MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL

MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL, AIMED AT DIS-ENTITLING THOSE AFFECTED FROM WELFARE BENEFITS AND ACCIDENT COMPENSATION: THE AYLWARD – UNUM LINK

 
 

‘A comprehensive report with a summary of many revealing research results’

 

Introduction:

 

Media revelations during 2012 exposed a kind of “exit strategy” that ACC has apparently been using to off-load complex and costly claim cases by using in at least some cases highly questionable practices and medical assessors.
(see YouTube links: http://www.youtube.com/watch?v=DNkN3DW1W6s and http://www.youtube.com/watch?v=55LzKcivWuM from Sept. 2012).

Following this, recent developments in the social security system in New Zealand now also give rise to immense concern, as forms of work capability assessments will be applied to virtually all disabled and seriously ill, suffering degrees of incapacity.

On 15 July 2013 fundamental changes to the New Zealand social security system were introduced. Most in the public only learned that 7 former benefit categories would be merged into 3 new categories, that beneficiaries caring for children now have to fulfill certain social obligations, that jobseekers may face sanctions if they do not pass a required drug test, and that benefit recipients facing a warrant for arrest, could lose their benefit, if they would not comply with new rules.

A certainly much more significant set of changes also came into force, which have hardly been taken note by the media and the public. This includes the new, extremely stringent approach by Work and Income (WINZ) to require sick, disabled and incapacitated beneficiaries, to comply with greater work expectations. All former sickness beneficiaries were transferred onto the new ‘Jobseeker Support’ category, and they will face new, different re-assessments for their capacity to work or train.

Work capability will no longer solely – or primarily – be determined by information on medical certificates issued by medical practitioners or other authorised health professionals. There will be new additional measures, including expected, “self assessments” (on pre-designed forms), additional interviews with Work and Income staff tasked with finding ways to refer sick, injured or disabled back into some form of work on the open market. Further medical examinations by WINZ-trained and paid “designated doctors” can also be required, to assess what work a client can do.

Few will comprehend the magnitude and significance of the new approach, which, when compared with similar, earlier changes introduced in the United Kingdom, can only be described as the biggest attack on the social security system of New Zealand since at least 1991. The new changes under the ‘Social Security (Benefit Categories and Work Focus) Act 2013’, are nothing but a relentless drive to force many sick, disabled and incapacitated to look at least for part time work. The claims by the government and Ministry, that the intention is to “help” people, who are “locked into” benefit dependence, are nothing but cunning, misleading statements to disguise the true intentions and agenda. The goal of that agenda is above all: Reducing the number of persons on welfare benefits, and by doing so – COST CUTTING!

Already with the introduction of the ‘Future Focus’ policies in 2010 did Work and Income introduce a new approach following one used by the ‘Department of Work and Pensions’ (DWP) in the United Kingdom (UK), to rather look at what clients “can do” than what they “cannot do”. From 15 July 2013 a new ‘Work Capacity Medical Certificate’ is being used, which puts the emphasis on assessing what obstacles a client faces, to return to work, before the actual health conditions are being looked at.

Virtually ALL beneficiaries, including those on the new Supported Living Payment, onto which mostly former Invalid’s Benefit recipients have been transferred, will have to attend interviews and assessments for determining capacity to at least attend work preparation obligations, when being asked to do so.

(See these links: http://www.legislation.govt.nz/act/public/2013/0013/latest/DLM4750211.html and
http://www.legislation.govt.nz/act/public/2013/0013/latest/DLM4750221.html ).

 

On page 40 (of 48) on the new application form for the ‘Supported Living Payment’ – under “obligations” and “privacy” it says:

 

“2. Work preparation obligations if you have a health condition, disability or injury

I understand that while I get this benefit I’ll have an obligation, when asked, to:
• attend and participate in interviews to determine if I have the capacity to have work preparation obligations”

“I understand that if I’m assessed as having the capacity, I’ll have the following work preparation obligations to:
• attend and take part in work preparation interviews, where Work and Income ask me to
• attend and take part in work related activities or programmes such as a work assessment, a programme or seminar to increase particular skills or enhance motivation where Work and Income ask me to
• attend and take part in any other activity that Work and Income require me to (including rehabilitation but not medical treatment, voluntary work or activity in the community).”

(Link to form for downloading form:
http://www.workandincome.govt.nz/documents/forms/supported-living-payment-application.pdf)

 

It says on page 39 (of 48) on the new application form for the ‘Jobseeker Support‘ benefit – under “obligations” and “privacy”:

 

“3. Work obligations if you have a health condition, disability or injury that stops you working full time

I understand that while I get this benefit, if I have a health condition, injury or disability that means I can only work part-time, I have the following part-time work obligations to:

• be available for and take reasonable steps to get a suitable part-time job
• take any offer of suitable part-time or temporary work, or work that is seasonal or subsidised
• attend and take part in any suitable job interviews Work and Income ask me to
• take and pass any drug test potential employers or training providers require
• attend and take part in interviews with Work and Income as required
• work with Work and Income to plan how I’ll find a suitable job
• take part in any other activities that Work and Income refer me to, such as attend any job training courses, seminars, work experience or work assessments (including rehabilitation, but not medical treatment) that will improve my work readiness or help me get work
• let Work and Income know how I’m meeting my work obligations as often as Work and Income reasonably requires.”

 

“I understand that while I get this benefit, if I have a health condition, injury or disability that means I am unable to work or can only work less than 15 hours a week, I will not be asked to meet work obligations until my situation changes and in the meantime I will have the following work preparation obligations to:”

“• take reasonable steps to prepare and plan for work
• attend and take part in work preparation interviews, where Work and Income ask me to
• attend and take part in work related activities or programmes such as a work assessment, a programme or seminar to increase particular skills or enhance motivation where Work and Income ask me to
• attend and take part in any other activity that Work and Income require me to (including rehabilitation but not medical treatment, voluntary work or activity in the community).”

It says on page 40 (of 48) on the new application form for the ‘Jobseeker Support‘ benefit – under “obligations” and “privacy”:

 

“6. Work ability assessment
Where I’ve been asked to I’ll have an obligation to attend and participate in a work ability
assessment.”

 

Applicants and partners

 

“7. Working with a Contracted Service Provider
Where I’ve been asked to work with a Contracted Service Provider I’ll have an obligation to
co-operate with them and to:
• attend and participate in any interview with them
• report to them on how I’m meeting my obligations
• complete assessments with them.“

 

Link for downloading form:
http://www.workandincome.govt.nz/documents/forms/jobseeker-support-application.pdf

 

Links to a sample Work Capacity medical certificate and additional information – from the website of the ‘Royal NZ College of General Practitioners’:
http://www.rnzcgp.org.nz/assets/WI-Medical-Certificate-Sample.pdf
http://www.rnzcgp.org.nz/assets/Work-Capacity-Medical-Certificate-HDS017W.pdf
http://www.rnzcgp.org.nz/changes-to-the-benefit-system-on-15-july/
Link to law change requiring WINZ clients to work with contracted providers:
http://www.legislation.govt.nz/act/public/2013/0013/latest/DLM4750153.html

 

With news and other reports about the new approach in establishing work capability for sick, injured and disabled, the name of a Professor Sir Mansel Aylward, as well as names of other members of a core group of medical and health “experts”, many linked to the ‘Unum Provident’ funded ‘Centre for Psychosocial and Disability Research’ at Cardiff University, Wales, UK, have repeatedly been mentioned.

Also have there been frequent references to the so-called “bio psycho-social model” (BPS model), which is strongly associated with, and promoted by Professor Mansel Aylward and their school of thought. He and others have been strongly recommending this model for the diagnosis and treatment of diseases and illnesses that lead to degrees of impairment and incapacity to function – or to do work.

It has been said and written in UK based media that Mansel Aylward was given a “golden parachute” by the ‘Unum Provident’ insurance company, after he finally resigned from his position as ‘Chief Medical Officer’ for the ‘Department of Work and Pensions’ (DWP) in April 2005. ‘Unum’ offered substantial funding for a newly established ‘Research Centre for Psychosocial and Disability Research’ at Cardiff University in 2005 – that would be led by Professor Aylward.

Aylward’s name has repeatedly surfaced here in New Zealand, and it was reported last year, that he met with Social Welfare Minister Paula Bennett, and also with members of a ‘Health and Disability Panel’, set up by the Ministry of Social Development (MSD) to “advise” on “medical” matters, on the way medical assessments, possible rehabilitation and enhanced work referrals, could be further developed as part of the wider social welfare reforms.

Aylward furthermore held speeches at various conferences and meetings with groups of medical professionals here in New Zealand, and he has been accepted by the ‘Counties Manukau District Health Board’, the Ministry of Social Development, certain general practitioner- and other health professional organisations, and Social Welfare Minister Paula Bennett, as an advisor on health and welfare matters.

See links:
http://www.cardiff.ac.uk/news/articles/cryfhaur-cysylltiadau-meddygol–seland-newydd-8275.html; http://www.gpcme.co.nz/speakers/aylward_2013.php;
http://www.msd.govt.nz/documents/about-msd-and-our-work/newsroom/media-releases/2013/wr-cab-paper-c-health-and-disability.pdf

 

To understand who Mansel Aylward is, and what supposed “expert” advice he presents, we can look at readily available information on the internet. It will become evident that Professor Aylward, with his version of the “bio psycho-social model”, and with the strong private health- and disability-insurance sector lobbies, and also government backers behind him, has with his efforts achieved that the medical professions have almost been seized upon. The professions have been inundated with reports, speeches, campaigns and policy releases supporting a new, controversial doctrine – or at best theory! It is time to shine light on what is behind the resolute drive to gradually disentitle sick, disabled and incapacitated from support they were traditionally ensured by way of insurance payments or welfare benefits.

In the following 13 parts of this article and analysis I will present a wide range of available, factual, revealing information that is backed up by plenty of resource material, which can be found via the internet and in other accessible sources.

 

PART 1:
Professor Sir Mansel Aylward CB DSC FFPM FFOM FFPH FRCP – A Short profile and overview of his presentations based on the bio psycho-social model (in short BPS model):

 

Professor Mansel Aylward is the Director of the ‘Centre for Psychosocial and Disability Research’ and Professor of ‘Public Health Education’ at the School of Medicine at Cardiff University, UK. The Centre was established with the financial support of the large ‘Unum Provident’ insurance company.

http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/
(“Directory of Expertise”, “Cardiff University News Centre”)
http://medicine.cf.ac.uk/primary-care-public-health/research/cpdr/
http://medicine.cf.ac.uk/contact/cpdr/

Professor Mansel Aylward CB already took up the first Chair in Psychosocial and Disability Research at Cardiff University in October 2004, where he also became Director of the new ‘UNUM Provident’ funded ‘Research Centre for Psychosocial and Disability Research’ at Cardiff University (which Aylward developed with a £1.6 million grant from ‘UNUM Provident’).

Prior to that Mansel Aylward was Chief Medical Adviser, Medical Director and Chief Scientist at the UK Department of Work and Pensions (DWP). He was also Chief Medical Adviser and Head of Medical Professions at the Veterans Agency, Ministry of Defence.

As the former Chief Medical Adviser at the DWP Mansel Aylward was instrumental in the DWP accepting the ‘UnumProvident’ concepts applied in the US, and was influential in how the Welfare Reform Act should be implemented.

(See more at: http://dpac.uk.net/tag/unum-provident/#sthash.I0YtkwZY.dpuf;
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmworpen/401/3021203.htm)

“During his time at the DWP, Aylward was well-known for his support of the Wessely School and for his opposition to State disability benefits being paid to ME/CFS claimants.”

In 2005 Aylward was quoted for this comment or statement:
“By incorporating the Biopsychosocial Model into disability assessment, we can identify critically important information on obstacles to recovery, which in many cases can be tackled by an integrated package of support such as that offered in the Pathways to Work pilots and as provided by Unum Provident’s Claims Management and Rehabilitation Services.”

 

See ‘The Black Triangle Organisation’ publication under this link for more details:
http://blacktrianglecampaign.org/2012/09/09/professor-mansel-aylward-my-what-a-very-tangled/

 

Some additional information on this obviously “well connected” career professional can be found here:
http://www.wales.nhs.uk/sitesplus/888/page/64606

Extracts from Mansel Aylward’s profile on the ‘Public Health Wales’ website:

“Professor Sir Mansel Aylward CB is the first-ever Chair of Public Health Wales – a unified NHS Trust responsible for the delivery of public health services at national, local and community level in Wales. He was Chair of the Wales Centre for Health, an Assembly Government Sponsored Body established to be the ‘hub of connected organisations’ and to communicate better health messages to the people of Wales.

He is also Director of the Centre for Psychosocial and Disability Research at Cardiff University which offers a unique opportunity to extend knowledge and understanding of the psychosocial, economic and cultural factors that influence health, illness, recovery, rehabilitation and reintegration.

Professor Sir Mansel Aylward CB was knighted in the Queen’s New Years Honours 2010 for services to health and healthcare.”

“He entered the British Civil Service in 1985 and was appointed Chief Medical Adviser at the Department of Social Security in 1996 and at the Department for Work and Pensions in 2000. From 1974 to 1984 he was Chairman and Managing Director of Simbec Research Ltd, UK, and President of Simbec Inc, New Jersey USA.

He played a key role in development and evaluation of the UK’s medical assessment for incapacity (the All Work Test), and was heavily involved in developing the Personal Capability Assessment (PCA).”

 

Mansel Aylward has summarised his research “findings”, which do at least in large part rely on nothing else but selected data from studied and analysed reports by others, in his PDF-format and other types of presentations. At least in his earlier ones he did not make any efforts to hide the fact that his centre was “sponsored” by ‘Unum’! One presentation he frequently used is the following one:

Professor Mansel Aylward CB, Director, ‘Centre for Psychosocial and Disability Research’, Cardiff University: “Health, Work and Wellbeing – Pathways to Work”,
Stockholm, Sweden, 01 Dec. 2008
http://ki.se/content/1/c6/14/99/67/Mansel%20Aylward%20Dec%2001%2008.pdf

His message was also rather revealing:
“Changing beliefs and attitudes: the evidence base:
Getting politicians and key decision makers on side”.

Clearly, every person working in marketing, advertising and political propaganda knows very well, that whatever the message is, if it gets repeated hundreds or thousands of times, it will become commonly accepted by those receiving it.

Yet there has been critical reflection on that “Swedish Conference” in Stockholm:
‘MEF-forum — öppet, gratis forum om Myalgisk Encefalomyelit (ME)’
http://mef-forum.me-cfs.se/index.php?topic=149.0
(from 31 May 2009, offering more questions than answers, I suppose)

 

Mansel Aylward also raised the issue of “illness belief” in patients, and how a high number of reported complaints and illnesses may simply be the result of people wrongly believing they are seriously sick, and how their belief was hampering successful recovery and rehabilitation. He has written many reports and publications, and one of these is the following:

‘The Power of Belief’, Psychosocial influence on illness, disability and medicine,
Edited by Peter W. Halligan and Mansel Aylward, Oxford Univ. Press, 20 April 2006
http://ukcatalogue.oup.com/product/9780198530107.do#.UeTFHOV9XmE

● “A collection of distinguished scientists and clinicians examine how beliefs can affect not only the patient, in terms of their eventual recovery from illness, but also the way in which medical professionals view and treat illness.
● This book provides an opportunity to probe deeper into the nature of beliefs and in particular highlights recent theoretical and clinical reports illustrating the significant role that beliefs play in defining illness, compliance with treatment and vocational rehabilitation.
● At a time when public trust in doctors and science is diminishing, a better understanding of patients’ and doctors’ beliefs regarding illness is clearly a priority for research in clinical practice.”

“Over the past two decades, a widening gulf has emerged between illness presentation and the adequacy of traditional biomedical explanations. Currently, the UK is experiencing an “epidemic of common health problems” among people in receipt of State incapacity benefits and those who consult their general practitioners. Most do not demonstrate a recognisable pathological or organic basis which would account for the subjective complaints they report.”

 

Here are a couple of other frequently used presentations by Mansel Aylward:

‘Worklessness and Health: A Symposium’; Professor Sir Mansel Aylward CB
http://www.gla.ac.uk/media/media_210440_en.pdf

“Common Health Problems:
Predominantly Subjective Health Complaints
Illness Behaviour:

What ill people say and do that express and communicate their feelings of being unwell:
• Subjective Health Complaints have a high prevalence in the working-age population
• Not solely dependent on an underlying health condition ( the limited correlation)
• People with similar symptoms (illnesses) may or may not be incapacitated
• Consumption of health care disproportionate.”

 

Here’s a Mansel Aylward slide show presentation WSPCR 2010, from 03 Nov. 2010:
http://de.slideshare.net/angewatkins/mansel-aylward-presentation-wspcr-2010

‘Transforming Models of Disability’ – Professor Sir Mansel Aylward CB
Director: Centre for Psychosocial and Disability Research, School of Medicine, Cardiff University and Chair: Public Health Wales, ‘International Forum on Disability Management, London, 10-12 September 2012
http://ifdm2012.rsm.ac.uk/downloads/presentations/mansel-aylward.pdf

“Terminology: unravelling concepts: 1
Disease: Objective, medically diagnosed, pathology
Impairment: Demonstrable deviation or loss of function/structure
Illness: The subjective feeling of being unwell
Sickness: Social status accorded to the ill person by society
Disability: Limitation of activities and restriction of participation
Incapacity (work): Inability to work because of sickness/disability
1. Waddell + Aylward (2010)“

“The Psychosocial Dimension
•Extensive clinical evidence that beliefs aggravate and perpetuate illness and disability
•Almost anytime you tell anyone anything, we are attempting to change the way their brain works”

“Limitations of the social model of disability:
•Applies best to people with more severe medical conditions and permanent physical or mental impairment”

In this presentation from 2012 Aylward is clearly attempting to partly qualify, interpret, redefine and rewrite some medical terminology, and to also reduce the importance of the “social” component in the “bio psycho-social model”.

 

Prior to Mansel Aylward taking up his new positions at Cardiff University, it was clear what the close cooperation between ‘UnumProvident’ and the School of Psychology there were planning to achieve. The following publication states this rather clearly:

“Exploring why disease affects people differently”
“Cardiff University and UnumProvident announce new partnership”; (Cardiff University May 2004), from the ‘Science Blog’:
http://scienceblog.com/community/older/2004/3/20042049.shtml

“In a £ 1.6 million research contract signed on Thursday (6 May), the new UnumProvident Centre for Psychosocial and Disability Research in the School of Psychology sets out to achieve the highest level of research and teaching excellence and become a recognised world-class research centre and resource for psychosocial and disability research.”

“The centre is the first in UK to develop specific lines of research, in psychosocial factors related to disability…”

“”Hopefully within five years, the work will bring about a significant re-orientation in current medical practise in the UK whereby “enablement” rather than disability, will be the positive focus and goal for those involved in managing disability and those affected by “unexplained symptoms” explained Professor Peter Halligan who forged the partnership with UnumProvident.”

 

On a more personal note Professor Mansel Aylward was interviewed by:

The Actuary – The magazine of the actuarial profession
1 MAY 2013 | SARAH BENNETT AND RICHARD PURCELL
“Vision for a healthier, happier nation”
http://www.theactuary.com/features/2013/05/sir-mansel-aylward-vision-for-a-healthier-happier-nation/

“Professor Sir Mansel Aylward CB, chair of Public Health Wales, tells Sarah Bennett and Richard Purcell how self-esteem affects health and why happiness is a constant”

“What would you describe as a highlight of your career?
First, the work I led to ensure people with a terminal illness received their state disability benefit quickly. Second, introducing the ‘All Work’ test in the 1990s, which was an objective approach to measure whether someone could do their own work or any other work.”

 

Mansel Aylward’s many “titles” are explained here:
Companion (CB) Companion of the Order of the Bath – 2002 Queen’s Birthday Honours, UK, for his role as ‘Chief Medical Adviser’ and ‘Medical Director’, ‘Department for Work and Pensions’;
DSC – ‘Doctor of Science’,
FFPM – Fellow of the Faculty of Pharmaceutical Medicine (UK),
FFOM – Fellow of the Faculty of Occupational Medicine (UK),
FFPH – Fellow of the Faculty of Public Health (UK),
FRCP – Fellow of the Royal College of Physicians (UK).

Besides of having been ‘Chief Medical Adviser’, ‘Medical Director’ and ‘Chief Scientist’, he acted also as ‘Spokesman’ for the ‘Department for Work and Pensions’ (1995-2005).

In 2010 he was “knighted” for “services to health and healthcare” and now is “Sir”.

Having been invited and courted by New Zealand health authorities, he is now also ‘Visiting Professor’ at the ‘Ko Awatea Stevenson Centre’1, the ‘University of Auckland’ and ‘Counties Manukau District Health Board’ (2012).
1. (Ko Awatea is the Centre for Health System Innovation and Improvement for the Counties Manukau District Health Board (CMDHB))

 

Summary conclusion on Mansel Aylward and his version of the BPS model:

The presentations and reports by Aylward send the same constant short messages, like that “work is good for health”, and he interprets the “bio psycho-social model” by Engel to argue, that most barriers that sick, ill and disabled with incapacities face for a possible return to work are merely of a “social” and/or “psychological” nature.

Like his like minded colleagues Gordon Waddell, Kim Burton and others, same as the few non-associated medical researchers he bases his “findings” on, he relies on statistical results that are actually rather selective, ambiguous, inconclusive and do not necessarily represent the same types of information that he compares them with.

Some of the information (e.g. from Eriksen and Ursin) goes back to 1993 or further. It represents data from other countries (Scandinavia, the US, Canada, etc.) with different social, cultural and also medical service systems, from up to decades ago, which could well be out of date, as it gives no consideration to newer medical findings that may qualify or disprove the results presented by such earlier reports.

There have been substantial advances and new discoveries in biological, bio-chemical, genetic and physical sciences, and new findings about the interactions of hormones, functioning of body cells and the nervous system, which can explain some phenomena that could previously not be explained. Future research is likely to reveal more about physical, biological, mental and psychological aspects of human health, and to exclusively rely on a model that is actually disputed – or interpreted differently – by a fair number of experts, appears to be somewhat short-sighted or irresponsible.

While there have also been substantial advances in psychiatry and the development of new psycho-pharmaceutical products, treatment of mental health conditions and disorders remains to be an area with many risks and problems, as some medication results in serious side-effects, is not effective for many patients and in other cases can lead to addiction. Hence many psychologists see justification in more use of counselling or other available treatment where this may be more appropriate.

The further development of the Diagnostic and Statistical Manual of Mental Disorders from DSM III to DSM IV and now DSM V was partly welcomed, but has also led to some criticism amongst medical professionals, yet it continues to be respected and followed, especially by psychiatrists. Co-occurrence of disorders and the adoption of dimension models besides of the traditional categorical model for diagnosis have become accepted. Mansel Aylward appears to give insufficient consideration to the various mental health disorders that have been established, and his constant referral to “common mental health conditions” seems to be an attempt to blur the line between actual mental illness and “subjective health complaints” like headache, fatigue, dizziness. This displays a dismissive approach to mental health disorders and conditions, which should instead warrant more research and careful analysis.

Mansel Aylward’s close links to ‘UnumProvident’ raise great concerns about his professional independence as a medical researcher and practitioner, having been paid by a private insurance company that has been funding his Cambridge University based centre. It appears he had contacts with and received advice on health and welfare matters from the insurer while Chief Medical Officer at DWP. Hence his “findings” and approaches deserve a very high degree of caution and scrutiny.

 

PART 2:
THE BIO PSYCHO SOCIAL MODEL, ITS CRITICS AND IN DEBATE:

 

A) The BPS model explained:

 

The ‘Biopsychosocial model’ as explained in ‘vixipedia.com’:
http://en.vixipedia.com/wiki/Biopsychosocial

“The biopsychosocial model (abbreviated “BPS”) is a general model or approach that posits that biological, psychological (which entails thoughts, emotions, and behaviors), and social factors, all play a significant role in human functioning in the context of disease or illness. Indeed, health is best understood in terms of a combination of biological, psychological, and social factors rather than purely in biological terms.”

“It is important to note that the biopsychosocial model does not provide a straightforward, testable model to explain the interactions or causal influences (that is, amount of variance accounted for) by each of the components (biological, psychological, or social). Rather, the model has been a general framework to guide theoretical and empirical exploration, which has amassed a great deal of research since Engel’s 1977 article. One of the areas that has been greatly influenced is the formulation and testing of social-cognitive models of health behavior over the past 30 years.”

The ‘Biopsychosocial Model’, as found on ‘slideshare.net’:
By: Mimi Abesamis, Angela Alba Loye Clamor, Milo Fagar Kency Ferrer, Lya Gusi Pia Mirasol, Bernadette, with an interesting slide show presentation: http://www.slideshare.net/memehabesamis/biopsychosocial

While the “bio psycho-social model” has to varying degrees become accepted more widely in medical practice, including psychiatry and psychology, for many it remains to be a quite controversial model for diagnosis and treatment. Some even questioned whether it can be considered as a proper “model” at all. It has been interpreted differently and applied differently by professionals, and it is clear that it can lead to confusion about cause and effect, where diagnosis is unclear. There have been a number of outspoken critics, some of whom I will refer to and quote in the following.

 

B) The BPS “model” – not accepted by Niall McLaren:

 

“A critical review of the biopsychosocial model”, Niall McLaren, ‘Australian & New Zealand Journal of Psychiatry’, 1998
http://www.scribd.com/doc/57443035/Niall-McLaren-A-Critical-Review-of-the-Bio-Psycho-Social-Model-1998

“Objective: The aim of this review is to provide an analysis of the epistemic status of the biopsychosocial model.
Results: In its present form, the biopsychosocial model is so seriously flawed that its continued use in psychiatry is not justified.
Conclusion: Further development of theory-based models in psychiatry is urgently needed.”

“The first thing we have to decide is whether it is a theory or a model. Engel was quite explicit: it is a model. However, since his construct does not satisfy any sense of a model as a formal, working representation of an idea, this cannot be accepted. At most, it could be a very general theory; even as a theory it is seriously flawed.”

“All he offered was an emotive case for more humanity and less technology in medicine: little more than a heartfelt plea based in a particular ontological stance. It was not a theory and it was certainly not a model.” (p. 89)

“Finally, unless there is an integrating theory already in place, gathering biological, psychological and sociological data about people will only yield scattered lumps of information that do not relate to each other in any coherent sense. Without an overarching theory to integrate the fields from which the data derive, associations between different classes of information are meaningless.” (p. 91)

 

Also – adding to the criticism by McLaren:

“The Non-Existence of the ‘Biopsychosocial’ Model of Chronic Ill-Health”,
Margaret Williams, 4th March 2007; sharing concerns of McLaren
http://www.meactionuk.org.uk/The_Non_Existence_of_the_BPS_model.htm

“To quote McLaren:
“A Medline search of the word ‘biopsychosocial’ yielded nearly four hundred references, not one of them critical. Indeed, the Journal of Psychosomatics now uses the terms ‘psychosomatic’ and ‘biopsychosocial’ interchangeably. In its present form (it) is so seriously flawed that its continued use in psychiatry is not justified. In a word, the officially-endorsed biopsychosocial model is pure humbug because it does not exist. Psychiatrists have long attempted to convince the general public, the funding bodies and, most significantly, the younger generations of students and psychiatrists that the profession has articulated a rational model which grants it special and unique knowledge of the aetiology of mental disorder. It is my view that we are guilty of the grossest intellectual neglect or of outright scientific fraud. I believe there is a serious risk psychiatry as we know it will no longer exist in as little as fifteen years” (The Biopsychosocial Model and Scientific Fraud. N McLaren. May 2004; available from the author at jockmcl@octa4.net.au )”

“By contrast, true bio-psycho-social care (ie multi-channel care) is urgently needed by patients with ME/CFS. They need care for physical symptoms such as allergies and hypersensitivities, intractable pain, visual problems, balance problems, gut problems, respiratory problems, cardiovascular problems, and the inability to look after themselves; they need psychological support (eg. an understanding partner, mother, friend or ‘important other’ to help them cope with and grieve for – and adjust to – the many losses experienced); they need social support ie. help to run their household; help at school; home adaptations and family support, as well as help with the endless tribulations inherent in the inevitable battles with the various benefits systems.”

 

C) The BPS model viewed critically by Hamid R Tavakoli:

 

“A Closer Evaluation of Current Methods in Psychiatric Assessments: A Challlenge for the Biospsychosocial Model”, by Hamid R. Tavakoli, MD, Psychiatry (Egmont) 2009; 6(2): 25-30, from ‘Psychiatry – 2009’
http://www.nxtbook.com/nxtbooks/matrix/psychiatry_200902/index.php?startid=25

“The challenges we face in psychiatry are undoubtedly partly due to differential reimbursement for medication treatment versus psychotherapy; however in my view, some of these challenges are due to how we approach our patients using the biopsychosocial model, and more importantly, due to the semantics and inherent problems brought by emphasis on this model.”

“On numerous occasions, I have received discharge summaries regarding the inpatient care of my patients that state “the biopsychosocial milieu was used to treat the patient,” with no additional information. This treatment plan has little sense and less content.”

Problems raised in his evaluation include:
The problems with further dichotomizing biology and psychology, with reinforcing the stigma associated with mental health, with implying that poor behaviour is a disease and the impact on society at large, with the psychosocial paradigm and related terminology, with teaching and communicating using a concept that is fundamentally weak.

Tavakoli offers alternative approaches like using an already established model in general medicine in “case formulations”, or a “perspectives model”.

The same article is also found here:
US National Library of Medicine, National Institutes of Health; Psychiatry (Edgmont). 2009 February; 6(2): 25–30: “A Challenge for the Biopsychosocial Model”
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2719450/

 

D) The BPS model as critically analysed by S. Nassir Ghaemi:

 

‘The Rise and Fall of the Biopsychosocial Model, Reconciling Art and Science in Psychiatry’, S. Nassir Ghaemi, M.D., M.P.H., The Johns Hopkins University Press, 2010
http://books.google.co.nz/books?id=UYv1-4xmgxsC&pg=PA62&lpg=PA62&dq=Epstein+bio+psycho+social&source=bl&ots=-YyYhAKOAM&sig=uqbd28nO2IRa-9FrY3OP3oec0-k&hl=en&sa=X&ei=-eXoUc7JPMKeiQf8-YDwBw&ved=0CDgQ6AEwBDgK#v=onepage&q=Epstein%20bio%20psycho%20social&f=false

The Biopsychosocial Model in Psychiatry: A Critique
S. Nassir Ghaemi – Tufts Medical Center, 2011; Existenz, An International journal in Philosophy, Religion, Politics and the Art
http://www.bu.edu/paideia/existenz/volumes/Vol.6-1Ghaemi.html

“Abstract
In the United States, the basic concepts of psychiatry have involved the opposing dogmatisms of psychoanalytic orthodoxy and biological reductionism. An alternative basic conceptual scheme, the biopsychosocial model (BPS), arose in the last decade and now represents the status quo. By providing a conceptual review of the strengths and limitations of the BPS in psychiatry, and identifying the limitations of the BPS model the author concludes that its limitations seem to outweigh its benefits. Suggestions for a non-eclectic pluralist model of psychiatry, based on the ideas of Karl Jaspers, are made.”

“Political Uses of the Biopsychosocial Model in Psychiatry

The seeds of the decline of the BPS began in the political uses to which it was immediately put. The BPS promised an end to the increasingly bloody conflict between the biological and psychoanalytic schools. In the 1970s, the rise of psychopharmacology put the biological school in psychiatry on the attack. The framers of DSM-III rather overtly saw psychiatry as an objective medical discipline, and they framed their work in the traditional medical model as put forward by Emil Kraepelin in the early twentieth century.”

“By being agnostic, however, the DSM-III approach created a conceptual void. Psychoanalytic orthodoxy was rejected, as was Meyerian theory. Biological reductionism did not take its place. And thus, there was uncertainty regarding what was to be taken as the basic model of psychiatry. The BPS filled this void, since it was consistent with all approaches. The main raison d’etre for the BPS was to keep peace between the biological and psychoanalytic dogmatisms, while giving each space to survive. It provided mental health professionals a rationale for preserving the clinical use of psychotherapies, in the face of increasingly relentless pressure from psychopharmacology, a compromise which could only hold so long.”

 

E) The BPS model defended but qualified for future application by others:

 

“The Biopsychosocial Model 25 Years Later: Principles, Practice, and Scientific Inquiry”, Francesc Borrell-Carrió, MD, Anthony, L. Suchman, MD, and Ronald M. Epstein, MD, Ann Fam Med. 2004 November; 2(6): 576–582; US National Library of Medicine – National Institutes of Health
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1466742/

“Abstract
The biopsychosocial model is both a philosophy of clinical care and a practical clinical guide. Philosophically, it is a way of understanding how suffering, disease, and illness are affected by multiple levels of organization, from the societal to the molecular. At the practical level, it is a way of understanding the patient’s subjective experience as an essential contributor to accurate diagnosis, health outcomes, and humane care. In this article, we defend the biopsychosocial model as a necessary contribution to the scientific clinical method, while suggesting 3 clarifications: (1) the relationship between mental and physical aspects of health is complex—subjective experience depends on but is not reducible to laws of physiology; (2) models of circular causality must be tempered by linear approximations when considering treatment options; and (3) promoting a more participatory clinician-patient relationship is in keeping with current Western cultural tendencies, but may not be universally accepted.”

“FURTHER DEVELOPMENT OF THE BIOPSYCHOSOCIAL MODEL

George Engel formulated the biopsychosocial model as a dynamic, interactional, but dualistic view of human experience in which there is mutual influence of mind and body. We add to that model the need to balance a circular model of causality with the need to make linear approximations (especially in planning treatments) and the need to change the clinician’s stance from objective detachment to reflective participation, thus infusing care with greater warmth and caring. The biopsychosocial model was not so much a paradigm shift—in the sense of a crisis of the scientific method in medicine or the elaboration of new scientific laws—as it was an expanded (but nonetheless parsimonious) application of existing knowledge to the needs of each patient.”

The above analysis and report is delivering some thoughts on the BPS model and how it may be applied and developed in future.

 

And yet another perspective is explored in this publication:

Highbeam Research: “The biopsychosocial model: exploring six impossible things.” Families, Systems & Health, December 22, 2005; Epstein, Ronald M.; Borrell-Carrio, Francesc; see link: http://www.highbeam.com/doc/1G1-144403577.html

“In our view, the biopsychosocial model is a vision and an approach to practice rather than an empirically verifiable theory, a coherent philosophy, or a clinical method. In some cases, when that vision is confused with ideologic dogmatism, it can invite abandonment of the vision entirely or in selected situations. The authors suggest that habits of mind may be the missing link between a biopsychosocial intent and clinical reality. These habits of mind include attentiveness, peripheral vision, curiosity, and informed flexibility.”

 

F) The BPS model as evaluated by Professor David Pilgrim

 

“THE BIOPSYCHOSOCIAL MODEL IN ANGLO-AMERICAN PSYCHIATRY: PAST, PRESENT AND FUTURE?”
Prof David Pilgrim, Lancashire NHS Mental Health Care Trust and Department of Sociology, Social Policy and Social Work, University of Liverpool
http://www.critpsynet.freeuk.com/Pilgrim.htm

“First, the pluralism evident in modern mental health services may be driven more by pragmatism than by the BPS model. Indeed, it might be more accurate to account for the admixture of drugs, ECT and psychological interventions in services as the outcome of different disciplines (and groups within them), who favour different approaches to mental health work, negotiating a form of mutual tolerance (Goldie, 1977). In these organisational circumstances, it is easy to confuse pragmatic co-existence, within a variegated and negotiated order of professionals, with genuine evidence of theoretical integration as a shared BPS orthodoxy.

Second, many of the criticisms made by the ‘anti-psychiatrists’ did not disappear, even though their original form petered out within debates about mental health in the 1970s. They were neither definitively refuted (by those like Hamilton and Roth) nor were they permanently defused by partial incorporation (by those like Clare). The concerns of anti-psychiatry have been re-cycled in criticisms from disaffected users, who now constitute a new social movement (Rogers and Pilgrim, 1991). They have also re-surfaced within a newer post-modern professional dissent of ‘critical psychiatry’ (Bracken and Thomas, 1998) and in continuing North American attacks upon the biomedical model from within a realist, rather than a post-modern, paradigm (Breggin, 1991; Ross and Pam, 1995). This suggests that a dialectical opposition provoked by the biomedical model has not found a permanent synthesis and resolution in some version of the BPS model.

Third, those favouring a holistic model have recently expressed a concern that psychiatry is simply becoming neuropsychiatry and the BPS model is losing earlier gains.”

“This paper has described the content and history of the biopsychosocial model in psychiatry and appraised its current status and prospects. The model is supported by the acclaimed intellectual resource of general systems theory. It offers practical and professional advantages for clinical psychiatry and humanistic advantages to mental health service users. Despite these scientific and ethical virtues, to date its promise has not been properly realised. It seems to have been pushed into the shadows by a return to medicine and the re-ascendancy of a biomedical model.”

 

G) The BPS critically looked at by G. Jacob, from a perspective on back pain

 

“Biopsychosocial perspective on low back pain: patient provider Communications”; .I Minim Invasive Spinal Tech / Volume 3/Spring 2003
GARY JACOB, D.C.; Los Angeles, California
http://www.garyjacob.com/sites/default/files/treatment/gj/BiopsychosociaPerspective.pdf

“Abstract. The term “biopsychosocial” has become quite fashionable in the low back pain industry. Nonetheless, many, if not most, spine care practitioners who employ the term do not appreciate the scope and limitations of the concepts involved, how they were evolved, or the responsibility they place on providers tochange behaviors.“

“Biopsychosocial Concepts Applied to Low Back Pain
As it appears that the biopsychosocial model is not a model at all, but a conceptual construct, it is perhaps more appropriate to reference it as a concept or a perspective. The failure of Engel to provide anything greater than “a very general theory … at no stage….any more than conceptual”” may explain the reason why the low back biopsychosocial literature curiously fails to reference Engel at all.” (p. 30)

“Another perversion of the model is that is has been used for “victim blaming.” Providers not well versed in the theory or practice of biopsychosocial communication skills continue to employ the trappings of the biomedical model and, when it fails, employ the term “biopsychosocial” as a means to blame the patient for therapeutic failures when, in fact, it is the provider that has failed to meet the communication mandates of “biopsychosocialism.”” (p. 34)

 

H) The BPS model and its challenges, needing to adopt and include new scientific findings – some further articles and views

 

“Toward an Integration of Social and Biological Research”
Vivia V. McCutcheon; Soc Serv Rev. Author manuscript; avail. in PMC 2010 April 21
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2857736/

“Abstract
…This article presents three conceptual frameworks for integrating genetic and environmental evidence and for organizing knowledge from once-distinct disciplines into a unified framework. Recent evidence for gene-environment interactions is presented to demonstrate the importance of integrating knowledge across disciplinary boundaries.”

“Biopsychosocial Model
The biopsychosocial model is well suited as a framework for research in the social sciences and as a means for creating a bridge with biological science, because it is broad enough to incorporate genetic and environmental factors as potential contributors to health and illness. However, social researchers who use the biopsychosocial model must be careful not to make the same type of mistake (though opposite in intent) as researchers using the biomedical model. That is, social researchers must take care not to discount or exclude genetic effects as potential explanatory factors in their research.”

“What is most curious about the longevity of the idea that both biological processes and life experience affect mental health is the idea’s failure, despite its longevity, to take root in practical application to research designs. One reason for this slow progress may be that science has only recently advanced to the point where biological measures facilitate modeling the ideas implicit in Engel’s work.”

“Gene-Environment Interplay
The biopsychosocial model, diathesis-stress theory, and the model of phenotypic vulnerability provide good frameworks for etiological investigations of psychopathology. Each of them is capable of incorporating six principles that can guide the exploration of the interplay between genes and environment (Rutter et al. 1997).”

The following article delivers yet another few aspects and perspectives:

‘Health Skills – Skills for healthy living for health professionals working in chronic pain management’; “How “social” is your biopsychosocial model?”
Posted by adiemusfree on June 14, 2010
http://healthskills.wordpress.com/2010/06/14/how-social-is-your-biopsychosocial-model/

“It’s called the biopsychosocial model, but how much attention do we really pay to the social part of this model? While we know the medical model has its limitations (especially when we’re looking at how people respond to having health problems), in pain management I wonder whether we now have a ‘psychological’ model of pain rather than a biopsychosocial model?”

 

Summary conclusion:
Reading and analysing the various reports and articles that have been written on the “bio psycho-social model”, it becomes clear, that there is a wide range of differing understandings, interpretations, appraisals and suggested applications of this model, which some do not even accept as a proper scientific medical model.

Naturally a common, general basic structure, and how it is supposed to be understood and applied, appears to be accepted by many medical scientists and practitioners, but it also seems that every one confronted with it, and using it, seems to have a rather subjective, personal interpretation of its purpose and use. McLaren does even challenge whether the BPS “model” is based on theory, whether it may fit the concept of a “model” or “theory”. After all, provided it can be seen as a “model”, it leaves too much room or scope in its interpretation and use, leading to confusion. The BPS model certainly has limits, as to how it can be applied in clinical practice.

While there naturally are possible physical, psychological and social influences or causes having impacts on the complex health of persons or groups of persons, in order to objectively and correctly assess any disease and illness, it represents a constant challenge, and at all times requires a very careful, skilful, analytical approach (being a balancing act) when making a diagnosis following such a model.

For McLaren, Tavakoli, Ghaemi and some others the BPS model is seen as flawed, at least in part unreliable, lacking coherence and clarity, and left open to abuse. Talk about “systems theory” and confusion about the semantics about concepts cause irritation for some. It is by Ghaemi and Pilgrim compared to other “trends” that occurred in psychiatry and medical science over times, and possibly being just another fashionable philosophical, or even “political” “trend”, would make it likely to be seen as obsolete, once another new “model” of whatever type may be presented.

What is most concerning about the wide adoption of the BPS is the fact, that it can lead to abuse through the practice of “victim blaming”, where for lack of detectable physical, organic, laboratory or other evidence no proper diagnosis seems possible. It would be too easy to resort to blaming the patient for adhering to “illness belief” or even to malingering. Confusion about cause and effect could also lead to that. As further information will show, it seems evident, that the model is increasingly being used by insurers and governments as a useful vehicle to basically “disentitle” sick and disabled from traditionally granted benefits or insurance payments.

The simplistic claims and messages by Professor Mansel Aylward, by Waddell, Burton and some others, that “work is good for health”, even when a person suffers sickness and is incapacitated, is a worrying sign of a trend to possible abuse of the BPS model. One must in this context ask, whether it was not just the strong, well-financed lobby powers, represented by such self interested insurance corporations like ‘Unum’, who financed, motivated and enabled Aylward and others (based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales), to successfully push for the BPS and their interpretation of it, that resulted in the BPS model being so widely adopted and integrated in medical practice and rehabilitation.

 

PART 3:
Reports and “findings” by fellow medical researchers, also commonly referred to and used by Professor Mansel Aylward – to back up the “research” he and his fellows conducted:

 

Reports by Eriksen and Ursin (Professors at the University of Bergen), Norway:

Eriksen HR, Svendsrød R, Ursin G, Ursin H. (1998). Prevalence of subjective health complaints in the Nordic European countries in 1993. Eur J Public Health, 8, 294-8.
http://www.uib.no/insuhc/files/a_scoring.pdf

Downloadable PDF document – found via following link:
http://www.uib.no/insuhc/html/overview_shc.html
http://www.uib.no/insuhc/files/a_scoring.pdf
http://www.uib.no/insuhc/members/Prevalence%20of%20subjective%20health%20complaints%20in%20the%20Nordic%20-%20RE.pdf
(‘International Network for Subjective and Unexplained Health Complaints’)

‘Prevalence of subjective health complaints in the Nordic European countries in 1993’, HEGE R. ERIKSEN, ROLF SVENDSROD, GISKE URSIN and HOLGER URSIN, 1997: http://eurpub.oxfordjournals.org/content/8/4/294

Scandinavian Journal of Psychology 2002, 43, 189-196:
‚Sensitization and Subjective Health Complaints’, H. R. Eriksen and Holger Ursin,
Department of Biological and Medical Psychology, University of Bergen, Norway:
http://www.google.co.nz/url?sa=t&rct=j&q=h.%20r.%20eriksen%20and%20h.%20ursin%20sensitization%20and%20subjective%20health%20complaints&source=web&cd=3&cad=rja&ved=0CD4QFjAC&url=http%3A%2F%2Fwww.researchgate.net%2Fpublication%2F11366008_Sensitization_and_subjective_health_complaints%2Ffile%2F504635184ce0ad8789.pdf&ei=wQbmUfzEHY2QlQXP04C4Cw&usg=AFQjCNF8BsskS7vnRuQJcThaSgkhWqVq6w

Scandinavian Journal of Psychology 2002, “Subjective Health Complaints”, Hege R. Eriksen and Camilla Ihlebaek, Department of Biological and Medical Psychology, University of Bergen, Norway; Eriksen H.R. & Ihlebaek C. (2002), Subjective health complaints, Scandinavian Journal of Psychology, 43, 101-103:
http://www.google.co.nz/url?sa=t&rct=j&q=h%20r%20eriksen%20ursin%20models%20of%20sickness%20and%20disability&source=web&cd=31&cad=rja&ved=0CCgQFjAAOB4&url=http%3A%2F%2Fwww.researchgate.net%2Fpublication%2F11365996_Subjective_health_complaints%2Ffile%2F504635184ce0b0fbf8.pdf&ei=YS_mUf6IBYKiigew4YGIBQ&usg=AFQjCNGVTuV-vYu3XWQdeeckSz-Ekq5PIA

Psychoneuroendocrinology 29 (2004) 567–592; http://www.elsevier.com/locate/psyneuen

Review: ‘The cognitive activation theory of stress’, Holger Ursin, Hege R. Eriksen; Department of Biological and Medical Psychology, University of Bergen, Jonas Liesvei 91, N-5009 Bergen, Norway
http://bmb.pharma.hr/lauc/NI/298.pdf

“CATS postulates that only sustained arousal constitutes a potential health risk. High levels of transmitters and hormones generally lead to down-regulation of receptors. This may be an important mechanism for loss of dynamic capacity to respond to new challenges, and increased levels of illness and disease. The picture emerging from recent research on brain regulation of endocrine systems is still incomplete, partly because of the lack of consistent nomenclature for ‘stress’. For the HPA axis there are reasonably consistent findings of increased baseline levels of cortisol and attenuated responses to ‘stress’ stimuli, to negative or inconsistent expectancies, and to depression (Kristenson et al., 2003). Cortisol reactivity and regulation have also been related to the long-lasting effects of trauma (‘post-traumatic stress disorder’, Yehuda, 2002). Sustained arousal may lead to a hyporesponsive HPA axis. However, hypocortisolism may be a common phenomenon even in childhood (Gunnar and Vazquez, 2001).“ (p. 587)

‘Scandinavian Journal of Public Health’ –
Camilla Ihlebæk, Hege R. Eriksen, Holger Ursin; Department of Biological and Medical Psychology, University of Bergen, Norway, 2002:
‘Prevalence of subjective health complaints (SHC) in Norway’
http://sjp.sagepub.com/content/30/1/20.abstract

Hege R. Eriksen, from Wikipedia, the free encyclopedia:
http://en.wikipedia.org/wiki/Hege_R._Eriksen

 

Summary Critical Conclusion

Eriksen, Ursin and a small number of other Scandinavian researchers did a number of studies on subjective health complaints (or “unexplained symptoms”), including such in the musculo-skeletal, gastrointestinal, urogenital systems, and “pseudoneurological” complaints like fatigue, dizziness, tiredness, vertigo and headaches. They looked at diagnoses like chronic fatigue syndrome, burnout, stress, food intolerance, irritable bowel, myalgic encephalitis, fibromyalgia and a few others, which they called “fashionable” in at least one report. The phenomena of “sensitization” and of “cognitive activation theory of stress” (CATS) are raised as a possible causes for these conditions or disorders. The somatization of disorders was discussed, and the referral to psychologists was in some cases compared to a “breakdown in communication” between patient and doctor. The “perception of illness” may aggravate the condition was suggested in at least one report.

Analysis on perceived “helplessness” and “hopelessness” in patients to deal with stress are interesting, and it becomes clear, much more research is needed.

In summary, their analysis and reports raise more questions than they offer answers. It can hardly be the case that such subjective health complaints are merely expressions of “illness belief”, exaggerated perception, or the imaginations of patients, due to the absence of physical, organic or “rational” explanations. Rational causes are likely to exist that have not been found and diagnosed. Also is it of little value to make comparisons between for instance “common subjective complaints” like common pain, sleeping problems and short phases of depressed mood, and more serious musculoskeletal or psychiatric disorders, or psychological conditions.

 

Reports and information from and on G. Waddell, MD, as well as Kim Burton:

 

“CONCEPTS OF REHABILITATION FOR THE MANAGEMENT OF COMMON HEALTH PROBLEMS”, Gordon Waddell, A Kim Burton, 2004
“Commissioned by The Corporate Medical Group, Department for Work and Pensions, UK”
http://www.google.co.nz/url?sa=t&rct=j&q=waddell%20burton%202004&source=web&cd=5&cad=rja&ved=0CD8QFjAE&url=http%3A%2F%2Fwww.dwp.gov.uk%2Fdocs%2Fhwwb-concepts-of-rehabilitation.pdf&ei=Th3mUYL9E4r8iQfCjICoCg&usg=AFQjCNHscr0Zo6o3xY0r04iQ8WE2syu7Kw
“The authors are solely responsible for the scientific content and the views expressed, which do not represent the official views of the Department for Work and Pensions, HM Government or The Stationery Office”

“The need for a different approach
The traditional model of rehabilitation is inappropriate for the management of the common health problems that cause most long-term incapacity, because:

Severe medical conditions with objective evidence of disease, pathology, and permanent physical or mental impairments (e.g. blindness, severe or progressive neurological and systemic diseases, psychoses) now account for a minority of disability and incapacity benefits. Some three-quarters of people of working age with long-term incapacity have less severe health problems, the most common of which are mental health, musculoskeletal and cardio-respiratory conditions, which are referred to here as common health problems (that cause incapacity). These have been described as ‘subjective health complaints’ (Ursin 1997) to emphasise their symptomatic nature, as ‘medically unexplained symptoms’ (Page & Wessely 2003; Burton 2003) to emphasise the limited evidence of objective disease or impairment, or as ‘functional somatic syndromes’ (Wessely & Hotopf 1999; Barsky & Borus 1999) because they are ‘characterised more by symptoms and distress than by consistently demonstrable tissue abnormality’. Most important, while fully accepting that these problems may have a biological basis, long-term incapacity is not inevitable.”

“There is clearly no sharp boundary between ‘severe medical conditions’ and ‘common health problems’: rather, there is a spectrum with a variable balance between pathology and symptoms. There are obvious difficulties to defining ‘severe’ and the main messages of this review apply across the whole range of disabilities.”

‘..Indeed, in common health problems, psychological and psychosocial issues are often more important for incapacity than any underlying biological problem.”

“IS WORK GOOD FOR YOUR HEALTH AND WELL-BEING”, Gordon Waddell, CBE DSc MD FRCS, A Kim Burton, PhD DO EurErg, 2006
“The authors were commissioned by the Department for Work and Pensions to conduct this independent review of the scientific evidence.“
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214326/hwwb-is-work-good-for-you.pdf

“There are economic, social and moral arguments that work is the most effective way to improve the well-being of individuals, their families and their communities. There is also growing awareness that (long-term) worklessness is harmful to physical and mental health, so the corollary might be assumed – that work is beneficial for health. However, that does not necessarily follow.”

“• Various physical and psychosocial aspects of work can also be hazards and pose a risk to
health.“

“Unemployment: Conversely, there is a strong association between worklessness and poor health. This may be partly a health selection effect,but it is also to a large extent cause and effect.There is strong evidence that unemployment is generally harmful to health..”

“Work for sick and disabled people: There is a broad consensus across multiple disciplines, disability groups, employers, unions, insurers and all political parties, based on extensive clinical experience and on principles of fairness and social justice. When their health condition permits, sick and disabled people (particularly those with ‘common health problems’) should be encouraged and supported to remain in or to (re)-enter work as soon as possible because it:
• is therapeutic;
• helps to promote recovery and rehabilitation;
• leads to better health outcomes; ….”

“Provisos: Although the balance of the evidence is that work is generally good for health and well-being, for most people, there are three major provisos:

1. These findings are about average or group effects and should apply to most people to a greater or lesser extent; however, a minority of people may experience contrary health effects from work(lessness);
2. Beneficial health effects depend on the nature and quality of work (though there is insufficient evidence to define the physical and psychosocial characteristics of jobs and workplaces that are ‘good’ for health);
3. The social context must be taken into account, particularly social gradients in health and regional deprivation.“

“ORGANISATION OF THE EVIDENCE
The structure of this report follows that of the literature searching and the evidence retrieved (Box 1). The obvious and most accessible starting point was reviews of the adverse health effects of unemployment. However, most of that evidence actually compares unemployment with work, so it was logical to expand the search to include the health effects of work and of unemployment. The retrieved literature was mainly about young or middle working-age adults, so a further search was made for material on older workers. All of these reviews
considered the health impact of loss of employment, but provided little evidence on reemployment. A specific search was therefore made for individual longitudinal studies on the health impact of re-employment.”

 

Comments:
The summarised information at the beginning of that long report speaks for the contents of the remainder of the rather comprehensive document: It is a “research” summary full of insufficiently detailed data, allowing ambiguities, lack of clarity, contradictions and many qualifications of claims with virtual “provisos”! It is also based on very selectively gathered data from selected statistical records, like so much that has been compiled by Gordon Waddell, Kim Burton and especially Mansel Aylward.

Through the highly repetitive mention of the words “work” and “health” combined, it is clear, it is a document designed to send a message, rather than offer solid, convincing evidence. Also are many of the summarised “findings” worded in too uncertain terms.

 

“MODELS OF SICKNESS AND DISABILITY – APPLIED TO COMMON HEALTH PROBLEMS”
Gordon Waddell CBE DSC MD FRCS; Mansel Aylward CB MD FFPM FFOM FFPH FRCP;
Centre for Psychosocial and Disability Research, School of Medicine, Cardiff University, UK
http://awdpa.org/wp-content/uploads/2012/10/Models-of-Sickness-Disability-Waddell-and-Aylward-2010-2.pdf (© 2010 Gordon Waddell)
“This publication is based on Waddell G. Models of Disability (Royal Society of Medicine Press, 2002) and is a further development of ideas and issues presented in that text.”

 

Extracts: “The rights of Gordon Waddell and Mansel Aylward to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act, 1988”

“Summary …The aim of this publication is to improve the understanding of sickness and disability associated with common health problems – the mild/moderate mental health, musculoskeletal and cardiorespiratory symptoms that now account for about two-thirds of long-term sickness absence, incapacity benefits and ill-health retirement. This publication reviews the medical model, various social models and the role of personal and psychological factors. This leads logically to a biopsychosocial model that recognizes that biological, psychological and social factors, and the interactions between them, influence the course and outcome of any illness.”
“Box 1
Ill-health
Disease is objective, medically diagnosed, pathology
Impairment is significant, demonstrable, deviation or loss of body structure or function
Symptoms are bothersome bodily or mental sensations
Illness is the subjective feeling of being unwell
Disability is limitation of activities and restriction of participation
Sickness is a social status accorded to the ill person by society
Incapacity is inability to work because of sickness or disability”
(from numbered page 3)

“Table 2
Prevalence of common health problems in UK adults, from the Cardiff Health
Experiences Survey (Buck et al 2009)

Open questions about health
(without pre-labelling and using non-medicalized terminology)
Male Female
Musculoskeletal problems 11.7% 14.0%
Mental health problems 4.8% 8.7% Other problems 9.4% 15.2%

Inventory of common ‘symptoms’
Musculoskeletal 24.6% 34.0%
Mental health 18.1% 28.8%
Other 26.0% 42.7%

On specific questioning, 66.4% reported at least one (usually mild or moderate) symptom. In open response, 28% people reported ‘problem(s)’, but these were usually more severe.

When patients do seek healthcare for such symptoms, diagnosis is often non-specific
– that is, the symptoms are not assignable to a particular cause, condition or category (ODE 2005). Such diagnoses are often ‘nominal’, existing in name only, not real or actual (ODE 2005): they are simply labels, but the illusion of understanding can be misleading and cause iatrogenic harm.” (page 7)

“These people have what should be manageable health problems. Provided they are given proper advice and support, recovery is normally to be expected and long-term incapacity is not inevitable.” (page 8)

 

After presenting this and some other explanatory information Waddell and Aylward continue with comparing the traditional “medical model” (meaning the “bio medical model”) with the “social model of disability” and an “economic model” as a separate kind of the “social model”. The social model is questioned – in part due to geographic variations in disability and incapacity claims, but only limited explanations are given. Re the “economic model” the authors argue that the benefit system gives sick and disabled “incentives” to claim them, which has a negative economic impact. But that is qualified by findings in Scandinavia. Even a “cultural model” is discussed.

They discus “personal and psychological factors”, and finally (“unsurprisingly”) come back to their already upheld conclusion, that the “bio psycho-social model” is the best and most appropriate one to follow and use. Yet in this publication Waddell and Aylward are defending and recommending that latter model in a far more cautious manner than in earlier ones, realising there are also serious limitations with it, and a lack of empirical evidence, how it has been applied successfully (in individual cases). It must be presumed that the negative experiences gathered from the mishandled and detrimental welfare reform approaches in the UK have led to this realisation.

 

Further interesting extracts from their report are:

“The medical model was originally developed for physical disease and has always been less comfortable with mental illness. Although biological (e.g. genetic and biochemical) factors play an important role in mental illness, a ‘disease model’ that ignores psycho- logical and socio-cultural factors is inadequate for mental illness (Kiesler 1999).” (page 11)

“The medical model remains valid for the investigation and treatment of severe medical conditions – although, even here, psychosocial factors influence response to bio- logical treatment (e.g. the placebo response) and management must be tempered with due allowance for the individual patient and their circumstances (which immediately introduces a biopsychological approach to management).” (page 12)

“Limitations of the social model of disability –
Perhaps naturally in view of its origins, the social model of disability:
• applies best to people with severe medical conditions and permanent physical or mental impairment – and these are the examples used in the welfare debate, even by proponents of the social model
• downplays understanding of the individual’s health condition, and takes symptoms and disability at face value…”

“The social model is generally used in the context of ‘disability’, but may be applicable to sickness, particularly with mental health problems. Common mental health problems often involve problems with social relationships, at work and elsewhere.” (page 14)

Quote: “Clinically, the economic model 16 raises issues of exaggeration and malingering (Schultz et al 2000, Halligan et al 2003, Waddell 2004).”

“The fundamental limitation of the economic model is that human behaviour is not entirely self-interested, utilitarian or rational (Bane + Ellwood 1994, Piachaud 1997)”. (page 18)

“Culture may vary in different societies, in different subcultures of a society, and in any society over time. For example, there are marked differences in pain experience, expression and behaviour in different cultural and ethnic groups. The ‘welfare culture’ is the set of ideas, values and basic principles that surround the benefits system and underpin welfare policy, the institutions of the welfare state, and the thinking, feelings and consequent behaviour of the various stakeholders in a given society (developed from Chamberlayne et al 1999, Pfau-Effinger 2005).” (page 19)

“Psychologists study how people think and feel about their health condition, and how that affects their illness behaviour (Mechanic 1968). There is extensive clinical evidence that psychological factors influence the course and outcome of human illness…” (p. 20)

“Box 4
Psychological factors that influence sickness and disability
The personal, subjective experience of illness and disability may diverge from objective measures ..
Assumptions, perceptions and expectations (by the individual, family, health professionals and employers, which may interact and reinforce each other)…
Uncertainty, anxiety and fear-avoidance
Depression…” (page 20)

“Human beings are driven by both self-interest and altruism,19 but self-interest is generally dominant.” (page 21)

“The benefit system must then take account of moral hazard.21 The structures and (dis)incentives of the benefit system influence claimant behaviour, and the present structure sometimes creates ‘welfare dependency’.” (page 22)

“The biopsychosocial model recognizes that biological, psychological and social factors, and the interactions between them, can influence the course and outcome of any illness. Human beings are biopsychosocial – an integrated whole of body and mind in a social being – so a comprehensive model of human illness must be biopsychosocial.” (page 22)

“The International Classification of Functioning, Disability and Health (ICF) (WHO 2001) tried to reconcile the medical and social models of disability and to balance the individual and social perspectives, even if it did not fully satisfy either side (Masala + Petretto 2008).”

“However, it is still very much a model of disability rather than sickness, and applies best to people with impairments. It fails to consider adequately the personal/psychological dimension or the interactions between the three dimensions. It is primarily a taxonomy rather than a clinical or conceptual model.” (page 22-23)

“The bio-psycho-social may be regarded as ‘dimensions’, integrated elements or perspectives on the whole entity of illness, which cannot be isolated from each other.” (page 24)

“Caveats to the biopsychosocial model 25
The biopsychosocial model is not an aetiological model of disease, and arguments about whether the cause of a particular disease is biological or psychosocial obscure the main issue26 (Kiesler 1999, White 2005). First, it is a process rather than a causal model. Second, it is a model of illness, not of disease. Third, most illness (and most disease) is multicausal.“ (page 26)

“Virtually all sick or disabled people have a ‘genuine’ health problem, and most also have some psychosocial issues. Inability to diagnose pathology does not mean that the problem is psychosocial, any more than the identification of psychosocial factors excludes a genuine health problem. Assuming that the problem is ‘psychosocial’ may lead to missing treatable biology, while failure to recognize psychosocial issues can lead to delayed recovery. Furthermore, psychosocial factors are not a ‘diagnosis’ in themselves.
‘subjective health complaints’ or ‘symptom-defined illness’” (p. 27)

“The major limitation of the biopsychosocial approach has been the lack of simple clinical tools to assess psychosocial issues and simple, practical interventions to address them (Kendall et al 1997, Borkan et al 2002, Kendall + Burton 2009).”

„After more than 30 years, and despite agreement on the importance of psychosocial factors, there is relatively little empirical evidence for effective biopsychosocial interventions at an individual level.” (p. 28)

 

Under the heading ‘The biopsychosocial model applied to common health problems’ Waddell and Aylward again adopt a more positive and assertive stand to recommend the “bio psycho-social model” for “common health problems”.

“The biopsychosocial model provides both a philosophy of clinical management and a set of practical clinical tools (Schultz et al 2000, Borrell-Carrio et al 2004). Philosophically, it provides better understanding of illness, sickness and disability. At a practical level, it provides a framework for better clinical assessment, management and rehabilitation.” (p. 39)

Then it is back to the message that work is not necessarily the cause for ill-health, and that the message “Work is generally good for health and well-being” deserves to be upheld and strongly emphasised.

“Modern clinical management of common health problems emphasizes restoring function as the best means of achieving lasting relief (Waddell + Burton 2004). In the biopsychosocial approach, relief of symptoms and restoration of function are closely intertwined, run concurrently and are interdependent.” (page 31)

Going back to arguments presented in earlier reports, both authors push for workplace management, rehabilitation, symptoms management and the return to – or maintenance of work. Early intervention is proposed by referring to already previously used statistics on welfare figures and the likes, on work absence due to disability.

“The crux of the matter is striking the right balance between healthcare and the focus on work, and all working together. That is a biopsychosocial approach.” (p. 35)

Both raise the increase in complaints of mental illness cases, while also referring to the DSM-VR and ICD-10 and diagnostic practices. They state that the main problems are mild to moderate mental illness cases, and they again blur the complex picture of mental illness by bringing in the concept of “common mental health problems”. Mental health problems are “biopsychosocial” disorders, is their conclusion. Sleep problems, stress and (common) depression are mentioned again, and they correctly confirm that “stress” is not listed in DSM-IV and ICD-10.

“Assessment of mental health problems is based largely on self-report of subjective symptoms, with all the conscious or psychological influences thereon. Diagnosis depends on (a) confirmation by an external observer (e.g. the GP), which is again subjective and further depends on the observer’s conscious or unconscious bias, and/or (b) comparison with some kind of established pattern (e.g. DSM-IVR or ICD-10). Thus, certification of mental illness and (in)capacity for work unavoidably raises issues of validity and reliability, with difficulties for any social security control mechanisms.” (p. 39)

Treatment options are discussed (medical, psychotherapy, psychosomatic and condition management), but it is admitted that some, if not most, are little effective to achieve much improved ability to work:

“Overall, healthcare for common mental health problems improves clinical outcomes, but there is a lack of evidence that it improves work outcomes. Deteriorating trends (Figure 10) suggest that this is not just a lack of evidence but also a lack of effective interventions for work outcomes.” (p. 39)

Hence better diagnostic assessment practices and more research are recommended.

In the end social support is mentioned, questions about “rights” and “obligations” are raised, which leads also again to the aim for “support into work”. Also do the authors discuss the “welfare debate”, and they accept “that a more comprehensive biopsychosocial model is essential for full understanding of the relationship between common health problems, sickness and disability, and incapacity for work”.

Waddell and Aylward demand:
“Radical policy solutions to the problem must address both the incentives and control mechanisms of the social security system and provide the resources and support required to overcome the individual, psychosocial and system obstacles to return to work.
It is therefore right and proper to address the (dis)incentives and control mechanisms of disability and incapacity benefits. And it is entirely moral to balance the needs of sick and disabled people with those of society and the taxpayer, and rights with responsibilities.” (p. 45)

A “culture change” is finally asked for, and in their “conclusion” both authors state:
“At the time of writing, the UK is entering a major economic recession, which may change everything. This should not be an excuse to delay addressing sickness and disability, but an additional reason to invest now.”

Summarised own critical conclusion:
This is yet another publication by Waddell and Aylward – defending, promoting and perpetually propagating the “bio psycho-social model” for diagnosis, rehabilitation and treatment, and presenting work and employment as beneficial for the health of sick, disabled and incapacitated. It is in the end another report (although more qualified) that is once again “blurring the lines” by questioning the seriousness of so-called “common health problems”, with the intention of readying the sick and disabled – for the open attack by state welfare agencies – or insurance companies – to disentitle beneficiaries and claimants from so far received support.

 

“VOCATIONAL REHABILITATION WHAT WORKS, FOR WHOM, AND WHEN?” Gordon Waddell, A Kim Burton, Nicholas AS Kendall,
http://www.dwp.gov.uk/docs/hwwb-vocational-rehabilitation.pdf

“The authors were commissioned by the Vocational Rehabilitation Task Group (a group of stakeholders representing the UK Government, employers, unions and insurers) in association with the Industrial Injuries Advisory Council (IIAC), to conduct this independent review of the scientific evidence”

“Generic findings:
This review has demonstrated that there is a strong scientific evidence base for many aspects of vocational rehabilitation. There is a good business case for vocational rehabilitation, and more evidence on cost-benefits than for many health and social policy areas.

Common health problems should get high priority, because they account for about two-thirds of long-term sickness absence and incapacity benefits, and much of this should be preventable. Vocational rehabilitation principles and interventions are fundamentally the same for work-related and other comparable health conditions, irrespective of whether they are classified as injury or disease. Return-to-work should be one of the key outcome measures.”

“Condition specific findings:
There is strong evidence on effective vocational rehabilitation interventions for musculoskeletal conditions. For many years the strongest evidence was on low back pain, but more recent evidence shows that the same principles apply to most people with most common musculoskeletal disorders.

Various medical and psychological treatments for anxiety and depression can improve symptoms and quality of life, but there is limited evidence that they improve work outcomes. There is a lack of scientific clarity about ‘stress’, and little or no evidence on effective interventions for work outcomes. There is an urgent need to improve vocational rehabilitation interventions for mental health problems. Promising approaches include healthcare which incorporates a focus on return to work, workplaces that are accommodating and non-discriminating, and early intervention to support workers to stay in work and so prevent long-term sickness.”

This report delivers more of the same, the attempted re-interpretation of what illness means compared to disease, what incapacity means for different group of disabled, sick and injured, and suggesting the result or effect is the issue, rather than the cause.

Nobody questions the need for rehabilitation where it is possible, appropriate and can work, but is it not the fact that people end up on sickness and disability benefits due to having serious enough conditions or disorders, so that this makes it difficult or impossible for them to perform ordinary work? Of course working people are less likely to end up as long term ill, incapacitated and unemployed, for the very fact that they are fit enough to still cope.

It is another attempt to blur the lines to enable insurers and the state to push more people with some forms of incapacity back into jobs, to save costs, by applying the BPS model.

“Nonorganic Physical Signs in Low-Back Pain”
G. Waddell, J.A. McCulloch, E. Kummel and R. M. Venner; 1980
http://medicine.missouri.edu/ortho/secure/docs/s-spine/Waddell%201980.pdf

Waddell (et al.) attempting to distinguish between physical signs and non-organic, psychological signs when diagnosing back pain. Overreaction is mentioned as a frequent issue. A need for psychosocial assessment is expressed.

“The Use Of Waddell Tests In Workers Compensation Claims”, By Jon L. Gelman and Myron E. Brazin, M.D.
Jon L. Gelman, who practices in Wayne, NJ, wrote Workers’ Compensation Law (West Group 2003), is a contributing member/author of the advisory board of Modern Workers Compensation (West Group 2001) & is a former national Vice-President of the Workplace Injury Litigation Group. Jon L. Gelman, 1450 Valley Road, 1st Floor, P.O. Box 934, Wayne, NJ
http://www.chiro.org/LINKS/FULL/Wadell_Tests.shtml

“In reviewing numerous medical records, including orthopedic and physical therapy reports, it is common to find mention of “The Waddell Test” and extensive reporting of examination findings featuring the results of its component maneuvers.”

In permanent disability from workplace injury, physical and mental factors must be considered. It was the intent of Dr. Gordon Waddell (1) and his colleagues to distinguish and standardize “nonorganic” physical signs that sometimes accompany low back pain. Their larger goal was to help identify patients “who require more detailed psychological assessment”.

“The authors rejected the notion that their testing identifies malingerers or exaggerators.”

“The authors recognize the fact that a finding of “overreaction” may be biased by the observer.”

Jon L. Gelman gives advice on legal cross examination of “Waddell Test” cases, as there is sufficient evidence the test is unreliable.

Gordon Waddell – Wikipedia entry:
http://en.wikipedia.org/wiki/Waddell%27s_signs

“Criticism
Although Waddell’s signs can detect a non-organic component to pain, they do not exclude an organic cause. Clinically significant Waddell scores are considered indicative only of symptom magnification or pain behavior, and have been misused in medical and medico-legal contexts. Waddell’s signs are not considered a de facto indicator of deception for the purpose of financial gain.”

Clearly Waddell’s assessment methods and theories were proved to be unreliable!

 

Summary Critical Conclusion

Like Mansel Aylward himself, Waddell and Burton tend to use the “bio psycho-social model” in a manner, where illness is considered not to be a disease, as according to their interpretation it cannot be based on organic or physical evidence. They attribute illness and certain resulting illness behaviour, and any associated incapacity rather to “psychosocial” causes. In questioning the seriousness of illness and incapacity, they stress the view that most illnesses are “common health problems” that may be of musculoskeletal, cardio-respiratory or psychological types.

They follow H. E. Eriksen in believing that many of such illnesses are “subjective health complaints” and thus do not lead to severe or permanent incapacity. Hence occupational rehabilitation should be considered and applied more for those suffering from such health conditions, with the aim of returning them to some form of work.

They do – as Aylward – go as far as describing work as “therapeutic” and “healthy”, but do mention disclaimers and qualifying comments to avoid claiming that this approach would be appropriate and helpful for all affected in any work scenario.

The suggested approaches are again an exercise of further blurring the already hard to specify boundaries between serious physical illness and “common” physical ailments (or complaints), same as between mental disorders and perhaps rather “common” psychological conditions, that can be treated.

Waddell and Burton worked for the DWP, and Waddell works also at the ‘Centre for Psychosocial and Disability Research’, Cardiff, hence true independence is an issue.

 

Reports and information on George Libman Engel (1913 to 1999), US psychiatrist, University of Rochester Medical Center, Rochester, New York:

George Libman Engel (December 10, 1913 – November 26, 1999), Wikipedia:
http://en.wikipedia.org/wiki/George_L._Engel

“By the mid-1950s, he was considered as one of the major figures in psychosomatic studies. He was prominent in the American Psychosomatic Society. He also edited its journal, Psychosomatic medicine and began publishing numerous books and articles on the relation of emotion and disease and on the incorporation of these ideas into medical training and clinical practice. Under his direction, the program at the university became a leading center in the development of psychosomatic theory and training. His ideas came to be termed as the biopsychosocial model.[3]

The fundamental assumption of the biopsychosocial model is that health and illness are consequences of the interplay of biological, psychological, and social factors. This concept is particularly important in health psychology.[4] This model was theorised by Engel at Rochester and putatively discussed in a 1977 article in the journal Science.”

Engel and his “bio psycho-social model”:
http://en.wikipedia.org/wiki/Biopsychosocial_model

“Model description and application in medicine
…It is important to note that the biopsychosocial model does not provide a straightforward, testable model to explain the interactions or causal influences (that is, amount of variance accounted for) by each of the components (biological, psychological, or social). Rather, the model has been a general framework to guide theoretical and empirical exploration, which has amassed a great deal of research since Engel’s 1977 article. One of the areas that has been greatly influenced is the formulation and testing of social-cognitive models of health behavior over the past 30 years.”

“Criticism
Some psychiatrists see the BPS model as flawed, in either formulation or application. Epstein and colleagues describe six conflicting interpretations of what the model might be, and proposes that “…habits of mind may be the missing link between a biopsychosocial intent and clinical reality.”[22] Psychiatrist Hamid Tavakoli argues that the BPS model should be avoided because it unintentionally promotes an artificial distinction between biology and psychology, and merely causes confusion in psychiatric assessments and training programs, and that ultimately it has not helped the cause of trying to destigmatize mental health.[23]

Sociologist David Pilgrim suggests that a necessary pragmatism and a form of “mutual tolerance” (Goldie, 1977) has forced a co-existence of perspectives, rather than a genuine “theoretical integration as a shared BPS orthodoxy.”[24] Pilgrim goes on to state that despite “scientific and ethical virtues,” the BPS model “…has not been properly realised. It seems to have been pushed into the shadows by a return to medicine and the re-ascendancy of a biomedical model.”[25]

However, a vocal philosophical critic of the BPS model, psychiatrist Niall McLaren,[26] writes:

“Since the collapse of the 19th century models (psychoanalysis, biologism and behaviourism), psychiatrists have been in search of a model that integrates the psyche and the soma. So keen has been their search that they embraced the so-called ‘biopsychosocial model’ without ever bothering to check its details. If, at any time over the last three decades, they had done so, they would have found it had none. This would have forced them into the embarrassing position of having to acknowledge that modern psychiatry is operating in a theoretical vacuum.”[27]

The rationale for this theoretical vacuum is outlined in his 1998 paper[28] and more recently in his books, most notably Humanizing Psychiatrists.[29] Simply put, the purpose of a scientific model is to see if a scientific theory works and to actualize its logical consequences. In this sense, models are real and their material consequences can be measured, whereas theories are ideas and can no more be measured than daydreams. Model-building separates theories with a future from those that always remain dreams. An example of a true scientific model is longer necked giraffes reach more food, survive at higher rates, and pass on this longer neck trait to their progeny. This is a model (natural selection) of the theory of evolution. Therefore, from an epistemological stance there can be no model of mental disorder without first establishing a theory of the mind.”

***See also the information under ‘Bio Psycho-Social Model’ further above***

 

Reports from and information about Dr Simon Wessely, UK:

Sir Simon Charles Wessely (born Sheffield, 1956), psychiatrist, Wikipedia entry:
http://en.wikipedia.org/wiki/Simon_Wessely

“Wessely’s main research interests lie in the “grey areas” between medicine and psychiatry, clinical epidemiology and military health.” “He has published most widely on aspects of chronic fatigue syndrome, including its aetiology, history, psychology, immunology, sociology, epidemiology and treatment.”

“Wessely and his colleagues, using randomised controlled trials and follow-up studies,[13] developed a rehabilitation strategy for patients that involved cognitive behavioral and graded exercise therapy, that is effective in reducing symptoms of CFS (a condition that otherwise lacks a cure or unequivocally successful treatment) in ambulant (non-severely affected) patients.”

Although Wessely has studied physical markers and allows the possibility of a biological basis to CFS, he is not confident of such a basis and remains sceptical.[30] He has also suggested that campaigners are motivated “not so much by a dispassionate thirst for knowledge but more by an overwhelming desire to get rid of the psychiatrists” from the area of chronic fatigue syndrome, despite having himself published research which concluded that “the stereotype of CFS sufferers as perfectionists with negative attitudes toward psychiatry was not supported”.[31][32] When asked about severely affected bed-ridden patients, Wessely said “in that kind of disability, psychological factors are important and I don’t care how unpopular that statement makes me.”

“From Shell Shock to PTSD: A story in three acts”, by Simon Wessely, Director –
King’s Centre for Military Health Research, Institute for Psychiatry:
http://www.slideshare.net/WellcomeCollection/from-shell-shock-to-ptsd-a-story-in-three-acts-simon-wessely
(an audio presentation from ‘slide.share’

“Chronic fatigue syndrome researchers face death threats from militants –
Scientists are subjected to a campaign of abuse and violence”; Robin McKie, The Observer, published in ‘The Guardian’, 21 August 2011
http://www.guardian.co.uk/society/2011/aug/21/chronic-fatigue-syndrome-myalgic-encephalomyelitis

 

Summary Conclusion:

Engel theorised the “bio psycho-social model” as a more humane, inclusive approach to apply medicine, trying to create a better model to the traditional bio-medical model, which he considered to be too “reductionist”. He included biological, psychological and social factors, as they all play a role in the human functioning in the context of disease and illness.

It appears that others adopting and following his original model have re-interpreted it, while in at least some cases relying on subjective understanding, judgment or priorities. This has led to variations of the model being applied nowadays. This may not surprise given the complexity of factors that come into play with such a model.

Hence medical researchers and experts like Mansel Aylward, Gordon Waddell and others have used it in ways that the psychological and social aspects have been given more emphasis, to explain illness where diagnosis using traditional bio-medical methods has been difficult. It appears that such a shift threatens to lead to mistakes that have previously been made by strong adherents to the bio-medical model. With the lack of clear, organic, physical signs, they may too easily and conveniently determine that sick and ill persons are not really suffering from serious health issues, and that impairments or incapacities are not to be taken too seriously either.

Wessely has added his own interpretations to certain diseases or illnesses, which have led to further controversy and problems with the “bio psycho-social model”.

It must be concluded that this model has created a lot of uncertainties and can only serve as one of many approaches to diagnose and treat sick and incapacitated persons. It should only be applied with great caution, with attention to all available details of information, and in a truly thorough, objective and balanced manner.

 

PART 4:
‘THE ALL WORK TEST’, ‘WORK CAPABILITY ASSESSMENT’ (WCA) AND ‘ESA’ AS USED IN THE UK:

 

The original ‘All Work Test’ that was developed with the assistance of Mansel Aylward in the 1990s in the UK: ‘ALL WORK TEST’ DESCRIPTORS’
http://www.square-sun.net/bamsawt/descriptors.htm
“From 6th January 1997 Regulations came into force amending the activities and descriptors used to award points in the all work test, to establish whether someone is treated as incapable of work for benefit purposes.”

It must be noted, that it is primarily focused on physical impairments and incapacity, and neglects psychiatric and psychological health problems.

The ‘WCA’ or ‘Work Capability Assessment’ – Department for Work and Pensions
http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@disabled/documents/digitalasset/dg_177366.pdf
A guide to Employment and Support Allowance – The Work Capability Assessment
(ESA214, January 2013)

This is the “improved” or updated version of the ‘WCA’ used by ATOS Healthcare as commissioned assessors for the DWP in the UK – in or since January 2013. See again the very tight criteria set for physical, mental and psychiatric diseases and illnesses, for disabilities resulting in impairment or incapacity. The assessment still gives totally insufficient considerations to incapacities suffered due to psychiatric and psychological conditions. Persons must more or less be close to being intellectually handicapped to qualify, apart from having physical disabilities of severe types.

Training + Development Revised WCA Handbook ESA (Amendment) Regulations 2011 and 2012, DWP, Version: 6 Final 19 March 2013
http://www.dwp.gov.uk/docs/wca-handbook.pdf

“This training has been produced as part of a training programme for Health Care Professionals approved or appointed by the Department for Work and Pensions Chief Medical Adviser to carry out benefit assessment work.”

The Handbook for medical and health professionals conducting assessments, with incorporated changes and “improvements”.

Work Capability Assessment (WCA) Factsheet, ‘Rethink Mental Illness’, March 2011
http://www.pods-online.org.uk/work_capability_assessment_(wca)_factsheet.pdf

UPDATE, ‘Disability Information Scotland’, DWP Medicals –Work Capability Assessments, 2012
http://www.update.org.uk/upfiles/DWP%20medicals%20-%20Work%20Capability%20Assessment.pdf

Further information on WCA and ESA:

Benefits + credits, ‘Employment and Support Allowance’ (ESA), Government UK:
https://www.gov.uk/employment-support-allowance/overview

Atos Healthcare
Employment and Support Allowance (ESA) and Work Capability Assessments
http://www.atoshealthcare.com/claimants/types_of_assessment_esa_wca

‘Dwp examination’, ’44,000 G.P.s call for ATOS WCA to be scrapped’, 22 May 2012:
http://dwpexamination.wordpress.com/44000-g-p-s-call-for-atos-wca-to-be-csrapped/

‘The Guardian’, Amelia Gentleman, 23 May 2012
“GPs call for work capability assessment to be scrapped”
http://www.guardian.co.uk/society/2012/may/23/gps-work-capability-assessment-scrapped
“Doctors say method of determining who is eligible for sickness benefits should be replaced with more ‘rigorous and safe system’”

‘Benefits and Work, Guides you can trust’ –
‘DWP ordered to improve mental health WCA’, 01 June 2013:
http://www.benefitsandwork.co.uk/news/2284-dwp-ordered-to-improve-mental-health-wca

“A three judge panel of the Upper Tribunal has ruled that the Work Capability Assessment substantially disadvantages claimants with mental health problems, because the system is designed to deal with a high volume of claimants who can accurately report the way in which their disability affects their fitness to work.

The court ordered that the DWP has to take reasonable steps to address the disadvantage to people with mental health problems, but rather than specifying what those reasonable steps should be, ordered the DWP to carry out an investigation and then return to court to explain what steps they propose to take.”

The table below shows the schedule of activities, descriptors and points following the changes.

‘Rehab News’, ‘Government tells employers they can overrule GP fit notes’:
13 May 2013: http://www.rehabwindow.net/Display.aspx?ID=1826
Up to date news: http://www.rehabwindow.net/List.aspx?type=News

 

PART 5:
‘UNUM’ AND ‘UNUM LIFE INSURANCE COMPANY OF AMERICA’:

 

‘Unum’, formerly known as ‘Unum Provident’ is one of the world’s largest disability insurers, based in the US, but also having been doing business in the UK for some time. ‘UnumProvident’ is known to have advised certain UK governments on health and disability matters, including suggested welfare reforms. It also was involved in establishing and funding the ‘Unum Research Centre for Psychosocial and Disability Research’ at Cardiff University in Wales, UK, at which Mansel Aylward took over directorship and a senior, active role.

