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Time For Law Change At HDC But Who Should Decide?

“I am not opposed to a right of appeal for HDC decisions,” Health and Disability Commissioner Morag McDowell has said.

The Health and Disability Commissioner exists to promote and protect the rights of consumers, in particular to secure the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights. If the HDC gets it wrong, neither consumers nor providers have any right to appeal those decisions; decisions about one of the most important aspects of New Zealanders’ lives – their health!

Chief Ombudsman Peter Boshier considers that whether or not there is legislative change to the HDC Act 1994 to allow for the right to appeal decisions is a matter for policy-makers.

The Cartwright Collective, Auckland Women’s Health Council, the Federation of Women’s Health Councils, and health consumer advocates, Renate Schütte and Charlotte Korte, strongly agree with Boshier, and are urging the Health Select Committee to now give serious consideration to recommending a robust law change.

“This is actually a human rights issue and if not implemented now it will be a missed opportunity to promote and protect consumers’ rights into the future,” Schütte says of her petition, which is seeking amendment to the law to institute a right of appeal from adverse HDC decisions.

On Wednesday 10 November, the Health Select Committee heard submissions on the petition from HD Commissioner, Morag McDowell, and Chief Ombudsman, Peter Boshier, having previously heard submissions in support on October 27th from the Petitioners (Schütte and Korte), Professor Jo Manning (Cartwright Collective) and Sue Claridge (Auckland Women’s Health Council).

McDowell considers that further public and stakeholder consultation is needed before any law change is made. The Petitioners say that this is a matter of urgency and cannot wait. Some of these complaints concern serious injury and death. If complainants believe the decision is wrong, unjust, or not adequately investigated, they should be able to appeal that decision, but currently these people, of whom there are over 1,000 per annum, are denied appropriate resolution.

Boshier has been sharply critical of the HDC “because they have been letting complainants down.” He confirmed he had raised his concerns with the previous Commissioner but “in the past this has fallen on unreceptive ears.” He felt the new Commissioner was much more receptive and is pleased with “her commitment to a principled proper process.”

The Petitioners acknowledge and are very supportive of the positive improvements being made to the complaints process by the Commissioner. The lowering of the threshold for investigations and the inclusion of “significant public health or safety concerns” as a factor for deciding whether an investigation is warranted, are noted.

However, improvements to HDC processes do not constitute a right of appeal.

“We agree with former Commissioner Ron Paterson’s submission that the denial of access to justice highlighted by the petition demands more than new initiatives from HDC. Legislative amendment is required to give a voice to consumers who have suffered serious harm,” says Prof Manning.

Sandra Coney and Phillida Bunkle (Cartright Collective), both instrumental in the creation of HDC as a result of a recommendation for a Health Commissioner in Fertility Action’s submission to the Cartwright Inquiry, have said:

“Committee members must now step up and do their job, not pass the buck to the Commissioner to push this pressing matter out to some unspecified future date, for yet further consultation and consideration. It is the Select Committee’s job to decide and recommend whether legislative change to the complaints process is warranted so the HDC can better fulfil its statutory mandate”.

While health is under the microscope through the passage of the Pae Ora (Healthy Futures) Bill, it seems an ideal and logical time to address issues of access to justice and rights of appeal relating to decisions on infringement of patient rights.

The Pae Ora Bill and overhaul of the current health system is underway because of widespread dysfunction and deficiencies within the current health system. So now is the right time to also address the legislative deficiencies in the HDC complaint process, the infringements of patients’ rights within that self-same health system, and to strengthen the right to justice.

Schütte concludes, “without any avenue of appeal, promotion and protection of consumer rights, and a fair and just resolution of complaints is simply unachievable!”

“People absolutely should have the right to have their voice heard. This is not just about amending legislation. It is about resolution and reducing barriers to access to justice; this is a basic human right”.


Supporting information:

Statement- Sandra Coney and Phillida De Bunkle(included in Jo Manning’s written submission)

“The matter of an appeal right is not new. In fact, in the Health Commissioner Bill (which predates the current HDC Act), as first introduced to the House in 1990, both consumers and providers were to have broad access to the predecessor of the Human Rights Review Tribunal (the HRRT), in line with access for human rights complaints.

Clause 38 provided for the complainant to be able to take civil proceedings when the Commissioner was of the view that the complaint had no substance or ought not to be proceeded with or declined to take proceedings.

However, when the Act was passed into law in 1994, it included the office of the Director of Proceedings (the DP), and greatly restricted access by complainants (and providers) to the HRRT.

During the parliamentary debates of this version of the Bill, the Honourable Don McKinnon prophetically expressed concern about unaccountable power being put in the hands of the Commissioner. He stated that the Act would place the Commissioner “beyond so-called restraint”.

Statement- Sandra Coney and Phillida Bunkle- (regarding Ministry of Health’s written submission)

“The Health and Disability Commissioner’s purpose is to protect and promote consumers’ rights and to ‘facilitate the fair, simple, speedy and efficient resolution’ of complaints.

Lack of an appeal right from decisions about matters of life and death and serious injury to health is simply not ‘fair.’

It is the Select Committee’s job to decide and recommend whether legislative change to the complaints process is warranted so that the HDC can better fulfill this statutory mandate.

Committee members must now step up and do their job, and not pass the buck to the Commissioner to push this pressing matter out to some unspecified future for yet further consultation and consideration.”

Written submissions: https://www.parliament.nz/en/pb/sc/scl/health/tab/submissionsandadvice?criteria.Keyword=renate+schutte&criteria.Timeframe=&criteria.DateFrom=&criteria.DateTo=&parliamentStartDate=&parliamentEndDate=&criteria.DocumentStatus=

Renate Schutte (petitioner) - is a health consumer advocate who has experienced a treatment injury in the New Zealand healthcare system. She has extensive personal experience with the HDC complaint system.

Jo Manning - is a member of the Cartwright Collective, a patient advocacy group committed to monitoring implementation of the 1988 Cartwright Inquiry Report recommendations & author of its written submission, and professor of law at Auckland Law School, specialising in health care law, policy and ethics.

Sue Claridge - is a member of the Auckland Women’s Health Council and author of its written submission. Founded 33 years ago the Auckland Women’s Health Council has a long-standing role in patient and consumer advocacy and rights. The Council made submissions on the Health and Disability Commissioner Act 1994 and participated in consultation meetings in the development of the Code of Rights.

Charlotte Korte - is a health consumer advocate, also mesh injured with personal experience of the HDC complaints process. Charlotte in her submission demonstrated how the HDC system is being boycotted by consumers, how patient harm is slipping through the cracks, and of the power hierarchy between the HDC and consumers.

  • In 1994 The Honourable Don McKinnon expressed concern about unaccountable power being put in the hands of the Commissioner. He stated that the Act would place the Commissioner “beyond so-called restraint”.
  • In the first Review of the Act and Code in 1999 Robyn Stent, the first Commissioner, recommended that access be broadened to the equivalent to the HRRT, as access was “very limited” for consumers.
  • Robyn Stent suggested that the restricted access had possibly been a drafting error due to the late change to introduce the role of Director of Proceedings.
  • In a later review of the Act and Code in 2004 the second Commissioner, Ron Paterson, also seems to confirm the drafting error theory.
  • Robyn Stent recommended amending Section 51 to give access to the HRRT for consumers dissatisfied with the Commissioner’s findings.
  • The right to justice, including the right to the observance of the principles of natural justice, is an affirmed right in section 27 of the NZ Bill of Rights Act 1990

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