) shows four-hourly observations were ordered at 2200. I accept that a repeat call to the registrar was warranted by 0440 and I did not make one. I ask the Commissioner to consider the prescribed frequency when assessing the earlier period."
What not to do
- Miss the deadline or assume an extension. If you need more time, ask the investigator in writing as early as possible, explaining why.
- Re-send your first response. HDC already has it. Respond to the draft in front of you.
- Attack the complainant, the advisor or HDC. Personal criticism undermines credibility and may be summarised in the final report.
- Argue every point equally. Contesting fair findings dilutes your strongest points.
- Introduce material about other patients or colleagues that is not relevant to the findings, or share another person's health information without need.
- Contact the complainant about the provisional opinion. Any apology or communication is usually best routed through HDC while the investigation is open.
- Change or add to clinical records. Explain any gap in a separate, dated statement instead.
- List generic CPD unconnected to the issues. Show learning that addresses what went wrong.
- Draft it alone if you are distressed. Get support before you write, not after you have sent it.
Timing, extensions and who to involve
HDC's guide says comments are normally to be provided within 15 working days of receipt. That is about three calendar weeks, and it includes the time you need to retrieve records and take advice. Start on the day it arrives.
If the timeframe is not achievable, for example because records are held by a former employer, you need advice, or you are unwell or on leave, contact the investigator promptly and ask in writing for a specific extension with reasons. Do not let the date pass. If HDC has no response, the Commissioner can finalise the opinion without your view, and your side will be missing from the report.
Your indemnity provider, union or professional body
Many offer advice or representation for HDC matters. HDC suggests your professional body may be able to put you in touch with someone who has been through the process.
A lawyer
HDC says whether to use a lawyer is your decision; some health professionals do and many do not. Consider one where a serious finding, naming or a Director of Proceedings referral is possible.
Your employer
Where findings involve systems, staffing or policies, your employer may hold the evidence you need, and may be responding to its own provisional findings.
A trusted senior colleague or supervisor
Useful for a clinical sense-check and for honest feedback on tone. HDC's guidance encourages providers to seek collegial support during an investigation.
A provisional opinion is a draft that may change. Share it only with people advising or supporting you, store it securely, and do not discuss it publicly or on social media. Remember that it contains the consumer's health information.
Response checklist
- Deadline diarised in working days, with your own draft date at least five working days earlier.
- Indemnity provider, union, professional body or lawyer contacted, and their deadline for seeing a draft agreed.
- Clinical records, rosters, policies and correspondence for the period retrieved.
- Every factual error listed by paragraph, with the record reference attached.
- Context limited to what is relevant to each finding, and documented.
- Clinical advice answered on clinical grounds, citing guidance in force at the time.
- Findings you accept stated plainly; findings you contest explained briefly.
- Acknowledgement of the consumer and whānau, in your own words.
- Changes made since the events listed with evidence such as certificates, audits and reflections.
- Each proposed recommendation addressed: agree, already done, or a proportionate alternative.
- Naming proposal, if any, answered against the policy criteria; identifying details flagged.
- Tone checked by someone you trust, and the response read aloud once.
- Sent before the deadline, with proof of sending kept.
After you reply: the final opinion and what follows
The Commissioner considers all responses, including the complainant's, before finalising the report. Your response may lead to changed facts, a softened or withdrawn finding, or amended recommendations. It can also leave the findings unchanged. The final report states whether the Code was breached and why, and includes a fair and accurate summary of your response.
| Outcome | What happens | What it means for you |
|---|---|---|
| Recommendations | HDC follows them up. Under section 46 it can ask what steps you will take and, if adequate action is not taken, must tell the complainant and may report to the Minister | Keep evidence of each action and send it on time. HDC reports 91% of recommendations reviewed in 2024/25 were complied with |
| Copy to your responsible authority | The final report, or the sections about you, is usually sent to your registration body, such as the Medical Council or Nursing Council | Your authority decides separately whether to act. HDC may recommend it consider a competence review |
| Publication | Where a breach is found, an anonymised report is usually published on HDC's website for education and sent to colleges and agencies | Individual practitioners are identified by letter; the independent advisor, Health NZ and group providers found in breach are usually named |
| Director of Proceedings | For the most serious breaches, the Commissioner may refer you to the Director, who decides independently whether to bring proceedings | Rare. The final report will say if a referral has been made |
What your responsible authority does next depends on your profession. Our guides to the Medical Council complaint process and the Nursing Council complaint process explain how authorities triage matters, and our Professional Conduct Committee guide covers the conduct pathway. If your final report records a referral, our guide to HDC Director of Proceedings referral explains what follows.
There is no appeal against the Commissioner's opinion. HDC can review its own actions and decisions, and the Ombudsman and the High Court can review whether a complaint was investigated fairly. Neither route re-decides the clinical merits, which is why the provisional stage is where your substantive arguments belong.
Publication and naming explained
Many practitioners worry most about being named. HDC's published naming policy (dated June 2023, the version on HDC's website in October 2026) sets out the rules. They distinguish clearly between organisations and individuals.