Extracts from Wikipedia – see also this link: http://en.wikipedia.org/wiki/Unum

“Unum is a Chattanooga, Tennessee-based insurance company previously named UnumProvident, which was formed from the merger of two competing insurance companies, Unum of Portland, Maine, and Provident Life and Accident Insurance Company of Chattanooga. It is currently the largest disability insurance company worldwide. Unum provides employee benefits including disability insurance, critical illness insurance and life insurance.”

“Controversy

Unum became the focus of massive negative media attention in 2002, after several plaintiff’s attorneys who had sued the company went to national television outlets claiming that the company had quotas for closing claims. CBS’s 60 Minutes aired a very devastating article about Unum’s alleged abuses. Among their proof was a notorious “Hungry Vulture Award” offering employee rewards to close claims. Due to its admitted unfair business practices, investigations, and fines, Unum was called an “Outlaw Company” by the former California Insurance Commissioner, John Garamendi[4] (who later became Lieutenant Governor). Unum attempted to counter the accusations by noting that “only 2% of the policyholders who filed a claim with the company last year [2001] were found not to be disabled, an amount consistent with prior experience,” and that court judgments in the prior year were in the company’s favor 75% of the time, however no attempt was made to clarify the short term vs. long term statistics.[5]”

“Advising the United Kingdom government on claims since 1994, Unum has been involved with the UK’s controversial Welfare Reform Bill.[7][8] Unum was investigated by the BBC in England[9] and were described by critics as a ‘rogue firm‘.[10][verification needed] In July 2010, Susan Ring, the CEO of Unum UK left her post and was replaced by Jack McGarry from Unum US, who was replaced in 2012 due to poor performance of the UK subsidiary.”

Further online information:

‘Unum’: Case Management
Vocational Rehabilitation Case Management Service
http://www.unumworkmatters.co.uk/case-management.html

Vocational Assessments – Open Door
http://www.unumworkmatters.co.uk/vocational-assessments-open-door.html

Vocational Rehabilitation Case Management Service
http://online.positiveimagesuk.com/unum/images/UP1661.pdf

UK Parliament, Publications and Records –
‘Select Committee on Work and Pensions’ – Minutes of Evidence
Memorandum submitted by UnumProvident (EDP 03), 13 December 2002
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmworpen/401/3021203.htm
(evidence that UnumProvident had submitted advice to the DWP on welfare reform)

Extracted text:
“II. Do the high numbers of people on incapacity benefit (IB) represent hidden unemployment?
5. It is UnumProvident’s contention, and its commercial experience, that acquiring a disability does not make one incapable of work. In our experience, most disabled people are capable of some work, would like to work and crucially, have an expectation that they will return to work in some capacity.”

“IV. The role of the Private Sector
11. UnumProvident firmly believes that there is a significant role for the private sector to play in helping to return disabled people to work. As the UK’s leading provider of income protection insurance, UnumProvident is particularly well-placed to share with the Committee examples of projects and initiatives that might be of assistance to the Government. Like the Government, UnumProvident:
— insures people against the risk of not being able to work through acquiring a disability; and
— assesses all claims made, paying all valid ones.”

“V. Tax Credit and Benefit Systems
19. It is our belief that the current tax and benefits system is overly complex, can provide strong disincentives for disabled people to look for work, and is in need of radical reform. UnumProvident put forward a blueprint for welfare reform in its paper “Diversity in Employment”. In brief, and as outlined at paragraph 8, our proposal is that those disabled people capable of some work should be moved from IB to a form of JSA. Here they would be properly supported in their search for and transition into work.”

‘THE GROUP ON SCIENTIFIC RESEARCH INTOMYALGIC ENCEPHALOMYELITIS’ (THE GIBSON PARLIAMENTARY INQUIRY)
“CONCERNS ABOUT A COMMERCIAL CONFLICT OF INTEREST UNDERLYING THE DWP HANDBOOK ENTRY ON MYALGIC ENCEPHALOMYELITIS / CHRONIC FATIGUE SYNDROME”
Professor Malcolm Hooper; Eileen Marshall; Margaret Williams; December 2005
http://www.meactionuk.org.uk/HOOPER_CONCERNS_ABOUT_A_COMMERCIAL_CONFLICT_OF_INTEREST.htm

From: “Summary of Concerns”
“(v) the psychiatrists advising the DWP who advocate this strategy have an undeclared financial conflict of interest: many are medical advisers to insurance companies”

“…in addition, Professor Simon Wessely is involved with PRISMA, a multi-national healthcare company working with insurance companies to arrange “rehabilitation” programmes for those with ME/CFS.”

“Senior Psychiatrists collude with Medical Insurers to classify ME/CFS as a psychiatric disorder

…Wessely School psychiatrists are heavily involved with UNUM and with the medical insurance industry in general; insurance companies in addition to UNUM with which they are known to be directly involved include Swiss Life, Canada Life, Norwich Union, Allied Dunbar, Sun Alliance, Skandia, Zurich Life, and Permanent Insurance, and as re-insurers, the massive Swiss Re (whose building in London has been dubbed the “gherkin”).”

“The Arrival of UNUMProvident into the UK Benefits System

Such official recognition notwithstanding, after the commercial interests of the disability insurance industry and its Wessely School ‘medical advisers’ became instrumental in the UK benefits system, the situation for those with ME/CFS took a serious turn for the worse.

Dr Peter Dewis from the DWP / DLA Advisory Board (who, together with Professor Mansel Aylward authored the Disability Handbook and is now Chief Medical Officer at UNUMProvident – see below) confirmed that before Attendance Allowance became the Disabled Living Allowance (DLA), decisions on eligibility for State sickness and disability benefits were made by doctors (hence the “Handbook for Delegated Medical Practitioners”), but since the advent of DLA, such decisions are now made by non-medical personnel, and the “Disability Handbook” is a guide for these non-medical decision-makers.”

“Crucial to the new UK disability rules were tougher medical tests.”

“There would seem to be prima facie evidence that during his time at the DWP, Aylward was a veritable Trojan horse into the DWP for both the Wessely School and UNUM.”

“CONCLUSION
The Government’s goal of reforming the State benefits system is well-known: the intention to force cognitive behavioural therapy on those seeking sick notes was highlighted in an article on Sunday 20th November 2005 in The Observer, (“Therapy for those seeking sicknotes”) in which Gaby Hinsliff, the political editor, wrote:

“Margaret Hodge, the Welfare Minister, wants to use so-called cognitive behaviour therapy – a fashionable ‘talking cure’ used to change habits – to encourage people to return to work. (This) would be part of a ‘carrot and stick’ approach, under which people judged capable of working could have their benefits docked unless they take steps towards employment. Hodge said it was ‘not unreasonable’ to require something in return for benefits”.”

“E pluribus Unum”, Jonathan Rutherford, The Guardian, 17 March 2008:
http://www.guardian.co.uk/commentisfree/2008/mar/17/epluribusunum
“James Purnell’s reforms of incapacity benefit are inspired by a US company with vested interests and a murky record. Now, that’s really sick”

DNS – Disability News Service, 02 Jan. 2012:
“Politicians and DWP combine to block answers on Unum links”
http://disabilitynewsservice.com/2012/01/politicians-and-dwp-combine-to-block-answers-on-unum-links/

Disabled Go News Blog
‘Government silent over adviser’s Unum admission’; 07 Feb. 2012
http://www.disabledgo.com/blog/2012/02/government-silent-over-advisers-unum-admission/

““With their mass marketing on commercial TV, Unum continues to benefit from the welfare reform measures that they helped to influence and it is totally unacceptable that any government adviser should fail to declare an interest with this diabolical corporate giant.”

The DWP has refused to comment on Perkins’ failure to register her Unum work as a potential conflict of interests with her Equality 2025 role.

DNS revealed evidence last year that strongly suggested that Unum has attempted to influence incapacity benefit reform over the last decade, particularly under the Labour government.

Unum has denied doing so and that it stands to gain from the reforms, even though it launched a major media campaign last year just as the coalition began a three-year programme to reassess about 1.5 million existing IB claimants through the new, stricter test, the WCA.”

DNS – Disability News Service, 15 Feb. 2013: “Unum bragged about ‘driving government thinking’ on incapacity benefit reform”:
http://disabilitynewsservice.com/2013/02/unum-bragged-about-driving-government-thinking-on-incapacity-benefit-reform/

“An insurance company set to make huge financial gains from incapacity benefit (IB) reform bragged about “driving” the government towards those reforms, evidence obtained by Disability News Service (DNS) has revealed.”

“Unum Group Shares Tumble As Lawsuits Continue to Pile Up…”
http://www.lawyersandsettlements.com/articles/first_unum/unum-insurance-disability-claims-18-17071.html?utm_expid=3607522-2.QRdCdW42SWGLZa0nRc6K3w.0&utm_referrer=http%3A%2F%2Fwww.lawyersandsettlements.com%2Fsearch.html%3Fkeywords%3Dunum%2Bgroup%2Bshares#.UeaBt-V9XmE

“Unum Group, which has operations in the US, UK and other countries, is a provider of disability insurance, group life insurance and other benefits for employees in various industries. The tough sledding for the company’s shares comes amid a number of accusations against the company, most often involving plaintiffs claiming they did not receive the benefits they were entitled to.”
(‘LawyersandSettlements.com’, 04 Oct. 2011)

“Appeals Court Rules Against Disability Insurer” ‘LifeHealthPRO’, 14 Sept. 2012
http://www.lifehealthpro.com/2012/09/14/appeals-court-rules-against-disability-insurer

“In a split decision, the panel majority found that a U.S. District Court judge should have paid more attention to how much the fact that the plan administrator, Unum Life Insurance Company of America, was also the plan insurer should have affected the court’s analysis of whether Unum Life might have abused its discretion to interpret the group LTD policy.

Circuit Judge Marsha Berzon and Senior 3rd Circuit Judge Robert Cowen ruled in favor of Mark Stephan, the plaintiff in the case, Mark Stephan vs. Unum Life Insurance Company of America (Number 10-16840).”

Sundry information on both ‘Atos Healthcare’ and ‘Unum’ – from DPAC website:
“Round up of DWP Atos Business from whywaitforever”; 18 Dec. 2011
http://dpac.uk.net/tag/unum-provident/

 

PART 6:
PROFESSOR MANSEL AYLWARD AND EFFORTS TO SPREAD HIS BIO PSYCHO SOCIAL MODEL AND APPROACH DOWN-UNDER:

 

Mansel Aylward has over the last couple of years been visiting Australia and New Zealand on a number of occasions, having been invited by health authorities, health professional organisations, and private and government agencies.

In the following I will list some occasions and share some essential information about some of these visits:

Australian Government – Comcare, 31 May 2010:

“Government and industry leaders meet Professor Sir Mansel Aylward; 31 May 2010

On 18 May 2010 Government leaders from the federal safety and compensation jurisdiction, industry leaders and social partners ACTU attended a dinner in Sydney with special guest Professor Sir Mansel Aylward CB. Professor Aylward is one of the world’s leading experts in psychosocial, economic and cultural factors that influence health, illness and recovery.”

“His fundamental message was clear – Work is good for our health and wellbeing”

“Psychosocial factors are the main determinants of health, illness and recovery.

An individual’s health status depends more on lifestyle, environmental, and socio-cultural, factors than on biological status and conventional health care. This is also true of recovery following an injury. Psychosocial factors such as an individual’s lifestyle and social circumstances are the dominant barriers to a successful return to work in 75 per cent of cases.”
http://www.comcare.gov.au/news__and__media/news_listing/government_and_industry_leaders_meet_professor_sir_mansel_aylward

On Tuesday 18, May 2010, ‘Realising the Health Benefits of Work’, a position paper developed by the Australasian Faculty of Occupational + Environmental Medicine was officially launched in Sydney, Australia. Dr Robin Chase, President AFOEM, introduced Professor Sir Mansel Aylward at the launch:
http://www.racp.org.nz/index.cfm?objectid=725DF799-B7C4-7B18-6C35C74BD6D13C3F
http://www.racp.org.nz/download.cfm?downloadfile=58C41516-C2D1-1FF1-8CC71B74C8444FB3&typename=dmFile&fieldname=filename

28 May 2012: Ko Awatea Centre, Manukau, Auckland, New Zealand
“Sir Mansel Aylward asks the question: “What has had the greatest impact on the NZ health system?”

It was standing room only for Sir Mansel Aylward’s second and final lecture at Ko Awatea. Following on from the last session around leadership Sir Mansel asked the following questions: “What in your opinion has had the greatest impact on the NZ health system and when looking at these areas what was the leadership role?””

http://koawatea.co.nz/sir-mansel-aylward-asks-the-question-what-has-had-the-greatest-impact-on-the-nz-health-system/

“The first in this series results from Professor Sir Mansel Aylward’s work during his time at Ko Awatea as the the First Ko Awatea Stevenson Visiting Professor. For three months in early 2012 Sir Mansel’s task was to identify the key challenges facing CMDHB and to provide us with recommendations on a way forward to address the challenges so that CMDHB can deliver best in class services to constituents.

Sir Mansel worked closely with Ko Awatea’s Jonathon Gray and with Pam Muth from KPMG. Together they produced the first two White Papers in the series that can be found here: koawateablog.co.nz/?p=2118”
http://vimeo.com/47890767

Prof. Mansel Aylward speaking about key population health challenges at ‘Ko Awatea’, loaded 29 May 2013
http://www.youtube.com/watch?v=F34hSBE_E5c

Rotorua GP CME 2013 –
Introduction and profile of Professor M. Aylward, also announcing his speeches at the annual GP CME conference in Rotorua, New Zealand on 21-22 June 2013:
http://www.gpcme.co.nz/speakers/aylward_2013.php

‘The Listener‘ 28th April 2012 –
‘NZ Hospitals: the link between poverty and illness’;
“A visiting health expert who knows about poverty and illness says hospitals are not the answer.”
http://www.listener.co.nz/lifestyle/health/nz-hospitals-the-link-between-poverty-and-illness/

“Meet Professor Sir Mansel Aylward, a dapper and jovial Welshman who wants to close your local hospital. Actually, he’s fond of saying that all hospitals should be “abolished”.”

Also: Mention of Professor Aylward in policy development:

The Ministry of Social Development, Office of the Minister
‘WELFARE REFORM PAPER C: HEALTH AND DISABILITY’
release to the media, 2012 –
see para 51 on page 8 for evidence that Prof. Mansel Aylward and Dame Carol Black met with the ‘Health and Disability Panel’ set up by the Ministry to provide “specialist”, “expert” advice on welfare reform changes for people who are sick or disabled!
http://www.msd.govt.nz/documents/about-msd-and-our-work/newsroom/media-releases/2013/wr-cab-paper-c-health-and-disability.pdf

There are also many source references to reports by Gordon Waddell, Kim Burton and others, who have over the years all worked together with Professor Aylward!

Members of that ‘Health and Disability Panel’ included Dr David Beaumont (Medical Director for ‘Fit for Work’ Occupational Medicine Specialists, Chair of the Faculty Policy and Advisory Committee, Australasian Faculty of Occupational and Environmental Medicine, Royal Australasion College of Physicians (RACP), and formerly also senior staff member at ATOS Healthcare in the UK; Helen Lockett, an “international expert” in employment and mental health, who is head of “strategic development” for the “Wise Group”, which is New Zealand’s largest “third sector” provider of mental health and employment services!)

The following draft legislation, based in part on the above “advice”:
Parliament – Social Security (Benefit Categories Work Focus) Amendment Bill, 2012
http://www.parliament.nz/en-nz/pb/debates/debates/50HansD_20120920_00000016/social-security-benefit-categories-and-work-focus-amendment

Paula Bennett quoted from the Hansard in her speech for the 1st Reading, 20 Sept. 2012:

“Just as the health benefits of work are well documented, we know that the health costs of unemployment are high. Professor Sir Mansel Aylward, recently in New Zealand, said: “After six months’ unemployment, each additional day out of work is as detrimental to your health as smoking 200 cigarettes.” We know that work can play a vital role in recovery, and the worst thing we could do is actually leave people with illness on benefits long term with no support. This bill will not do that.”

Paula Bennett – ‘Speech to Medical Professionals’, ‘Otago University’ in Wellington, 26 Sept. 2012
http://www.beehive.govt.nz/speech/speech-medical-professionals

Paula Bennett quoted from her speech:
“Across the board we will be asking more people on benefit about their work expectations, and what they might need to get into work. The focus for people with disabilities and long lasting conditions will be on their barriers to work not just their health, and we’ll be hands on, early on. This was an important point made by the experts on the Health and Disability panel which I established to review our proposed welfare changes.

It also echoes the UK’s assessment processes and the “Pathways to Work” initiative for vocational rehabilitation designed by Professor Sir Mansel Aylward. When I sat down with Sir Mansel earlier this year he told me that health conditions account for just 10 to 15 per cent of barriers to work for people on disability benefits. He said that many health conditions or disabilities can be well managed in work but addressing other barriers are just as important.”

And this is the beginning of the future, the result of Mansel Aylward’s efforts:

“Govt will pay to shift mentally ill into work”, ‘Herald on Sunday’, 30 June 2013
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10893823

“Mentally ill people will be moved off state-funded benefits and into work using private employment agencies who will earn hefty fees for the service.”

If successful, private providers could earn up to $12,000 for placing a client considered to have “entrenched” mental health issues in a job where they are working for 30 hours or more a week.

An advocate for beneficiaries, who declined to be named, sounded warnings this week about forcing unwell people into competing for jobs in a tight employment market. “Sadly it seems to be an experiment with vulnerable people, and one must be concerned about how it will affect some.”

The above events are just a small selection of what contacts Mansel Aylward has had in Australia and New Zealand, working here to assist governments, welfare agencies, health authorities, organisations of health professions, employers, and others, to bring in new approaches and systems, which will also result in the outsourcing and privatisation of services, to usher sick and disabled back into work.

 

PART 7:
Some leading and influential medical professionals and advisors, who strongly promote and propagate Professor Aylward’s theories:

 

A). Dr David Beaumont, Chair of Policy and Advocacy, Australasian Faculty of Occupational and Environmental Medicine (AFOEM) at the Royal Australasian College of Physicians (RACP):

One of Dr Beaumont’s presentations:
‘The Health Benefits of Work – Managing the Paradigm Change’, OHSIG, ‘Toward 2020 Challenges and Changes in OH+S’, 26 Oct. 2011:
http://www.slideshare.net/ohsig/0840-2-ohsig-dr-david-beaumont-26-10-2011

“As Chair of AFOEM Policy and Advocacy Committee he was lead for the Faculty project which produced the Australian and New Zealand Consensus Statement on the Health Benefits of Work http://www.healthbenefitsofwork.com He is President Elect of the Faculty.”

In that presentation (see link above) we again see familiar names and messages. This can hardly be a surprise to those who are well informed, and who can read and study these resources! I wonder whether NZCTU President Helen Kelly is aware about the greater agenda that is being followed and now being gradually implemented here in New Zealand? There certainly is a “network” of people involved!

David Beaumont’s Profile Overview on LinkedIn:
http://nz.linkedin.com/pub/david-beaumont/2a/780/943

Current:
Medical Director/CEO at OHS New Zealand Ltd; October 2010 – Present
Medical Director at Pathways To Work Ltd; August 2010 – Present (3 years)
Medical Director/CEO at Fit For Work Ltd; June 2006 – Present (7 years 2 months)

Past:
Regional Consultant Occupational Physician at Atos Origin Healthcare
Public Company; 10,001+ employees; Information Technology and Services industry
January 2004 – December 2006 (3 years) Yorkshire

“With this and previous positions, David gained experience in a wide range of work settings, including public sector, manufacturing and industrial workplaces”

David Beaumont and colleagues presenting on health benefits of work, 14.05.2012
http://www.fitforwork.co.nz/david-beaumont-and-colleagues-presenting-on-health-benefits-of-work

„Dr David Beaumont and colleagues in the health and employment sectors recently presented their latest findings about the health benefits of work.”

Other links of interest:
http://www.fitforwork.co.nz/
http://www.fitforwork.co.nz/models
http://www.pathwaystowork.co.nz/
(note the mention of the “biopsychosocial model” there also!)

Dr Beaumont was also one of the senior members on the Health and Disability Panel that “advised” the Ministry of Social Development and Paula Bennett on welfare reform measures that would affect sick and disabled!

 

B). Dr David Bratt, Principal Health Advisor, Ministry of Social Development:

 

Dr David Bratt’s profile on LinkedIn:
http://nz.linkedin.com/pub/david-bratt/14/695/40

Introduction/Profile of Dr Bratt for the Rotorua GP CME 2013
http://www.gpcme.co.nz/speakers/bratt_2013.php

“Welfare Reform now has health warning”, NZ Herald, 16 July 2013
http://www.nzherald.co.nz/lifestyle/news/article.cfm?c_id=6&objectid=10898616
(mention of Dr David Bratt in relation to the draconian welfare reforms)

“Benefits likened to addictive drug as new medical certificate urges GPs to avoid putting patients off work.”

“The Ministry of Social Development’s principal health adviser, Dr David Bratt, told general practitioners last year that the health risks of long-term worklessness were equivalent to smoking 10 cigarettes a day – a “greater risk than most dangerous jobs”. He said welfare benefits were “an addictive, debilitating drug with significant adverse effects to both the patient and their family (whanau) – not dissimilar to smoking”.”

Dr David Bratt, PDF presentation to GP conference, Christchurch 2010:
“Ready, Steady, Crook – Are we killing our patients with kindness?”
http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf
See pages 13, 20, 21 and 35 for his comparisons of benefit dependence to drug dependency!

Dr David Bratt, PDF presentation to GP and other conference(s), 2012:
“Medical Certificates are Clinical Instruments Too!”
http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
See pages 3, 16 and 33 for comparisons between benefit dependence and “drug dependence”! See pages 19 and 20 for quotes from Aylward, Waddell and Wessely!

Dr David Bratt, and Mansel Aylward, PDF presentation to GP conference, 06-2013:
“Shifting Your Primary Focus to Health and Capacity – A New Paradigm”
http://www.gpcme.co.nz/pdf/WS%20142%20Bratt%20-%20Shifting%20Your%20Primary%20Focus%20to%20Health%20and%20Capacity.pdf

See: “A Life of Ease – Yeah Right!” (page 16)! See pages 20 and 46 for reference to Aylward, Waddell, Burton and Wessely!

Claim made on page 25:
•“(…) Most physicians rely on their patients for information about the conditions in the workplace and on his or her ability to do the original job.”

•“(…) Ultimately, the patient makes the decision that they are too ill to work and then asks their physician to agree.”

Page 45:
“LARC and Beneficiaries
•A non-recoverable Special Needs grant is available to female beneficiaries to facilitate access to subsidised Long Acting Reversible Contraception – IUCDs (Mirena only when subsidised) and Jadelle implants
•It covers the cost of the assessment, fitting and if required removal up to a total of $500 a year”

Dr David Bratt holding a presentation at the Welfare Working Group Forum, Wellington 2010:
http://www.youtube.com/watch?v=R-2C6qL4eAs

Dr Bratt together with Prof. M. Aylward, on “Getting better at work”, short video, courtesy of NZ Doctor, 10 July 2013:
http://www.youtube.com/watch?v=vPNqBJ4n-x0

Royal NZ College of General Practitioners, Wellington Faculty, minutes, 21.06.2011:
http://www.rnzcgp.org.nz/assets/documents/News–Events/RNZCGP-Wellington-Faculty-minutes-2011.pdf
Dr Bratt then serving as Treasurer for the RNZCGP Wellington Faculty at the AGM!

Dr Bratt, Director of CARE NZ (EST 1954) LIMITED:
http://businessprofiles.com/details/care-nz-est-1954-limited/NZ-1003540/david-leslie-bratt
http://www.business.govt.nz/companies/app/ui/pages/companies/1003540

David Bratt, listed on Abortion Wiki, being Consultant in Newtown Medical Centre, Wellington, at least in 2009:
http://abortionwiki.org/index.php?title=David_Bratt

‘Auckland City Mission Medical Service’;
‘Explanation of The Calder Centre’s policy on issuing medical certificates for a Sickness Benefit’:
http://www.aucklandcitymission.org.nz/uploads/file/Calder%20Centre/Sickness%20Benefit%20explanation.pdf
(David Bratt quoted on document from Auckland City Mission Medical Centre, explaining their strict policy for issuing “medical certificates” to sickness beneficiaries, 2012/13)

“If the benefit was a drug, it would not pass the Medsafe…

Research into the impact of parental unemployment on children has found higher incidence of chronic illness, psychosomatic symptoms, psychological distress such as depression, substance abuse and delinquent behaviour, as well as increased risk of being out of work when they are adults.” / Dr. David Bratt, NZ Doctor Magazine, 01/08/2012/

One Reaction:
“Ignoring poor won’t make us rich”; Andrew Bonallack, ‘Wairarapa Times – Age’, 17 July 2013
http://www.times-age.co.nz/news/ignoring-poor-wont-make-us-rich/1948107/

 

C). Dame Carol Black DBE FRCP, Adviser on Work and Health at the Department of HealthChair of the Governance Board, Centre for Workforce Intelligence:

 

Wikipedia entry:
http://en.wikipedia.org/wiki/Carol_M._Black

“As Expert Adviser to the Department of Health, Black plays a major ambassadorial role, building and promoting the public and policy position on the positive relationship between work and health. She is Chair of the Health at Work network, part of the UK Government’s Public Health Responsibility Deal, set up to engage commercial, public and third sector organisations in improving public health.”

“Unum” and the Biopsychosocial Model, making reference to Carol Black:
http://online.positiveimagesuk.com/unum/download/UP1581.pdf
“Managing the Risks of Being Different” White Paper, Summer 2008”

“The biopsychosocial model has emerged over the past two decades and has sought to expand upon disease paradigms and complement pain models. It states that in order to understand and manage ill health, pain and disease, one must take into account the influence of biological, psychological and social factors”*

“2008: Within Dame Carol Black’s review of the working age population ’Working for a healthier tomorrow’, Peninsula Medical School were commissioned to undertake a literature review of the evidence base for early intervention in sickness absence. The review highlighted three key principles for effective early intervention; the first of which was ‘holistic care in line with the biopsychosocial model’.”

Dame Carol Black mentioned in ‘the void’:
“Atos to Sub-Contract PIP Contract Back to NHS!”, 10 Oct. 2012:
http://johnnyvoid.wordpress.com/tag/work-capability-assessment-wca/

…Unfortunately it remains to be seen if anything will change in practice. Whilst Atos will no longer carry out the assessments, the model of assessments will be the same flawed model as the one currently use to harass, torment and impoverish Employment Support Allowance claimants.

Of perhaps most concern is that Salus, who will now carry out the assessments, boast on their website that they: “are one of the very few organisations in the UK which utilise the bio psychosocial model as recommended by Dame Carol Black in her report ‘Working for a Healthier Tomorrow’ (2008). “” (extract fr. Publication from 10 Oct. 2010)

 

“Working for a healthier tomorrow”, Dame Carol Black’s Review of the health of Britain’s working age population; 17th March 2008
http://www.dwp.gov.uk/docs/hwwb-working-for-a-healthier-tomorrow.pdf

“It remains critically important to improve health at work and to enable workers with health problems to stay at work, but occupational health must also become concerned with helping people who have not yet found work, or have become workless, to enter or return to work.”

“Recent evidence suggests that work can be good for health, reversing the harmful effects of long-term unemployment and prolonged sickness absence. Yet much of the current approach to the treatment of people of working age, including the sickness certification process, reflects an assumption that illness is incompatible with being in work.” (From “Executive Summary”, Chapter 1)

“The positive links between health and work”

“In particular, the recent review ‘Is work good for your health and well-being?’ concluded that work was generally good for both physical and mental health and well-being1. It showed that work should be ’good work’ which is healthy, safe and offer the individual some influence over how work is done and a sense of self-worth. Overall, the beneficial effects of work were shown to outweigh the risks and to be much greater than the harmful effects of long-term worklessness or prolonged sickness absence.” (Page or chapter 21)
1 Waddell, G. and Burton A.K. (2006), Is work good for your health and well-being?, London: TSO (The Stationery Office).

Prof Dame Carol Black – Stakeholder Meeting, ‘The Royal Australasian College of Physicians’,
‘Working for a healthier tomorrow in Australia and the United Kingdom’, 29.10.2010

http://www.racp.org.nz/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/october-2010-stakeholder-meeting-professor-dame-carol-black/

“The journey so far: insights and lessons learnt”, RACP Seminar, Melbourne
http://www.racp.org.nz/download.cfm?downloadfile=58B854C4-B7E2-8535-6F734B9F71736C8B&typename=dmFile&fieldname=filename
(incl. references to Waddell, Burton, Black)

 

D). Dr Des Gorman: One of New Zealand’s most influential health sector leaders who as ACC consultant and assessor once blamed “illness belief” or psychological factors for illness, but who now appears to follow an independent approach:

 

http://www.acc.co.nz/about-acc/overview-of-acc/key-people/ABA00006

“Appointed: September 2012
Professor Des Gorman is Professor of Medicine and Associate Dean at the University of Auckland’s Faculty of Medical Health and Sciences, and has doctorates in medicine and in philosophy. He has extensive medical knowledge across a number of specialties (including brain injury, occupational medicine, and toxicology). Affiliated to Ngapuhi, Professor Gorman is also Executive Chairman of Health Workforce NZ, a member of the National Health Board, and most recently, appointed as a member to the ACC Board.”

Introduction and profile of Dr Gorman, for Rotorua GP CME 2012:
http://www.gpcme.co.nz/speakers/gorman_2012.php

Profile of Prof. Gorman, member of the Welfare Working Group, 2010:
http://igps.victoria.ac.nz/WelfareWorkingGroup/Des%20Gorman.html
http://igps.victoria.ac.nz/WelfareWorkingGroup/Members.html

Current Affairs video, „Illness Belief, Part 1“, NZ television, probably late 1990s:
http://www.youtube.com/watch?v=QknNdOhOkr8

Dr Des Gorman, Department of Medicine, Auckland University; quoting “illness belief” in people being sick and off work for longer, 2000:
https://researchspace.auckland.ac.nz/bitstream/handle/2292/4291/PMID10777228.pdf?sequence=1

 

PART 8:
SOME OF THE POTENTIAL PRIVATE AGENCIES THAT ARE LIKELY TO COLLABORATE WITH MSD AND WINZ AS PROVIDERS – TO FACILITATE WORK REFERRALS FOR SICK AND DISABLED:

 

In the following I will give an overview of some of the likely service delivery agencies that may provide outsourced services to MSD, like for instance in the way of employment services for getting mentally ill (and other incapacitated) WINZ beneficiaries into work. That will naturally be done for handsome fees paid that will be based on referrals, duration of employment and so forth.

Like in most developed countries, in New Zealand it is ultimately the government that pays for and sets the agenda re how health and welfare related spending are allocated. It is the government that decides on policy and criteria for outsourcing of services, and who will get the contracts to deliver outcomes the government of the day deems useful and economical! In these days the cost factor is one of the major factors that is considered.

Relevant developments and sundry information of interest is presented here:

Press Release – Wise Group, ‘Employment and mental health’, 10:15 May 16, 2013:
http://business.scoop.co.nz/2013/05/16/employment-and-mental-health/
“Wondering about work? New tool helps patients and their doctors talk about employment and mental healthWondering about work? New tool helps patients and their doctors talk about employment and mental health”

“For many people experiencing a mental health condition, the decision to return to employment can be a difficult one.

The Employment and Mental Health Option Grid (EmOG) has been published to help individuals and their clinicians have evidence-informed conversations about the benefits and risks of returning to employment.”

The article is describing a new “tool” for doctors and mental health service providers, to “assist” and “motivate” clients to move back into work, developed by ‘The Wise Group’ More on them will be revealed further below!

 

See what was already done last year to prepare for the push to get mentally ill assisted back into work in last year:

“Engage Aotearoa”:
http://www.engagenz.co.nz/?tag=employment-support-as-a-mental-health-intervention-forum

‘Employment Support as a Mental Health Intervention Forum’: 9 March 2012

Quote:
“Tag Archives: Employment Support As A Mental Health Intervention Forum
Employment Support as a Mental Health Intervention Forum: 9 March 2012”

“This is your invitation to a forum for clinicians and others that will focus on this developing field of practice. International research and the experience of practitioners, signals that evidence-based supported employment is emerging as a significant intervention to help people into paid competitive work. This symposium with is focus on employment is timely as the Government has indicated a comprehensive review of the benefit system.”

“Venue: Ko Awatea Centre for Education + Innovation, Building 54, Middlemore Hospital, 100 Hospital Rd, Otahuhu
Date: 09 March 2012, 9.30 am– 4.30pm
Registration Fee: $100.00”

Giving information on a forum last year, at the ‘Ko Awatea Centre’ for Education + Innovation, Otahuhu, Auckland

Attended by speakers:
Rob Warriner: CEO of Walsh Trust, http://www.walsh.org.nz
Warren Elwin: CEO of Workwise Employment Agency, http://www.workwise.org.nz
Helen Lockett: Strategic Development, Wise Group, http://www.wisegroup.co.nz
Clive Bensemann: Director of Mental Health, Auckland District Health Board
David Codyre: Clinical Director/ Consultant Psychiatrist ProCare Psychological Services …
And –
John Zonnevylle: Capital Coast DHB
Magdel Hammond: Edge Employment
Dale Rook: Occupational Therapist, Auckland District Health Board

More information: http://www.engagenz.co.nz/?p=1677
Main website: http://www.engagenz.co.nz/

In relation to all this, also to take note of:

Helen Lockett – The Wise Group
http://nz.linkedin.com/pub/helen-lockett/25/1b/86b

Helen Lockett’s Experience:
Strategic Policy Advisor
The Wise Group
(Nonprofit; 501-1000 employees; Nonprofit Organization Management industry)
February 2011 – Present (2 years 6 months)

Director of Programmes and Performance
Centre for Mental Health
November 2006 – December 2010 (4 years 2 months) UK

Helen Lockett’s Skills + Expertise:
Policy

Helen Lockett’s Education:
University of Bradford
Masters in Business Administration
2008 – 2010

University of Cambridge
Social and political sciences, social and cultural psychology
1990 – 1993

Helen Lockett MBA, MA Cambridge, UK
Link: http://grow.co.nz/real-value-helen-lockett/

“Helen is an experienced director and researcher working in the mental healthcare sector. Her focus is on how to influence and bring together policy, research and practice to improve outcomes for individuals and families/whānau. Helen is acknowledged as an expert on employment and mental health and combines this with excellent interpersonal, communication and evaluative skills.”

“Since emigrating to New Zealand in December 2010, Helen has been working as the Strategic Policy Advisor to the Wise Group, New Zealand’s largest mental health non-government organisation and also as a freelance health and disability advisor. Prior to the move, Helen was Director of Programmes and Performance at the UK’s Centre for Mental Health, a leading international policy centre.”

Also have a look at this recent report in the ‘Australian + New Zealand Journal of Psychiatry’, from the May 2013 issue, titled: “Employment as a health intervention – the role of psychiatry in bridging the evidence to practice gap.” By Helen Lockett (Wise Group’s “Strategic Policy Advisor” with an MBA and an additional qualification in “social and political sciences, social and cultural psychology”), and Clive Bensemann, Clinical Director, Psychiatrist, Auckland Regional Public Health Service:
http://anp.sagepub.com/content/47/5/417.extract

“Employment is a central part of recovery for many patients, is generally good for mental health, and the evidence on how best to support people with a mental illness into jobs is well established”.

“This viewpoint provides a summary of the international research on the effectiveness of Individual Placement and Support (IPS) an approach to supported employment for people with a mental illness also referred to as evidence-based supported employment (EBSE).”

“Employment outcomes are defined as competitive jobs which are available to anyone in the labour market to apply for, have permanent status rather than temporary or time-limited, pay at least minimum wage and are not set aside for people with disabilities (with the exception of peer specialist roles).”

 

Further to that, from the ‘Australian Psychiatric Journals’, ANZJP, re May 2013:
http://auspsychreview.wordpress.com/
(‘Australian Psychiatry Review’, online)

“Harvey and colleagues (2013) and several accompanying commentaries examine strategies to improve employment opportunities for patients with psychosis, with a focus on Individual Placement and Support (or IPS) programs to improve employment for people with mental illness. Lockett and Bensemann (2013) summarise recent research on IPS to justify its systematic implementation. The authors suggest that the “place then train” model significantly outperforms older models which focus on training which often does not lead to employment. They also note evidence suggesting vocational intervention should occur in parallel with medical treatment, and that patients do not have to be symptom free before returning to work.”

 

Yes, Lockett is another “expert” from the UK, promoting the agenda of shifting disabled and sick back into work. It appears she is supporting Prof. Mansel Aylward’s and Dr David Bratt’s particularly one-sided philosophies on “work capacity” and the “health benefits of work”, and she was on the ‘Health and Disability Panel’ set up to “advise” the Ministry of Social Development on welfare reforms for sick and disabled!

One will not need to speculate too much, where the idea that “vocational intervention should occur in parallel with medical treatment” comes from. Also the timing of the release of that article is intriguing, as it was in mid May 2013, when the Ministry of Social Development sought tender offers for outsourced “mental health employment services” (via “GETS” as I have been told). So here is ‘The Wise Group’ actively lobbying for government contracts, having their leading advisor do the lobby work. Bear in mind, organisations like ‘Workwise’ and ‘Te Pou’ belong to ‘The Wise Group’.

 

See Workwise’s “information” on “evidence based supported employment”:

“Evidence-based supported employment
People who experience a mental illness want to work and can work”

“When unemployed people with experience of mental illness are asked about their hopes for a job, the majority say they would like to work…either now or sometime in the future.”

“Yet, in New Zealand, people who are in contact with mental health services have an employment rate of less than 20 per cent. In fact, people who experience mental illness have the lowest employment rates of any disadvantaged group.

Using an employment programme called evidence-based supported employment (EBSE) can make a huge difference.”

Links to website and information:
http://www.workwise.org.nz/about-us/EBSE
http://www.workwise.org.nz/news/2012/02/27/new-zealands-first-primary-care-partnership-in-evidence_based-supported-employment
http://www.workwise.org.nz/news/2012/02/27/analysis-shows-strong-financial-returns-from-employment

The Wise Group – a major player, who own/operate ‘Workwise’:
http://www.wisegroup.co.nz/page/5-Home
http://www.wisegroup.co.nz/page/24-The-Wise-family
http://www.wisegroup.co.nz/page/14-who-we-are+our-history

http://www.socialangels.org.nz/about
(see ‘The Wise Group’ being a “charitable trust” and “Social Angels” a registered “charity”)

Workwise on the Charities Register:
http://www.register.charities.govt.nz/CharitiesRegister/ViewCharity?accountId=8f8b356e-320f-dd11-99cd-0015c5f3da29&searchId=291abede-5d72-4bbc-a693-165e621a71ce

Workwise Trust Group on the Charities Register:
http://www.register.charities.govt.nz/CharitiesRegister/ViewCharity?accountId=8febe8e5-290d-dd11-99cd-0015c5f3da29&searchId=291abede-5d72-4bbc-a693-165e621a71ce

Charities Register – last filed return:
http://www.register.charities.govt.nz/CharitiesRegister/PublicAnnualReturn?nocId=797d3395-4749-e211-84ab-00155d0d1916&charityRef=WOR18206&accountId=8f8b356e-320f-dd11-99cd-0015c5f3da29&searchId=291abede-5d72-4bbc-a693-165e621a71ce&nocRef=WIS18147AR005

So there we have it – more “privatised” welfare services in the form of generous “employment schemes” for the well paid who are running such services, and for the perhaps a bit less generously paid bulk of the remaining “staff”. All are likely to be potential participants of the planned outsourcing and privatisation of welfare.

One thing is sure for the Wise Group:
$ 61,277,236 government grants and contract payments, out of $ 65,412,195 total income of that “charity”!!! That’s “not bad” really, especially for the ones running it.

***When thinking of “charities” “Sanitarium” comes to mind again, owned by a church that can run the business as a “charity”, paying no income tax on earnings.***

 

See other organisations and agencies involved in this approach:
http://www.platform.org.nz/
http://www.tepou.co.nz/
http://www.tepou.co.nz/news/2013/06/13/employment-is-a-health-intervention
http://www.tepou.co.nz/story/2011/01/01/supporting-people-with-mental-health-issues-to-return-to-and-stay-at-work

http://www.pathwaystowork.co.nz/contact-us
http://www.pathwaystowork.co.nz/
http://www.pathways.co.nz/page/21-support-services+real-jobs+real-jobs
(Remember: Dr David Beaumont!!! Formerly with ATOS, also advising MSD!)

http://carenz.co.nz/
http://www.business.govt.nz/companies/app/ui/pages/companies/1003540
(Dr David Bratt, one of the directors at Care NZ Ltd!!! Only indirectly involved, but participating in the same “drive” to get sick back into work the “Bratt way”)

Remember also:
The whole agenda is being pushed strongly, and familiar people are behind it:

“Realising the health benefits of work”; 25/05/2010
http://www.wellnz.co.nz/about_us/press_release_details.asp?pressID=36&bhcp=1

“This week the Australasian Faculty of Occupational and Environmental Medicine has released a new position paper, entitled “Realising the health benefits of work.””

“Several of the Wellnz team led by John Hamilton attended the launch function at The Langham Hotel in Auckland. There was a heavyweight line-up of speakers including Dr Robin Chase, President of AFOEM; Prof Sir Mansel Aylward, Chair of Public Health Wales; Dr Kevin Morris, Director of Clinical Services with ACC, and Dr David Beaumont, Co-chair of the AFOEM working group, who is one of our NZProvide Occ Med specialists.”

“The presentation included a Stakeholder Summit involving Dr Kevin Morris, Director of Clinical Services, ACC; Dr David Bratt, Principal Health Advisor, Ministry of Social Development; Ms Helen Kelly, President, New Zealand Council of Trade Unions (CTU); Paul Mackay, Manager Employment Relations Policy, Business NZ; Dr Jonathan Fox, New Zealand Medical Association (NZMA), and Dr John Mayhew, Clinical Director, Sovereign Insurance.”

Paula Bennett’s speech to medical professionals in Sept. 2012, indicating work capacity assessments UK style (remember ATOS, DWP and the scandalous developments there):
http://www.beehive.govt.nz/speech/speech-medical-professionals

In contrast the more widely known and well-established agency used by MSD and Work and Income to place people with physical disabilities into employment:
http://www.workbridge.co.nz/?page=121

‘Workbridge’ use a more conventional approach, but also “support” mental health sufferers! They also do a lot of work for and with MSD and WINZ.

 

Summarised conclusions

Although the agencies mentioned appear to present their services with an emphasis on delivering them in a benevolent, sympathetic and supportive way, the fact remains, that particularly mentally ill with disabilities face very serious and high barriers, to find employment. That is most certainly so in “open employment” (on the “open”, common job market).

Employers and their generally more “healthy” and “fit” staff tend to discriminate against people with disabilities, particularly those with mental health issues. Open employment is driven by goals to achieve maximised productive output. Employers and the majority of their staff will lack the understanding and appreciation of mental illness. There is insufficient evidence that such intervention to bring mentally ill into work, and to keep them in employment, have succeeded beyond marginal rates.

The concern is justified, that the planned “mental health employment” trials by the Ministry of Social Development will put sick and disabled at high risk. The intended practice to pay service providers high fees (per referred individual) on a success rate basis, will mean, that such providers will be incentivised to put as many clients into jobs as possible, in order to achieve “profitable” returns by keeping costs low.

With a problematic job market and the already great difficulty in referring sick and disabled into open employment, corners will be cut, and that will impact on the vulnerable persons, some of whom will not be able to cope. It is unclear how effective any support networks will function in such scenarios.

In this matter I can also draw on personal insight and experience, as I have had a mentally ill flatmate some time ago, who was in the end actually referred to ‘Workwise’ to help her find suitable employment. She was suffering psychotic episodes and was for most of the time on high dosages of medication. That alone resulted in her struggling to do simple day to day tasks. The “help” she was offered was not very convincing, and I had to repeatedly support her, when she was unable to cope with expectations employers expressed in interviews she was referred to. The ‘Workwise’ staff member that was supposed to support her was often difficult to contact, did not deliver much help and the whole experience was disappointing.

 

Part: 9
Various other issues with GP primary care diagnosis and referrals:

 

There is researched and anecdotal evidence available that general practitioners (GPs) and other primary health care providers are not necessarily sufficiently qualified, competent and experienced enough, to diagnose and treat mental health disorders and conditions. Many do refer their patients to psychologists, psychiatrists or psychotherapists for further examinations, assessments and treatment.

Yet that may not happen in some cases, where a GP may not even notice any mental illness symptoms, or where the GP may her- or himself in some other cases feel that they are themselves competent enough to decide on medication or other forms of treatment. In the following some information is quoted and offered that gives evidence of certain issues that have over recent years been found in these areas:

The King’s Fund, “The quality of GP diagnosis and referral”,
Research paper 2010, Authors: Catherine Foot, Chris Naylor, Candace Imison

“An Inquiry into the Quality of General Practice in England”

http://www.isabelhealthcare.com/pdf/Kings_Fund_Diagnosis_and_Referral_2010.pdf

„Diagnosis
In general, the diagnostic process does not lend itself to easy quality measurement, since so many of the determining factors of quality are internal to the consultation and reasoning processes of the GP. As has already been mentioned, the quality of diagnosis can be inferred through measures of any activity that has followed diagnostic decisions (treatment, referral etc), but these proxies measures would not adequately indicate what factors caused diagnostic error and so are of limited use for quality improvement in diagnosis specifically.”

More details about their findings can be found in the original document!

 

Counselling Directory – see link: http://www.counselling-directory.org.uk/treatmentstats.html
‘Statistics about Mental Health Treatments and Services’

“Contact with GPs

According to figures from the 2003 National Survey of NHS patients, approximately 91 per cent of people with a mental health problem will be treated within the primary care system, meaning that very few are referred to specialist mental health services3.

Figures suggest that at least 25 per cent of individuals with symptoms of mental health conditions such as depression and anxiety do not report this to their GP and of those who do, up to 50 per cent only provide details of their physical symptoms and do not detail any mental and emotional aspects4.

It has been suggested that the reason many cases of mental health conditions go undiagnosed and unrecognised may be related to a lack of training in areas of mental health for GPs and other industry professionals. One study in particular revealed that only one third of doctors had received mental health training in the past five years, with ten per cent admitting they felt concerned about their training and experience with regards to mental health5.”

The European Journal of Psychiatry – “GP mental health care in 10 European countries: patients’ demands and GPs’ responses”; 2007;
Peter F.M. Verhaak; Jozien M. Bensing; Atie v d Brink-Muinen;
Netherlands Institute of Health Services Research. THE NETHERLANDS
http://scielo.isciii.es/scielo.php?pid=S0213-61632007000100002&script=sci_arttext

“Results: There are differences, not related to health care system characteristics, between countries concerning the prevalence of mental distress among patients visiting their GP. Only a minority of distressed patients presented psychological symptoms. Although GPs did not limit their psychological diagnoses to patients presenting with psychological symptoms, they also diagnosed only a minority of distressed patients with a psychological diagnosis.”

 

From the ‘US National Library of Medicine National Institutes of Health’ online:

“Quality of medical care for people with and without comorbid mental illness and substance misuse: systematic review of comparative studies”;
Mitchell AJ, Malone D, Doebbeling CC;
Br J Psychiatry. 2009 Jun;194(6):491-9. doi: 10.1192/bjp.bp.107.045732
http://www.ncbi.nlm.nih.gov/pubmed/19478286

“There has been long-standing concern about the quality of medical care offered to people with mental illness.”

“Of 31 valid studies, 27 examined receipt of medical care in those with and without mental illness and 10 examined medical care in those with and without substance use disorder (or dual diagnosis). Nineteen of 27 and 10 of 10, respectively, suggested inferior quality of care in at least one domain. Twelve studies found no appreciable differences in care or failed to detect a difference in at least one key area.”

“Inequalities in healthcare provision for people with severe mental illness”;
David Lawrence and Stephen Kisely
J Psychopharmacol. 2010 November; 24(4_supplement): 61–68;
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2951586/

“There are many factors that contribute to the poor physical health of people with severe mental illness (SMI), including lifestyle factors and medication side effects. However, there is increasing evidence that disparities in healthcare provision contribute to poor physical health outcomes. These inequalities have been attributed to a combination of factors including systemic issues, such as the separation of mental health services from other medical services, healthcare provider issues including the pervasive stigma associated with mental illness, and consequences of mental illness and side effects of its treatment.”

“At the same time, there are barriers to people with SMI accessing primary care. Some primary care physicians see patients with SMI as being disruptive to their practices or feel uncomfortable treating them (Goodwin et al., 1979; Karasu et al., 1980). The likeability of patients has also been linked to the amount of attention they receive in primary care (Gerbert, 1984; Hall et al., 1993).”

 

“Comorbidity of substance misuse and mental illness in community mental health and substance misuse services”;
Weaver T, Madden P, Charles V, Stimson G, Renton A, Tyrer P, Barnes T, Bench C, Middleton H, Wright N, Paterson S, Shanahan W, Seivewright N, Ford C;
Br J Psychiatry. 2003 Oct;183:304-13
http://www.ncbi.nlm.nih.gov/pubmed/14519608

„RESULTS:
Of CMHT patients, 44% (95% CI 38.1-49.9) reported past-year problem drug use and/or harmful alcohol use; 75% (95% CI 68.2-80.2) of drug service and 85% of alcohol service patients (95% CI 74.2-93.1) had a past-year psychiatric disorder. Most comorbidity patients appear ineligible for cross-referral between services. Large proportions are not identified by services and receive no specialist intervention.”

“The prevalence of personality disorder, its comorbidity with mental state disorders, and its clinical significance in community mental health teams”;
Newton-Howes G, Tyrer P, Anagnostakis K, Cooper S, Bowden-Jones O, Weaver T; COSMIC study team;
Soc Psychiatry Psychiatr Epidemiol. 2010 Apr;45(4):453-60;
http://www.ncbi.nlm.nih.gov/pubmed/19543844

“BACKGROUND:
Personality status is seldom assessed in community mental health teams except at a rudimentary level. This study challenges the assumption that this policy is either prudent or wise.”

“RESULTS:
In total, 40% of all patients in secondary care suffered from at least one personality disorder. Regression modelling showed personality pathology accounted for a greater degree of global psychopathology than psychosis, alcohol or drug dependence, but was associated with anxiety disorders.

CONCLUSION:
Comorbid personality pathology contributes greatly to overall psychopathology in secondary psychiatric care. It should be both recognised and managed.”

Submission to the Ministry of Health, New Zealand
On Rising to the Challenge: Mental Health and Addiction Service Development Plan 2012-2017
New Zealand Psychological Society; 07 Nov. 2012
http://www.psychology.org.nz/cms_show_download.php?id=1753

“2. Building infrastructure for integration between primary and specialist services
…To work effectively integration needs to fully utilise the skills of all involved in the delivery of mental health and addiction services. We have concerns about primary mental health being effectively channelled through GPs. Research recognises that GPs are not especially good at identifying common mental health problems (Mitchell et al., 2009). GPs also tend to rely on medication as a standard intervention and there is little evidence for the effectiveness of this approach for the mild to moderate conditions that present at primary care level (Kirsch et al., 2008). Providing funding to allow clients direct access to psychologists for example would be one effective away of enhancing access to primary care and mental health interventions other than medication.”

 

Apart from questions about problems with diagnosis in primary care, this submission is also of some interest when it comes to decisions about referring mentally ill into employment:

New Zealand Medical Association, submission on:
Rising to the Challenge: The Mental Health and Addiction Service Development Plan 2012-2017; 15 Nov. 2012
http://www.nzma.org.nz/sites/all/files/NZMA%20Submission%20on%20the%20Mental%20Health%20%26%20Addiction%20Service%20Development%20Plan%202012-2017.pdf

“However, the NZMA also has significant concerns relating to a number of areas in the Plan. These relate primarily to sources and models of funding. We note that the Plan is intended to advance the Government’s focus on better performing public services in the context of significant financial constraints. The NZMA is very concerned that the funding source for a number of identified priority services in the Plan (e.g. expanded access to psychological therapies in primary care, mental health promotion) is to come from ‘re-prioritised existing funding’ or ‘new demographic funding’. This is likely to create tensions between existing service providers, undermining collaboration in the sector and resulting in the cessation of some currently effective services. The NZMA is strongly of the opinion that attempts to address existing service gaps in mental health and addictions service provision should not lead to the opening of new gaps.”

“While the NZMA is supportive of measures to improve accountability at all levels of healthcare service provision, care must be taken to ensure such measures provide an accurate and reliable indication of performance. For example, monitoring the percentage of people with low-prevalence psychiatric conditions in employment/education as part of DHB accountability, as suggested in the Plan, is problematic; there are many barriers to employment/education other than mental health status, and these are often completely beyond the control of healthcare service providers. Once again, we recommend that greater consultation be undertaken with all stakeholders in order to determine the best measures of service performance.” (p. 2)

 

I have included the above reports and submissions, because it is a fact, that the Ministry of Social Development and Work and Income do primarily and almost exclusively rely on general practitioners (GPs) for examinations and recommendations they require, if a client’s own doctor or other health professional is not delivering the information and diagnosis they require or want!

While some GPs do possibly have some additional qualifications in areas psychiatric and psychological study, most do not. And a list of “designated doctors” that was obtained from the Ministry late last year, gave proof to the fact, that of the roughly 290 WINZ medical practitioners only a handful were psychiatrists.

So if medical reports are needed by WINZ case managers as part of work capability assessments, they are likely to be prepared by GPs. They will present them to the internal Regional Health and Disability Advisors, who are mostly either registered or not registered nurses, some other rather low ranking health professionals, or even social workers with additional papers. The only GP they employ is Dr David Bratt.

This gives reason to concern, as to the quality of such medical based assessments. The independence of the “designated doctors” WINZ use has also been questioned, and there have been anecdotal reports by some on social media, and in the mainstream media, that some such doctors are nothing but “hatchet doctors”. See also this article from the ‘Sunday Star Times’ and ‘stuff.co’ on 16 September 2012:

“Winz joins ACC in firing line for ‘hatchet doctors’”
http://www.stuff.co.nz/national/politics/7686228/Winz-joins-ACC-in-firing-line-for-hatchet-doctors
http://www.stuff.co.nz/sunday-star-times/latest-edition/7686104/Winz-joins-ACC-in-firing-line-for-hatchet-doctors

 

PART 10:
A summary list of articles and sources – expressing widespread concerns about the UK welfare reforms and the “findings” and approaches propagated by Professor Aylward and others:

 

Parliament UK, Parliamentary Business, Publications and Records, 21 March 2001
http://www.publications.parliament.uk/pa/cm200001/cmselect/cmpubacc/366/1032109.htm
(examination of witnesses, House of Commons, Select Committee on Public Accounts, Wednesday 21 March 2001)

MERGE is the Myalgic Encephalomyelitis Research Group for Education and Support (2004)
http://peter200015.tripod.com/ME/index.blog?start=1075965416

FOR UK PARLIAMENTARY INQUIRY INTO ME/CFS, Chronological list of documents relevant to the Inquiry authored by Professor Malcolm Hooper, Eileen Marshall and Margaret Williams 7th November 2005
http://www.meactionuk.org.uk/for_uk_parliamentary_inquiry_into_me.htm

Anglia ME Action: “The UK Medical Research Council has a secret file on Myalgic Encephalomyelitis (ME) that contains records and correspondence since at least 1988; the file is held in the UK Government Archive at Kew and cannot be opened until 2023”;
Professor Malcolm Hooper, Eileen Marshall, Margaret Williams, SEPTEMBER 2007
http://www.angliameaction.org.uk/corporate-collusion/

hetalternatief BLOG, Frank Twisk, NL: Letters to ‘Daily Telegraph’, and the Queen, 21.03.2008 and 02.04.2008 – Re Royal Society of Medicine allying with ‘Unum’:
http://www.hetalternatief.org/Royal%20Society%20of%20Medicine%20Konferentie%202008%20393.htm

‘READ ME UK EVENTS’, updates on UK ME protests (05-28.04.2008)
http://readmeukevents.wordpress.com/category/afmeaction-for-me/page/2/

The Guardian, ‘No turning back on fit-to-work test’, Amelia Gentleman, 06 Sept. 2011
http://www.guardian.co.uk/society/2011/sep/06/no-turning-back-work-capability-assessment

‘whywaitforever’, Blog, ‘DWP ESA Medical Examinations’, 2009 – 2012
http://www.whywaitforever.com/dwpatos.html
(“Due to illness this website is no longer updated. March 2013.”)

‘whywaitforever’, Blog, Atos In Business; 2009 – 2012
http://www.whywaitforever.com/dwpatosbusiness.html
(“Due to illness this website is no longer updated. March 2013.”)

downwithallthat, bigleyma is thinking…
“Archive for the ‘Professor Mansel Aylward’ Category”; July 2011 – Oct. 2012
http://downwithallthat.wordpress.com/category/dubious-academics-universities/professor-mansel-aylward/

‘People with ME’ Forum / News, advocacy and research. / Advocacy
http://peoplewithme.com/thread-679.html
(comments fr. 10.01. to 18.01.2012)

‘Illness as ‘Deviance’, “Work as Glittering Salvation and the ‘Psyching-up’ of the Medical Model: Strategies for Getting The Sick ‘Back To Work’”; by Gill Thorburn, Jan. 2012
http://internationalgreensocialist.wordpress.com/illness-as-deviance-work-as-glittering-salvation-and-the-psyching-up-of-the-medical-model-strategies-for-getting-the-sick-back-to-work/comment-page-1/

Publication (ebook) ‘Welfare reform – The dread of things to come’, edited by Jonathan Rutherford and Sally Davison, Published by Soundings 2012
http://www.lwbooks.co.uk/ebooks/Welfare%20Reform%20(revise).pdf

‘A Tale of two Models: Disabled People vs Unum, Atos, Government and Disability Charities’, Debbie Jolly, March 2012
http://disability-studies.leeds.ac.uk/files/library/jolly-A-Tale-of-two-Models-Leeds1.pdf

“Professor Mansel Aylward ~ My! What ‘A Very Tangled Web’”, Posted on September 9, 2012 by JJ
http://blacktrianglecampaign.org/2012/09/09/professor-mansel-aylward-my-what-a-very-tangled/

“Prof. M. Aylward increasingly under fire” – DNS 14 Sept. 2012:
http://disabilitynewsservice.com/2012/09/former-dwp-medical-boss-makes-wca-pledge-to-protesters/

UNUM/DWP/ATOS SCANDAL: TRANSCRIPT ~ Prof. Sir Mansel Aylward defends his record, makes pledge when confronted by Black Triangle and DPAC at IFDM2012; 15 Sept. 2012
http://blacktrianglecampaign.org/2012/09/15/unumdwpatos-scandal-transcript-prof-sir-mansel-aylward-defends-his-record-makes-pledge-when-confronted-by-black-triangle-and-dpac-at-ifdm2012/

‘Academic Angela Kennedy Responds to Professor Sir Mansel Aylward’s Statements to Black Triangle and DPAC’, 20 Sept. 2012
http://kickingthecat.wordpress.com/2012/09/20/academic-angela-kennedy-responds-to-professor-sir-mansel-aylwards-statements-to-black-triangle-and-dpac/

“Unum, Atos, the DWP and the WCA; Who gets the blame for the biopsychosocial saga?”, Mike Sivier, Vox Political, Politics and discussion from the Heart of Wales, 18 Jan. 2013
http://mikesivier.wordpress.com/2013/01/18/unum-atos-the-dwp-and-the-wca-who-gets-the-blame-for-the-biopsychosocial-saga/

DWP Examination, Free Speech for Disabled, ‘Agenda Reports by Mo Stewart’, 2013
http://dwpexamination.org/forum/the-governmants-agenda/agenda-reports-by-mo-stewart/

(PPlog (Patient and Public Log) is an independent Service User watchdog/monitor, and a base for blogs for Norfolk Disabled People Against the Cuts (DPAC)
http://micoxpplog.blogspot.co.nz/

Rehab News, UK, 11 June 2013, ‘Disability benefit changes introduced across UK’
http://www.rehabwindow.net/Display.aspx?ID=1842

 

There is an immense amount of justified criticism of the approaches propagated, the BPS model interpreted and used according to Mansel Aylward, Gordon Waddell, Kim Burton and others, and how this has resulted in endless cases of harm and fatalities during implementation of severe work capability testing and welfare reforms in the United Kingdom. Questions about the BPS model have been highlighted, as to whether it meets the needed high standards for medical science and practice.

There are indications of possibly corrupt decision-making practices, by professional persons in key positions at the DWP, ATOS Healthcare and Unum. Some critics have accused Professor Aylward of having acted inappropriately and unethically, while having a conflict of interest in roles he held and still holds. Time will tell what can be proved and what has happened, but eventually a clearer picture will emerge.

The least that can be said is, the welfare reforms in the UK have been a disaster, and they have caused high numbers of affected beneficiaries suffering, harm and death.

 

Part 11:
Some criticism expressed about developments in New Zealand:

 

“More concerns about the current UK Welfare Reform”
Margaret Williams, 22nd January 2012
http://www.meactionuk.org.uk/More-concerns.htm

Extract:
“This non-evidence-based but pervasive biopsychosocial ideology is now being foisted on the unsuspecting people of Australia and New Zealand, because in May 2010 Aylward wrote a report for the Australasian Faculty of Occupational and Environmental Health (Realising the Health Benefits of Work: A Position Paper. Professor Sir Mansel Aylward CB; Director: Centre for Psychosocial Research and Disability Research, Cardiff University (the Centre being funded by the health insurance company UNUM Provident).

In it, Aylward asserts:

“Fundamental Precepts:
Main determinants of health and illness depend more upon lifestyle, socio-cultural environment and psychological (personal) factors than they do on biological status and conventional healthcare

Work: most effective means to improve well-being of individuals, their families and their communities

Objective: rigorously tackling an individual’s obstacles to a life in work.

“Making the distinction: definitions and usage:
Disease: objective, medically diagnosed pathology
Illness: subjective feeling of being unwell
Sickness: social status accorded to the ill person by society”

CCS Disability Action – ‘Including all people’:

“Welfare reform in the United Kingdom and what it could mean for us in New Zealand”
3/10/12 • Posted in Social Model of Disability, Welfare Reform
http://includingallpeople.org.nz/?p=385

DWP Examination Forum – 11 Jan. 2013

“its getting bad worldwide atos unum abuse its really time they want us gone” –
“New Zealand: ‘British-style work tests concern’ ~ tests were developed partially work of disability expert Professor Sir Mansel Aylward”, 11 Jan. 2013:
http://dwpexamination.org/forum/general-discussion/its-getting-bad-worldwide-atos-unum-abuse-its-really-time-they-want-us-gone/

New Zealand: “‘British-style work tests concern’ ~ tests were developed partially work of disability expert Professor Sir Mansel Aylward”, 12 Jan. 2013
http://atosvictimsgroup.co.uk/2013/01/12/new-zealand-british-style-work-tests-concern-tests-were-developed-partially-work-of-disability-expert-professor-sir-mansel-aylward/

Scoop – independent news: ‘Proposed Work Tests Are Concerning’, 14 Jan. 2013
http://www.scoop.co.nz/stories/GE1301/S00016/proposed-work-tests-are-concerning.htm

“Welfare Reform; Real change or tilting at windmills?”
17/7/13 • Posted in Aging, CCS Disability Action
http://includingallpeople.org.nz/?p=732

“Govt will pay to shift mentally ill into work”
Herald on Sunday, by Lynley Bilby, 30 June 2013
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10893823

“Mentally ill people will be moved off state-funded benefits and into work using private employment agencies who will earn hefty fees for the service.

The Herald on Sunday has obtained leaked Ministry of Social Development documents detailing plans to get people suffering from depression, stress and anxiety disorders into paid work.”

“Welfare group warns thousands will suffer after changes”
The New Zealand Herald, 15 July 2013, by Simon Collins, Teuila Fuatai
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10898243

“Welfare now has health warning”
The New Zealand Herald, 16 July 2013, by Simon Collins
http://www.nzherald.co.nz/lifestyle/news/article.cfm?c_id=6&objectid=10898616

 

The controversial legislation for radically reforming New Zealand welfare:

New Zealand Parliament
‘Social Security (Benefit Categories and Work Focus) Amendment Bill’
Evidence / Submissions presented to Social Services Committee (732)
http://www.parliament.nz/en-nz/pb/sc/documents/evidence/?custom=00dbhoh_bill11634_1

 

PART 12:
A Danish Report which contradicts some of the claims by Aylward, Waddell et al., and which delivers no real surprises, naturally from a country using a more progressive, fairer welfare system:

 

More relevant research showing how the Danish welfare and insurance model offers more realistic, objective unsurprising data – and apparently better outcomes:

“Transitions between sickness absence, work, unemployment, and disability, in Denmark 2004–2008”;
by Jacob Pedersen, MSc, Jakob Bue Bjorner, MD, Hermann Burr, PhD, Karl Bang Christensen, PhD; Scand J Work Environ Health 2012, vol 38, no 6:
http://www.google.co.nz/url?sa=t&rct=j&q=h%20eriksen%20models%20of%20sickness%20and%20disability&source=web&cd=4&cad=rja&ved=0CDsQFjAD&url=http%3A%2F%2Fwww.sjweh.fi%2Fdownload.php%3Fabstract_id%3D3293%26file_nro%3D1&ei=uSzmUZWWI6LuiAfo74C4Bg&usg=AFQjCNF0IAD6Lnaxv_wJXBm4_XVyM4bepg

“One of the keystones of the Nordic economic model is the flexible labor market, which is substantiated by a social security system that acts as a safety net when an employee becomes unemployed, sick-listed, or partly or permanently work disabled. This is often referred to as the “flexicurity model”.“ (p. 516)

“Usually individuals are likely to shift between states several times over time, but in almost all research papers only one of these shifts or transitions is investigated. A larger model that includes all states at the same time is needed to attain a better understanding of transitions between several states, and in particular, how transitions influence later outcomes (7).“ (p. 517)

“Discussion:
The Danish Flexicurity model is founded on the flexible labor force and the social welfare system. The approach of the present paper determines the efficiency of the Danish flexicurity model in assisting people to return to the labor force after being sick-listed and possibly unemployed. It determines the flexicurity model’s ability to include people in the job market that have a chronic disease or are pregnant.”

“The results show that Copenhagen in particular has a relative high labor force participation, which is unsurprising as Copenhagen has the largest population and the majority of the job market. The flow of the transitions shows that the Copenhagen region has difficulties getting people to return to work and a low probability of granting disability pension.”

“In comparison, the much less populated region of North Jutland has a relatively high probability of allocating disability pension. The differences between regions demonstrate the regional labor force difficulties that Denmark faces, in which younger people in particular, travel to the larger towns to find education and work.”

“The flow between the states of work, sickness absence, and unemployment confirms the official numbers; most people on sick leave return to work strictly afterwards, a trend that was increasing during 2004–2008 [82.2% in 2004 and 84.0% in 2006 (16)]. In addition, less people became unemployed after sick leave (7.3% in 2004 and 6.1% in 2008).”

“The results on age groups show that young people have a high risk of becoming unemployed after sicklisting, and that people over 40 years have an increased risk of becoming unemployed and attaining disability pension. The elderly becoming work disabled is probably a consequence of a long working life and physical and mental disabilities concerning the working environment. The high probability of unemployment after sickness absence is an example of one of the core elements of the Danish flexicurity model, which entails a relative easy procedure for an employer who wants to lay off a sick-listed employee (17, 2).”

“The results cannot be transferred directly to other countries because of the high influence of Danish laws and regulations concerning the job market and social payments. In addition, the results cannot be generalized to the entire work force, as the analyses only include sick-listed persons, yet the importance of economic coverage when an employee gets sick-listed is explicit.” (Pages 524 to 525)

 

Summarised conclusion:

This paper by ‘Pedersen et al’ shows that movements onto benefits are usually not just heading into one direction, but that most who suffer sickness actually return to work and stay in work, although there is a higher risk to return to periods of ill health, if one such period has occurred. That though may simply mean that once a more serious health issue develops, this often leads to further deterioration over time.

In Denmark movements appear quite normal and explainable, and with a fairer welfare system, good health system, where better benefits and conditions are offered, there is more participation in the work force.

One wonders, how would things look like in the UK or New Zealand, when sick and disabled would be treated with respect, treated well and get paid benefits that allow persons to recover and return to some acceptable, suitable work, rather than being punished with low benefits, low (minimum) wages and draconian sanctions to comply with pressures to take on jobs the welfare agencies may consider “suitable”!

 

PART 13:
Final summarised analysis and conclusions on all issues raised:

 

Looking at the “evidence” Mansel Aylward has presented to back his claims that work is good also for the health and wellbeing of sick and disabled, it becomes rather clear, that his reports actually lack sufficiently clear and compelling evidence. The information presented as “evidence” consists primarily of information extracted from selected reports by other, mostly similarly minded medical “experts” and researchers. Also is certain data from official welfare statistics being used, which seems to be of limited value to explain reasons, causes and effects of unemployment and health problems. It appears that there is a need for further research in the areas of mental health, and also musculo-skeletal disorders. This is even mentioned in virtually all reports, same as the fact that the “findings” relied on often lack diagnostic clarity. Nevertheless Professor Aylward, his named colleagues and his supporters continue with their claims that “work is generally good for health”, is “beneficial” – and even “therapeutic” – for those, who return to work despite of sickness and disability.

Professor Aylward, Waddell, Burton, Eriksen and a few other proponents of the variously interpreted BPS model are furthermore attempting to question the existing medical practice of diagnosing “common mental health” and “musculo-skeletal” conditions. Aylward and his like minded “experts” appear reluctant to accept the existence of a range of now widely accepted illnesses and disorders, and by constantly talking of “common health problems” and “subjective health complaints” they blur the lines between serious and less serious illnesses. They have a dismissive view of certain “common” illnesses, and the fact that diagnosis is limited due to not (yet) detectable organic, physical signs, is being used to justify treating them as rather minor complaints or symptoms. The term “bio psycho-social” is used for these “common” illnesses, which then justifies pushing the affected to return work.

In their more recent report “MODELS OF SICKNESS AND DISABILITY – APPLIED TO COMMON HEALTH PROBLEMS” (from 2009 / 2010) Waddell and Aylward have already qualified and moderated many earlier claims and “findings”, and admitted that there are substantial problems and limits attached to the BPS model. One reason for the rethink appears to have been motivated by the wave of criticism from those affected by very stringent work capability testing and welfare reforms in the UK, same as that from some disability advocates and medical and rehabilitation professionals. But on top of that, a realisation may be setting in, that these “subjective” and “common” “health complaints” may simply not so easily be physically diagnosable for the mere fact, that the cause for them lies in not yet discovered metabolic, bio-chemical or other phenomena. Genetic pre-disposition may at least contribute to them, and interactions between physical and neuro-chemical activities in the body of persons suffering from them, may not be sufficiently researched.

It is irresponsible for Mansel Aylward and his like-minded colleagues and followers, to continue making the stated assertions re the “health benefits of work”, while so far insufficient research, which should also be independent from funding by a controversial private insurance corporation (conflict of interest), has not been expanded, extended and conducted. It is equally irresponsible that governments, their departments or agencies rely so heavily on Mansel Aylward’s “findings”, to introduce unsuitable, scientifically unproved, unbalanced and questionable medical and work capability assessments, while no proper, alternative, independent and objective research has been conducted in the areas of disability, illness and how it affects workers, as well as how an early return to work may adversely affect the persons suffering such illnesses. Instead of such single minded emphasis on “work”, the more honest approach would be to acknowledge that there are some benefits in physical and mental activities for sick and disabled (where possible). That does though not automatically equate to “work”, especially not in demanding, performance and pressure driven “work” in “open employment” on the “open” job market.

It appears that governments delivering social services, same as insurers offering insurance for sickness, disability and accidents, and also employers wanting to enforce more rigorous sick leave controls on their workers, have an interest in Mansel Aylward’s approach, as it delivers them a useful, supposedly “scientifically” based set of information and “tools”, to ultimately save costs.

Yet while income loss is the result of workers not being able to work, and while welfare benefits have been kept low or cut over years in many developed countries, people who have to stop working for sickness and disability reasons, have a very logical motivation and interest already, to try to return to work as soon as possible. Most do return to work, once they are able to work. They have a natural interest in earning a living to afford themselves and their families a better life. They will only choose to go and see their doctor, to report genuine health problems, because they are sick and feel ill. It would be very few workers who would voluntarily choose to opt out of work for reasons of prolonged sickness and ill health, as they would consequently suffer loss of income, job- and hiring-security, and in living standards!

This then raises the question for the motivation behind this “research”, these “findings” and the whole approach to urge sick and disabled back into work! In this regard one must take note of Mansel Aylward’s long history of contacts and involvement with ‘Unum’ (formerly ‘UnumProvident’), who had for many years not only been advising the Department for Work and Pensions, the UK government and health service providers, but also financed the very research that Professor Aylward and his colleagues have been conducting at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University. Unum was in the US sued for following illegal practices in denying grants to claims by insured, and found guilty in Californian and other courts. It is truly amazing that the same corporation was received with open arms by UK governments to advise them and have input in developing welfare policies, intended to limit and contain the number of welfare claims there.

Disability organisations and outspoken critics have in the UK exposed the connections between the DWP, Mansel Aylward and Unum, same as those between them and Atos Healthcare, who are the only (private) enterprise working as “assessors” for DWP. It is for some absolutely unbelievable that Mansel Aylward is still being respected and listened to by the UK government, same as other governments, health service providers, by professional organisations and unions.

That is while It all resembles nothing much else but a large scale agenda that is being followed, where Mansel Aylward and his allied “experts” intend to influence governments to adopt their version of the BPS model and their advice on how to “reform” welfare and health services, and save costs by getting beneficiaries referred back into open employment. Virtually all the “experts” like Aylward, Waddell, Carol Black, Dr David Bratt and Dr David Beaumont, now here in New Zealand, have a vested interest in the proposed measures being introduced and implemented.

Some operate or manage own agencies and businesses that would benefit from these, some have connections to prospective service providers, Aylward and Waddell and others have enjoyed financing and payment by Unum (and possibly other private operators). Governments and employers have an interest in reducing work absence, long term illness and disability, all for pure cost saving reasons.

Yet it is totally irresponsible, to adopt and follow approaches and models that are questioned, not sufficiently scientifically proved and thus controversial, while being obsessed with cutting costs in the welfare area by all means. That is the agenda, cost savings, and culling sick and disabled off benefits, and they are even going to contract out to private agencies, who will get paid handsome fees for pushing the beneficiaries into mostly low paid, not much demanding, unfulfilling jobs.

I am posting and publishing this lengthy article for the reasons that I am extremely concerned about the questionable justifications, the lack of morality and stubborn determination with which the new welfare reforms are being implemented. I am highly concerned about the potential harm that will be caused to sick, disabled, their friends and families, when things will inevitably go wrong, and when disasters will occur.

Personally I would support proved, effective, balanced, fair and reasonable measures to rehabilitate seriously ill and disabled and assist them into some forms of work. I support efforts to treat, empower, up-skill, train and educate those affected, to give them respectful, realistic chances to do suitable work, where it may be possible. The affected must first of all be allowed own input. Yet the reforms that have come into force on 15 July this year have not been backed up by additional funding to achieve this. A proposed plan called “Rising to the Challenge: The Mental Health and Addiction Service Development Plan 2012-2017” is lacking clarity and sufficient funding commitments, and it has in submissions been strongly criticised. There is no clear indication that substantial investments will be made to provide for more treatment programs. The concern is that mass medication by GPs will take place, and that mentally ill and addiction sufferers will be fast tracked into outsourced “mental health employment services” once such low cost “treatments” are in place.

When Aylward and others talk about “culture change”, then one would expect this to be implemented across society also, but while there are already plans being made to start employment referrals for mentally ill, there is no indication that employers and the public at large are being educated and compelled to honestly respect mental health sufferers and other disabled and treat them fairly.

Changes in law and within existing systems are needed; and better incomes and safe, good, healthy working conditions must be ensured, before any such trials should even be considered. Yet there is NO sign of such changes.

So while we have heard a lot of talk from Minister Paula Bennett, Prime Minister John Key, Finance Minister Bill English and others, the actual picture is, that all the proposed changes, based on “findings” and “approaches” presented by Mansel Aylward and others will achieve little or nothing, will not reduce the marginalisation of disabled and long term sick, will not offer better outcomes for them to live more independently and dignifiedly. The likely result will be some referred into low quality, low value, unstable, low paid jobs, into which many will drift in and out of. The “second class” citizens that disabled are already will merely be turned into “second class” workers, which will do anything but help and de-stigmatise them. Some employers may even try abusing the intended, privatised employment programs.

It is also clear, that the agenda to reform the welfare system was drawn up years ago, before 2010, and that the whole “consultation process” was largely not more than a “circus” and manipulative “show” for the observing wider public. The Select Committee process for the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill’ was a farce also, as submitters were in their vast majority opposed to the way these “reforms” were designed and planned to be implemented. Yet only cosmetic changes of insignificance were made to a minimal number of provisions.

Sadly the seriously sick and disabled beneficiaries with mental health and other conditions are being used or abused for a large, high risk socio-economic and medical experiment, with medical professionals being dragged into it, to co-operate to degrees that may cause conflicts with their own professional codes of ethics. All this happens while too many in the wider public are ignorantly “sleep-walking” through their daily routines and challenges, under constant distractions by a largely poorly informing media. Even those affected by the reforms seem mostly “comfortably numb”, until they may eventually be “hit” themselves, when WINZ unexpectedly calls them in for a work capability assessment and work preparations.

 

Yours sincerely

 

Honestly Concerned Author

‘Quest for Justice’

26 July 2013

 

P.S.:
This analysis with an abundance of resource links, quotes and comments can also be found on ‘ACC Forum’ via this link:

http://accforum.org/forums/index.php?/topic/15188-medical-and-work-capability-assessments-based-on-the-bps-model-aimed-at-disentiteling-affected-from-welfare-benefits-and-acc-compo/

 

FURTHER INFORMATION ADDED TO THIS TOPIC:

 

ADDENDUM 1 (27 Oct. 2013):

There is some more highly interesting and revealing information that I wish to add here, which shows how far the “experts” around Professor Mansel Aylward and his “research department” at Cardiff University have gone in the past, to gather together the rather selectively chosen and variously “interpretable” kind of supposedly “scientific” research data justifying their general approach.

A) This is a report by a Professor Halligan, senior psychologist from Cardiff University, which he published together with some colleagues:

“Malingering and illness deception”

„Wilful deception as illness behaviour”; First published 2003 – by:

Peter W. Halligan, School of Psychology, Cardiff University;

Christopher Bass, Department of Psychological Medicine, John Radcliffe Hospital,

Oxford; and David A. Oakley, Department of Psychology, University College, London

Link:

http://www.afteratos.com/wp-content/uploads/2011/11/Malingering_and_Illness_Deception.pdf

Extracts:

“The meeting which formed the basis for this book would not have been possible had it not been for the enthusiastic support of Professor Mansel Aylward and funding from the Department for Work and Pensions.“

“Abstract

Sensitivities and confusion regarding the nature of illness deception continue to be a major feature of modern medicine and social security policy in most Western democracies. Although biomedical models continue to dominate current definitions of illness deception, neither of the standard psychiatric glossaries consider malingering—the intentional production of false or exaggerated symptoms motivated by external incentives—to be a valid diagnostic term. In this chapter, we argue that illness deception does not need to be medicalized in order to be understood as a coherent explanatory construct in its own right. The fact that health and non-health related deception is commonly practiced within society and that public attitudes towards fraud and deception are largely equivocal, suggests that it is reasonable to view illness behaviours from several conceptually non-medical perspectives. This is clinically and theoretically important, since disagreements both within and outside the medical community about the fundamental nature of illness deception are still largely framed in medical parameters given the absence of credible or acceptable non medical accounts. Discussion of illness deception outside medicine is meaningless without an explicit recognition and acceptance that an individual’s choice to feign or exaggerate symptoms is a legitimate explanation for some illness behaviours associated with personal or financial incentives.”

Further extract from publication by Halligan et al:

“4 Can monkeys malinger?

Richard W. Byrne and Emma Stokes

“Abstract

It is often helpful, when examining a subtle or vexed issue, to take an outside perspective. The nonhuman primates present opportunities for doing just this, with respect to malingering. Monkeys and apes live in long-lasting and often complex social milieus, in which there are profits to be made by malingering—and indeed, malingering has been found in many species, and of a rich panoply of types, limited more by opportunity than cognitive flexibility. Yet most of these animals are believed, with reason, not to understand the intentional states of others; only the great apes may properly intend to malinger. Perhaps much more malingering in humans is ‘unintentional’ than is commonly thought? Disablement in chimpanzees and gorillas, a result of snare injury, allows us to see how well they can compensate for loss of capacities, uncontaminated by the help of others since help is not offered in ape society. Nevertheless, remarkable compensation is possible, by means of low-level flexibility rather than reorganization of technique, sometimes enabling severely maimed apes not only to survive but thrive. Considerable overlap in apparent efficiency levels was found between disabled and able-bodied apes, even though there could be no profit from malingering. This raises the question of whether measures of overt efficiency can ever be reliable in assessment of human malingering, where there may be real motivation to conceal capacities for gain.”

 

Own Comment on this:

When you go as far, as trying to find evidence for “malingering” behaviour in primates, to prove that humans must naturally also have a general tendency to “malinger”, and to pretend to be ill, then this raises questions about how “serious” – or rather bizarre – such “science” is!

 

B ) Also see this blog for information on Professor Halligan, Unum Provident, and the ‘Unum Centre for Psychosocial and Disability Research’ at Cardiff University:

‘Topic: Unum Is Still Doing It to the Disabled 1/15/11‘

http://www.mecfsforums.com/index.php?topic=4835.0

See extract from a “reply 2” by ‘Beorc’, 18 Jan. 2011:

“In 2004, Unum opened its £1.6m Unum Centre for Psychosocial and Disability Research at Cardiff University. Mansel Aylward retired from his post as Chief Medical Officer at the Department of Work and Pensions and became its Director. He was joined by Professor Peter Halligan who had forged the partnership with Unum, and Gordon Waddell an orthopaedic surgeon turned academic. The launch event was attended by Archie Kirkwood, recently appointed Chair of the House of Commons Select Committee on Work and Pensions. Malcolm Wicks, Minister of State in the DWP gave a speech praising the partnership between industry and the university.”

 

C) “Here we go again … another victim of DWP medical tyranny…”
by Mo Stewart, TAXPAYERS AGAINST POVERTY, 09 July 2012:

http://www.taxpayersagainstpoverty.org.uk/here-we-go-again-another-victim-of-dwp-medical-tyranny/

Extract:

“In his last report, Pro Harrington recommended that the Atos assessment was just one opinion about a claimant’s ability to work, and one of several medical opinions to be considered by the DWP (totally unqualified) Decision Makers when considering if an applicant is unfit for work and to be awarded disability benefit.

Re: http://www.dwp.gov.uk/docs/wca-review-2011.pdf

Why are these letters still being sent out, demonstrating yet again that the only opinion being considered by the DWP is that using the compromised Atos assessment that’s ‘totally unfit for purpose’ (CAS) ??

The reported comments from the DWP go though the motions of claiming that all medical opinion is considered but, clearly, from the letter received, nothing has changed.”

