Complaints procedure flowchart

The complaints process consists of 4 stages and is how New Zealand implements and monitors the WHO’s International Code of Marketing of Breast-milk Substitutes.

Stage 1: the complaint is classified as within or outside the scope of either code

A written complaint is lodged with the Ministry of Health. The Compliance Panel Secretariat decides whether the complaint is within scope of either Code, and therefore eligible to go through the complaints procedure. Complaints that are not straightforward to classify are referred to the Compliance Panel out of session, and the Compliance Panel has 10 working days to determine whether the complaint is within scope, by majority decision.

Complaints outside the scope of the INC Code of Practice or the Code of Practice for Health Workers

For complaints that are outside of scope, the Ministry of Health will notify the complainant in writing. Where appropriate, the Ministry of Health will also notify the subject of the complaint that there has been a complaint against them, but it was considered outside of scope, so will not proceed through the complaints procedure on this occasion. However, the Director of Public Health may make recommendations to help ensure expectations for best practice against the INC Code of Practice or the Code of Practice for Health Workers are met. 

The Ministry of Health may refer complaints that are outside of scope, but relevant to the implementation and monitoring of the WHO International Code in New Zealand, to the Compliance Panel to seek comment or advice (although the complaint will not go through the complaints procedure).

The Ministry of Health will refer complaints about the advertising of formula for infants aged over 12 months to the Advertising Standards Authority, and complaints about the labelling, composition or quality of formula to the Ministry for Primary Industries.

Stage 2: complainant and subject of the complaint correspond

If there is a possible breach of either Code, the infant formula company, and/or health worker, and/or other affected party, where indicated, is asked to respond to the complaint by the Ministry of Health.

The subject of the complaint has 20 working days to respond to the written complaint.

If the complainant is dissatisfied with the response, the complainant has 20 working days to request their complaint be referred to the Compliance Panel. If the complainant is satisfied with the response or decides not to pursue the complaint further, the complaint may still be referred to the Compliance Panel at the Ministry’s discretion, for any advice or comment the Compliance Panel may wish to provide the Ministry, but not for determination.

Stage 3: the complaint is referred to the Compliance Panel

The Compliance Panel considers the complaint at its next scheduled meeting. The complaint will be considered under the self-regulatory code that applied at the time the alleged breach occurred. Additional information may be sought before the Compliance Panel makes its decision. Once the Compliance Panel makes its decision, the Compliance Panel has 30 working days to finalise drafting of the decision. All affected parties are notified in writing, and any affected party has 20 working days to lodge a written appeal with the Ministry of Health.

First-time complaints about a health worker or a health worker’s organisation

If the Compliance Panel considers a first-time alleged breach by a health worker as deliberate, the Compliance Panel will consider the complaint and make a determination about the breach. If the alleged breach is not considered deliberate, the Compliance Panel will recommend appropriate educative action, but will not determine the complaint. The health worker will be advised that if they are the subject of further complaints referred to the Compliance Panel, a determination will be made.

Stage 4: the appeal

Grounds for the adjudicator for accepting an appeal is where it appears that the Compliance Panel, in making its decision:

1. did not follow a fair process based on the principles of natural justice
2. failed to take a relevant fact into consideration or took an irrelevant fact into account, or gave a relevant fact insufficient weight or
3. did not properly apply the relevant codes in its decision.

If a written appeal is lodged with the Ministry of Health about a Compliance Panel decision, all affected parties are notified, and all relevant documentation to the Compliance Panel decision is sent to the Adjudicator. If new or additional information is provided to the adjudicator that has not been provided to the CP, the new information will be declined.  

The Adjudicator decides whether grounds for appeal are met and makes their decision in writing, within 30 working days of receipt of the complaint documentation. The Adjudicator may uphold, amend, or quash the CP decision. The Adjudicator may also refer the complaint back to the Compliance Panel for re-determination. All affected parties are notified of the Adjudicator’s decision and recommended action.

The Adjudicator’s decision is final, including the decision to refer the complaint back to the Compliance Panel for redetermination, so no further appeal can be lodged with the Ministry of Health by any party.