Health NZ, districts and public hospitals
Named in most situations. If naming the district or hospital is not in the public interest, only Health NZ is named.
Group providers
Care homes, private hospitals, medical centres, pharmacies and similar are named where their systems are found in breach, subject to public interest and privacy. They are not usually named in no-breach opinions.
Individual practitioners
Named only in specific circumstances, listed below. Otherwise you are identified by a letter, such as "Dr A" or "RN B".
Independent advisors
HDC's guidelines for advisors say advisors are named where their advice is relied on, and a full copy of the advice is usually attached and published.
Under the policy, the Commissioner may name an individual found in breach where:
- the conduct shows a wilful disregard for the consumer's rights;
- the conduct is a serious departure from an acceptable standard, so that the provider poses a risk to the public;
- the provider refuses to comply with HDC's recommendations (only once no legal challenge is under way);
- there have been breach findings for three separate episodes of care within five years; or
- in other circumstances, the public interest clearly outweighs the individual's privacy interests.
The decision weighs whether the public interest in naming outweighs the potential harm to the provider, considering quality improvement, the nature of the breach, public safety and the passage of time. For health professionals, naming does not happen until any Director of Proceedings processes, including Tribunal hearings and appeals, are complete. When proposing to name, the Commissioner consults the provider and takes their views into account.
Refusing recommendations is a real risk, not a theoretical one. The 2023 policy noted HDC had never named anyone on that ground. Since then it has: in November 2023 HDC named a counsellor and his clinic for failing to carry out any of its recommendations, and its 2024/25 annual report records two disability support providers named for the same reason.
Answer each criterion the cover letter relies on. Explain your remediation and compliance with recommendations, the effect naming would have on you, your patients and your colleagues, and any privacy risk to the consumer. The policy recognises that withholding a name can cast suspicion on colleagues, so address that point too.
Self-check: what would you do?
The draft says you saw the patient at 1500, but your note is timed 1330. The difference does not affect the breach finding. Do you raise it?
You think the advisor applied a guideline published after the events. How do you say so?
The recommendations include a course you completed six months ago. What do you do?
You agree with the breach finding. Is there any point responding?
Frequently asked questions
Does a provisional opinion mean HDC has already decided?
No. It is the Commissioner's provisional view, formed on the evidence gathered so far. HDC's guidance says responses to the provisional findings and recommendations are considered carefully before the final report is prepared, and published decisions record that comments were incorporated where relevant. Findings can change, although many are finalised largely as drafted.
Do I have to respond to a provisional opinion?
Responding is your entitlement under section 67 of the HDC Act rather than an obligation. If you do not respond, the Commissioner can finalise the opinion without your input, and the report will not contain a summary of your side. In almost every case a considered response is worth sending, even if it simply accepts the findings and sets out what you have changed.
Will the complainant see what I say?
The complainant is given an opportunity to review the provisional opinion, and the final report, which goes to the complainant, includes a fair and accurate summary of your response. Write on the basis that the consumer and their whānau will read the substance of what you say.
Does my responsible authority see the provisional opinion?
HDC's guidance describes the final report, not the provisional draft, as the document usually sent to registration bodies such as the Medical Council or Dental Council. In cases involving several providers, it may be only the sections relating to you. What the authority does with it is a separate decision under the HPCA Act.
Can I ask for more time to respond?
Yes, you can ask. HDC normally asks for comments within 15 working days. If you need longer, contact the investigator before the deadline, explain why, and propose a specific new date. Confirm any agreed extension in writing.
Can the final opinion be harsher than the provisional one?
It can change in either direction. The complainant also comments, and new information from any party may affect the findings. If the Commissioner proposes new comment adverse to you, section 67 requires that you have a reasonable opportunity to answer it before it is published.
Will my name appear in the published report?
Usually not. Reports are published with names and identifying details removed. Individual practitioners are named only under the specific criteria in HDC's naming policy, and not before any Director of Proceedings processes are complete. You will be consulted, and can comment, if naming is proposed.
Can I appeal the final opinion if I disagree?
No. HDC states that the Commissioner's opinion is final and cannot be appealed. You can ask HDC to review its actions and decisions, and the Ombudsman or the High Court can review whether the investigation was conducted fairly, but they do not re-decide the clinical issues.
Primary sources
10 official documents
- Health and Disability Commissioner Act 1994 (ss 40, 45, 46, 49, 59, 67), New Zealand Legislation
- Health and Disability Commissioner: HDC's investigation process, guide for providers
- Health and Disability Commissioner: HDC's investigation process, guide for complainants
- Health and Disability Commissioner: Formal investigations
- Health and Disability Commissioner: Formal investigations leaflet (2024)
- Health and Disability Commissioner: Policy for naming providers in public HDC reports (June 2023)
- Health and Disability Commissioner: Guidelines for independent advisors (November 2023)
- Health and Disability Commissioner: Annual report 2024/25
- Health and Disability Commissioner: Decision CAS-14382-G8M0D0, delayed diagnosis of breast cancer (2026)
- Health and Disability Commissioner: Media release on naming a provider for not complying with recommendations (November 2023)