 

D) “Illness as ‘Deviance’, Work as Glittering Salvation and the ‘Psyching-up’ of the Medical Model: Strategies for Getting The Sick ‘Back To Work’“ –

by Gill Thorburn, Black Triangle Campaign, 25 July 2012 (this article may already have been posted in a comment further above by the way)

Link:
http://blacktrianglecampaign.org/2012/07/25/illness-as-deviance-work-as-glittering-salvation-and-the-psyching-up-of-the-medical-model-strategies-for-getting-the-sick-back-to-work/

“The one thing I am absolutely unreservedly and implacably opposed to in all of this is a real world test.” – Chris Grayling, Minister of State, Department for Work and Pensions, 2011.

 

E) DWP/UNUM/ATOS SCANDAL ~ Professor Simon Wessely: ”It is only human for doctors to view the public as foolish, uncomprehending, hysterical or malingering”

by JJ (Co Founder of Black Triangle), Black Triangle Campaign, 09 September 2012 http://blacktriangle…or-malingering/ “Emily Collingridge, 1981-2012: such a short life, such a huge legacy” “Her memory gives us strength …” ‘After all, this planned withdrawal of support may begin with the ME population, but which group of disabled UK people who are deemed unworthy of State support on the basis of costly non-productivity will be targeted next?’

Margaret Williams writing in 2007 in “Wessely, Woodstock and Warfare?”

Other extract in blog thread: “By incorporating the Biopsychosocial Model into disability assessment, we can identify critically important information on obstacles to recovery, which in many cases can be tackled by an integrated package of support such as that offered in the Pathways to Work pilots and as provided by UnumProvident’s Claims Management and Rehabilitation Services”. As quoted from Mansel Aylward

 

ADDENDUM 2 (27 Oct. 2013):

This may be of interest too, for some, re Professor Mansel Aylward and his past “endeavours” and “involvements”:

“Top doctor in job for wife row”

The Independent, Mark Rowe, Sunday 29 March 1998

http://www.independent.co.uk/news/top-doctor-in-job-for-wife-row-1153041.html#

 

EXTRACT:

“THE chief medical adviser to the Department of Social Security, Dr Mansel Aylward, was behind the setting up of a company that enables civil servant doctors to process health insurance claims.

The company, Mediprobe, which puts doctors in contact with major health insurance companies, has Dr Aylward’s wife, Angela, listed as director.

It has also emerged that Mediprobe, which is totally independent of the DSS, has paid Dr Aylward for work done on its behalf, even though he was advised he could not be involved in the establishment of the company.”

“Details of Mediprobe, whose trading name is the Nationwide Medical Examination Advisory Service Ltd, listed at Companies House in Cardiff show two directors, Colin Cornelius and Dr Aylward’s wife, Angela, who is also company secretary. Accounts for the 15 months from December 1995 to March 1997, filed at the start of this year, show that the two directors received pounds 36,000 renumeration and pounds 30,000 in pension contributions.”

 

Own Comment:

One rule for the sick and disabled suffering for instance from mental health issues or muskulo-sceletal conditions, another rule for Professor Dr Mansel Aylward and his wife, when it comes to applying fairness, legality and conflicts of interest!

 

ADDENDUM 3 (19 Nov. 2013):

And already now there are such stories coming through the media here in New Zealand, which are early signs of yet more troublesome things to come:

“Winz apologises to sick woman placed on wrong benefit”

Read the full story here! A link to the article on ‘The New Zealand Herald’, online edition from 18 Nov. 2013 is here:

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11158863

“Work and Income New Zealand has apologised to a woman with a debilitating medical condition for placing her on a benefit requiring her to find work.

Carolyn Gane was denied a supported living payment, previously known as an invalid’s benefit, despite having her GP’s recommendation and was instead placed on jobseeker support, previously known as the sickness benefit.

Jobseeker support is for people who can work but are temporarily unable to do so, and requires them to seek employment while receiving benefit payments.

The 49-year-old Hamilton mother of four is afraid to leave her house in case she has an “embarrassing accident” caused by medical problems with her bowel, and was gobsmacked when Winz deemed her fit for work.

Ms Gane was diagnosed with diverticular disease in 2008 and irritable bowel syndrome in December. The medical conditions cause her pain and to lose control of her bowel with little warning, and as a result she rarely leaves her house in Hamilton East in case she is caught.”

“A medical certificate supplied to Winz in July meant she had short-term exemption from finding work, but last month Ms Gane’s condition worsened and her GP, Dr Tiwini Hemi from the Tuhikaramea Medical Centre, deemed her unable to work in the longer term. She used the medical report to apply for the supported living payment.

A letter from Winz said Ms Gane did not meet the medical credentials to qualify for the benefit and would remain on jobseeker support.

Winz Waikato Regional Commissioner, Te Rehia Papesch, said they had made an error and would be re-examining Ms Gane’s case.”

I see there have also already been many other articles in the media about planned outsourcing of work capability assessments and other services here in New Zealand, hence this country is under the present government definitely following the UK approaches now!

 

ADDENDUM 4 (02 Dec. 2013):

The following is delivering evidence that the ones like Professor Mansel Aylward, Professor Gordon Waddell (and others) referred to (see comments further above in this thread) are somehow getting their “research”, “analysis” and “reports” wrong. There is evidence that poverty itself is more of an issue, than their perceived “worklessness”:

From the website ‚THINK PROGRESS’ read the following article there:

‘Poverty Has Same Effect On The Brain As Constantly Pulling All Nighters’

(By Bryce Covert on August 30, 2013 at 8:54 am)

Link:

http://thinkprogress.org/economy/2013/08/30/2555601/living-poverty-effect-brain-constantly-pulling-nighters/#13793150870871&action=collapse_widget&id=9230521

On that same website and forum this article with further resources can be found also:

‘Kids Who Overcome Poverty Are Still In For A Lifetime Of Medical Problems’

(By Sy Mukherjee on May 31, 2013 at 2:25 pm)

http://thinkprogress.org/health/2013/05/31/2079601/kids-poverty-medical-problems/#13793138158751&action=collapse_widget&id=3441677

 

ADDENDUM 5 (02 Dec. 2013):

Here is some further evidence, that was already presented in ‘The New Scientist’, proving that austerity measures in the welfare and health care areas can have disastrous, unexpected results, that will cause governments more costs in future, than any costs that they may achieve to save in the short term:

The New Scientist, edition 11 April 2013

http://www.newscientist.com/article/mg21829122.800-the-hidden-costs-of-austerity.html

Please note, that this article is available via the above link, apparently freely accessible there on the internet, while some publications appear to be copyright protected. I presume therefore, the below extract from it is only a part of the complete report:

The hidden costs of austerity

11 April 2013; magazine issue 2912

“In making deep budget cuts, politicians are experimenting with the health of nations, not just their wealth.”

“ECONOMIC austerity seems here to stay – at least for the foreseeable future. Any hope that a sharp dose of belt-tightening would quickly give way to resurging prosperity has melted away. And like an impolite house guest outstaying their welcome, its demands seem ever more burdensome as time goes on.

The longer austerity lasts – and it is only just getting under way in earnest in some countries, such as the UK – the greater the toll on our most vulnerable citizens. It is no surprise that this will affect their health.

Eurozone countries have already provided object lessons in just how severe such effects can be: the incidence of mental illness has shot up, long-vanquished infectious diseases are making a comeback, and people have been driven to extraordinary lengths to obtain even basic medical supplies from failing healthcare systems (New Scientist, 26 May 2012, p 6).

Even in the cautiously optimistic US, researchers from the Center on Budget and Policy Priorities in Washington DC have warned that budget cuts mean up to 750,000 people living in poverty could lose access to a vital supplemental nutrition programme.

And as we report on “Cost of cuts: Austerity’s toxic genetic legacy”, the immediate consequences of austerity may give way to more enduring and insidious effects on health. It is plausible that protracted economic hardship will lead to increases in heart attacks, strokes and depression. Stress hormones are known to trigger or exacerbate these conditions, and it is hard to argue that those worrying about the security of their jobs, homes, families and finances are not experiencing high levels of stress.

The studies of stress conducted so far relate mostly to people who suffer from loneliness and social exclusion. They show that it causes wholesale reprogramming of genes in white blood cells, which in turn drives chronic inflammatory conditions. We also know that growing up in deprived conditions reshapes genes for life, and there is suggestive evidence that stressful events early on – perhaps even before birth – may become “biologically embedded” via altered gene activity.

If we can find behavioural or pharmacological ways to “switch off” the adverse gene programming, we may be able to mitigate the harm. But the research is still at an early stage, and some of the key findings so far relate to animals, not people.

We also don’t know if the findings apply to the kinds of stresses we are enduring. It’s conceivable that the prevailing social conditions affect people’s response: the stresses of war against a common foe might be very different to those of a socially divisive financial crisis, for example. Or it might be that stress is stress, biomedically speaking.

Much ink has been spilled debating the fiscal merits of austerity. Its effects on health, on the other hand, have gone largely undiscussed, the assumption being that they will dissipate as the belt-tightening does.

But if genetic responses to stress have long-term effects, perhaps lasting for generations, politicians must reconsider solutions to what they see as a purely economic crisis. Because austerity is not just an experiment with the wealth of nations. It is an experiment with their health, too.”

Note: This article appeared in print under the headline “The true cost of cuts”

 

ADDENDUM 6 (02 Dec. 2013):

As perhaps already mentioned in another thread on this blog forum, here is what the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman, has found out about the “patchy use of evidence in government”:

From ‘Sciblogs’:

‘Gluckman’s audit finds patchy use of evidence in government’

Extract:

“The Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman, says there is “little consistency” in the use and respect for research-derived evidence in government and has called for a more systematic use of it in policy formation and implementation.

Sir Peter today released the report The Role of Evidence in Policy Formation and Implementation, which included an audit of government departments to see how many scientifically trained advisors they have in-house, their processes around use of scientific evidence and whether they have a departmental science advisor.

He also looked at protocols in place for seeking scientific advice and the practice of peer review in Government-commissioned research.

“Worryingly, some officials had limited understanding of the scientific process of knowledge production, or were uncertain about it. In addition, they were not clear on how research-based evidence could be used to support policy processes,” he writes.

“Rather, it seemed that some preferred to work from their own beliefs or rely on their own experience. At its extreme, I find this deficiency to be unacceptable. In part, I think these deficits reflect the dire need to build some basic competencies in research methodologies and critical appraisal skills across the public service, and to bolster the leadership ranks with people formally trained in the relevant disciplines.”

His recommendations include:
• The establishment of government-wide formal protocols to guide policy makers in sourcing quality research-based advice.
• The appointment of Departmental Science Ad- visors to major ministries.”

Here again is the link to ‘Sciblogs’ website and complete publication and comments on it:

http://sciblogs.co.nz/griffins-gadgets/2013/09/03/gluckmans-audit-finds-patchy-use-of-evidence-in-government/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+sciblogsnz+%28SciBlogs.co.nz%29

Here is a link to downloadable PDF document with the complete audit report on this:

http://www.pmcsa.org.nz/wp-content/uploads/The-role-of-evidence-in-policy-formation-and-implementation-report.pdf

Title:

“The role of evidence in policy formation and implementation” –
A report from the Prime Minister’s Chief Science Advisor

September 2013

 

Own Comment:

The report and an included table (see ‘Sciblogs’) show, that the Ministry of Social Development is not well advised on science and research, and therefore appears to have issues with using “evidence” in their policy formation and implementation.

 

ADDENDUM 7 (02 Dec. 2013):

The following story and publication gives yet another perspective on the welfare reforms, as they were initially introduced in the UK, and how they are now increasingly being implemented here in New Zealand, following questionable “research” and “findings” by Mansel Aylward, Gordon Waddell et al, and certainly supported and pushed for by Work and Income’s relentlessly pushing “Principal Health Advisor”, Dr David Bratt, who according to other information once also had a questionable track record when working for, or advising ACC:

‘A lesson from NZ on the hazards of punitive welfare reform’

By Melissa Sweet, September 22, 2013 (3:36PM)

Link to blog article:

http://blogs.crikey.com.au/croakey/2013/09/22/a-lesson-from-nz-on-the-hazards-of-punitive-welfare-reform/

“The toll that structural violence takes upon disadvantaged people in NZ was highlighted in a keynote address to the Public Health Association of Australia’s annual conference in Melbourne last week.

Darrin Hodgetts, Professor of Societal Psychology at the University of Waikato, described how punitive welfare reforms exacerbate the difficulties faced by many people who are already struggling, and said that state agencies increasingly enact repression rather than care.”

***

“How the instruments of the state create a landscape of despair for those in need of care”

Marie McInerney writes:

“New Zealand social scientist Darrin Hodgetts says the diagram below maps the “chaotic landscape of despair” that defines the daily lives of an increasing number of poor New Zealanders.

It tracks all the interactions that one family had with government agencies, not-for-profit community services, and private providers, over a two week period.

As he says, it is a full-time ‘job’ for at least one family member to try to navigate such an obstacle course ….”

The scientific report by Professor Hodgetts can be found here:

http://www.groups.psychology.org.au/Assets/Files/ACP-25(1)-Hodgetts-et-al.pdf

Title:

“Researching poverty to make a difference: The need for reciprocity and
advocacy in community research”

Abstract:

“Growth in poverty throughout the Organisation for Economic Co-operation and Development [OECD] hurts people. The Auckland City Mission Family100 project explores the everyday lives, frustrations and dilemmas faced by 100 families living inpoverty in Auckland. This article reflects on poverty in New Zealand, associated welfare ‘reforms’, the consequences of recent change in exacerbating hardship, and our own efforts to advocate for the rights of beneficiaries. Specific attention is given to a workshop run by the research team with the judiciary, and what such activities foreground in terms of the relational nature of research, reciprocity and advocacy.”

 

ADDENDUM 8 (03 Dec. 2013):

Today (03 December 2013) I listened to ‘Nine to Noon’ with Kathryn Ryan on Radio NZ National, and a bit after 10 am there was an interview with Minnie Bharagwanath from the so-called “Be.Institute”. She has been suffering poor sight due to a congenital condition since young age and is therefore considered a person with disability. She has overcome hurdles and challenges and apparently succeeded in her life.

I listened with interest, and at first I thought for a moment it was Paula Bennett talking and giggling away, but it was not, as I realised when the ‘Be.Institute’ and her name were mentioned. What struck me was her upbeat talk about her institute and their initiative wanting to achieve “change” in thinking, attitudes and doing things, by convincing businesses, organisations and public institutions to give better access for disabled.

It all sounded rather good, but then I thought, hey, how are they doing this, and what exactly are they doing in way of achieving any change? So this afternoon I looked up their website, and I read a lot of information, and I found once again proof of what I had suspected. It seems they are about doing “business”, a business of selling “assessments”, consultancy services and advice to businesses, organisations and public institutions, and whomsoever else.

Here is the link to Radio NZ National’s audio page – with also the particular audio track:

http://www.radionz.co.nz/audio
http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2578499/minnie-baragwanath-disability-advocate

This ‘Be.Institute’ likes to consider itself as a “movement” and they also run “campaigns”:

http://www.beaccessible.org.nz/the-movement
http://www.beaccessible.org.nz/the-movement/be-campaigns

But when looking at the “Team” of that “Movement”, one comes to a page with personalities with CVs that appear to be typical of a corporate style business:

http://www.beaccessible.org.nz/the-movement/be-team

They even have Gillian Davie as ‘Human Resource General Manager’ from Progressive Enterprises as one of their TRUSTEES! Yes, clearly it is a trust, but looking at the structure, the members and the way they operate, it appears to be similar to other operations that offer outsourced services in the disability and health sector, more or less like an ordinary business.

One can fairly expect that the “Team” make some of their living out of this, and that they will ensure they are themselves well looked after. A look at their services shows how they make a living, and how they finance themselves:

http://www.beaccessible.org.nz/be-welcome/book-an-assessment

This here is what is found on that website page, for those that cannot bother clicking the link:

“Book an Assessment To become a Be. Accessible business, simply register for the Be. Welcome Start-up Package by completing the Your Business Snapshot form online phoning the Be. Institute – 0800 Be. in touch (0800 234 686)

Your Be. Welcome Start-up Package includes:
a Be. Welcome assessment of your business by a Be. Coach a detailed report including recommendations and a follow-up session tailored to your business or organisation’s needs an accessibility rating full profile in Be. Accessible’s online directory accessibility workshop for you and your team

Prices are
$449* for a small business (up to 5 staff)
$999* for a medium business (6 – 20 staff)
$1699* for a large business (16 – 50 staff).

If you are a large organisation please contact us to find out about our Corporate Be. Welcome programme and its tailored packages.

*price excludes GST”

In return for the “assessment” done on a business, an organisation or institution a rating is offered, ranging from “just starting” to “bronze” and going up to “platinum”:

http://www.beaccessible.org.nz/be-welcome/assessment-ratings

A business, organisation or institute can then also “enjoy” the use of a “Be. Coach”, to improve their accessibility and to achievpe the rating they may wish to get.

http://www.beaccessible.org.nz/be-welcome/be.-coaches

They have a ‘Leadership Team’, who guide and mentor participants and interested businesses, organisations and institutions:

http://www.beaccessible.org.nz/be-leadership/team

Not surprisingly Work and Income and the Ministry for Social Development have realised that this fits in nicely into their new agenda, to “assist” and to “support” beneficiaries with disabilities into forms of work on the open market. So Miss Bharagwanath is held up as a “shining idol”:

http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/journals-and-magazines/rise/issue-sixteen/a-place-for-everyone.html

 

Own Comments:

Well, this shows again, this is what it is all about. “Helping” and “supporting” and “bringing change” for good sound money, earned on business terms! That is what seems to be the way things are going in the welfare sector also, and this is proof to me, that all this talk about helping disabled to realise their potential, to improve their lives, and to take on some kind of work, it is all about certain people making money out of it, for themselves.

 

ADDENDUM 9 (20 January 2014):

Further to Part 7 and ‘A)’ there (see “Comment 5” above in the thread), it is interesting to note how the ‘Australasian Faculty of Occupational and Environmental Medicine’ (short AFOEM), which is one faculty at the ‘Royal Australasian College of Physicians’ (RACP), has over recent years adopted and further developed their policies on the “health benefits of work”. It is quite clear that there is more to this than just “developing policy”, it rather resembles a strategy being followed, yes an agenda!

The AFOEM President Elect , Dr David Beaumont (formerly employee for ATUS in the UK), is sitting on the ‘AFOEM’ Council and their Policy and Advocacy Committee. He and a few others from the same “school of thought” appear to have pushed for the agenda, to further integrate the supposed “findings” by Professor Mansel Aylward from the ‘Centre for Psychosocial and Disability Research’ (for years sponsored by Unum Provident) at Cardiff University in Wales, UK..

See this link for his “official” profile and background: at Cardiff University in Wales, UK.. See this link for his “official” profile and background:

http://www.cardiff.ac.uk/news/articles/new-year-honours-2010-3998.html

It all started with the launch of a position paper titled ‘Realising the Health Benefits of Work’ in May 2010. Not surprisingly to insiders like us, Professor Mansel Aylward attended as a key speaker at the launch, making the following presentation:

‘Professor Sir Mansel Aylward Presentation’

http://www.racp.edu.au/download.cfm?downloadfile=58C41516-C2D1-1FF1-8CC71B74C8444FB3&typename=dmFile&fieldname=filename

https://services.racp.edu.au/cas/login?service=http%3a%2f%2fwww.racp.edu.au%2falfresco%2fwebdav%2fresources%2fafoem%2fafoem_180510%2findex.htm

(apparently only registered members can access the video presentation)

But this link to the launch page leads to a downloadable video at the bottom:

http://www.racp.edu.au/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/may-2010-video-presentation-professor-sir-mansel-aylward/

In October 2010 they then held a ‘Stakeholder Meeting’ at the AFOEM, which had Dame Carol Black, another well known propagator and defender of the same kinds of “teachings” as Professor Aylward represents attend as a main speaker. She was then the first ‘National Director for Health and Work’, Chair of the ‘Academy of Medical Royal Colleges’ and Chair of ‘the Nuffield Trust’ in the United Kingdom:

‘Prof Dame Carol Black – Stakeholder Meeting’

http://www.racp.edu.au/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/october-2010-stakeholder-meeting-professor-dame-carol-black/

In March 2011 the AFOEM then held a ‘Return to Work Forum’:

http://www.racp.edu.au/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/march-2011-return-to-work-forum/

It already announced the launch of the ‘RACP AFOEM Consensus Statement on the Health Benefits of Work’ just over a week later in Wellington, New Zealand, which would also be attended by Dame Carol Black from the UK!

The following documents were offered – apparently already at that meeting on 22 March 2011:

http://www.racp.edu.au/download.cfm?downloadfile=C79F9683-E7BF-D89E-4D263D0B445E5F36&typename=dmFile&fieldname=filename
http://www.racp.edu.au/download.cfm?downloadfile=DC072E53-014C-2924-AA623C8DE5A76CE5&typename=dmFile&fieldname=filename

On 30 March 2011, in Wellington, New Zealand, there was then the public launch of the ‘Consensus Statement on the Health Benefits of Work’:

http://www.racp.edu.au/index.cfm?objectid=22F19F0B-FBD1-C1B2-DFCD1710C0C44EFD

Dame Carol Black’s presentation can apparently be downloaded via this link:

http://www.racp.edu.au/download.cfm?downloadfile=245747B6-A7CB-2FBF-5D3AFC8865683543&typename=dmFile&fieldname=filename

Photos on the AFOEM website show the two presidents of the College, one of them DR DAVID BEAUMONT, Dame Carol AND our former Minister for ACC, NICK SMITH! Yes, and even a number of other “supporters” attended, and one was HELEN KELLY for the Council of Trade Unions (CTU)! Prominent on almost all photos on the website of AFOEM is Dr Beaumont, that former ATOS man, who seems to be having substantial influence, as he is part of high ranking networks, and by the way also runs his own business ‘Pathways to Work’, right here in New Zealand! Talk about conflicts of interests in very high places.

 

In November 2011 another “Stakeholder Meeting’ followed, and it appears to have been titled with the theme: ‘Health Benefits of Work: From Consensus to Action’:

http://www.racp.edu.au/page/hbw-stakeholder-meeting-nov2011

An extract from the website informs of this:

“The Australasian Faculty of Occupational & Environmental Medicine (AFOEM) held their inaugural Health Benefits of Work: From Consensus to Action stakeholder meeting at the College on 16 November. Over 60 signatories attended the meeting at the RACP Education Centre, with industry leaders addressing the gathered audience about their organisational commitment to the Health Benefits of Work. Dr David Beaumont, Chair of the AFOEM Policy & Advocacy Committee, facilitated the day’s proceedings, while AFOEM President Dr Robin Chase gave the opening address. Speakers who presented on the day included RACGP Vice President Liz Marles, Comcare CEO Paul O’Connor, ACC Director Kevin Morris, ALUCA Treasurer Chris Healey, NZCTU President Helen Kelly, ARPA President Annette Williams, Chief Executive of WorkSafe Victoria Greg Tweedly, and AFOEM fellows Dr Graeme Edwards ad Prof James Ross.”

The ‘Consensus Statement’ can again be found via this link – on the above website:

http://www.racp.edu.au/index.cfm?objectid=57063EA7-0A13-1AB6-E0CA75D0CB353BA8

And this link shows the New Zealand signatories to the statement:

http://www.racp.edu.au/index.cfm?objectid=6BE71C1E-F416-7EB9-7E398B9BB6B1A3B4

 

It shows us that virtually the bulk of the NZ medical profession and their organisations have signed up to it, same as certain other health professional organisations, many government departments, employer groups and indeed also the CTU! It includes educator organisations for medical staff, and als/strongo key stakeholders with vested business interests, like ‘The Wise Group’. See above under Part 7 again, to refresh on them and some other players!

IF THIS IS NOT A SUCCESSFUL SEIZING OF KEY PLAYERS AND GROUPS IN THE MEDICAL AND ASSOCIATED FIELDS, EXECUTED WITH PERFECTION BY THE UNUM PROVIDENT “SPONSORED” AND THUS “HIRED” PROFESSOR MANSEL AYLWARD, HIS COLLEAGUES LIKE GORDON WADDELL AND SOME OF THEIR LOYAL SUPPORTERS AND MOST DETERMINED PROPAGATORS, LIKE DR DAVID BEAUMONT, THEN WHAT IS?

The resulting GRIP on medical and with that health, treatment and social policies, supported by the New Zealand and apparently also Australian governments, also having vested interests, has gone so far, that now general practitioners (GPs) are openly reminded of what to do:

 

‘The role of GPs in realising the health benefits of work’

http://www.racp.edu.au/index.cfm?objectid=E1D5428F-B1BF-2C2F-7A247F80DC4F363C

Extract from the AFOEM’s statement for GPs:

“The family doctor is best placed to advise and educate patients that, in most cases, a focus on return to work is in the best interest of the patient – for both their future and quality of life and that of their family.” “Return to work is not possible for everyone, but certifying time off work – particularly when absence is long term – can have significant side effects, including increased rates of overall mortality, poorer physical health and poorer mental health and psychological wellbeing.” “Simple messages delivered in the clinical environment can encourage patients to develop evidence-based views of the relationship between health and work. Evidence-based messages include: Work is an important part of rehabilitation The longer someone is off work, the less chance they have of ever returning Most common health conditions will not be ‘cured’ by treatment Work is a therapeutic intervention, it is part of treatment Even when work is uncomfortable or difficult, it usually does not cause lasting damage Typically, waiting for recovery delays recovery Staying away from work may lead to depression, isolation and poorer health, and Employer-supported, early return to work helps recovery, prevents deconditioning and helps provide patients with appropriate social contacts and support mechanisms.” “Practical ways of assisting patients back to employment and optimum functioning include: Recommending a graduated increase in activity and setting a timeline for return to work Talking to the employer (preferably while the patient is with you), especially about how to modify the workplace and work duties to allow return to work Collaboratively identifying obstacles – and solutions – in the workplace Being clear about what health care can and can’t achieve, and I dentifying possible sources of support, including family members, co-workers and relevant government services.”

 

A number of “Stakeholder Updates” or update reports are available via the website too:

http://www.racp.edu.au/download.cfm?downloadfile=E2F6A860-D1D5-E958-6D9D641F04477400&typename=dmFile&fieldname=filename

And following all this was of course substantial justified concern and criticism expressed, by the writer of this thread, by various commenters, by as certain disability advocacy organisations, sundry health advocates, some health professionals themselves, a good number of beneficiary and ACC advocates – and a few politicians, writers and bloggers. Now the AFOEM seems to have taken note of this, and they have seen themselves urged to bring out a new, additional statement. They are still defending and trying to justify their position statement on the “health benefits of work”, but they have seen a need to examine, define and explain, what “work” that may be, that is “beneficial”. Now they are writing and talking about “good work”.

 

In some “latest” news from October 2013 they have suddenly come out with this:

“No work or bad work: both can make you sick – AFOEM launches position statements on healthy workplaces”

“The RACP’s Australasian Faculty of Occupational and Environmental Medicine has launched two position statements: What is Good Work? and Improving Workforce Health and Workplace Productivity. The position statements make recommendations for governments, insurers, businesses and worker advocates to enhance health and productivity in the workplace in Australia and New Zealand. They advocate for improvements in workplace culture and the creation of ‘good work’ from which individuals, employers and the community can benefit. The papers are companion statements to the New Zealand and Australian Consensus Statement on the Health Benefits of Work and the position statement Realising the Health Benefits of Work, launched in 2010 to raise awareness that good work improves health and wellbeing What is Good Work? and Improving Workforce Health and Workplace Productivity fact sheets are available, which summarise each position statement. A media release was also issues to the New Zealand Media and Australian Media about the launch of the position statements.”

Yes, there is an additional statement found here now:

http://www.racp.edu.au/download.cfm?downloadfile=E2F6A860-D1D5-E958-6D9D641F04477400&typename=dmFile&fieldname=filename

And also perhaps check this out:

http://www.racp.edu.au/download.cfm?downloadfile=E2F74DB8-95EE-6BC7-9E2C313D721B6F11&typename=dmFile&fieldname=filename

A media statement was apparently made earlier:

http://www.racp.edu.au/download.cfm?DownloadFile=E83694E9-0DB2-07FB-AEA4CBD72D11B2B3

 

Own summary comments:

This shows the AFOEM is starting to get concerned! Having to explain what “good work” is, and what may not be, then still being somewhat wishy washy about it, leaving much open to individual, subjective interpretation by anyone involved or affected, this just opens wider the pandora’s box for more issues to come!

Maybe they should have a rethink too, that it may not be simply “work” that is best for your health, but it may simply be sound, balanced physical activity and also certain mental and social activities that are beneficial to a person’s health. Instead of “worklessness”, as persons like Aylward, Waddell, Beaumont and Bratt try to tell us, it may also actually rather be POVERTY, social degradation, discrimination, marginalisation, which all result in being “excluded” and dis-empowered, while having serious psychological and emotional effects on persons, that can bring with it negative effects on physical and mental health. Are the “experts” at the AFOEM finally coming to discover something more pressing, more real, more relevant and more scientifically worth disseminating, thus coming to see “the light” of wisdom? I can only hope so, because such a statement on the effects of POVERTY on health seems to be missing in their policy statements!

There must certainly be an acknowledgment and acceptance that “open employment”, work in jobs on the competitive open market, is not necessarily all that “beneficial”, as many workers continue to complain about repetitive stress disorders, mental and physical stressors, about a lack of balance, unfair treatment, lack of being appreciated and much else, that comes with many jobs in various industries, apart from the traditional accident dangers. So trying to serve the interests of insurers, of ACC and WINZ here in New Zealand, to “save costs” and make it hard to have claims and entitlements met, that may in the end not lead to much at all, to improve health with the steps and means so far suggested, perhaps rethink all this madness. I think AFOEM, the medical profession, medical scientists and certainly government administrators, politicians and insurers better sit down, take some deep breaths, do a thorough rethink, do more and better research, and come back with sensible policies, that actually are more based on realities and facts, and that are reliable!

And for governments and administrators, perhaps start accepting that voluntary work, of whatever types and durations, may have to be treated the same as persons doing “paid” work on the “open market” for employers. Perhaps stop harassing and pressuring sick and disabled, including those that suffered accidents and lasting harm, and instead consider introducing a Universal Basic Income or something along those lines, offering top ups for individual needs any person has. That may in the long run be the easiest, cheapest and fairest way to run any “welfare system”, and it may save immense amounts in thus far costly, endless bureaucracy, employing enforcers, administrators, double checkers, investigators, police, doctors, rehab professionals and what else you have. That is my take on all this from the AFOEM for now for today!

 

ADDENDUM 10 (30 July 2014):

It is of greatest concern, that the apparent cooperation between the Ministry of Social Development, their Principal Health Advisor Dr David Bratt, and Professor Mansel Aylward from the ‘Centre for Psychosocial and Disability Research’ (formerly “UNUMProvident Centre for Psychosocial and Disability Research”), based at Cardiff University in Wales is continuing unabated!

Dr David Bratt, a strong propagator of the ideology that sick and disabled are best helped by putting them into any forms of “suitable paid work”, following controversial UK professor Mansel Aylwards ideas that most sickness and disability is only in the mind of people, has been to Europe, as part of a kind of New Zealand CORPORATE HEALTH REPRESENTATIVES trip to London, Brussels and Paris, keen to “learn more” about new findings and proposals about INTEGRATED CARE, and possibly also about how their own radical ideas of the “health benefits of work” can be further justified and promoted.

See some details here, from: GeneralPractice NZ – Visit to Europe, with Dr Bratt included, and their programme:

http://gpnz.org.nz/wp-content/uploads/2014-Masterclass-Programme-PARIS-FINAL.pdf

Read some extracted details published in the program published by: ‘General Practice NZ – 2014 Integrated Care Masterclass’:

“The focus of this Masterclass is to spend time together examining, discussing and learning about integrated care policies, processes and implementation internationally by working with the Nuffield Trust in England, attending an international conference on integrated care in Brussels and visiting sites in the Netherlands.”

 

“KEY OBJECTIVES

* Whole-system / whole-sector reforms towards integrated care
* Policy examination – what’s happening to take integrated care forward in England, Netherlands (plus other European countries) – policy review and critique
* Examination of drivers for integrated care, especially economics
* Site visits, specifically to look at primary/community care integration and also aged care/long-term care (or combined)

Members of the group traveling to Europe were:

PARTICIPANTS

 

NORTHERN REGION:

Dr Andrew Miller, GP and Chair, Manaia PHO

Dr Nick Chamberlain CEO, Northland DHB

Dr Neil Hefford, GP Clinical Leader, ProCare Health

Dr Campbell Brebner GP and Clinical Leader, Counties Manukau DHB

Loretta Hansen, CEO, East Health

Barbara Stevens CEO, Auckland PHO

Dr Debbie Holdsworth, Director of Funding, Auckland and Waitemata DHBs

 

CENTRAL REGION

Liz Stockley, CEO, Health Hawkes Bay

Adri Isbister CEO, Radius Medical Group

Dr Mark Peterson, GP and CMO Primary Care, Hawkes Bay DHB

Martin Hefford CEO, Compass Health

Melissa Simpson, Clinical Nurse Leader, Compass Health

Jude MacDonald CEO, Whanganui Regional Health Network

Dr David Bratt GP and Principal Health Advisor, MSD

Helen Morgan-Banda CEO, Royal NZ College of General Practitioners

Lee Hohaia CEO, Pharmacy Guild of NZ Inc

Dr Chris Masters GP and Managing Partner, Ropata Medical Centre

Dr Jeff Lowe GP, Karori Medical Centre TBC

 

SOUTHERN REGION

Dr Ros Gellatly, GP, Marlborough PHO, Nelson Marlborough DHB, Clinical Adviser (Electives), National Health Board

Dr Simon Wynn -Thomas Senior Clinical Leader, Pegasus Health ”

While that trip may not be quite so controversial, Dr Bratt has made another, extensive trip to the UK also, meeting with Mansel Aylward and other “experts” in Wales and elsewhere in the UK:

 

PublicHealth Wales and Cardiff Uni visits:

See the ‘Chair Report’ from June 2014, from Public Health Wales:

http://www2.nphs.wales.nhs.uk:8080/PHWPapersDocs.nsf/85c50756737f79ac80256f2700534ea3/9aa6f80bfe7ff2ac80257cfd003994d0/$FILE/32%2002%20Chair%20report%20v1.pdf

 

“PUBLIC HEALTH WALES:

Chair Report – June 2014 “Purpose of Document:
The purpose of this paper is to provide the Public Health Wales Board with a written update supplemented, as necessary by a verbal update on the day. The Report includes information on a number of strategic developments and other issues for information.”

“Author: Professor Sir Mansel Aylward CB and Gemma Trigg, Personal Assistant
Date: 16 June 2014″

“Distribution: Public Health Wales Board”

“The purpose of this paper is to provide the Public Health Wales Board with a written update, which includes information on a number of strategic developments and issues.”

 

NOTE:

“11 Visit from Dr David Bratt

During May 2014 we arranged a study tour for Dr David Bratt. Dr Bratt is Chief Medical Advisor, New Zealand Ministry for Social Development and Principal Medical Advisor to Minister, the Hon Paula Bennett. Board Members had the opportunity of meeting Dr Bratt when he joined us for lunch at the last Informal Board meeting. During his visit Dr Bratt met a number of key people from the Welsh Government including the Chief Medical Officer, Minister for Health and Social Services, Minister for Economy, Science and Transport. He also had meetings with Cardiff University and the University of South Wales. He visited GP surgeries in Swansea. I also helped Dr Bratt in arranging meetings with colleagues in England with particular interests in Occupational Health and Assessment of Disability and Capacity for Work.“

 

Comments:

Dr David Bratt is clearly intent on, and also commissioned by the NZ government, to engage further with selected UK “experts” that have formerly been on the payroll of UNUM Provident, to obtain more “training”, information and whatever “evidence”, to continue with the adopted agenda to dis-entitle sick and disabled from any deserved welfare, ACC or insurance payment support, and to pressure them to try and take on any kind of hypothetically “suitable” employment, so COSTS are saved. Here we have yet more evidence of that controversial UK professor Mansel Aylward and his bizarre “research centre” being allowed to influence welfare and health policy in New Zealand!

This is extremely worrying, as all the involved parties appear to stubbornly and resolutely ignore any justified criticism that has been raised about the way welfare and related reforms have been conducted in the UK and here in New Zealand. People affected must be very seriously concerned about what is going on, and what the wider public is not aware of, and is NOT being informed about.

See the attached PDF files downloaded from the internet for more details and evidence about Dr Bratt’s latest “adventures”!

Gen. Practice NZ, 2014-Masterclass-Programme-PARIS-FINAL

NPHS, NHS, WALES, Chair Report 06-2014, Aylward – Bratt contacts, 32 02 Chair report v1, d-load, 29.07.2014

 

ADDENDUM 11 (14 SEPTEMBER 2014):

In this long post and thread there has been repeated mention of Dr David Bratt, Principal Health Advisor for the Ministry of Social Development and for Work and Income, who was also involved in the training of designated doctors that WINZ use, and who has also had significant input into the formation of welfare policy, of recent “reforms” and how they are implemented.

He is in charge of the various Regional Health Advisors that WINZ have in each Regional Office, and together with the Principal Disability Advisor Anne Hawker, he is also in charge of the Regional Disability Advisors, as well as the so-called Health and Disability Coordinators (who closely liaise with ordinary General Practitioners and other stake holders).

After the many revelations about Dr Bratt, and how he blatantly likens benefit dependence to “drug dependence”, as he has in many of his bizarre “presentations” to medical professionals and other groups, one may wonder, why he gets away with all this, and why MSD have kept him employed.

The truth is basically, he represents the line of approach that MSD and WINZ follow – and want to continue, when dealing with sick, injured and disabled on social security benefits. He is also part of the medical and wider health administration establishment, and holds a number of positions in related areas.

As I recently found out yet again, he is still a member of the Board at the NSAD (New Zealand Society on Alcohol and Drug Dependence). The Chairman on the Board of Trustees is a Mr Bill Nathon, and Dr David Bratt is the Deputy Chair, as the link to the NSAD website will show further below:

http://www.nsad.org.nz/who-are-we/our-board-of-trustees/

I have also attached a PDF with scan copies of the relevant information, in case the website and/or appointments change. Robert Steenhuisen, Auckland Regional Manager of Community Alcohol + Drug Service (CADS) at Waitemata District Health Board is Trustee at NSAD, so are Tim Harding, C.E. at Care NZ, and two others. So these persons all sit alongside Dr Bratt, overseeing the operations and activities of one major society that are the umbrella organisation at the head of a federation of NGOs in the alcohol and drug treatment sector.

We know that Dr Bratt has been a consultant at Capital and Coast DHB, has been involved as an abortion consultant and runs (or at least has run) a few business operations. As he appears to be part of some core networks, he will be supported by senior other professionals and agencies, last not least by the government, to continue his questionable activities, despite of all he has done, written and said. As a strong supporter of equally controversial UK Professor and “expert” Mansel Aylward (the former Chief Medical Officer for the DWP, then Director at a UNUM “sponsored” Research Centre at Cardiff University, responsible for draconian “welfare reforms” in the UK, that led to over a thousand deaths), Bratt gets the full support by his employer, serving under governments that have the ultimate goal to save COSTS, by pressuring sick, injured and disabled into work.

Now, if that still raises questions about ETHICS or else, put your questions to the persons in charge, Chief Executive Brendon Boyle and Minister Paula Bennett!

Attachment:
Dr David Bratt, Dep. Chair, NSAD, Princ. Med. Advisor, MSD, website info, as on 25.08.2014

 

ADDENDUM 12 (26 APRIL 2015):

 

WELFARE REFORMS AND HOW SCIENTIFIC RESEARCH IS INCREASINGLY INFLUENCED BY FUNDERS WITH VESTED INTEREST

There was an interesting interview on Nine to Noon on Radio NZ National on 10 April 2015, where Kathryn Ryan spoke with Nicola Gaston, President of the Association of Scientists. She and many of her colleagues are very worried about what is happening in the science and research departments, funded by government and/or private enterprise. We hear more and more about public private partnerships, and it seems that is becoming the norm in science.

What it means is, we increasingly get science that is deemed to be “useful” by science investors, and less science that is truly independent. Also are scientists more often given the message, that they better hold back with their expert opinions, where it may not be so welcome.

Anyway, that is exactly what UNUM was doing, when they went into partnership with the UK government, to fund the ‘UNUM Provident Centre for Psychosocial and Disability Research’, headed by our well known “expert” professor, Mansel Aylward. “Science on order”, so to say, to serve the DWP and UK government, to achieve more cost savings and “efficiencies”, by declaring more persons “fit” for some forms of work, no matter whether there would be any realistic prospects to get true, lasting and sufficiently paid jobs on the market.

Sadly they achieved, and even managed to bring their “science” into NZ, where Paula Bennett and Bill English welcomed the new “findings” with open arms.

Here is the RNZ audio with the above interview, found via this link:

“Scientists speak out about fears of attacks on freedom”

http://www.radionz.co.nz/national/programmes/ninetonoon/audio/20174224/scientists-speak-out-about-fears-of-attacks-on-freedom

And here is a good summary of what UNUM was involved in in the UK, for years, playing their role in “welfare reforms”, at least giving “advice” on it:

<em>”A Tale of two Models: Disabled People vs Unum, Atos, Government and Disability Charities :Debbie Jolly”

http://dpac.uk.net/2012/04/a-tale-of-two-models-disabled-people-vs-unum-atos-government-and-disability-charities-debbie-jolly/

And while the reforms took place, UNUM did there – by supposedly “pure coincidence” – bring new insurance products onto the market, hoping that more people would insure themselves privately, as reliance on state support would in future be discourage!

These forces – such as UNUM and other vested interest parties, they are hard to beat, as they have immense funding to their avail, and a lot of “allies” all over the place. I am saddened that there is not more awareness out there, about what is really going on. But then, we know, it is not encouraged to read about it. As we can more often observe, even the media are becoming more “mindful” of what they report and what not, and they seem to be almost complicit in spreading the propaganda for selectively conducted, interpreted and used science.

SOCIAL SECURITY BENEFIT RATES IN NEW ZEALAND –SET AT WILL BY GOVERNMENTS, IGNORING SOCIO-ECONOMIC REALITIES AND EVIDENCE

SOCIAL SECURITY BENEFIT RATES IN NEW ZEALAND –SET AT WILL BY GOVERNMENTS, IGNORING SOCIO-ECONOMIC REALITIES AND EVIDENCE

 

Published 23 May 2018

 
 

CONTENTS:

A) INTRODUCTION
B) OIA REQUESTS MADE TO MSD ON 8 JULY 2015
C) THE MINISTRY OF SOCIAL DEVELOPMENT’S (MSD’s) FIRST FORMAL RESPONSE TO THE REQUESTS, DATED 19 NOV. 2015
D) OMBUDSMAN COMPLAINTS OF 1 AND 22 NOV. 2015
E) MSD’s FURTHER RESPONSE OF 9 MARCH 2018
F) ANALYSIS OF THE INFORMATION PROVIDED BY MSD
G) CONCLUSION

 
 

A) INTRODUCTION

After we already presented some interesting information made available by the Ministry of Social Development (MSD) in response to various Official Information Act (OIA) requests on earlier occasions, we can now present you more, some of which will be of significant interest to readers.

In the early hours on 9 July 2015 two new formal OIA requests, both dated 8 July 2015, were sent in to MSD by a requester by email, with 2 attached letters. The first request was rather straight-forward and simply asked for a breakdown of three types of benefits into components that should cover certain essential living costs. The second request was a bit more complex and specific, and it asked for some comprehensive information on a range of topics and areas. That request did for instance ask for expert advisors’ reports on health, disability and work-ability assessment matters that may have been used by the government in the process of preparing and formulating policy brought in as welfare reforms. Reports from external and internal advisors were asked for, same as copies of correspondence between MSD’s Principal Health Advisor Dr Bratt and the UK ‘expert’ advisor Mansel Aylward, and others, at the ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales. Some other information asked for included conflict of interest declarations by members of a Health and Disability Panel that was set up to consult on welfare reforms, same as conflict of interest declarations by MSD’s Principal Health and Disability Advisors. Further information was requested about the Principal Health Advisor Dr Bratt’s trip to Europe and the UK, about expenses paid for Designated Doctors, Host Doctors and Medical Appeal Board (MAB) hearings. Some data was sought on the numbers of MAB hearings and outcomes, on outcomes of so-called “social impact bond” funded trials, on outcomes of Mental Health Employment Services and Sole Parent Employment Services programs, same as on commissioned ‘Work Ability Assessments’ and ‘Specialist Assessments’. This post does though mainly focus on the first request and its responses.

The requester, whose name and details we intend to withhold for privacy reasons, did expect both complaints to be handled separately, and anticipated a reply to the first response within 20 working days, as required by the OIA. He did not expect a response to the second request letter within that time frame, as he understood that some of the questions asked in that one would require more time to be answered to, which would most likely also require a fair bit of collation of information.

Hence it was not surprising to the requester that he did on 3 August 2015 receive an email from MSD (their ‘Official and Parliamentary Information team’), advising that the Ministry would need an extension of time to respond to the OIA requests. There was no separate early response to the first OIA request, and so it appeared as if it would be processed together with the second request. A PDF containing a letter that was attached to the email advised him that: “The Ministry’s response will be with you no later than 3 September 2015”. Already on 28 July 2015 MSD had informed him by email and attached letter, that one question about “social impact bond funded projects” had been transferred to the Ministry of Health, as MSD did not hold the sought information. Receipt of that one request had also been confirmed by Fox Swindells, OIA Co-ordinator (Government Relations, Office of the Director General) at the Ministry of Health, by email on that same day.

While awaiting a response, the requester did on 3 September 2015 receive another email from MSD, updating him that the Ministry was unable to provide a response on that day. However, the letter advised that the request was then being processed with urgency, and that the Ministry would respond as soon as possible.

By 8 October 2015 the requester had still not received the information that was supposedly being prepared “with urgency”; hence he did on that same day send in an email to the OIA contact address of the Ministry, for which no identifiable name of any person had previously been provided. He asked for an update on the matter, mentioning the earlier responses by MSD. Expressing his understanding that it may take some time to prepare the response, as the information sought was more comprehensive than many common OIA requests, the requester pointed out that three months had now passed. He asked whether the response might take another two weeks, or a month, and he also wrote that if no response should come forth by the end of the month, he would consider bringing the matter to the attention of the Ombudsmen.

All that he received upon that email was yet another email with yet another apology from MSD, signed by a ‘Ministerial & Executive Services Advisor’ (with no name). The email informed him that the response was currently under review and was expected to be “signed out within the next couple of days”. “The response will be with you by the end of the month if not sooner”, it also said.

But for the following weeks there was again no response forthcoming from MSD, while at least the Ministry of Health had already presented a response to one particular request by email on 28 August 2015 (dated 25 August 2015). It did in the end take until 19 November 2015, when the proper formal response by MSD (to both OIA requests) was received by the requester (by email with an attachment).

In the following we will present you the requests or questions for the particular specified information the requester had asked for, and following that the responses given by MSD. As the response was initially delayed, and as some information was simply not provided with MSD’s formal response (some of that again without giving any reasons), the requester was (like on earlier occasions) forced to file complaints with the Office of Ombudsmen, dated 1 and 22 Nov. 2015. He asked to have the responses by MSD investigated and reviewed. He sought the Ombudsman’s intervention, in order to obtain the remaining information from MSD, and to have the Ministry provide proper answers to the questions that had not been properly replied to. We will also present you those letters, and specify and outline the information that MSD withheld and refused. It took the Office of Ombudsmen over two years to investigate the issues with MSD’s OIA response, as complained about in relation to the first OIA request. And it took MSD two and a half years to provide further explanations on 9 March 2018. As usual some comments will be made regarding the questions put and the answers received, and what conclusions can be drawn from the provided, rather general and limited information.

 
 

B) OIA REQUESTS MADE TO MSD ON 8 JULY 2015

In the following we present the particular questions contained in the first OIA request, which the requester asked MSD to answer and to provide information on (dated 8 July 2015):

“Dear Mr Brendan Boyle, dear staff at the Ministry for Social Development

Please accept my request for the disclosure of the following specified information – under sections 12 and 16 of the Official Information Act 1982.

1. Information in the form of a detailed break-down of the main benefit type Jobseeker Support, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

2. Information in the form of a detailed break-down of the main benefit type Supported Living Payment, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

3. Information in the form of a detailed break-down of the main benefit type Sole Parent Support, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

I am aware of additional supplements and allowances being available as further assistance, like the accommodation supplement, disability allowance and temporary additional support, which are covering additional costs, which cannot be covered by the base benefit.

But I know that the base rates are based on calculations for basic, average costs of living, and I seek the details of these calculations, for each single, usual cost type or category.

The above requested specified information is sought to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.

I kindly and respectfully ask that the information is made available by way of a sufficiently detailed written response, containing the relevant information. Otherwise it can also be made available by way of equally good quality computer generated printouts containing the information or part thereof.

Thank you for your acknowledgment and appreciated co-operation.

Yours sincerely

Xxxxxxx Xxxxxxx”

Here is a copy of the OIA request letter, sent to MSD by email in the early hours on 9 July 2015:
MSD, O.I.A. request, to C.E. of M.S.D., base benefit break down, anon, 08.07.15

 

Comments by the author

For decades New Zealanders on benefits have had to struggle and cope on their meagre incomes, while receiving main or base benefits that are for many people not enough to survive on. Only those choosing to live in cramped conditions in shared homes may in some cases manage to get by on the main benefit alone. The vast majority of beneficiaries do require top-ups of benefits, for accommodation and disability related costs, and for various other essential living expenses, in order to survive on a shoestring budget – or less. Additional supplements and allowances, including also the ‘Temporary Additional Support’ (in short TAS, which replaced the former Special Benefit) are often capped or have set maximum limits. But the particular rates – or claimable amounts – for these are known. The main benefits, although insufficient to really cover all essential living expenses, should by a person’s reasonable presumption have been calculated following some kind of a formula, to cover a range of very basic standard costs per person, and that is what the requester wanted to get details on.

 

In the following, and for your interest, we present a PDF with an authentic, partly redacted copy of the second and more comprehensive OIA request of 8 July 2015, containing 21 further questions (or points of request) that were also sent to MSD to respond to:
MSD, O.I.A. request, to C.E. of MSD, Bratt, H+D Panel, Reforms, anon, 08.07.15

We will not go into detail about this second request, as this post will focus on the first and shorter OIA request for information on benefit components, or parts of benefits, that one would presume should cover particular living cost items every ordinary person would have to meet (at a bare minimum).

 
 

C) THE MINISTRY OF SOCIAL DEVELOPMENT’S (MSD’s) FIRST FORMAL RESPONSE TO THE REQUESTS, DATED 19 NOV. 2015

As a very first response, MSD wrote back to the requester by email at about 12.52h and 13.59h on 9 July 2015, sending two virtually identical standard email confirmations for the receipt of the requests, which had been referred to the “appropriate officials at National office to respond”. A response to the OIA requests was indicated to follow “as soon as possible”.

AT 13.23h on 28 July 2015 the requester received another email from MSD, with an attached PDF letter, informing him that one request point from his comprehensive OIA request had been referred to the Ministry of Health for a response.

This was followed by yet another email letter sent at about 16.17h on 3 August 2015, which had a separate PDF with a formal letter attached. The letter explained that the Ministry needed to extend the time for responding to the OIA request, and it informed the requester that the Ministry would respond to his request by “no later than 3 September 2015”. For a reason, a mention was made of the “large quantity of information” that the requester had asked for.

But at about 14.39h on 3 Sept. 2015, a person at the Ministry wrote back to the requester, informing him by way of an update, that they could not provide a response with the asked for information to his two requests ‘today’. An unnamed person identified only as ‘Ministerial + Executive Services Advisor’ wrote that the Ministry was currently processing the request with urgency, and that they would respond ‘as soon as possible’.

In the early hours on 8 October 2015 the OIA requester wrote back to MSD, referring to the email received on 3 Aug. 2015 (with an attached PDF containing a letter), which had informed him that he could expect a response to his information request no later than 3 Sept. 2015. The requester wrote that it was about two months since he had made his request, and that he had last been informed that the matter would be dealt with under urgency.

He wrote that three months had now passed, and while he showed an understanding for the response requiring some time, he asked for a clear indication as to when he could expect a response. He asked whether it would take another two weeks, or perhaps a month, but expressed his expectation for a response no later than by the end of that month, as otherwise he would need to bring the matter to the attention of the Ombudsmen.

At 08.14h on that same day (8 Oct. 2015) the requester received another email from a person at the Ministry, again only identifiable as ‘Ministerial + Executive Services Advisor’. The unnamed person now wrote that the response was ‘currently under review’, and that it was expected to be “signed out within the next couple of days”. The response would be with him “by the end of the month if not sooner”, the MSD Advisor wrote.

Only at 10.55h on 19 November 2015 would the OIA requester finally receive an email from MSD, with the attached response (contained in a PDF file, consisting of a six page letter and 3 pages of attachments). That was over four moths after his request!

 

Here we can now present the response with the answers that were received from MSD by email and attached letter on 19 November 2015. The partly redacted transcript of MSD’s response, from the letter received, and quoted below, relates to the first OIA request with three questions:

“19 NOV 2015

Mr Xxxxxxx Xxxxxx

Xx Xxxxxxxxx Xxxxxx
Xxxxxxxx
Auckland 1xxx
Xxxxxxx_xxxxxx@xxxxx.xxx.xx

Dear Mr Xxxxxxx

On 08 July 2015 you emailed the Ministry two letters requesting, under the Official Information Act 1982, information on Jobseeker Support, Supported Living Payment, Sole Parent Support and various reports relating to health and disability research. This letter responds to both of your requests for information and addresses 24 questions.

I will address each of your questions as follows:

Questions 1 to 3 (Benefit breakdowns and living costs):

New Zealand’s main benefit system provides a basic income to replace income that would generally be obtained through paid employment. Benefits are funded through general taxes. The initial rate of benefit depends on the benefit type and whether the person is single, partnered or a sole parent. The rate of payment does not relate to the person’s previous income from employment, rather it is intended to provide an adequate income to meet basic living costs.

There is no legislative formula used to decide the “correct” rate of benefit however a number of competing objectives and issues must be taken into account, including whether the rates:

• provide an adequate income to allow participation and belonging in society.
• are economically sustainable.
• maintain incentives to work.
• maintain incentives to study (particularly in the case of younger people).
• achieve broadly equivalent living standards for different household types receiving the same benefit.

The standard weekly rates of the main benefits are increased every year on 1 April. This increase reflects changes in the Consumer Price Index (CPI) in the previous year. Unlike New Zealand Superannuation rates, main benefit rates are not linked to any measurement of wages.”

The full response letter was signed by Carl Crafar, Deputy Chief Executive for Service Delivery.

 

Answers to questions 1 to 21 of the second OIA request dated 8 July 2015 have not been included in this transcript, as this post is about the responses sought to questions about benefit components that should cover living costs of beneficiaries. You can look up the whole response, contained in a PDF containing a scan copy of the letter by MSD dated 19 Nov. 2015 for those details.

Please find under these two links an anonymised scan copy of MSD’s OIA response of 19 Nov. 2015, one “clean” copy, and an extra one, that has highlighted text parts (and some notes):
MSD, OIA rqst, Advisors, MHES, SPES, WAA, reports, WINZ, reply, anon, 19.11.15
MSD, OIA rqst to C.E., Dr Bratt, H+D Panel, MHES, SPES, WAA, reports, 08.07., reply, hi-lit, 19.11.15

Here is also a scan copy of the Ministry of Health’s response to request/question nr. 17, contained in the second OIA request letter of 8 July 2015:
Min. of Health, OIA rqst, transfered by MSD, social bonds, acknowledgmt, 28.07.15
Min. of Health, Dep. Dir.-Gen., OIA rqst, social bonds, transfered fr. MSD, reply, 25.08.15

 

An earlier post covering the whole OIA request, MSD’s first responses, and the requester’s Ombudsmen Office complaint was published on this Blog on 27 Nov. 2015, under the title:
‘THE MINISTRY OF SOCIAL DEVELOPMENT’S SELECTIVE AND POOR RESPONSES TO NEW O.I.A. REQUESTS ON BENEFITS, ADVISORS, REPORTS, MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES’.

It can be found by clicking this following hyperlink:
https://nzsocialjusticeblog2013.wordpress.com/2015/11/27/msds-selective-and-poor-responses-to-new-oia-requests-on-benefits-advisors-reports-mental-health-and-sole-parent-employment-services/
And here is the newest, updated and current PDF version (as on 10.04.18):
MSD’s Selective + Poor Responses To New OIA Requests, Post, NZSJB, upd., 27.11.15

 
 

D) OMBUDSMAN COMPLAINTS OF 1 AND 22 NOV. 2015

Given the fact that MSD did not provide the asked for information within the stipulated time frame of 20 working days, and then also not within the time they had indicated after seeking an extension of time to respond (by email on 3 August 2015), the OIA requester had by 1 Nov. 2015 again seen a need to file a formal complaint with the Office of Ombudsmen.

By way of a letter dated 1 Nov. 2015, the OIA requester – turned complainant – raised his concerns that MSD had failed to respond to his request, despite of having announced earlier on 8 October 2015, that a response was ready for ‘sign off’ and due to be sent out in days. He presented a copy of that email, which he had received on 8 October, and also copies of earlier email correspondence with MSD that occurred between 9 July and 8 October 2015.

A PDF file with the authentic text of that letter by the complainant, dated 1 Nov. 2015, partly redacted for privacy reasons, can be found via the following hyperlinks:
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 01.11.2015

That complaint would at first be treated like a mere ‘delay complaint’, but after finally receiving the response by MSD, dated 19 Nov. 2015, the OIA requester and complainant would later file a more comprehensive, formal complaint with the Ombudsmen, raising his concerns about, and objections to, the OIA response – by way of another letter (sent in by email), dated 22 November 2015.

But prior to that, he would receive a first standard-type email response from the Office of Ombudsmen, dated 2 Nov. 2015, bearing no signature or name. It confirmed the receipt of his correspondence of 1 November, and he was informed that his complaint would be processed under their reference 41xxx7. Some other standard kind of information was also provided.

A PDF file containing an authentic scan copy of that email of 2 Nov. 2015, partly redacted for privacy reasons, can be found via the following links:
Ombudsman, complaint 41xxx7, MSD, OIA Rqst 08.07.15, insuff. info, 1st reply, anon, 02.11.2015
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., 1st reply, hilit, 02.11.15

On 20 Nov. 2015 the complainant received an email with an attached letter from the Ombudsmen Office, signed by Ombudsman Leo Donnelly. The same letter would also be sent to him by post, and received by him on 23 Nov. 2015. Mr Donnelly wrote on behalf of Chief Ombudsman Ron Paterson, acknowledging the complaint, and informed the complainant that they were making enquiries with the Ministry. Mr Donnelly wrote that a decision (by MSD) on the requester’s OIA requests was to be made and communicated to him in the next few weeks. If he was not satisfied with the ‘substantive’ response, he should feel free to write to Dr Paterson again, so the letter ended.

A PDF with an authentic scan copy of that letter by Leo Donnelly, partly redacted, and dated 20 Nov. 2015, can be loaded via the following links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insufficient info, ltr, L. D., anon, 20.11.15
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., ltr L. D., hilit, 20.11.15

While having entered correspondence with the Ombudsmen Office, the complainant would in the meantime receive the long awaited, much overdue further correspondence from the Ministry of Social Development in the form of their formal OIA response, dated 19 November 2015.

After receiving MSD’s formal response on 19 Nov. 2015, and finding that a number of requests were not properly answered, partly due to stated OIA refusal grounds, and partly with no satisfactory explanations given, the OIA requester and complainant wrote his further second formal complaint letter to the Office of Ombudsmen, dated 22 Nov. 2015.

He referred to his earlier “delay complaint”, and explained how he had now received a response from the Ministry on 19 Nov. 2015, which was though not satisfactory, as MSD had withheld information “without giving any acceptable reasons for this”. He explained his concerns and issues with the response by separating the two requests and responses, which he had received, one from another. Regarding the first three request points relating to benefit components, he wrote that MSD had in his view failed to properly answer those three questions. He wrote in the end of his letter that he considered that he still deserved a response – or further response – in respect of his requests or ‘questions’ 1 to 3, same as to some other ones made with his second letter of 8 July 2015.

A PDF with the authentic text of the further complaint letter by the complainant, dated 22 Nov. 2015, that was sent to the Ombudsmen, can be found via the following link (partly redacted):
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 22.11.15

 

This is an authentic transcript of what the complainant wrote in his complaint of 22 Nov. 2015, in relation to his first OIA request with three questions re benefit rates and what components they may contain:

“Complaint about the Ministry of Social Development (MSD) failing to provide information under the Official Information Act 1982 (O.I.A.), as per my two requests dated 08 July 2015; your reference number 41xxxx

 

Dear Ombudsman, dear staff at the Office of Ombudsmen

On 01 November 2015 I sent you a complaint stating that the Ministry of Social Development (MSD) had failed to provide a response to two requests I had on 08 July 2015 made under the Official Information Act 1982 (OIA). I can inform you that I did finally receive a response on 19 November, but as it has repeatedly occurred in earlier cases, some information that I asked for has not been provided, and some of that again without stating any reasons for it.

Hence I must follow up my earlier “delay complaint” with this further complaint letter, detailing what information MSD provided, and what the Ministry has withheld without giving any acceptable reasons for this. I do this following the advice in the response letter from MSD, to contact your Office, should I wish to have their response reviewed.

Like I mentioned above, I did on 08 July 2015 send two letters with a number of OIA requests to the Chief Executive of MSD. One letter contained only three straight forward requests for a cost component breakdown for the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits. A separate letter contained 21 requests for more specified and comprehensive information. Copies of both requests were sent to your Office, but I will nevertheless attach them again to this letter, so they are readily available to you.

 

My first OIA request from 08 July 2015

In my first request to MSD I asked for the mentioned “breakdown” of three main benefit types, the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits, referring clearly to costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending and so forth. I listed my questions numbered with 1 to 3.

MSD have only provided explanations that the base benefit rates are different dependent on benefit types (e.g. whether a person is single, partnered or a sole parent), that they are not based on a person’s previous income from employment, and that they are rather “intended to provide an adequate income to meet basic living costs”. Then MSD informed me that “there is no legislative formula used to decide the “correct” rates of benefit” and listed a few “competing objectives and issues” to take into account. I was informed of the annual inflation adjustment, but given NO reply to my actual questions, which asked, what components or parts of costs MSD considers for the listed common living cost items (e.g. food and so forth).

MSD have in my view failed to properly answer these three questions. I have been informed that MSD has at least in the past used specific cost calculations for determining how high the main benefits should be, in order to be sufficient for people to live from, and that was the information I expected. The questions I put to MSD, and the requests I made to them, should have been clear enough for MSD to provide the information that they use to determine living costs, and as far as I was advised some years ago, there were standard formula or so used (not “legislative”) to do this. I do not believe that MSD simply make up base benefit rates, without using some acceptable, available officially accepted guidance. I am familiar with separate allowances and top ups that are available for persons on benefits in certain circumstances, such as the accommodation supplement, disability allowance and temporary additional support. But those are special additions, which are not included in the main or base benefit rates, and persons need to prove they have extra needs to get these additional top ups. Hence I do expect a breakdown of the main or base benefit rates, which logically will have considerations for standard costs for a range of basic living expenses.

As MSD also administer ‘Studylink’, I wonder whether the Ministry uses similar considerations as are indicated in the following information shown on the ‘Studylink’ website:
http://www.studylink.govt.nz/tools-and-calculators/on-course-budget-calculator.html
On that page with their ‘Cost of living calculator’ there is mention of “typical costs”, “estimates for most of the basic weekly costs”, and under ‘How we got the real world estimates’ it says under point 3: “Power, groceries, petrol, clothes, takeaways, leisure, toiletries/beauty/makeup these are the average person’s weekly spending, taken from the Housing Expenditure Survey 2007 and adjusted for inflation.”

In any case, I know very few persons dependent on social security benefits, who feel that they have an adequate income “to allow participation and belonging in society”. Main or base benefit rates barely cover all the basic living costs, most certainly not here in Auckland, and there is no active participation possible for them in social activities, when compared to what persons with say an average income are able to do. In any case I must ask you as Ombudsman to remind MSD of my actual question, and to ensure the Ministry does actually properly answer the questions put to it and provides the information that I requested.”

The complainant would close his letter to the Ombudsman with the following comments:
“To summarise the above, I consider that I still deserve a response or further response in respect of questions 1 to 3 in my first OIA request from 08 July 2015, and that I still deserve a further response to questions in my second request from 08 July 2015, being to questions 1 to 4 (on whether reports existed, and why they no longer exist), to question 7 (provision of conflict of interest forms), question 8 (conflict of interest declarations by Dr Bratt and Anne Hawker), question 9 (why are reports missing, and who paid Dr Bratt’s other costs), question 10 (share of costs paid), questions 13 and 14 (clarification on some MAB data), questions 18 and 19 (clarification re persons in work, for what period, also further data previously made available) and questions 20 and 21 (no answer at all was provided).

I regret having to seek your assistance yet again, but given the response by MSD, I must consider that it is for me the only logical next step to ask for your intervention, so to ensure that MSD actually provide the information that was requested.

As usual, your response in due time will be much appreciated.

Yours sincerely

Xxxxxxx Xxxxxxx”

 

Altogether 15 attachments and one particular hyperlink reference were sent with his complaint letter, listed at the end of it. They also included some earlier OIA responses from MSD, mostly relating to particular issues raised re the responses to his second request letter of 8 July 2015.

 

Author’s note:
When you click the hyperlink to the Studylink website that is shown in the text of the above quoted letter, you will find a page that has been changed. The information that used to be shown there is no longer to be found. Quite clearly, MSD management took some action to have their website redesigned, and they ensured that no detailed information is found on particular types of living costs they had once listed as being considered as standard living costs. All that is shown now is an overview over aspects to consider when intending to study, under the heading ‘Can you afford to study?’.

 

Further Ombudsman OIA complaint correspondence

Following that complaint letter, Deputy Ombudsman Leo Donnelly wrote back to the complainant on 21 Dec. 2015, thanking for his letter, apologising for the delay in responding, and informing him, that his complaint would be allocated to an investigator (after another assessment had already been made). The complainant would be contacted by the Manager in charge of the Investigation and Resolution Team at the Auckland Office of the Ombudsmen, when there was progress to report, so the letter said.

A PDF file containing the authentic scan copy of that letter by Leo Donnelly, and of further email correspondence in the complaint matter, can be found by clicking the following links:
Ombudsman, complaint 41xxx7, MSD, OIA Rqst 08.07.15, insuff. info, corresp., anon, 21.12.15 – 11.12.17
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., corresp., hilit, 21.12.15-11.12.17

It did regrettably take another two years for the complainant to finally see any actual ‘progress’ in the matter, which only happened after yet further correspondence (particularly between May and Dec. 2017), where the complainant asked for some updates and was on occasion provided with this.

Then, suddenly in mid January 2018, the Ombudsman’s ‘Acting Senior Investigator’ wrote back to the complainant and information requester, with a letter dated 15 January 2018. The person wrote on behalf of Chief Ombudsman Mr Boshier, and explained that he was now investigating this complaint. Apologies were made for the lengthy delays due to ‘workload pressures’. In referring to the OIA requests in question, and the complainant’s letter of 22 Nov. 2015, it was explained that ‘not all the issues raised’ constituted OIA complaints. That was though more the case with the second OIA request letter. It was acknowledged, though, that the complainant was of the view that the responses he received to his first OIA request with three questions on benefit rates as being ‘inadequate’.

The complainant was informed by the Investigator that the Ombudsmen Office had written to the Chief Executive of MSD, Mr Brendan Boyle, notifying him of the complaint. A report on MSD’s response and re the requests had been asked for, same as re the issues raised with the complaint.

A PDF with the authentic letter by that ‘Acting Senior Investigator’ and the Ombudsmen’s Office, dated 15 Jan. 2018, only partly redacted for privacy reasons, is found via these links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, upd., anon, 15.01.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., upd. ltr, hilit, 15.01.18

 

The Ombudsmen Office’s proposed part decision

It would take until mid March 2018, until the Ombudsmen Office would present its part decision on complaint 41xxx7. This time the Manager for Investigations and Disputes Resolution at the Auckland Office of the Ombudsmen, Mr T. Xxxxxxx, wrote himself to the complainant, on behalf of Mr Boshier. By way of his update, he confirmed that the Ministry had provided a report to the Chief Ombudsman. He also acknowledged that the Ministry had in addition to that provided the complainant with an updated explanation in response to his first OIA request.

Indeed, MSD had on 9 March 2018 sent the OIA requester another email, offering further explanations to OIA requests 1 to 3 in the first request letter of 8 July 2015. But that information was not much different to what had already been provided with the initial response of 19 Nov. 2015. The further response by MSD can be loaded via a link further below, under Part or Chapter ‘E’ in this post.

By referring to the Ministry’s initial response and advice, and to the OIA requester’s and complainant’s relevant comments in his letter of 22 Nov. 2015, the Manager at the Auckland Ombudsmen’s Office wrote the following:

“On 9 March 2018 the Ministry provided you with an updated explanation confirming that no formulae or ‘cost calculations’ are used to set benefit rates, and that instead the current rates ‘have been arrived at by a series of historical decisions’. The Ministry’s Policy Team explained that decisions on benefit rates involve balancing a number of competing objectives and issues, and provided you with a summary of those factors.

It may be that you remain concerned that the Ministry does not appear to directly refer to average costs of various essential items, such as food, electricity and clothing, when setting benefit rates. However, it is difficult to see what further information could be provided by the Ministry in response to your request for a ‘breakdown’ of benefit rates. Any concerns you may have about the policy adopted by the Ministry when setting benefit rates, or requests for further information or clarification of information already provided, should be addressed directly to the Ministry for its consideration.

Section 17(1)(f)(ii) Ombudsmen Act 1975 provides that an Ombudsman may decline to further investigate a complaint if it appears that, having regard to all circumstances of a case, and having commenced an investigation, further investigation is unnecessary.

In the circumstances it would appear that further investigation of your complaint about the Ministry’s response to your first request of 8 July 2015 is unnecessary.”

So the Chief Ombudsman appeared to have little interest in taking that matter any further, but the complainant was at least allowed to offer his further comments by Thursday 29 March 2018.

A PDF file with an authentic scan copy of that letter by the Manager in charge of Investigations and Resolution at the Auckland Office, dated 12 March 2018, partly redacted, is found here:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, pt dec., anon, 12.03.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., pt dec., hilit, 12.03.18

 

The complainant’s further submission to the Ombudsmen Office

Continuing to be concerned about the in his view still unsatisfactory response by MSD to his information requests, the complainant wrote back in response to that letter by the Ombudsmen’s Office, presenting his largely unchanged position.

Acknowledging the email and letter by the Auckland Office’s Manager of 12 March 2018, and confirming he had received a further ‘updated explanation’ from the Ministry of Social Development, the complainant wrote that his requests of 8 July 2015 had still not been answered.

While quoting some explanations given by MSD, he repeated his sufficiently clear and specific points of request made then, and referred to the treatment of student allowances that the Ministry also granted and paid via ‘Studylink’, and what considerations were apparently made for calculating those.

He wrote also: “As you suggest in your letter of 12 March 2018, I do indeed remain concerned that the Ministry does not refer directly to average costs of essential living costs like food, electricity, clothing and so forth, which it must nevertheless consider when setting benefit rates.” “I do not for one moment believe that no calculations of whatever kind were ever made to work out benefit rates.”

He listed the objectives that MSD appears to be considering when setting benefit rates, and he wrote:
“In order to achieve just those few objectives, any government department such as MSD has to base its decisions on factual and relevant information that measures living costs an ordinary person would have to cover. And such costs are commonly and usually measured in monetary terms. Also would a government department have to work by making decisions that are evidence based, not simply grabbed out of thin air, or based on subjective views.

Furthermore, any application a beneficiary or potential beneficiary may make to MSD’s department Work and Income asks for detailed information including received income, held assets, existing living cost expenditure, and so forth – in NZ Dollar terms, in order to work out any entitlements an applicant to a benefit or supplementary allowance may have.

The ‘explanations’ given by the ‘Policy Team’ at MSD are rather general and anything but convincing, and they appear to distract from my specified requests, and I cannot accept such a response to my OIA requests, as it is completely unreasonable.

Also do I consider it unreasonable that I should request further information or seek further clarifications from MSD, as my initial request was already clear and specified enough.

I would consider that your Office must have regard to all the circumstances of the case, which includes MSD providing such an unreasonable response to me, before making any decision based on section 17(1)(f)(ii) Ombudsmen Act 1975, to decline to further investigate this matter, as in my view a further investigation is absolutely necessary.

Last not least, MSD refers to a “series of historical decisions” that current benefit rates are based on, but offers no detailed, identifiable information at all on these decisions, which is again an unreasonable refusal of information, which they do nevertheless appear to consider as being relevant enough to consider when responding to my request.

I do therefore not agree with your view that a further investigation is unnecessary, and ask you to further challenge the Chief Executive and his/her staff at the Ministry of Social Development, to present some factual, evidence based information, e.g. used living cost data representing ordinary, common average costs that ordinary benefit recipients have, which must be used when considering and setting benefit rates. MSD may rely on Statistics NZ or other sources for information, but must be expected to present or point to such information.”

A PDF file with the authentic text of the complainant’s response to the provisional part decision by the Office of Ombudsmen, dated 12 March 2018, slightly redacted, is found via this link:
Ombudsman, complaint, 41xxx7, MSD, failure to comply w. OIA rqst fr. 08.07.17, ltr, anon, 12.03.18

 

The Ombudsman’s final decision on the (first part of) the OIA complaint

But the complainant’s efforts to challenge the Ombudsmen Office to take a firmer stand towards the Chief Executive at MSD were to no avail, as the same Manager for Investigations and Resolution at the Auckland Office soon wrote back with his final decision on this aspect of the OIA requester’s complaint, which was dated 19 March 2018.

He wrote again on behalf of Chief Ombudsman Boshier, basically upholding his already announced decision of 12 March 2018. He referred also to the schedules in the Social Security Act 1964, in which benefit rates were set by Parliament, most likely based on advice by the Ministry. Those actions were outside the scope of the Chief Ombudsman’s investigation and review (authority) under the OIA, he wrote. He asserted that what the complainant had raised with his complaint was predominantly a ‘policy issue’, rather than a request for official information under the OIA.

So the Manager at the Ombudsmen Office decided that further investigation of the complainant’s complaint about the Ministry’s response to the first part of his OIA request was ‘unnecessary’, and that the Chief Ombudsman’s investigation of that matter had been discontinued.

A PDF with an authentic scan copy of that final decision by the Office of Ombudsmen, dated 19 March 2018, and with some personal details concealed, can be loaded by clicking these links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, final pt. dec., 19.03.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., fin. pt dec., hilit, 19.03.18

 
 

E) MSD’s FURTHER RESPONSE OF 9 MARCH 2018

As mentioned above, there was one further response provided by the Ministry by way of an email, which had been sent to the OIA requester and Ombudsmen Office complainant on 9 March 2018. This response was not all that much different to the initial response that MSD had provided on 19 Nov. 2015. But it contained some further new comments, which referred also to the schedules in the Social Security Act 1964, which contained the actual benefit rates set by Parliament.

Diane Anderson – ‘Manager Complaints Management Insights and Improvements’, at MSD wrote on 9 March 2018 (by email):

“Dear Xx Xxxxxxx

I refer to your OIA request of 08 July 2015 in which you had sought a ‘breakdown’ of the Jobseeker Support benefit, the Supported Living Payment and the Sole Parent Support benefit with reference to costs for food, clothing, accommodation, and so on.

The Ministry had previously responded that there was no legislative formula to determine benefit rates, but that the rate depends on factors such as benefit type, and whether a person is single or has dependent children.

You were of the view however that the Ministry’s response was inadequate and had laid a complaint with the Office of the Ombudsman who had asked us for a to provide more of an explanation of how benefit rates are determined.

We have consulted our Policy Team and a fuller explanation of how benefit rates are determined is given below:

Benefit rates

1 The working age benefit rates are set out in the schedules to the Social Security Act.

2 The main benefit system provides a basic income to replace income that would generally be obtained through paid employment. Benefits are funded through general taxes. The initial rate of benefit varies according to the benefit type and whether the person is single, partnered or a sole parent. The rate of payment does not relate to the person’s previous income from employment, rather it is intended to provide an adequate income to meet basic living costs, within a context that includes the availability of second and third tier assistance. The current rates have been arrived at by a series of historical decisions. There is no legislative formula to derive “correct” rates of benefit, rather judgments have been made balancing a number of competing objectives and issues, including whether the rates:

• provide an adequate income to allow participation and belonging[1] in society
• are fiscally sustainable (both the rate paid and the number of people supported by benefits affect their affordability)
• maintain incentives to work
• maintain incentives to study (particularly in the case of younger people)
• are publicly accepted (generally perceived as not too high and not too low and are consistent with broad assumptions about the needs of the particular benefit group – for example the assumption that a person receiving Jobseeker Support will return as quickly as possible to paid work)
• achieve broadly equivalent living standards[2] for different household types receiving the same benefit.

3 By convention, the purchasing power of benefit rates is preserved by an adjustment on 1 April each year reflecting any increase in the cost of living as measured by the movement in the Consumers Price Index. The Social Security Act contains provision to make this adjustment mechanism a legislative requirement. Unlike New Zealand Superannuation rates, main benefit rates are not linked to any wage measure. Hence, under the current adjustment mechanism, benefit levels will rise relative to wages at times when prices move faster than wages, and fall relative to wages when wages move faster than prices.

4 Within each working age benefit type, different rates apply for people who are couples, sole parents or single (this rate also varies according to the age of the person).

5 Additional basic income support for dependent children is paid through the family tax credit. The rate of benefit paid for couples with children is the same as the rate paid to couples without children. All of the working age benefits contain a sole parent rate of payment, which is higher than the single rate. This means that a sole parent can have his or her family circumstances recognised through any of the main benefits. The sole parent rate is the same regardless of the number of dependent children. New Zealand Superannuation is not a working age benefit and has a different rate structure for single people and couples.

Note [1]: ………(see scan copy provided under relevant link below!)

Note [2]: ………(see scan copy provided under relevant link below!)

I hope you would find our explanation as above, an adequate response to your OIA (Request 1) of 08 July 2015.

Kind regards Diane”

A PDF containing an authentic scan copy of the final email response by Diane Anderson of the Ministry, dated 9 March 2018, can be found via these links (only partly redacted):
MSD, OIA Rqst, 08.07.15, Benefit Rates, final response, email, anon, 09.03.18
MSD, OIA Rqst, 08.07.15, Benefit Rates, final response, email, hilit, anon, 09.03.18

 
 

F) ANALYSIS OF THE INFORMATION PROVIDED BY MSD

The OIA requester was presented with two responses he received from the Ministry, one dated 19 Nov. 2015, the other one dated 9 March 2018, and they contained more or less the same information.
Re the responses to questions 1 to 3 of the first OIA request from 8 July 2015 MSD continued to maintain that there was no legislative formula used for calculating and setting benefit rates. They were not based on particular living costs, it seemed. Benefit rates would rather depend on a person’s circumstances, i.e. whether being single, or in a relationship and/or whether having dependants as a sole parent. The Consumer Price Index (CPI) was mentioned in the first response, to explain that inflation adjustments are made annually, as the Social Security Act 1964 appears to require it.

With the second response the Ministry then referred to the schedules in the Social Security Act, which would contain the current benefit rates, which had not been mentioned in their first response. Nevertheless, a number of factors were again listed, which were apparently being considered when determining benefit rates. Also did Diane Anderson mention ‘additional basic income support’ being available for parents with children, in the form of the family tax credit. This further response was provided to the OIA requester upon internal consultation with the Ministry’s ‘Policy Team’.

Besides of maintaining ‘incentives’ to work or study, benefits had to be ‘fiscally sustainable’, Diane Anderson wrote in her email letter. Also did she comment: “The current rates have been arrived at by a series of historical decisions.”

The first response by Carl Crafar, dated 19 Nov. 2015 listed (besides others) this objective:
“provide an adequate income to allow participation and belonging in society”.
The second response by Diane Anderson, dated 9 March 2018, listed (besides others) the same:
“provide an adequate income to allow participation and belonging[1] in society

It is worth noting what the complainant wrote in his Ombudsmen Office OIA complaint of 22 Nov. 2015:
“As MSD also administer ‘Studylink’, I wonder whether the Ministry uses similar considerations as are indicated in the following information shown on the ‘Studylink’ website:
http://www.studylink.govt.nz/tools-and-calculators/on-course-budget-calculator.html
On that page with their ‘Cost of living calculator’ there is mention of “typical costs”, “estimates for most of the basic weekly costs”, and under ‘How we got the real world estimates’ it says under point 3: “Power, groceries, petrol, clothes, takeaways, leisure, toiletries/beauty/makeup these are the average person’s weekly spending, taken from the Housing Expenditure Survey 2007 and adjusted for inflation.”

As was mentioned in a note further above in this post (under the transcript of the complainant’s letter to the Ombudsmen, dated 22 Nov. 2015), the page that now loads on the ‘Studylink’ website – when clicking the link provided – is no longer the same. Information that was once made available there is no longer to be found. Only simplified, brief, more general and less specific information is shown for the Student Allowance. We no longer find a reference to the ‘Housing Expenditure Survey 2007’.

That survey from 2007 will of course by now be well out of date, but one would have thought, that when determining any benefit rates, the Ministry would get its policy team experts source and use some relevant scientifically gathered statistical information in the form of details on what an average person needs to cover his or her basic living expenses. How else can anyone determine what is an ‘adequate income’ for a person having to live off a benefit?

It appears though, that the Ministry is extremely reluctant to be nailed down on any details that may somehow be used to determine benefit rates, possibly for fear of people taking them to court or so, should benefit rates prove to be insufficient to enable a person to ‘participate’ and ‘belong’ in society.

It is beyond belief, that those in charge of forming MSD policy and offering advice, which is also used by the government of the day to make decisions on social security matters, including the setting of benefit rates, would not conduct any research and not make any calculations in whatever form. It is hard to believe that they would not base any advice or guidance to government on reliable, scientifically gathered statistical data from Statistics New Zealand – or any other agency.

Costs for food, clothing, accommodation, transport/travel, electricity, water, phone, social spending and so forth, these are factors that must surely be relevant and considered. But as it appears, at least going by the Ministry’s responses, they are not directly used when determining benefit rates.

So if this is true, then the Jobseeker Support, Supported Living Payment and Sole Parent Support benefit rates are simply set by the government of the day as they see fit, purely at will, possibly by following some form of undisclosed unscientific guidance or advice given by ‘experts’ within the Ministry. It is then presented to Parliament, either as a legislative instrument in the form of an Order in Council, approved by the Governor General, or in the form of a Bill. Only the latter would need to be read and voted on, to have it passed into law.

The Ministry, does appear to try and tell us that benefit rates are decided on by the government, then acknowledged or signed off by the Governor General and/or Parliament, so as if their own ‘Policy Development’ staff and management would have nothing to do with processes being followed. A look at their website on the page(s) found via this following hyperlink would suggest otherwise:
https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/policy-development/index.html

That is what they seem to be telling the OIA requester, although the information on their website says the following:
“Developing policy

The policy group is the government’s principal provider of policy and social sector advice.”

More about the Ministry’s ‘policy branch’ can be found on their website by clicking the following hyperlink:
https://www.msd.govt.nz/about-msd-and-our-work/about-msd/our-structure/policy-cluster.html

Of particular interest to readers will be the following information:

“Employment and Income Support

The Employment and Income Support policy group comprises three teams:
Youth Employment and Labour Market team: responsible for policy development and advice relating to labour market change and demand, and long term benefit dependency. The team focuses particularly on improving the education, employment and quality of life outcomes of disadvantaged young people.

Health and Disability Employment team: responsible for policy advice on addressing the barriers to employment faced by people with a health condition or disability. The team focuses on ensuring disabled people and people with health conditions are supported to obtain work and enjoy a higher quality of life.

Income Support team: responsible for producing policy advice on a range of topical income support issues. The team focuses on ensuring that the benefit system is fair and robust and improving financial incentives to work or prepare for work.”

(as shown on the MSD website on 21 May 2018)

 

And that last bit tells us quite clearly, where MSD’s ‘Employment and Income Support’ policy group’s main focus lies:
A ‘fair’ and ‘robust’ benefit system, obvoiusly primarily geared to ‘improving financial incentives to work or prepare for work’. And so they have for years been giving government ‘advice’ on policy that then led to actions like abolishing the former ‘Sickness Benefit’, to merging sick and disabled with other ‘jobseekers’ into the ‘Jobseeker Support’ benefit, and to leaving those on the only slightly higher ‘Supported Living Payment’ benefit languish in abject poverty, while they are too severely and permanently sick and/or disabled to engage in any forms of work on the open job market, which is one where they are expected to compete with the physically and mentally fit.

 

Author’s note:

For information on Legislative Instruments and Orders in Council, see the following links:
http://www.pco.govt.nz/about-legislation#lis
http://www.legislation.govt.nz/glossary.aspx
https://www.dpmc.govt.nz/our-business-units/cabinet-office/executive-council
https://en.wikipedia.org/wiki/Order_in_Council

 
 

G) CONCLUSION

So in summary, we can conclude that the Ministry of Social Development (MSD) takes a position that it is not, at least not directly, involved in a process of determining base or main benefit rates. It appears to claim there are no considerations made in relation to having particular living costs be reflected in benefit rates – as components or parts of the whole base rate. Although the Ministry does clearly have a ‘Policy Team’, a ‘Policy Branch’ or ‘Policy Development Branch’, that does most certainly offer advice on various policy matters to the government of the day, it appears to disassociate itself from having any significant input in the setting of benefit rates. They do this, although the Ministry has an ‘Income Support team’ that is responsible for “producing policy advice on a range of topical income support issues”.

We are told it is simply the government, or rather the Minister of Social Development, asking the Governor General for approval of an Order in Council, when changing benefit rates, shown in the schedules of the Act. Or alternatively, if there are more significant changes planned, it is the government presenting a Bill to Parliament, seeking the introduction of, or major changes to, benefits and corresponding (new) rates, relying on a majority vote to pass such a legislative change into law.

Hence, in our view, we are back to the business of passing the buck, the splitting of hair, and more obfuscation and pretence, as it is simply not all that credible, that MSD and their researchers and policy advisors play no significant, effective role in the way benefits are set. It appears that the advice that must nevertheless be given to governments is simply not based on any scientifically gathered statistical data on ordinary, average, basic living costs people in New Zealand have to pay. It is advice that appears to rather be driven by considerations of a few factors, including such that ensure people are kept poor enough, to feel an ‘incentive’ to work, or at least to study and thus prepare themselves for work on the open job market.

When some wages are so low, that many working full time are now also considered to be ‘working poor’, and when those working are struggling to meet basic living costs, then the Ministry appears to be advising government to still keep benefits lower than such wages, so that people have ‘incentives’ to work. That is basically where many are left in modern day New Zealand, kept poor, whether working, or worse still, even poorer if unable to find work, or unable to work altogether.

It took MSD well over two and a half years to respond in a more qualified manner to these OIA requests, seeking simple, clear and honest answers on how benefit rates would be set, and whether basic living costs would possibly be considered to be reflected in the form of components of the base or main benefits. Even then, they avoided to offer more clarity. And as so often, the Ombudsmen did not appear to be too interested in getting more appropriate responses from MSD. Worse still, the complaint made already in late Nov. 2015, was left lying around for over two years.

In any case, whatever considerations may be made, whatever advice the Ministry may give to the government, in the end it is the government of the day in New Zealand that sets the social security benefit rates at will, as it sees fit, based on advice received and its own judgment, as explained above.

 
 

Quest for Justice

 

23 May 2018

 
 

Here is a link that will load a PDF version of this post, which some may find easier to read and study. If the links in that document may not work with your browser, copy and paste them into a search engine box and you will find the actual documents or website pages that way:
Social Security Benefit Rates in N.Z., Set at Will by Govt, Ignoring Evidence, NZSJB, 23.05.18

 

MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN

MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN

 
 

CONTENTS:

PART 1: INTRODUCTION
PART 2: OFFICIAL INFORMATION ACT (OIA) REQUEST OF 27 SEPT. 2016 TO THE MINISTRY OF SOCIAL DEVELOPMENT (MSD)
PART 3: EARLIER OIA REQUEST TO MSD, DATED 1 OCT. 2014
PART 4: EARLIER OMBUDSMAN OIA COMPLAINT OF 9 MARCH 2015
PART 5: MSD’s FIRST RESPONSE TO THE NEW OIA REQUEST, DATED 27 OCT. 2016
PART 6: MSD’s SECOND RESPONSE TO THE NEW OIA REQUEST, DATED 23 NOV. 2016
PART 7: OMBUDSMAN OIA COMPLAINT OF 3 DEC. 2016 – ABOUT MSD’s INFORMATION REFUSAL
PART 8: MSD’s LATE RELEASE OF THE OUT OF DATE ‘GUIDE FOR DESIGNATED DOCTORS’ ON 8 NOV. 2017 – ONLY AFTER INTERVENTION BY THE OMBUDSMAN
PART 9: MSD’s PREVIOUS RELEASE OF THE SAME KIND OF ‘GUIDE’ – WITH AN OIA RESPONSE IN MARCH 2011
PART 10: MSD’s CONFUSING COMMENTS RE ‘GUIDES’ FOR MEDICAL PRACTITIONERS IN ANOTHER OIA REPLY FROM 3 FEB. 2017
PART 11: MSD RELEASE A NEW CURRENT LIST OF DESIGNATED DOCTORS – UPON ADVICE BY THE OMBUDSMAN
PART 12: CONCLUSION: SECRECY, OBFUSCATION, APPARENTLY INTENDED CONFUSION AND UNCERTAINTY

 
 

PART 1: INTRODUCTION

As part of wider welfare reforms to bring in changes in the treatment of beneficiaries with health conditions, injuries and disability, and also with the appointment of a new hierarchy of Principal and Regional Health and Disability ‘Advisors’ in 2007, the Ministry of Social Development (MSD) followed a new approach in trying to move more persons with longer term sickness and disabilities off benefits and back into employment.

It was all part of the ‘Working New Zealand: Work Focused Support’ programme, brought in by the then Labour led government under Prime Minister Helen Clark and her Ministers.

A key role in this new strategy was held by medical practitioners and some other health professionals, who were expected to work with MSD and Work and Income to achieve better outcomes, so that persons who suffered from sickness, injury and/or disabilities managed to stay in employment, or returned sooner into employment, where needed with extra supports.

It was in early to mid 2008 that MSD’s main department Work and Income (WINZ) released their ‘Guide for Designated Doctors’, which was one piece of a ‘guidance’ document, that MSD presented then, to “assist” their signed up ‘Designated Doctors’, who were mostly general practitioners, when completing medical certificates and cooperating with WINZ.

There were other measures being prepared and started as early as 2006/2007, and in all earnest during 2008, which involved the preparation and commencement of so-called ‘Designated Doctor Training’ by Senior Advisors at MSD, which was something the Ministry had never engaged in before. That would later raise serious new questions about the actual independence of ‘Designated Doctors’, and we believe that was part of the reason, that this kind of on site group training of assembled medical practitioners would not be continued.

For a sample of information that was then being communicated within MSD, see the authentic ‘Memo’ copy found by clicking this hyperlink (from 23 Jan. 2008; see under page 4 and ‘Training material’ the mention of a ‘Designated Doctors Guide’):
MSD, Des. Dr Training + Comm. Requirements, J. Russell, M. Mortensen, memo, 23.01.2008
MSD, Des. Dr Training, Comm. Requiremts, J. Russell, M. Mortensen, memo, hi-lit, 23.01.2008

To fully understand what was going on then, we strongly recommend you read and study this post, found under the following hyperlinks (one leads to a downloadable PDF version):
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/10/designated-doctors-used-by-winz-msd-the-truth-about-them-post-upd-18-10-2016.pdf

As there are likely to be ongoing changes made to the way WINZ, their Designated Doctors, Principal Health Advisor, Principal Disability Advisor, and also Regional Health Advisors and Regional Disability Advisors, work with clients having health conditions, injuries and/or disabilities, some of what has been covered by that revealing post may not be quite current anymore, but we believe, that the overall approach and system has not changed all that much.

A dedicated official information requester, who is well trusted by us, has over recent years been following the developments in the medical and work capability assessment regime area. He has gathered substantial information on Work and Income’s ‘Designated Doctors’. He has also carefully studied what WINZ have been doing by bringing in new trials and other programmes, aimed at getting people with mental health and other so-called ‘moderate’ and ‘common’ health conditions into employment. He has made a number of interesting OIA requests to the Ministry (MSD), which generated some responses offering useful insights.

Being as concerned as many directly affected persons dependent on benefit income are, who often face unrealistic expectations by employers, as well as by MSD, he asked repeatedly for information on what advice and guidance material MSD may be using and providing to medical practitioners and various other health professionals. With a request of 27 Sept. 2016 he once again asked for more information on that, as well as for a current list of the ‘Designated Doctors’ that MSD and WINZ use for examining and assessing clients.

This post reveals the massive barriers that MSD and WINZ appear to have put into place, for any person seeking transparency and more information about how Work and Income works with persons on benefits granted on grounds of poor health and/or disability.

It also reveals for the first time, the very current list of their Designated Doctors, which does now look somewhat different to one that had been made available in August 2012.

 

PART 2: OFFICIAL INFORMATION ACT (OIA) REQUEST OF 27 SEPT. 2016 TO THE MINISTRY OF SOCIAL DEVELOPMENT (MSD)

On 27 September 2016 the information requester sent a new OIA request by email to MSD, requesting, besides of a lot of other information (MHES, other trials), access to the following:

“11. Information in the form of a complete current list (with names, health qualifications, practice names and addresses, preferably also by regions) of ‘Designated Doctors’ that MSD and WINZ have on their files, and being available to be commissioned to conduct medical and/or work capability examinations on WINZ clients with health conditions and disabilities, and/or persons who they may care for (see for instance also provisions under sections 88E, 40C and 40E of the Social Security Act 1964).”

“12. Information in the form of the official current ‘Guide for Designated Doctors’, or any newer replacement guide, that MSD provides to medical and health practitioners in order to inform them of their requirements and expectations in relation to conducting examinations and preparing reports for MSD – on clients with health conditions and / or disability. I note that some time ago, in an earlier Official Information Act response a reference was made to the WINZ or MSD website, where such information could supposedly be found, but it was never found, even after extensive searching.”

He closed his request letter with the following comments:
“The above specified information is sought for reasons of providing desired transparency and accountability to the public, and is asked to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.”

The full authentic text of that OIA request letter dated 27 Sept. 2016, only partly anonymised, can be found by clicking the following hyperlink:
MSD, O.I.A. request to C.E., re Work to Wellness providers, MHES, SPES, etc., anon, 27.09.2016

 

PART 3: EARLIER OIA REQUEST TO MSD, DATED 1 OCT. 2014

As a matter of fact, the requester had made a somewhat similar request years earlier, on 1 October 2014, when he asked under ‘11’ for the following information to be made available:

“Information on what advice or expectations MSD has communicated to medical practitioners – like general practitioners (GPs) and also medical specialists (orthopaedic surgeons, psychiatrists, psychologists, and so forth), for them to consider when asking questions to, and when assessing health conditions and work ability of their patients who require a ‘Work Capacity Medical Certificate’ for benefit purposes? Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors’. In regards to the latter, where can a current copy of that “guide” be found, as nothing could be found online on the Work and Income website.”

At the end of that request letter, he considered it appropriate to remind MSD of the following:
“The above specified information is sought for reasons of providing desired transparency and accountability to the public, and also to obtain assurances that the Ministry, same as its contracted service providers, do provide all their services at the highest standard, and at all times in a professional, acceptable, fair and reasonable manner. The specified information is asked to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.”

The authentic, partly redacted text of that earlier OIA request of 1 Oct. 2014 is found here:
MSD, OIA request, MHES, WAA, other support services, issues, questions, anon, 01.10.2014

It took months for the requester to finally get a response to that comprehensive OIA request of 1 Oct. 2014, which was dated 26 February 2015. But the information released by Debbie Power as Deputy Chief Executive for Work and Income was mainly about the new trials being run as Mental Health Employment Services (MHES) and Sole Parent Employment Services (SPES), and about a few other areas.

In regards to his request ‘11’ all that was provided in MSD’s response on page 8 was this:
“Medical Practitioners provide an assessment of the impact of the individual’s disability or health condition on their ability to undertake suitable employment. The assessment also provides information that may enable an individual to work towards returning to paid employment.

All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz .”

And upon looking on the website, the OIA requester was left to search for himself, to find only very limited, rather general, unspecific and little useful information on Designated Doctors, medical assessments and so forth. No ‘Guide for Designated Doctors’ or any similar ‘guidance’ material offering advice, directions or expectations could be found anywhere.

That much delayed and very unsatisfactory response that was then provided to him by MSD by way of an email and letter of 26 Feb. 2015 can be found (in redacted) form via this link:
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15

So the requester was simply referred to very general and basic ‘guidance’ information on the Work and Income website, nothing more, which seemed like an attempt of obfuscation, when considering earlier, a bit more transparent OIA responses which he was sent by MSD in 2011.

Some additional information would be released very much later on 22 Nov. 2017, upon Ombudsman complaints made on 13 Dec. 2014 and 9 March 2015, but that particular response would not answer the requester’s questions about any advice, expectations and criteria that WINZ may be communicating to medical and health professionals for examining and assessing sick and/or disabled clients. There would be no further information about the ‘Guide for Designated Doctors’, or something similar that WINZ may be using.

 

PART 4: EARLIER OMBUDSMAN OIA COMPLAINT OF 9 MARCH 2015

Following an initial delay complaint, dated 13 Dec. 2014, about MSD not providing the earlier promised information requested by way of his letter dated 1 October 2014, the requester filed a more comprehensive, formal OIA review complaint to the Ombudsmen on 9 March 2015, after having received that unsatisfactory response on 26 Feb. 2015 (see above).

In his letter of 9 March 2015 he wrote re his request point ‘11’ and re MSD’s response:
“Regarding Request 11

I asked for the following information:
“Information on what advice or expectations MSD has communicated to medical practitioners – like general practitioners (GPs) and also medical specialists (orthopaedic surgeons, psychiatrists, psychologists, and so forth), for them to consider when asking questions to, and when assessing health conditions and work ability of their patients who require a ‘Work Capacity Medical Certificate’ for benefit purposes? Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated,
beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors’. In regards to the latter, where can a current copy of that “guide” be found, as nothing could be found online on the Work and Income website.”

I appreciate the information provided and referred to on the Work and Income website. This does though only cover general and mostly widely available information that MSD communicates to medical practitioners, specialists and other health professionals, who conduct assessments on health conditions and on work ability of clients.

Through earlier Official Information Act requests to MSD I have already been informed that Regional Health Advisors, Regional Disability Advisors, also the Health and Disability Coordinators, and the Principal Health Advisor, do all regularly communicate and correspond with various medical practitioners and other health professionals working with MSD and Work and Income. This happens particularly with designated doctors. I am informed and aware that there are other forms of direct Advisor to practitioner “advice” and “expectations” being communicated to such health professionals. These forms of communicated advice, guidelines and expectations are NOT covered by the mostly more general information on the website.

I had also asked: “Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors.”

Hence my request has in that regard not been met. I must therefore ask again that such information is provided, which would not be case specific, and which is applied more generally. This kind of information is not available via the website, and it goes beyond information on the ‘Work Capacity Medical Certificate’, and in some cases also beyond of what was once available through a “Guide for Designated Doctors”. If there are reasons to withhold it, I am sure MSD can mention and explain these.

Last not least I also asked for a source to find the once used ‘Guide for Designated Doctors’, which has also not been provided, certainly not on the Work and Income website. All that is offered are links to download an application form (in PDF) for “designated doctors” and to access “READ Codes” to use by doctors. See the following link:
http://www.workandincome.govt.nz/community/health-and-disability-practitioners/designated-doctors.html#Resourcesfordesignateddoctors8

That part of my question appears to also not have been answered. If there is no longer such a Guide, or if it is withheld for particular reasons, it must be expected that this is clarified. The same should be expected if that former “Guide” has been replaced by another document.”

Here’s a link to a PDF with the authentic, partly redacted text of the more important complaint letter of 9 March 2015 (that followed the brief ‘delay complaint’ of 13 Dec. 2014):
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst, sundry items, anon, 09.03.15

Like with other Ombudsmen Office complaints at that time, this matter would drag on for years, until it would finally be progressed from mid May 2017 onwards. But the ‘Guide for Designated Doctor’ question would not be resolved in any form until 8 November 2017, that was only after yet another complaint was made to the Ombudsmen Office on 3 Dec. 2016 about MSD’s unsatisfactory response to the newer information request dated 27 Sept. 2016!

 

PART 5: MSD’s FIRST RESPONSE TO THE NEW OIA REQUEST, DATED 27 OCT. 2016

There was one short, initial response by the ‘Official and Parliamentary Information team’ of MSD on 29 Sept. 2016, basically only confirming to the requester that they had received the OIA request of 27 Sept. on 28 September 2016, and informing him that the matter had been referred to their ‘National office’ to respond.

Here are hyperlinks that will load the partly anonymised first response by MSD (dated 29 Sept. 2016) to the information request by our OIA requester, the one dated 27 Sept. 2016:
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, 1st email reply, anon, 2 p., 29.09.16
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, 1st email reply, hilit, anon, 2 p., 29.09.16

On 27 October 2016 the Ministry did then send a more formal initial response email, stating the following:

“On 27 September 2016 you wrote to the Ministry requesting, under the Official Information Act 1982, information regarding the Mental Health Employment Services.

The Ministry has decided to grant your request in part, namely information which relates to Work to Wellness services. However, it will take some time to prepare this information for release. The information will be sent to you by 17 October 2016. The Ministry has also decided to refuse your request for information which relates to the following:

• A copy of the list of Designated Doctors including their qualifications, location and clients they treat is refused under section (9)(2)(a) of the Act.
• Whether clients with mental health conditions had suffered any medical problems since being referred to Work and Income is refused under section (9)(2)(a) of the Act.
• The number of people who had been approached to be referred for the service is refused under section 18(e) of the Act as the information does not exist.
• Your request for the ‘Guide for Designated Doctors’ is withheld under section (9)(2)(f)(iv) of the Act as the information is under active consideration.

If you wish to discuss this decision with us, please feel free to contact OIA_Requests@msd.govt.nz

You have the right to seek an investigation and review by the Ombudsman of this decision…”

So once again some valuable, important and possibly sensitive information was being refused by the Ministry, which was nothing all that new to our OIA requester. Nevertheless, it was a disappointment, upon which he would take further action.

A PDF with an authentic, partly anonymised copy of that email response of 27 Oct. 2016 can be found by clicking the following hyperlinks:
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, email resp., anon, 3 p., 27.10.16
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, email resp., hilit, anon, 3 p., 27.10.16

 

PART 6: MSD’s SECOND RESPONSE TO THE NEW OIA REQUEST, DATED 23 NOV. 2016

MSD did present a formal, more comprehensive OIA response in respect of a lot of the other information, as it had been requested on 27 Sept. 2016, which came by way of an email sent to the requester on 24 November 2016, having attached their letter, dated 23 Nov. 2016.

Most information was about the ‘Work to Wellness’ employment referral service, about the MHES and related aspects. But information on ‘Designated Doctors’, the ‘Guide for Designated Doctors’, or any newer replacement guide, and the likes, was again refused.

In response to request ‘11’ the response by the Ministry was the following:
“Information about the doctors including their location, practice name, qualifications and the clients they care for is withheld under section 9(2)(a) of the Act. The need to protect the privacy of these individuals outweighs any public interest in this information. Additionally, the doctors have not given the Ministry consent to release their information when requested. I understand the Ministry has released the list previously to another requester and unfortunately was released in error.”

In response to request ‘12’ the Ministry wrote:
“The current status of the guide for designated doctors is currently being updated and a refreshed guide will be available once this has occurred. As such, this part of your request is refused under section 9(2)(f)(iv) of the Official Information Act as it is under active consideration. The release of this information is likely to prejudice the quality of information received and the wider public interest of effective government would not be served.”

While committing itself to the principles and purposes of the OIA, this response by MSD was anything but helpful, and not convincing to the OIA requester. The letter was signed by Ruth Bound, Deputy Chief Executive, responsible for Service Delivery.

A PDF file with the complete, authentic, only partly anonymised scan copy of this response of 23 Nov. 2016 can be found via this hyperlink:
MSD, OIA rqst re Work to Wellness, MHES, SPES services, fr. 27.09.16, D.C.E. reply, anon, 23.11.16

 

PART 7: OMBUDSMAN OIA COMPLAINT OF 3 DEC. 2016 – ABOUT MSD’s INFORMATION REFUSAL

Given the blunt and firm refusal by MSD to make available a range of remaining, sought information, including the list of Designated Doctors, and the ‘Guide for Designated Doctors’, or any replacement ‘Guide’, our requester filed yet another complaint with the Office of Ombudsmen, which was dated 3 Dec. 2016.

In it he referred to his original request of 27 Sept. 2016, the responses by MSD dated 27 October and 23 Nov. 2016 (see above), and then wrote the following under the corresponding paragraphs:

“[4] My requests 5 and 11 appear to have been refused under section 9(2)(a) of the Official Information Act 1982, which says the following:
‘9 Other reasons for withholding official information’ ….
“(2) Subject to sections 6, 7, 10, and 18, this section applies if, and only if, the withholding of the information is necessary to—
(a) protect the privacy of natural persons, including that of deceased natural
persons; ..“

[5] My request 12 was refused under section 9(2)(f)(iv) OIA, which says the following:
“(f) maintain the constitutional conventions for the time being which protect—
(iv) the confidentiality of advice tendered by Ministers of the Crown and officials;..”

He expressed his disagreement with MSD’s stated reasons for those refusals, and offered his arguments and explanations as to why the so far withheld and refused official information should be made available to him after all.

In relation to the ‘Designated Doctors List’ he expressed the following concerns, gave his reasons and explained his views and position on why the information should be released (under the corresponding paragraphs):

“[9] Refusal 1. – under section 9(2)(a) O.I.A., as mentioned in MSD’s letter:
It was under point ’11.’ In my request from 27 September 20162 that I asked MSD for the following information:
“11. Information in the form of a complete current list (with names, health qualifications, practice names and addresses, preferably also by regions) of ‘Designated Doctors’ that MSD and WINZ have on their files, and being available to be commissioned to conduct medical and/or work capability examinations on WINZ clients with health conditions and disabilities, and/or persons who they may care for (see for instance also provisions under sections 88E, 40C and 40E of the Social Security Act 1964).”

[10] In my letter from 31 October 20164 to MSD, I first expressed my concern that the Ministry’s staff may have misunderstood my question, in particular the following sentence:
“A copy of the list of Designated Doctors including their qualifications, location and clients they treat…”

[11] I did then clarify to MSD that it was not my intention to ask for any information about “clients” that may be “treated” by ‘Designated Doctors’ used by Work and Income (WINZ). I explained that the word “clients” was meant to refer to clients of WINZ, but that I would of course not expect any identifiable information of clients to be made available. All I asked for was information in the form of a current list of such medical practitioners used by WINZ, with their names, qualifications, practice names, addresses and preferably regions they work in.

[12] Also did I state the fact, that I had been informed that such a list had previously been made available in October 2012 to ACCLAIM Otago, in Excel file format, which contained details on the region, centre, first name, surname, registration, practice name, phone number, facsimile number, address, suburb, town/city and postal code of the so-called ‘Designated Doctors’ that then worked for the Ministry. I did after then view a copy of that file received through contacts.

[13] I pointed out that the ‘FYI’ website, found via the following link, does also clearly state that such information had been made available on 09 October 2012:
https://www.fyi.org.nz/request/list_of_designated_doctors_for_b
A published letter on ‘FYI’ – from the Ministry dated 16 Oct. 2012 – refers to the earlier request and the response given then, and at the top of the web-page it says without any doubt “The request was successful”. At least at a later stage the information made available to ACCLAIM Otago was also shared with other persons, so many Designated Doctors that were already then on the list are already widely known to work with or for WINZ. If required I can also mention one or two web based forums, where links to the list were published.

[14] Hence I informed MSD that I consider the refusal of that information to be somewhat irritating and hard to understand, as it appeared to be inconsistent with the previous official information policy by the Ministry. I wrote to MSD that I did not even ask for all the types of information that had then been previously released, and I explained that I could even agree to leaving the qualifications of the ‘Designated Doctors’ out from my request, and have instead only mentioned under what type of ‘registration’ these practitioners do work for the Ministry. I stated that I would uphold my request, and that I’d expect the information I asked for, at least a list of the ‘Designated Doctors’ by name, surname, WINZ region or district, and their registration.

[15] I wrote to MSD that it appeared unreasonable to refuse the information under section 9(2)(a) in view of the fact that such concerns had not previously been expressed. I explained to MSD how the Medical Council of New Zealand (MCNZ) does itself have a publicly available register for all medical practitioners. Any person can check the details of a practitioner’s registration, the vocational scope she/he works under, plus in which geographic district the professional may be based. I also presented a hyperlink to the MCNZ’s website, where a full list of all registered practitioners is available for a fee:
https://www.mcnz.org.nz/support-for-doctors/list-of-registered-doctors/

[16] Furthermore did I mention to MSD that the MCNZ even publishes a list of doctors who are currently suspended and also whose registration has been cancelled, and I presented this link:
https://www.mcnz.org.nz/support-for-doctors/suspended-doctors/

[17] I expressed my view that when the MCNZ and other registration authorities offer at least the publicly available information as they do, then the Ministry of Social Development should also not conceal information about who is working for it as ‘Designated Doctor’ – or any information about internal or external Advisors that it may use.

[18] In her response from 23 November 20165, Ruth Bound, Deputy Chief Executive at MSD, gave the following explanation for refusing the information I asked for:
“Information about the doctors including their location,• practice name, qualifications and the clients they care for is withheld under section 9(2)(a) of the Act. The need to protect the privacy of these individuals outweighs any public interest in this information. Additionally, the doctors have not given the Ministry consent to release their information when requested. I understand the Ministry has released the list previously to another requestor and unfortunately was released in error.”

[19] This ground for refusal is not accepted by me. Firstly, the Ministry admits that the information was already made public by way of an “error”. I have reliable information that the then published ‘Designated Doctor List’ has been shared via the internet and other means, and therefore the names and at least some other details of the practitioners listed in it, are already publicly available. While there may have been some changes to the composition of the list, as it may have been updated since August 2012, it can though reasonably be presumed that the bulk of the names remain unchanged on the Work and Income list for Designated Doctors, as there has traditionally been only little change by practitioners moving on or off that list.

[20] As the information has already been released, it appears to be unreasonable to maintain the ground for refusal under section 9(2)(a) OIA to protect the privacy of the medical practitioners listed. If the formerly listed practitioners, who I argue will still make up the bulk of that list, have had their details already made available to the public, there is no justification to apply section 9(2)(a). And if it is applied now, then only new practitioners, who may have been added to the list that MSD holds, can rest assured that their details are not publicly available, which though unreasonably prejudices the other practitioners, whose details are already available.

[21] I do also maintain, that there is most definitely a public interest in the information being made available, at least in part, and to a similar degree as the MCNZ makes available information about its registered members. Why should the MCNZ see fit to publish names of registered practitioners, offering a reasonable degree of transparency and accountability, and why should MSD and Work and Income and their Designated Doctors on the other hand be treated differently – in a privileged manner? I consider that the clients that use and depend on the services provided by Work and Income, and that are also required by Work and Income to meet obligations, like having to see a Designated Doctor for a second opinion, must have a right to reasonable transparency. Clients, and for that sake also the wider public, should be informed about who does as a general practitioner, or any other medical or health professional, work for MSD and WINZ as a Designated Doctor to examine sick and disabled persons for their entitlement to benefits or capacity to work.

[22] Designated Doctors should have nothing to hide, should not conceal their name or professional qualification or registration from the public, and should instead be transparent and accountable, as otherwise serious questions about their roles, their competency, their integrity and their ways of working with MSD will arise, which will lead to increased distrust in clients towards their involvement as examiners and assessors for Work and Income.

[23] I may also inform you, that I have myself once experienced great injustice when being wrongly assessed by a WINZ Designated Doctor who “examined” me and followed an unreasonably tight work capacity direction set by the WINZ Principal Health Advisor, declaring me “fit for work”, while my own doctor and specialists agreed in all their reports, that this was definitely not the case. I was even forced to appeal a flawed decision made by WINZ and face a Medical Appeals Board (appointed by MSD!), and then even had to apply for a judicial review at the High Court, to challenge yet another highly questionable decision by that Medical Appeals Board, that largely upheld WINZ’s seriously flawed decision. I will attach evidence of this and other important information of relevance in attachments 6 to 12. That evidence also includes recent findings that MSD’s Principal Health Advisor has been using incorrect data in his presentations, or at least drawn wrong conclusions from inconclusive statistical reports.

[24] Therefore I insist on MSD providing the following information about their Designated Doctors:
The full name, the WINZ region or district, and the registration details of their practitioners.
I ask you as Ombudsman to thoroughly investigate and carefully consider the matter, and to recommend that MSD makes at least that basic information available, so WINZ clients, or any other interested person in the wider public, can use that information to perhaps obtain additional information from the MCNZ, on any practitioner they may be interested in learning some essential details about, or about whom they have some concerns.”

 

In relation to the ‘Guide for Designated Doctors’ he raised the following concerns, and presented his position to the Ombudsman (again under corresponding paragraphs):

“[44] Refusal 4. – under section 9(2)(f)(iv) O.I.A., as listed in your email:
It is with serious concern that I note that my request under point ‘12.’ In my letter from 27 Sept. 20162 for the release of the ‘Guide for Designated Doctors’, or any similar, replacement guide, has been refused under the new section 9(2)(f)(iv) O.I.A..

[45] In her response from 23 November 20165 Ruth Bound, Deputy Chief Executive, gives the following explanation for MSD’s refusal to make this information available:
“The current status of the guide for designated doctors is currently being updated and a refreshed guide will be available once this has occurred. As such, this part of your request is refused under section 9(2)(f)(iv) of the Official Information Act as it is under active consideration. The release of this information is likely to prejudice the quality of information received and the wider public interest of effective government would not be served.”

[46] Well, I can inform you as Ombudsmen, that I was provided a copy of the Ministry’s former ‘Guide for Designated Doctors’ (effective Sept. 2010), together with an Official Information Act response, by former Chief Executive Mr Peter Hughes on 24 March 201115 (upon my request from 29 Dec. 2010). I may refer you to the attached evidence and the bullet points at the bottom pf page 7 in that letter. In a further O.I.A. request dated 01 October 2014 I did with request ‘11’ ask for information on the guidance given to ‘Designated Doctors’, and also asked where a copy of the ‘Guide for Designated Doctors’ could be found. This was after I had earlier been told, it could be found on the Work and Income website. In her response to me, dated 26 Feb. 201514, Ms Debbie Power then responded that: “All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz .”

[47] The information found on the WINZ website is very general and rather sparse in contents, and never answered the requests that I made earlier. The only other document ever found on the website has been an application form for Designated Doctors, hence there is no information available for public scrutiny, what a current ‘Guide for Designated Doctors’ does contain, and what detailed advice the Ministry gives to such professionals it works with, when examining sick and disabled clients, or applicants, which includes assessing their capacity to work.

[48] I must consider this to be a very serious lack of transparency, which is in my view not warranted and not fair and just in this time and age. There have been many anecdotal reports of cases where clients have felt unfairly treated, and where reports completed by ‘Designated Doctors’ appear to be inconsistent with a client’s medical records, including reports and advice. As already mentioned, I can add my own personal experience to theirs.

[49] Therefore one should expect that the Ministry would make available a copy of the present Guide, as it appears to now have been “under active consideration” for years, which is unacceptable. There must at some point in time be transparency offered for persons who wish to obtain more detailed insight into how ‘Designated Doctors’ are informed, advised and offered “guidance” by the Ministry, as otherwise serious questions will continue about the fairness, objectivity and reasonableness of Designated Doctors, when performing their work.

[50] Given the unavailability of a ’Guide for Designated Doctors’, the present situation in regards to guidance and advice given by MSD to its Designated Doctors may somehow resemble a situation, where common citizens are expected to declare or even defend themselves, in front of persons having decision making powers over them, while being denied access to relevant legal and other relevant information to inform themselves about how decisions may be formed. It may also resemble a situation, where persons facing examinations by law enforcement officers – or hearings by persons with jurisdictional powers, are being denied any access to information that would assist them to understand how decisions about them would be formed. This is in my view a denial of basic legal rights a person should have.

[51] It must also be considered that every day dozens if not hundreds of persons are expected to reveal sometimes very private, intimate details about their living and health situation, when applying for benefits or when having to meet various obligations they have as clients of Work and Income. At the same time I note that the Ministry now often sends email responses from its Online Service, which bear no names, at best they may only have a number at the bottom. Even the Official and Parliamentary Information team does not mention any names of the author of emails at the bottom of them; see again attachment 3 for an example.

[52] This represents a growing serious imbalance between the expected transparency, accountability and access to information that exists between the Ministry on one hand, and its clients on the other. Some persons may even think that it is perhaps not surprising that the relationship between staff and clients has over recent times worsened, because of such realities, which could create a great sense of injustice in many clients of WINZ and MSD.

[53] Therefore I ask for the investigation and intervention by the Office of Ombudsmen, to have clarified why an updated ‘Guide for Designated Doctors’ has not been made available for years now. I would expect that such a Guide is made available, and if the present one may not be the appropriate one to publish, as it may have passed its “use by date”, then MSD should be advised and expected to make a new Guide available within the foreseeable future, and offer a link to a copy via one of their websites. It is in my view simply unacceptable that such an important document, apparently still currently being used by ‘Designated Doctors’, is still under ongoing consideration or being reviewed by MSD. Hence I would expect that a more current version will be made available to the public in the very near future.”

After stating his points and outlining his position the requester asked the Ombudsman to investigate the issues relating to the request and the unsatisfactory responses, and to recommend to the Ministry, that they make available the asked for information to him.

A PDF copy with the authentic text of that complaint letter to the Ombudsmen, dated 3 Dec. 2016, only partly anonymised, can be found via this hyperlink:
Ombudsman, complaint, MSD, OIA rqst, info withheld, Des Drs, DDr Guide, anon, 03.12.16

 

PART 8: MSD’s LATE RELEASE OF THE OUT OF DATE ‘GUIDE FOR DESIGNATED DOCTORS’ ON 8 NOV. 2017 – ONLY AFTER INTERVENTION BY THE OMBUDSMAN

After much more correspondence between the Office of Ombudsmen and himself, between the Ombudsman and MSD, it was suddenly and finally on 8 Nov. 2017, that the requester would by way of a short and ordinary email from MSD’s ‘Ombudsman and Privacy Complaint Services’ be sent a copy of the ‘Guide for Designated Doctors’, being an issue from July 2008! The email writer made clear also, that the document was now ‘out-of-date’.

He was not that excited and happy though, as the Ombudsman had apparently accepted that this was all that MSD should be expected to make available to him under the OIA, in response to his requests of 1 Oct. 2014 and 27 Sept. 2016. The copy was basically the same kind of document that he had already been presented years earlier, and it was beyond belief, that there would be no other ‘guidance’ material in use, to provide medical practitioners and health professionals working for WINZ as ‘Designated Doctors’ with information about how to examine, assess and certify beneficiaries with health conditions and/or disabilities.

An authentic, partly anonymised copy of MSD’s email of 8 Nov. 2017 can be found via these hyperlinks:
MSD, OIA Rqst, 27.09.16, Guide f. Design. Doctors, email reply, anon, 08.11.2017
MSD, OIA Rqst, 27.09.16, Guide f. Design. Doctors, email reply, anon, hi-lit, 08.11.17,

The ‘Guide for Designated Doctors’ document released by MSD under the OIA on 8 Nov. 2017 can be found by clicking the following hyperlink:
WDB6 Guide for designated doctors_FINAL

 

PART 9: MSD’s PREVIOUS RELEASE OF THE SAME KIND OF ‘GUIDE’ – WITH AN OIA RESPONSE IN MARCH 2011

What is totally bizarre is the fact, that the same ‘Guide for Designated Doctors’ had already been released to the information requester years before in late March 2011. That was in response to OIA requests he had sent to MSD on 29 Dec. 2010 and on 13 Jan. 2011. The then Chief Executive Peter Hughes appeared to see no reason to withhold or refuse that document, which has not changed in contents since it was published in 2008, as far as we can gather.

Also was the OIA requester able to download a copy of that same document on or around 18 April 2011, apparently from the web, quite probably even from the MSD or WINZ website, where it may once have been available.

Here is a hyperlink that will load an older OIA response by MSD from late March 2011, which had an identical issue of the ‘Guide to Designated Doctors’ sent with it, thus made available to the information requester years earlier (see list of documents on page 7 of 8):
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous

Also had a reprinted copy of the same edition been made available some time before:
https://nzsocialjusticeblog2013.files.wordpress.com/2015/03/msd-work-income-guide-for-designated-doctors-current-downloaded-18-04-2011.pdf

 

Author’s further comments

We ask ourselves, why were MSD so reluctant to make that ‘Guide’ available since then? We know that Peter Hughes was appointed as Chief Executive at MSD under the previous Labour led government. He had a 35 year career at the Department of Social Welfare and at the Ministry of Social Development, last as Chief Executive, being for ten years until 2011:
http://www.ssc.govt.nz/author-biography-peter-hughes
(info as at 23 June 2017)
https://nz.linkedin.com/in/peter-hughes-2345523b
(link inserted 01 April 2018)

The last National led government (2008-2017) would have set its own priorities as to what it would have expected of any new CEO appointment by the State Services Commission:
http://www.ssc.govt.nz/appt-process
“The State Sector Act specifies separate roles for the Government and the Commissioner in the appointment of chief executives:
The Government specifies its priorities in relation to chief executive positions; ..”
(as at 6 Jan. 2011)

So any newly appointed Chief Executive would have had to meet the ‘priorities’ the then new government had, signalling a change once Mr Hughes moved on from MSD. It appears that a new kind of approach to information management was taken soon after his departure, so that only less transparent information was made accessible under the OIA. Anecdotal evidence supports this, so does a report by the former Chief Ombudsman Dame Beverley Wakem, released late in 2015, which can be found via this hyperlink:
http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/1573/original/not_a_game_of_hide_and_seek_-_review_of_government_oia_practices.pdf?1466555782

Some have thought that her Office’s investigation into the compliance with the OIA by government agencies did not dig deep enough, and was not comprehensive enough:
https://www.nbr.co.nz/opinion/nz-politics-daily-erosion-integrity-2015

We also ask, why was the ‘Guide for Designated Doctors’ released only now, after Ombudsman Donnelly looked into the matter, following a complaint about MSD and their responses to OIA requests made on 1 Oct. 2014 and 26 Sept. 2016? It would appear that MSD withheld that document without good reason. It was deemed to be ‘under review’ for years, and there has not been any new ‘Guide’ published since. So MSD have either been rather ‘slack’ in working on a new guide, or they had instructions not to rush with this, possibly preferring to leave people in the dark about how they work with Designated Doctors.

I would again recommend this post, as it shows, that there were major changes made from 2007/2008 on, in the way WINZ worked with Designated Doctors and with clients and applicants who required medical certification for the purpose of establishing their health conditions, impediments, disabilities and ability to work:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

It would appear, in our humble view, that MSD have decided not to publish any formal, documented, clear ‘guidelines’, or even any document like the ‘Work Capability Assessment’ (WCA) used in the UK. The Ministry seems to prefer working with an assessment regime, where they can use absolute discretion in dealing with such matters on a case by case basis. That would protect them from many legal challenges, as individual clients may find it very difficult to make an appeal to the Medical Appeals Board, or even apply for judicial review to the High Court. Those are the ONLY options left for persons who may not agree with a WINZ decision made upon a doctor’s or other health professional’s assessment presented to them. To take such actions requires a lot of insight into and understanding of the system, it requires medico legal knowledge, requires access to reports and other information that was recorded, and it would involve a lot of effort and work to even prepare any challenge. Most will find such a task daunting, without any assistance by a legal advisor and representative, and may thus rather resign to the dictate they may face by MSD and the people they appoint as Designated Doctors and also as Medical Appeals Board panel members.

Having an openly accessible ‘Guide’ document for Designated Doctors, and for possibly also other medical and health practitioners to follow, that risks MSD being challenged on the particular advice, expectations, guidance and other criteria contained in it.

For information on the WCA, check out the following links:
https://en.wikipedia.org/wiki/Work_Capability_Assessment
https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

 

PART 10: MSD’s CONFUSING COMMENTS RE ‘GUIDES’ FOR MEDICAL PRACTITIONERS IN ANOTHER OIA REPLY FROM 3 FEB. 2017

Further questions arise from an older OIA response by the Ministry of 3 February 2017, which we could even access via the Work and Income website, where they have until Sept. 2017 been publishing at least some information responses, which appears to have happened only upon advice by the Chief Ombudsman, who was determined to improve the OIA processes when taking Office a year or two ago.

In that particular response, being to an OIA request made on 17 Jan. 2017, the Ministry gave some peculiar explanations about how it now works with medical practitioners.

The unidentified requester asked for:
“A copy of the following document – “Guide for Medical Practitioners – Disability Allowance”” and:
“A current list of titles of guidance documents provided for medical practitioners.”

After some general ‘nice talk’ about how the Ministry ‘depends’ on assessments by various medical and health practitioners, who all need to be appropriately qualified and registered, Elisabeth Brunt, General Manager, Ministerial and Executive Services, wrote the following:

“Your request for the ‘Guide for Medical Practitioners – Disability Allowance’ is refused under section 18(e) of the Official Information Act, as this document does not exist.”

“The Ministry does not supply medical practitioners with guidance documents or a list of guidance documents available. However, there is information available for medical practitioners on the Ministry website. Additionally, medical practitioners can contact their local Health and Disability team at their nearest Work and Income regional office on 0800 559 009 for further advice, if required.”

Then a list of links to publications and resources on their website was offered.

Further explanations provided with that response was the following:
“Work and Income have established a panel of respected medical practitioners, known as ‘designated doctors’, to provide second opinions on medical information. The provision of a second opinion assists Work and Income to determine a person’s capacity for work and entitlement to financial assistance. It also assists with helping people to move towards employment. Further information regarding designated doctors is available online at: http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/designated-doctors.html “

“There is a guide for designated doctors, however, the status of the guide is that it is currently being updated and a refreshed guide will be available once this has occurred. As such, the guide for designated doctors is withheld under section 9(2)(f)(iv) of the Official Information Act, as it is under active reconsideration. The release of this information is likely to prejudice the ability of government to consider advice and the wider interest of effective government would not be served. “

Now, when reading this, the information requester who provided us with all this information, was reminded of the letter dated 23 Nov. 2016, which MSD had sent him, in response to his request of 27 Sept. 2016. They used very similar, if not identical wording, to explain why they could or would not release a copy of the ‘Guide for Designated Doctors’ (see PART 6 again).

The PDF with the authentic response by MSD, only partly anonymised and dated 3 Feb. 2017, can be loaded by clicking this hyperlink:
r-20170203-response-guide-to-medical-practitioners

The same OIA response by MSD is also available on their website, via this link:
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/official-information-responses/2017/march/r-20170203-response-guide-to-medical-practitioners.pdf

 

PART 11: MSD RELEASE A NEW CURRENT LIST OF DESIGNATED DOCTORS – UPON ADVICE BY THE OMBUDSMAN

It was a pleasant surprise to the information requester, when he received a letter from Ombudsman Leo Donnelly, dated 15 March 2018, in which he indicated he considered that MSD should release the Designated Doctors list. That appears to have been decided after the Office of Ombudsmen consulted on this with the Office of the Privacy Commissioner (OPC).

An authentic scan copy of The Ombudsman’s letter, partly redacted and dated 15 March 2018, can be found in PDF files by clicking these hyperlinks:
Ombudsman, complaint, 44xxx8, MSD, OIA rqst, Wk to Welln., MHES, Des. Drs, prov. opinion, anon, 15.03.18
Ombudsman, complaint, 44xxx8, MSD, OIA rqst, Wk to Welln., MHES, Des. Drs, prov. opinion, anon, hilit, 15.03.18

It only took a few days until MSD responded to the OIA requester by sending him an email on 20 March 2018, which had that very information attached in an Excel file. The information did not show address and contact details, which must have been a condition set by the OPC.

Authentic anonymised scan copies of that email can be found by clicking the following links:
MSD, OIA Rqst, 27.09.16, MHES, Wk to Wellness, Des. Drs, further email resp., anon, 2 p., 20.03.18
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, furter resp., hilit, anon, 2 p., 20.03.18

To view the authentic current list of WINZ’s Designated Doctors, which has been created by way of file conversion from the original Excel file, released by MSD on 20 March 2018, click the following hyperlinks that will load the relevant PDF files:
List_of_Designated_Doctors,_reformated_but_authentic_copy, fr. MSD, as on 20.03.18
List_of_Designated_Doctors,_resorted,_reformated,_by_city,_fr._MSD,_20.03.18

For a redacted version of an older Designated Doctors list, which was made available by MSD to an OIA requester in August 2012, you can click this link to view a PDF that was created from the same data then contained in MSD’s ‘Designated Doctors Master List’:
MSD,_Designated_Doctor_List,_complete,_core_data,_as_on_20.08.2012
(some data showing address, phone and other details was deleted due to privacy concerns)

You can compare both lists and find that a fair number of former ‘Designated Doctors’ are no longer active as such, and questions may be asked about their reasons. There appear to be a few new names though, which should not surprise us after over 5 years of time.

When you wish to make use of the information in that list, please do so responsibly and appropriately, and refrain from any forms of harassment or other illegal conduct. While there is justified concern about the way Designated Doctors work for and with WINZ and MSD, especially with their so-called Principal and Regional Health and Disability Advisors, any concerns and grievances an affected person may have should be dealt with by first consulting a beneficiary advocate, legal advisor or other suitable support person. There are options to take matters to a ‘Medical Appeals Board’ (MAB), and to prepare for that, we recommend reading and studying this earlier post, which will to the most still be current and relevant:
https://nzsocialjusticeblog2013.wordpress.com/2015/03/17/the-medical-appeal-board-how-msd-and-winz-have-secretely-changed-the-process-disadvantaging-beneficiaries/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16.pdf

It pays to prepare well for making an appeal to have a matter dealt with by such a MAB, and much care and caution is recommended when preparing submissions. Always go with a support person or even representative agent, and if that process does not succeed, the only way to challenge a decision made upon such a hearing is judicial review to the High Court. For that you will most definitely need to find and talk to a qualified lawyer, at first perhaps seek initial advice through a Community Law Office.

For the rest we must refer you back to the post mentioned already, to inform yourself about Designated Doctors and how they appear to be operating within the MSD and WINZ ‘second opinion’ and ‘assessment process’ framework:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

 

PART 12: CONCLUSION: SECRECY, OBFUSCATION, APPARENTLY INTENDED CONFUSION AND UNCERTAINTY

To summarise our findings and thoughts on all of the above, we can only come to the conclusion, that MSD are making huge efforts to protect themselves, especially their Designated Doctors, their Principal Health and Disability Advisor, and their Regional Health and Disability Advisors from as much scrutiny by the public as they can. That is in relation to the particular ways they work with WINZ clients and benefit applicants, who have serious health conditions, injuries and disabilities, and who are dependent on benefit support.

There is no other explanation for this determined effort to refuse making available to the public such a simple, mostly acceptable document like the ‘Guide for Designated Doctors’. We do actually have access to much more in the way of documentation that could ‘prejudice the ability of government to consider advice’, more so than that ‘Guide’, as they choose to describe it. We do have some information that could hamper what MSD and WINZ may be preparing already, to put into a new ‘Guide’ in the future, but we choose not to ‘prejudice’ them and their actions. Let them present their ‘work’ first, so we can expose the tricks they may try and use, to deny sick, incapacitated and disabled persons needing benefit support access to much needed information, and access to their rights. The same information available to us would potentially throw a big spanner into the works of MSD, who are making ever so newer attempts to deny persons a truly fair and reasonable treatment by medical examiners, assessors, by Designated Doctors, their Advisors and WINZ case managers at the coal face.

The above OIA requests, the responses by MSD, some correspondence with the Ombudsman, and much more at our hands, shows how the Ministry tried repeatedly to block access to any information about their Designated Doctors, altogether that is, which would be like allowing the Medical Council to keep secret all information about the practitioners registered with them, by not even disclosing their names and scopes of practice. So at least in this case the Ombudsman realised that the Ministry was wrong in their attempts to block access to the information that was sought, and asked them to release it. That though is no reason to rejoice, as the Ombudsmen themselves have shown to only insist on information releases in some cases, often rather granting the government agencies the benefit of the doubt on their decision.

It becomes clearer now that MSD have chosen to withhold, or to not even create, any documentation on the way they work with Designated Doctors, or with any other assessors commissioned by them. They refuse to disclose how existing clients or new applicants should be examined, assessed and medically certified. While there are of course Codes and Rules that any medical practitioner and other health professional has to abide by and work under, we have today less information about how WINZ works with those mentioned professionals, than we had a few years ago. There have been comments made, such as, that medical practitioners should not have to determine whether a person can do certain work, or not. But when looking at the Work Capacity Medical Certificate, the person completing it is asked about whether a person can be expected to work more or less than 15 hours, whether he/she can return to work within a certain period, whether any treatment or supports may be needed, and so forth. So going by that, and other questions, medical professionals are still expected to make decisions on ability to work, which WINZ does of course use to decide on resulting work capabilities.

MSD do intentionally want to keep clients with health conditions and disability in the dark, same as the wider public, on how they advise, communicate and otherwise ‘guide’ Designated Doctors, which they clearly do through the Principal Health and Disability Advisors, and the Regional Health and Disability Advisors. Health and Disability Coordinators are also involved. They would not have created all those positions, if they were not intent on offering ‘guidance’ to Designated Doctors and other medical practitioners or health professionals. The fact seems to be, they do all this behind the scenes, on a case by case basis, under endless discretion, so that no one case can be treated as another, thus they ensure that it is almost impossible for outsiders to assess and establish, what directions, what criteria, what expectations and so forth are communicated to the medical profession. ‘Designated Doctor training’ is now also happening on an ad hoc, yet ongoing basis, partly online, partly in person to person communications by certain Advisors with the persons they ‘train’ (e.g. Designated Doctors), either by phone or face to face. It would be interesting to see whether any person can extract some OIA info from MSD on that, but it may require some information on who does what at a certain time, to nail such a request down to some specific details. The way they now operate makes it very difficult to get any specific information.

Hence this situation leaves most affected persons in much uncertainty, even in confusion about how their own case was in the past decided on, or how it will in future be decided on by WINZ and/or trained Designated Doctors. They will be left in uncertainty as to how they can perhaps best prepare and protect themselves from incorrect, inappropriate, poor and flawed ‘assessments’ by third party assessors like Designated Doctors. They will have to be guarded against questionable decisions made by a WINZ Case Manager acting upon advice by a Regional Health or Disability Advisor, who will in most – if not all – cases rely on the ‘advice’ received by way of a report, and perhaps additional information, which they received from a client’s or applicant’s own doctor or specialist, and/or a third party assessor, such as a Designated Doctor. We know that WINZ also likes to get clients sign consent forms, so their Case Manager, or at least the Regional Health or Disability Advisor, can contact their own general practitioner or even specialist directly. In such situations we would advise persons to apply to WINZ and MSD under the Privacy Act 1993 to get access to the particular details that were being discussed, in the form of records of this, which is personal information of the individual concerned. WINZ staff must under the Public Records Act keep correct and detailed enough records of such communications.

The situation is one that does not raise much hope, as it leaves the affected persons even more vulnerable than they may already by without having to apply for WINZ benefits and support.

In publishing this post, we do hope to shine more light on this increasingly appalling ‘welfare’ or ‘social security system’ we are confronted with, so that enough people are at least informed of what goes on. We will not tire from this, and continue to dig and expose as much as we can in the near future. As health and other factors put a limitation to what we can do, we appreciate patience and understanding, as few others have the time, energy and interest to do this work. So for now, take care, be prepared, stay calm and do all that is needed to hold the Ministry of Social Development AND the Government of the Day to account.

 
 

Marcus

 

Post edited and updated on 2 April 2018

 
 

Here is a downloadable PDF copy with the same post as above, which some may find easier to read. If the links in that document may not work for you, go back and use this online version, please:
MSD Release Outdated Guide f. Design. Drs And Current Design. Drs List, Post, 02.04.2018

 
 

ADDENDUM – 30 APRIL 2018:

THE OMBUDSMAN’S FINAL OPINION ON COMPLAINT 44XXX8, AS RELEASED ON 27 APRIL 2018, THUS MORE INFO IS YET TO COME

 

Here is the most recent response by the Office of Ombudsmen, or rather Ombudsman Donnelly, giving his final opinion on complaint matter 44xxx8, also covering the above information.

There is obviously more info to be expected from MSD, which may perhaps be covered also in another post on this blog, at some time later. The complainant will keep us posted.

The letter by the Ombudsman is self explanatory, and a scan copy of it can be found via the following links:
Ombudsman, complaint, 44xxx8, MSD, OIA rqsts, Wk to Wellness, Des. Drs, fin. opinion, L. Donnelly, anon, 27.04.18
Ombudsman, complaint, 44xxx8, MSD, OIA rqsts, Wk to Welln., Des. Drs, fin. opinion, L. D., anon, hi-lit, 27.04.18

 

MSD RELEASE OIA INFO ON FAILED MHES TRIALS THREE YEARS LATE, ONLY UPON ADVICE BY THE LONG UNDERFUNDED, HALF COMMITTED NZ OMBUDSMAN

MSD RELEASE OIA INFO ON FAILED MHES TRIALS THREE YEARS LATE, ONLY UPON ADVICE BY THE LONG UNDERFUNDED, HALF COMMITTED NZ OMBUDSMAN

 

A report on how the New Zealand Ombudsman ‘investigated’ an Official Information Act 1982 (OIA) complaint about the Ministry of Social Development (MSD) after a two year delay, and then advised MSD to release at least some formerly refused information, also proving that Mental Health Employment Services (MHES) trials failed to deliver!

Published: 28 January 2018

 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE OIA REQUESTS MADE TO MSD ON 1 OCT. 2014
PART 3 – MSD’S FIRST REPLY TO THE OIA REQUESTS, DATED 31 OCT. 2014
PART 4 – THE COMPLAINANT’S ‘DELAY COMPLAINT’ TO THE OFFICE OF OMBUDSMEN, DATED 13 DEC. 2014
PART 5 – MSD’S FIRST RESPONSE TO THE OIA REQUESTS, DATED 26 FEB. 2015, MISSING IMPORTANT ASKED FOR INFORMATION
PART 6 – THE OMBUDSMAN’S INITIAL DECISION ON THE ‘DELAY COMPLAINT’, DATED 5 MARCH 2015
PART 7 – THE COMPLAINANT’S FURTHER OIA COMPLAINT TO THE OFFICE OF OMBUDSMEN, DATED 9 MARCH 2015
PART 8 – THE OMBUDSMEN OFFICE’S CORRESPONDENCE FROM 13 JUNE 2015 TO 21 DEC. 2016 – AND ENDLESS DELAYS IN THE MATTER
PART 9 – THE OMBUDSMEN OFFICE’S LATE ANNOUNCEMENT OF 8 MAY 2017 TO INVESTIGATE THE COMPLAINT
PART 10 – THE OMBUDSMAN’S PROVISIONAL OPINION ON THE COMPLAINT, DATED 24 OCT. 2017
PART 11 – THE COMPLAINANT’S FORMAL RESPONSE TO THE ‘PROVISIONAL OPINION’, DATED 28 OCT. 2017, INSISTING THAT MORE INFORMATION BE MADE AVAILABLE
PART 12 – THE OMBUDSMAN’S FINAL OPINION, DATED 14 NOV. 2017, IGNORING MOST OF THE APPEALS BY THE COMPLAINANT
PART 13 – THE COMPLAINANT’S REMAINING CONCERNS AND THE OMBUDSMAN INVESTIGATOR’S EMAIL OF 16 NOV. 2017, CONFIRMING THE FILE WILL BE CLOSED
PART 14 – MSD’S FURTHER INFORMATION RELEASE OF 22 NOV. 2017, SHOWING HOW MHES TRIALS WERE A FAILURE
PART 15 – CONCLUSION: THE OMBUDSMAN LARGELY LETS OFF MSD ON MATTERS OF SERIOUS CONCERN, AND TAKES NO FURTHER ACTION DESPITE OF SIGNIFICANT OIA BREACHES

 
 

PART 1 – INTRODUCTION

The information requester in this interesting matter had made some earlier OIA requests to MSD, where he had sought information on the way sick and disabled on health and disability related benefits were being examined and assessed for ability to work, and on what ‘services’ the Ministry provided in various forms, to ‘assist’ particular groups of beneficiaries into open employment. In order to obtain further information on newly announced, and also on some existing services, the requester sent another OIA request to MSD on 1 October 2014.

He asked mainly for new information about so called ‘Mental Health Employment Services’ (MHES), ‘Sole Parent Employment Services’ (SPES), and ‘Work Ability Assessment’ (WAA) services, for which MSD and Work and Income had entered contracts with a number of providers. He asked about the fees being paid, about ‘wrap around services’ being offered by providers, about numbers of clients referred, about medical problems those referred with health conditions and disabilities may have suffered, about expectations placed on sick and disabled on benefits, about targets and outcomes expected of the providers of services.

The requester also asked for information on sanctions imposed on beneficiaries who had refused to meet set obligations, and he asked for information on how many benefit recipients had their benefits terminated due to self harm, suicide or early death. Information was also sought on advice given and expectations communicated to medical practitioners who would examine and assess clients for health conditions and work ability for MSD. Information on threats, assaults and the likes by beneficiaries towards staff was also requested, same as on how many clients had been trespassed for certain periods of time. And last not least, a resource manual called ‘Medical Appeals Board – a resource for Board Members’ or its replacement was also requested, same as info about a ‘Guide for Designated Doctors’.

Although the requester asked for a response within the stipulated 20 working days, he was aware that he had made a comprehensive OIA request, so he prepared himself for the Ministry requesting extra time for its response. Initially MSD would only send a brief email acknowledgment of his request, dated 2 Oct. 2014, but a request for extended time to answer the OIA request came (by email and attached letter) on 31 October 2014, announcing that a final response would be with the requester no later than by 28 Nov. 2014. That deadline passed, and another email from MSD followed on 23 Dec. 2014, stating MSD were aware the response was overdue, and that they would ‘endeavour’ to provide one ‘as soon as possible’.

Already after the first extension deadline had passed, the requester wrote a delay complaint to the Office of Ombudsmen, which he sent in by email on 13 December 2014, because he had experienced repeated delays with MSD’s OIA responses. His initial OIA complaint would be decided on by 5 March 2015, with the Ombudsman Ron Paterson acknowledging MSD’s “failure to meet the requirements imposed by the OIA”, but also writing that he considered it unnecessary to take any further steps. This was due to MSD having finally sent their OIA response to the requester on 26 Feb. 2015.

While MSD provided a fair amount of the information that the requester had sought, the Ministry (MSD) left a few requests unanswered, and unreasonably refused some other information. Hence the requester wrote a further complaint to the Ombudsmen, dated 9 March 2015. He raised his concerns that a number of requests had not been completely and appropriately answered, and he asked the Ombudsman to continue investigating the matter, as MSD failed to provide information that he should have reasonably been able to expect.

After receiving a slightly confusing email update on his complaint dated 13 June 2015, and an update with a re-assessment report dated 31 August 2015, stating that the complaint was ‘queued for allocation’ to an Investigator in Christchurch, the complainant would not note any progress with it until 8 May 2017. A new investigator in the Auckland Ombudsmen Office would finally pursue the matter further with MSD, but in a letter of 16 May 2017 she informed the complainant that not all of the issues he had raised could be dealt with under the OIA. The investigation that followed then resulted in a provisional opinion dated 24 Oct. and the final opinion of Ombudsman Donnelly dated 14 Nov. 2017. The complainant raised remaining concerns and provided further comments in letters of 28 Oct. and 16 Nov. 2017.

MSD agreed with the Ombudsman to release only some additional information to the requester. Firstly the requester and complainant would receive an email on 8 Nov. 2017, having an out-dated copy of the ‘Guide to Designated Doctors’ attached, and on 22 Nov. 2017 MSD sent him some ‘further information’, in response to Requests 2, 4 and 7 of 1 Oct. 2014. Some of this did at least reveal that the formerly announced MHES trials, which the Ministry had run, had been a clear failure. For the remainder of the complaint the Ombudsman wouldn’t accept that MSD had otherwise failed in its duties under the OIA in meeting certain other requirements, and he decided to close the file, despite of the requester’s expressed dissatisfaction about the final outcome. It was clear that MSD had breached the OIA in respect of a number of aspects raised with the complaint, but it appeared the Ombudsman could not be bothered with thoroughly reviewing the file.

The details about the requests made, and about the slow progress of the 2 years delayed investigation by the Office of Ombudsmen will be presented in the following, with the authentic, partly anonymised correspondence and documents made available via hyperlinks.

This report shows yet again, how years of under-funding of the over-worked Office of Ombudsmen led to totally unacceptable delays, and how the Ombudsman would in the end be only half-committed to achieve a final and acceptable outcome for the complainant. It raises serious concerns about the way OIA requests are handled by ministries and their departments, and how poorly the Ombudsmen ‘resolve’ some complaints by concerned New Zealanders.

 

PART 2 – THE OIA REQUESTS MADE TO MSD ON 1 OCT. 2014

On 1 October 2014 the information requester made a comprehensive, written request to MSD, seeking a wider range of information under the OIA. He asked for new information about so called ‘Mental Health Employment Services’ (MHES), ‘Sole Parent Employment Services’ (SPES), and ‘Work Ability Assessment’ (WAA) services, for which MSD and Work and Income had entered contracts with a number of providers. Besides of details about the providers’ addresses the requester asked for details about the services being offered.

The requester asked for information about fees being paid, about outcome expectations, about so-called ‘wrap around services’ that appeared to also be offered by providers. He asked about the numbers of clients being referred to MHES, SPES and other services delivered by providers, about job placements of referred clients, about medical problems some of the referred persons with health conditions and disabilities may have suffered, and what was done then. He asked for information about work ability and medical assessments, about expectations that were placed on sick and disabled on benefits, and about the targets and outcomes that MSD expected of the providers of the above mentioned services.

The requester also asked for information on sanctions imposed on Jobseeker Support (deferred) and Supported Living Payment (SLP) beneficiaries who had refused to meet certain obligations, and he asked for information on how many such benefit recipients had their benefits terminated due to self harm, suicide or early death. Information was also requested on advice given and expectations communicated to medical practitioners who do examine and assess clients for health conditions and for work ability for MSD. Other information on threats, assaults and the likes – by beneficiaries towards staff – was also requested, same as on how many clients had been trespassed for certain periods of time. Lastly a resource manual called ‘Medical Appeals Board – a resource for Board Members’ was also requested, same as information about a ‘Guide for Designated Doctors’.

An authentic text of the complete request letter, with the various points of request, and other relevant information, dated 1 Oct. 2014, with some personal information redacted, is found via this hyperlink:
MSD, OIA request, MHES, WAA, other support services, issues, questions, anon, 01.10.2014

Here is a link to a media report in the Herald on Sunday of 30 June 2013, which revealed plans of the NZ Government to shift mentally ill into work, using programs such as MHES:

‘Govt will pay to shift mentally ill into work’, Herald on Sunday, 30 June 2013:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10893823

 

PART 3 – MSD’S FIRST REPLY TO THE OIA REQUESTS, DATED 31 OCT. 2014

Initially MSD sent the requester a brief standard reply email, which was on 2 October 2014, and which simply informed him that the request had been forwarded to the ‘appropriate officials’ at National Office.

On 31 Oct. 2014 MSD wrote to the requester, informing him “that the Ministry will provide a response but needs to extend the time available to answer your request”. The Ministry’s response would be with the requester no later than by 28 Nov. 2014, so did Elisabeth Brunt, General Manager Ministerial and Executive Services, write in that letter. As a reason she stated that the Ministry would need further time to consult with other parties on the release of the information that had been requested.

An authentic scan copy of that letter, dated 31 Oct. 2014, party redacted to protect the privacy of the requester, can be found via the following link:
MSD, O.I.A. request, MHES, WAA, other supported services, issues, 1.10.14, 1st reply, anon, 31.10.14

 

PART 4 – THE COMPLAINANT’S ‘DELAY COMPLAINT’ TO THE OFFICE OF OMBUDSMEN, DATED 13 DEC. 2014

After MSD had more or less promised that the requester would get a response to his requests by 28 Nov. 2014, nothing happened for weeks to come. He waited for another two weeks, to give MSD a chance to respond a few days late, after the deadline which the Ministry had set itself. But as it had happened before on a number of occasions, no correspondence came forth.

Hence the complainant decided to write to the Office of Ombudsmen, and with a letter dated 13 December 2014, sent by email, he filed a complaint about MSD, because the Ministry had failed to comply with the provisions of the OIA, as their response was now well overdue. He asked the Ombudsman to raise this with MSD, and to investigate the matter. He mentioned also that there were at least two other complaint cases against MSD before the Ombudsman, where MSD had failed to provide him with reasonably sought information. As usual he attached the relevant earlier correspondence with MSD to his Ombudsman complaint letter.

On 17 Dec. 2014 the complainant received a first email confirmation for his correspondence from the Office of Ombudsmen, providing him with reference number 39xxx4. A mention was made of ‘a large number of enquiries’, and so forth, and he was informed that his complaint was currently at the initial assessment stage. On 16 Jan. 2015 the complainant did then also receive a letter by Prof. Ron Paterson, Ombudsman, updating him on his ‘delay’ complaint. He informed the complainant that he was making enquiries of the Ministry and would write to him again shortly.

A PDF with the authentic text of that complaint by the information requester, partly redacted, and dated 13 Dec. 2014, can be found via this hyperlink:
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst fr. 01.10.14, ltr, anon, 13.12.2014
A PDF with a scan copy of the authentic, partly redacted, email by the complainant, carrying that complaint, of 13 Dec. 2014 can be found via this link:
Ombudsman, complaint, MSD, OIA rqsts, 1.10.14, failure to respond, complainant email, 13.12.14
A PDF with a scan copy of the first formal response letter by Ombudsman Ron Paterson, dated 16 Jan. 2015, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, Ombudsman’s ltr, 16.01.2015

 

PART 5 – MSD’S FIRST RESPONSE TO THE OIA REQUESTS, DATED 26 FEB. 2015, MISSING IMPORTANT ASKED FOR INFORMATION

After the Ombudsman Ron Paterson had informed the complainant and information requester by way of a letter dated 16 Jan. 2015, that he was making inquiries with MSD re his complaint, and that he would respond again soon, the requester did on 26 Feb. 2015 get a formal email response from MSD, providing a fair amount of the requested information.

But upon reading and analysing the information that was presented to him in an attached letter, he noted that some important and potentially sensitive information, which he had sought, had simply not been provided. While some information had been refused with references to refusal grounds provisions in the OIA (section 18), other information was simply not provided, without any explanations or reasons having been given.

Nevertheless, the Ministry provided some useful information on the head-office addresses of SPES providers, being in response to request 1, but at the same time referred to an earlier response of 24 April 2014 for the same information on MHES providers. Also provided was some information on the ‘fee structure’ for SPES, and again was a reference made to an earlier response of 24 April 2014, for fees MSD pays to providers of the MHES, which was in response to OIA request 2.

Not much useful information was provided in reply to request 3 regarding ‘wrap around services’ being offered to participants of MHES and other services, but it appeared that relevant providers would simply refer persons needing additional health-, disability- and addiction services to ‘existing health and clinical support’ service providers, like perhaps hospitals, special clinics or perhaps counselling services (without providing details). No information was provided on roles and qualifications of staff working for service providers.

Some information was provided in response to request 4 on MHES and SPES referrals and on persons approached to participate, and also did two tables provide details for some persons exiting the MHES and SPES for a variety of reasons. But figures in the tables were only shown for ‘As at the end of October 2014’, leaving the requester with some lack of clarity.

The Ministry refused information pertaining to the well-being of beneficiaries after their referral to service providers, as it wrote it would not record such data (OIA refusal section 18(e)). See request 5 for the original question and request put to the Ministry. Also was no new information provided about WAA service providers and the services they deliver, which had been asked for with request 6. Once again, the requester was referred back to the Ministry’s 24 April 2014 response.

No new information was provided in response to request 7 and on what expectations Work and Income places on sick and disabled receiving health related benefits (Jobseeker Support – deferred, SLP), in regards to meeting obligations to attend external examinations/assessments done by Designated Doctors or WAA service providers, and instead the requester was yet again referred to an earlier response by MSD dated 24 April 2014. No information was given on ‘sanctions’ and a link to the Work and Income website appeared to lead to little useful information. Altogether sparse information was provided in response to request 7.

With OIA request 8 the requester had asked for information on ‘performance targets’, in regards to clients being referred to, or placed into employment or training, but this was poorly or insufficiently answered. Limited information was provided on staff ‘bonuses’ (none paid), ‘performance payments’ and ‘productivity dividends’, which were no longer being paid. MSD stated there were ‘no performance measures for staff to refer beneficiaries to contracted services’. But it also commented: ‘Work and Income monitors its business indicators’.

In response to request 9 a table was presented by MSD with some useful data on sanctions imposed against certain beneficiaries (Jobseeker Support – Health Condition and Disability and Supported Living Payment recipients) for certain time periods from Sept. 2013 to Dec. 2014. And in response to request 10 the Ministry used section 18(f) of the OIA to refuse information on persons who received a health and disability related benefit, and who had their benefits terminated, as a consequence of fatal self harm, suicide or unexpected early death.

The Ministry presented a poor and useless response to request 11, where the requester had asked for information on advice or expectations that MSD had communicated to medical practitioners and specialists, for them to consider when asking questions to their patients, and when assessing their health conditions and ability to work, as part of completing a Work Capacity Medical Certificate. MSD had been asked whether particular sets of questions had been sent or presented to GPs, whether particular criteria had been communicated, and so forth. Also was the Ministry asked where a ‘Guide for Designated Doctors’ could be found. Besides of a very general comment about medical practitioners providing assessments on health conditions and disability, and on ability to undertake suitable employment, a link to the start page of the Work and Income website was presented, telling the requester that “All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz ”.

But there was more useful information presented in a large table, in response to request 12, showing data on incidents where case managers or other staff at Work and Income had felt threatened, intimidated, or were assaulted by angry clients, during the execution of their duties. The Ministry also explained in brief, how it dealt with such incidences of inappropriate behaviour, and how it placed a high priority on the safety of its staff.

Information on trespass orders and how Work and Income (WINZ) dealt with high risk persons was presented in satisfactory manner in response to request 13. And a ‘Medical Appeals Board, Board Members Information Pack’, dated July 2013, was also provided to the requester.

A scan copy with the authentic, complete written OIA response by MSD to the requester, dated 26 Feb. 2015, in partly redacted form, can be found as a PDF file via these hyperlinks:
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15
A scan copy with the authentic earlier OIA response by MSD, to earlier requests, dated 24 April 2014 and partly redacted, can be found via this link:
MSD, O.I.A. reply, C.E., Mental Health Emplmt Serv., Work Ability Assmts, compl., 24.04.14

 

PART 6 – THE OMBUDSMAN’S INITIAL DECISION ON THE ‘DELAY COMPLAINT’, DATED 5 MARCH 2015

It was not long after the information requester had finally received MSD’s response dated 26 Feb. 2015, that the Ombudsman Ron Paterson also wrote to him again. He noted that MSD had sent the requester a response on 26 Feb. 2015. In his letter, dated 5 March 2015, he also informed the complainant that a decision on the information request of 1 Oct. 2014 should have been made by MSD by 30 Nov. 2014. The Ombudsman had formed his final opinion that there had been a “failure to meet the requirements imposed by the OIA” – by MSD. But he also wrote that he considered it “unnecessary” to take any further steps, mentioning that MSD acknowledged its failure, but was aware of its obligations under the OIA.

A PDF with an authentic scan copy of the letter by Ron Paterson, dated 5 March 2015, with some personal information deleted, can be found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, delay + refusal, initial dec., 05.03.2015
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, delay + refusal, initial dec., hi-lit, 05.03.2015

 

PART 7 – THE COMPLAINANT’S FURTHER OIA COMPLAINT TO THE OFFICE OF OMBUDSMEN, DATED 9 MARCH 2015

Upon receiving the Ombudsman’s letter with his ‘final opinion’ on the ‘delay complaint’, the complainant realised that he needed to present swiftly his concerns about the formal but unsatisfactory response by MSD of 26 Feb. 2015 to the Ombudsman. He considered it necessary that the Ombudsman should further investigate his complaint, which would now need to be changed from being a ‘delay complaint’ to a wider OIA complaint.

In the evening of 9 March 2015 he sent his formal complaint to the Ombudsmen Office by email, carrying the attached full new Ombudsman complaint letter, his request letter to MSD dated 1 Oct. 2014, a copy of MSD’s earlier OIA response to an earlier request, dated 24 April 2014, and a copy of MSD’s recent response, dated 26 Feb. 2015.

The information requester and complainant wrote that he had received a ‘fair amount of the information’ that he had sought, but that some very crucial, expected information that he had requested was not supplied by MSD, without any explanations. He pointed out and expressed his concerns that a number of requests had not been completely and appropriately answered, and that MSD unreasonably refused some other information. He asked the Ombudsman to continue investigating the matter, as MSD failed to provide information that he should have been able to reasonably expect.

So he listed his OIA requests 1, 2, 3, 4, 5, 6, 7, 8 and 11 as not having been responded to, that is in part. He also sought some clarifications on apparently unclear responses.

In short, the complainant’s main concerns and issues were:
Request 1: That no on-site addresses were provided for MHES and SPES service providers listed under request 1 (not even raising the issue that little information had been provided on ‘particular services offered’).

Request 2: That no information on ‘outcomes’ or ‘targets’ was provided by MSD on contractual agreements it had with providers, as asked for with request 2.

Request 3: That insufficient information had been provided on ‘wrap around services’ which providers were apparently offering, hence he sought further clarification on whether such services (in clinical form) would actually be provided through accessible public health care services through DHBs or not, in response to request 3. A question was whether any information on such additional support services had been withheld, did not exist or was not ‘centrally held’. Also was there no mention of particular qualifications and types of positions held by provider staff, which could be provided without naming individuals.

Request 4: That statistical data contained in tables provided in response to request 4 needed to be more clarified, i.e. presented in broken down figures, and that information be provided on how many MHES and SPES participants had been successfully referred into employment.

Request 5: That the response now provided to request 5, stating information on the ‘wellbeing’ of persons after being referred to a service provider would not exist (s 18(e)) conflicted with an earlier OIA response from 24 April 2014, and that an explanation and clarification needed to be given by MSD.

Request 6: That no on-site address details had been provided by MSD for WAA service providers, as asked for with request 6. The same issue and concern existed as with request 1.

Request 7: That no information had been provided by MSD in response to request 7 on ‘expectations’ WINZ places on sick and disabled on health related benefits – in regards to meeting obligations to attend external examinations/assessments for medical conditions and work ability. No information was given on what forms of sanctions would be applied by WINZ, hence further clarification was necessary. Also was there no information provided on any plans that may exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on health related benefits.

Request 8: That no specific performance target information (e.g. on successful referrals of clients into work, training and so forth) had been provided in response to request 8, and that further clarification or a better response was expected, given a senior MSD Director clearly mentioned ‘targets’ existed in a radio interview on Radio NZ.

Request 11: That insufficient and too general information has been presented in response to request 11, which asked for ‘advice’ and ‘expectations’ being communicated to health professionals. The information on the Work and Income website was not covering Advisor to practitioner ‘advice’ and ‘expectations’. Also had no source been provided for the ‘Guide for Designated Doctors’.

In his ‘Closing comments’ the information requester and complainant asked the Ombudsman to take up the issues he listed with MSD, to seek appropriate clarifications, and to ensure, that his reasonable requests for specified information were being met. He considered that a thorough investigation was necessary.

A PDF with the authentic text of this further complaint letter by the complainant, partly redacted, and dated 9 March 2015, can be found via this hyperlink:
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst fr. 01.10.14, ltr, anon, 09.03.2015

Relevant attachments were also sent with the email carrying the complainant’s letter.

 

PART 8 – THE OMBUDSMEN OFFICE’S CORRESPONDENCE FROM 13 JUNE 2015 TO 21 DEC. 2016 – AND ENDLESS DELAYS IN THE MATTER

After some simple email requests for updates on a number of complaints, dated 25 April 2015 and 17 May 2015, the complainant did on 13 June 2015 receive an email with an update from a ‘Manager Intake and Assessment’ at the Office of Ombudsmen, which was somewhat confusing, due to a number of spelling mistakes and irritating comments. She referred to the complainant’s last email of 17 May.

In her email letter the correct reference number 39xxx4 was wrongly referred to as being a complaint “agasint hte Privacy Commissioner”, while it was actually against MSD. The name of an Investigator, to whom this complaint had been allocated, was mentioned. It appeared though as if the ‘Manager’ was commenting on two complaints, but simply mixed up relevant details about these. The correct complaint “agasint MSD”, as the author of the letter wrote, had according to her been assessed, but was yet to be allocated.

She declined the complainant’s request for that particular complaint to be progressed urgently, and she stated that their Office would not have sufficient investigative resources to do so. It was not considered that the complaint should have priority over other ones at hand. An update was promised if the complaint would not be allocated within six weeks.

A PDF with an authentic scan copy of the Manager’s original email letter, partly redacted for privacy reasons, and dated 13 June 2015, can be found via the following links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, email upd., anon, 13.06.15
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES etc., email update, anon, hi-lit, 13.06.2015

At 15.37h on 31 August 2015 the complainant received another email (from an unnamed sender) from the Ombudsmen Office, which had a letter attached (as PDF file), which was signed by Deputy Ombudsman Leo Donnelly.

In his letter he presented an update on complaint 39xxx4 and informed the complainant that they had undertaken a further assessment of his complaint, which was now due to allocation to an Investigator. But he wrote that “due to the large volumes of complaints” their Office was receiving, “there are delays in progressing some complaints”. He then continued and wrote, that the complaint was “now queued for allocation to an Investigator” in their “Christchurch Investigation and Resolution Team”. He added that the Manager in that Office would contact the complainant, when there would be progress to report.

A PDF file with an authentic scan copy of this letter by Deputy Ombudsman Donnelly, partly anonymised, and dated 31 Aug. 2015, is found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., assessment, ltr, anon, 31.08.2015
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES etc., assessmt, update, ltr, anon, hi-lit, 31.08.2015

Following no apparent progress in this matter, and further requests by the complainant for an update on this and other complaints, dated or sent 5 and 28 July 2016, the ‘Manager – Investigations and Resolution’ at the Auckland Ombudsmen Office wrote back to him in a letter dated 23 August 2016.

He confirmed the complainant’s presumption that Ombudsman Leo Donnelly had assumed responsibilities for matters previously dealt with by the recently departed, former Ombudsman Ron Paterson.

By referring to file reference 39xxx4 Mr Sxxxxxx admitted that it was “far from ideal”, that only “limited progress” had been made. “However, the Chief Ombudsman is committed to eliminating this backlog”, he wrote.

They were currently developing a plan to progress their aged complaints, he informed the complainant. With specific funding from Parliament they expected to commence this plan from mid August 2016. File 39xxx4 would in future be dealt with from their Wellington Office, he added. The complainant would be updated on further progress “as soon as possible”, Mr Sxxxxxx wrote, and he asked for patience. Some further updates were provided for other complaints by the complainant.

A PDF file containing an authentic scan copy of this letter by the Auckland Manager at the Office of Ombudsmen, dated 23 Aug. 2016, and partly redacted, is found via these links:
Ombudsman, complaints, 39xxx4, and others, update, Auckland Office Manager’s ltr, 23.08.2016
Ombudsman, complaint, 39xxx4, and others, update, Auck. Office Mgr, ltr, hi-lit, 23.08.2016

On 21 Dec. 2016 the Manager at the Auckland Office of the Ombudsmen did write once again, providing new updates on a number of complaints, for which the complainant had again asked, apparently by emails sent on 8 and 17 Dec. 2016.

The Manager did again apologise for the delay, and thanked the complainant for his patience.

Re file reference 39xxx4 he informed the complainant that the file was still “queued for allocation to an investigator”. He wrote that the complainant would be informed “if there is any progress to report”. This time a name of a staff member at the Wellington Office was provided, should the complainant have any queries re his complaint. Other updates were given on a few other complaints.

A PDF file with an authentic scan copy of this email letter by the Manager for Investigations and Resolution at the Auckland Ombudsmen Office, partly redacted, dated 21 Dec. 2016, can be found via these hyperlinks:
Ombudsman, complaints, 39xxx4, and others, rqst f. update, Auckland Mgr’s email, 21.12.2016
Ombudsman, complaints, 39xxx4, and others, update, email, Auck. Office Mgr, hi-lit, 21.12.16

So time continued to pass, and the complaint had until the end of 2016 still not even been allocated to an Investigator! In the meantime MSD could relax and continue to withhold sensitive information on MHES and other services, which it had refused, or simply not provided without giving any reasons for this.

 

PART 9 – THE OMBUDSMEN OFFICE’S LATE ANNOUNCEMENT OF 8 MAY 2017 TO INVESTIGATE THE COMPLAINT

Having noted no progress at all with this complaint, and also not with another complaint, the complainant wrote to the Ombudsmen Office again at 15.08h on 5 May 2017, expressing his concern. He mentioned how some newer complaints appeared to now be investigated by the Wellington Office, but that he had not received any further correspondence re complaint 39xxx4 and the other one.

The complainant wrote that the delay with two OIA related complaints against MSD gave him reason to be very concerned. He wrote that there had been “ongoing issues with poor and not delivered OIA responses – provided by MSD”. Further delays in the investigation of aged complaints would mean that: “MSD may not feel urged to improve their responses to OIA requests for specific information that one should be able to expect for reasons of transparency and accountability”.

So he asked for another update on this one (39xxx4) and other complaints. Also did the complainant ask for confirmation, that emails and letters he had sent on 21 May and 25 August 2016 had also been added to this complaint (for consideration).

A PDF with an authentic scan copy of the complainant’s email asking for an update on complaint 39xxx4 and other complaints, partly redacted and dated 5 May 2017, can be found here:
Ombudsman, complaints, 39xxx4, and others, rqst f. update, complainant email, anon, 05.05.17

Well over 2 and a half years after the OIA request had been made to MSD, and well over two years after the filing of the formal complaints with the Office of Ombudsmen, did the complainant finally get some positive news at 11.28h on 8 May 2017.

A ‘Senior Investigator’ by the name of Bxxxxx Xxxxxx informed the complainant that the complaint file 39xxx4 had now been allocated to her to progress. She was working herself through the material on the file, and would contact him again in respect of it “when there is substantive progress to report”. She also provided an update on another complaint.

A PDF with an authentic scan copy of the response by the Senior Investigator at the Ombudsmen Office now handling the complaint, partly redacted and dated 8 May 2017, is found here:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, complt update, investigator email, anon, 08.05.17
Ombudsman, complaint, 39xxx4, OIA rqsts, update, investigator email, anon, hi-lit, 08.05.2017

At 13.31h on 16 May 2017 the Senior Investigator then sent the complainant an email with a letter attached that was signed by her, and written on behalf of Ombudsman Leo Donnelly. She informed the complainant that Mr Donnelly would be investigating this complaint. She also wrote that she had written to the Chief Executive of MSD, and asked him to provide them with a report on their decision on the complainant’s OIA request, and to comment on the issues raised by the complainant.

The Investigator noted that not all issues that the complainant had raised in his letter of 9 March 2015 constituted OIA complaints. She listed the various request points that had been accepted as OIA complaints, and which had been notified to MSD. These included issues raised re MSD’s responses to requests 1, 2, 3, 4, 6, 7, 8 and 11. The complainant would be updated on the progress of the investigation, she wrote in closing.

A PDF with a scan copy of the authentic, partly redacted letter by the Senior Investigator, dated 16 May 2017, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, other serv., refusal, invest. ltr, anon, 16.05.17

 

PART 10 – THE OMBUDSMAN’S PROVISIONAL OPINION ON THE COMPLAINT, DATED 24 OCT. 2017

At 20.32h on 20 August 2017 the complainant would send one more email to the Senior Investigator now handling this complaint, asking for a further update on the progress in this matter. He mentioned that the last correspondence he had received was of 16 May 2017.

The Senior Investigator Bxxxxx Xxxxxx wrote back at 9.48h on 21 August, informing him that: “We have made significant progress in addressing the OIA issues raised by this complaint (complaint 39xxx4) – we have been back and forward with the MSD a number of times to ensure that the Ombudsman has all the information he needs to go to a provisional opinion.” “There is just one further enquiry (made last week) about one of the aspects of this (wide-ranging) complaint that we are waiting to hear back from the Ministry about.”

“In respect of the other matter (Dr Bratt’s record-keeping) the Ombudsman will be addressing that issue in his provisional opinion on 39xxx4.”

After another two months the complainant did then finally get a ‘provisional opinion’ on this complaint matter, which was sent to him by email by the same Investigator at 11.07h on 24 Oct. 2017. It was contained in a PDF file and signed by Leo Donnelly, Ombudsman.

Mr Donnelly acknowledged the apologies by his staff for the unacceptable delays in the investigation of the complainant’s complaints. He added his apology for the delays in this case.

He had received and considered the Ministry’s response to the notified complaint matter. He repeated the Investigator’s earlier comments, that not all issues the complainant had raised constituted OIA complaints.

He presented his provisional opinion on each OIA ‘Request’ point, and the following is in brief what Ombudsman Donnelly had formed as his opinion:

‘Request 1’:
He wrote that the Ministry had provided the complainant with a table containing the names and addresses of the SPES, and that the MHES providers’ information had previously been provided to him (on 24 April 2014). The Ombudsman acknowledged that the complainant had asked for on-site service delivery addresses, which had not been provided. He wrote that the Ministry had noted that it may not itself have been provided all the sites’ addresses used by providers. He added that the Ministry noted that the providers have websites which contain physical addresses, which are publicly available.

Ombudsman Donnelly then wrote: “In terms of the OIA, it is my provisional opinion that your request for this information can be refused under section 18(d) on the basis that it is publicly available, and section 18(g) where the Ministry does not actually hold the information.”

‘Request 2’:
Regarding ‘fees payable’ by the Ministry to providers, and ‘outcome expectations’, Mr Donnelly referred the complainant to MSD’s OIA responses of 26 Feb. 2015 (for SPES), and 24 April 2014 (for MHES), which contained tables with fee structures and some other relevant information. He wrote that in response to the notified complaint, raising the issue with no information having been provided on ‘outcome expectations’, MSD had located relevant information and provided it to his Office. Hence he had now asked the Ministry to make that information available to the complainant.

‘Request 3’:
Regarding the request for ‘wide-ranging’ information about the ‘wrap-around services’, which the complainant had made to MSD, the Ombudsman now referred him again to the Ministry’s responses of 24 April 2014 and 26 Feb. 2015, which contained some asked for information, but also comments that MSD did not hold some particular information.

He wrote: “The Ministry has noted that this information is not collected in the manner you have requested and, referring to section 18(g)(i), it notes the Ministry is not required to create information.” Ombudsman Donnelly added that, upon having made enquiries, he was satisfied that section 18(g) provided the Ministry “with good reason to refuse your request on the basis that the information is not held.”

‘Request 4’:
Regarding the complainant’s issue with no clear enough information on clients referred to services like SPES and MHES, such as on them having been successfully placed into employment, having been presented by MSD, the Ombudsman referred him to information provided in MSD’s response of 26 Feb. 2015.

He wrote: “The Ministry provided you with details of the number of referrals up to the date of your request, and tables indicating numbers who ceased participation in the MHES and APEs and the reasons why”. Mr Donnelly then asserted: “You complained that information was not provided in the way you had wished and that no information was provided about participants of either service who have been successfully referred into employment”.

He wrote that the Ministry had (in response to the complaint) noted that, while the complainant’s preference may not have been addressed, the information was in fact provided. He accepted the Ministry’s response as “reasonable”.

In respect of information on placements into employment, the Ombudsman wrote, the Ministry had provided him with some ‘manually collated data’. Leo Donnelly wrote: “The Ministry has advised that it is happy to release this information to you. I have asked it to do so now and advise me accordingly when it has sent the information to you.”

‘Request 6’:
Regarding on-site service delivery addresses for WAA providers, which the complainant had asked MSD for; Mr Donnelly considered that the same position by MSD – as held to ‘Request 1’ – was acceptable. He wrote: “I accept that section 18(d) provides good reason under the OIA to refuse this part of your request on the basis that the information is publicly available”.

‘Request 7’:
Regarding the complainant’s request for information on plans that the Ministry may have to “change or increase particular expectations and/or criteria for sick, injured and disabled persons…to be referred to …work ability assessments”, Mr Donnelly wrote that the Ministry had apologised and acknowledged that they had failed to respond to that particular aspect of his request.

He wrote: “The Ministry has undertaken to now respond to you about this request. I have asked the Ministry to do so and advise me accordingly.”

‘Request 8’:
Regarding the concerns of the complainant re the response by MSD to request 8, Ombudsman Donnelly wrote that: “In response to notification of this aspect of your complaint, the Ministry notes that it has provided you with the information you requested.”

“I have considered your comments and the response provided by the Ministry to your request and to my notification of this complaint. Your complaint essentially seems to rest on what you see as a potential contradiction between the information provided by the Ministry and comments made on a radio programme. However, your comments about the radio programme reflect your interpretation and extrapolation. Under the OIA, my role is to ensure that, where information is held, it is released upon request unless the Act provides good reason to refuse it. It is not part of my investigation and review role to test the overall coherence of information provided from various different sources so that a ‘better response’ (in your words) is provided.”

Mr Donnelly then wrote that he did not consider that he could take this matter any further. In his view the Ministry had clearly answered the complainant’s request for information. He saw no grounds to consider it was withholding relevant official information from the complainant and the Ombudsmen’s Office.

‘Request 11’:
Regarding the request for information on advice and expectations that MSD provided to health professionals when assessing work ability, the Ombudsman noted that the Ministry had referred the complainant to the website http://www.workandincome.govt.nz . He also appeared to acknowledge the complainant’s stated issue that certain forms of communicated advice, guidelines and expectations (e.g. by Regional Health, Regional Disability Advisers, Health and Disability Coordinators and the Principal Health Adviser) were not covered by the more general information on the website.

He then quoted the Ministry’s response to his notified complaint: “[t]he Ministry considers that further advice should have been refused under section 18(f) of the Act as there will not be a centralised repository of ‘advice to doctors’. Mr Xxxxxx requested ‘information on the advice, not the advice itself, and has been provided with this.”

Apparently accepting the Ministry’s comments as such, the Ombudsman wrote:
“In the absence of a central repository of ‘advice to doctors’ I accept that section 18(f) provides the Ministry with good reason to refuse the communications you refer to on the basis that the information cannot be made available without substantial collation and research. Privacy and confidentiality considerations may also be relevant. If there is a particular communication you are able to identify with due particularity I suggest you make a specific request for it.”

The Ombudsman concluded his ‘provisional opinion’ with stating under ‘Resolution and my provisional opinion’:
“The issues discussed above in respect of Requests 2, 4 and 7 have been resolved by the Ministry’s agreement to release to you the further information it has provided to this Office. In my provisional opinion, for the reasons set out above, the Ministry was entitled to refuse your request for the information I have discussed in respect of Requests 1, 3, 6 and 11.”

Mr Donnelly invited the complainant to comment on his provisional opinion in respect of Requests 1, 3, 6 and 11 by 14 Nov. 2017, before he would form his final opinion.

He also made further comments in relation to ‘Record keeping by Dr Bratt’:
“In respect of your comments about Dr Bratt’s record keeping, I have read and carefully considered your comments of 21 May 2016 (resent on 25 August 2016). You have raised concerns about Dr Bratt ‘continually misrepresenting statistical and scientific information’ (and other concerns about Dr Bratt’s professional competency) as a response to Professor Paterson’s finding that you had an insufficient personal interest in the issue of Dr Bratt’s record-keeping. Moreover, concerns about Dr Bratt’s professional standards would most appropriately be addressed by his professional body, not by a layperson, such as myself.”

Hence, for the same reasons previously given by the former, long resigned Ombudsman Prof. Ron Paterson, Mr Donnelly did not propose to investigate the complainant’s complaint about Dr Bratt’s record-keeping.

A PDF file with an authentic scan copy, partly redacted, of the provisional opinion of Ombudsman Donnelly, dated 24 Oct. 2017, is found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, refusal, prov. opinion, anon, 24.10.2017
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, refusal, prov. dec., anon, hi-lit, 24.10.2017

 

PART 11 – THE COMPLAINANT’S FORMAL RESPONSE TO THE ‘PROVISIONAL OPINION’, DATED 28 OCT. 2017, INSISTING THAT MORE INFORMATION BE MADE AVAILABLE

The complainant was not satisfied with the Ombudsman’s ‘provisional opinion’ on this complaint matter, i.e. on some particular issues he had raised re parts of the OIA responses by MSD. While he had achieved a partial success in getting the Ombudsman advise MSD to release some further information in response to request points 2, 4 and 7, other important information remained to be withheld, or was claimed to not even exist.

Hence the complainant prepared a formal response to the Ombudsman’s letter of 24 October 2017, presenting his remaining concerns and further comments, intended to convince the Ombudsman that MSD should not be allowed to continue withholding certain information.

In a letter dated 28 October the complainant accepted the apologies for the delays in the processing of his complaint, that had been provided by the Ombudsman, as he considered the at times very difficult circumstances their Office had been in. Upon summarising the previous correspondence, and the Ombudsman’s recent provisional opinion, the complainant did then address a number of issues or aspects that he considered as not having been resolved. He also wrote that he had up to that day not received any further information from MSD in response to his information requests, which would go beyond of what he received 26 Feb. 2015.

He wrote (page 2): “In my response to your provisional opinion I wish to make some further comments in relation to aspects of my complaint about MSD’s responses to my original information requests 1, 3, 6, 8 and 11, that is after having read your various considerations and formed opinion, and also in regards to your advice on Dr Bratt and his repeated misrepresentation of statistical and scientific reports, which includes his ‘record keeping’ on such matters.”

“I will deal with each of these complaint aspects and your corresponding provisional views request by request, or point by point. Firstly though, I wish to mention, that I have up to this day not received any further information from MSD in response to my information requests, which goes beyond of what the Ministry had initially made available on 26 Feb. 2015.”

The complainant raised the following points at issue under the corresponding headings:

‘Request 1 – your provisional opinion – my further comments’

As he had asked for “on site service provider addresses, and the particular services offered”, he considered that MSD had to provide that information.

He wrote: “given the fact that NO website links were provided with the original information response by MSD, it is unreasonable to expect me as a requester to go and search for any website information, in the absence of any references being made to such in the original information response.”

“When a requester is either unaware that such websites exist, or when a requester does not find the particular information he was looking for on a website he may find, then the Ministry cannot simply expect such a person to consider the information is publicly available. The very least one can expect in a case where the information is publicly available, is that the Ministry does then point this out, in its response, which did not happen in this case.”

The complainant wrote that individual WINZ offices would hold information on SPES and MHES providers’ on-site service delivery addresses, as they would regularly refer clients to them. Hence he commented: “Therefore I will not accept that the Ministry could reasonably refuse the information requested – according to section 18(g) of the OIA.”

He added the following further comments:
“Last not least, I note, that the Ministry did in its response of 26 Feb. 2015 not follow its obligation to inform me pursuant to section 19 OIA that the information was publicly available, as it now claims in reliance on the provisions in section 18(d) OIA. Nor did it do the same in respect of a refusal now argued as justified pursuant to section 18(g). No way how this may be attempted to be explained away, the Ministry was in breach of the OIA. I will provide some further comments re the above stated issues under ‘Request 6’, further below.”

‘Request 3 – your provisional opinion – my further comments’

The complainant quoted the Ombudsman’s comments from his provisional opinion, where he also wrote the following: “The Ministry has noted that this information is not collected in the manner you have requested and, referring to section 18(g)(i), it notes the Ministry is not required to create information.” He noted that the Ombudsman had made enquiries with the Ministry on this aspect of his complaint, and that he was apparently satisfied that section 18(g) in the OIA gave the Ministry ‘good reason’ to refuse the complainant’s request.

While noting the above comments by the Ombudsman, the complainant wrote that MSD had not given a clearer statement as to whether “wrap around services” in a more clinical form of health support were indeed simply provided as part of the ordinary, accessible public health care services presently available through District Health Boards. He had earlier asked for this, and he would still expect such a statement, he wrote. Also did he still expect some information (examples) of the types of such services that were being provided, he added.

While the complainant expected the mentioned information to be clarified, he did reluctantly accept that there was little point in taking the other remaining matter about contracted service providers’ staff qualifications any further, although he had his doubts about the explanations given by MSD in response to request 3, as communicated by the Ombudsman.

‘Request 6 – your provisional opinion – my further comments’

In response to the Ombudsman’s comments in relation to ‘Request 6’ and issues raised earlier by the complainant in respect of MSD’s response, the complainant wrote the following:
“Again, I will here also refer to my comments that I have already provided in relation to ‘Request 1 – your provisional opinion – my further comments’, see further above. I will refrain from repeating those particular considerations, which are the same in respect to this request.”

The complainant wrote also that there was no website to be found in May 2014 for one provider, ‘ECS Connections’ in Taranaki, and that other websites gave inconclusive “confusing” information as to where their on-site service delivery addresses were.

He wrote:
“I again ask you to consider, that MSD never provided any website addresses or links to such in the information provided in the first place, nor did it mention that the on-site addresses could be found on websites, hence it seems unreasonable, to later tell people, that the information is publicly available, even when in some cases it evidently is not so. It seems unreasonable to tell people who request such specified information to spend hours or days doing online searches, whether they have access to a functioning computer and internet, or not. If MSD is so certain that the information is publicly available, it should have pointed this out in the first place, and provided some information on how it may be accessed.”

He commented that in his view the individual WINZ Offices, or the Regional Offices, would have the on-site service delivery addresses of providers on record, as they would refer clients there. Hence the Ministry should still make the information available.

The complainant also wrote: “Last not least, I again note, the Ministry did in its response of 26 Feb. 2015 not inform me as per section 19 OIA, that the information would be publicly available, and that it had refused the information pursuant to section 18(d). In its response dated 24 April 2014 the Ministry only used section 18(g) to refuse information on providers’ staff roles and qualifications.”

‘Request 8 – your opinion, which appears to be ‘final’ – my further comments’

Although the Ombudsman had not invited further comments by the complainant on his opinion on ‘Request 8’ and MSD’s response to it, the complainant saw a need to express his remaining concerns on this OIA request point and the not accepted position by MSD.

He quoted his original full request, and that he wrote the following in his complaint letter of 9 March 2015:
“My request for the specified official information has in this case also not been fully met. I did not only ask for information on “bonuses” to staff, “additional leave in recognition of service”, or similar “performance measures”, but firstly for specific performance targets (e.g. successful referrals of clients into work, training and so forth), which may not be linked to any such “rewards”. Performance targets may be set for branches without bonuses and the likes being paid, simply as part of ordinary operational performance expectations, for all staff working with clients. There must be certain goals and targets that MSD sets itself and their staff, to achieve annually.”

He again also referred to a radio interview on Radio NZ on 15 April 2014, where MSD’s Director for Welfare Reform, Sandra Kirikiri, answered questions by Kathryn Ryan.

The complainant quoted what MSD wrote in their response of 26 Feb. 2015, and what Ombudsman Donnelly wrote in his provisional opinion. He then presented his response to this and his further comments on this aspect of his complaint:
“While I acknowledge your position on this aspect, I am concerned that the Ministry continues to insufficiently address the contradictions I observed. I also note that since that interview, Ms Kirikiri and other senior staff of MSD have not accepted invitations to media interviews to offer further comments on the MHES trials and similar programs, as has repeatedly been confirmed in programs by Kathryn Ryan, John Campbell and others at Radio New Zealand.”

“While this may be a matter where I have interpreted comments by Ms Kirikiri in a way, that may not quite correspond with the actual approaches and policies followed by MSD and WINZ, it would have assisted me and the public, if MSD had provided more clarity and answered to questions put to them, not only by me, but by others, including the media. Hence I remain unconvinced and disappointed by the response provided by MSD and that you consider that you cannot take this matter any further.”

‘Request 11 – your provisional opinion – my further comments’

In respect of ‘Request 11’, his stated issues and the Ombudsman’s provisional opinion, the complainant did firstly again quote the original OIA request. He also quoted from his complaint relating to MSD’s response on this aspect, dated 9 March 2015. He furthermore quoted MSD’s further comments and what Mr Donnelly wrote in his ‘provisional opinion’.

The complainant then presented his further comments on this complaint aspect and on Mr Donnelly’s provisional opinion.

He wrote the following:
“From your response with your provisional opinion, I understand that the Ministry has chosen to now be very ‘particular’ with interpreting my original request. Hence it has now chosen to refuse information by using section 18(f) of the OIA, after having taken a slightly different approach in their original information response of 26 Feb. 2015. In short, the responses provided by MSD are in my view nothing but an attempt of obfuscation.”

He added: “The Work and Income website is a site with endless pages and substantial information, but while some information is generously provided, other information is hard to find, or cannot be found at all. I have repeatedly visited the WINZ website and made searches for the particular information I asked MSD about, and I made the OIA request, for the very reason that I COULD NOT find on the website, what I asked for.”

The complainant expressed his concern about the Ombudsman’s acceptance of MSD’s responses and the further comments it provided to his Office. He wrote that he had earlier received a copy of the ‘Guide for Designated Doctors’ upon an OIA request on 24 March 2011. Commenting on ‘advice’ the Ministry provides to medical practitioners, he wrote: “The ‘Guide for Designated Doctors’ is one such main document, that used to exist, and which was provided to medical practitioners working as Designated Doctors for the Ministry, to offer guidance on how to complete ‘Work Capacity Medical Certificates’ and how to examine and assess clients for WINZ purposes.”

He wrote that it could not be found on the Work and Income website, same as other information, and that no information had been provided on where it could be found. He also wrote that he would not accept the following comments by MSD:
“I do also not accept the Ministry’s new response to you, stating: “Mr Xxxxxx requested ‘information’ on the advice, not the advice itself, and has been provided with this.””

The complainant and information requester wrote that he did not accept that MSD could use section 18(f) OIA to refuse the information he had sought.

He added the following to his concerns:
“As for the ‘centralised repository’, I suggest you consider that such information may be kept in the office of Dr David Bratt, Principal Health Advisor to the Ministry, as he is responsible for this particular area of work. His Office is not one scattered all over the various WINZ Offices, any advice, guidelines and expectations get communicated from his Office to others within MSD and WINZ. Section 18(f) OIA is therefore not accepted as a reasonable, acceptable reason for refusal, which was again not even mentioned in the original OIA response of 26 Feb. 2015, as I note. So again, the Ministry was in breach of section 19 OIA.”

Your comments on ‘Record keeping by Dr Bratt’ – my further comments

The complainant wrote, besides of other comments he made:
“While I acknowledge your formed opinion with some disappointment, I must inform you that Dr Bratt’s professional body, being the Medical Council of New Zealand (MCNZ), does not have any responsibility for Dr Bratt’s work as Principal Health Advisor for MSD. Dr Bratt was appointed under the provisions of the State Sector Act 1988, and is therefore working in a specialist advisory role in the public service, not as a practicing doctor, providing health care.”

“Former Chief Executive Mr Peter Hughes, when responding to an OIA request I made on 29 Dec. 2010, clarified the following in his response letter dated 24 March 20112. On page 3 he wrote in response to my request 12:
“The Chief Executive has the authority under the State Sector Act 1988 to delegate functions to appropriate staff and has the duty to act independently in relation to staff matters. The roles of Ministry staff members listed in question 12 are therefore not specified in the Social Security Act 1964.””

“It is indeed the ‘State Sector Act 1988’, and in it section 41 that covers the delegation of functions and powers by a Chief Executive to employees. Hence Dr David Bratt appears to have been appointed under that legislation, as a specially appointed Principal Health Advisor (PHA) to work for MSD and WINZ in the public service.”

He then explained the following – in some detail:
“Therefore, the MCNZ is – under the HPCA – only responsible for activities of registered members in the area of providing ‘practice of medicine’, i.e. medical treatment, not for activities such as being a consultant for other agencies, like for instance MSD, WINZ or ACC – in the public service, or alternatively in the private sector.”

“It would therefore be a waste of time for me to try and consult the MCNZ on Dr Bratt’s activities as a Principal Health Advisor for MSD, as he does in that role not ‘practice medicine’. From a legal point of view, his role is that of an Advisor, albeit on health matters, but he cannot be held accountable under the HPCA for anything he may say or do in a purely advisory role, where he is not involved in providing treatment to patients.”

And by referring to emails he sent 21 May 2016, and which he later resent, he explained again, how a report found on the New Zealand Medical Journal, by Gordon Purdie, Senior Research Fellow at the University of Otago in Wellington, dated 20 Nov. 2015, showed how MSD’s Principal Health Advisor relied on incorrect statistical information while trying to influence medical professionals who made decisions on WINZ clients with health issues.

He also wrote that he disagreed with Prof. Paterson’s decision that he lacked interest in Dr Bratt’s conduct as PHA (Principal Health Advisor) for MSD. He wrote the following: “At any time I may be expected to undergo a medical examination under the Social Security Act 1964, which could be conducted by a Designated Doctor or a GP or other professional, who may have accepted misrepresented ‘evidence’ by Dr Bratt, and who could then make a decision based on flawed, inappropriately interpreted, unreliable ‘evidence’.”

So under his ‘Closing comments’ the complainant asked the Ombudsman to reconsider his provisional opinion, or at least in part, after considering his further comments and evidence.

Attached to an email carrying his response letter, he sent 3 PDFs with relevant correspondence and information to consider.

A PDF file with the authentic text of the reply letter by the complainant, partly redacted and dated 28 Oct. 2017, is found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA inform. refusal, prov. opinion, reply, anon, 28.10.2017

 

PART 12 – THE OMBUDSMAN’S FINAL OPINION, DATED 14 NOV. 2017, IGNORING MOST OF THE APPEALS BY THE COMPLAINANT

At 10.44h on 14 Nov. 2017 the complainant got another email from an unnamed sender at the Office of Ombudsmen, attached was the ‘final opinion’ of Ombudsman Leo Donnelly, which was again somewhat disappointing. It was a brief letter, only about one and a half pages long, and it appeared to the complainant, that the Ombudsman had already decided to maintain his ‘provisional opinion’ and simply turn it into his final one, no matter what new comments and information the complainant would present in reply to the ‘provisional’ one.

He listed each point separately that he considered worthy responding to, and commented the following:

“Request One – on-site service provider addresses.”

“You note that no website links were provided by the Ministry and that you do not accept section 18(d) and 18(g) are applicable.

I note that the Ministry did provide you with the providers’ addresses and that you have in fact accessed the on-site delivery address information on-line.

I confirm my final opinion is that the Ministry’s refusal is justified. I will, however, note your point to the Ministry that you were not referred to the existence of websites, nor provided with links (and that this would have been a more helpful response). “

“Request 3 – ‘wrap-around services’”

“You note you would have expected a ‘clearer statement’ from the Ministry in response to this request.

An agency is not required to create information to respond to an OIA request and my role under the OIA is to ensure that, where information is held, it is released upon request unless there is good reason under the OIA to withhold it.

Your comments that the Ministry has not ‘sufficiently clarified’ the position to your satisfaction are not concerns that I can take further under the OIA.”

“Request 6- on-site services delivery addresses.”

“You have noted that some of the providers do not have websites or have websites that are not helpful, although it appears that your last checks may have been some time ago. In respect of the websites, I will, again, note to the Ministry that it would have been more helpful for the Ministry to refer you to the existence of websites (and provided links, where possible).

I do not propose to take this issue further. If there is a specific provider, whose on-site delivery address you have been unable to access through your online-searches, then I suggest you make a specific request for this information, noting that you have been unable to access it on-line.”

“Request 11- Advice or expectations the Ministry had provided to health professionals”

“I note the ‘Guide for Designated Doctors’ was being considered as one aspect of your complaint in case No. 44xxx8 and I understand the Ministry has now released that document to you.”

“Record keeping by Dr Bratt”

“Your comments are noted. I am still of the view that your personal interest in Dr Bratt’s record-keeping is insufficient.”

“Final opinion.”

“I now confirm as final the opinions expressed in my letter of 24 October 2017. I have concluded my investigation and review. I will close the file once I have had confirmation from the Ministry that they have released the information discussed in respect of requests 2, 4 and 7.”

Author’s own comments

So much for a ‘final opinion’ by the Ombudsman Leo Donnelly. In summary, one can see that Mr Donnelly took a rather conservative approach when ‘investigating’ this complaint. He appeared to give MSD the benefit of the doubt, when it came to their limited information releases, their further comments and explanations in response to the ‘notified complaint’. He made totally clear, that he was very unwilling, to conduct any further communications in this complaint matter. All he was waiting for was for MSD to release to the complainant and information requester that extra bit of information in response to OIA requests 2, 4 and 7.

Mr Donnelly did not even mention the fact that MSD had from the start with their first formal information release of 26 Feb. 2015 failed to mention any good reasons why certain information was not provided, or was only provided in part. No reasons had been given for this, when it came to some requests, despite of the clear requirement under section 19 OIA. For instance the existence of address information on websites was never even mentioned in the Ministry’s first response, yet in absence of any references to the existence of websites of providers, MSD later claimed they had ‘good reason’ to refuse the information under section 18(d), as it was ‘publicly available’. That was done in retrospect though, and the Ombudsman did not even bother raising this with MSD, apart from finally noting it would be ‘more helpful’, where possible, to offer references to the existence of websites or their links. In other cases former refusal reasons were suddenly changed, in response to the ‘notified complaint’.

Various bits of other requested information remained to be withheld, as the Ombudsman rather believed and relied on the explanations and responses provided to him by MSD. For instance in that earlier mentioned Radio NZ interview in April 2014 the Ministry’s Manager for Welfare Reform firmly stated there were ‘targets’ in the context of referring clients with health conditions and so to providers, and to them being placed into employment, but MSD later contradicted this. Contradictions remained, and the Ombudsman simply believed MSD.

NO serious enough consideration appears to have been given to the repeatedly mentioned issues with Dr Bratt and the ‘advice’ and ‘expectations’ he had as MSD’s ‘Principal Health Advisor’ (PHA) communicated to medical and health professionals for a fair few years. MSD was allowed to water down that aspect of the complaint, by claiming the information was not held in a ‘centralised repository’. But they would not need to look any further than Dr Bratt’s Office, to find such a ‘repository’ full with ‘advice’ he repeatedly shared in presentations. One only needs to look at Dr Bratt’s at times bizarre, clearly misleading ‘presentations’, to detect a clear bias. The fact that MSD have supported him as PHA since 2007, and kept him in his senior role, that speaks volumes about how much – or rather little – MSD is committed to true accountability, transparency and adherence to science and backed up evidence.

So once again Ombudsman Leo Donnelly decided against launching an investigation into Dr Bratt’s past conduct as PHA for MSD and WINZ (e.g. his deletion of all email records of his consultations with an external UK based ‘expert’), despite of compelling evidence of Dr Bratt acting unprofessionally and unethically. Mr Donnelly rather relied on former Ombudsman Ron Paterson’s view that the complainant had insufficient personal interest in Dr Bratt’s record-keeping. This was despite of him having the ability under section 13(3) Ombudsmen Act 1975 to make an investigation either on a complaint by a person, or of his own motion.

What does this tell us about our Ombudsman, in this case? ‘Fairness for All’ is the Office’s slogan, it does sound nice, but the reality some complainants face puts this into question.

A PDF file with the authentic scan copy of the Ombudsman’s final opinion on the matter, partly redacted and dated 14 Nov. 2017, is found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, etc., fin. opinion, 14.11.2017
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, final opinion, hi-lit, 14.11.2017

 

PART 13 – THE COMPLAINANT’S REMAINING CONCERNS AND THE OMBUDSMAN INVESTIGATOR’S EMAIL OF 16 NOV. 2017, CONFIRMING THE FILE WILL BE CLOSED

Rather concerned about the Ombudsman’s position, in not taking up his remaining concerns with MSD, the complainant did on 16 Nov. 2017 write once again to the Office of Ombudsmen.

The complainant’s final email and letter dated 16 Nov. 2017

At just after midday on 16 Nov. 2017 he sent another email with a letter of that same date to Ombudsman Donnelly and Investigator Bxxxxx Xxxxxx. After thanking the Ombudsman for his final opinion, he wrote with regret that the complaint matter was still not fully resolved. Some matters appeared to have been overlooked, he wrote, and the further information that the Ministry was supposed to send him, this had not been received. He referred to the Ombudsman’s provisional opinion of 24 October 2017, where he had written that MSD had agreed to send further information in response to OIA requests 2, 4 and 7.

He then presented an overlooked aspect of his remaining concerns, and he clarified that he had expected of the Ombudsman, that he would have advised MSD that they should have a responsibility to point out that certain information was publicly available. He quoted from his responses to the Ombudsman’s provisional opinion, in relation to information ‘Request 1’ and ‘Request 6’. He made a reference to the OIA section 19A, which requires that a reason for a refusal of information must be given. He considered this to be an obligation. Mentioning the other, different refusal grounds stated and used by MSD, the complainant expressed his view that: “MSD had a responsibility to point out, that the information was publicly available, in their response to me, dated 26 February 2015”. He added that MSD: “must be advised that they must in future do so, as that is what the law requires them to do in such circumstances”. While the Ombudsman had considered it may be ‘helpful’ for the Ministry to refer to websites that existed for providers, the complainant was of the view, such advice was not sufficient.

The complainant also wrote that MSD had up to that day (16 Nov. 2017) still not provided the remaining information that the Ombudsman had mentioned they would release in response to his earlier OIA requests 2, 4 and 7. The only additional information which he had so far received was an out of date ‘Guide for Designated Doctors’ manual from 2008, sent to him by a person called ‘Mxxx’ on 8 Nov. 2017.

The complainant hoped that this information would not be forgotten, and that MSD would provide it to him soon. He closed off his letter with the following comments: “While I remain disappointed about your continued refusal to look deeper into the conduct of Dr David Bratt, I do hope, that this file will not be closed until the above has been resolved.”

The Senior Investigator’s email response to the complainant, of that same day

At 15.25h on 16 November 2017, Senior Investigator Bxxxxx Xxxxxx wrote back to the complainant, merely commenting the following:

“Your letter has been received and noted and placed on the file. The Ombudsman has completed his investigation of this complaint on the basis discussed in his letter of 14 November. The file will be closed once the Ministry advise this Office they have released the information discussed in respect of Requests 2, 4 and 7.”

So much for a reply, this was short and blunt, and signalled to the complainant, that his remaining concerns were of little interest or concern to the Senior Investigator and Ombudsman Donnelly. This apparent bit of disregard for complainants, who may go the extra mile in trying to get an appropriate and acceptable resolution to complaint matters, was though nothing new to the complainant. He had experienced a similar treatment before, when receiving some other ‘final opinions’ on complaints, especially from former Ombudsman Beverley Wakem, who even refused to review the conduct of a staff member, who had apparently misinterpreted or even misrepresented facts. Certain holders of high Offices seem to have a dim view of ordinary persons making repeated complaints, and insisting on attention to detail, on correctness and fairness in complaint processing and resolution. Once again, ‘Fairness for All’, the slogan used by the Ombudsmen, rang hollow.

A PDF file with the authentic response letter by the complainant, to the ‘final opinion’ of Ombudsman Donnelly, dated 16 Nov. 2017, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, complainant ltr, anon, 16.11.2017

A PDF file containing the authentic scan copies of the Investigator’s final email response, and the complainant’s earlier email, partly redacted, both of 16 Nov. 2017, can be found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, etc., refusal, email reply, anon, 16.11.17
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, inform. refusal, investigtr email, hi-lit, 16.11.17
A PDF containing the received ‘Guide for Designated Doctors’, which MSD sent the complainant on 8 Nov. 2017, can be found via this link:
WDB6 Guide for designated doctors_FINAL

 

PART 14 – MSD’S FURTHER INFORMATION RELEASE OF 22 NOV. 2017, SHOWING HOW MHES TRIALS WERE A FAILURE

After nearly another week the complainant would finally get the further information that MSD had agreed to release to him, upon the intervention of Ombudsman Donnelly, in ‘resolving’ complaint 39xxx4. With a letter dated 22 Nov. 2017 MSD provided the additional information in response to Requests 2, 4 and 7, which was about three years after the information should have reasonably been expected and received by the complainant.

The following information was the ‘further’ response now provided to him:

“Dear Mr Xxxxxx

I write further to your Official Information Act request of 1 October 2014, requesting information from the Ministry of Social Development (The Ministry) about services to beneficiaries.

After consultation with the Office of the Ombudsman, the Ministry is now providing further information in response to your request.”

“You asked for information about ‘outcome expectations’.
Below are the outcome expectations:

The Mental Health Employment Service (MHES)
As a result of their participation in the Service:
● 50% of clients will be expected to have been placed into employment that aligns with their work obligations; of whom
● 80% will be expected to have remained in employment, aligning with their initial work obligations, for a period of twelve (12) months.

The Sole Parent Employment Service (SPES)
As a result of their participation in the Service:
● 52% of clients will be expected to have been placed into employment that aligns with their work obligations; of whom
● 80 % will be expected to have remained in employment, aligning with their initial work obligations, for a period of twelve (12) months.”

“You requested numbers about how many beneficiaries referred to MHES and SPES ‘have been successfully referred to employment’.

The data below is provided based on the reporting information from the MHES and SPES Providers. This has not been checked against Work and Income systems. The data reflects the actual ‘enrolments’ in service and ‘actual outcomes’ as reported by providers through the reporting tool known as Service Outcome Reporting Tool. The data is provided for the period August 2013-June 2015 and has been manually collated from provider reporting. The outcomes recorded are for those placed into employment only and not for those achieving the 6 or 12 month outcome within the period.”
……………….

Note by author:
For the actual data in the provided tables, please load the authentic scan copy of the response by ‘the Ministry’ (MSD) dated 22 Nov. 2017, which can be found via this link:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017

Continuation of ‘further response’:

“You also requested:
‘what: plans exist to change or increase particular expectations and/ or criteria for sick, injured and disabled persons to be referred to work ability assessments’.

The Ministry did not have any plans to change the Workability assessments or the expectations at the time.”

“I trust this information is helpful.

Kind regards

Mxxx

Ombudsman and Privacy Complaint Services
Ministry of Social Development ……..”

Author’s own comments:

So here we have it, besides of the also useful information about ‘outcome expectations’ that MSD had for those MHES and SPES trials, being delivered by contracted Providers, we now have the first real figures for ‘enrolments’ and ‘employment outcomes’ for them. Although the information does not specify for how long such employment placements of participating Work and Income clients may have lasted, it is at least an indicator of how many were at least put into any form of presumably ‘suitable’ employment.

Often less than half of the numbers of persons newly enrolled for the MHES were eventually placed into a form of employment, as the tables show. Sometimes the figures were worse, at times a little better. Overall, job placements did not match enrolments, far from it. There appears to have been no significant improvement over time. We do not know though, how much was paid in fees to the providers, and whether the whole exercise was economical for them. If targets may not have been met, some fees will not have been paid.

It is no wonder then, that MSD and the then government ditched these trials and since then started new ones, such as ‘Work to Wellness’, which may fare little better in the end.

The figures are clearly not that encouraging, they are disappointing for MHES, and a bit less disappointing for SPES. This data had been withheld by MSD for years, and in the meantime there has also been another report released, which admits that the MHES trials did not deliver what they were initially expected to deliver.

Here is a link to a PDF containing MSD’s report ‘Effectiveness Of Contracted Case Management Services On Off Benefit Outcomes: Mid-Trial Report’, of mid or late 2015:
MSD, OIA Release, Mid Trial Evaluation Report on MHES and SPES Trials, mid 2015

On page 7 in that document (page ‘3’ it says on the page itself) it does for instance reveal the following:
“Duration in contracted services

One important reason for the absence of an impact from MHES is the relatively short time the treatment group spend on the service. We found a high dropout rate for the treatment group. For MHES, 48% of referred clients ended the services within 8 weeks after starting. For the SPES the proportion was 35% (refer Figure 5).”

But that report also concedes that there may well be some flaws with the ‘evaluation’, as can be seen by reading the text under ‘2.6 Participants excluded from this analysis’, on PDF page 12. The ‘Appendix’ on the last page only gives some information on referrals and participation in the trials, but no information on job placements.

Again, for the authentic scan copy of the full further information response by MSD to the requester’s OIA request of 1 October 2014, dated 22 Nov. 2017, please click this hyperlink to load a PDF that contains it:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017
MSD, OIA rqst, MHES, SPES, WAA, other services, 01.10.14, further rel., hi-lit, anon, 22.11.17

So it took MSD three years to provide some crucial and important data, which the requester had initially asked for, and only with the assistance of the Ombudsman was some of it finally released under the OIA. By now, the information is somewhat irrelevant, as MSD and the government have moved on, and quietly abandoned MHES.

 

PART 15 – CONCLUSION: THE OMBUDSMAN LARGELY LETS OFF MSD ON MATTERS OF SERIOUS CONCERN, AND TAKES NO FURTHER ACTION DESPITE OF SIGNIFICANT OIA BREACHES

From the above quoted correspondence and the way this complaint has been treated and handled by the Office of Ombudsmen, it is blatantly obvious, that Ombudsman Donnelly, or shall we rather say his Senior Investigator, ‘investigated’ the complaint in a rather superficial, apparently rushed manner. This happened in mid to late 2017, after a two year delay in progressing with the complaint, which was left on a pile of ‘aged complaint files’ as probably being too difficult or complex to bother with. That of course was also due to the years of under-funding of the Office of Ombudsmen, which even former Chief Ombudsman Beverley Wakem lamented about in the Office’s Annual Reports and some media reports.

We may also refer you to two other useful, interesting and revealing posts in that regard, found via these hyper-links:
https://nzsocialjusticeblog2013.wordpress.com/2016/09/05/the-new-zealand-ombudsman-underfunded-and-compromised-the-auditor-general-sees-no-need-for-action/
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

Complaints Outcome by Request

We need to look at the partly unsatisfactory outcome of this complaint by again looking at each ‘Request’ made under the OIA on 1 Oct. 2014. It is obvious that MSD did in its original formal and ‘final’ response of 26 Feb. 2015 fail to give refusal grounds for some information that was never presented to the requester, and re some ‘Requests’ the initial refusal grounds were somewhat different to what the Ombudsman would finally accept as ‘good reasons’ and ‘reasonable’ in his ‘provisional’ and ‘final opinion’.

It is also disturbing that the Ombudsman saw no need to remind MSD of the requirements it had under section 19 OIA, to give reasons for refusing information, and that he thus let the Ministry off the hook, so to say, somewhat lightly.

One would have expected the Ombudsman to be firmer on MSD, in holding the Ministry to account for failing to provide the actually available information on Requests 2, 4 and 7, and for not presenting any information such as the ‘Guide for Designated Doctors’. But under section 22 of the Ombudsmen Act 1975 the Ombudsman has only limited powers to prepare and release reports upon investigations, to make recommendations and give advice. No agency is bound to follow such recommendations or advice, although refusing to do so may lead to some loss of reputation in the wider public, and it may result in the Ombudsman sending a further report to a Minister and/or the Prime Minister.

In any case, here we have a brief look again, at how the Ombudsman dealt with the complaint issues or aspects on a point by point, or request by request basis:

‘Request 1’
In their response of 26 Feb. 2015 MSD only provided ‘head office’ addresses for SPES providers and for the same for MHES referred to its earlier OIA response of 24 April 2014. No reason was given for refusing the on site provider addresses and also was little information provided on the particular services offered. NO reference was made to the existence of websites with such information. Upon ‘investigating’ the complaint, dated 9 March 2015, the Ombudsman did in his ‘provisional opinion’ of 24 Oct. 2017 simply accept MSD’s new position that the Ministry “may not itself have been provided ‘with all sites’ addresses”. He only then formed his view that the information asked for “can be refused under section 18(d) on the basis that it is publicly available, and section 18(g) where the Ministry does not actually hold the information.” He made no mention that under section 19 OIA there was a requirement by MSD to give the requester a reason for not providing certain information, which it had not done with its former response.

In his response of 28 Oct. 2017 the complainant reminded Ombudsman Donnelly, that he had clearly also asked for “on site service provider addresses and the particular services offered”. He wrote that he had only been provided hard copies with tables containing the head office address information, and hence it was ‘unreasonable’ for him to be expected to go and search for website information, in the absence of references made to them. MSD had not pointed out the information was publicly available, he wrote. He rejected refusal ground 18(g) OIA, as WINZ would know the on site addresses due to referring clients there, and he commented that no refusal ground had been given, as required under section 19 OIA. All the Ombudsman commented in his final opinion of 14 Nov. 2017 was that the complainant had been able to access the online information after having been provided the (head office) addresses. Astonishingly the Ombudsman maintained his view that MSD’s refusal was ‘justified’. At least he noted the complainant’s point that he had not been referred to the existence of websites, nor provided with links, which may have been ‘more helpful’.

‘Request 2’
In MSD’s response of 26 Feb. 2015 the requester received the ‘fee structure’ information for SPES providers, and referred to its earlier response of 24 April 2014 for the same information for MHES providers. No information was given on ‘outcome expectations’ that MSD had from the providers of both services. Hence in his letter of 9 March 2015 the complainant had asked that ‘outcome’ or ‘target’ information be presented by MSD. The Ombudsman wrote in his ‘provisional opinion’ that “the Ministry has located relevant information about ‘outcome expectations’ and provided it to this Office.” He wrote that he had asked MSD to make that information available, which appears to be an acceptable outcome. It was later provided in acceptable form by way of a letter from MSD dated 22 Nov. 2017 (see PART 14 for details).

‘Request 3’
In its initial response of 26 Feb. 2015 MSD provided a brief description of the MHES and how it “provides employment-related case management, placement and post placement support to assist participants to gain and maintain employment”. MSD would not centrally hold information on clinical services accessed through the service providers, they wrote. Hence that request was refused pursuant to section 18(g) of the OIA, same as information on providers’ staff roles and qualifications. The complainant presumed in his letter of 9 March 2015 that ‘wrap around services’ in the form of ‘mental health support’ would be provided through providers and that this was covered by the contract with MSD. He asked whether that information was being withheld, or does not exist, or was also not “centrally held”. He also believed that service providers’ staff would need to have minimum qualifications, which he expected to be mentioned. Also did he seek a ‘clear statement’ on whether ‘wrap around services’ “in a more clinical form of health support” would be provided through public health services at District Health Boards.

According to his provisional opinion of 24 Oct. 2017 the Ombudsman had made further enquiries re this, and formed his view that section 18(g) gave the Ministry good reason to refuse the request (particularly section 18(g)(i)). In his response to that, dated 28 Oct. 2017, the complainant argued that he had still not received a clarified statement from MSD on whether ““wrap-around services” in a more clinical form of health support” were simply “provided as part of the ordinary, accessible public health care services presently available through District Health Boards”. In his final opinion of 14 Nov. 2017 Mr Donnelly would stick to his already formed view, that “an agency was not required to create information”, and that he could not take further the complainant’s concerns under the OIA. Although the complainant attempted to raise some remaining concerns about a number of aspects of his complaint with a letter and email of 16 Nov. 2017, the Investigator refused to engage in any further correspondence on the matters thus presented.

‘Request 4’
In its response of 26 Feb. 2015 MSD presented two tables with information on MHES and SPES referral and participation numbers from Sept. 2013 to Oct. 2014, and how many ‘exited’ the services “As at the end of October 2014” for various stated reasons. The information thus presented did not appear clear and broken down enough; hence the complainant raised this in his complaint of 9 March 2015. He also noted that “NO information has been provided on those participants of either service, who have been successfully placed into employment”.

The Ombudsman did in his provisional opinion comment: “In response to my notification of your complaint about the form of the information provided, the Ministry has noted that, while your preference may not have been addressed, the information was in fact provided”. He accepted the Ministry’s response was “reasonable”. He added though that the Ministry had provided him some “manually collated data” about numbers successfully placed in employment, and that the Ministry was now happy to release it to the requester. Hence this part of the investigation was partly successful for the requester, as MSD would by way of a letter sent by email on 22 Nov. 2017 present some information on ‘Enrolments’ and ‘employment Outcomes’ for both MHES and SPES, which providers had sent them. The information showed how comparatively poorly the MHES trials performed, and it was not giving any information on the duration of ‘employment’ that participants had been referred to. See PART 14 for that ‘further information’ release and details in it.

‘Request 5’
In its initial response of 26 Feb. 2015 MSD provided information, which appeared to contradict earlier presented information in their response of 24 April 2014. It wrote: “The Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider. As such this information is refused under section 18(e).” The complainant and information requester raised this with the Ombudsman in his complaint of 9 March 2015, asking why clear enough relevant information could be provided by MSD on 24 April 2014, and why the same kind of information was no longer available. He asked for a proper explanation and clarifications. But the Ombudsman did not even address this question, as this request point was ruled out by the Senior Investigator by way of her letter dated 16 May 2017, commenting that this complaint issue did not constitute an OIA request.

‘Request 6’
All that MSD provided in its initial response of 26 Feb. 2015 was the following explanation: “There have not been any changes to the Work Ability Assessment, and as such no further information to that supplied to you on 24 April 2014 is available.” In his complaint of 9 March 2015 the complainant pointed out that MSD had again only provided head office addresses for ‘Work Ability Assessment’ (WAA) providers with their response dated 24 April 2014, not the on-site service delivery addresses.

The Ombudsman commented in his provisional opinion of 24 October 2017: “In response to notification of this aspect of your complaint, the Ministry have referred to their response to request 1, that is, that the physical address is available from the web site of the providers.” He then wrote: “I accept that section 18(d) provides good reason under the OIA to refuse this part of your request on the basis that the information is publicly available.”

In a response to the Ombudsman’s provisional opinion the complainant wrote on 28 Oct. 2017, partly also referring to his comments regarding ‘Request 1’, that he actually had some trouble finding a website, and also finding relevant, useful, conclusive information on existing websites on providers’ addresses. He wrote that there were no links or website addresses mentioned in the original response by MSD. He pointed out again, that the Ministry gave no reason as required under section 19 OIA, e.g. that the information was deemed to be publicly available. The Ombudsman did in his ‘final opinion’ point out that it was some time ago, that the complainant checked the websites he mentioned. He refused to take the matter further. So once again, Mr Donnelly seemed to consider section 19(a)(i) of the OIA was irrelevant, and that MSD did not have a responsibility to provide that reason in their first response.

‘Request 7’
In their initial response of 26 Feb. 2015 the Ministry provided only the following explanation: “Information about work ability assessments was provided to you on 24 April 2014.” “Work and Income does not refer Supported Living Payment beneficiaries for Work Ability Assessments. However, those in receipt of Supported Living Payment can have work preparation obligations if they have been assessed as having capacity to prepare for work.” A link was provided for information on the Work and Income website, which contained little or no relevant information in reply to the actual request for information on ‘expectations’ Work and Income were currently placing on sick and disabled on health related benefits, ‘in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability’. And no information was provided on ‘sanctions’, should a client object or refuse to participate in such an examination/assessment. In his complaint of 9 March 2015 the complainant pointed this out, and referred to the Ministry’s response of 24 April 2014, where it had not clearly enough stated what ‘sanctions’ may be imposed. He also wrote that his request had not been answered, when he asked for “information on any plans that may presently exist to change or increase particular expectations and/or criteria for sick, disabled and injured persons” on particular health related benefits, to be referred to work ability assessments.

The Ombudsman did in his provisional opinion of 24 Oct. 2017 write: “In response to my notification of this aspect of your complaint, the Ministry has apologised and acknowledged that they did fail to respond to this particular aspect of your request.” He wrote: “The Ministry has undertaken to now respond to you about this request.” All that MSD would later on 22 Nov. 2017 inform the complainant of was, that “The Ministry did not have any plans to change the Workability assessments or the expectations at the time” (of the OIA request). See PART 14 for their ‘further information’ response. That though still left some concerns of the complainant and information requester completely unanswered, e.g. the one about ‘sanctions’, and how they would be applied.

‘Request 8’
Being asked about ‘specific performance targets’ for Work and Income staff, managers and Advisors, MSD stated on 26 Feb. 2015 that they paid no bonuses, offered no extra leave in recognition of performance, and that in past years some staff received a ‘productivity dividend‘ for meeting group measures in achieving efficiencies and reducing work duplication. A table for ‘Performance Payments’ and ‘Productivity Dividend’ payments was presented. They wrote that there were no performance measures for staff to refer beneficiaries to contracted services, and hence MSD withheld or refused the information under section 18(e) OIA. It was said that Work and Income monitored its business indicators and numbers of people on benefits, and there was no information provided on ‘targets’. So in his Ombudsman complaint of 9 March 2015 the complainant asked for the actual information on ‘specific performance targets’, as he had not received this. He referred to a RNZ interview on 15 April 2014 and provided a hyperlink. He quoted how a ‘Director for Welfare Reform’ had in that interview clearly said: ”They definitely have targets”, when talking about MHES service delivery and how WINZ worked with clients with mental and other health conditions. The complainant asked for a ‘clarification’ and ‘the requested information’.

In his provisional opinion Ombudsman Donnelly commented on 24 Oct. 2017: “In response to notification of this aspect of your complaint, the Ministry notes that it has provided you with the information you requested.” He appeared to reject the complainant’s impression that there was a potential contradiction between information provided by the Ministry and what was said in that radio program. He asserted the comments by the complainant about the radio program reflected his ‘interpretation’ and ‘extrapolation’. It was not part of his investigation and role so that a ‘better response’ was provided, he commented. He considered he could not take the matter further. So in his response to this, dated 28 Oct. 2017, the complainant wrote: “While I acknowledge your position on this aspect, I am concerned that the Ministry continues to insufficiently address the contradictions I observed.” He remained unconvinced and disappointed about the response by MSD, and that the Ombudsman could not take the matter further, so the complainant wrote. The Ombudsman simply refrained from offering any further comments on this in his short ‘final opinion’ of 14 Nov. 2017.

‘Request 9’ and ‘Request 10’
The complainant considered MSD’s responses to requests 9 and 10 as generally satisfactory. Hence he did not raise any concerns or issues re these in his complaint to the Ombudsman.

‘Request 11’
All that MSD had on 26 Feb. 2015 initially provided as information to this request were the following comments: “Medical practitioners provide an assessment of the impact of the individual’s disability or health condition on their ability to undertake suitable employment. The assessment also provides information that may enable an individual to work towards returning to paid employment. All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz .” In his complaint of 9 March 2015 the complainant pointed out that the WINZ website did not contain the specific information he had requested, and that “direct Advisor to practitioner “advice” and “expectations” communicated to such health practitioners” was not to be found there. He wrote that he had asked whether “particular sets of questions” or “particular criteria” had been communicated to GPs. That request had not been met, and also had a source for the ‘Guide for Designated Doctors’ not been provided, he commented.

In his provisional opinion Mr Donnelly wrote: “In response to my notification of this aspect of your complaint, the Ministry noted that ‘[t]he Ministry considers that further advice should have been refused under section 18(f) of the Act as there will not be a centralised repository of ‘advice to doctors’. Mr Xxxxxx requested ‘information’ on the advice, not the advice itself, and has been provided with this.” Ombudsman Donnelly simply accepted MSD’s explanations and reason, and thought it had “good reasons to refuse the communications” under section 18(f). Strangely that reason was never provided by MSD with the initial response, and again, the Ombudsman saw no reason to remind MSD that it had to state a reason for a refusal, under section 19 OIA. The complainant and information requester did in his response of 28 Oct. 2017 express his view, that MSD’s responses were nothing but an attempt of ‘obfuscation’. He was concerned about the Ombudsman’s acceptance of MSD’s responses. He expressed his dissatisfaction about the lack of information about a ‘Guide for Designated Doctors’. He asked the Ombudsman to consider that a ‘centralised repository’ would be Dr Bratt’s Office.

The only further information Mr Donnelly would provide in his ‘final opinion’ was then: “I note the ‘Guide for Designated Doctors’ was being considered as one aspect of your complaint in 44xxx8 and I understand the Ministry has now released that document to you.” For the rest he appeared to uphold his ‘provisional opinion’. Again, MSD were allowed to use a refusal ground stated far too late, after having flouted the requirement under section 19 OIA.

‘Request 12’, ‘Request 13’ and ‘Request 14’
The complainant was generally also mostly satisfied with the adequate responses he received from MSD to his information requests 12, 13 and 14, so there was insufficient reason to include any concerns re these in his complaint of 9 March 2015.

Additional issue with ‘Record keeping by Dr Bratt’
Having repeatedly raised concerns about Principal Health Advisor Dr Bratt’s deletion of ‘all’ emails for a certain period, containing correspondence with external Advisor Prof. Mansel Aylward from the UK, and also about Dr Bratt’s professional integrity and competency, the complainant and information requester received another unsatisfactory decision or ‘opinion’ from Ombudsman Leo Donnelly (see his ‘provisional opinion’ letter of 24 Oct. 2017).

Mr Donnelly wrote was that he had “carefully considered” the comments by the complainant in his correspondence of 21 May 2016 (resent on 25 Aug. 2016). Although the complainant had presented a report with clear enough evidence from a senior scientist from the University of Otago in Wellington, Mr Gordon Purdie (NZMJ, Vol. 128, No 1425, of 20 Nov. 2015: https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729 ), proving that Dr Bratt has misrepresented statistical reports and used these in ‘presentations’ to influence medical practitioners, the Ombudsman seemed little interested in looking into this any further.

He referred to former Ombudsman Ron Paterson’s ‘finding’, quoting him by writing that the complainant had “insufficient personal interest in the issue of Dr Bratt’s record-keeping”. So Mr Donnelly considered the following: “I do not see the link between your expressed concerns about Dr Bratt’s professional competency and a personal interest in Dr Bratt’s record-keeping.” He suggested Dr Bratt’s professional standards would “most appropriately be addressed by his professional body, not a layperson, such as myself”. He did not propose to investigate the complainant’s separate complaint about Dr Bratt’s ‘record-keeping’.

The complainant explained in some detail in his response of 28 Oct. 2017, that Dr Bratt could only be held to account by his ‘professional body’ (the Medical Council of New Zealand) for providing a service in the form of ‘practice of medicine’ (i.e. medical treatment). But he was not doing this, as a senior Advisor to MSD, he wrote. Hence the advice by the Ombudsman was “not helpful”, he commented. He also wrote that there were more serious matters to consider, it was not just about ‘record-keeping’. Through misrepresenting ‘evidence’ Dr Bratt was potentially putting WINZ clients with health conditions and disabilities at risk of suffering harm, he asserted. Nevertheless, the Ombudsman maintained his evasive view in his final opinion of 14 Nov. 2017, writing only: “Your comments are noted. I am still of the view that your personal interest in Dr Bratt’s record-keeping is insufficient”.

Unresolved concerns by the complainant

And following the extensive complaint correspondence, the complainant wrote once again on 16 Nov. 2017, expressing his disappointment about the ‘final opinion’ of Ombudsman Donnelly, and commenting, that the complaint had not been fully resolved. The short and blunt response by the Senior Investigator was – as already mentioned above:
“Your letter has been received and noted and placed on the file. The Ombudsman has completed his investigation of this complaint on the basis discussed in his letter of 14 November. The file will be closed once the Ministry advise this Office they have released the information discussed in respect of Requests 2, 4 and 7.”

So there was NO willingness from the side of the Office of Ombudsmen, to enter into any further communications re this complaint with the complainant (see again ‘PART 13’).

Summary Conclusion

So in summary, considering all of the above, it is evident, that the Ombudsman did not bother to firmly hold MSD to account for all of its failings, like not providing certain information from the start, and not providing reasons for this (required under section 19 OIA). He was somewhat casual in ‘resolving’ the complaint, as it appears, or rather the Investigator doing the actual ‘investigative’ and preparatory decision forming work. MSD were allowed to change their responses while they moved ahead in dealing with the Ombudsman, changing refusal grounds as they saw fit, offering some limited additional information in the end. They also suddenly raised new refusal grounds, where they had initially given no grounds at all. MSD was allowed to do this retrospectively, by providing a report to the Ombudsman, and during further communications, as it seems. MSD was allowed to withhold, or not present, some information that must certainly exist in their records, e.g. the ‘on-site addresses’ of service providers for MHES and SPES, as each Office would regularly refer some clients to such services. This would not happen by sending them to contact a ‘head office’. Also was MSD let off when it came to providing actual standard forms of ‘advice’ and ‘expectations’ communicated by its Advisors to health or medical practitioners, as Principal Health Advisor Dr Bratt must certainly hold such information in his own office, which can be considered to be a ‘centralised repository’ for such information. All that they did in the end was present a copy of an outdated ‘Guide to Designated Doctors’, from about 2008, of which the complainant and information requester already had a copy (obtained in 2011).

And of even greater concern is the fact, that the Ombudsman has again shown, that he is not interested in investigating the conduct of a senior Advisor to MSD, Dr David Bratt, despite of compelling evidence of his misinterpreting and misrepresentation of statistical and scientific reports, from which he picks what he sees fit (out of context), and into which he reads what he wants others (e.g. medical practitioners signing medical certificates) to believe and act upon.

Ombudsman Donnelly appears to have more faith in the responses and explanations given by MSD staff and their Chief Executives, rather than take more serious the information requests, and evidence, presented by ordinary individual information requesters and complainants. This again raises questions about the slogan ‘Fairness for All’ used by their Office.

We present all this information, so to leave it to the readers here, to make their own judgment on the quality of Ombudsman Donnelly’s responses and ‘opinions’ that he formed. We also present the OIA released information, which MSD provided at first on 26 Feb. 2015, and then over two and a half years later on 22 Nov. 2015, so that people have access to what really goes on at the Ministry and its offices all over New Zealand.

From the finally released data on ‘enrolments’ and ‘employment outcomes’ for the MHES and SPES, which is sufficient for that purpose, we can say with confidence, that the so called ‘trials’ were NOT the kind of ‘success’ that some had proclaimed they were. That does in particular apply to the MHES. It was a costly and risky experiment conducted on persons with ‘common’ or ‘moderate’ mental health conditions.

That has in the meantime been quietly admitted, and swept under the carpet by MSD, as some reports found under the following links show:

‘Back-to-work programme labelled a fail’, New Zealand Herald article, 17 Sept. 2015:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514141

Parliament’s Hansard with a question by Carmel Sepuloni, then Labour’s Spokesperson for Social Development, Question Time, 17 Sept. 2015:
https://www.parliament.nz/en/pb/hansard-debates/rhr/document/51HansS_20150917_00000477/sepuloni-carmel-oral-questions-questions-to-ministers

An OIA response by MSD, including an evaluation report on MHES, dated 23 Nov. 2016:
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/official-information-responses/2016/november/20161123-questions-re-work-to-wellness-services-and-mental-health-employment-services-va15546757.pdf

Info on a replacement ‘Work to Wellness’ service that MSD has apparently by now started:
https://www.gets.govt.nz/MSD/ExternalTenderDetails.htm?id=17378666

 

Post updated and finalised – 28 January 2018

 

Quest for Justice

 
 

An easier to read PDF copy of this post can be found via this link:
MSD Release OIA Info On Failed MHES Trials 3 Years Late, Only Upon Advice By The Ombudsman, Report, 28.01.18

Another post about ‘Designated Doctors’, to whom some references were made in the above report or ‘post’, may also interest the reader. It can be found via these links:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/10/designated-doctors-used-by-winz-msd-the-truth-about-them-post-upd-18-10-2016.pdf

HOW THE NEW ZEALAND OMBUDSMAN EFFECTIVELY PROVIDES COVER FOR THE HDC – AN INFORMATION REQUEST COMPLAINT CASE

HOW THE NEW ZEALAND OMBUDSMAN EFFECTIVELY PROVIDES COVER FOR THE HDC – AN INFORMATION REQUEST COMPLAINT CASE

 
 

A report on how the N.Z. Ombudsman has rebuffed an Official Information Act 1982 (OIA) complaint and offloaded a Privacy Act 1993 (PA) complaint against the Health and Disability Commissioner (HDC) – showing how slim chances requesters and complainants have to get information, transparency and accountability from the HDC!

 

Published: 21 November 2017

 
 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE OIA AND PA INFORMATION REQUESTS MADE TO THE HDC ON 19 OCT. 2015
PART 3 – THE HDC’S FIRST RESPONSE TO THE OIA AND PA REQUESTS
PART 4 – FURTHER OIA AND PA REQUESTS MADE TO THE HDC FROM 24 NOV. 2015 TO 15 FEB. 2016
PART 5 – THE HDC’S REFUSAL OF INFORMATION – AND BIZARRE DENIAL OF ALLEGED STAFF FAILURES OR MISCONDUCT
PART 6 – THE FIRST OIA AND PA COMPLAINT AGAINST THE HDC – MADE TO THE OFFICE OF OMBUDSMEN (09.03.16)
PART 7 – ANOTHER OIA AND PA REQUEST TO THE HDC OF 13 MARCH 2016
PART 8 – THE HDC’S RESPONSE TO THE INFORMATION REQUEST OF 13 MARCH 2016
PART 9 – THE SECOND OIA AND PA COMPLAINT AGAINST THE HDC – MADE TO THE OFFICE OF OMBUDSMEN (12.04.16)
PART 10 – SUNDRY PARALLEL PA REQUESTS TO THE MCNZ – AND PA AND OIA REQUESTS TO THE HDC
PART 11 – FURTHER CORRESPONDENCE WITH, AND EVIDENCE PROVIDED TO THE OFFICE OF OMBUDSMEN
PART 12 – THE OMBUDSMAN OFFICE’S REFERRAL OF THE PA COMPLAINT TO THE PRIVACY COMMISSIONER AND THE COMPLAINANT’S RESPONSE
PART 13 – THE OMBUDSMAN’S FIRST PROVISIONAL OPINION OF 9 JUNE 2017 AND THE COMPLAINANT’S RESPONSE
PART 14 – THE COMPLAINANT’S FURTHER SUBMISSIONS AND EVIDENCE
PART 15 – THE OMBUDSMAN’S FIRST FINAL OPINION OF 29 JUNE 2017
PART 16 – THE OMBUDSMAN’S SECOND PROVISIONAL OPINION OF 8 SEPT. 2017
PART 17 – THE COMPLAINANT’S SUBMISSIONS AND EVIDENCE IN RESPONSE TO THE SECOND PROVISIONAL OPINION
PART 18 – THE OMBUDSMAN’S SECOND FINAL OPINION OF 21 SEPT. 2017
PART 19 – CONCLUSION: ONE RULE FOR THE HDC, ANOTHER FOR THE PC AND MCNZ, AND LITTLE ‘RESOLUTION’ AND ‘FAIRNESS’ FOR A COMPLAINANT

 

Please note:
Where references are made to the Ombudsmen Act 1975, the version valid for the period covering the time of the complaint and its processing does apply!

 

A down-loadable PDF with the easy to read text version of this whole post (incl. hyperlinks):
How The N.Z. Ombudsman Effectively Provides Cover For The HDC, Report, Post, 28.11.17
(Note: If the links don’t work, go and check them online, please!)

 
 

PART 1 – INTRODUCTION

This report (and ‘post’) covers and presents very interesting, revealing correspondence and developments that occurred after an earlier complaint had been made to former Chief Ombudsman Beverley Wakem – against the Health and Disability Commissioner (HDC). That previous complaint and its outcome were already reported on in quite some detail in an earlier ‘post’ on ‘nzsocialjusticeblog2013’ under the following title and link:
‘THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME’
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

That particular complaint did bring to the attention of the then Ombudsman very questionable ‘complaints resolution’ practices by the HDC, by using ‘discretion’ to take no action, which appears to be a very frequent step for the HDC to take, in the case of many complaints filed with his Office. There are also two older posts found on this Blog, which cover the two complaints a complainant had made to the HDC, and they are found under these links:
https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

 

The new complaint made to the Office of Ombudsmen by the same complainant, based on unsatisfactory OIA and PA responses by the HDC

Extremely dissatisfied with the outcomes of those earlier well documented and well presented complaints, which he had made to two of New Zealand’s most senior so-called ‘watchdogs’, the complainant, who wishes to remain anonymous, followed up his earlier efforts to hold the HDC to account, by requesting further information under the Official Information Act 1982 (OIA) and the Privacy Act 1993 (PA).

Upon receiving some revealing new information with a first response (while other information was being withheld) from the HDC in late November 2015, the information requester and complainant made a number of follow up requests under the OIA and PA, which were left unanswered for months. After sending reminders, these requests were later replied to by the HDC’s Office with some rather unconvincing explanations, and with the continued withholding of certain specified information.

The requester asked the HDC for the release of three letters (besides of other information):
1. A letter dated 16 Aug. 2010, to which a Designated Doctor acting for Work and Income NZ (WINZ) had referred to in his letter to the HDC, dated 20 Sept. 2012, defending his actions as a doctor complained about;
2. a letter dated 29 January 2015, which contained complaint- and personal information of the requester, which he had in mid 2012 presented to the HDC, and which the then Deputy HDC had sent to the Medical Council of New Zealand (MCNZ);
3. a letter dated 4 June 2015, with which the MCNZ had replied to the information and matters referred by the former Deputy HDC to the MCNZ on 29 Jan. 2015.

Given the authors and/or recipients of the letters, the apparent types of letters, the likely covered topics, the contents, the relevance and the context of the correspondence, the requester considered that the release of that information was not only of his interest, but also in the public’s interest.

Furthermore did the requester ask the HDC for information on – and explanations for – an incorrect phone log, created around 11.39h on 9 Aug. 2011 by an Assessor at the HDC, which had not been released in response to a number of OIA and PA requests by the complainant over the years since 4 March 2012, until it was suddenly presented after 17 Nov. 2015.

The HDC repeatedly withheld the asked for letters pursuant to section 9(2)(a) OIA, and provided unsatisfactory, unconvincing answers re the incorrect, allegedly wrongly placed and only after a long delay released phone log. At first the HDC firmly refused making available the letter of 16 August 2010, even in redacted form, and later also the two other letters.

In the end the very disappointed information requester did on 9 March 2016 file a new complaint with the Office of the Ombudsmen, challenging the decision by the HDC to withhold that particular letter of 16 August 2010, which he had asked for, and also disputing the correctness of explanations by the HDC Office’s Associate Commissioner Katie Elkin – in a letter she wrote and signed 19 Feb. 2016. That was in relation to the controversial phone log of 9 Aug. 2011, kept in one of his HDC complaint files.

A further complaint matter was soon added to the same complaint after 12 April 2016, being the one about the two other letters of 29 Jan. and 4 June 2015, because the HDC also refused to make that further information available, again relying on section 9(2)(a) OIA.

As so often, it took the Ombudsmen’s Office well over a year to assess, investigate and ‘resolve’ the complaint, by initially providing ‘provisional opinions’, and later ‘final opinions’. But in the process they had at first also referred a part of the complaint (re the phone log) to the Office of the Privacy Commissioner (OPC, PC), as it was claimed that ‘personal information’ related complaints fell outside the ‘jurisdiction’ of the Ombudsmen.

Instead of providing overly extensive descriptions and explanations of the processes following the requests to the HDC, of the delays experienced and of the presentation, considerations and outcomes of the complaints made to the Ombudsmen, we will in this post keep this report as brief as possible. That said – it is inevitable that some extensive reading is required to understand and appreciate the still complex matters at issue.

The correspondence is mostly self explanatory, and the reader will understand the importance of the issues raised, the arguments presented and the sometimes bizarre, in our view partly unconvincing ‘opinions’ formed by the Ombudsman on this complaint matter under their reference 42xx2x.

All the relevant and significant correspondence will be made available in the form of PDF files containing the partly redacted scan copies of authentic documents, and of authentic text of letters sent to the ‘watchdogs’, which can be loaded by clicking links that are shown.

What should become very clear to the reader is the fact, that the Ombudsman handling this case appears to have made every effort to interpret and apply statute and other law in a manner, where this effectively offers a high degree of protection to the HDC, rather than assisting the requester and complainant in getting access to information, which would have offered more transparency in how the HDC operates.

The Ombudsmen and their employed investigators do at least at times seem to show insufficient commitment to seriously and robustly investigate complaints such as these. The impression given to the complainant – and many readers, is that the Ombudsman has effectively provided cover for the HDC, to protect him and his staff from serious challenges.

 

PART 2 – THE OIA AND PA INFORMATION REQUESTS MADE TO THE HDC ON 19 OCT. 2015

Determined to obtain all available information, which he may not have received before on two complaints he had made to the HDC, the requester and complainant did on 19 October 2015 send the following information request to the HDC Office:
HDC, C11HDCxxxxx, C12HDCxxxxx, O.I.A. +Priv. Act rqsts, new, anon, 19.10.15

The request for specified information in relation to earlier complaints ‘C11HDCxxxxx’ and ‘C12HDCxxxx’ was sent by email. It covered authentic copies of correspondence, reports, notes and transcripts, also in the form of phone logs, and other specified information, which had been added to, created for, exchanged and kept in his complaint file C11HDCxxxxx in the time between 8 and 16 August 2011. It also covered photo copies, printouts and so forth of written correspondence and attached documents received by the HDC from Dr. Dxxxx Xxxxxxx in relation to complaint C12HDCxxxxx, particularly such dated 20 Sept. 2012, in which a mention was made of a letter of 16 August 2010, which he also asked to be provided. He also sought an explanation why a letter by that same doctor, dated 22 Nov. 2012, had been made available with the Deputy HDC’s first decision on that complaint, and why the one dated 20 Sept. 2012 was not made available for nearly a year after that.

When the requester noticed that he had made a mistake with a date in that letter of request, he sent one follow up email in the early evening of 23 Oct. 2015, pointing out that the first HDC decision on complaint ‘C12HDCxxxxx’ was actually dated 24 April 2013, not 24 February 2013, as he had wrongly written under his request point ‘C’.

For the purpose of providing sufficient reference material, here is a scan copy of the redacted complaints decision letter by former Deputy HDC Theo Baker, dated 24 April 2013:
HDC complaint, WINZ Design. Dr, HDC’s 1st decsn, compl., hilit, anon, T. Baker, 24.04.2013.pdf:
HDC complaint, WINZ Design. Dr, HDC’s 1st decsn, compl., hilit, anon, T. Baker, 24.04.2013

 

PART 3 – THE HDC’S FIRST RESPONSE TO THE OIA AND PA REQUESTS

On 20th Nov. 2015 the requester received a letter by post, which was dated 17 Nov. 2015, from the HDC’s Principal Legal Advisor Helen Davidson, who provided the following response to his information requests (here partly redacted for privacy reasons):
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, anon, 17.11.15

Some of the information was provided without any apparent concern by the HDC’s Legal Advisor, particularly in the form of some documents relating to complaint C11HDCxxxxx. But other information was withheld by the Advisor, such as the one letter dated 16 Aug. 2010, referred to in a complained about doctor’s letter to the HDC of 20 September 2012. It was of special interest to the complainant, as he expected it would quite likely contain some kind of ‘guidance’ or references, which the former Deputy HDC used in deciding on his complaint C12HDCxxxxx. It appeared to be a letter that the former WINZ Designated Doctor Dxxxx Xxxxxxx considered of real relevance when he asserted, that a complaint made against him to the HDC, should instead rather be dealt with by a so called ‘Medical Appeals Board’. But it was withheld pursuant to section 9(2)(a) OIA.

The partly redacted scan copies of the two letters by that Designated Doctor to the HDC, which were in un-redacted form also released to the requester, can be found via these links:
HDC complaint, Design. Dr, WINZ Design. Dr reply + report to HDC, hilit, anon, 20.09.12
HDC complaint, Design. Dr, Dr’s ltr to HDC, defending conduct, anon, hilit, 22.11.2012

What the complainant would also find in the documents relating to his earlier complaint ‘C11HDCxxxxx, was a phone log for a phone call he had received from a Complaints Assessor at the HDC on 9 August 2011. That log contained some details that did not correspond with the actual contents of that phone conversation, of which he had himself kept a record, and which he still remembered. Also was there irritation about a ‘edit’ note at the bottom of that record, which raised further questions about the HDC and his staff.

An anonymised scan copy of that HDC ‘phone log’ is found via the links shown here:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, 09.08.11

 

PART 4 – FURTHER OIA AND PA REQUESTS MADE TO THE HDC FROM 24 NOV. 2015 TO 15 FEB. 2016

On 24 Nov. 2015 the requester and complainant wrote to the HDC again, stating in a letter sent by email that he saw good reasons to have the HDC release a copy of the so far withheld letter dated 16 Aug. 2010, which had been referred to by a doctor he had complained about. He considered that letter to be of significant relevance to his complaint C12HDCxxxxx, and to how a view and decision had been formed on it. He commented that the doctor who had referred to that letter appeared to have been under the impression that it was relevant to the complaint made against him. Also did the requester stress there was a strong public interest in sufficient transparency, as to what important information the HDC uses when considering complaints. The requester considered that in order to address any privacy concerns, the personal details of other persons could be blackened or whitened out.

He also sought clarifications re the conflicting, incorrect information in that now released phone log for a call a HDC Assessor had made to him at about 11.39am on 9 August 2011. He wrote that the HDC staff member appeared to have later altered the phone record, possibly to protect himself from legal challenges to his earlier comments – or the contents of the phone conversation he had with the complainant. The Assessor had repeatedly asserted that emails which the complainant had sent were ‘freezing’ the HDC Office’s computer, while other email evidence showed that another staff member (Kerry Norman, Executive Assistant) had confirmed that all emails of the complainant in the complaint case C11HDCxxxxx had been received and internally been passed on. The requester and complainant pointed out, that he was never provided this log upon the repeated earlier OIA and PA requests he had made.

A redacted copy of the requester’s further request is found by clicking this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, 24.11.15

The HDC’s earlier OIA and PA response to the complainant, dated 23 March 2012 (one of a number of requests that followed), can be found as redacted scan copy via this link:
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, 23.03.2012

The complainant’s earlier OIA and PA request, dated 04 March 2012, asking for a wide scope of information to be provided by the HDC, can be found via this link:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, O.I.A. + Priv. Act rqst, anon, 04.03.2012

On 25 Nov. 2015 the requester sent one follow up email, pointing to a minor mistake in his letter (the 2nd section on page 1, as he put in the wrong year ‘2015’ in a date, which should have read ‘2012’). A corrected letter was then also sent to the HDC by post.

As there was no response forthcoming from the HDC Office, the requester and complainant wrote to the HDC yet again – by email and attached letter, dated 15 Dec. 2015. That letter was basically nothing more than a reminder of the request letter dated 24 Nov. 2015.

The complainant’s and requester’s redacted letter dated 15 Dec. 2015 is found via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, ltr, 15.12.15

An unnamed staff member at the HDC Office responded with a brief email on 16 Dec. 2015, confirming receipt of the last letters (since 24 Nov.) of the requester, and promising a reply to them once they had had ‘a chance to consider’ the matters raised. The person wrote: “We note this is likely to be sometime in January 2016”.

But after waiting another two months, and having received no reply at all from the HDC Office, the complainant and information requester started losing his patience, so he wrote yet another letter to the HDC and their Principal Legal Advisor, dated 15 Feb. 2016. Once again he reminded the HDC staff of his earlier requests, and he mentioned the brief response received from their Office by email on 16 Dec. 2015. He sent it off by email, which carried a PDF file with the formal letter, again seeking the same information he had repeatedly asked for on 24 Nov. and 15 Dec. 2015.

The partly anonymised letter by the requester dated 15 Feb. 2016 is found via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, new ltr, 15.02.16

Besides of reiterating what he had written in earlier letters, the requester expressed his frustration and his dissatisfaction with the delay in responding. Hence he did now write that he would expect a written reply by 29 Feb. 2016.

 

PART 5 – THE HDC’S REFUSAL OF INFORMATION – AND BIZARRE DENIAL OF ALLEGED STAFF FAILURES OR MISCONDUCT

The complainant and information requester did on 22 Feb. 2016 suddenly get a response from the HDC to his recent request letters in the post, which was dated 19 Feb. 2016.

Now it was the Associate Commissioner, in charge of ‘Legal and Strategic Relations’, Dr Katie Elkin, who responded to the complainant, like she had done on some earlier occasions. Dr Elkin upheld the HDC Office’s earlier decision to withhold a letter dated 16 Aug. 2010 according to section 9(2)(a) OIA, to which a complained about doctor had referred during the processing of an earlier complaint under ref. C12HDCxxxxx.

She quoted their Principal Legal Advisor Helen Davidson and what she wrote in her earlier letter dated 17 Nov. 2015. Ms Elkin also wrote: “The additional information contained in this document is such that the privacy interests of other individuals cannot be addressed in the way you suggest.” She added: “Should you have any outstanding concerns relating to the decision to withhold the information, these can be raised with the Office of the Ombudsmen.”

On the complainant’s comments regarding the file notes in the phone log – made by the HDC Assessor on 9 Aug. 2011, and ‘edited’ later, Ms Elkin commented the following:
“As is evident from the file note, this was originally lodged under a previous complaint you had made to this Office, but was loaded under C11HDCxxxxx in March 2012. I understand that it is for this reason that the date “6 March 2012” is present on the file note; this was the date on which a file note was transferred to file C11HDCxxxxx once it became apparent that the file note had been placed on an older file. While it is clear that the file note was moved to the appropriate file, there is nothing to indicate that it has been improperly altered by Mr Xxxxxx as you allege.”

She also commented further down in her letter: “I note that the file note did not fall within the ambit of previous information requests you have made to this Office, with the exception of your request of 4 March 2012. Unfortunately it was not evident at that point that the file note in question had been placed on the file for a previous complaint you had made.”

Ms Elkin’s letter can be found via these links:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, 19.02.16
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, hilit, 19.02.16

The complainant was not convinced by any of the explanations that were given to him, as they were not logical and appeared to rather be attempts to obfuscate or to simply refuse proper answers. This will become apparent from further correspondence that we have in relation to this complex matter.

 

PART 6 – THE FIRST OIA AND PA COMPLAINT AGAINST THE HDC – MADE TO THE OFFICE OF OMBUDSMEN (09.03.16)

Consequently the information requester, and again turned complainant, wrote a formal complaint to the Office of Ombudsmen, in order to seek a review of the decisions the HDC Office’s Legal Advisors and Associate Commissioner had made on his repeated requests for information and the clarification of disputed matters. He asked for the Ombudsman’s urgent assistance in a matter that was also in the public interest.

The authentic text of the complainant’s letter to the Ombudsmen, dated 9 March 2016, with some redactions, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA PA rqsts, info withheld, ltr, anon, 09.03.2016

After presenting his detailed complaint, by providing a background to the matters, and then pointing out the relevant issues, the complainant asked the Ombudsman to assist by asking the HDC to present the sought information and further explanations to his Office, and to then assess all details and make a recommendation that it be released to him as complainant. Personal details of other individuals could be concealed, he wrote. The letter of 16 Aug. 2010, referred to by doctor Xxxxxxx, was relevant to the handling and decision forming of his complaint under the HDC’s reference C12HDCxxxx, he considered. As the complainant he would have a special personal interest in the contents and significance of the letter, he wrote. He also mentioned how the doctor he once complained about had referred to that letter in his email report to the HDC of 20 Sept. 2012, and how he appeared to consider it of relevance to the complaint made against him. The complainant considered also that the letter dated 16 Aug. 2010 would be of public interest. The public would have an interest in what information the HDC used to base its decisions on, he added. It appeared to the complainant that the letter contained some kind of guideline information the HDC used, for making decisions on certain complaints, like such about third party medical assessors. A reasonable degree of transparency and accountability should be expected of the HDC, he wrote.

As for Ms Elkin’s comments re the phone log record, the complainant made clear that he was unconvinced by these, as they made no sense. He pointed out that an information request he made on 4 March 2012 was not responded to until 23 March 2012, and that the information must have been available upon the request, prior to collating the later sent information. He also considered that two other OIA and PA requests he had made to the HDC up to Oct. 2013 should have covered and included the same information.

He considered the log was withheld earlier for ulterior motives. He wrote that it was scandalous that the HDC only presented this information to him in late Nov. 2015, years later.

Substantial evidence (19 to 20 attached PDF files) was provided with his complaint, including earlier correspondence with the HDC Office and some copies of documents received earlier, and also official information he obtained from the Ministry of Social Development (MSD) on the actual jurisdiction and responsibilities of so-called ‘Medical Appeals Boards’.

The complainant did on 11 April 2016 receive an initial response from the Office of Ombudsmen by email, with an attached letter signed on behalf of Ombudsman Leo Donnelly, which can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqst, refusal, delay, ltr, anon, 11.04.16

Here is just some of the relevant evidence the complainant had sent the Ombudsmen with his letter, some again in partly redacted, anonymised form, found via these links:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
(see attachment 17)
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, anon, 24.06.2013
(see also attachment 19)
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, new, anon, 07.10.2013
(see also attachment 20)
Medical Appeals Board – Board Members information pack for release, July 2013
(see attachment 9)
MSD, Medical Appeal Board, Resource for Bd Members, manual, undated, rec’d Jan. 2012
(see attachment 10);
(some of the other files sent are in part already available via links provided further above).

 

PART 7 – ANOTHER OIA AND PA REQUEST TO THE HDC OF 13 MARCH 2016

As the information requester and complainant had remaining other concerns about the HDC and their handling of his complaints, and also about his recent information requests, he decided to follow matters up with a new OIA and PA request dated 13 March 2016.

He requested information on whether the HDC Office held any photos of him, as he was once photographed when holding a kind of picket or protest outside the entrance to the HDC’s Office at 45 Queen Street in Auckland in September 2013. He believed that it was an HDC staff member, who took a photo of him, and that it must have been filed away.

The complainant also asked for information on whether at any time since he filed the complaint under the HDC’s reference C12HDCxxxxx any information had been exchanged by the HDC staff about his complaint, and any related matters, with any persons working for the Ministry of Social Development (MSD) and/or the Medical Council (of New Zealand).

A PDF with the authentic, but partly anonymised request letter is found via this link:
HDC, Complaint, C12HDCxxxx, OIA + PA rqsts, complainant rqst ltr, anon, 13.03.16

 

PART 8 – THE HDC’S RESPONSE TO THE INFORMATION REQUEST OF 13 MARCH 2016

With a letter dated 07 April 2016 the new Senior Legal Advisor to the HDC, Sxxxxxxx Xxxxx, responded with the following information. She wrote that she was unable to locate any photos of the complainant on the complaint files.

Re complaint C12HDCxxxxx she informed the information requester that:
“HDC wrote to MCNZ on 29 January 2015 enclosing a copy of your complaint, Dr Hxxxxxx’s response to your complaint and the decision letter relating to your complaint. MCNZ wrote to HDC on 4 June 2015 stating that MCNZ’s Complaints Triage Team had considered the information provided by HDC and other information and decided to take no further action on the concerns raised. Those letters, dated 29 January 2015 and 4 June 2015, are withheld pursuant to section 9(2)(a) of the Official Information Act in order to protect Dr Hxxxxxx’s privacy.”

The complainant and information requester was advised that he could seek a review of this decision from the Office of the Ombudsman or the Privacy Commissioner.

A PDF with the scan copy containing the authentic, partly anonymised text of this response by the HDC can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC ltr to complainant, OIA, PA reply, anon, 07.04.16

 

PART 9 – THE SECOND OIA AND PA COMPLAINT AGAINST THE HDC – MADE TO THE OFFICE OF OMBUDSMEN (12.04.16)

So the complainant faced yet another situation, where he was refused access to information that he also considered to be ‘personal’, under section 9(2)(a) of the OIA. He therefore saw a need to write again to the Office of Ombudsmen, to raise the matter with them. He sent a complaint letter dated 12 April 2016 to the Ombudsmen, describing the additional issue he now had with the HDC. The requester and complainant stated that the HDC had no reason to withhold the asked for letters dated 29 Jan. and 4 June 2015, as the identity of the named doctor was already known to him, in relation to the complaint C12HDCxxxxx. He expressed his personal interest in the letters, as they related to his complaint matter, and he was also having an interest in the consultation between the MCNZ and HDC on matters he had raised.

He also questioned why the HDC would pass on information about him and his complaint to the MCNZ well over a year after they closed his file, and to do so without notifying him. He raised issues with only parts of his complaints information having been sent to the MCNZ, as this made it impossible for the Complaints Triage Team of the MCNZ to make a fair and balanced assessment of the concerns and issues that he raised with the HDC mid 2012.

The complainant also wrote that there was growing public concern about how the HDC handled complaints, given media reports, and that affected persons had felt very dissatisfied and even angry with past HDC decisions on complaints. Hence there was a growing interest in how the HDC operates, communicates and consults with certain medical registration authorities, agencies and other stakeholders and how complaints were being ‘resolved’.

Hence he asked the Ombudsman to make a recommendation to the HDC to release the requested correspondence between the HDC and MCNZ, in particular the letters dated 29 Jan. and 4 June 2015. He considered that according to section 9(1) OIA there was sufficient public interest for this to be done. Also did the complainant refer to Principle 6 provisions in the Privacy Act 1993 to have the HDC release his personal information. Last not least the complainant suggested that this matter be added to the new complaint 42xx2x. Relevant further documents were attached to the email carrying his letter in PDF file form.

The authentic complaint letter, partly redacted, dated 12 April 2016, is found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, further ltr, anon, 12.04.16

By way of an email, received by the complaint at 13.08pm on 13 April 2016, the Ombudsmen Office would confirm receipt of his further letter dated 12 April 2016, and informed him, that the matter had been added to the same complaint under the Ombudsman’s reference 42xx2x.

 

PART 10 – SUNDRY PARALLEL PA REQUESTS TO THE MCNZ – AND PA AND OIA REQUESTS TO THE HDC

The complainant had little faith in getting any further information of relevance to the above matters from the HDC Office, and he considered that he may perhaps have a bit more success with requesting information from the Medical Council, under the provisions in the PA.

So on 15 April 2016 he wrote to the Chief Executive of the MCNZ, and referred to the limited information he had received from the HDC’s Senior Legal Advisor with a letter dated 7 April 2016. Providing some information on the letters that were mentioned, and the complaint he had filed years before with the HDC, he requested confirmation of whether personal information on him was being held, and to have the two letters dated 29 Jan. and 4 June 2015 made available to him – pursuant to Principle 6 of the PA.

As there was no response forthcoming, he did on 18 May 2016 (by parcel post) send a traceable letter dated 17 May 2016 to the Chief Executive of the Council, requesting the same kind of personal information the MCNZ may hold on him, also mentioning his letter roughly a month earlier.

 

Further information received from the HDC

On 9 June 2016 the complainant also sent another email to the HDC, with a letter in its attachment, requesting under the OIA and/or the PA a list of the individual documents (including correspondence) that were then kept on his file C12HDCxxxxx, and that were then sent to the MCNZ with the letter dated 29 Jan. 2015. He also asked for what ‘other information’ had been referred to the MCNZ.

He also mentioned, that the HDC had in his view acted in breach of the HDC Act (s 34(3)), not notifying him of the complaint information referral.

On 11 July 2016 the requester and complainant received a further letter dated 7 July 2016 from the HDC’s Senior Legal Advisor Sxxxxxxx Xxxxx, listing the letters that had been sent to the MCNZ on 29 Jan. 2015. These included his ‘complaint dated 30 June 2012’, the doctor’s responses of 20 Sept. and 22 Nov. 2012 and the HDC’s decision dated 24 April 2013.

The Advisor refused the request for ‘other information’ pursuant to section 9(2)(a) OIA. She also wrote: “As your complaint was not referred pursuant to section 34 of the Health and Disability Commissioner Act 1994, HDC did not inform you of our correspondence with MCNZ.”

The authentic scan copy of this letter with some bits redacted is found via this link:
HDC, C12HDCxxxxx, PA + OIA rqsts, MCNZ info referral, list of docs, reply, 07.07.16

There would be some later correspondence with the HDC Office, which would go beyond of this complaint matter and its handling by the Ombudsmen’s Office, so we will not present it here, as it only has some limited relevance. It must be said though, that requests were made to the HDC to have wrongly recorded, misrepresented and thus incorrect information sent to the MCNZ corrected. That was never done as the requester and complainant had requested, under the PA. It would later be considered with a separate complaint to the Privacy Commissioner.

 

Information made available by the MCNZ

The complainant did after long delays though receive some documented information from the Medical Council, which they kept on file, that contained his personal information, but also that of other persons. Hence they only made available redacted information that was directly relevant to the complainant and information requester.

Under the PA the Council’s Team Manager – Professional Standards, provided the information requester with the redacted letter dated 29 Jan. 2015, which former Deputy HDC Theo Baker had sent to the Council’s Chairperson and Complaints Triage Team for review. Also attached was an ‘Appendix’ containing partly incorrect, misleading information about the complainant, and some documentation that had been sent with the referral letter from the HDC. What was also evident from the documentation received now was the fact that the doctor complained about, had been copied in on this referral per ‘cc’, while the complainant was never informed of this action. The complainant was more than disappointed by what he had now found out about the HDC and MCNZ exchanging only selected information without a complainant’s knowledge.

The information release by the MCNZ to the complainant, dated 09 June 2016, with a part of the whole set of redacted documents that include the HDC’s letter of 29 Jan. 2015 to the MCNZ, and an Appendix (more was released, but is not that relevant to this complaint):
Ombudsman, Complaint, 42xx2x, HDC, MCNZ pt info release, HDC ltr, anon, 09.06.16

Upon the involvement of the Privacy Commissioner, the complainant would later achieve that the MCNZ would also release the second letter he had requested, the one dated 4 June 2015, which the Council had sent to the HDC in response to their complaint information referral of 29 Jan 2015.

This later information release by the MCNZ, dated 01 Feb. 2017, including the redacted response letter to the HDC of 4 June 2015, can be found via this link:
MCNZ, PA rqst by complainant, info release, ltr to HDC of 04.06.15, anon, sent 01.02.17

The newly received information was of course of value and use to the complainant, but while he received it over time, he chose to let the Ombudsman investigation run its course, to see what their decision would be in regards to the action or inaction of the HDC in this matter.

 

PART 11 – FURTHER CORRESPONDENCE WITH, AND EVIDENCE PROVIDED TO, THE OFFICE OF OMBUDSMEN

Upon sending in his first complaint letter to the Office of Ombudsmen, the complainant did on 11 April initially only get a brief email with an attached acknowledgment letter, dated 11 April 2016, confirming that an initial assessment had been made of his complaint. It was planned to be allocated to an investigator, but the writer warned, that due to the large volume of complaints their Office was receiving, there would be delays in progressing some complaints. The writer wrote on behalf of Ombudsman Leo Donnelly, that a member of their Auckland Office would contact the complainant, ‘when there is progress to report’.

An authentic scan copy of the Office of Ombudsmen’s first response, dated 11 April 2016, and partly redacted, is found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqst, refusal, delay, ltr, anon, 11.04.16

A further email was received by the complaint at 13.08pm on 13 April 2016, confirming receipt of his further letter dated 12 April 2016 (see ‘PART 9’ above), and informed him, the matter had been added to the same complaint under the Ombudsman’s reference 42xx2x.

 

Delayed processing of the complaint/s

It would take further significant delays in the processing of this complaint, and it would not be any earlier than 8 March 2017, when the complainant did finally receive another email in this complaint matter, with an attached PDF letter from Senior Investigator Fxxxx Mxxxxx. It provided him with an update on the matter, informed him of the investigator assisting with the case, and briefly listed the points at issue, i.e. the letters dated 16 Aug. 2010, 29 Jan. and 4 June 2015 to be made available by the HDC, and somewhat incorrectly interpreted, the additional issue with the phone log of 9 Aug. 2011.

The Senior Investigator also wrote that she had written to the HDC, Mr Anthony Hill, and asked him to provide the requested information and a report to their Ombudsmen’s Office.

The authentic scan copy of that letter to the complainant, partly anonymised, and dated 8 March 2017, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, reply, anon, 08.03.17

A further email from the assisting Investigator Cxxxx Lxxxx-Xxxxx at the Auckland Office of the Ombudsmen was received by the complainant on 15 May 2017, which simply informed him that the Ombudsman had now received a report from the HDC together with copies of the information at issue. The material would be considered, she wrote.

After midday on 16 May 2017 the same Investigator wrote to the complainant again, asking the complainant about the letter dated 16 August 2010, that had been referred to by a doctor that examined him and whom he had complained about to the HDC. She asked whether the complainant could provide them with a copy of that letter by the doctor to the HDC, dated 20 Sept. 2012, in which he had referred to that particular other letter.

The complainant sent her a copy of that letter on the same day’s afternoon, and the whole email correspondence from 16 May 2017, partly anonymised, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, email corresp., anon, 16.05.17

The following link shows again a redacted scan copy of the Designated Doctor’s email letter and his brief, disputed, flawed report, that he sent to the HDC Office on 20 Sept. 2012:
HDC complaint, Design. Dr, WINZ Design. Dr reply + report to HDC, hilit, anon, 20.09.12

 

PART 12 – THE OMBUDSMAN OFFICE’S REFERRAL OF THE PA COMPLAINT TO THE PRIVACY COMMISSIONER AND THE COMPLAINANTS RESPONSE

On 30 May 2017 the complainant received an email with an attached letter from the Office of Ombudsmen, which was from the Manager at their Auckland Office, Mr Sxxxxxx, who is in charge of ‘Investigations and Resolution’. He informed the complainant, that parts of his complaint relating to the phone log dated 9 August 2011 would need to be referred to the OPC. He explained this with their Office only having authority to deal with OIA information complaints. Complaints related to requests for personal information must be considered under the PA, he explained, and hence they had referred that part of his complaint to the PC. He wrote: “Where a complaint relates to a matter that is more properly considered in terms of the PA, there is a legal duty to refer it to the Privacy Commissioner”. Mr Sxxxxxx provided the contact details for the OPC.

In respect of ‘storage of the information at issue’, the Manager of the Auckland Ombudsmen’s Office referred the complainant to the Chief Archivist, who had the responsibility to ensure that the HDC would comply with the provisions of the Public Records Act 2005. Hence he also provided the address and contact details for that Office, suggesting the complainant should take his concerns about the phone log issue there.

Lastly the Manager wrote that finally ‘good progress’ was being made in relation to the remaining complaint aspects.

The partly anonymised Auckland Ombudsmen Office Manager’s letter of 30 May 2017 is found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, pt referral, PC, anon, 30.05.17

 

The complainant’s response re the partial complaint referral

This was not what the complainant had expected; it did once again appear like the Ombudsmen were ‘off-loading’ parts of his complaint, as they did not want to deal with it.

Hence on 6 June 2017, the complainant wrote back to the Ombudsman and his Auckland Office’s Manager, responding to the referral of parts of his complaint(s). While he showed some understanding for having the complaint aspects about ‘personal information issues’ referred to the PC, he expressed his concerns about the Manager’s view, that particular other issues relating to the phone log could best be addressed by the Chief Archivist. He noted the Manager’s reference to the ‘storage’ issue.

He again pointed to the fact that there had been an extremely long delay in the HDC Office making the phone log of 9 Aug. 2011 available (over 2 and a half years after first requested), but stressed also, that the author of that log had told him something rather different in the phone conversation, than what he had recorded and apparently later edited in that log. He considered the HDC’s Associate Commissioner’s (Ms Elkin’s) explanations in her letter of 19 Feb. 2016, for the late release of the log, re the ‘edit’ note, and other related actions and events, as not being credible. He pointed to evidence he had attached to his letter, and he considered that this was a matter involving very unprofessional conduct, dishonesty and serious breach of duty and more, by an HDC staff member. Once again he explained that it was simply not true, that his emails, which he sent to the HDC Office with a complaint on 8 August 2011, did ‘freeze’ the HDC computer system. He attached the documented email evidence to his letter, showing all emails had been received by the HDC and passed on internally. He sent his email with this new letter and the attachments off on the same day.

So the complainant considered that these issues were not just matters that needed to be dealt with under the PA and Public Records Act, but that the Ombudsmen Office itself should also feel responsible for them to be investigated and addressed. He lastly asked that his letter, and previous correspondence in this matter, should also be sent to the Privacy Commissioner for consideration.

An authentic text copy of the letter sent by the complainant to the Auckland Ombudsmen Office, dated 06 June 2017, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, new complainant ltr, anon, 06.06.17

Here are links to the types of evidence the complainant had attached to his email/s:
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, email, thanks f. all mails confrmd, hillit, 16.46h, 08.08.11
HDC complaint, WDHB counsellor, complt email 30, copy, anon, hilit, 04.11h, 08.08.11
HDC complaint, WDHB counsellor, email, rqst f. confirmed receipt, 15.09h, 08.08.11

Here again, a scan copy with the partly redacted phone log of 9 Aug. 2011, with notes:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11

 

Further correspondence with the Auckland Ombudsmen’s Office

The assisting Investigator at the Auckland Ombudsmen’s Office did at 14.04h on 9 June 2017 confirm by email the receipt of that correspondence sent by the complainant.

At 15.50h on 17 June 2017 the complainant wrote again by email to the Manager for Investigations and Resolution at the Auckland Ombudsmen’s Office, also in relation to his decision to refer a part of his complaint/s to the Privacy Commissioner. He informed the Manager of a response he had now received from the Office of the Privacy Commissioner, about which he was ‘deeply disappointed’.

He provided Mr Sxxxxxx and the Ombudsman with a copy of an email letter from an ‘Enquiries Manager’ at the Office of the Privacy Commissioner, dated 16 June 2017, with which he had been informed that his complaint had only been treated as an ‘enquiry’, and that it was considered that it would not even be appropriate to investigate the matter in 2017.

It appeared the OPC staff had simply accepted the explanations given by the HDC’s Associate Commissioner Dr Elkin in relation to the phone log in question, and her ‘apology’ to the complainant that it had not been provided earlier. The evidence presented by him as complainant (initially to the Ombudsmen’s Office) appeared to have largely been ignored. It appeared to the complainant that the Ombudsmen’s Office may not even have provided the OPC with all relevant correspondence and evidence, as the decision was so poorly explained and not backed up. The ‘Enquiries Manager’ at the OPC even wrote that their Office would ‘not have jurisdiction to investigate the matter’. This was most bizarre and lacked any sense.

The complainant also attached his response to the OPC, dated 17 June 2017, to the new email to the Ombudsman’s Office, in which he expressed his disagreement with the OPC’s decision. He provided yet further explanations and evidence, and questioned why the PC now considered they ‘do not have jurisdiction to investigate the matter’. With that letter to the OPC, the complainant did now also request information under the PA from the PC, including all correspondence received from the Ombudsmen’s Office, internal file notes, and so forth.

The partly redacted email sent by the complainant to the Office of Ombudsmen in Auckland, dated 17 June 2017, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, further complainant email, 17.06.17

The partly redacted email letter received by the complainant from the OPC on 16 June 2017, from an ‘Enquiries Officer’, announcing their ‘considered’ decision on the complaint referred to them by the Ombudsman, can be found via this link:
Priv. Cmsnr, ENQ-12xxx, HDC OIA + PA complaint, ref. by Ombudsman, dec., anon, 16.06.17

The authentic text of the complainant’s letter to the OPC, in response to their decision not to investigate the complaint, now under ENQ-12xxx, dated 17 June 2017 is found here:
Priv. Cmsnr, ENQ-12xxx, HDC, PA complt, refd by Ombudsman, reply to decn, anon, 17.06.17

Just before midday on 27 June 2017 the assisting Investigator in this complaint matter based at the Auckland Ombudsmen’s Office wrote back to the complainant, acknowledging his last email from above, and commented that his concerns had been conveyed to Mr Sxxxxxx, who would respond in due course.

At 20.52h on 27 June 2017 the complainant would then write back to the same Investigator and Mr Sxxxxxx, thanking for the update, and expressing his view, that it appeared the OPC did not get all relevant letters he had sent to the Ombudsmen’s Office in relation to the phone log issue. He attached a further letter which he had sent to the OPC, dated 17 June 2017, which had been resent to that Office, as a date in relation to a letter was wrong in the earlier one he sent.

With an email of 15.46h, 7 July 2017, an unnamed sender at the Office of Ombudsmen sent the complainant an email with the final confirmation that the part of his complaint, relating to the incorrect and for years withheld phone log of 9 Aug. 2011, was being referred to the Privacy Commissioner. A letter signed by Mr Sxxxxxx was attached.

Mr Sxxxxxx referred to the complainant’s earlier emails (and letters) dated 6, 17 and 27 June 2017, and claimed he had ‘reviewed’ the ‘emails and attachments’. He wrote that he would not be taking any further action in response. He asserted that the complaint about the phone log was about personal information, and would therefore have to be dealt with by the PC under the PA. He even wrote: “An Ombudsman does not have jurisdiction to consider complaints about inaccuracies in personal information about individuals or delays in responding to requests for such information.” Even when acknowledging that the complaint has asserted that the author of the log had ‘falsified’ it and deliberately withheld it, the Manager for Investigations and Resolution considered this was a matter for the PC to deal with.

Regarding the complainants new issues with the Privacy Commissioner, or rather their ‘Enquiries Manager’, the Manager wrote that the Ombudsmen’s Office had forwarded documents ‘relevant’ to the complaint about the phone log to the OPC on 30 May 2017. Should the complainant wish the OPC to have correspondence he had prepared subsequent to that time, then he would need to write directly to the OPC, he wrote.

He again referred the complainant to the Chief Archivist to have any issues regarding the HDC’s poor record keeping and so addressed. He closed his letter with the usual phrases, and added: “Any future correspondence from you regarding HDC’s phone log of 9 August 2011 will be read and placed on file but not responded to unless it raises new and separate issues”.

The Auckland Ombudsmen’s Office Manager’s letter dated 7 July 2017, in slightly redacted form, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, confirmd pt referral, anon, 07.07.17

 

Author’s own comments:

And here we go again, the Manager, in charge of ‘Investigations and Resolution’ at the Ombudsmen’s Auckland Office simply sweeps all the communicated concerns by the complainant aside, as he is not interested in his further evidence and arguments, and simply covers for the HDC and his staff, who will not wish to have anybody seriously investigate the repeatedly raised matters. Allegations of potential dishonesty and misconduct by an HDC staff member (e. g. the Assessor) appear not to be taken seriously, and instead, the matter is simply referred on to the OPC, so it is off the Ombudsmen’s backlog. That is certainly one way of ‘dealing’ with a pile of complaints that built up over recent years, due to under-funding of the Ombudsmen’s Office, and possibly other reasons.

 

PART 13 – THE OMBUDSMAN’S FIRST PROVISIONAL OPINION OF 9 JUNE 2017 AND THE COMPLAINANT’S RESPONSE

Only an hour and a half later, after receiving an email from the Investigator at 14.04h, which confirmed the receipt of the complainant’s email and letter of 6 June 2017 (see above), the complainant did on 9 June 2017 receive another email from an unnamed person at the Office of Ombudsmen. He or she sent him an attached PDF file with a letter from Ombudsman Leo Donnelly, presenting his ‘provisional opinion’ on one remaining part of the complaint matter. This related to the complaint about the requested letter dated 16 Aug. 2010, which the HDC had withheld from the complainant.

Mr Donnelly wrote, having ‘reviewed’ an un-redacted copy of the letter, and having consulted with the Privacy Commissioner, he accepted that withholding the letter was necessary to protect the privacy of natural persons, and that section 9(2)(a) of the OIA applied. He wrote that he had pursuant to section 9(1) of the OIA also considered whether there were was a ‘countervailing public interest’ justifying the release of the letter. While he accepted there was a public interest in transparency in the HDC’s decision making, he referred to what the HDC had previously written about that letter, and he also accepted that the HDC’s advice to the complainant on the contents of that letter was ‘correct’.

He considered that there was no over-riding public interest in having the remainder of the letter released. He appeared to agree with the HDC, that the contents of that letter was such, that it could also not be provided in redacted form. He concluded that the HDC was entitled to refuse the complainant’s request for the letter of 16 August 2016, to which a doctor had referred in his letter to the HDC (dated 20 Sept. 2012).

The complainant was invited to respond to his provisional opinion by 22 June 2017. Already in the early part of his letter, the Ombudsman had informed the complainant, that the other investigation in relation to his request for letters dated 29 Jan. and 4 June 2015 was ongoing.

The authentic scan copy of Leo Donnelly’s letter dated 9 June 2017, with anonymised parts, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, pt prov. opinion, anon, 09.06.17

 

PART 14 – THE COMPLAINANT’S FURTHER SUBMISSIONS AND EVIDENCE

Already on 13 June 2017 the complainant responded to the provisional opinion by Ombudsman Donnelly. He sent in two emails, the second email having only one extra attachment to it, which was meant to replace one, sent earlier, which was not the correct one.

In his letter to the Ombudsman, dated 13 June, the complainant wrote that he would not retract from the concerns and the arguments he presented in earlier correspondence in relation to seeking the HDC’s release of the letter of 16 Aug. 2010, with personal details of other individuals blackened or whitened out.

With his new letter he presented his remaining plus additional concerns, and restated the interests that he and the wider public should have in the release of that letter. He wrote that the letter was apparently of some relevance to the HDC when considering a decision on his complaint C12HDCxxxxx. Also did the reason that the former Deputy HDC Theo Baker gave, for not needing to investigate the complaint C12HDCxxxx (see her letter of 24 April 2013), resemble the considerations that the complained about doctor appeared to make, when referring to the letter of 16 Aug. 2016, so he wrote. Therefore the HDC should feel compelled to provide the transparency that must be expected, he commented.

Upon quoting parts of the provisional opinion of the Ombudsman, the complainant commented on the, in his view, attempted rebuttal by the HDC regarding the letter dated 16 Aug. 2016. He referred to the comments made by the Principal Legal Advisor of the HDC in her letter of 17 Nov. 2015, and he also quoted Associate Commissioner Katie Elkin, out of her letter dated 19 Feb. 2016.

He then presented some presumptions re who may actually be named in that letter, and what it may actually contain. The complainant believed a person holding a higher office may be mentioned. He also alleged that there was a form of ‘collaboration’ between the Ministry of Social Development (MSD), i.e. their Principal Health Advisor, and the HDC. The complainant pointed to an online document found via the web, which contained information that was indicative of this (see this link and slide 23, and also slide 16 re other matters of concern):
http://www.gpcme.co.nz/pdf/2014%20North/Sat_Room6_1400_Bratt%20DD%20Training%20Workshop%20GP%20CME%202014.pdf

Pointing to certain evidence that showed that Dr Bratt, the Principal Health Advisor at MSD, had made repeated efforts to influence Designated Doctors, and medical professionals in general, the complainant also alleged, that he had made efforts to stop potential complainants from filing complaints with the HDC.

He also presented the following evidence from an article in the New Zealand Medical Journal issue of 20 Nov. 2015, which shows how MSD’s Dr Bratt had used misrepresented information, based on wrongly interpreted statistical and other reports, to influence doctors:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729
https://www.nzma.org.nz/__data/assets/pdf_file/0005/45905/Purdie-1874FINAL1425.pdf

The complainant again disputed assertions made by the former Deputy HDC that concerns he had raised in a complaint under ref. C12HDCxxxxx were best dealt with by a ‘Medical Appeals Board’ of WINZ. Expressing remaining concerns about the Office of the Ombudsmen supporting the HDC in withholding the letter, the complainant argued, that “in order to get a better understanding and appreciation of the HDC’s complaint handling practices and the guidelines their Office follows, it should for that reason alone be fair and reasonable to release that letter of 16 August 2016 in the requested redacted form.”

He added that he had suffered immensely as a consequence of a so-called Designated Doctor treating him wrongly and inappropriately while conducting an examination for WINZ. Some further evidence that was deemed relevant was again attached to the letter, for the Ombudsman to consider, together with the complainant’s concerns.

The complainant asked that the Ombudsman advise the HDC to release the letter, as in his words: “It should not be permitted that persons acting in their important, high level professional capacity are allowed to hide behind the privacy law when making potentially questionable statements or decisions on complaint handling processes or procedures”. While he expected the release of a redacted copy, concealing personal information of other individuals such as complainants, he had earlier also indicated, that in his view certain high level persons that may be identifiable through the release of the letter, should not be protected. He suspected even, that Dr Bratt may be mentioned in that particular letter the Designated Doctor had referred to.

The anonymised letter by the complainant, dated 13 June 2017, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA+ PA rqsts, refusal, complainant reply, prov. dec., 13.06.17

After noting a couple of mistakes in his letter, the complainant did at 22.43h on 14 June send another email to the Office of Ombudsmen, referring to the two emails he sent the day before, and pointing out the mistakes. He had incorrectly mentioned a letter dated ’18 Aug. 2010’ in the title of his letter, which should have read ‘a letter dated 16 Aug. 2010’. He also pointed to a wrong letter having been sent with the first email, as attachment ‘2).’ to the email he sent at 22.59h on 13 June, and would send the correct one attached to this additional email. He furthermore corrected a reference in his letter, to a page in a ‘Medical Appeals Board manual’, which should have read ‘4’ instead of ‘14’.

With that email he did again send a copy of an email letter by the WINZ Designated Doctor to the HDC, dated 20 Sept. 2012.

An authentic, partly anonymised, scan copy of that email by the complainant to the Ombudsmen’s Office in Auckland, dated 14 June, can be found here:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, complainant corr. email, anon, 14.06.17

On the following day, 15 June 2017, the complainant received two emails from the Investigator processing the complaint at the Office of Ombudsmen. At 08.10h she confirmed receipt of the complainant’s email of 22.59h on 13 June, writing that Mr Donnelly would reply in due course. At 08.13h she wrote and conformed the receipt of the complainant’s email of 22.43h on 14 June 2017, writing that the ‘amendments are noted’, and that the correspondence received would now be read in light of the comments sent.

At 15.50h on 17 June 2017 the complainant wrote by email to the Manager for Investigations and Resolution at the Auckland Ombudsmen’s Office, in relation to his decision to refer part of his complaint(s) to the Privacy Commissioner. Details re this correspondence and its contents are found under ‘PART 12’ in this post.

 

PART 15 – THE OMBUDSMAN’S FIRST FINAL OPINION OF 29 JUNE 2017

At 09.49h on 29 June 2017 the complainant received an email from an unnamed sender at the Office of Ombudsmen, which had a letter from Ombudsman Leo Donnelly attached. It was dated 29 June 2017 and contained his ‘final opinion’ on the first completed part of the complaint.

The Ombudsman thanked for the correspondence of 13 June 2017, which they had received from the complainant, and he wrote, that after considering the further comments by the complainant, and all the issues raised, he had formed the final opinion “that HDC was entitled to refuse your request, on the bases that section 9(2)(a) of the Official Information Act 1982 (OIA) provides good reason to withhold the letter”.

He then explained his considerations and views, confirming he had ‘reviewed the information at issue’. He critically remarked: “I note your comments that individuals referred to in the letter should be named so that they can be held accountable for any comments made in relation to HDC’s complaint handling processes”.

Again, the Ombudsman mentioned, that he had also consulted with the Privacy Commissioner, as he was ‘required to do’. He then explained that he accepted that the letter dated 16 Aug. 2010, to which the doctor who had ‘examined’ the complainant had referred in a letter to the HDC, needed to be withheld, as it was “necessary to protect the privacy of natural persons and that section 9(2)(a) therefore applies”.

He rejected that there was overriding public interest to have the letter released by the HDC, and he expressed his view to the complainant, that “the excerpt and explanation given to you by HDC provided sufficient information to contextualise Dr Hxxxxxx’s reference to the 16 August 2010 letter in his response to your complaint”.

Ombudsman Donnelly refused to make any comments on the remaining contents of that letter, and who may be mentioned in it. He also wrote: “I note your concerns about the lawfulness, or otherwise, of HDC’s approach to complaints involving doctors appointed by Work and Income New Zealand. However, this issue is outside the scope of my investigation and review of HDC’s response to your requests under the OIA. I also note your comments in relation to Dr David Bratt, Principal Health Advisor to the Ministry of Social Development, and what you believe to be inappropriate attempts to influence HDC policy. Again, these issues are outside the scope of my investigation and review under the OIA”.

 

Author’s own comments:

So there we have it again, like it happened in an earlier complaint about Dr Bratt deleting all emails for a period, which he had exchanged with senior advisors, and where Prof. Ron Paterson did as former Ombudsman see no need to investigate, here we have Mr Donnelly opt to act in the same manner, to take NO action about information presented to them.

See these links showing earlier correspondence from Ron Paterson, dated 23 June 2015, 17 Aug. 2015 and 05 April 2016:
Ombudsman, complaint, 3xxxxx, MSD, O.I.A. fr. 16.01.14, Bratt salary, del. emails, anon, ltr, 05.04.16
Ombudsman, Complaint abt Dr Bratt deleting emails, refusal to investigate, R. Paterson, 17.08.15
Ombudsman, complaint, MSD, O.I.A. rqst. 16.01.14, Dr Bratt, presentation info, dec., 23.06.15

And here is an authentic redacted letter, which the complainant sent to the Ombudsmen on 7 July 2015, raising concerns about MSD’s Principal Health Advisor deleting all emails he exchanged with a senior advisor, which Ron Paterson refused to investigate:
Ombudsman, O.A. complaint, MSD, about Dr Bratt deleting public records, letter, anon, 07.07.2015

Other info of interest: An email of 23 Aug. 2016, announcing Leo Donnelly taking over from the suddenly resigned Ombudsman Ron Paterson:
Ombudsmen, Office of, complaint 36xxxx, MSD, OIA info w-held, email, hi-lit, 23.08.16

The Ombudsmen Act 1975 gives an Ombudsman the authority to start investigations “of his own motion”, as section 13(3) clearly provides for!

But this is not done, like in this case, while it may have exposed misconduct or worse by officials and employees working and acting in government organisations or departments, listed under Schedule 1 of the same statute. So the Ombudsmen appear to avoid opening a can of worms, and simply rather consider such matters are out of their scope of authority, their ‘jurisdiction’, or simply do not need to be investigated – for whatever other reasons. That is, unless there may be such a scandalous example of misconduct, of unacceptable, illegal actions or decision making, it would be impossible to ignore the issue, particularly when reputable first hand witnesses or whistle blowers exist. This tells us – and those with ample experience in dealing with the Ombudsmen, what the role of the Ombudsmen really is. It appears to us, as if the Ombudsmen rather choose to only act as a ‘watchdog’ intent on keeping complainants at bay, and to rather use information presented to them, to advise state departments, agencies and organisations falling in their jurisdiction, how they may need to ‘improve’ their actions and processes, to avoid future complaints. ‘Fairness for All’ sounds rather hollow a call to many complainants, when serious enough issues are not dealt with.

The letter dated 29 June 2017, with Mr Donnelly’s first ‘final opinion’ on this complaint aspect, in part anonymised, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, part decision, fin. opinion, anon, 29.06.17

 

PART 16 – THE OMBUDSMAN’S SECOND PROVISIONAL OPINION OF 8 SEPT. 2017

After the above described partial ‘resolution’, and the referral of another part of the originally presented complaint matters, covered by the complaint reference 42xx2x, there was another delay as the complainant noted. Hence he did at 21.37h on 20 Aug. 2017 write to the Investigator working on the case, asking her, if she could provide him with an update. He noted that he had received some last correspondence from the Ombudsmen on 7 July 2017 see end of ‘PART 12’).

The complainant’s partly anonymised email enquiry dated 20 Aug. 2017 sent to the Ombudsmen’s Office can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, complainant’s email, 20.08.17

At 07.44h on 21 Aug. 2017 the Investigator assisting with the complaint responded by email, writing that workload pressures at their Office had led to a delay in them writing to him again. She informed the complainant that a provisional opinion from the Ombudsman would be anticipated within 4 to 6 weeks.

Her partly redacted correspondence can be found in a PDF via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, Office’s email upd., 21.08.17

At 07.54h on Friday, 8 Sept. 2017, the complainant received an email from an unnamed sender at the Office of Ombudsmen, which had a PDF with a letter from Mr Donnelly attached, bearing the same date.

As the Ombudsman, or his investigators, will have made some investigations and consulted with the HDC Office, they did find out, that the complainant had in the meantime, given the very long delay in processing this complaint, made some additional information requests to the Medical Council of New Zealand (MCNZ).

So the complainant was not surprised to read Ombudsman Donnelly’s comments in relation to the two letters the complainant had initially requested from the HDC (one from the Deputy HDC to the MCNZ, dated 29 Jan. 2015, and one from the MCNZ to the HDC, dated 4 June 2015). Mr Donnelly wrote: “You have now been provided with redacted copies of both letters by the Medical Council of New Zealand (MCNZ) pursuant to the Privacy Act.”

He then wrote further: “My investigation and review under the OIA concerns the redacted sections of the letters that comprise official information, rather than personal information about you.” Mr Donnelly mentioned that he had received a report with their concerns from the HDC and that he had also consulted with the PC, as he was ‘required to do’ under section 29B of the OIA.

The Ombudsman gave a brief ‘Background’ of the complaint, acknowledging that the MCNZ had in the meanwhile provided the complainant with redacted copies of both letters, which the HDC had withheld pursuant to section 9(2)(a) OIA.

Under ‘My investigation’ he wrote how he had reviewed the un-redacted copies of the particular letters in question. Again, he stated that he could not refer to the contents of the letters, but he accepted that: “withholding of the official information in the letters is necessary to protect the privacy of natural persons”. Having considered the section 9(2)(a) provision of the OIA, he did not consider there was any countervailing public interest in the release of the letters that would outweigh the privacy interests supporting the withholding of the information.

He also wrote that the complainant would be aware from the redacted copy of the letter dated 4 June 2015, which he received from the MCNZ, that “it decided to take no further action in response to the concerns raised”. The Ombudsman was of the view that “accordingly no issue of public safety arises”.

So he presented his ‘provisional opinion’, that the “HDC was entitled to withhold the official information about other persons contained in the letters at issue”. The complainant was invited to comment by 21 Sept. 2017.

The Ombudsman’s second provisional opinion in the form of a partly redacted copy of his letter dated 8 Sept. 2017 can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, refusal, provisional opinion, 08.09.17

 

PART 17 – THE COMPLAINANT’S SUBMISSIONS AND EVIDENCE IN RESPONSE TO THE SECOND PROVISIONAL OPINION

The complainant responded soon to the invitation to provide some further comments on the complaint matter. With an email of 19.07h on Monday 11 Sept. 2017 he sent the Office of Ombudsmen a letter of the same date, outlining his remaining concerns on this matter.

In his letter the complainant wrote that it was correct that he had – since the complaint was filed (09 March and 12 April 2016) – received redacted copies of the letters dated 29 Jan. 2015 and 04 June 2015 from the MCNZ. He explained how he saw a need to take separate actions by requesting personal information from the MCNZ under the PA, while the complaint processing at the Ombudsmen’s Office took so long.

He wrote that the MCNZ was a bit more forthcoming than the HDC had been. The complainant wrote that he was initially not aware that his complaint information was sent to the MCNZ on 29 Jan. 2015 together with information about other complainants. Also had he believed that ‘other information’ the MCNZ later withheld or refused, was actually such other personal information about him. Hence he never expected the release of personal information belonging to other persons, he wrote, except about the doctor, whose name and some other complaint relevant details he already knew.

The complainant noted how the Ombudsman had differentiated between information requested to be released under the OIA and the PA. He reminded the Ombudsman that his information requests to the HDC had been made pursuant to both the Acts. In paragraph [8] of his letter he explained how the HDC should in any case have seen a need to provide him with his personal information, which could have been done by presenting the letters in redacted form. He wrote that the Senior Legal Advisor at the HDC Office did not do that, withheld his personal information, and was therefore in breach of Principle 6 PA, providing no convincing reason that may have been available under Part 4 of the PA.

Then he wrote also, that given the Ombudsman had decided re the other aspect under complaint 42xx2x (the phone log), to refer that matter to the OPC, he presumed the same would have happened with this aspect of the complaint. As that was not the case, he would have thought, that the Ombudsman had at least acknowledged that the HDC should have taken action pursuant to section 6 and Principle 6 in the PA, and provided him with redacted copies of the two letters in question in the first instance.

As there were also other issues with actions and inactions by the HDC in relation to the information referral to the MCNZ under their MoU, including incorrect, misleading information having been referred without notifying him as complainant, the complainant expressed his hope that those matters may soon be resolved under complaint 43xxxx. He also mentioned yet another complaint he had made about the actions and a decision by the PC, under yet another complaint reference 44xxx4.

So the complainant did in the end accept the Ombudsman’s provisional opinion that part of the information could correctly be withheld by the HDC under section 9(2)(a) of the OIA.

But he wrote that he would at the same time appreciate the Ombudsman’s decision on whether the HDC acted appropriately or inappropriately when withholding the whole letters from him as requester, as redacted copies would not at all have unreasonably interfered with the privacy interests of any other persons. On this aspect he invited the Ombudsman’s opinion, after having discussed relevant details with the OPC. Alternatively the Ombudsman could invite the PC to make a decision on this, he wrote.

The authentic text of the complainant’s partly redacted letter to the Ombudsman, dated 11 Sept. 2017, can be found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, prov. opinion, complnt reply, 11.09.17

The Investigator assisting in this case wrote briefly to the complainant at 07.27h on 12 Sept., confirming receipt of the email and letter. She wrote that the Ombudsman would write again once the comments had been considered. But at 12.37h on that same day, she wrote again, asking for a copy of the complaint of 4 August 2017, to which the complainant had referred in his new letter, and re which he had not received a response yet.

The complainant wrote back at 13.41h on 12 Sept. 2017, informing her about some details re that correspondence, and on-forwarding the earlier email (1 of 4 sent) with attachments.

The Investigator wrote back at 13.48h, thanking the complainant for the email, and promising she would follow the matter up and get in touch again. At 14.40h she informed the complainant that the address, to which the email/s had been sent to by the complainant, had not been used by the Ombudsmen for some time. So she informed him of their now used email address info@ombudsman.parliament.nz . The other complaint emails would later be found, and as it is covering another matter, it will not be of more relevance here.

 

PART 18 – THE OMBUDSMAN’S SECOND FINAL OPINION OF 21 SEPT. 2017

On Thursday, 21 September 2017, at 08.08h, the complainant received an email from an unnamed sender at the Office of Ombudsmen, which had the final opinion letter of Leo Donnelly as Ombudsman attached.

Referring to the letter by the complainant dated 11 September 2017, he wrote that he now had an opportunity to consider his comments. Mr Donnelly acknowledged that the complainant had accepted his provisional opinion that the HDC was entitled to withhold the ‘official’ information about persons other than himself in the letters dated 29 Jan. 2015 and 4 June 2015, under section 9(2)(a) OIA. So the Ombudsman did then confirm that it was his final opinion that the HDC was entitled to refuse his request on that basis.

Answering to the sought opinion as to whether the HDC was entitled to withhold the complainant’s personal information in the letters, the Ombudsman did again shy away from taking a clearer and more convincing position, by writing that “an Ombudsman does not have jurisdiction to consider complaints about interference with privacy, including refusals to release personal information”. He referred to section 17A Ombudsmen Act 1975, and wrote that its provisions allowed for the referral of a matter to the Privacy Commissioner.

And then he wrote the following astonishing comment:
“However, in circumstances where you have been provided with the personal information at issue, first in summary by HDC and later in full by MCNZ, and where you have already pursued matters directly with the Privacy Commissioner, no question of referral under section 17A arises. I have concluded my investigation and advised HDC accordingly.”

So Ombudsman Donnelly acted extremely carefully in forming a view and expressing his opinion in this complaint matter, basically dissecting a complaint into various aspects, and dealing with each one accordingly, also being extremely mindful of legal implications.

He let the HDC off in all aspects of the complaint, even though a reasonable person would have thought, where a complaint that combined PA and OIA aspects at the same time, the Ombudsman would simply have sought advice from the Privacy Commissioner, and then formed and communicated his own opinion on the whole matter.

It appears also, that in order to get rid of a backlog of complaints, the Ombudsman is rather keen to refer complainants – or parts thereof – to other Offices, and to ask for having their complaints being dealt with by them, when they may not strictly and fully fall within the already somewhat unclear ‘jurisdiction’ of the Ombudsmen. We will comment further on this in the last ‘PART 19’ in this report and ‘post’.

Here is an authentic scan copy with the partly redacted, anonymised final opinion letter from Ombudsman Leo Donnelly, dated 21 Sept. 2017, found via this link:
Ombudsman, Complaint, 42xx2x, HDC, OIA + PA rqsts, fin. opinion, dec., anon, 21.09.17

 

PART 19 – CONCLUSION: ONE RULE FOR THE HDC, ANOTHER FOR THE PC AND MCNZ, AND LITTLE ‘RESOLUTION’ AND ‘FAIRNESS’ FOR A COMPLAINANT

 

Upon reading, analysing and assessing the above correspondence and information, and considering what actions were taken by the Ombudsmen Office; one can make some fair presumptions about the commitment of the Ombudsmen to investigate such matters brought to their attention by an ordinary complainant about the HDC. It is in our view not such a good look, how the complaints were handled and decided on. There appears to be a worrisome tendency by the Ombudsmen, our top ‘watch-dogs’, to be somewhat ‘risk averse’ and to shy away from investigating other Officers of Parliament, such as the HDC and also the OPC.

The complainant was obviously very disappointed about the decision by the Ombudsman to firstly support the HDC in their decision to withhold that letter dated 16 August 2010 under section 9(2)(a) of the OIA. A previously complained about WINZ commissioned Designated Doctor had referred to that letter, when writing to the HDC on 20 Sept. 2012, trying to defend his actions. That doctor, a general practitioner, was apparently rather firmly of the view, that the particular letter contained information that the HDC would rely on, to not investigate him for his conduct during an examination and assessment of a referred WINZ client. He considered that ‘all complaints of this nature’ were ‘more correctly addressed to the Medical Appeals Board’. Also did the decision letters from the Deputy and Associate HDC (dated 24 April, 17 Sept. and 22 Nov. 2013) re complaint matter C12HDCxxxxx contain similar clear references (although made incorrectly) to WINZ and their Medical Appeals Board, supposedly being the more appropriate agencies to address the complainant’s ‘concerns’.

As the Ombudsman did with his letter of 29 June 2017 uphold the decision by the HDC, also rejecting that there was countervailing public interest to release the letter, we will most likely never know, what that letter actually contained, who wrote it and to whom it may have been addressed. It did not lessen the complainant’s distrust towards the HDC, whom he appears to suspect of having collaborated with MSD and WINZ to some degree in the past. It is somewhat hard to believe, that the letter could not be made available at all, at least in redacted form, and due to the Ombudsman’s decision it cannot be ruled out, that such a person like MSD’s Principal Health Advisor Dr Bratt may actually have been mentioned in that letter.

While that first ‘opinion’ or decision by Ombudsman Leo Donnelly was a disappointment to the complainant, the other opinions by the Ombudsman were even more so. In some ways they can only be described as bizarre views, at least representing efforts to split hairs, so to say, by differentiating so clearly between matters that according to the Ombudsman’s opinion should fall under the Privacy Act, and those that should be dealt with under the OIA. This was done, although the complainant had requested information under both the OIA and PA.

Referring the phone log ‘personal information’ matter to the OPC did actually appear as if the Ombudsman did simply not wish to deal with the related reported issues, perhaps because the complainant raised serious concerns about alleged professional misconduct of an HDC Assessor, who first recorded that log on 9 August 2011. Mr Donnelly may also have chosen not to question explanations provided by the Associate HDC, Dr Elkin (on 19 Feb. 2016), even though they did not seem to add up, that is in relation to the ‘editing’ of that log, and its later shifting from a long closed file from 2007, where it was allegedly put by mistake, to the ‘correct’ file. There appears to have been no convincing reason for that log not to have been available for the information response by the HDC of 23 March 2012, weeks after it was allegedly ‘moved’ to the ‘correct’ file on 6 March or in ‘early March’ in 2012!

The Ombudsman, and their Auckland Office Manager for Investigations and Resolution, appeared to be only too keen to refer that matter to the Privacy Commissioner. The reason given was that the phone log contained ‘personal information’, and complaints about the refusal of such, or inaccuracies in it, would fall under the PA (see their correspondence of 30 May and 7 July 2017). It was repeatedly asserted that the Ombudsmen have ‘no jurisdiction’ to consider such complaints. Re accuracies and ‘storage’ issues of public records containing the complainant’s personal information, the complainant was also repeatedly advised to present his concerns to the Chief Archivist.

Looking at section 17A of the Ombudsmen Act 1975 and section 29B OIA, those provisions do merely state, that the Ombudsman shall, upon ‘consideration’, or ‘before forming a final opinion’, on complaints before him, consult with the Privacy Commissioner, in order to determine the appropriate way of dealing with them. Most certainly, according to section 17A Ombudsmen Act, it is the Ombudsman who shall determine how to deal and proceed with them. Section 21A contains further details on how the Ombudsmen may consult with the PC. The OIA provision only expects the Ombudsman to seek the Privacy Commissioner’s advice on whether personal information may be refused under the OIA section 9(2)(a) or not.

There is no mention of the Ombudsmen having ‘no jurisdiction’ whatsoever – or that any complaint aspects involving personal information would fall totally outside of the authority or scope of the Ombudsmen. Yet the Ombudsman made comments about the ‘scope of the investigation’, meaning it would not cover certain aspects of the complaint presented by the complainant. There is certainly no provision in the Ombudsmen Act that stipulates that complaints must be referred to the Chief Archivist. And where other serious issues are raised, even as additional concerns, mentioned as part of a complaint, the Ombudsmen always have the ability to launch an investigation of their own motion (s 13(3)), which rarely happens.

One would think, that where a complaint contains a number of aspects, where ‘personal information’ is just one of them, and where other important issues are raised about decisions or actions by organisations, departments or agencies covered by the Schedule 1 of the Ombudsmen Act, then it could and should still be dealt with by an Ombudsman. But from the considerations, formed opinions and decisions that were made, there appears to have been a great reluctance to firmly and properly address certain aspects at all.

Most bizarre was the Ombudsman’s opinion – or decision – to back the HDC in their decision to withhold the letters by the Deputy HDC to the MCNZ, dated 29 Jan. 2015, and the MCNZ’s response dated 4 June 2015, pursuant to section 9(2)(a) OIA. The fact that the MCNZ had released redacted copies of that same correspondence (received from the Deputy HDC) to the complainant under the PA, and had seen no problem in doing so, while the HDC refused to make the letter dated 29 Jan. 2015 available full stop, must have put the Ombudsman into a difficult spot. That would have been even more so, given the Privacy Commissioner’s later advice to the MCNZ, to release to the complainant also a redacted copy of the MCNZ response to the HDC of 4 June 2015.

Instead of admitting that the HDC could have done the same from the very outset, that was not what the Ombudsman considered. It must be noted, that the complainant asked for that information under both the OIA and the PA. The Ombudsman rather used technical legal explanations to say the HDC was ‘entitled’ to refuse the same letters from the start under the OIA, upon repeated requests by the complainant. The final opinion by Mr Donnelly, dated 21 Sept. 2017, reads like an effort to split hairs, rather than presenting a more common sense explanation and view. He again makes it a ‘jurisdiction’ matter, why there was no need for him to consider ‘complaints about interference with privacy, including refusals to release personal information’. Referring to section 17A Ombudsmen Act, mentioning the possible referral of complaints to the Privacy Commissioner, and noting that the complainant had already obtained the same letters through other channels under the PA, he simply writes ‘no question of referral under section 17A arises’. Therefore the Ombudsman’s provisional opinion letter of 8 Sept. 2017 and final opinion letter of 21 Sept. 2017 are smart efforts of effectively providing some legal protection for the HDC, which is of course in our view. The same can to some degree be said about the referral of the phone log matter to the OPC, and about the forming of the opinion, that the letter dated 16 Aug. 2010 could be withheld.

Our observation is that the Ombudsman, certainly in this case, like in a few others, appears very reluctant to step onto the toes of any other ‘watch-dog’, such as the Health and Disability Commissioner, the Privacy Commissioner, and probably a few others.

While this appears to be so, we must admit, that this is all still ‘legal’, as the Ombudsman has of course the ability and discretion to interpret and apply the law as it stands. Whether it involves the dissection of complaint matters, the splitting apart of such into various complaint aspects, and then dealing with them separately, one by one, under available statutes, also using available discretion, this is not against the law. But for those who have some insight into this, and gathered experience in dealing with our various watch-dogs, it raises more questions than it provides answers. It certainly does not provide a complainant with what we would consider as being a fair and acceptable resolution. Again, the catch-call ‘fairness for all’, used by the Ombudsmen, rings somewhat hollow in the ears of some complainants. We can only invite you as readers to form your own opinion on the information presented here, which is absolutely authentic and can easily be backed up with the available original documents, should there ever be a serious challenge put to us.

Last not least we ask: With ‘watch-dogs’ like these, who needs them?

Post updated and finalised – 28 Nov. 2017

 
 

Quest for Justice

 
 

MSD RELEASES OIA INFO ON DR BRATT’S AND OTHER SENIOR HEALTH ADVISORS’ HIGH SALARIES – NEARLY 4 YEARS LATE

MSD RELEASES OIA INFO ON DR BRATT’S AND OTHER SENIOR HEALTH AND DISABILITY ADVISORS’ HIGH SALARIES – NEARLY 4 YEARS LATE

 

Top ‘Advisors’ get paid huge salaries to make absurd claims like the benefit is a “drug”, and that sick, disabled beneficiaries must be moved off benefits into paid employment on the open, competitive job-market, as that offers “health benefits” to them

 
 

CONTENTS:

A). BACKGROUND
B). MSD’S RELUCTANCE TO RELEASE REQUESTED SALARY INFORMATION FOR DR BRATT AND OTHER SENIOR ADVISORS
C). OMBUDSMAN COMPLAINT
D). HUGE SALARIES PAID TO INFLUENCE GPs AND OTHER PRACTITIONERS
E). MSD AND DR BRATT PRESENT MISLEADING ‘EVIDENCE’
F). PUBLIC AND STATE SERVICES SALARY INFORMATION SOURCES – ALLOWING SOME LIMITED COMPARISONS
G). CONCLUSION

 
 

A). BACKGROUND

On 11 June 2013 an Official Information Act 1982 (OIA) request was sent to the Ministry of Social Development (MSD), listing 12 separate requests for specified information to be made available. Besides of seeking information on referrals of Work and Income (WINZ) clients to designated doctors, on Medical Appeal Board (MAB) hearings, and on various other matters, the requester did with question ’11.’ also ask for salary information on the Principal Health Advisor (PHA) Dr David Bratt, the Principal Disability Advisor (PDA) Anne Hawker and former Senior (Health) Advisor Dr David Rankin.

Dr David Bratt, a general practitioner (GP), has held his then newly created position with the Ministry since late 2007, same as Anne Hawker, and Dr David Rankin worked for the Ministry from 2006 to 2011 (2006-2009 for Work and Income (WINZ), 2009-2011 for Child, Youth and Families (CYFS)).

The requester had learned of Dr Rankin’s and Dr Bratt’s involvement in the development of new internal working processes, of welfare reforms and major changes to the benefit system, that would be affecting sick and disabled who are dependent on benefits, including the way they were to be examined and assessed for work capacity (also done by ‘Designated Doctors’ for WINZ).

The OIA information requester had come across a fair number of controversial, apparently biased “presentations” by Dr David Bratt, in which he likened benefit dependence to “drug dependence”, and obviously tried to influence health professionals by promoting supposed “health benefits of work”. Some at times bizarre and bold claims were made in such presentations to general practitioner conferences and other stakeholder meetings.

Other information he obtained, which put into question the professional competency and conduct of Dr Bratt as a trained general medical practitioner, would further raise his concerns, but some of this was not yet at hand when the information requests were made to MSD. It was the requester’s view, that as a practitioner of a science based profession, Dr Bratt should not be making certain unproved claims, presumptions and comments.

As the requester had himself made rather disturbing previous experiences with a so-called ‘Designated Doctor’ commissioned and paid by MSD, when being examined for his entitlement to an Invalid’s Benefit – based on limited capacity to work, he was especially concerned about some particular comments and claims made by Dr Bratt in some of his many presentations to health professionals, and also to the media (including the ‘NZ Doctor’ magazine).

Upon receiving the information request the Ministry of Social Development (MSD) responded first with a letter dated 12 July 2013. While some of the asked for information was made available, other information, including the requested Advisors’ salary information, was being withheld under section 9(2)(a) of the OIA. The explanation given was that this was necessary “to protect their privacy” (i.e. the ‘privacy’ of the Advisors).

As the requester could not accept the withholding grounds given by MSD, he did on 09 August 2013 write a formal complaint to the Office of Ombudsmen, who would look into his complaint, but only after a very long delay.

It would be no earlier than the 30th of October 2013 that the requester would get a first formal reply from a Manager at the Ombudsmen’s Office, stating that the then Ombudsman Ron Paterson would be looking into the matter. A separate OIA related complaint by the requester would later be added to this case and its file reference, and the whole investigation would take an extremely long time.

While only some of the requesters concerns would eventually be resolved over the following years, the issue regarding the withheld Advisors’ salary information would drag on endlessly, until well into early 2017. Only after ‘consultation’ with the new Ombudsman (formerly the Deputy), Mr Leo Donnelly, would MSD finally send the requester some information on the “salary bands” covering the Advisor’s salaries, which was by way of an email dated 11 April 2017.

 
 

B). MSD’S RELUCTANCE TO RELEASE REQUESTED SALARY INFORMATION FOR DR BRATT AND OTHER SENIOR ADVISORS

 

THE OIA REQUEST

The following information was sought by the requester under request or question ’11.’ in his letter dated 11 June 2013:

“11. A detailed list stating the individual annual before tax salaries, plus any additional bonuses or the likes, for the following senior and key-role advisory staff of the Ministry of Social Development:

a) Dr David Bratt, Principal Health Advisor for the Ministry of Social Development;
b) Anne Hawker, Principal Disability Advisor for the Ministry of Social Development;
c) Dr David Rankin, Senior Advisor for the Ministry of Social Development.

As I have reason to believe that this information may have been withheld following earlier requests, due to stated privacy concerns under the Privacy Act 1993, I wish to state that I nevertheless insist on these salaries to be made available under the Official Information Act 1982, as I believe that it is in the public interest that such information is made available.

Due to all three professionals being expected to perform their tasks as leading public service employees responsibly and diligently at the highest professional and ethical standards, and also being expected to possess the particular, high quality and appropriate qualifications required to do their work, and for the fact that public accountability is a core requirement for all those professional roles, any rights to withhold this information under the Official Information Act 1982, or the Privacy Act 1993, should be outweighed by the public’s deserved interest. The public has an interest in transparency, simply to receive assurance that remuneration paid does match competency, qualification, responsibility and performance for each role. The public has a right to assess whether remuneration paid is a clear and fair reflection of these three professionals’ abilities to meet the expected high standards of service-delivery and any requirements.

In any case the annual before tax salary – and any possible bonus or similar – paid to Dr David Bratt as Principal Health Advisor should be made available, as the public and clients of MSD truly deserve to have full transparency in this matter, given the fact that his role is that of a very senior advisor and leader in a crucial area of decision-making over sensitive, high risk health and disability issues. The New Zealand public expects that Dr Bratt leads in his advisory position by applying a high level of responsibility, of ethical standards and professional conduct at all times, as an exemplary manager of any staff working under or with him. He is also entrusted to ensure balanced, objective, reliable, scientifically based and professional standards are applied by his subordinate, overseen staff in their duty of advising on health and disability matters that affect thousands of clients of the Ministry. The trust and respect the public gives such a crucial, senior advisor must surely justify the publication of the before tax salary and other earnings of Dr Bratt.

It is publicly known, and important to note, that Dr David Bratt has since at least 2010 made numerous public and also non public presentations in his role as Principal Health Advisor for the Ministry of Social Development (and Work and Income). It is a concern to some, that he has in doing so drawn comparisons between “benefit dependence” and “drug dependence”, referred to “the benefit” as an “addictive debilitating drug”, used statistical data and supposed “medical” information based on apparently selective, in part quite likely unproved medical or scientific findings. These were apparently largely based on “findings” by a particular school of thought of “experts” that includes professional “specialists” as Professor Mansel Aylward from the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, in the United Kingdom. There are evidently other schools of thought in relation to psychosocial and disability research, which appear to not have been considered and presented by Dr Bratt. This raises concerns about his personal, preferential choices of information. Hence the public deserves to know also, as to how the presentations that Dr Bratt has delivered as basically Work and Income authorised information, can be considered objective, reasonable, fair and balanced, and thus be acceptable to MSD.

The public and Work and Income clients do in view of this have justified reasons to obtain information on Dr Bratt’s annual salary and other income from the public purse, to allow them to assess, whether the remuneration is a good spend for the services Dr Bratt actually delivers for the Ministry to them.

If you may not be familiar with the presentations referred to above, I wish to make you aware of PDF or PowerPoint documents to be found under these following links to websites, which were clearly created by (or for) Dr Bratt, to use for his public and partly not so public presentations to general practitioners, designated doctors, medical trainers and others. These links are:

http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf
(‘Ready, Steady, Crook – Are we killing our patients with kindness?’, Dr Bratt + A. Hawker, MSD, Christchurch 2010, see pages 13, 20, 21 and 35)

http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(‘Medical Certificates are Clinical Instruments Too’, Dr Bratt, MSD, 2012, see pages 3, 16 and 33 for details)

http://www.google.co.nz/url?sa=t&rct=j&q=bratt%20ppt&source=web&cd=1&cad=rja&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=ZO9QUYjZApGSiAegmICIDA&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg
(‘Pressure / No Pressure – Strategies for Pushy Patients’, a link to a PowerPoint presentation by Dr Bratt and Anne Hawker, where again on page 27 a claim is made the “benefit” is an “addictive debilitating drug”).

There have also been articles written on Dr David Bratt as Principal Health Advisor in the ‘NZ Doctor’ magazine, which clearly state his very one-sided views and interpretations of particular health issues, on the effects of “worklessness”, his intentions of getting sick and disabled into work, and his comments “the benefit” is “addictive” like a “drug”. An article in the online edition on 01 August 2012 was titled ‘Harms lurk for benefit addicts’ and written by Lucy Ratcliffe, (see link: http://www.nzdoctor.co.nz/in-print/2012/august-2012/1-august-2012/harms-lurk-for-benefit-addicts.aspx).

A critical opinion on this one article which was published that magazine’s online edition by Tim Walker Nelson on 29 August 2012, titled “Questioning the direction of MSD policy” (see link: http://www.nzdoctor.co.nz/in-print/2012/august-2012/29-august-2012/questioning-the-direction-of-msd-policy.aspx ). It raised the valid question about what kind of Principal Health Advisor the Ministry of Social Development has employed for such a serious advisory role.

While the public may find it astonishing, that the Ministry of Social Development supports, authorises or at least tolerates such presentations, and these apparently somewhat potentially biased, unprofessional and unscientific comparisons by Dr Bratt, it certainly has a justified interest and a right to be informed about the remuneration for such “work” performed by him.”

 

Here is a hyperlink to a PDF file containing the whole set of original OIA request questions from 11 June 2013 that were sent to MSD in a letter:
M.S.D., O.I.A., rqst, DDr, MAB, PHA, RHA, training + salaries, anon, 11.06.2013

 

MSD’s INITIAL OIA RESPONSE

In her initial and supposedly ‘final’ response to the requester’s OIA request, dated 12 July 2013, Debbie Power, Deputy Chief Executive for Work and Income (at MSD) gave the following answer in relation to request ‘11.’ in the requester’s original letter:
“I am withholding the salaries of the Principal Health Advisor and the Principal Disability Advisor, and Senior Advisor under section 9(2)(a) to protect their privacy. In this instance I believe the need to protect the privacy of these individuals outweighs the public interest in the information.”

This was although the Deputy Chief Executive was more forthcoming with some other information on Regional Health Advisors and Regional Disability Advisors and their qualifications, placements and names, and also on Medical Appeal Boards appointed by MSD.

Here are links to 2 PDFs with authentic scan copies of Ms Power’s full and ‘final’ response to the OIA request, being her letter dated 12 July 2013 (and attachments):
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13
MSD, O.I.A. Request, Designated Dr Training, 2008, material used, D. Power, C.E., 12.07.13

 

Author’s Comments:

From that refusal to release salary information on Drs Bratt, Hawker and Rankin, it must be concluded that MSD follows a very strict guideline by not releasing any salary information on individuals it employs, and also, that the Deputy Chief Executive did not even consider releasing a hint of information on such highly paid individual Advisors. That may perhaps have been so, because they get paid a rather high amount, which could raise questions about whether they actually deserved such salary rates for the particular roles and work they were and still are performing.

 
 

C). OMBUDSMAN COMPLAINT

Somewhat dissatisfied with the overall response by Debbie Power from MSD, the OIA requester did consequently write a complaint to the then Chief Ombudsman, Ms Beverley Wakem, asking for an investigation into the matter.

Here is a link to a PDF with the authentic transcript of the letter sent to the Chief Ombudsman, dated 09 August 2013:
Ombudsman, complaint, OIA rqst to MSD, info refused, Advisors etc., publ. interest, anon, 09.08.13

In relation to question ’11.’ in his OIA information request to MSD, the complainant explained and argued the following:

“The Ministry has also withheld information I sought per question 11 about salaries of the Principal Health Advisor, Dr David Bratt, the Principal Disability Advisor Anne Hawker, and Senior Advisor Dr David Rankin, this under section 9 (2) a of the O.I.A.. Debbie Power writes: “In this instance I believe the need to protect the privacy of these individuals outweighs the public interest in this information”.

I take issue with this, particularly for the case of Dr David Bratt, who is as Principal Health Advisor in a very senior advisory position, where he holds core responsibilities, including the supervision, management, training, mentoring, and instructing of the Regional Health Advisors that MSD have in each of their Regional Offices. He is together with Anne Hawker jointly responsible to supervise, manage, train, mentor and in certain cases instruct the Regional Disability Advisors. Both Principal Advisors also work with Health and Disability Coordinators placed at each Regional Office of MSD. Dr Bratt has input in decision-making on applicants and beneficiaries suffering ill health, disabilities and incapacity. Also is Dr Bratt responsible for advising the Ministry and Minister of Social Development on health and disability matters in general, which contributes to policy formation and implementation.

The subordinate Regional Health and Disability Advisors fulfill highly responsible roles in liaising with various medical professionals, Work and Income case managers, and other internal and outside parties and agencies. A core responsibility they have is, to assist in the referrals of certain clients suffering health conditions, disabilities and resulting incapacity to Ministry paid and selected designated doctors or other specialists. They are in charge also of examining medical reports, in assessing medical conditions and disabilities, and of making important recommendations to case managers, who then rely on such recommendations when deciding on benefit entitlements, possible obligations, on treatment or other measures that may be relevant and applied from case to case.

The roles, tasks and responsibilities of Regional- and Principal Health and Disability Advisors are based on medical and rehabilitation related expertise, and certain qualifications in such areas are required to work in their important roles. One does not need to elaborate further, to make clear, that they are personnel that base their knowledge, competency and decision-making on medical and related sciences. It is already of concern that some of these advisors seem to lack a solid medical or rehabilitation background, which a recent response to an O.I.A. request shows.

All the three persons listed in my question 11 have been, and in certainly two cases still are, public servants working for the Ministry of Social Development and their main department Work and Income. As public servants they are paid for by revenue gathered as taxes from the tax paying public, which will represent the majority of the public in New Zealand. Some tax payers rely on Work and Income and other services by the Ministry of Social Development, also relying on Dr Bratt’s advice.

While no grave questions may arise re Anne Hawker or Dr Rankin, there have been increasing concerns raised about Dr David Bratt’s conduct, certain ones of his “presentations”, which he has made to health professional organisations, such as GP conferences, also to trainers and educators in the medical profession, same as to designated doctors.

Dr David Bratt has continuously made bizarre claims in his presentations, that benefit dependence is like “drug dependence”, is “addictive”, and therefore harmful for the beneficiaries’ health. He has most strongly advocated for the acknowledgment of the value and supposed “health benefits” of work. He makes these claims in a wider, general way, commonly meaning open employment, and his statements are also based on a selected few “reports” and “findings” by a small number of medical “experts” from one school of thought, mostly from the United Kingdom.

One such expert is a Professor Mansel Aylward, who has been widely criticised in the UK for his involvement with the controversial work capability tests used by ATOS Healthcare as sole assessor for the Department of Work and Pensions. It has been reported that the assessments, which he was involved in designing, are unsuitable, ill designed and do not give sufficient consideration for mental health sufferers. This criticism has also come from organisations of the medical profession in the UK. Professor Aylward, and a few of his colleagues, are based at a research department called ‘Unum Centre for Psychosocial and Disability Research’ at Cardiff University in Wales. It has been established and funded with the support of controversial US insurance giant Unum Insurance. Professor Aylward and his colleagues (like for instance Gordon Waddell), portray many illnesses as being nothing more than “illness belief” the sufferers adhere to, which is an irresponsibly dismissive approach, taken to particular physical and certainly many mental health conditions.

To summarise my complaint, Dr Bratt is making unproved claims, is making comparisons between benefit dependence and “drug dependence” which are not scientifically proved, and which can only be seen as a highly questionable, and even a biased way of dismissing other aspects that may explain that many beneficiaries suffer ill health, and conditions that do often not improve. One may fairly ask, is Dr Bratt not confusing cause and result, and with his influence making statements that are untrue and can lead to serve only to justify the Ministry of Social Development to apply approaches and pressures on sick and disabled beneficiaries that will cause more harm than benefits to those affected. The question may also be asked, is wage and salary receipt then also not “addictive” like “a drug”?

Dr Bratt is increasingly being criticised and challenged, as certain media reports show. I will provide some information on his controversial, disputed presentations and comments by others in PDF files attached to the email carrying this letter.

It is in my view, and that of many in the public, that Dr Bratt has to be held accountable by his employer and also the medical profession, to which he still belongs as a registered general practitioner. The public, paying his salary, most certainly also deserve to know whether they get the correct “value” for money with this gentleman continuing to be employed by the Ministry. The public deserves to know how much he is paid for in salary and additional payments, to be able to assess whether he is paid appropriately or not, for the questionable quality of advice he appears to deliver.

As Dr Bratt clearly enjoys his position and income at the expense of the wider public, who pay him, it is certainly a right to the public to know what his payments are.”

 

OMBUDSMEN OFFICE RESPONSES

It took the Office of Ombudsmen almost three months to provide a first reply to the complainant’s letter, mainly due the fact that their Office’s human and financial resources were at that time extremely stretched. But a letter by a ‘Manager’, dated 30 October 2013, was later sent to the complainant and information requester, explaining to him that the then new Ombudsman Ron Paterson would be investigating the complaint matters, which he had raised.

Here is a link to a PDF with a scan copy of that anonymised letter from the Office of the Ombudsmen, dated 30 Oct. 2013:
Ombudsman, complaint 36xxxx, MSD, OIA info withheld, incl. Advisor sal., reply, anon, 30.10.2013

As it is not uncommon, the Ombudsman would later add at least one other complaint made by the same complainant against MSD (dated 9 March 2014) to this complaint file, and process these in one complaints process, which would eventually take much longer than ever expected.

The first letter dated 30 October 2013 would be followed by further letters dated 19 March, 27 May and 30 July 2014, and the complainant would be informed of an investigator having been assigned to review the file, that a reply from MSD had been received in mid January 2014, that the review was taking longer than expected, and that another complaint by him, dated 9 March 2014, had been added to this file. A letter dated 19 September 2014 (from a separate ‘Manager’ at the Ombudsmen’s Office) contained few new details, and informed the requester only that Dr Ron Paterson would now investigate the complaint. That last letter though appeared to be more concerned with the newly added complaint about a separate OIA request that the requester had made to MSD on 16 Jan. 2014.

As the process was dragging on, the complainant and OIA requester phoned the investigator at the Office of Ombudsmen, who looked after the file, on 11 November 2014. He then learned, besides of other information he received, that the Ombudsman required advice from the Office of the Privacy Commissioner on the requested release of salary information about MSD Advisors.

In a letter dated 19 Nov. 2014 the ‘Manager’ at the Ombudsmen’s Auckland Office advised the complainant that new information had been released by MSD on the second complaint under the same file reference, but offered no new information on the first complaint from 09 August 2013.

But for the complainant (and OIA requester) none of the complaints would be considered as being “resolved”, while the Ombudsmen Office appeared to think that at least the added, second complaint had been satisfactorily “answered” to by MSD. After the complainant wrote to their Office yet again, he received a further letter dated 4 May 2015 – from Ombudsman Prof. Ron Paterson.

Dr Paterson only wrote this in relation to the ‘First request’:
“This complaint relates to the Ministry’s response for official information about the assessment of entitlement for a medical related benefit, and about advisory staff including Dr Bratt. The information in relation to this issue has taken time to review, due to the complex issues involved in relation to some of the information withheld under section 9(2)(a) of the Official Information Act 1982.”

“I appreciate that the investigations into these complaints may be taking longer than you anticipated. This is due to the volume of complaints being managed by the Office. However, progress is being made, and we anticipate being in a position to update you on these matters again shortly.”

With a letter dated 22 May 2015 Ron Paterson would then present his provisional decision on the other – second- complaint filed with the Ombudsman, also re OIA info withheld by MSD, and that full response by the Ombudsman can be seen here:
Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, publ. int., prov. dec., compl., 22.05.15
Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, public interest, prov. dec., hilit, 22.05.15

Some of that complaint related information was already published on this blog under the following post:
‘THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH’:
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
(Read chapters ‘C)’, ‘D)’ and ‘E)’ re the lack of evidence and flawed evidence used by MSD, and especially ‘F)’ about the Ombudsman’s actions – or rather missing action – in regards to Dr Bratt and his presentations, and his reported deletion of all emails to and from another external ‘Advisor’.)

New, current PDF version (as on 19.09.16):
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

Other posts that provide further info on how MSD selectively presents information on ‘evidence’ and ‘advice’ received from ‘experts’, and on the treatment of sick and disabled on benefits:
‘THE MINISTRY OF SOCIAL DEVELOPMENT’S SELECTIVE AND POOR RESPONSES TO NEW O.I.A. REQUESTS ON BENEFITS, ADVISORS, REPORTS, MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES’:
https://nzsocialjusticeblog2013.wordpress.com/2015/11/27/msds-selective-and-poor-responses-to-new-oia-requests-on-benefits-advisors-reports-mental-health-and-sole-parent-employment-services/

A PDF version of the same post is downloadable via the following link:
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msds-selective-poor-responses-to-new-o-i-a-requests-post-nzsjb-upd-27-11-15.pdf

‘MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE’:
https://nzsocialjusticeblog2013.wordpress.com/2015/04/10/mental-health-and-sole-parent-employment-services-msd-withholds-o-i-a-information-that-may-prove-their-trials-a-failure/

 

Soon after this, the complainant received yet another letter dated 25 May 2015, which referred directly to his complaint that also related to the salary information withheld by MSD, and in it Professor Paterson informed him that he had written to the Privacy Commissioner to obtain advice.

See this link for a PDF with a scan copy of that letter from the Ombudsman dated 25 May 2015:
Ombudsman, complaint 36xxxx, MSD, OIA info withheld, incl. Advisor sal., update, anon, 25.05.15

A further letter dated 19 August 2015 would only inform the complainant that additional advice had been received from the Privacy Commissioner, and was due to be reviewed. Nevertheless, the matter continued to drag on endlessly, and the complainant asked for yet further updates on 15 Nov. 2015, and again during 2016 (11 Feb. and later), which showed very little – if any – progress in this particular complaint matter being made. In an email from 18 Dec. 2016 the Ombudsman’s investigator indicated that correspondence re the issues complained about was being prepared, and was about to be signed off in January 2016.

Meanwhile, after responding to another complaint matter under the same file reference, last with a letter dated 23 June 2016, Prof. Paterson vacated his position as Ombudsman shortly afterwards, as he had surprisingly handed in his notice only a month or so before. Little information was given to the public to explain his sudden resignation, only about two years into his 5-year appointment.

On 23 August 2016 the complainant and OIA requester then received an email from the Office of Ombudsmen, which informed him of new investigators being employed, and that his complaint would be reassigned to a new one. Also was he being informed of the departure of Prof. Ron Paterson, and that new Ombudsman Leo Donnelly was going to take over his file. He was asked whether it would resolve his information request, if MSD would provide him with the salary ranges for the advisors.

See these links for two PDFs with scan copies of the Ombudsmen Office’s email from 23 Aug. 2016, one high-lighted:
Ombudsman, complaint, 36xxxx, MSD, OIA info w-held, Advisors sal., email, anon, 23.08.16
Ombudsmen, Office of, complaint 36xxxx, MSD, OIA info w-held, email, hi-lit, 23.08.16

From 09 Nov. to 21 Dec. 2016 the complainant sent a number of concerned emails to the Office of Ombudsmen, as he now had a number of complaints waiting to be processed, but had registered no detectable progress with any of them. Then the ‘Manager’ of the Ombudsmen Office in Auckland would on 22 December 2016 eventually give him yet another email update, including for the complaint covered by this post.

He informed the complainant that a new investigator was looking into this particular complaint, and that the complainant could expect correspondence from her “shortly”.

But it took the Ombudsmen until 28 February 2017 to finally respond with a formal letter, informing that Ombudsman Leo Donnelly had decided that MSD was justified in refusing the individual salaries for the Principal Health Advisor, Dr David Bratt, the Principal Disability Advisor, Anne Hawker, and for Senior Advisor Dr David Rankin.

Nevertheless, upon consultation with the Privacy Commissioner he also decided, that MSD should be advised to release a combined or aggregated salary range for the salaries of all the three Advisors, for public transparency.

Here is a link to a PDF with a scan copy of Mr Donnelly’s letter dated 28 Feb. 2017:
Ombudsman, complaint 36xxxx, MSD, OIA info w-held, Advisors sal., ltr, L. Donnelly, 28.02.17

A final decision, dated 12 April 2017, was sent by Ombudsman Donnelly to the requester. In it he commented that he had consulted with the individuals concerned, and that MSD had agreed that the salary information could be released by showing the lowest figure of the three salary bands and the highest figure of the same.

MSD had already on 11 April 2017 sent an email with some moderately useful information on the aggregated salaries, or combined salary ranges, covering all salaries of the three Advisors for MSD (see further below for details).

Here are links to PDFs with scan copies of the letter by Leo Donnelly dated 12 April 2017:
Ombudsman, complaint, 36xxxx, 16.01.14, MSD OIA, Advisor salaries, fin. dec., L. Donnelly, 12.04.17
Ombudsman, L. Donnelly, complt 36xxxx, MSD O.I.A., Advisor Salaries, fin. dec., hi-lit, 12.04.17

 
 

D). HUGE SALARIES PAID TO INFLUENCE GPs AND OTHER PRACTITIONERS

 

MSD’s FINAL OIA RESPONSE

It was on 11 April 2017, when the OIA information requester suddenly received an email from a person with the title ‘Senior Advisor’ at the ‘Ombudsman and Privacy Complaint Services’ at MSD. The email was titled ‘Official Information Act Request – 11/06/13 – Revision’.

Referring to their earlier response from 12 July 2013, and a few other details, the MSD Advisor now suddenly informed the requester of the following:

“Following dialogue with the Office of the Ombudsman, the Ministry has now revised its view and notes that, whilst the Official Information Act provides good reason to withhold the actual salaries of Dr Bratt, Ms Hawker and Dr Rankin on the basis of their privacy, the public interest requires that further information be released.

The Office of the Ombudsman considers that salary range information can be released as an appropriate balance between privacy and an agency’s accountability for the value they have accorded a particular role.

Therefore, I can advise that the salaries of Dr Bratt, Ms Hawker and Dr Rankin fall within a range of $120,669 and $234,837.”

Here are links to PDFs with scan copies of that email from MSD from 11 April 2017, one with highlighted text:
MSD, OIA Rqst fr. 11.06.13, Advisor salaries, Bratt, Hawker, Rankin, Revision, released 11.04.17
MSD, O.I.A. Rqst 11.06.13, Advisor Salaries, Bratt, Hawker, Rankin, Rev., email, hi-lit, 11.04.17
MSD, OIA Rqst, 11.06.13, Advisor salaries, Bratt, Hawker, Rankin, Rev., mail rel., 11.04.17
MSD, O.I.A. Rqst, 11.06.13, Advisor Salaries, Bratt, Hawker, Rankin, Revision, email, hi-lit, 11.04.17

 

LOGICAL CONCLUSIONS FROM THE OIA INFORMATION

This now reveals enough details to draw some relatively safe conclusions from the information, and we can now consider that Dr David Bratt, the “expert” working as Principal Health Advisor for MSD since late 2007 is getting paid well over $200,000 per annum to present such bizarre, questionable ‘presentations’ where he likens benefit dependence to “drug dependence”.

For memory, here are just a few of these ‘presentations’ he gave to GP and other conferences:

http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf
(‘Ready, Steady, Crook – Are we killing our patients with kindness?’, Dr Bratt + A. Hawker, MSD, Christchurch 2010, see pages 13, 20, 21 and 35)

http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(‘Medical Certificates are Clinical Instruments Too’, Dr Bratt, MSD, 2012, see pages 3, 16 and 33 for details)

http://www.google.co.nz/url?sa=t&rct=j&q=bratt%20ppt&source=web&cd=1&cad=rja&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=ZO9QUYjZApGSiAegmICIDA&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg
(‘Pressure / No Pressure – Strategies for Pushy Patients’, a link to a PowerPoint presentation by Dr Bratt and Anne Hawker, where again on page 27 a claim is made the “benefit” is an “addictive debilitating drug”).

http://www.gpcme.co.nz/pdf/WS%20142%20Bratt%20-%20Shifting%20Your%20Primary%20Focus%20to%20Health%20and%20Capacity.pdf
(‘Shifting Your Primary Focus to Health and Capacity – A New Paradigm’, presentation by Prof. Sir Mansel Aylward, Director Centre for Psychosocial and Disability Research, Cardiff University; Dr David Bratt, Principal Health Advisor, Ministry of Social Development; joint presentation at GP CME Presentation – June 2013; questioning “traditional” diagnosis on a medical model basis, and promoting the Aylward version of the “bio psycho-social model”, and even promoting ‘Long Acting Reversible Contraception’ to improve employability of women, see page 45!!!)

https://nzsocialjusticeblog2013.files.wordpress.com/2013/09/bratt-happy-docs-doctors-and-documents-presentn-2013-p-1-18-o-i-a-reply-09-2013.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/09/bratt-happy-docs-doctors-and-documents-presentn-2013-p-19-38-o-i-a-reply-09-2013.pdf
(‘Happy Docs – true generalism with Welfare Reform’, RNZCGP Presentation – July 2013, with the usual one-sided information that “work is generally good for you“, trying to explain some welfare changes, but now avoiding the “benefit“ to “drug“ comparison, after media and other attention to this)

 

We can presume now, that it is Dr David Bratt, who gets paid a salary at the upper end of the mentioned aggregate of salary bands paid by MSD, as he is now the most senior Advisor that MSD employs for health and disability related advice on welfare policy and processes. He commenced in his newly created role in late 2007 and has thus been in the job for nearly ten years. Also was his role created to oversee the many Regional Health Advisors, Regional Disability Advisors and Health and Disability Coordinators based at MSD’s Regional Offices all over the country. He is involved in policy advice and formation, he fronts or attends many meetings where MSD and WINZ communicate their policy, processes and intentions to professional organisations like GP conferences and the likes, he has consulted with overseas consultants like Prof. Mansel Aylward from the U.K., he has travelled to various national and international meetings and conferences, and is also the to go person for media.

Given the importance of his role, and his seniority, it is beyond doubt, that he must be getting the highest of all salaries. Anne Hawker is employed in a similar advisory role, for disability matters, but her qualifications and her lower involvement and publicity reveal, that she must be getting a lower salary than Dr Bratt. Even the once Senior (Health) Advisor Dr David Rankin, who held senior positions with CYFS and WINZ from 2006 to 2011, also being involved in preparing and formulating important changes to internal processes at WINZ from 2006 to 2009, will in our view not have received a salary that would have been over 200,000 dollars per year then, he is likely to have earned something in between what we guess Ms Hawker receives and what Dr Bratt receives.

The lower end of the salary bands will also represent the figure that one or two of the professionals may have received at the beginning of their engagements with MSD, which goes back a decade or more (Dr Rankin), when salaries were a fair bit lower anyway. So we believe, Dr Bratt may now be earning close to a quarter of a million a year, for doing his “work” in redesigning assessment criteria and processes for sick and disabled, and to implement and apply new policy across the WINZ branches and related sectors, in collaboration with the Regional Advisors and other stake holders. He had a previous role as ‘GP Liaison and Primary Care Advisor’ with The Capital and Coast District Health Board (DHB) for up to five years. That previous advisory role may have given him an advantage in obtaining the PHA role with MSD in the first place, and it will also have assisted him in achieving an agreement on a handsome salary with MSD.

In other OIA requests to MSD, one dated 16 Jan. 2014, the same requester had sought references and sources for the bizarre claims made by Dr Bratt, and asked for the scientific reports that were supposed to support the many repeated comments made by Dr Bratt. The responses received were mostly lacking proper, detailed evidence and offered only generalised, unspecific explanations and references. A complaint made to the Ombudsmen’s Office also only resulted in Prof. Paterson basically refusing to further investigate matters, as he simply accepted the unsatisfactory responses by MSD, and wrote, that MSD had justified reasons to withhold or refuse certain information that had been requested.

Ombudsman Paterson would even refuse to investigate a separate Ombudsmen Act complaint against MSD and Dr Bratt, where the complainant had asked that the apparently sudden, wholesale and unexplained deletion of all emails with certain contacts by Dr Bratt should be investigated. He alleged it happened in breach of the Public Records Act. It was soon after that when Dr Paterson suddenly resigned from his position as Ombudsman, about three years before his 5-year term was up.

 

HIGH SALARIES FOR ADVISORS TO TRY TO INFLUENCE HEALTH PROFESSIONALS

It is almost beyond belief, that MSD would pay such high salaries (now released) to such Advisors, who appear to have been hired and employed by MSD with the intention to change and “reform” the assessment criteria and processes for sick and disabled on benefits, to change the Social Security Act 1964 itself, to facilitate the virtual off-loading of such beneficiaries from welfare payment receipt, and to usher them into whatever paid employment deemed “suitable”, that may or may not exist on the wider open job market.

‘Experts’ such as Dr Bratt, who have evidently fallen for the supposed ‘evidence’ presented by mostly UK based ‘experts’ such as Prof. Mansel Aylward, at the former UNUM Provident funded ‘Centre for Psychosocial and Disability Research’ based at Cardiff University in Wales, are paid high salaries, while giving ‘presentations’ with questionable, even untrue and clearly biased information to health professionals. They are employed not only to advise WINZ staff and outside contacts on MSD’s processes and requirements, but also to try and influence such health and medical professionals, so to make them conduct examinations and assessments that may result in reports which ultimately serve the interests of MSD and WINZ, as other evidence has since shown. The abolition of the former Sickness Benefit and merger of that category into the ‘Jobseeker Support’ benefit, thus treating persons with serious enough health conditions and disabilities as “job seekers”, is just one example of what has resulted from the input of these Advisors.

Even Dr Rankin, who worked for MSD and WINZ from 2006 to 2011 was involved in the changes within, and he was also involved in the training of Designated Doctors, which was a measure never taken before by MSD, during at least 2008 – possibly still happening in some form to this day.

 

Here are some links to information that shows how Dr Rankin was also instrumental – as a highly paid ‘Advisor’ – in changing processes for the assessment of sick and disabled on benefits, to facilitate the reconsideration of their capacity for work, and thus shifting them off benefits, by training ‘Designated Doctors’ paid by MSD:

https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-working-nz-sdd-role-of-design-drs-memo-d-rankin-hi-lit-27-03-2006.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-sdd-dr-d-rankin-gp-second-opinion-memo-05-06-2007.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-design-dr-training-workshop-and-hd-coordntr-info-sheet-rankin-bratt-12-08-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-working-nz-work-foc-suppt-designated-doctor-training-resources-memo-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-des-dr-training-comm-requirements-j-russell-m-mortensen-memo-23-01-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-des-dr-training-comm-requiremts-j-russell-m-mortensen-memo-hi-lit-23-01-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-design-dr-fee-adjustment-proposal-dr-d-bratt-memo-copy-hi-lit-19-11-2008.pdf
(it can be seen that there was close collaboration between Drs Rankin and Bratt in these activities)

There is some other information available on Dr Rankin’s past work and present engagements in New Zealand and Australia, which can be viewed by clicking these links to PDFs with scan copies of other printed out documents (from websites and so forth):

LinkedIn profile of Dr Rankin, now ‘Clinical Director’ at ‘Medi Bank’ in Australia:
https://au.linkedin.com/in/david-rankin-96a40816

A PDF with a scan copy of his same profile, as on 13 April 2017:
David Rankin, Dr, once MSD and ACC, N.Z., LinkedIn Profile, scan copy, as on 13.04.17
Dr David Rankin, Medibank, once MSD, ACC, NZ, LinkedIn profile, scan, hi-lit, 13.04.17

Link to PDF with ACC’s ‘Business Plan’ for 2005-2006, with references to Dr Rankin as Manager of the ACC provider arm ‘Healthwise’, see pages 36, 37 and 39:
https://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=0ahUKEwi3-bXU583TAhWJHZQKHYW_BDwQFggzMAM&url=http%3A%2F%2Fwww.acc.co.nz%2FPRD_EXT_CSMP%2Fidcplg%3FIdcService%3DGET_FILE%26dID%3D5662%26dDocName%3DWCM2_020652%26allowInterrupt%3D1&usg=AFQjCNEWlrrJMh-nRbB8Bkof1K1SfKW1Tg

https://www.google.co.nz/?gws_rd=ssl#q=dr+david+rankin+msd+nz&start=20

Dr Rankin’s profile on the old ‘HISAC’ website (as on 26/07/2006):
http://www.hisac.govt.nz/moh.nsf/36329723e7a128c1cc2571bd000a7d16/2c0a957deaf288b6cc257378000792c1?OpenDocument
“David is a senior advisor with the Ministry of Social Development. He provides the Ministry with advice on working with health professionals and returning people to gainful employment.

David was formerly the General Manager – ACC Healthwise at the Accident Compensation Corporation, which he joined in 1998. David was CEO of Auckland Adventist Hospital from 1992 to 1997. Previous to that he was Director of Medical Services for Warburton Health Care Centre and Hospital in Victoria, Australia where he practised as a rural GP from 1985 to 1989. Dr Rankin holds a Masters in Health Administration and a Masters in Public Health. He gained his medical degree from the University of Otago in 1982.”

Dr Rankin’s profile as ‘speaker’ on the ‘Ko Awatea’ website (2017):
http://koawatea.co.nz/apac-forum/speakers-2017/david-rankin/

Dr Rankin’s profile on the RACMA website (2017):
http://www.racmacme.com.au/winter/speakers/dr-david-rankin/

Dr Rankin’s profile from the RACMA website, shown in a PDF with a scan copy of the same, 13 April 2017:
Dr David Rankin, Medibank, once MSD, ACC in N.Z., profile, RACMA, scan, 13.04.17

Here are some links to online web publications, in which references are made to Dr David Rankin, when he worked for MSD and WINZ:

‘Beneficiaries get priority health care’, Stuff.co, 20 June 2007:
http://www.stuff.co.nz/national/health/55382/Beneficiaries-get-priority-health-care

‘Launch of the Health Practitioner’s Handbook’, ‘beehive.govt.nz’ website, Darren Hughes, 10 July 2008:
https://www.beehive.govt.nz/speech/launch-health-practitioner039s-handbook
(‘Speech notes for Associate Minister for Social Development and Employment Darren Hughes – launch of the Health Practitioners Handbook, Horowhenua Health Centre, Levin’)

 

FURTHER SOURCES REVEALING THE TRUE AGENDA OF DR BRATT AND MSD

Here are links to another important post published on this blog, which shows how ‘Designated Doctors’ work and are used by MSD, when commissioned to examine, assess or re-assess sick and disabled on benefits for benefit entitlement and work capacity:

‘DESIGNATED DOCTORS – USED BY WORK AND INCOME, some also used by ACC: The truth about supposedly “independent” Designated Doctors’:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/https://nzsocialjusticeblog2013.files.wordpress.com/2016/10/designated-doctors-used-by-winz-msd-the-truth-about-them-post-upd-18-10-2016.pdf

Here are links to two other relevant posts, which contain further interesting background information on all this:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/02/medical-and-work-capability-assessments-based-on-the-controversial-bio-psycho-social-model/
https://nzsocialjusticeblog2013.wordpress.com/2013/09/07/the-health-and-disability-panel-and-its-hand-picked-members/

 
 

E). MSD AND DR BRATT PRESENT MISLEADING ‘EVIDENCE’

Since the requester had made his information request for the salaries of Dr Bratt, Anne Hawker and Dr Rankin on 11 June 2013, much more other information has become available to him and some associates, and it can now be said with certainty, that MSD and particularly Dr David Bratt, have been responsible for some significant misinformation of both health professionals and the public. So called ‘evidence’ can be challenged and disputed, given the fact that there is insufficient conclusive evidence to support the many claims about the ‘health benefits of work’, about ‘return to work’ statistics and so forth. Some information has been misinterpreted and then misrepresented, some is outright false, and some simply does not even seem to exist, as MSD never provided its reports or other sources. Some other ‘evidence’ admittedly exists, but has been quoted out of context, and has been given undue weight, so that it does not support the bold and misleading claims made by Dr Bratt.

Just one example of this to have happened can be found by looking at the following publication on this blog, and also at info available on other relevant and quoted websites:

‘SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’’
https://nzsocialjusticeblog2013.wordpress.com/2016/08/16/senior-scientist-and-legal-experts-discredit-evidence-used-by-msd-and-dr-bratt-when-claiming-the-health-benefits-of-work/

Here is the proof of a senior scientist challenging the ‘evidence’ used by Dr Bratt and MSD:
“Is the statement that if a person is off work for 70 days the chance of ever getting back to work is 35% justified?” NZMJ, 20 Nov. 2015:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729

Here is a must read post that reveals the extent of misinformation by MSD and Dr Bratt, based on OIA responses received, and the analysis of various reports and statistics presented:
‘THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH’
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
(Read chapters ‘C)’, ‘D)’ and ‘E)’ re the lack of evidence and flawed evidence used by MSD, and especially ‘F)’ about the Ombudsman’s actions – or rather missing action – in regards to Dr Bratt and his presentations, and his reported deletion of all emails to and from another external ‘Advisor’.)

The same post, downloadable in PDF form, which shows an updated version from 19 Sept. 2016:
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

Other also relevant information on the misuse of scientific information can be found here:
‘In the expectation of recovery’, Faulkner, Centre for Welfare Reform, Scrib:
https://www.scribd.com/doc/308613502/In-the-Expectation-of-Recovery
(criticism of wrong use of the biopsychosocial model, Aylward et al)

 
 

F). PUBLIC AND STATE SERVICE SALARY INFORMATION SOURCES – ALLOWING SOME LIMITED COMPARISONS

With the information made available by MSD, we can now look at some other salary information that has been made available, or that is available via a number of websites. But regrettably, in New Zealand, the availability of salary information for the public and state service is rather limited, often only showing what salaries and other income Chief Executive Officers (CEOs) are paid. There is no reliable information available on salaries for senior positions below CEO level.

Nevertheless, we can find some useful information to compare salaries, for instance to what ordinary ‘Case Managers’ working for MSD/Work and Income are paid, to what Members of Parliament (MPs) are paid, to what ‘Senior Legal Advisors’ and other professionals may be paid in the public service.

Here are some media reports on CEO salaries in the public sector:

‘Minister responds to claim of MSD salary hikes’
“Social Development Minister Anne Tolley says spending on big salaries at the Ministry of Social Development may well be justified.”

Radio New Zealand, RNZ, 21 June 2015:
http://www.radionz.co.nz/news/political/276790/minister-responds-to-claim-of-msd-salary-hikes

Extract:
“Labour’s Social Development spokesperson Carmel Sepuloni said there were 53 ministry staff on annual salaries above $200,000 – more than twice the number five years ago. Ms Sepuloni said spending on leadership workshops had also climbed to almost $800,000 this year, compared with just over $137,000 last year.”

‘Revealed: The highest paid public servants’,
Tracey Watkins, Fairfax, stuff.co, 26 Nov. 2015:
http://www.stuff.co.nz/business/74438020/Revealed-The-highest-paid-public-servants

 

Official reports:

MSD’s report to the Social Services Committee, with answers to pre-hearing questions, as part of their departmental annual review, 9 Dec. 2015 (downloadable PDF):

Social Services Committee, ‘Annual Review of the Ministry of Social Development 2014/2015’,
Wednesday 9 December 2015, Standard pre-hearing Questions 1-268:
https://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=21&cad=rja&uact=8&ved=0ahUKEwiV_J-5177TAhUHxbwKHfapAEQ4FBAWCCAwAA&url=https%3A%2F%2Fwww.parliament.nz%2Fresource%2Fen-nz%2F51SCSS_EVI_00DBSCH_ANR_66294_1_A462815%2F9d15b5cae602527c04454dd27fa515ecb1e2f930&usg=AFQjCNGLV5QJPwqlSWqGUHSgsdtqtBXqOg

(See page 64 with a list of salary bands and how many persons received salaries within the bands).

The State Services Commission only really releases information on what Chief Executives of state service entities earn, and in a report only give a vague insight into salary bands, and how many persons earn corresponding salaries:
http://www.ssc.govt.nz/ssw-pay#pay
http://www.ssc.govt.nz/sites/all/files/statesector-workforce-key-facts-june15.pdf
http://www.ssc.govt.nz/hrc-survey-2016
http://www.ssc.govt.nz/public-service-workforce-data/hrc-remuneration

Of some interest may be salaries over $ 100,000:
http://www.ssc.govt.nz/public-service-workforce-data/hrc-remuneration#over100k

OIA release by the ‘Crown Law Office’, dated 23 March 2017, published via FYI website, listing salary ranges for ‘Chief Legal Counsel’ positions in government departments:
https://fyi.org.nz/request/5462/response/18116/attach/4/3954167%20Letter%20to%20Glenn%20McAllister%20OIA%2020170323.PDF.pdf

See table 2 for the Ministry of Social Development:
“19. Ministry of Social Development: $161,289 to $241,934”

Limited, available salary band information, available via the website PayScale, for MSD listed positions:
http://www.payscale.com/research/NZ/Employer=Ministry_of_Social_Development/Salary/by_Job

Policy Analysts get something like 58,219 to 90,753 NZDs, according to that.

Some more info, with slightly different numbers:
http://www.payscale.com/research/NZ/Employer=Ministry_of_Social_Development/Salary

Case Managers earn roughly between 42,000 and 62,000, to 69,000 maximum

When advertising jobs online, MSD appears to not always publish the salary that can be expected, especially for jobs of the higher paid order, see their website:
https://jobs.msd.govt.nz/MSD/

The website ‘jobs.govt.nz’ offers little more:
https://jobs.govt.nz/jobs/jncustomsearch.searchResults
https://jobs.govt.nz/

For another comparison, the ‘Parliamentary Salaries and Allowances Determination 2016’ does in Schedule 1 list the salaries for Members of Parliament, and ordinary MPs get about $160,024 per annum:
http://www.legislation.govt.nz/regulation/public/2016/0252/latest/whole.html
(see Schedule 1)

 
 

G). CONCLUSION

It can be said with some certainty, that the Principal Health Advisor Dr David Bratt, and also Principal Disability Advisor Anne Hawker, same as the former Senior (Health) Advisor Dr David Rankin, have received and are receiving comparatively high salaries, that puts them into the top categories of state servants’ incomes.

The still employed Dr Bratt and Anne Hawker must be expected to be earning well above what most Advisors in various government departments or agencies earn, and above what our ordinary MPs earn per year, and they belong to the top earners within MSD.

When considering what actual professional qualifications experience they have, and what they provide in work and services, the question must be put, are their salaries appropriate, and this must surely be asked when looking at Dr Bratt and his in our view questionable performance and conduct as the most senior internal health advisor at MSD.

Making unfounded claims about inconclusive findings on the ‘health benefits of work’, likening the dependence on benefit support to “drug addiction”, offering quotes without properly referencing them to any scientific reports that may back them up, and making comments to media, that are also not backed up by solid science, that disqualifies a person like Dr Bratt from working in the kind of role he holds. Yet he gets rewarded with a salary package that beats those of many other professionals who face much more public and expert scrutiny, given the different roles they may have, working for agencies or employers that are not as “protective” as MSD appear to be of Dr David Bratt.

There would not be many other developed countries, where such practices would be tolerated, but in New Zealand it appears to be more important what connections you have, who pays, supports and protects you, and what you are supposed to do for certain vested interest holding parties, than what your qualification, ethical standards and integrity should demand of you as a professional person.

What is also important to note is the fact that the Office of Ombudsmen appears to be either so under-resourced, or overburdened with their work-load, or perhaps even so poorly ‘motivated’ to resolve such complaints as the one described above. It is in our view close to scandalous, that a complainant has to wait nearly 4 years after an OIA request was made, for the sought information to be finally made available. That was of course the case only after the Ombudsman did eventually step in and asked MSD to provide at least some salary bands to give the requester and the wider public an idea of how highly paid these particular ‘Advisors’ are for the at times questionable work they are doing.

With such a state of affairs, such poor transparency, and lack of accountability, we have a situation in New Zealand that leaves very much to be desired, when it comes to holding senior Advisors and their employers in the state or public service accountable for their conduct and disregard for standards.

 
 

M. C.

 

Auckland, New Zealand – 30 April 2017

 
 

PLEASE FIND HERE A DOWN-LOADABLE PDF WITH THE COMPLETE TEXT OF THIS POST, WHICH SOME MAY FIND EASIER TO READ:
MSD Releases OIA Info On Health Advisor’s Salaries, Nearly 4 Years Late, Post, 30.04.17

 
 

ADDENDUM – 01 MAY 2017, MORE REASON TO BE CONCERNED:

 

‘NZ DOCTOR’ ARTICLE:

‘Registrar’s visit to south Auckland Work and Income an eye-opener’, by Fiona Thomas, from 1 March 2017:

Extract from article text:

“Writing a medical certificate is akin to writing a prescription for a drug with significant side effects, East Tamaki Healthcare GP trainer Tane Taylor told registrars on a visit to Work and Income Manurewa last month.

It was the fifth time GPEP1 registrars working at ETHC clinics had paid a visit to the centre, in a partnership set up to help them understand their role in the Work and Income process.”

“Present for the session was Ministry of Social Development principal health advisor David Bratt, along with health and disability coordinators and staff from the Manurewa centre.

Dr Bratt and Dr Taylor both emphasized to the registrars the importance of striking a balance between writing certificates and encouraging patients to return to work.”

“Dr Taylor says he would like to see a change in the culture of how medical certificates are treated, with greater encouragement to help people with their medical difficulties and encourage them back to work. It is not the role of GPs to assess whether there are enough jobs for people to go to, he says.”

“Health and disability coordinator for the Ministry of Social Development Sandi Field told the registrars whether clients have a medical certificate or not does not affect the amount of allowance they receive. What differs is Work and Income’s expectations of them…”

“Dr Bratt says there has been interest in the workshop from other regions and he would like to see it offered elsewhere.”

Here is a link to ‘NZ Doctor’ magazine and to that article, if it should not load, try to search for the article by putting the title into your search engines search box:
https://www.nzdoctor.co.nz/in-print/2017/march-2017/1-march-2017/registrars%E2%80%99-visit-to-south-auckland-work-and-income-an-eye-opener.aspx

Here are links to two PDF files with two scan copies of the article, which we offer for independent private research and study purposes:
NZ Doctor, Registrar’s visit to south Auckland WINZ an eye-opener, F. Thomas, article, 01.03.17
NZ Doctor, Registrar’s visit to south Auckland WINZ an eye-opener, article, high-lit, 01.03.17

 

Author’s comments:

Here we go yet again, the attempts by MSD and Dr Bratt to influence medical and health practitioners, even during their training to become general practitioners (GPs), continues as per the agenda they follow. It may all appear to be rather subtle and even convincing to the participants, what is being communicated, but this kind of interference into the independent work of doctors is unacceptable and must be stopped!

Firstly there is again clear misinformation happening, as it clearly is not true that a medical certificate by a health practitioner has no effect on any allowances paid by Work and Income (WINZ). There is for instance a marked difference between the rates for the Supported Living Payment (SLP) benefit and the Jobseeker Support benefit (over $50 difference), just check their own website for the details:
https://www.workandincome.govt.nz/products/benefit-rates/benefit-rates-april-2017.html
https://www.workandincome.govt.nz/products/a-z-benefits/disability-allowance.html

A medical certificate will give details on work capacity and likely availability to work or training, and this will determine what kind of benefit will be paid. Also will it depend on such details in a certificate, what kind of medication or treatment a client of WINZ may need, which again influences or determines whether a person may be entitled to a Disability Allowance or other necessary support.

Hence the Health and Disability Coordinator quoted in that article is simply telling lies, and is intentionally misleading the registrars who were told the above, as such a Coordinator has been trained by MSD and is well informed about what entitlements there are.

The risks are being ignored – or taken too lightly, that persons with health conditions and disability, particularly those with complex health conditions, and hard to detect or understand mental health conditions, can suffer serious harm when being considered “fit for work”, while they are not.

Dr Tane Taylor was himself one of the appointees to a so-called ‘Health and Disability Panel’ that was set up by MSD and/or former Social Security Minister Paula Bennett in about 2011, for the purpose of consulting on health and disability matters as part of a lengthy process of changing the benefit system, and even substantially changing the Social Security Act 1964, which all came into effect in July 2013. He appears to have fully signed up to collaborate with MSD in these areas.

See this post on this blog, found via the following link, which mentioned already years ago, the involvement of Dr Tane Taylor with that Panel and with MSD:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/07/the-health-and-disability-panel-and-its-hand-picked-members/

Since then MSD and WINZ even made it harder for appellants when facing a so-called ‘Medical Appeal Board’ (MAB) hearing, as they changed that process of the hearing as well:
https://nzsocialjusticeblog2013.wordpress.com/2015/03/17/the-medical-appeal-board-how-msd-and-winz-have-secretely-changed-the-process-disadvantaging-beneficiaries/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16.pdf

Community Law New Zealand were informed of this years ago, but as they are themselves government funded, through the Ministry of Justice, they are also told to keep quiet.

This forum is the only one we are aware of that dares raise all these matters, which the mainstream media simply ignores, as their staff and editors rather “trust” the government officials.

 

M. C.

 

Auckland, New Zealand – 01 May 2015

 
 

ADDENDUM – 03 MAY 2017, FURTHER REPORT PROVING THAT THE ‘BIO PSYCHO SOCIAL MODEL’ (BPS) IS FLAWED:

 

‘BLAMING THE VICTIM’ REPORT, BY SHAKESPEARE ET AL:

A reader and follower of our blog has pointed out another report that is available online on the internet, and that can on some websites be down-loaded as a PDF file. It is another report that exposes the Aylward and Waddell version of the so-called ‘bio-psychosocial model’ (BPS) as being flawed and of no use to apply in the way they have proposed.

We do not wish to go too much into detail, you will need to read the report to understand the details, so here we do at least offer it:

‘Blaming the victim, all over again: Waddell and Aylward’s biopsychosocial (BPS) model of disability’
http://journals.sagepub.com/doi/pdf/10.1177/0261018316649120

Authors:
Tom Shakespeare, Nicholas Watson, Ola Abu Alghaib

By: SAGE Publishing – 2016

A PDF with the report is downloadable here:
https://ueaeprints.uea.ac.uk/58235/1/1351_Shakespeare.pdf

 

“ABSTRACT“

“The biopsychosocial (BPS) model of mental distress, originally conceived by the American psychiatrist George Engel in the 1970s and commonly used in psychiatry and psychology, has been adapted by Gordon Waddell and Mansell Aylward to form the theoretical basis for current UK Government thinking on disability. Most importantly, the Waddell and Aylward version of the BPS has played a key role as the Government has sought to reform spending on out-of-work disability benefits. This paper presents a critique of Waddell and Aylward’s model, examining its origins, its claims and the evidence it employs. We will argue that its potential for genuine inter-disciplinary cooperation and the holistic and humanistic benefits for disabled people as envisaged by Engel are not now, if they ever have been, fully realized. Any potential benefit it may have offered has been eclipsed by its role in Coalition/Conservative government social welfare policies that have blamed the victim and justified restriction of entitlements.”

Other links:
https://ueaeprints.uea.ac.uk/58235/

http://eprints.gla.ac.uk/120085/

http://forums.phoenixrising.me/index.php?threads/dns-%E2%80%98biopsychosocial%E2%80%99-basis-for-benefit-cuts-is-%E2%80%98cavalier-unevidenced-and-misleading%E2%80%99.45109/

 

Comment:

This report may even deserve a separate post for itself, so we will consider whether we will have the time to prepare and publish one on it.

 

THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION

THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION

 

Published: 05 September 2016

 

CONTENTS:

1. INTRODUCTION
2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE
3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014
4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE
5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014
6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE
7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015
8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION
9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL
10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015
11. CONCLUSION

 

1. INTRODUCTION

We have on ‘nzsocialjusticeblog2013’ previously presented a very comprehensive post that covered and revealed, how poorly the former Chief Ombudsman, Dame Beverley Wakem, handled and then decided on two earlier complaints against the Health and Disability Commissioner (HDC). The complaints presented to the Ombudsman’s Office had raised serious issues with the HDC’s assessments and decisions in relation to two complaints made to his Office. Questions were raised primarily re the Deputy HDC and her handling of complaints. There were indications that the HDC failed to meet natural justice standards, and also appeared to have a strong tendency to simply dismiss very valid complaints as not needing an investigation. Evidence was presented in documented and well worded form. Fairness, reasonableness and objectivity of the HDC’s actions were being questioned. The Ombudsman processed both complaints under one reference number (3xxxxx), only after a long delay, and the investigating officer who was handling the matters rather poorly, she appeared to be under extreme work-load pressure, and unable to properly, thoroughly and carefully examine and assess all the information that was of relevance.

The particular earlier post on this blog can be found by clicking this link:
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/
The title was:
‘THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME’

The complainant behind those complaints, who was over this period driven close to despair, decided to take the matter further. He had the impression that the Office of Ombudsmen was not particularly keen on acting as a “watchdog” also for the other Officers of Parliament, such as the HDC, although the Ombudsmen Act 1975 does give the Chief Ombudsman and her/his Deputy the powers to conduct investigations into decisions and other actions by those other Offices (see s 13(1) and Part 2 of Schedule 1). While the functions and scope of authority of the Ombudsmen are though limited by other provisions in the same Act, and while the Ombudsman has discretion to decide to take no action (see s 17), it was the view of the complainant that the Ombudsman’s investigating officer had failed to consider very important and relevant facts, proved by documents he had presented. It was completely incomprehensible to him, how the Chief Ombudsman, clearly acting upon advice by her investigator, could have come to the conclusions and decision she had made. It was even more difficult to understand how she would upon a request for a review of her decision then protect her staff by even refusing to look at the presented complaints and evidence again, thus failing to do her duty as an employer under section 11(2) and (3) of the Ombudsmen Act, to examine the conduct of her investigator. At times the complainant got the impression, that behind the scenes the Ombudsman was actually intentionally covering not only her own staff, but also the HDC and their staff, from any challenges directed at them.

To cut the story short, the complainant could only come to the conclusion that the Chief Ombudsman, and in particular her staff, failed in properly and effectively fulfilling their function, due to significant increases over the years in the over-burdening work load that the staff were unable to cope with. The complainant considered that this unacceptable situation, brought about by the government not setting enough finances aside to pay for the proper, effective operation of the Ombudsmen’s Office, led to poor quality outcomes in the assessments of complaints and decisions formed on them.

Thus he prepared a formal request to the Office of the Controller and Auditor General (OAG), which was headed by Lyn Provost, to ask for an inquiry into, and a special performance audit of, the Office of the Ombudsmen. It was his intention to bring to the attention of the Auditor General the problems he experienced with the handling of his own two complaints, and the information he had found and read about the under-funding and resulting difficulties at the Ombudsmen Office. There had been repeated media reports and also comments by the Chief Ombudsman herself, in the Annual Reports released by that Office, which made it more than clear, that their Office was unable to cope with an ever increasing work-load, while insufficient funding was limiting its staff’s ability to cope with this.

The complainant realised, that there was no chance to legally challenge the Ombudsman’s decisions on his filed complaints, except by perhaps seeking a judicial review through the High Court. But such a proceeding was beyond his financial and other means. The OAG could at least take a look at how the Ombudsmen and their staff operated, and whether all legal requirements and expected standards were being complied with. He wrote a request letter dated 28 August 2014, which he would send to the OAG in late August that year, and in the following we present the request and relevant details in this post.

 

2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE

So in the afternoon of 31 August 2014 the complainant presented his formal request, dated 28 August 2014, by way of sending 8 emails, with his attached letter and also a number of relevant evidence documents, to the Office of the Auditor General. Emails 4 to 8 had attached to them the earlier emails he had sent to the Office of Ombudsmen on 16 June 2014 – in relation to his earlier complaints filed there. The receipt of all of the correspondence and attachments was later confirmed by email at 11.22h on 01 September 2014, by Jxxx Hxxxxx, Inquiries Co-ordinator.

At 18.43h on 02 September 2014 the complainant then also sent to the Office of the Auditor General an email that had attached to it PDF files with the two original complaints that had been filed with the Ombudsmen against the HDC (C11HDCxxxxx and C12HDCxxxxx). As he received no confirmation for the receipt of that email, he requested this by email on 05 September 2014. At 09.18h on Monday, 08 September Jxxx Hxxxxx from the OAG responded by email, again confirming receipt of that further correspondence. The complainant did refrain from sending the comprehensive and numerous evidence documents that he had sent to the HDC and in part also to the Office of Ombudsmen, in relation to his earlier complaints, as he wanted to avoid inundating the OAG with information. He knew that the evidence was available from the HDC and Ombudsmen’s Offices, and that an inquiry and audit at the Ombudsman’s Office would give the OAG staff access to all relevant information anyway. In a brief email from 14.36h on 08 September 2014 the complainant thanked for the response and indicated that he would understand that the assessment and response to his requests would take some time.

 

Here is the authentic text of the whole request letter dated 28 August 2014, which the complainant sent to the OAG:

Re: Request for an inquiry into, and a special performance audit of, the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 18 and 16 of the Public Audit Act 2001)

Dear Lyn Provost, dear staff at the Office of the Auditor-General

[1] Please accept my request to your Office to conduct a special, independent and thorough, inquiry into the effectiveness and efficiencies, as well as into the compliance with statutory obligations and the applicable quality standards – of all operational, administrative and managerial activities at the Office of Ombudsmen. I ask you and your Office to fully investigate and audit all relevant aspects of the expected performance of staff and management, the applied procedures and processes at their Office, and also their full compliance with not only accepted standards, but also with the legal provisions of the Ombudsmen Act 1975, same as other relevant law. My request includes a detailed examination of how staff members at that Office cope with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they are instructed to follow. I make this request due to the following very serious concerns about the Office of Ombudsmen and their staff:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by investigating officer(s) during assessments of complaints, affecting quality and standards of service the Office is meant to provide
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept presented clear, compelling evidence
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● questions about the appropriate allocation of financial and human resources in areas of need within the Office, which have only been increased insufficiently
● apparent non-compliance with provisions of the Ombudsmen Act 1975 and other law

[2] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The present situation at the Office of Ombudsmen is extremely unsatisfactory, as complainants are being denied justice. The stated concerns are aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload has increased substantially and disproportionately to available resources over the years. This has become evident from the annual reports the Office of Ombudsmen has released, as well as from many media reports. Public trust in the performance and quality of service by the Office of Ombudsmen are at risk of being seriously damaged due to the above stated issues (see [1]).

Own disturbing experiences with Office of Ombudsmen’s complaints handling

[3] Following two separate complaints to the Office of Ombudsmen (filed under their reference number xxxxxx), which related to two disputed decisions by the Health and Disability Commissioner (HDC), and which I filed with the Office on 13 November and 16 December 2013, I recently received two responses from Chief Ombudsman Beverley Wakem, that raise major, serious concerns about the quality, effectiveness, efficiency and appropriateness of internally followed operational procedures and processes. Crucial relevant evidence appears to not have been considered during an assessment of my complaints, and again also not upon a review I sought. Already a couple of years ago I had received at least one earlier decision from the Chief Ombudsman in another matter, which showed, that staff at the Office do at times make mistakes and may fail to consider relevant information, which appears to be due to rushed decisions being made, while working under extremely high work load pressures. My concerns were substantially heightened by another letter I received from the Office on behalf of Ombudsman Ron Paterson in yet another, separate complaint matter (ref. 3xxxxx), which was dated xx May 2014. In that letter Mr Xxxxx Sxxxxxx (Manager – Investigations and Resolution) wrote: “Limited investigative resources to date have meant that this Office has been unable to progress your complaint as quickly as we would like”. It relates to an Official Information Act 1982 (OIA) request based complaint that has been before the Ombudsman for over a year now. That letter and substantial other information confirm my sincere, justified concerns that were also reported on by various media outlets since already 2012, in which Chief Ombudsman Beverley Waken herself stated repeatedly, that her Office was unable to cope with an increased work-load, while working with very limited funding.

Background

[4] Upon sending the Ombudsman two separate complaints about the unacceptable handling of two earlier complaints by the Health and Disability Commissioner (HDC) on 13 November 2013 and on 16 December 2013, I did for four to five months receive no proper response at all from the Office of Ombudsmen. The two rather complex complaints (one being about 2 XXXX counsellors, and another about Work and Income ‘designated doctor’ Dxxxx Xxxxxxx) had been handled by the HDC under their reference numbers C11HDCxxxxx and C12HDCxxxxx. A further email request for an update on my complaints, sent in on 23 February 2014 was also not responded to. Only after repeated phone calls to the Office of Ombudsmen on 22 and 28 April, and again on 26 May 2014, did I finally get assurances that my complaints had been received, and that they were now being progressed. Delayed by yet over another month after my first phone contacts in April, I eventually received a report and decision that had been formed and prepared by their investigating officer Xxxxx Gxxxxxx, but which was signed by Chief Ombudsman Beverley Wakem, and dated 28 May 2014.

[5] The decision from 28 May 2014, prepared by Miss Gxxxxxx, was to not investigate either of my two complaints. Some of her considerations in her assessment of my complaint were actually based on clear misunderstandings, and she even ignored very relevant evidence, that I had presented with my complaints. It appeared that Miss Gxxxxxx incorrectly thought I simply wanted to “appeal” the HDC’s decisions, and expected her to review and overturn these decisions, by making determinations about my treatment by the XXXX counsellors and Dr Xxxxxxx. In any case she firmly and fully relied on comments made by Deputy Health and Disability Commissioner Theo Baker and those by certain other staff members at the HDC Office. The Deputy HDC had herself fully relied on statements made by the Chief Executive of Waitemata DHB, and in the other HDC complaint matter also on Dr Dxxxx Xxxxxxx, which were though at least in part completely incorrect, irrelevant, flawed and unacceptable. It appears that Miss Gxxxxxx conducted her assessment of my complaints to the Ombudsmen Office only on paper, without considering all relevant evidence that had been provided by me.

[6] I was prompted to respond to the decision prepared by Miss Gxxxxx, and signed by Miss Wakem, by way of further written submissions, in which I expressed my objections to the way my complaints had been handled. By way of 3 emails, sent on 16 June 2014, I presented and explained my serious concerns. Also did I provide further detailed evidence, which proves that staff at the HDC Office had actually given untrue information to me and in the process also to Miss Gxxxxx. They had claimed that an original complaint I had made on 08 August 2011 (under HDC ref. C11HDCxxxx) couldn’t be processed, as my emails allegedly “froze” their computer system. Authentic emails and other evidence presented to the Office of Ombudsmen on 16 June proved that staff at the Office of the Health and Disability Commissioner had lied about the emails that I initially sent to them. I did also point out once again, that certain considerations by the HDC in the handling of my complaints were not at all relevant, and that other relevant information had not been considered by them. As Miss Gxxxx and Miss Wakem had earlier considered that the Deputy HDC had made the appropriate decision, I pointed out and explained to her, that she was wrong with her considerations. I must refer you to the contents in my letter to the Ombudsman from 16 June 2014, to read and assess all details.

[7] Despite of my stated objections and concerns, and despite of the further evidence provided by me, Chief Ombudsman Beverley Wakem again fully relied on Miss Gxxxxxx’s account of her earlier handling of my complaints, which she stated in a letter with her final decision, that was dated 10 July 2014. She strongly defended Miss Gxxxxxx’s supposedly appropriate considerations of the earlier evidence I supplied, and also her reasoning behind her decision. Miss Wakem simply reiterated earlier statements, that she saw no reasons to investigate my complaints. She also referred me back to the letter sent earlier, without giving any consideration to further new, very crucial and revealing information that I supplied on 16 June. That information proved that emails carrying my original complaint from 08 August 2011 had actually all been received, and had internally been passed on to another staff member for assessment at the HDC Office. I furthermore had made clear, that all emails sent to the HDC Office in that complaint matter were of ordinary, common types and sizes, and had standard size PDF attachments, which were easy to open by any normal system. Similar types and sized emails could strangely be opened by the HDC when receiving my second complaint.

[8] Given the very uncompromising position by Chief Ombudsman Beverley Wakem, where she stated in her last letter, that her Office would not enter into further communications regarding my complaints to the HDC, I am left in a situation where I have no way to raise any further concerns and considerations re the handling of my complaint by the Office of Ombudsmen. I have been given the signal that any further attempt by me, to seek to resolve the totally unsatisfactory situation with their Office, is unwelcome. The only remaining option would be to apply for a judicial review at the High Court. But I neither have the financial resources, nor the mental and physical strength, to pursue with such a proceeding. Indeed it seems unreasonable to me, to be forced to take legal steps. This has left me with an extremely unsatisfactory outcome, where I have been denied justice, which is causing me great distress.

[9] While I am aware that the Ombudsman can under section 17 (1) (b) of the Ombudsmen Act 1975 refuse to investigate a complaint, it is clear to me that in the case of my complaints the Ombudsman did not have regard to all the circumstances of the matter. Relevant evidence, and the impact of any decision, must be considered as important to have regards to, as part of all the circumstances. Apart from that, it is also my impression that the staff members at the Office of Ombudsmen are now expected to work under extremely high work-loads, performance, time and target pressures, which are unreasonable, and which are the result of constant reviews, cost saving measures, streamlining and restructuring. This has led to assessments and investigations not being done up to expected standards, to mistakes being made, to cases being left unattended for unacceptably long periods, to short-cuts apparently being used, and to cases being re-prioritised. It seems that staff members even have to resort to prematurely dismissing complaints as not being serious enough, to deserve being investigated. It also appears that the Chief Ombudsman has in this case not been honestly and correctly informed by her staff about crucial details of my complaints, and it must be presumed that this has happened, and continues to happen, to many other complainants.

[10] Given the very poor outcome of the handling of my complaints, the refusal by the Chief Ombudsman to review the decision made on 28 May, and having read various official and media reports about serious problems at the Office, I am very concerned about the situation at the Office of Ombudsmen. It is my impression that the financial and other resources available to the Office are not appropriately placed in the particular areas, where they are needed, in order to ensure that service quality and standards, same as necessary compliance with legal provisions in their service delivery aren’t compromised. While the Office of Ombudsmen appears to put many resources into various high priority areas, projects and cases it deals with, there are insufficient resources put into other areas that are also important. This has resulted in deterioration in the standard and quality of certain less prioritised services that the Office’s workforce is supposed to deliver under the Ombudsmen Act 1975 and other statutes. Unlike the Office of the Privacy Commissioner, the Office of Ombudsmen does not appear to seek regular, conclusive feedback from all complainants it deals with. The Privacy Commissioner does nowadays request complainants to at least respond to an online client satisfaction and feed-back survey. The Ombudsman has never asked me or many other complainants I am aware of, to provide comprehensive feedback or a survey on their services. In their ‘Statement of Intent 2014-2018’ (see page 13) the Ombudsmen state that they only conduct bi-annual surveys of stakeholders, and that is only for investigated complaints. According to that report, this survey was apparently only started in the year 2008/09 and repeated in 2011/12. This hardly provides enough data to establish the overall satisfaction of persons dealing with the Office of Ombudsmen, as complainants, enquirers or otherwise.

[11] Although Parliament has this year approved an increase of funding for the Office of Ombudsmen, it appears evident, that this funding is insufficient to meet the growing needs of the Office, to perform all its functions and deliver the various important services expected. Work load increases have continued to be disproportionately high, when compared to the limited resources available. Staff numbers (including the two Ombudsmen themselves) have remained virtually unchanged for many years. I am unconvinced that the moderate increase in funding of the Office has resolved the many internal issues and challenges, and brought the needed improvements that are necessary to enable the Office to operate effectively to fulfil its functions. In any case a review of the whole operational, administrative and managerial procedures and processes, and the quality of decision making at the Office of Ombudsmen is overdue. This must be preceded by a special, thorough, independent, external inquiry and a more comprehensive performance audit than usual. The regular yearly audits conducted so far focus on balance sheet type financial information, and on standard output data based on a narrow scope of performance indicators. There is little or no information made available about how various staff members working at the Office are coping with an ever increasing workload. There are though worrying signs in a table in the Annual Report of the Ombudsman for 2011/12, showing a significant increase in staff sick and family leave, which seems to indicate negative effects through excessive stress on workers’ health. As already mentioned, there is also very insufficient data on client or complainant satisfaction with the Office’s service. This all justifies a special inquiry and audit to be conducted by the Office of the Auditor General.

The Office of Ombudsmen and its statutory functions

[12] The Office of Ombudsmen does under the Ombudsmen Act 1975 and a number of other statutes fulfil the following functions, which are also listed on page 5, under ‘Nature and Scope of Functions’ in the ‘Statement of Intent 2014-2018’ (SOI):
● investigate state sector administration and decision making – under the Ombudsmen Act 1975 (OA);
● investigate and review decisions made on requests to access official information – under the Official Information Act 1982 (OIA) and the Local Government Official Information and Meetings Act 1987 (LGOIMA);
● deal with requests for advice and guidance about alleged serious wrongdoing – under the Protected Disclosures Act 2000;
● monitor and inspect places of detention for cruel and inhumane treatment – under the Crimes of Torture Act 1989;
● provide comment to the Ministry of Transport on applications for authorised access to personal information on the motor vehicle register – under section 249 of the Land Transport Act 1998.

[13] In the ‘Statement of Intent’ it also says:
“In carrying out our functions, we provide Parliament and the New Zealand public with an independent and impartial check on the quality, fairness and integrity of state sector administrative conduct. By contributing to wider administrative improvement in the state sector, we can help to reduce overall downstream costs caused by poor decision making and ineffective administrative processes.” The SOI states two international responsibilities the Office has. It carries out its function to monitor and inspect places of detention under the Crimes of Torture Act 1989 as a “National Preventive Mechanism”. That Act fulfils New Zealand’s responsibilities under the “United Nations Optional Protocol to the Convention Against Torture”. The Office also performs an “Independent Monitoring Mechanism” while protecting and monitoring the implementation of the ‘United Nations Convention on the Rights of Persons with Disabilities’ (commonly known as the ‘Disabilities Convention’). The Office carries out this role by investigating administrative conduct within the state sector.

[14] Under ‘Other functions’ the SOI furthermore states:
“To complement and support our main functions under legislation, we are increasingly taking steps to:
● provide advice and guidance to state sector agencies in order to improve state sector capability in areas relevant to our role; and
● improve public awareness and accessibility of our services.”

[15] The Office is legally constrained to perform its functions and can only conduct investigations, reviews and inspections, and offer advice, guidance and recommendations. The Ombudsmen can only make comments on matters that come to their attention and present reports.
On page 7 of the Statement of Intent it says: “Given the constraints on our role, most of our interventions to improve state sector administrative conduct are carried out through persuasion and reporting, rather than compulsion. To do this effectively, we need to be relevant, fair and accessible. We need to provide well-reasoned and independent opinions, and our interventions need to be proportionate, taking into account the impact on the agency and the costs and benefits of any proposed remedies.” This is further qualified by comments under the heading ‘Strategic Direction’ in the SOI (see page 8), where the Ombudsmen concede: “Our strategic direction is:
• guided by the legislative functions assigned to us by Parliament; and
• informed by the current environment and the Government’s strategic direction.”

The Ombudsmen’s core functions under the Ombudsmen Act 1975

[16] According to section 10 under the Ombudsmen Act 1975 (the Act) the Ombudsman has taken an Oath as an Officer of Parliament, “that he will faithfully and impartially perform the duties of his office, and that he will not, except in accordance with section 21, divulge any information received by him under this Act.”

[17] Under section 13 of the Act the functions of both Ombudsmen are stated as:
“(1) Subject to section 14, it shall be a function of the Ombudsmen to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the departments or organisations named or specified in Parts 1 and 2 of Schedule 1, or by any committee (other than a committee of the whole) or subcommittee of any organisation named or specified in Part 3 of Schedule 1, or by any officer, employee, or member of any such department or organisation in his capacity as such officer, employee, or member.
(3) Each Ombudsman may make any such investigation either on a complaint made to an Ombudsman by any person or of his own motion; and where a complaint is made he may investigate any decision, recommendation, act, or omission to which the foregoing provisions of this section relate, notwithstanding that the complaint may not appear to relate to that decision, recommendation, act, or omission.”

[18] Section 17 of the Act allows the Ombudsman to refuse to investigate a complaint:
“(1) An Ombudsman may—
(a) refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition the House of Representatives, to which it would have been reasonable for the complainant to resort; or
(b) refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.
(2) Without limiting the generality of the powers conferred on Ombudsmen by this Act, it is hereby declared that an Ombudsman may in his discretion decide not to investigate, or, as the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than 12 months before the complaint is received by the Ombudsman, or if in his opinion—
(a) the subject matter of the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in good faith; or
(c) the complainant has not a sufficient personal interest in the subject matter of the complaint.
(3) In any case where an Ombudsman decides not to investigate or make further investigation of a complaint he shall inform the complainant of that decision, and shall state his reasons therefor.”

The Ombudsman’s failures in appropriately processing my complaints

[19] In the handling of my complaint the Office of Ombudsmen staff and the Ombudsman failed to:

● Apply due professional care in performing their duties – when assessing and deciding upon my complaints, and thus acted carelessly or negligently due to work pressures;
● apply natural justice, by not fairly considering all relevant evidence, and by failing to reasonably take the necessary steps to properly assess and investigate my complaint;
● correctly adhere to and follow the provisions of the Ombudsmen Act 1975 (i.e. sections 10, 13 (1) and (3) and section 17 (1) (b));
● provide me justice, by unfairly deciding that my complaints did not require to be formally investigated, and by refusing to review their decision from 28 May 2014;
● treat two distinct complaints equally, by apparently giving complaint C12HDCxxxxx to the HDC even less attention to detail, than in the case of complaint C11HDCxxxxx;
● hold staff to account for mistakes and/or misrepresentations made in the assessment.

[20] As this request and complaint to your Office of the Auditor-General cannot be based on the rights or wrongs of judicially formed and made decisions made by the Ombudsman, I will refrain from delivering arguments and evidence to prove in detail the failures by the Office of Ombudsmen in that regard in this letter. Please examine and consider my letter and further evidence that I sent to the Office of Ombudsmen by emails on 16 June 2014, in order to establish the veracity and facts in that matter. You will also need to consider the initially sent emails and attached evidence to the Office of Omdusmen, to properly assess and consider all details in regards to those failures. I trust that the Office of Ombudsmen will make the file with all relevant correspondence and presented evidence available for your inquiry and audit. I would be happy to send you the complete original complaint information, if the Office does not have on record all relevant submissions (including correspondence and evidence documents).

[21] As for the Ombudsmen Office’s failings to apply due professional care in processing, assessing and investigating my complaints, my letter from 16 June to their Office does also partly cover this. It appears that Miss Xxxxx Gxxxxxx did not progress the complaints I made about the HDC for months, until I finally phoned her Office in late April 2004, having received no proper reply. The letter from the Ombudsman from 28 May (prepared by her) also indicates that she did not consider all the issues I raised in relation to my complaints to the HDC. She clearly failed to examine and assess all relevant evidence presented to her as an investigator. That led to her drawing the wrong conclusions, like claiming emails I sent to the HDC Office “froze” their system. In that matter she erred and relied on staff at the HDC Office having misrepresented the truth (i.e. lied). Presented emails should have convinced her of the opposite. Also did Miss Gxxxxxx follow the poor example of the HDC Office staff by not giving consideration to relevant evidence, and instead relied on summarised reports and statements by the respondents to my complaints to the HDC Office. She simply accepted the HDC’s statements and reasoning, without further examining facts. She ignored conflicts of interest by the respondents’ employer in the first complaint, and she relied on considerations in the second complaint, which were totally irrelevant, namely that my complaint about Dr Xxxxxxx was more appropriately dealt with by a Ministry of Social Development (MSD) appointed Medical Appeals Board, which though has no jurisdiction over issues I raised with the HDC. I refrain from elaborating on other valid arguments and aspects, as my letter from 16 June 2014 covers them in more detail. Unless there was intent by Miss Gxxxxxx to not bother following natural justice, in the least she failed to provide due professional care, or was negligent.

[22] In the case that Miss Gxxxxx intentionally ignored relevant evidence, and rather relied on irrelevant information, and where she did not consider what was important and necessary to consider, she certainly breached principles of natural justice. I will certainly not allege that Miss Beverley Wakem as Chief Ombudsman did intentionally ignore relevant evidence in the matter, like the crucial email evidence for emails sent to the HDC on 08 August 2011, but I must conclude that Miss Gxxxx did intentionally or unintentionally misinform Miss Wakem on some crucial information in relation to my complaints. This appears to have been the case with my letter from 16 June this year, which I suspect was again first read by Miss Gxxxxx, as there is no indication that it was processed and assessed by another investigator, nor by Miss Wakem. The text in the letter by Miss Wakem from 10 July 2014 implies that she did not even look at the new evidence I provided, and simply relied on Miss Gxxxx’s earlier assessment and decision. I must therefore assume that Miss Gxxxxx may have withheld the new evidence from Miss Wakem, in order to protect herself and her former, flawed decision in the complaint matters. This is a very serious matter and cannot be accepted conduct by any staff member working at the Office of Ombudsmen. Therefore I must conclude that this results in a breach of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975. In all certainty, the decision made by the Ombudsman does in the end deny me justice, as I have been given no option to further resolve the matters at issue in relation to the complaints to the HDC Office and now the Office of Ombudsmen. The letter dated 10 July 2014 and signed by Beverley Wakem makes this clear. The decision prepared by Miss Gxxxxx and signed by Miss Wakem from 28 May does also reveal how Miss Gxxxxx treated my second HDC complaint with less attention, as I make clear in my letter from 16 June. By defending Miss Gxxxxxx for her handling of my complaints, there is no indication that internal measures were taken by the Ombudsman to correct any failures by Office staff, due to errors, neglect or misconduct.

[23] Besides of the above summarised information, it will be more than evident from the further information I provide in this letter, that the ongoing reviews, reorganisation, restructuring and stream-lining of work procedures and processes at the Office of Ombudsmen must clearly have had negative effects, which have impacted on the quality of services being delivered by the staff of that Office. While the work-load at the Office has continued to increase substantially over recent years, the insufficient additional financial resources, and largely unchanged, available human and other resources, must logically result in a situation where complaints, enquiries and other work done by the Office’s staff could not be dealt with by applying the same level of scrutiny, care and attention as was being done in years earlier. Internal efficiency and performance improvements will have reached their limits, and by simply measuring increases in output numbers, nothing in regular audits will give sufficient and clear information on the actual quality of services delivered by the Office. Also will there be no conclusive information about how the staff are coping with increasing work-loads and targets.

Ombudsman Annual Reports reveal growing imbalance between workloads and available resources

Ombudsman Annual Report 2010/11

[24] The Ombudsman’s Annual Report for the year 2010/11 did actually register a moderate decrease in complaints and enquiries, compared to the year earlier, as it received 8,706 then. It was able to reduce a back-log while completing 9,077 complaints and enquiries. 6,163 complaints under the Ombudsmen Act (OA) and 992 Official Information Act (OIA) complaints (the highest since 2000/01) had been received. Furthermore 256 LGOIMA complaints had been received. 617 OA cases were resolved informally, and 302 OIA and LGOIMA cases were resolved informally. The Office formally investigated 570 OA cases and formally investigated 713 OIA and LGOIMA cases. The Office had close to 1,000 OA complaint cases outstanding to deal with from the year before. This was besides of much of the other work the Office did. Since 2010 the Office of Ombudsmen has also taken on new work loads by taking over responsibilities like the maintenance, monitoring and dealing with complaints in regards to the implementation of the ‘UN Convention on the Right of Persons with Disabilities’.

[25] In the Introduction of the Annual Report 2010/11 Beverley Wakem mentioned a “spike in the number of complaints received over the past two years”. She also mentions a consolidation of efforts by her Office to improve work practices, in order to improve services. She furthermore states: “The substantive cases on hand, and the work on some of the longstanding and apparently intractable matters continues to stretch our investigators.” She continues: “We have engaged a small number of highly experienced former and retired staff to assist with the very complex cases, but that is not financially sustainable over the medium term given current constraints on our budget. Like other agencies we also face high and increasing charges for what one might call the basic housekeeping costs. Unlike other agencies we are reliant on temporary funding to meet these costs and have been for several years. Our budget has no capacity to absorb these without the temporary funding.” On page 12 under ‘Operational developments’ the Chief Ombudsman states: “This year’s numbers have provided some respite, with a total of 8,706 complaints and enquiries received. However, in the absence of any significant resource increase, it has been necessary to try and identify operational improvements in order to seek to manage the greater workload.”

[26] On page 59 of the same Annual Report 2010/11 it says under ‘Organisational Health and Capability’: “The Office of the Ombudsmen has always operated within an environment of fiscal restraint.” It also says: “The Vote, always minimalist, is now so restricted that potential temporary savings arising from staff vacancies must be relied upon to pay some staff and fund core operating expenses such as electricity.” Furthermore the report states: “We appreciate the support of the Officers of Parliament Committee in securing some temporary financial assistance through to 30 June 2014 but we continue to be concerned that the assistance is of a temporary nature and is less than required.” On page 60 of the same report and under the sub-heading ‘Financial and asset management’, it says: “Vote Ombudsmen is presently reliant on temporary funding and ad hoc one-off savings to fund core expenses such as rent, power, communications and some staff positions. Even in the current economic climate that is not a proper way to fund the Office and risks jeopardising its independence. The current arrangement undermines the ability of the Office to apply resources to best advantage and restricts its ability to achieve the desired outcome for the Vote.”

Ombudsman Annual Report 2011/12

[27] The Ombudsman’s report 2011/12 states (see page 5) that during the year it covers the Office received 10,636 complaints and other contacts, an increase of 22% on the year before. 8,950 of those were complaints and other contacts under the OA, and 1,236 were complaints under the OIA (25% up on year before), and 268 were complaints under the LGOIMA. The Office completed 8,784 OA complaints and other contacts, an increase of 19 per cent from the previous year. The Office formally investigated 452 OA cases, and formed final opinions in 221 OA cases. The Office investigated 797 cases, and formed final opinions in 362 cases, in relation to OIA and LGOIMA complaints. The Office of Ombudsmen finished the year with 1,746 complaints and other contacts on hand, up from 1,359 the previous year. This was work it did besides of its other areas of responsibility. The Office struggled to meet some timeliness targets, given the volume of work on hand, and only 55 percent of complainants were satisfied with the Office’s service.

[28] In the Introduction to the 2011/12 report Beverley Wakem and Dr David McGee state: “In many ways, 2011/12 was a watershed year for us. We received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed a significant increase in official information complaints and complaints relating to the Earthquake Commission.“ “We also finalised a major review of our purpose and strategic direction, establishing a strong outcomes framework to direct and focus our work towards the outcomes and impacts we are seeking to achieve. The results of this work can be seen in our 2012/15 Statement of Intent.” Furthermore the Ombudsmen wrote: “In 2011/12, we completed our second survey of the complainants and agencies that we interact with, enabling us for the first time to compare feedback over time on the service we provide.”

[29] On page 9 of the report it says: “We also continued work on a major consolidation of our human resources policies and procedures, and progressive implementation of a revised performance review and professional development system for staff.” Also do the Ombudsmen state: “We have improved our data collection this year. We treat matters as formal “complaints” once they have been put in writing. However, we also deal with a large number of oral complaints and enquiries from members of the public, mainly over the telephone or by prison visit, prior to a complaint being made to us in writing. While we term these matters “other contacts”, our staff spend a significant amount of time providing advice and assistance, and resolving these matters.” On Page 10 the report says: “However, we are still significantly under resourced. Whilst we have managed to increase our throughput to deal with the increasing number of complaints and other contacts we are receiving, we are struggling to meet some of our timeliness targets and there has been an impact in terms of the work we have on hand at any one time.” “The current work pressure we are facing has led to a declining satisfaction with our service in survey results.”

[30] Under the heading ‘Organisational health and ability’ the 2011/12 report states at the top of page 70: “In our annual report last year we commented that the Office was underfunded on an ongoing basis by approximately 12 per cent or $1 million per year. The publishing of our 2010/11 annual report in September 2011 was too late in the budget setting cycle for Parliament to address our funding concerns for the 2011/12 year. In the event we completed the year with a surplus of $100,476, of which $100,000 was a partial insurance recovery post the February 2011 Canterbury earthquake.” “Subsequently, Parliament has approved a budget increase of $300,000 for 2012/13 and the ongoing provision of $370,000 that had previously been provided on a temporary basis. Together these sums go some distance towards alleviating our immediate concern about being able to pay the bills, but while appreciated, the sum is not sufficient to enable recruitment of the additional staff required to address our burgeoning workload or secure the ongoing longer term financial sustainability of Vote Ombudsmen.”

[31] On page 74 of the Annual Report 2011/12 a table shows the numbers of total sick and family leave days that staff at the Office of Ombudsmen have taken over the years 2007 to 2012, and it reveals a very worrying trend. There has been a steady increase from year to year from 204 in 2007 to 471 in 2012. It increased from an average of 3.93 days per employee to 6.73 in 2011/12. The chapter below mentions “increased absence through illness and potentially work related stress”. There is no such table in the report for the following year 2012/13. On page 77 of the 2011/12 report I read with great concern: “The Ombudsman must be seen by Parliament, the public and agencies to provide relevant, timely and appropriate responses to complaints, and to conduct effective inspections and investigations of significant and systemic issues. There is a potential risk that we may be seen as too remote from every day realities, leading to inappropriate or irrelevant responses and guidance.”

Ombudsman Annual Report 2012/13

[32] The Annual Report of the Ombudsman for 2012/13 states the following: “The Office received a total of 13,684 complaints and other work“ for that year, which represents a large increase of 29 % on the year before. Of these the Office completed 13,358 complaints and other work, an increase of 30% 2011/12 numbers. It finished the year with 2,072 complaints and other work on hand, up from 1,746 the previous year. The Office struggled again to meet some timeliness targets, given the volume of work on hand. Of that total 11,008 OA complaints and other contacts were received, and 2,374 OIA complaints (up 92 % on 2011/12), as well as 271 LGOIMA complaints. It registered a significant increase in delay complaints. 2,878 OA complaints were completed that year, an increase of 21% from the previous year, and 2,158 OIA and LGOIMA cases were completed, an increase of 67% from 2011/12. The Office formally investigated 379 OA cases, and formed final opinions in 174 cases. It investigated 637 OIA and LGOIMA cases, and formed final opinions in 337 cases. This is again besides of other important work the Office of Ombudsmen performed that year.

[33] In their Introduction to the 2012/13 Annual Report Dame Beverley Wakem and newly appointed Ombudsman Prof. Ron Paterson stated (page 10): “This year, we celebrated the 50th anniversary of the Ombudsman in New Zealand. We also observed the 30th anniversary of the Official Information Act 1982, and the 25th anniversary of the Local Government Official Information and Meetings Act 1987. Our anniversary year has been a period of growth and consolidation.” Under the heading ‘Growing workload’ they also wrote: “Our services are clearly in demand. For the second year in a row, we received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed significant increases in both official information complaints (92%), and complaints and other contacts relating to the Earthquake Commission (89%).” “We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction, which was established in the previous reporting year. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case.”

[34] On page 11 of the same report they continue with the comments: “In particular, we have completed the establishment of new workflow structures intended to allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.” Furthermore they state: “However, the large increase in work has affected the timeliness of our interventions. Our performance this year has not met our expectations for the timeframes within which some types of work should be completed.” “Parliament has taken steps to begin to address the growing pressures on our Office. During the reporting year, we were able to secure an increase in overall funding for the 2013/14 year onwards, which will enable us to appoint additional investigating staff to progress the growing number of complaints on hand at any one time.” With scepticism I then read the Ombudsmen’s rather ironic comments on page 12: “Following the review of our strategic direction, we also continued work to reposition the Ombudsman as a “modern, independent New Zealand authority, that is agile, proactive and approachable”. This is regrettably not the experience I have recently had with the Office.

[35] On the “outcomes” of Ombudsmen Act (OA) 2,745 complaints (after deducting 8,263 “other contacts” from total cases) the following data is made available (see pages 24 to 28):
985 cases (36% of total completed) required only an explanation, advice or assistance to complainants to address their concerns. In 612 of those cases (22%) the Office simply advised complainants to take their concern to the relevant state sector agency. In 165 cases (6%) the Office declined complaints as there were supposedly other remedies available. 373 complaints were considered to not be within the jurisdiction of the Office. 216 complaints (8 % of cases) were “resolved” by the Office, 127 before an investigation and 89 during an investigation. In 379 cases (14%) formal investigations were commenced, and “final opinions” were formed in 174 cases. On page 28 the Ombudsmen reveal: “In only 44 cases (25% of all those formally investigated), did we identify administrative deficiency by the state sector agency that was the subject of complaint. We made formal recommendations in 4 cases. All recommendations were accepted.”

[36] On page 39 of the 2012/13 report the Ombudsmen state that they received 2,374 OIA complaints, 92 per cent up from the year before, and the highest number ever. The 271 LGOIMA complaints were more in line with historic figures. 1,012 OIA complaints were from one complainant, concerning delays in responses from school Boards of Trustees. But even without that increase, the remaining 1,361 complaints were up 26 % on 2011/12. The Office finished the year with 1,129 OIA complaints and 162 LGOIMA complaints on hand. On page 42 the Ombudsmen inform on the “outcomes”: “Traditionally, we have formally investigated most official information complaints. However, this year 926 complaints were resolved without formal investigation.” “We commenced formal investigations in 30% of all completed official information cases (637 out of 2,158). We managed to resolve 152 of these without needing to form a final opinion. We formed final opinions in 337 official information cases. In 167 of these cases29 we identified an administrative deficiency by the agency concerned in its official information decision making.” On pages 55 to 57 the Ombudsmen describe their Offices work in relation to their new responsibilities and work under the UN Convention on the Rights of Persons with Disabilities.

[37] Under the heading “Organisational health and capability” the report states on page 66 (‘Overview’): “Our work in 2012/13 was informed by a further refinement of our Statement of Intent for 2012/15, following the major review of our overall strategic direction and performance measures which we undertook for the 2011/12 reporting year. We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case. In particular, we have completed the establishment of new workflow structures that allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.
We have also reviewed the strategic services provided by our staff who guide and support our investigators and inspectors in their work, to ensure we have an overall structure in our Office that is efficient and allows us to effectively implement our new strategic direction.”

[38] Further down on page 66 the Ombudsmen state somewhat familiar information: “A number of factors contributed to our receiving this year the highest ever number of complaints and other contacts since the role of the Ombudsman was established. These factors include the current social and economic climate, the disruptions caused by the Canterbury earthquakes, and the increased levels of recourse by members of the public to the official information legislation. We believe the level of work now being received will not diminish significantly even when the economy has strengthened and there is less demand for public sector services. The increase in work is broadly based across many agencies and deals with many diverse issues. While we have achieved a 30% increase in our overall work completed this year, we are still not keeping pace with demand and the timeliness of our interventions is suffering. In addition, we consider our Office has been underfunded on an ongoing basis.”

[39] Under ‘Managing performance and capability development’ the report states on page 68: “This year we continued implementation of our continuous practice improvement initiative, which improves how we assess, allocate and process our work. Together with the use of more meaningful Office performance measures, this is proving very helpful in managing our work flow. We are already seeing the benefit of new and more useful information being available, which helps us to better understand our business and manage the pressures we face. An annual review of staff performance is undertaken for each financial year, and we have begun to trial a new performance review and professional development planning process. Further improvements to managing staff performance are anticipated during the 2013/14 year. These will include a particular focus on completing the development of key performance indicators at individual and team levels that reflect our overall Office performance measures.” While this may sound aspirational and “positive”, NO survey data is given in a ‘Performance Measures’ table on page 77 of the report, on complainants’ and state sector agencies’ satisfaction with the performance of the Office of Ombudsmen. Surveys are apparently conducted bi-annually, but I have not noticed that such are very detailed and comprehensive, or include all complainants. The tables show that most “proactive measures data” for the completion (%) rates for complaints are missing their budget standard targets, some significantly (see pages 76 to 77). Also does the Annual Report 2012/13 show no table with total staff sick and family leave, which was included in the earlier report(s). Page 68 only shows a table with “staff numbers and demographics”.

[40] The more recent ‘Statement of Intent 2014-2018’ by the Ombudsman already appears to contain data from a new stakeholder survey on page 13, where a table is showing the anticipated “success” in providing outputs A and B for 2013/14 and the ACTUAL rate for this. The target for 2013/14 was set at 55%, but the actual figure achieved is only 49% of complainants being satisfied with the overall quality of their service delivery. This indicates that the service quality of the Office has actually worsened even more since an earlier survey two years before that. The high actual satisfaction rate for the state sector agencies with the communication with the Office of Ombudsmen at 94 percent must be rather worrying, as this means, fewer complainants appear to be successful with complaints, which leaves the agencies “off the hook”, so to say. This is confirmed by the higher than expected satisfaction rate for state agencies for the Office’s decisions (2% above target).

Other reports describing the problems at the Office of Ombudsmen

‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman’

[41] The document ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’ also reveals how the Office of Ombudsmen is unable to keep up with growing numbers of complaints and other responsibilities. On page 214 in that document it says: “The Chief Ombudsman is of the view that since about 2009, the Ombudsmen have been seriously under-resourced and a substantial backlog of complaints is awaiting investigation. In addition, they have not been in a position to compete in the market for staff, and staff salaries are about 14 per cent below market rate. Staff turnover is low, but increased from 6 per cent in 2010 to 14 per cent in 2011.” It also states: “From 2008/09 to 2011/12, the number of complaints on hand at any one time increased from about 1,000 to about 1,700, a 59 per cent increase. In contrast, the Ombudsmen’s annual appropriation from Parliament increased only 6.3 per cent, from NZ$8.33 million to NZ$8.86 million over the same period. At 31 December 2012, 465 requests for assistance had not been allocated to a case officer. 727 In 2011/2, only 53 per cent of complainants considered the ombudsman process to be timely and overall satisfaction with their standard of service has dropped, from 66 per cent in 2008/09 to 55 per cent in 2011/12. 728”

[42] On page 215 of that document it also says: “Senior lawyers say that although the Ombudsmen’s investigations are thorough and fair, they are no longer referring clients to the Ombudsmen if there is an alternative. 729 The process takes too long and irreparable damage may be done to their clients’ interests before the investigation can be completed.” It furthermore says: “The Ombudsmen sometimes have insufficient resources to perform new functions allocated to them, or at least to perform them to an acceptably high standard.731” While that report prepared by two lawyers does generally present a positive image of the performance, independence and integrity of the Ombudsmen, major concerns remain about future performance quality and standards, especially since case loads are bound to increase, while the Office’s resources remain below of what is needed to deliver services.

[43] Of legal interest, in regards to the Ombudsman’s independence, integrity and authority, the following may be worth noting, while not serving to alleviate my stated concerns: “In general, the courts support the independence of the Ombudsmen. In one of the few cases where an Ombudsman’s decision has been before a court, the judge said, “Parliament delegated to the Chief Ombudsman tasks, which at times are complex and even agonising, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the Chief Ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another”.745 (see page 217 of that document).

‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’

[44] The document ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’, which can be downloaded from the website of the New Zealand Parliament, reveals that the Office of Ombudsmen expects continued growth in the number of complaints, and other work they do. In question 65 the Ombudsman was asked about how many OIA requests it received. The answer to that question was that the Office is not subject to OIA requests about itself, but figures were given re OIA related complaints it handled over recent years (up to 30 June 2013), and what it projected for the following year 2013/14. For 2013/14 it is estimated that OIA complaints will be about 1326 for the year ending 30 June 2014, which is only a reduction on the year earlier due to the 2012/13 year having had an unusual increase of 92% on the year earlier, which was by one complainant having presented a very large number of new complaints. But based on 2008/09 the estimated number would represent an increase of 161%, while these kinds of complaints, same as OA complaints have generally increased steadily over the years. In any case, also other reports indicate that it must be expected that the workload of the Office will inevitably continue to increase, based on historic trends.

Office of the Ombudsman – Statement of Intent 2014-2018

[45] The ‘Statement of Intent 2014-2018’ (SOI) published by the Office of Ombudsmen does not appear to provide for an increase in complaints to assess, process and resolve, as for instance a table on ‘Operating Intentions’ on page 12 shows. Despite of the substantial historic increases in complaints and other contacts for 2011/12 and 2012/13 (8,784 and 11,161 correspondingly), the “Budget Standard” and “Estimated Actual” figures for 2013/14 show lower figures, being together 9,500 and 7,900 correspondingly (see “demand driven measures”). For unclear reasons for the following 4 years the “Budget Standard” figures total only 8,000 for both categories (being 2,500 for complaints – and 5,500 for other contacts completed). This is very concerning, as the Office may either be contemplating a new piling up of not progressed, unresolved complaints, or the Ombudsmen are intending to apply a more stringent criteria for accepting complaints to be dealt with and investigated, which could mean dismissing more complaints as being outside of the Ombudsmen’s jurisdiction, or by passing complainants on to other authorities, or by not accepting complaints at all, for whatever other reasons. Given past, steady increases on the demand side, the figures stated make no sense, as they also contradict other previous statistics and projections by the Ombudsmen.

[46] As already mentioned further above (see also at the bottom under ‘Annual Report 2012/13’ and the ‘New Zealand National Integrity System Assessment 2013’), the Office of Ombudsmen is expecting a lower satisfaction rate for the quality of services provided to complainants, as the table on page 13 of the Statement of Intent shows! The targeted 55 % satisfaction rate for 2013/14, which was the same as for the year before, is contrasted by the actual figure of only 49 %! Targets for the two following years have also been set low at only 55 %, which indicates that the Office does not anticipate or expect better quality in service delivery outcomes. State sector agencies’ satisfaction rates are though set within conventional ranges, higher than the complainants’ ones. It is of significance that the surveys the Office conducts only every two years (since only about 2 years ago) are only prepared and done “in house”, and may therefore lack sufficient independent scrutiny.

[47] The ‘Operating Intentions’ data and table on page 16 of the ‘Statement of Intent’ does also not show much real projected improvement in the processing of OIA request related complaints. “Budget Standard” targets remain steady for the coming years, but for 2013/14 the “Estimated Actual” number of complaints completed sits at now 1,600, twice the “Budget Standard” for that year. The other data and information in the SOI does basically tell me that the Office will continue to struggle, and make little real progress in improving service delivery, despite of the aspirational statements and ambitious goals for improved performance and service delivery.

[48] Re human resources planning, the Statement of Intent says under ‘People’ (see page 31):
“We aim to recruit and retain quality staff who adhere to high standards of professional conduct. We also aim to enhance the capability of our staff so that everyone can aspire to higher levels of performance. Measures to attract, develop and retain staff include:
• providing fair and consistent terms and conditions of employment;
• providing learning and professional development opportunities to enhance capability and performance; and
• providing opportunities for participation in health and wellness programmes that support the general wellbeing of staff.

[49] The specific projects we are undertaking in this area include:
• progressive implementation of a revised performance review and professional development planning system, including the introduction of key performance indicators for staff linked to our outputs and output performance measures;
• progressive implementation of our training and development strategy, which provides for targeted core training and professional development for all staff;
• completing the roll out of consolidated human resource policies and procedures; and
• continuing regular internal surveys to gauge staff satisfaction and identify areas for improvement.”

[50] The Statement of Intent 2014-2018 may sound as if the Office of Ombudsmen has room to improve efficiencies through further internal reviews and system changes, to achieve higher performance and output targets. There is talk of more personal development, training and measurement of staff performance indicators, and of recruiting and retaining quality staff. But like with any organisation, it is clear that there will be human and other resource limits that will constrain what can be achieved by frontline investigating and other staff, unless further financial resources are made available to meet ever increasing demands in the form of growing numbers of complaints, enquiries and other requests to the Office. It appears that the Office’s staff continue to be employed under individual employment contracts, which will most likely discourage any staff member raising any grievances about working conditions, which would be easier to do if the staff were collectively represented and had a collective agreement.

Media reports showing very large increases in complaints and funding issues

[51] Since at least 2012 there have been many news media reports about a crisis at the Office of Ombudsmen. For instance did the ‘New Zealand Herald’ report on 15 February 2012 that “the Office of the Ombudsman is in “crisis”, with a bulging backlog of cases due to lack of investigators and existing staff underpaid and in some cases being worked to death, Ombudsman Beverley Wakem says.” It was stated that the office had about 300 cases it was unable to work on, because of a lack of available investigators. Figures given indicated that the case load per investigator had about doubled. The article also revealed: “Ms Wakem said she had asked for the office’s baseline budget to be increased from its current level of $ 8.6 million by about $1 million, which would allow it to meet its operating costs and employ two more investigators.”

[52] ‘Scoop’ reported on 27 September 2012 “Ombudsman’s Office Workload Doubles”, and “The Office ended the 2011/2012 year with 10,636 complaints and other contacts received, up 22% on the previous year. Cases on hand at any time have grown from an average of 800 to over 1700.” Mention was made of the Office working “vigorously” and on “streamlining” its processes to cope with the workload. “However, Dame Beverley says there is an increasing demand for the Ombudsmen’s help”. “There is significant pressure on staff and regretfully we are missing targets for timeliness in responding to some people asking for help.”

[53] On 13 September 2013 the ‘Auckland District Law Society’ (ADLS) reported on their website under the title “Chief Ombudsman discusses challenge and change”, how Beverley Wakem saw the challenges her Office faces. Matthew Lark wrote: “The annual reports and statements of intent produced by the Office of the Ombudsman over Dame Beverley’s time make heavy reading. A marked increase in Ombudsmen Act and Official Information Act complaints is a worrying trend for an office which has long been under-resourced.” “We’ve gone from something like seven and a half thousand complaints a year when I first started, to nearly 14 thousand complaints this year, “ Dame Beverley remarks. “If you take out the earthquake and prisons, the underlying trajectory is still rising.” “We’re trying to triage a great many more of the minor complaints early without the necessity to formally notify them with the agency being complained about,” she says. “What this means is about 900 of those are being dealt with on this basis any month. What it leaves you with are the more complex cases.”

[54] In the same article the author writes that the Vote Ombudsmen is receiving a boost in 2013-14, and that Dame Beverly expected to recruit six new investigators in the coming year. The article continues:”Dame Beverley wants to see new investigators helping with some additional functions which her office has taken on during her term. These include investigating complaints about the government’s adherence to the UN Convention on the Rights of Persons with Disabilities.” “Her overall aim is to get her complaints backlog down”. “The case load which individual investigators have been carrying in this office has been inhumane by any international standard”, that media article further revealed.

[55] On 15 October 2013 ‘Scoop’ reported (upon a press release from the Office of Ombudsmen): “Highest ever number of complaints for Ombudsman”. “In its annual report to Parliament for the year ending 30 June 2013, the Office says it received and completed the highest ever number of complaints and other contacts about state sector agencies.” “Chief Ombudsman Dame Beverley Wakem says the Office completed more than 13,000 pieces of work and provided advice and assistance in over four thousand cases. Just over 1, 000 complaints were investigated.” “Dame Beverley says despite the rise in volume, the Office has worked effectively. Changes have been made in the way the Office works to address the workload and it achieved a 30 percent increase in overall work completed despite a 29 percent increase in work coming in.” That article stated in more detail, the Office received 13,684 complaints and other contacts. It continued with: “The Office says that official information complaints increased overall by 92 % this year. There was a significant increase in delay complaints, continuing a worrying trend from the previous year.”

[56] On 15 May 2014 the ‘New Zealand Herald’ reported under the headline “Budget 2014: Funding crucial as busy watchdogs feel the strain”, that the Office of Ombudsmen received “a small increase in funding in the last Budget which helped it keep up with a record number of complaints about state sector agencies, including a near doubling in Official Information Act and Earthquake Commission complaints”. It also quoted Dame Beverley as saying: “However the large increase in work has affected the timeliness of our interventions”.

[57] The Herald reporter Adam Bennett continues in that article with: “The Ombudsman and Auditor-General make their case for more funding to the officers of Parliament committee and if it is persuaded the Government usually implements it. The committee released its recommendations for funding of organisations in March.” “The Office of the Ombudsman’s baseline budget goes from $9.9 million to 10.3 million in 2014-15, rising to $10.46 million thereafter.” “With last year’s increase the office’s budget will have expanded in two years to a figure approaching that sought by Dame Beverley two years ago.”

[58] Summary of performance challenges and issues at the Office of Ombudsmen

1. Staff at the Ombudsmen’s Office appear to be unable to maintain the needed standard of professional care and diligence, due to ever increasing case work-loads and performance target expectations (see paragraphs [3] to [11], [19] to [23], [26], [29], [38], [41], [42], etc.);
2. staff are put into situations where adherence to statutory obligations, mandatory standards and to natural justice can be compromised (see [19] to [23], [26], [29], [41], [42], [54] etc.);
3. complaint case loads on hand increased from 2008/09 to 2011/12 by 59 percent, while Parliament’s appropriation increased by only 6.3 percent (see [41], [55] etc.);
4. staff turnover figures increased from 6 percent in 2010 to 14 percent in 2011 (see [41]);
5. sick and family leave days taken by staff increased from 204 hours per annum for 2007 to 471 in 2012, while staff numbers have largely remained unchanged (see [31] etc.);
6. complainants’ overall satisfaction with the Office’s standard of service has dropped from 66 percent in 2008/09 to 55 percent in 2011/12, and now apparently only 49 per cent for 2013/14 (see [27], [29], [40], [41] and [46]);
7. surveys of complainant’s and stakeholders’ satisfaction have only been conducted bi-annually and on selected investigated cases, and are therefore not sufficiently comprehensive, representative and conclusive (see [28], [39], [40], [41], etc.);
8. existing audit data is primarily gathered for balance sheet purposes and includes only certain key performance indicators, which does say too little about staff competence, satisfaction and quality of services delivered (see audit data provided in annual reports).

Requested actions to be taken by the Office of the Auditor General

[59] I fully understand that the Office of the Auditor-General will only conduct certain inquiries and performance audits at its own discretion. But as it appears from the above information, that there are potentially hundreds of complainants and enquirers affected by poor outcomes due to the mentioned problems that exist at the Office of Ombudsmen, I consider that in this case a special, independent, thorough inquiry and audit of that Office is more than warranted. A special inquiry and audit is sought under sections 18 (1) and 16 (1) (a), (b) and (d) of the Public Audit Act 2001. It needs to take a closer look at the Office of Ombudsmen than the regular annual audits by Audit New Zealand do. These have largely been gathering and presenting balance sheet type financial data, and only limited other performance data.

[60] A special inquiry and audit should have a stronger focus on the effects an ever growing case- and work-load has had, and on the impact that the implemented internal reviews, stream-lining, reorganising and restructuring have had, on staff working at the Office. A closer look deserves to be taken at the usefulness and appropriateness of the so-called ‘Continuous Practice Improvement Strategy’, apparently guided or supported by a “policy and professional practice advisory group”, and how this has assisted – or otherwise affected – each staff member in their particular work area. Staff should be asked to provide anonymous responses on views in relation to: Work-load allocation, on performance targets, on standards to comply with, and on personal experiences with clients’ complaint assessments and investigations, and whether the feedback they personally get from outside stakeholders are positive or negative in regards to their performance at the Office. An inquiry and audit should try to establish whether staff members feel they are under the existing work pressures and conditions able to provide fair, just and objectively delivered services and decisions. It must be established, whether and to what degree staff members may suffer excessive stress and other ill health, due to too high work loads and increased responsibilities, while expected to achieve ever higher performance and output results, without compromising quality of service delivery. Data should be sought on health issues staff have suffered, and whether staff members do perceive these to be the result of work based pressures and expectations.

[61] The inquiry and audit should endeavour to establish, whether in the particular complaint cases I presented to the Office of Ombudsmen, the investigating officer Xxxxx Gxxxxx did follow all mandatory work processes and procedures, met the applied quality standards, and adhered to her legal obligations under the Ombudsmen Act 1975, and also according to other applicable statutes and law, while executing her duties. It should try to establish whether she intentionally or unintentionally misled the Chief Ombudsman upon her assessment of my submissions (including provided evidence), and whether she acted in negligence and/or failed to apply due professional care. I ask your Office of the Auditor-General to investigate whether any advice or disciplinary action was served on Miss Gxxxxx upon my request for a review on 16 June 2014. In this same regard, I also request an examination, whether my complaint from 16 June this year was handled appropriately by the Ombudsman, in line with provisions referred to on page 219 of the ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’ (see chapter 7.2.3 ‘Accountability (law)’). The following reference is made there: “The Office of the Ombudsman has a formal, documented process for ensuring complaints about the Ombudsmen and their staff are taken seriously and handled appropriately.760 “

[62] An inquiry and audit should establish levels of staff satisfaction or dissatisfaction with present working conditions, whether they feel satisfied with working under individual employment contracts, or would prefer alternative employment agreements, possibly in the form of a collective agreement. Quality control measures should be examined, such as checks and balances used to avoid mistakes, or the oversight of relevant evidence information. An inquiry should establish, whether unacceptable “short-cuts” are used to progress and process cases, and whether re-prioritising is used, to discharge complaints deemed as “less important”. Feedback should be sought on suggested improvements to applied processes, procedures, work and resources allocation, quality assurance, same as general working conditions.

[63] An inquiry and audit should also not shy away from the question, whether recommendations should be made, that the high salaries for the two Ombudsmen should perhaps be capped or cut, to free up future funding, to invest into the operational activities of the Office of Ombudsmen. According to data I read, the salaries of the two Ombudsmen are between $ 280,000 and about $ 350,000 per annum. 17 staff also appear to earn over $ 100,000 per annum, as a table in response to question 55 in the document ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ shows. Furthermore 28 staff appear to earn between $ 80,000 and $ 100,000 per annum. These salaries are though determined by the independent Remuneration Authority, and it may not be possible to expect any changes in their decisions on remuneration for staff and Ombudsmen employed. Nevertheless an independent view on these aspects may also be warranted.

[64] I may last not least suggest also that the Office of the Auditor-General considers making a recommendation that the Office of Ombudsmen should conduct ongoing, comprehensive feedback surveys on all complainants and enquirers it deals with, inviting them to do them anonymously via their website, by sending them the link information to a survey by way of email or postal letters, same as the Office of the Privacy Commissioner is presently doing. Only that way will the Office be able to gather reliable information on the satisfaction or dissatisfaction of any stakeholders it deals with. Such a recommendation should be considered irrespective of any decision made in this request matter.

Closing comments and concerns

[65] I am aware that a decision about this request may take some time. As stated, this is a matter of concern not only to me, given my personal experiences with the Office of Ombudsmen and their performance, but a matter of concern to the general public. The wider public does have daily interactions with state sector and similar agencies, which are open also to the scrutiny by the Ombudsmen and their staff. It is the fact that with a “leaner” public service there has been ever growing pressure on staff working in state sector offices, which can lead to more mistakes and wrong decisions being made. That is to my understanding also part of the reason for increasing numbers of enquiries and complaints to the Office of Ombudsmen. It is in the public interest that this requested inquiry and audit will be conducted sooner rather than later, as otherwise too many members of the public will face similar disappointing experiences as I and others have recently. An inquiry and audit, followed by a report and recommendation by the Office of the Auditor General may give us a clearer picture of the situation at the Ombudsmen’s Office, and perhaps raise necessary awareness and send necessary signals to review the operations at the Office of the Ombudsmen, so improvements may be made.

Your respected decision and response in this matter – in due – course will be highly appreciated.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

References

1. ‘2010/2011 Report of the Ombudsmen for the year ended 30 June 2011’;
2. ‘2011/2012 Report of the Ombudsman for the year ended 30 June 2012’;
3. ‘2012/2013 Report of the Ombudsman for the year ended 30 June 2013;
4. ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13‘ (Office of Ombudsmen, previously downloaded from Parliament’s Website);
5. ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’;
6. ‘The New Zealand Herald’, “Bulging backlog creating a ‘crisis in Office of the Ombudsman”, Adam Bennett, 15 Feb. 2012;
7. ‘Scoop’, “Ombudsman’s Office Workload Doubles”, press release article, 27 Sept. 2012;
8. ‘ADLS’ (‘Auckland District Law Society’ website), “Chief Ombudsman discusses challenge and change”, by Matthew Lark, 13 Sept. 2013;
9. ‘Scoop’, “Highest ever number of complaints for Ombudsman”, press release, 15 Oct. 2013;
10. ‘The New Zealand Herald’, “Budget 2014: Funding crucial as busy watchdogs feel the strain”, by Adam Bennett, 15 May 2014;

Attachments to email 1 carrying this request letter:

a). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, unsigned ltr, 28.08.2014.pdf’ (letter seeking a special inquiry and audit into performance and other related matters at the Office of Ombudsmen, by X. Xxxxxx, dated 28 Aug. 2014);
b). ‘Ombudsmen Office, complaint 3xxxxx, MSD, O.I.A. requests, incl. new, response ltr fr. 27.05.14.pdf’ (letter from Ombudsman Ron Paterson, dated 27 May 2014, mentioning limited resources and performance limitations the Office of Ombudsmen faces)
c). ‘NZ Parliament, Suppl. Std. Fin. Rev. Qs 2012-13, Ombudsman, d-load, high-lit, 14.08.14.pdf’,
‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ (PDF file, Office of Ombudsmen, previously downloaded from Parliament’s Website);
d). ‘Ombudsman, Integrity-Plus-2013-Pillar-7-Ombudsman, transparency.org, Dec. 13, 14.08.14.pdf’ (containing ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’.
e). ‘Ombudsman, Office of, Statement of Intent, soi14-18, d-load, 14.08.14.pdf’, Office of the Ombudsman, Statement of Intent 2014 – 2018.

Attachment to email 2 carrying this request letter:

f). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 1-9, 28.08.2014.pdf’ (scan copy of signed original letter in this matter, see also a). and g).).

Attachment to email 3 carrying this request letter:

g). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 10-17, 28.08.2014.pdf’ (scan copy of signed original letter in this matter, see also a). and f).).

Emails that will also be on-forwarded following above initial emails (with attached evidence) – to be sent with emails 4, 5, 6, 7 and 8 in this matter:

1). Email number 1, 16 June 2014, 05.02 h (with 1 PDF file attached);
2). Email number 2, 16 June 2014, 05.36 h (with 8 PDF files w. relevant evidence attached);
3). Email number 3, 16 June 2014, 05.47 h (with 7 PDF files w. relevant evidence attached);
4). Email number 4, 16 June 2014, 20.30 h (with 3 more PDF files attached)
5). Earlier email enquiry sent 23 Feb. 2014 14.25 h, re complaint sent 17 Dec. 13 (which had 16 PDF attachments, but which won’t be sent, as they should be on file at the Ombudsmen’s Office)

Here is a link to a down-loadable PDF file containing the full request dated 28 Aug. 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit into Ombudsmen Office, anon, 28.08.2014

Please note:
We have not attached all the above attachments, as some relevant information may already have been presented in the earlier related posts about the HDC complaints and the Ombudsman complaint. Other information is freely available on the Ombudsmen’s website and other sites on the web (try a Google or Bing search!), and some is not of such high importance to be published here. We may consider adding some further information here at a later stage!

 
 

3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014

By way of a letter dated 30 Oct. 2014, Maria Rawiri, Sector Manager at the OAG, responded to the complainant’s request. She wrote the following:

“Dear Mr Xxxxxx

REQUEST FOR INQUIRY AND PERFORMANCE AUDIT INTO THE OFFICE OF OMBUDSMEN AND ITS COMPLIANCE WITH THE OMBUDSMEN ACT 1975

Further to our email of 1 September 2014, we have completed our initial assessment of the material you provided to us.

You requested that our Office carry out an inquiry or performance audit of the Office of the Ombudsmen (the Ombudsmen).

While we appreciate your interest and concern in the functioning of the Ombudsmen, unfortunately, I must advise that we will not be carrying out the specific investigation you request.

Under the Public Audit Act 2001, our Office carries out:

● annual audits of the financial statements and information on performance that public entities provide in their annual reports. As there are over 4000 public entities, this forms the main part of our work;
● performance audits, which are in-depth assessments of how well public entities are carrying out particular parts of their work. We do a small number of these each year and consult with Parliament to agree our programme of work; and
● inquiries into any matter relating to a public entity’s use of its resources. Inquiries are more in-depth again than performance audits. They focus on a particular set of decisions and actions, so that we can accurately describe what happened and why, and set out our comments on the merits of what was done. We carry out only a few inquiries each year.

Your request is far more wide-ranging in scope than a performance audit or inquiry. Essentially, you have requested a review of the entire functioning of the Ombudsmen. This is not something we are equipped to carry out.

We are currently in the early stages of work looking at the accountability systems across government as a whole. However, this work will not include an in-depth review of the specific performance of any single entity.

The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest. The report is available from the Ombudsmen’s website:
http://www.ombudsman.parliament.nz/resources-and-publications/corporate-documents/annual-reports .

As Sector Manager, I have noted the comments you made and will bear them in mind during our on-going work with the Ombudsmen.

 

Yours faithfully

……….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response from Maria Rawiri, dated 30 Oct. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 30.10.2014
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 30.10.14

 

Comments by the author:

So the complainant presented a very comprehensive letter of request with ample evidence of the serious issues and apparent dysfunction at the Office of Ombudsmen, and the OAG appears to have considered this as too much of an ask to deal with. The complainant also presented a case, where two formal complaints he had made to the Ombudsman against the HDC, had apparently been poorly assessed and wrongly decided on by the Office of Ombudsmen. The detailed information provided can only lead a reasonable person to the conclusion that investigating officers at the Ombudsmen’s Office were unable to attend to detailed and complex matters, and hence missed important, relevant facts, that had to be considered when forming a decision on the complaints. Instead, it appears, irrelevant or less relevant information was rather considered, and so the complaints were both dismissed, it seems this was done without even properly examining important evidence documents.

Certainly the comments by the Chief Ombudsman herself, repeated in Annual Reports of her Office, and also quoted in media, should have prompted the OAG to have taken a greater interest in the request by the complainant.

But in hindsight, we must probably accept, that the request was simply too wide in scope, and hence the OAG considered that they would not have the time and manpower to conduct such a comprehensive inquiry and audit of much of what the Ombudsmen and their staff do.

 
 

4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE

The complainant was not satisfied with this response by Maria Rawiri from the OAG, as it appeared to him, that there was reluctance by a senior Officer to conduct any inquiry or investigation into affairs and processes at the Office of the Ombudsmen. He accepted though that his request for an inquiry and special performance audit may indeed have been too wide in scope, so he made an effort to narrow down the Ombudsmen’s actions and areas of activity covered by his request. He prepared a new reworded request that would be dated 04 November 2014, which he then sent to the OAG by email on 05 December 2014 (in the early morning, just after midnight). Attached to it was only a scan copy of the new request letter he had written.

Here is the authentic text of the whole request letter dated 04 November 2014, which the complainant sent to the OAG:

 

Re: Request under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001 – for an inquiry and a special performance audit into administrative and operational activities performed by investigating officer Xxxxx Gxxxxxx at the Office of Ombudsmen, while processing complaint/s 3xxxxx – as to whether they complied with applicable legal obligations and standards

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 30 October 2014, which was in response to my formal request for an inquiry into, and special performance audit of the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 16 and 18 of the Public Audit Act 2001). I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your assessment my request is far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You state that you are not equipped to carry out “a review of the entire functioning of the Ombudsmen”. While I am not sure whether my request actually sought such a wide ranging review of the Office of Ombudsmen, I do agree, that my request may have been too wide in scope.

[2] As much as I appreciate your reference to the Office of the Ombudsmen’s recently released ‘Annual Report for 2013/14’, I am afraid that this report does not address some serious concerns that I raised as part of my request letter from 28 August. I understand that the Office of Ombudsmen may as of recent have been provided with more financial resources, and that it may in future be able to better meet its statutory responsibilities and cope with its increased work-loads. But it is somewhat worrying, that with your decision you have also decided to not investigate evident serious failures and apparent professional misconduct by an investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any serious failure to meet statutory obligations by staff or management at an Office of Parliament, which appears to fall under your scope of authorities, would raise sufficient enough concerns, to at least conduct an investigation into that part of my requests. In any case, your decision has caused me to re-consider my original request, and to consequently file a new request, which is far more narrowed down in scope, and which your Office should without doubt be able to investigate.

[3] Therefore I ask you to please accept my new request to your Office to conduct a special, independent and thorough inquiry into – and audit of – particular administrative and operational activities, performed by Miss Xxxxx Gxxxxxx at the Office of Ombudsmen, and whether these complied with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. My request is in particular for an inquiry and audit to be conducted into the complete handling, processing and assessment in relation to two complaints, which I filed under their reference 3xxxxx. This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff member, including her communications with the Chief Ombudsman. My request includes an examination of how the mentioned staff member at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures she was instructed to follow, while processing and assessing my two complaints. In the case that an inquiry and audit cannot be limited to the complaint/s mentioned, I do instead ask you to conduct such of the performance and conduct of the staff member for the period from 01 July 2013 to 15 July 2014, in relation to all complaints she handled over that period. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by the investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● the investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate my complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and act upon objections I raised re the handling of my complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other law

[4] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence I and many other complainants were denied appropriate, fair consideration of our complaints and with that justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [3]). This may be remedied to some degree for the near future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, an investigation and audit remains justified in at least my particular case, if not more.

[5] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[6] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have presented. In case that you may again decide, to not conduct an investigation or audit at the Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives, as the last resort to have the matters stated in this and my former letter addressed.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 04 Nov. 2014, which is perhaps easier to read (please note an error with the date was made in the link):
OAG, CAG, reqst f. inquiry + audit of Ombudsman complaint handling, anon, 01.11.2014

 

Comments by the author:

With this narrowed down, reworded request, the complainant did focus more on the particular investigator and her actions and alleged failings. In doing so he intended to show with such an example, what challenges and issues staff at the Office of Ombudsmen face, and how this impacted on the quality of their work in complaints assessments and resolution. He thought that the OAG would have few problems in targeting the work areas and historic files where his earlier complaints had been processed, but he was not prepared for the decision he would get upon this formal request.

 
 

5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014

It did take less time this time around, for the AOG to respond to the new request by the complainant. Again the response was offered by Maria Rawiri, Sector Manager, and it was also somewhat brief – with again somewhat similar, now familiar explanations that they saw no need to conduct an inquiry or performance audit into the Office of Ombudsmen.

 

Here is the authentic transcript of her letter dated 17 December 2014:

“Dear Mr Xxxxxx

REQUEST UNDER THE PUBLIC AUDIT ACT 2001 FOR AN INQUIRY AND A PERFORMANCE AUDIT INTO ACTIVITIES AT THE OFFICE OF OMBUDSMAN

We have reviewed the information you sent us in your email of 5 November 2014.

We have noted your concerns about the handling of your complaint by staff at the Office of the Ombudsman, and what you suggest that may indicate about that office’s systems.

While your letter is more specific than your previous correspondence, we will not be carrying out the specific investigation you request. We have no role in assessing the individual performance of staff in other entities. That is the responsibility of each entity. We note that you have raised your concerns with the Chief Ombudsman as is appropriate.

The Office is part of a broader accountability system for public sector entities. Our primary role is to conduct financial audits of all public entities. In doing so, we provide assurance to the public and parliament about the extent to which they can rely on public entities’ financial statements and in some cases performance information. Parliamentary Select Committees are charged with holding entities to account for their use of public funds. They fulfil this function, in part, through the annual review process. We provide advice to the Committee, but ultimately the Committee completes the review.

As advised previously, we have noted your comments and will bear them in mind during our on-going work with the Ombudsman. Beyond that I am afraid that we cannot be of any more assistance to you.

Kind regards

 

….. …….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 17 Dec. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 17.12.14
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 17.12.14

 

Comments by the author:

The OAG does apparently not have any authority or scope to investigate and audit the performance of individual staff members in an entity, hence this response. It does not quite surprise us, as the performance auditing of individual staff members could leave individual employees in state sector entities exposed to an unreasonable degree of scrutiny that may in many cases better be applied internally, through their superiors and through work process and operational system checks that should be in place in such high level offices.

 
 

6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE

Again, the complainant felt driven to despair, like he had already been in his efforts to find justice when dealing with the HDC and then the Chief Ombudsman. It appeared that the OAG was following a similar line as the HDC and even the Ombudsman had done earlier, using every provision – or lack thereof – in the statute law, so to avoid having to take any action or responsibility. It appeared he was being fobbed off, and that these high officials had a dim view of any person (like him) trying to take them to task for checking on other high level officials, who they may perhaps even know personally. While this is of course hard to prove, the ongoing dismissive treatment of his concerns had definitely followed a very familiar pattern. NO action was considered necessary; requests for any form of an inquiry or investigation were not accepted and not being acted upon.

But having taken his grievances up to this high level, he decided to persist nonetheless, and write yet another request, after careful consideration of all matters of relevance and deep thoughts about how to formulate a new letter. But already prior to that did he express his frustrations about the handling of his request in a brief email letter from 19.41h on 18 December 2014. In it he expressed his disappointment and impression that the OAG were shying away from responsibilities. He also reminded the OAG staff that he had in his last letter insisted the whole matter (incl. all correspondence and evidence) should be referred to the Speaker of the House of Representatives, if the OAG should again not take any action. He asked for confirmation that this had been done. He also hinted that he may involve the media. His email(s) were acknowledged as received by Jxxx Hxxxxx at 10.00h on 22 Dec. 2014.

So after Christmas, on the second last day of the year 2014, he had completed his third and final request to the Auditor General’s Office, which he would then send in by email at 22.43h on 30 December 2014. Only one PDF with a scan copy of his new letter was attached. That email was then later confirmed as having been received by Txxxx Xxxxxxxx, Personal Assistant, at the OAG, at 11.35h on 12 January 2015. A response was promised once matters that had been raised had been assessed.

 

Here is the authentic text of the whole request letter dated 30 December 2014, which the complainant sent to the OAG:

Re: Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen, while processing specified complaints

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 17 December 2014, which was in response to my second formal request (dated 04 November 2014) under the Public Audit Act 2001, for an inquiry into, and a special performance audit of, administrative and operational activities performed by staff at the Office of Ombudsmen. My reformulated request was particularly in regards to the processing and assessment of my complaint/s under reference 3xxxxx by Miss Xxxxx Gxxxxxx, and whether she and her Office complied with applicable legal obligations and standards. I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your comments your Office has no role in assessing the individual performance of staff in other entities. You write that this is the responsibility of each entity. You also comment: “We note that you have raised your concerns with the Chief Ombudsman as is appropriate.” You state that your Office is part of a broader accountability system for public sector entities. You refer to your primary role in undertaking financial audits of all public entities. You also add that you will bear my comments in mind, during your on-going work with the Office of Ombudsmen. When I presented an earlier request you had commented that my request was then far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You stated that you were not equipped to carry out “a review of the entire functioning of the Ombudsmen”.

[2] Both your responses to my requests have been received and acknowledged with great disappointment. It seriously worries me, that with your decisions you have decided to not investigate evident serious failures, and apparent professional misconduct, by at least one investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any such serious failures to meet statutory obligations by staff or management at an Office of Parliament, which still appears to fall under your scope of responsibilities, would raise sufficient enough concerns to take some actions. Given my detailed, evidence-supported requests, your Office should in my view have felt prompted to conduct an investigation on your own initiative, and by doing so, within a scope and form that your Office can carry out. You have the statutory authority and ability to define or redefine the exact scope and form of an audit or inquiry under the Public Audit Act. You also have a responsibility, to ensure that legal obligations under statute law are met by public entities.

[3] Your comment, that I had appropriately raised my concerns with the Chief Ombudsman, fails to acknowledge the fact, which I had already explained to you in earlier correspondence, namely that Miss Wakem simply failed to fulfil her own responsibilities. In her letter dated 10 July this year, Miss Wakem firmly refused to even properly look at my whole complaint from 16 June 2014. She protected her staff from any allegations, without examining all the evidence I put forward. She therefore failed at least in her duties as an employer under section 11 (2) under the Ombudsmen Act 1975. In blindly relying on her investigating staff member, who was very poorly handling my two complaints about the Health and Disability Commissioner (HDC), the Chief Ombudsman also failed to perform her functions under section 13 (1) of the Ombudsman Act, to investigate clear, proven misconduct by staff at the HDC Office, who were lying about email evidence they received. The mentioned failures also raise concerns as to whether the oath given by the Chief Ombudsman under section 10 (1) of that Act has been honoured. All this raises a number of issues, which include the use of resources and compliance with statutory obligations. It is my view that your Office has the power, ability and in this case compelling reasons to act in the matters I presented to you under section 16 (1) (a), (b) and (d), same as section 18 (1) of the Public Audit Act. The same Act refers not only to the “efficient” use of resources, but also mentions the “effective” use of them. Also is the performance of staff part of resource related matters that deserve consideration when conducting an audit or inquiry. Most certainly the failure to comply with statutory obligations, not only under the Public Audit Act, must be of concern to you. In any case, your decision has caused me to once again re-consider my request, and to consequently file this new request, which is more appropriately specified to meet your Office’s responsibilities, scope and ability.

Newly defined, third request for an inquiry and special audit

[4] Therefore I ask you to please accept my new, third request to your Office. I request you to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices. Such an inquiry and audit should establish whether the stated activities by the Ombudsman Office’s mentioned staff, relating to the specified types of complaints they handled, did comply with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. The inquiry and audit should also seek to establish whether resources were used appropriately, effectively and not only efficiently.

[5] This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff members, including their communications with the Chief Ombudsman. My request includes an inquiry into how the mentioned staff at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they were instructed to follow, while processing and assessing complaints. In the case that an inquiry and audit cannot be focused on the types or range of complaints mentioned, I do instead ask you to conduct one on the performance and conduct of the staff members for the same period, but in relation to a range of O.A. complaints that can be set and managed by your Office. If it may need to be so, that may be reduced to such ones only against the Privacy Commissioner and HDC Office. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● serious mistakes and omissions made by an investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and appropriately act upon objections raised re the handling of complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other relevant law

[6] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence of poor performance and failures in fulfilling statutory obligations, I and many other complainants were denied appropriate, fair consideration of our complaints and with that denied justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [5]). This may be remedied to some degree for the future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, a special inquiry and audit remains more than justified.

Important information to consider prior to launching an inquiry and special audit

[7] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[8] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website – under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have now repeatedly presented.

The Office of the Auditor General’s powers and authority

[9] While I accept that you may have no role in assessing the individual performance of staff in other public entities, I am aware that you have the authority to conduct special inquiries and audits into individual public entities, in some cases even into the conduct of individual public office holders. Your Office has on your website published a list of “inquiry reports” that show this, and there have also been repeated media reports on certain inquiries and special audits conducted by your Office. Inquiries have been made into particular public entities, into public office holders and into particular activities, like for instance the following:
○ Inquiry into the Mangawhai community wastewater scheme
○ Inquiry into decision by Hon Shane Jones to grant citizenship to Mr Yang Liu
○ Inquiry into the Government’s decision to negotiate with SkyCity Entertainment Group Limited for an international convention centre
○ Inquiry into aspects of ACC’s Board-level governance
○ Inquiry into the use of parliamentary travel entitlements by Mr and Mrs Wong
○ Inquiry into ‘Provision of billboard for Len Brown’s Mayoral Campaign’
○ Investigation into conflicts of interest of four councillors at Environment Canterbury
○ Inquiry into ‘How the Ministry of Education managed the 2008 national school bus transport tender process’.

[10] The fact that the Office of the Ombudsmen may as another Office of Parliament be on a similar level as your Office, does not necessarily mean it is excluded from the same level of scrutiny that applies to other offices and entities falling under your Office’s jurisdiction and responsibility. According to sections 5 (1) (b) and 14 (1) of the Public Audit Act the Offices of Parliament come under your authority. We are here also talking about the Ombudsman’s failures to address major issues that arose during the appalling handling of two complaints to the HDC, which is an independent crown entity (section 7 of the Crown Entities Act 2004), falling also directly under your authority. I may suggest you should also consider an inquiry and audit into their complaints handling, given the apparent misrepresentation by their staff of facts regarding complaint emails and evidence received re complaint C11HDCxxxxx.

[11] Given my experiences with the handling of two complaints by the Health and Disability Commissioner (HDC), and their apparent failures and even dishonest conduct in relation to emails and evidence presented to them (C11HDCxxxxx), your Office should indeed feel prompted to also conduct an inquiry and special performance audit into the Office of the HDC. Sadly the Health and Disability Commissioner Act 1994, which also contains the Code of Health and Disability Services Consumers’ Rights, offers the HDC far too much discretion to take action or to take no action. Certain powers the HDC has to offer complainants remedies are generally not used or applied in most cases. Many cases of malpractice or failures by providers of health and disability services get insufficiently addressed, so that many affected do not even bother filing complaints with the HDC. It is my view that the existing law and practice applied by the HDC is rather undermining the rights of affected patients. That put aside, one would at least expect that complaints are treated appropriately, fairly and honestly, which did not happen in my case. Hence it is doubly disturbing to have the Ombudsman dismiss my complaints as she did, and did not even feel urged to reassess my complaints.

[12] For the case that you may again decide, to not conduct an inquiry or audit at the Wellington based Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives. That is the last resort to have the matters addressed, which I stated in this and my former letters.

The Speaker of the House of Representatives’ responsibility over the Ombudsman

[13] It is the Speaker of Parliament, who holds a higher authority over the Officers of Parliament, including the Office of Ombudsmen. Through statutory reporting requirements and his constitutional position the Speaker can and must hold Officers of Parliament to account for their conduct and functional responsibilities. I may quote from the following report:
“New Zealand National Integrity System Assessment 2013 Chapter 5: Ombudsman (pillar 7)“,
Web link:
http://www.transparency.org.nz/docs/2013/Integrity-Plus-2013-Pillar-7-Ombudsman.pdf:
Extracts from that report:
“7.2.4 Accountability (practice)
To what extent do the Ombudsmen report and be answerable for their actions in practice?”

“Score: 5
The Ombudsmen comply with the legal accountability requirements. There has been no occasion in recent years for judicial review.”
“The Ombudsmen report to Parliament through the Speaker each year, and the report contains comprehensive information on the activities of the Ombudsmen and their staff, including performance against the measures specified in their public Statement of Intent. The report has always been submitted on time. Neither the House nor the Officers of Parliament Select Committee has recently debated the Ombudsmen’s report, 761 though there has been debate in the Government Administration Select Committee.”

“It is not unusual for complaints about the Ombudsmen to be made to the Speaker. Although the Speaker has no legal duty to consider such complaints, there is a practice whereby the complaint is forwarded to the relevant Ombudsman, who then reports to the Speaker on it.762“
I may also refer to the following part of that report, for some further relevant information:
“7.2.6 Integrity mechanisms (practice)
To what extent is the integrity of the Ombudsmen ensured in practice?”

[14] Hence, in case your Office should again decide to not use your authority to conduct an inquiry and a special performance audit into the mentioned section of the Wellington based Office of the Ombudsmen, I ask you to forward ALL the correspondence I sent you with my previous and this requests, including all evidence documents, to the Speaker of Parliament. It will then be up to the Speaker to seek clarifications and explanations from the Chief Ombudsman, if he may so desire. Given the disappointing experiences with Dame Beverley Wakem not even seriously re-considering my complaint, she has in my view not acted as a responsible employer and as the impartial Officer she is expected to be. Her failures may simply be based on reliance on poor advice by some of her staff, but she is ultimately responsible for them. I will reserve my final judgment in this matter depending on the final outcome of this request.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 30 December 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s complaint handling, new, anon, 30.12.14

Comments by the author:

This time the complainant appears to have taken the best possible approach with his request, asking for an inquiry into and performance audit of a section or “team” group of staff and the Chief Ombudsman herself, at the Wellington Office, who processed only certain, more easily identifiable types of complaints, not too great in numbers. So the scope was not set too widely, and it was also avoided to target any individuals, except perhaps Ms Beverley Wakem, who did then though carry responsibility for the whole operation of the Office of Ombudsmen. The complainant and requester felt the OAG could now hardly dismiss his request, given the validity of his claims and the compelling evidence he presented. He even listed earlier inquiries, where the OAG had taken action, even involving clearly identifiable individual office holders, which somehow contradicted their earlier response. But the complainant’s request would again result in a decision that would later only disappoint him.

 
 

7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015

As there would not be another response from the OAG for some time, the complainant did at 23.17h on 12 March 2015 write a brief email to the OAG Office, enquiring about the progress with his request. He attached his earlier email from 30 December and asked for a brief update. Also did he mention that he had learned that new appointments for the roles of Ombudsman had recently been signalled by the Leader of the House of Representatives.

It was in mid April when the complainant received a new response by Sector Manager Maria Rawiri at the OAG, which was dated 09 April 2015. It was again an extremely disappointing decision that was being communicated, causing the complainant to lose almost all faith in the “watchdog” offices that exist and processes that are meant to be followed in New Zealand.

 

Here is the authentic transcript of Maria Rawiri’s letter dated 09 April 2015:

“Dear Mr Xxxxxx

REQUEST FOR AN INQUIRY AND A SPECIAL PERFORMANCE AUDIT INTO THE WELLINGTON OFFICE OF THE OMBUDSMAN

You have requested that the Auditor-General consider your third request, in this case:

“to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices.”

We have reviewed the material and information provided. It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner. This office has no power to change the outcome of the assessments made by those agencies.

You have raised concerns about the overall capacity and performance of the Office of the Ombudsman within a defined year. The Chief Ombudsman has been very open about the challenges her office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.

It is the Auditor-General’s decision whether she initiates an inquiry. The office’s focus is on the way public entities use their resources, including financial, governance, management and organisational issues. We examine each request to decide the most appropriate way to proceed. We identify whether the matters raised suggest:

● financial impropriety,

● problems with the organisation’s overall governance or management, or

● other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

Other factors we consider include how serious the issues are, whether we have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues.

To reiterate having considered the evidence you provided and taking into account the factors set out above we do not intend to conduct an inquiry into the matters you raise. We believe there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.

We now consider this matter closed.

Kind regards

……………… (Signature)
Maria Rawiri
Sector Manager

 

cc: The Rt Hon David Carter
Speaker of the House of Representatives
Parliament
Private Bag 18 888
Parliament Buildings
Wellington 6160”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 09 April 2015, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 09.04.15
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 09.04.15

 

Comments by the author:

This was beyond belief for the complainant; it gave him the impression that there was simply an absolute reluctance by the OAG Officers to conduct any form of inquiry or performance audit into the Ombudsmen’s Office. The reasons given did not convince him, as they did not appear valid enough. Of course he never expected a review and over-ruling of the earlier decisions made by the HDC or the Ombudsman on his complaints filed with them. While there were no signs of “financial impropriety” at the Office of Ombudsmen, the complainant felt there were reasons to consider issues like “problems with the organisation’s overall governance or management”, or “other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public”. But Ms Rawiri did as ‘Sector Manager’ not share any of those concerns, it seems. Instead she appeared to think it was up to Parliament to decide on funding for the Office.

 
 

8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION

The response by Maria Rawiri as “Sector Manager” for the OAG’s particular area of responsibility did not only disappoint but angered the complainant, as it was proof to him, that the senior Officers of Parliament have a dim view of ordinary citizens or residents making complaints to them. They rather appear intent on maintaining the status quo of affairs, by protecting their own personnel and established processes, same as those in the other offices of the so-called “watch dogs”. The responses appear to make a mockery of the supposed accessibility of services like the ones offered by these “complaints resolution” agencies. Accountability is only scrutinised if requests may be initiated by perhaps senior media persons, by Members of Parliament, by Ministers or perhaps business or various other established, well resourced and vocal lobby group representatives.

No matter how well worded, well prepared and considered a request or complaint is, and how much detailed evidence is provided, the Officers seem to simply pick and choose as they see fit, while the complainants have no redress, except perhaps challenging the decisions by filing for judicial review at the High Court. That requires payment of high court filing fees, of legal representation fees and so forth, meaning very high costs. Few if any ordinary citizens have access to this. “Justice” seems to depend on a person’s access to finance, perhaps his/her status in society and personal or professional connections.

In order to at least let Ms Rawiri and the rest of the OAG know how he felt and what he thought of their decision, he wrote one more letter to that Office, which was dated 23 April 2015.

 

Here is the authentic text of his letter dated 23 April 2015, which the complainant sent to the OAG:

Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen; your letter dated 09 April 2015, file ref. 13xxx

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] I have received your letter dated 09 April 2015, which was attachment to an email received by me on that same day. With honest disbelief do I take note of your third response to the third request I presented to your Office in this matter of serious concern. I must inform you that I remain to be convinced that certainly my last request from 30 December 2014, under the Public Audit Act 2001 (the Act), falls into your scope of responsibilities. Yet you have once again decided to take no action, to neither conduct an inquiry, nor an audit, under sections 16 (1) (a), (b) and (d) and 18 (1) of the same Act.

[2] After having reviewed the information I sent you, you wrote the following: “It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner.” You also wrote: “This office has no powers to change the outcome of the assessments made by those agencies”<e.

[3] You furthermore stated in your letter: “The Chief Ombudsman has been very open about the challenges her Office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.” You also made clear that it is the Auditor General’s decision whether an inquiry is initiated. You admitted that amongst other mentioned focus areas, your Office also examines management and organisational issues of public entities. You wrote that you identify whether matters raised suggest financial impropriety, problems with the organisation’s overall governance or management, or other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

[4] You stated that other factors you consider include how serious the issues are, whether you have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues. You justified your decision not to conduct an inquiry with the comment, that “there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.” With that you considered the matter closed.

[5] As I informed you in my earlier correspondence, I did not expect that your Office’s possible actions in the form of conducting an inquiry and/or special performance audit would change the outcome of assessments or decisions made by the Health and Disability Commissioner and the Office of the Ombudsman. What I expected was that your Office takes the above actions, to establish what particular performance issues there are in the specified areas at the Office of the Ombudsman, and to report on this, nothing more or less. Hence your comments about outcome changes are in my view irrelevant. Of course have both Offices “looked into the various concerns” I directed to them, but neither Office did properly assess and address them. They both decided to take no action, despite of ample evidence I presented re breaches of the Code of Health and Disability Services Consumers’ Rights, and also re unprofessional or inappropriate conduct by some staff members, primarily at the Office of the Health and Disability Commissioner. Through close analysis it becomes clear, that neither of both Offices considered all the factual and relevant information or evidence, and the investigating and assessing staff at both Offices based their decisions on rather irrelevant considerations.

[6] I have noted your new acknowledgment re the challenges the Chief Ombudsman’s Office faces, which appears to be in some contrast to your comments in your letter from 30 October 2014, where you wrote: “The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest.” I informed you before, that I read that Annual Report 2013/14 and that the report would not sufficiently address, and not at all resolve, any of the concerns I have.

[7] In regards to some of the problems mentioned in past annual reports by the Office of the Ombudsmen, I may inform you that my recent experience shows me, that nothing has changed or improved in the performance at the Office of the Ombudsman. This is despite of some information in the annual report 2013/14 stating that more funding had been provided. I am still waiting for an Official Information Act related complaint from mid 2013 (ref. 3xxxxx), about the Ministry of Social Development withholding specified information that I sought, to be resolved by the Ombudsman. Over that time two or three other complaints about other cases where MSD did not provide the reasonably sought and expected information, have been added to that complaint, and are still only extremely slowly “progressed”. Also did I have reason to file a complaint about a decision by the Privacy Commissioner, dated 15 December 2014, and sent to the Ombudsman’s Office on the following day, which has up to this date not even been assessed. That matter under file reference 39xxx9 appears to be still in the process of being allocated to an investigator, as an email from the Office, dated 12 January 2015, informed me. Xxxxx Pxxxx, Manager Intake and Assessment, informed me that “due to the volume of complaints this Office is managing we are experiencing delays in progressing some of the complaints before us.” She also wrote: “We will work through the complaint you have made and the facts you have given us and contact you again. If we have not allocated your complaint to an investigator within the next six weeks, we will send you an update on your complaint.” No update or response has been received by me until this day!

[8] Besides of the ongoing timeliness issues, my main concern has though been the conduct and performance of investigating Officers at the Ombudsman’s Office, when handling complaints. Also the unwillingness of the Chief Ombudsman, to look herself at relevant correspondence and evidence, instead of simply relying on her staff member’s judgment and advice, has been a concern. Miss Wakem did as employer regrettably refuse to examine her investigating Officer’s performance and conduct. I even presented the fact that staff at the Office of the Health and Disability Commissioner lied about email evidence they received with one of my complaint, and that the investigating Officer at the Ombudsman’s Office ignored that and other relevant information. There are evident problems with the whole Office’s and management’s performance, there are systemic performance issues causing significant concerns, important for the organisation and the role the Office of the Ombudsman is meant to perform. Given the Ombudsman’s own admissions, and reports of other complainants experiencing numerous problems, the matters I raised with your Office are of serious concern for the general public.

[9] In my view such serious matters should have compelled you to take some action. It is in my view not sufficient to simply conduct the ordinary annual financial audits for the Office of the Ombudsman and have this included in that Office’s Annual Report. The evidence I provided should have been more than sufficient reason for your Office to conduct a separate, independent and thorough inquiry and audit, as you have done re matters of apparently even lesser significance. Besides of its many other functions, the Office of the Ombudsman is expected to perform a high level watchdog and complaints resolution role, but with the ongoing problems that persist, it has to some degree become dysfunctional.

[10] With much regret, I must inform you that I have now lost confidence in the Office of the Auditor General, same as I have already previously lost faith in the Office of the Health and Disability Commissioner and the Office of the Ombudsman. My experiences have sadly been extremely negative, and it astounds me, that a justifiably aggrieved person, who is seeking an honest and proper effort in the form of a proper assessment and investigation of complaints, is being passed on from one agency to another. From each Office I was simply asking for a proper assessment, followed by an investigation. From the Health and Disability Commissioner and the Ombudsman I expected an official, formal acknowledgment of failures or wrongdoings I experienced at the hands of mentioned persons or agencies. Even just a fair and reasonable recommendation for problems to be remedied would have sufficiently addressed my concerns.

[11] Given my previous experiences, and the recent, third decision by your Office, to take no action, I am left to wonder, whether this decision was made, so as to not upset persons working at the Ombudsman’s Office, who may be personally known to some of your staff. I am indeed missing a sense of integrity to the purpose of the existence of the Office of the Auditor General. But I dare not raise further questions based on such speculations.

[12] While I note that at the end of your letter from 09 April 2015 you ”cc” The Right Honourable David Carter, Speaker of the House of Representatives, there was no clear mention whether you have now actually passed on all the correspondence and evidence I presented to your Office also to the Speaker’s Office. In order to clarify matters, I must therefore ask you to at least confirm to me in writing, that this has been done, and that I can look forward to a response from the Speaker or his staff in due time.

[13] Please find attached to this letter two PDF files containing two emails from the Office of the Ombudsman, confirming the already known, and unchanged serious problems the Office faces. Your written response in this matter will be expected in due time.

Yours sincerely

Xxxxxxx Xxxxxx

Attachments (2 PDF files with last correspondence from Ombudsman Office):

1. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, email acknowledgmt, 18.12.14.pdf;
2. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, update, delay, email, 12.01.15.pdf.”

Here is a link to a down-loadable PDF file containing the letter dated 23 April 2015, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s Office, ref. 13xxx, reply, anon, 23.04.2015

 
 

9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL

As the complainant did no longer have any faith in the OAG helping him or other persons affected by flawed and unacceptable decisions by the HDC, Ombudsman or similar Officers, he decided to make a request under the Privacy Act, to seek particular specified information, so he could at least hold the OAG to account for having kept and considered certain documents, or having failed to do so. That way he could also find out what consultations may have been conducted with any other involved parties.

So on 07 May 2015 the complainant sent the following request to the OAG:

 

“Re: Urgent request under section 34 of the Privacy Act 1993 (the Act), for confirmation of information being held on me, in relation to my earlier requests for an inquiry and audit into the Ombudsman’s Office; see also your file ref. 13xxx

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

Please accept my request under section 34 of the Privacy Act 1993 for confirmation that your Office is holding personal information on me in relation to requests I made to your Office, to conduct an inquiry into, and audit of, the Office of the Ombudsmen. I urgently seek this confirmation under section 6 and Principle 6 (1) (a) and (b) of the Act.

I ask that the information is made available to me according to the provisions of section 42 (1) (e), by listing the individual documents containing any information kept on me, including such that was received from me by email or post, by name, title, date and type of record.

Furthermore I ask you to confirm to me, whether any of the personal information was provided to another agency (or Office) under section 6 and Principle 11 of the Act, whether under section (d), or under any other section (or subsection) of that Principle. In the case information has been disclosed to another agency (or Office), I also ask for this to be disclosed by name, title, date and type of record under section 42 (1) (e) of the Act.

I had already previously asked for confirmation from you, whether the information I had sent to you, had been sent on to the Speaker of the House of Representatives, as I had requested in the case your Office would uphold a decision not to conduct an inquiry or audit into the Ombudsman’s Office. This was by way of my letter dated 23 April 2015 (see Para [12]). But no confirmation had ever been provided. Hence I asked you again in an email dated 01 May 2015 (sent 08:15pm), to expressly confirm the same, but again no response of any sorts has been received from you.

As the matters I raised with your Office are of extreme concern to me, I insist on being informed about what information you hold on me – and in relation to past correspondence, and on what action you have taken to meet my repeated requests, that the matters be referred to the Speaker of Parliament.

Given the huge delay in time since my first request, and given the delay in responding to my last requests for confirmation, I consider this Privacy Act request as being very urgent, as further delays will severely disadvantage me in having the various serious issues resolved in a satisfactory manner.

I expect your considered response as soon as is reasonably possible under these circumstances.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

Attachment to email carrying this letter (1 PDF files with a scan copy of this letter):

‘OAG, Privacy Act request, for personal information held, your ref. 13xxx, X. X., 07.05.15’”

Here is a link to a down-loadable PDF file containing the full request dated 07 May 2015, which is perhaps easier to read:
OAG, CAG, Privacy Act request, info held, re ref. 13xxx, ltr, anon, 07.05.2015

 
 

10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015

With a letter dated 20 May 2015 Edrick Child, Acting Assistant Auditor-General, Legal, responded to the complainants Privacy Act request. It was reasonably frank and detailed, and copies of requested documents and information were attached or enclosed. But this did hardly offer any remedy to the complainant’s unresolved issues and requests, so all he could gain from it was to get a little more insight into how his requests may have been handled.

We will not bother presenting a transcript of the letter here, but simply offer a down-loadable PDF with a scan copy of it – found via these links:
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, E. Child, Assistt AG, ltr, 20.05.15
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, Assistt AG, ltr, hilit, 20.05.15

 

Comments by the author:

The Acting Assistant Auditor-General’s letter is largely self explanatory. It reveals that only the OAG’s letter dated 09 April 2015 had been referred to the Speaker of the House of Representatives, for his consideration. No other correspondence had been on-forwarded to the Speaker. There was also no correspondence, indeed there were no communications of any kind, that appear to have been exchanged with the Ombudsmen. So there was no attempt made to seek any comments from their Office, nor was there any correspondence on-forwarded for them to consider. The table attached to Edrick Child’s letter contained a list of documents that mostly showed correspondence that had been exchanged between the complainant and the OAG. Attachments were also listed, but as they were small in number, and were mostly such that had already been attached to the earlier posts on the complaints made to the HDC, or the Ombudsman, we will not bother attaching any of them here, at least for now.

 
 

11. CONCLUSION

We can see now, that the whole system we have here in New Zealand is a highly sophisticated but also difficult one to work with. But it appears to have been constructed with the intention to keep complaints and complainants at low numbers. Going through the difficult process of making formal complaints to the HDC, and then also to the Ombudsman’s Office, the complainant had to find out, that it can apparently only be a small number of complaints that will ever be taken seriously enough to be properly, fairly and reasonably investigated and addressed by any Officer of Parliament. Indeed one may say, the Officers of Parliament seem to even be collaborating in their efforts to keep complainants off their doorsteps – and also out of the courts, offering damned little in true and honest “complaints resolution”.

The law they all operate under gives the Officers in charge a wide scope for discretion to either take action, or take no action, and many provisions allow them to present apparently valid reasons for not investigating complaints.

In the end an unsuccessful complainant, like the person who went through all these stages, has only the courts to try seek remedies, in most cases probably through filing for a judicial review of decisions that were made. But as the law is written, the chances of success will be rare and limited. “Fairness for All” is the slogan the Office of Ombudsmen now uses and prints on their letters and shows on their website. Surely for some it is nothing but a hollow, meaningless or even dishonest slogan.

But any person who may persist and continue challenging earlier made decisions, he or she will most likely be labelled as being overly “litigious”, a “serial litigant”, therefore a frivolous person causing nuisance, and will simply not be taken seriously.

 

Updated: Saturday, 10 September 2016

 

Quest For Justice

 
 

HAVE YOU HAD ISSUES WITH HDC DECISIONS? AN ADVOCATE SEEKS FEEDBACK

HAVE YOU HAD ISSUES WITH UNFAIR, UNREASONABLE AND UNACCEPTABLE HDC DECISIONS? AN ADVOCATE SEEKS CONFIDENTIAL FEEDBACK – ANY COMMENTS ARE WELCOME WHILE YOUR PRIVACY IS ENSURED

 

On this blog we have covered some topics relating to the Health and Disability Commissioner (HDC) and how a number of decisions made by that Officer or his Deputy have been considered unfair, unreasonable and unacceptable to the complainants. While the Health and Disability Commissioner Act 1994 (The Act) offers the HDC a fairly wide scope to use discretion in assessing and / or investigating complaints, and also in forming a view and making a decision, there are very valid questions that must be asked about whether many decisions are made by failing to meet natural justice and possibly other legal standards.

We have some time ago been contacted by a number of persons who have taken a special interest in this matter, and at least one truly independent advocate is now very keen on hearing from people who felt that they were served great injustices when being presented decisions by the HDC.

There have already been a fair few media reports on such cases, and some persons have involved their own legal representatives to ask for further reviews and investigations, but often they find there are very limited means to address or even remedy decisions that appear very unfair to complainants, their relatives and friends.

In order to get a greater picture of what is happening with the HDC, and on what can and probably should be done to try and resolve such issues, the advocate who we will not name or otherwise identify has asked us to present a post like this, seeking comments and any other forms of feedback from persons who have been affected by HDC decisions.

You do therefore not need to present your personal details, if you so prefer, and can use alias names or email addresses, or if you reveal your identity, we are happy to keep this private and will not release it without your express permission. But any comments that appear genuine, valid and well based, we will consider to present here, if necessary by under “anonymous”, perhaps only giving other references like the time and/or date received. That is of course – if you agree to this.

Also are we happy to assist persons to touch base with the advocate, and we will then consult how to best do this, perhaps by offering an email address to complainants and commenters, so they can choose themselves to initiate a contact, with a possible prospect to perhaps be considered for participating in forms of action to address the often reported injustices.

We cannot share much more than that now, so it is up to you, the reader, to get back and leave a comment here, and we will go from there. Please indicate whether you wish your comment to be published here, as “anonymous” or with a given name, or not so. Also tell us whether you are interested in contacting the advocate.

 

For memory, the following complex posts have been published on this blog, which some may wish to read before going any further:

https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/

https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

 

A separate post was about a complaint to the Ombudsman, being against the HDC:
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

(this relates to only two complaints handled under one reference number, so they may not be representative of how other Ombudsman decisions are formed and presented)

 

Marcus

30 August 2016

 
 

PLEASE NOTE:
COMMENTS ARE BEING MODERATED, SO WILL NOT APPEAR HERE AUTOMATICALLY!!!

 
 

UPDATE – 23 OCTOBER 2018:

We thank those who have expressed their concerns to the blog moderator and who asked to be put into contact with the advocate referred to in this post.

As there was only a limited response to this particular post, and as the advocate has more recently had to take a longer break for own serious health issues, we can no longer put persons who wish to share their experiences in touch with that advocate.

Also please note that this post is now over two years old, so it is perhaps not all that current anymore, although our concerns about the HDC remain and deserve to be taken very seriously.

 
 

SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’

SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’

 
 

Published 16 August 2016

 

A). Introduction

We have in previous posts on this humble blog-site revealed how frequently made assertions by the New Zealand government’s Ministry of Social Development (MSD), particularly by their Principal Health Advisor (PHA) Dr David Bratt, about the so-called “health benefits of work”, are not supported by proper and sufficient scientific evidence.

It appears that many of the bold claims are based on misleading information and advice that had been taken from a ‘Position Statement’ by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), originally titled ‘Helping People Return to Work’, which was first formally presented in March or May 2010. The since then updated ‘Position Statement’ of the AFOEM is now known under the title ‘Realising the Health Benefits of Work’. Wrong conclusions were for instance drawn from a graph based on statistical data with limited value, on page 14 of the original ‘Statement’ (‘Helping People Return to Work’). An amended ‘Statement’ as part of a stakeholder ‘Consensus Statement’, signed by former AFOEM President Robin Chase on 01 March 2011, does not show the same graph, but mentions frequently quoted statistical information under the heading ‘2.0 HEALTH AND WELLBEING IMPACTS OF BEING OUT OF WORK’ (page 12). That information appears to be based on the same data that was used for the mentioned graph in the earlier ‘Statement’. The mentioned figures refer to the likelihood of a person’s return to work after certain periods of absence from work (due to accidents suffered). The graph was part of a presentation by senior AFOEM members Dr Robin Chase (former President) and Dr Mary Wyatt (then Chair of the ‘Policy and Advocacy Committee’). It resembles a graph ‘5.3’ on page 36 of another report titled ‘Factors Affecting Return to Work after Injury’: A study for the Victorian WorkCover Authority’ by David Johnson and Tim Fry, from Dec. 2002.

Dr Mary Wyatt is also linked to these online website and publication forums:
http://www.rtwmatters.org/opinion/contributor.php?id=2
http://www.rtwknowledge.org/

A link to the PDF with the report available on the Web, titled ‘Factors Affecting Return to Work after Injury’: A study for the Victorian WorkCover Authority’ is found here:
https://www.melbourneinstitute.com/downloads/working_paper_series/wp2002n28.pdf

Another report that has also partly been misinterpreted, but which is not of direct relevance here is the following, more recent one:
‘2008/09 Australia + New Zealand Return to Work Monitor’, by Campbell Research:
http://www.hwca.org.au/documents/Australia%20and%20New%20Zealand%20Return%20to%20Work%20Monitor%202008-2009.pdf

The above mentioned ‘Position Statement’ on the “Health Benefits of Work” was first launched at the AFOEM in March 2010 by Professor Sir Mansel Aylward from the then called ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales. He had been invited to the AFOEM – as part of the Royal Australasian College of Physicians (RACP) – by the then ‘Chair of ‘Faculty Policy and Advocacy’, Dr David Beaumont (formerly also employed by ‘ATOS’ in the UK). Prof. Aylward was asked to present his “evidence” that he and colleagues had gathered and reported on in the UK. Dr Aylward and his colleague Dr Waddell both worked at the mentioned research department at Cardiff University, which had for years initially also been funded by ‘UNUM Provident’ insurance company. The name ‘UNUM’ was later dropped from the Centre’s name after controversy arose due to that insurer’s US branches’ activities ending in court cases revealing improper activities by assessors they used. Repeated mention is made in the AFOEM ‘Position Statement’ of Prof. Aylward, Dr Gordon Waddell and Kim Burton as senior “research” professionals, who have been pushing for a change in the approach to assessments and treatments of people with health conditions, injury and resulting disability. Prof. Aylward became Director of the Cardiff research department in 2005, after having been ‘Chief Medical Adviser’ for the ‘Department of Work and Pensions’ in the UK for a number of years.

Online copies of the ‘Position Statement’ by the AFOEM:
https://www.racp.edu.au/docs/default-source/pdfs/helping-people-return-to-work-using-evidence-for-better-outcomes-28-05-2010.pdf?sfvrsn=2 (see page 14)
https://www.racp.edu.au/docs/default-source/default-document-library/australian-and-new-zealand-consensus-statement-on-the-health-benefits-of-work.pdf?sfvrsn=2 (see page 12)
https://www.racp.edu.au/docs/default-source/default-document-library/afoem-pos-aus-nz-con-health-benefits-work-pack.pdf?sfvrsn=0

Some links to info on Prof. Aylward, Dr Waddell and Dr Beaumont – found on the ‘web’ (enjoying some controversy):

https://en.wikipedia.org/wiki/Mansel_Aylward
http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/
http://blacktrianglecampaign.org/2012/09/09/professor-mansel-aylward-my-what-a-very-tangled/
https://mikesivier.wordpress.com/2013/01/18/unum-atos-the-dwp-and-the-wca-who-gets-the-blame-for-the-biopsychosocial-saga/
http://dpac.uk.net/2014/09/gordon-waddells-biopsychosocial-attack-on-disabled-people/
http://fitforwork.co.nz/dr-david-beaumont-inducted-as-afoem-presidenthttps://nz.linkedin.com/in/david-beaumont-9437802a
https://issuu.com/maxhead/docs/atos_conference_2004
http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2013/01/29/absenceminded-2005-07.aspx
(See at the bottom: “Dr David Beaumont is a consultant occupational physician with Atos Origin…”)

 

B). Most “evidence” appears to be at best inconclusive

At best, much, if not most of the so far presented “evidence” on supposed “health benefits” of staying at work, or returning to work early, while still injured and/or sick, has been inconclusive. Indeed some would argue the whole presumptions that work has significant “health benefits” or is even “therapeutic” is hardly proved; given that many forms of work carry various types of health risks (e.g. stress, occupational overuse syndrome, burnout and potential injury). Even such authors of reports promoting work for persons who are sick and disabled, like Drs Aylward and Waddell, and who claim that for many with “common mental health conditions” or “musculoskeletal conditions” this may even be “therapeutic”, they have often enough admitted that “more research is needed”.

We have shown in earlier posts, how statistical data had been hand-picked, was used rather selectively and presented out of context. We revealed how the information was often only the result of rather limited, randomly conducted interviews, surveys and other poor “research”. Certainly a fair amount of such “research”, for instance from the former ‘Centre for Psychosocial and Disability Research’, now known as the ‘Centre for Psychosocial Research, Occupational and Physician Health’ (PROPH), cannot have been conducted in a sufficiently comprehensive and systematic manner. At least some of it appears to have been done without strictly following commonly accepted scientific approaches (e.g. by interviewing comparatively small numbers of selected participants). Also were many reports simply based on the interpretation of earlier statistical reports, after having merely done “desk research”. The validity and reliability of such reports has been questioned, even though some is claimed to have been peer reviewed. Apparent correlation of variables did not justify making presumptions on the causality of one from the other. Correlation and association does not necessarily conclude causation. Yet this appears to have been done on a number of occasions.

Wikipedia explains the challenges researches often face when evaluating results:
https://en.wikipedia.org/wiki/Correlation_does_not_imply_causation
“”Correlation does not imply causation” is a phrase used in statistics to emphasize that a correlation between two variables does not imply that one causes the other.”

Some bold claims have been made that lack any substance at all, as far as we can assess. And one must suspect that there have been certain efforts made, to provide reports and comments on the “health benefits of work” and the harmfulness of “worklessness”, which may simply serve certain vested interest holding parties. These would be parties like government agencies, insurance companies, employers and their organisations, which may all somehow benefit from the creation of new “paradigm shifts” supporting more short-sighted “cost efficient” approaches in dealing with persons suffering health issues, injuries and work absenteeism.

 

C). Earlier posts on ‘nzsocialjusticeblog2013’ revealing flaws in “evidence” reports and in “presentations” by Dr David Bratt, MSD

One earlier post that revealed flaws in ‘evidence’ and more is found under this link:
‘THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH’
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/

msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16

Many presentations were given by Dr David Bratt, (PHA for Work and Income and the MSD) to numerous meetings and conferences attended by health professionals, educators and also other groups of people. One of them was called ‘Ready, Steady, Crook – Are we killing our patients with kindness?’ It is still found via the internet by clicking this link below:
http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf

In that and some other presentations, clearly intended to influence medical and other health practitioners, to refrain from issuing medical certificates for people to take time off work, highly questionable data has been presented. In ‘Ready, Steady, Crook’ we find this for instance on slides 22 and 23, where not specifically named “Australian and NZ studies” are mentioned, which are supposed to show the percentage based likelihood of persons absent from work for certain periods in being able to return to employment. On the following pages (slides 24 and 25) in that presentation the ‘Adverse Effects’ and ‘Psycho-social Impacts’ are listed, for persons being absent from work for longer periods.

Dr Bratt does have a habit of not mentioning much in the way of his sources and where exactly his information originates from, and he also presents such “data” out of context, apparently trying to send home a kind of targeted “message”.

When looking at many of his presentations, one must wonder, whether he does at least at times not confuse cause with effect, as it is completely normal and understandable that seriously sick or injured people need to take time off work, and the more serious their conditions are, the more likely it is that they will be unable to work for longer periods, due to the duration of recovery and also the severity of resulting disabilities.

When reading and looking at the presentations though, one gets the impression that Dr Bratt tries to suggest, that people get sick from not working, and that being “workless” is the cause of their health issues. While there may well be some truth in it, that being out of work for longer will potentially also have some negative effects on a person’s health, this does not necessarily mean that being out of employment results in sickness and disability. People can stay fit and healthy without being in paid employment, which will be the kind of “work” Dr Bratt and MSD are talking about. Provided people stay active physically and mentally, within their reasonable abilities, we would argue, they will stay healthy whether they are in paid work or not. They may also be happy to rather do some voluntary work, or engage in various activities at home, which are not paid, and thus maintain mental and physical health.

The efforts by Dr Bratt and his employer MSD do rather seem to be intent to move the goal post, or to blur the line, regarding what has traditionally been accepted as being disabling health conditions and/or injuries, and what they may wish to instead have apply in the future. Quite understandably do MSD (with their main department Work and Income), and the government, have a strong interest in reducing the number of persons who may claim a benefit, in this case for grounds of poor health and disability. It would reduce their costs and result in “savings”, at least in the short to perhaps medium term. They do clearly have a vested interest that is at play here.

 

Some other presentations by Dr Bratt, repeating similar data and claims:

‘If a Benefit was a Drug would You Prescribe it?’, Rotorua, June 2010:
http://www.gpcme.co.nz/pdf/BO%2012%20830am%20David%20Bratt%20Benefit%20were%20a%20Drug%20V2.pdf
(see slides 15 to 22, particularly slide 18, and slide 31, which are of relevance in relation to this post)

‘Medical Certificates are Clinical Instruments Too!’, GP Presentation, 2012:
http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(see slides 25, 26 and 33 as being of particular interest in relation to this post)

‘Benefit Sunshine’ “Is being on a Benefit Bad for your Health”, Welfare Working Group Forum, Wellington, June 2010:
http://igps.victoria.ac.nz/WelfareWorkingGroup/Downloads/Forum/David-Bratt-Benefit-Sunshine.pdf
(see slides 6 to 9 as being of particular relevance in relation to this post)

‘Happy Docs – true generalism with Welfare Reform’, RNZCGP Presentation, July 2013:
http://www.conference.co.nz/files/docs/gp13/1100%20-%20cs3-a%20-%20happy%20docs%20true%20generalism%20with%20welfare%20reform%20-%20david%20bratt.pdf
(see slides 21 to 23 as being of particular relevance in relation to this post, slide 22 also contains questionable data gathered through an unscientific, random survey of GPs)

 

Comment by the Author

The above does already imply that a kind of “agenda” appears to have been followed by certain members of the AFOEM, and in the consequence also by government departments in Australia and New Zealand, such as MSD, with the intention to reduce work absenteeism, prolonged unemployment resulting in either insurance claims or benefit receipt by persons with sickness, injury and disability. The aim was first and foremost to reduce costs and liabilities. Looking at the “presentations” used by Dr Bratt gives an informed and educated reader the immediate impression, that information is presented with the intention to influence medical practitioners such as general practitioners, and to get them on side in the efforts by the government agencies and also other vested interest organisations and departments to achieve the mentioned outcomes. In the following we can now show, how their so-called “evidence” has been challenged and proved wrong by a senior scientist and also by legal experts.

 

D). Gordon Purdie, BSc and Biostatistician, from the University of Otago – Wellington presented the following critical ‘Opinion’ publication in the ‘New Zealand Medical Journal’ (NZMJ), published on the New Zealand Medical Association website

 

“Is the statement that if a person is off work for 70 days the chance of ever getting back to work is 35% justified?”

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729

“The 2010 Australasian Faculty of Occupational and Environmental Medicine (AFOEM) position statement, Realising the Health Benefits of Work1 contains the following statements:
Work absence tends to perpetuate itself: that is, the longer someone is off work, the less likely they become ever to return.
If the person is off work for:
• 20 days the chance of ever getting back to work is 70%;
• 45 days the chance of ever getting back to work is 50%; and
• 70 days the chance of ever getting back to work is 35%.

The statements are referenced to a study for the Victorian WorkCover Authority by Johnson and Fry published in 2002.2 However, the reference does not contain the statements or results that could support them.

The statements are being repeated by New Zealand3 and Australian4,5 government agencies, in the explanatory memorandum for a bill to amend the Safety, Rehabilitation and Compensation Act in Australia,6 non-government organisations7 and the commercial sector, including insurance.8 They were presented to the New Zealand Government’s Welfare Working Group Forum in the context of influencing government policy.3 The statements are frequently referenced to Johnson and Fry.2 They have appeared in international literature,9 also referenced to Johnson and Fry.2 “.

“Misinterpretation of survival curves”

“The conclusions appear to be based on the misinterpretation of survival curves. …”

(Read the full commentary on the website or in the attached PDF file!).

“The statements use”

“The statements are being used to support statements like: “Urgent action is required if a person is not back at work within a matter of weeks. If a person is not back at work within three weeks urgent attention is needed”11 even though the data is for time after an initial 10 days off work.”

“The incorrect statements about the chance of ever getting back to work are being presented to general practitioners (GPs) continuing medical education conferences in the context certifying people as unfit for work, together with statements like the ‘benefit’ is “an addictive debilitating drug with significant adverse effects to both the patient and their family (whānau)”.13 They are being presented to GPs in the context of assisting patients to safely stay at work or return to work early.4 These appear to be encouraging GPs to assess injured and unwell patients as having capacity for work and not issuing medical certificates for work incapacity. This could result in the cessation of welfare benefits or injury compensation. When these patients lack the capacity to work, they could experience increased financial hardship. For example, people might move from injury compensation to an unemployment benefit, and those without benefit entitlements to no income.”

And take note of this sentence (as quoted):
“The statements have also been presented with the intent to influence public policy.3,6,14”.

Here is a link to the down-loadable PDF file with this report:
https://www.nzma.org.nz/__data/assets/pdf_file/0005/45905/Purdie-1874FINAL1425.pdf

 

Please find hear some information on the author, Gordon Purdie, Department of Public Health, University of Otago – Wellington, on the University’s website:
http://www.otago.ac.nz/wellington/departments/publichealth/staff/otago024934.html

“Research Interests and Activities”

“Gordon is part of a team in the Department of Public Health which provides statistical consulting to health researchers. Within the Health Inequalities Research programme, he is involved in the Differential Colon Cancer Survival by Ethnicity in New Zealand project and also works with Te Rōpū Rangahau Hauora a Eru Pōmare on several research projects, including Unequal Treatment: The Role of Health Services.

Gordon’s concerns include discrimination and inequalities, which are reflected in his health research.”

 

E). Opinion by respected West Australian legal experts on the controversial “evidence” that Dr Bratt and MSD, and even the RACP’s AFOEM have so often presented

Connor Legal – Barristers and Solicitors:

‘The Health Benefits of Work (Part 1)’
http://connorlegal.com.au/2014/09/health-benefits-work-part-1/

Extract from their website:

“According to WorkCover’s latest public relations handouts to medical practitioners, “work generally is shown to be good for health and wellbeing”, and “Research shows that early return to work is important to recovery”.

Let’s just pass over the amusing irony inherent in the claim that the very activity being performed by a patient at the time of injury, i.e. “work”, was in fact beneficial for that patient. Instead, let’s look at the evidence that WorkCover assures GP’s “overwhelmingly” supports these surprising statements. I’ll deal with the early return to work claim first since it is the most ludicrous.”

And here is another bit:

“So, the claim being made is that time off work causes time off work, because while they are away from work, workers are denied the “health benefits of work”. Denial of these benefits prejudices recovery, so workers take longer to get better. That this is so, is indicated by the table which shows a negative association between time off work and the chance of returning to work: greater absence – lower probability of return to work.

However, the claim is fallacious as (for a start) “correlation or association is not causation”. There are numerous examples available to illustrate this fallacy. An amusing one is as follows:….”

Read their further comments in that article on their blog on their website!

And have a read of this latest article, is it not “bizarre”, how the truth has to come out only so late, and this is just in relation to this one bit of “evidence” Bratt et al have thrown at us:

‘The Health Benefits of Work (Part 4)’
http://connorlegal.com.au/2016/06/the-health-benefits-of-work-part-4/

Extract from the website:

“Dr Purdie’s criticism was accepted by the the Faculty of Occupational and Environmental Medicine, RACP (NZMJ 19 February 2016, Vol 129 No 1430):

Dr Purdie makes a number of points about information in the Health Benefits of Work position statement and subsequent publications. We respond to his points in turn. Dr Purdie raised concerns that we have misinterpreted or misrepresented the survival curves. We concur, in retrospect, that we have not interpreted the survival curve correctly. We thank Dr Purdie for drawing this to our attention. The curve does indicate that the longer someone is off work the lower the chance of the individual returning to work, however the percentages quoted are not accurate. The concordance of the evidence supports the principle, if not the precise detail. We have recently published an update of the evidence and we plan to update the position statement.”

Read their further comments in that article (see link above)!

And here are other articles from this series of qualified and intelligent commentary:
http://connorlegal.com.au/2014/10/health-benefits-work-part-2/
http://connorlegal.com.au/2014/10/health-benefits-work-part-3/

We most strongly recommend that you read the whole lot, it proves that we have been served misleading nonsense with the “science” they use to justify assessing many seriously sick and disabled as “fit for work”, even when they have no realistic chance of getting a job.

Dr Bratt, Principal Health Advisor at MSD and for WINZ and his apparent academic master lecturer Mansel Aylward have been exposed, yet again.

 

F). Other report/s that question the usefulness and credibility of the ‘bio-psycho-social model’ promoted by “experts” like Prof. Dr Mansel Aylward and like minded scientists

 

‘In the expectation of recovery’, Faulkner, Centre for Welfare Reform, on ‘Scrib’:
“In the Expectation of Recovery”
‘MISLEADING MEDICAL RESEARCH AND WELFARE REFORM’
by George Faulkner, Published by The Centre for Welfare Reform, April 2016
https://www.scribd.com/doc/308613502/In-the-Expectation-of-Recovery
(With criticism of the biopsychosocial model, used and defended by Aylward et al)

 
 

G). Concluding Comments

So we have over many years been misinformed, by “experts” presenting us wrongly interpreted statistical data, questionable results from series of interviews and surveys offering only limited value, all designed and aimed at telling us that sick, injured and incapacitated persons need to be kept in paid employment by all means, as that is for most the best “therapy” to recover. Serious sickness and injuries are meant to only be temporary, and people who consider themselves too sick or injured to return to work, may simply just suffer from a victim attitude or “fool themselves” into believing they are not able to work.

Cause and effect appear to have been confused and false conclusions have been drawn from reports that were often just the result of desk research by persons who seem to have been overly keen to prove their views and interpretations of gathered information and viewed earlier reports.

We have taken note how some of the quoted “experts”, such as Dr David Beaumont, same as Prof. Aylward and others, have over recent years made efforts to rewrite certain information on their own or affiliated websites, and have now also made it more difficult to find older information that once used to be freely available on the internet. For instance Dr Beaumont’s profile on the ‘Fit For Work’ website reveals nothing about his former work for ‘Atos Origin’. Other information has suddenly vanished or changed. The former ‘UnumProvident Centre for Psychosocial and Disability Research’, of which Dr Aylward has been Director, was many years ago suddenly renamed, so the name ‘Unum’ vanished, and little info is found now, on their past involvement in establishing and funding the research department at Cardiff University.

These are just some things we note, and we must presume more information is “refreshed”, “reviewed” and “represented” or deleted while we read this here. It is time to be alert at all times, to challenge the persons who have been involved in all this, and to expose more of the truth, such as the respected professionals have done, whose new findings and revelations have surely discredited the so-called “evidence” on the “health benefits of work”.

 
 

Quest for Justice

 

16 Aug. 2016

 
 

For some other, earlier posts of interest, that also relate to this topic:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/02/medical-and-work-capability-assessments-based-on-the-controversial-bio-psycho-social-model/

https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/
(see also parts B’’ to ‘I’ )

https://nzsocialjusticeblog2013.wordpress.com/2014/10/05/work-has-fewer-health-benefits-than-mansel-aylward-and-other-experts-claim-it-can-cause-serious-harm/

https://nzsocialjusticeblog2013.wordpress.com/2014/10/19/nz-finance-minister-bill-english-insults-beneficiaries-with-mansel-aylwards-work-will-set-you-free-approach/

 
 

UPDATE / ADDENDUM FROM 21 AUGUST 2016:

 

Now available in full on the New Zealand Medical Journal or NZMA website:

‘We respond to Dr Gordon Purdie’s Viewpoint, 20 November 2015’

“Mary Wyatt, on behalf of the Faculty of Occupational and Environmental Medicine, RACP”

19th February 2016, Volume 129 Number 1430

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2016/vol-129-no-1430-19-february-2016/6822

The PDF version found via this link:
https://www.nzma.org.nz/__data/assets/pdf_file/0017/47204/Wyatt-2181-NZMJ-1430-FINAL.pdf

 

Comment on the contents:

Of course the persons responsible at the AFOEM and in the UK would never back down from their bizarre position, trying to save their reputation with presenting further hand-picked statistical reports and “evidence”, twisting the truth ever more.

Using statistics from selected groups of (injured) persons for a few geographical areas for certain (mostly long past) periods, and claiming their position is “generally” true, but admitting there are significant variations and other unresolved questions, the AFOEM and its representatives do increasingly look ridiculous. How can they use statistics gathered on accident patients with injuries, and use that info also for various forms of sickness (e.g. congenital conditions) and mental health conditions generally, we ask?

We will endeavour to cover more on this, and will follow the “review” and changes to the AFOEM/RACP “Position Statement”, and what else may come to “explain” and “excuse” their misrepresentation of information.

 

ADDENDUM: FURTHER INFO OF RELEVANCE TO THIS TOPIC – FROM 30 AUGUST 2016:

 

Dr David Bratt, Principal Health Advisor at the MSD, he has a long track record, and has been known for his strong “pro work” focus for many years now, he was once also on the ACC Board (see link):

https://www.beehive.govt.nz/release/minister-announces-appointments-acc-board

From 04 Aug. 1997, about 19 years ago:

‘MINISTER ANNOUNCES APPOINTMENTS TO ACC BOARD’

“David Bratt, who is a senior partner in the Newtown Medical Centre and has been a GP for 26 years. He is the Chairperson of the Wellington After-hours Medical Centre, and a board member and trustee of the Te Hopai Trust Board. “These new board members bring a range of experience and skills in health care, the insurance industry, road safety and business management that will make a valuable contribution to the board ” the Minister said.”

He is a New Zealander, now the PHA for MSD and WINZ, and has been behind the new “work focus” approaches at WINZ since 2007, even been appointed under the then still ‘Labour’ government (following advice and ideas from the UK). But he has had visits from Prof. Aylward (‘google’ his name, same as Dr David Bratt’s name) – that UK “expert”, who has a lot to answer for also. Bratt was even visiting that “expert” in April to May 2014, in the UK, to get more “training” from him.

More re Bratt and all that he has to do with:
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

 

The magazine ‘NZ Doctor’ has published this on YouTube, the two “experts” repeating the flawed mantra:

https://www.youtube.com/watch?v=vPNqBJ4n-x0

Aylward and Bratt, a clearly coordinated effort.

And they both love to stress how they also sucked the unions into their “consensus”, see the following videas with speeches by Dr Beaumont and others from the AFOEM, part of the RACP:
https://www.youtube.com/playlist?list=PLsSX-vyeOa3nWeK64-yfeVbnYmK81ivhN

https://www.youtube.com/watch?v=a33vZWw_12Y
‘Implications of the Health Benefits of Work for New Zealand’, Panel Discussion, Wellington, 01 April 2015

See Dr Bratt as the third person from the right! And Dr Beaumont is of course “chairing” the whole event. God forbid, I wonder whether Helen Kelly does now regret ever having the CTU sign up to all this ideologically driven nonsense?

Dr Bratt appears to be arrogant and seems to emphasize his ideas, based on his developed views as a result of his interactions with Prof Aylward, who is by some considered to have been indirectly responsible for a fair few deaths through failed “welfare reforms” and flawed assessments he developed and help bring in (e.g. the tests he developed that led to the ‘WCA’) in the UK.

And our dear Minister for Social Development, Anne Tolley, has sucked it all up, believing this is the magic and best solution for sick, injured and disabled dependent on benefits:
https://www.youtube.com/watch?v=P7QziiRzAdQ
Or alternatively try this link:
https://youtu.be/P7QziiRzAdQ

“Get em off benefits, get em off ACC, get em working”, no further questions asked, it is all “healthy”, and look at the “actuarial outcomes”, oh yeah. Count the reduced numbers of lingering beneficiaries, who have not “responded” yet to “services”. I know about “wrap-around services”, as a mental health sufferer – who I know – asked WINZ for paying disability allowance for counselling at $200 a session, the WINZ manager never got back, as they will not pay this, same as they will not pay for other services that cost more than the maximum $61 or so in Disability Allowance per week. Get on with it, is the message, forget your “ills” and get a job, that is all the recipes they know. Thank you, Anne Tolley, what you defend and propagate is a sick joke.

 

THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME

THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME

 
 

A post on a decision by former New Zealand Ombudsman Beverley Wakem on complaints about the Health and Disability Commissioner (HDC) – revealing how at least some of her assessments and decisions were clearly flawed!

 

Published: 24 July 2016

 
 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE FIRST COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST CODE BREACHING COUNSELLORS
PART 3 – THE SECOND COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST A BIASED WINZ DESIGNATED DOCTOR
PART 4 – THE BIZARRE, INCOMPREHENSIBLE COMPLAINTS ASSESSMENT AND ANALYSIS BY AN OMBUDSMAN’s INVESTIGATING OFFICER
PART 5 – THE OMBUDSMAN BEVERLEY WAKEM DECIDES THAT NO ACTION IS NECESSARY, IGNORING COMPELLING EVIDENCE
PART 6 – THE COMPLAINANT’S OBJECTIONS TO THE COMPLAINT HANDLING AND DECISION AND HIS REQUEST FOR A REVIEW
PART 7 – OMBUDSMAN BEVERLEY WAKEM BLUNTLY REFUSES TO REVIEW THE COMPLAINTS, USING QUESTIONABLE DEFENCES
PART 8 – CONCLUSION: “FAIRNESS FOR SOME, CERTAINLY NOT FOR ALL”

 

Please note: Where references are made to the Ombudsmen Act 1975, the version valid Nov. 2013 to July 2014 applies!

 

PART 1 – INTRODUCTION

Those familiar with this blog site, and those who read two earlier posts about the complaints handling by the Health and Disability Commissioner (HDC) – or rather his former Deputy and his Associate Commissioner – will know about some very serious issues that exist with the handling of complaints by that particular Officer of Parliament.

Instead of conscientiously and effectively acting in the spirit of the purpose of the Health and Disability Commissioner Act 1994 (HDC Act) (see section 6) it appears to many complainants, that there exists a “complaints resolution” regime where an excessive use is made of “discretion”, possibly to keep the numbers of complaints down, by simply dismissing a significant number of the many valid complaints that are made. A high percentage of complaints to the HDC have been dismissed – or were “resolved” (i.e. closed) – with the explanation that they were “not needing any action” or “not needing any further action” (as per provisions in section 38). An analysis of data contained in the Annual Reports of the HDC Office and other obtained information raise very serious questions about the complaints handling by that Office.

The same happened in the case of two separate complaints that were made by a complainant (known to us) to the HDC in August 2011 and also in late June 2012, where the Deputy HDC, later supported by the Associate HDC, decided that investigations were “unnecessary”, or that “no further action was needed”. We covered these two complaints in some detail in two long posts on ‘nzsocialjusticeblog2013’, and they are found under these links:
https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

An earlier post raising questions about the actions, or the lack of actions and performance by the HDC, and also covering the legal complications there are with HDC complaints, same as media reports and commentary is found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

After the mentioned complainant, having suffered for years from complex and serious mental health issues, was basically nothing but “fobbed off” by the Deputy HDC and her colleagues, and when suffering further immense distress due to this, he decided to file two separate complaints against the HDC with the Office of the Ombudsmen. The first complaint was dated 07 Nov. 2013 and sent in on 13 Nov. 2013, and the second complaint was dated 16 Dec. 2013 and sent in on that same day. He spent a long time preparing the very detailed, well presented and solidly backed up complaints. He provided ample of supporting documentary evidence, and he trusted that the Ombudsman would look at the matters with the appropriate due care, scrutiny and expert knowledge of the law. He had some faith in the Ombudsman, that as the top watchdog in New Zealand she would be fulfilling her functions with the expected dedication and responsibility, and that she would make a fair and reasonable decision and recommendation on matters presented to her. He thought that she would at least offer him a minimum kind of “remedy” for the great injustice that he felt he had suffered from the HDC making unreasonable and unfair decisions, by not appropriately following processes – as it should be expected under natural justice principles.

Our complainant would though – in total disbelief – find out, that also the Ombudman, supported by an apparently either incompetent or otherwise overworked investigating officer, would make a decision to not investigate the complaints he presented, stating rather bizarre and incomprehensible reasons.

In this post we will cover the shockingly poor and questionable assessment of the complaint by the investigating officer, and the difficult to understand forming of her opinion, that led to the ridiculous final decision, which the Chief Ombudsman Beverley Wakem would then rely on, to make it her own. We will show how a following letter by the complainant, asking for a review of her decision, and providing further explanations and relevant information, would be bluntly refused to be looked at, while the flawed decision would be upheld.

After receiving a final decision, which was only reconfirming her initial decision on the matter, the complainant felt gutted, and he lost trust in the Ombudsman and her Office. He would later resort to making a complaint about the Ombudsman’s Office and their handling of complaints, and also raise the very serious funding and other issues with that same Office, to the Speaker of the House of Representatives. The outcome of that process will be covered in a later post that we intend to prepare and publish.

 
 

PART 2 – THE FIRST COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST CODE BREACHING COUNSELLORS

Following the absolutely unacceptable decision by the Office of the Health and Disability Commissioner, to not investigate a complex, very detailed and solidly supported complaint about an alcohol and drug (A+D) counsellor, and also a follow up counsellor at the same service provider, the complainant spent a significant time and effort to prepare a comprehensive complaint about the handling of the first HDC complaint to the Office of the Ombudsmen. The earlier HDC complaint was covered by us in a post found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/

We recommend to those who have not read that complaint to the HDC, to read it first, to get a better understanding of what this post covering complaints to the Ombudsman is about. The relevant HDC complaint has on this blog been referred to under ref. number C11HDCxxxxx.

The Ombudsman Act 1975 complaint was completed by – and dated with – the 07 November 2013, but was sent in days later on 13 to early 14 Nov. that year, consisting of a total of 29 emails that had a range of relevant PDF documents attached, some containing correspondence with the HDC Office, and others containing further directly and indirectly relevant evidence, to prove the truthfulness of factual details contained in this Ombudsman Act complaint.

A PDF file containing the authentic text of the 8-page complaint letter is found here:
Ombudsman, HDC complaint, C11HDCxxxxx, WDHB, breach of nat. justice, anon, 07.11.13

A PDF file containing the listed attachments sent with emails covering this complaint is found here:
Ombudsman, HDC complaint, C11HDCxxxxx, email attachmts list, mails sent 13-15.11.13

 

The complaint dated 07 Nov. 2013 contained the following authentic text:

“Complaint under section 16 of the Ombudsmen Act 1975 – about the Health and Disability Commissioner’s decision to not formally investigate complaint C11HDCXXXXX, after not giving due, fair, objective and reasonable consideration to all relevant evidence”

 

“Dear Ombudsman, dear staff at the Office of Ombudsmen

Please accept my request for your assistance in the above mentioned matter of greatest concern.

[1] In filing this complaint with the Office of Ombudsmen I wish to assert that this matter is best handled by your office under section 13 of the ‘Ombudsmen Act 1975’, given the fact, that there is no adequate legal remedy that I can reasonably seek under law, or by using other administrative processes, as referred to under section 17 (1) (a) of the Ombudsmen Act. There is no right of appeal of a decision offered under the ‘Health and Disability Commissioner Act 1994’, and even if a judicial review application to the High Court may technically be an option, I cannot pursue such a course, given my very poor mental and physical health, a complete lack of finance, and un-surmountable difficulties to access professional legal representation to pursue proceedings under restricted legal aid. I suffered extremely poor health previously, while being forced to pursue arduous judicial review proceedings against the Ministry of Social Development during 2011. Also in view of section 65 of the Health and Disability Commissioner Act any review sought would have limited prospects for success.

 

Background and summary of complaint handling by the Office of the Health and Disability Commissioner

[2] On 08 August 2011 I sent an initial formal, written complaint to the Health and Disability Commissioner (HDC) by way of about 30 emails with attached PDF files for evidence. For highly questionable reasons my complaint was never accepted by the Office of the Commissioner, as a staff member claimed they were not able to download my emails and attachments, as they were “freezing” their system. Instead I was forced to reluctantly prepare a highly abbreviated, summarised complaint that was supposed to be no longer than 2 pages, but finally consisted of 3 pages. I consequently sent this complaint dated 09 August 2011 to the HDC Office by way of 3 emails with PDF attachments. In it I clearly stated, that it would be essential to also view the already sent information together with that complaint. I insisted that my complaint would be treated seriously and fairly, and I expected a thorough investigation. With this complaint I only supplied a narrow selection of the documents I had sent to the HDC Office by email earlier, expecting that other documentary evidence would be available or requested, if staff at the office would still be unable to download or obtain the evidence I referred to.

[3] After receiving a letter dated 15 August 2011 confirming receipt of my email letters, and stating that my complaint was being assessed, I relied on being contacted again, should any further information or evidence be required, to conduct an investigation into the matters I presented. A further letter dated 06 October 2011 then only informed me that the HDC Office was asking for a response from Waitemata District Health Board (WDHB). As no further response was forthcoming after that, I phoned the office of the HDC on 13 Dec. 2011. Later on that day, I was informed that a response from WDHB would be assessed. I would be contacted again – but not earlier than late January 2012, a staff member said.

[4] On 25 February 2012 I received a decision from Deputy Commissioner Theo Baker at the HDC Office, stating that further investigation of my complaint was “unnecessary”. A matter which I had already raised with XXXX management earlier in 2011 had according to Miss Baker been handled appropriately by WDHB staff. Wrong file entries had then been amended by added notes. It was apparent that Miss Baker’s focus had exclusively been on that “potentially inaccurate information” having been added to my file. Ms Baker even felt “satisfied” that XXXX Xxxx would continue to provide me with “care of an appropriate standard”. She failed to acknowledge other breaches I had complained about, and that XXXX staff never accepted responsibility for the wrong entries made. Her decision was based on a summarised “general overview” of my treatment by WDHB, nothing else.

[5] Extremely concerned about this decision I requested specified information from the HDC Office under the Official Information Act 1982 (O.I.A.) and the Privacy Act 1993 (dated 04 March 2012). A response with revealing information was received with a letter from L. Wadsworth of 23 March 2012.

[6] I wrote back to the HDC Office on 27 March 2012 expressing my strongest disagreement with their decision, questioning the handling of my complaint so far. I reminded The Commissioner that I had initially sent in a comprehensive complaint with much substantial evidence. I also raised the point that I had presented my complaint by covering a much wider range of breaches, and that most of these had not at all been addressed. I stated that there was clear documentary evidence that disproved comments by WDHB and their staff. In detail I pointed out and referenced file and other evidence. I made clear that the only explanation for a named XXXX counsellor’s repeated actions would be bias, which led to a follow-up counsellor to also adopt a bias against me, while relying on false information recorded in my file. I stressed how wrong information was passed on to my own doctor and others, who relied on it. I described the very harmful course of events that followed these actions by XXXX staff. Also did I challenge the truthfulness of CEO Dr Dale Bramley’s comments in his letter to the HDC Office, which only gave an unacceptable “general overview of my care”. I explained some other incidents of incompetence, unprofessional conduct and bias that I had at times experienced from other XXXX staff members. I demanded a complete re-assessment of my complaint, and that all evidence I had sent would be examined. My response was written in great distress.

[7] Following the receipt of information from the HDC Office (under the O.I.A. and Priv. Act), and my letter from 27 March, I presented further submissions to my complaint by way of a letter dated 29 March 2012. I stated that it was unjustified and unreasonable to not further investigate my complaints, as crucial, relevant evidence had not been properly looked at and fairly evaluated. Inaccuracies and mistakes in the assessment of the HDC Office were listed. I pointed out that it was unacceptable by HDC staff to allow WDHB to simply respond by “summarising” information re my treatment and issues, by presenting a “general overview”, which enabled WDHB to avoid responding to individual issues raised. It was proved by me how a follow up counsellor at XXXX Xxxx put incorrect, misleading information into my client file. I presented new clear evidence showing that that counsellor was lying and also biased. I also authorised and invited HDC to contact my own doctor to get confirmation for information I presented being true. Once more I asked for a proper re-assessment of my complaint.

[8] The HDC Office’s Complaints Assessment Manager Deborah O’Flaherty responded to my concerns in a letter dated 16 May 2012, confirming to me for the first time, that only my summarised complaint correspondence from 09 August 2011 had been looked at and examined. She reiterated verbal comments a staff member had made to me on 09 Aug. 2011 that my complaint (by emails) could not be opened on their system “due to its size”. She also confirmed the receipt of 12 further emails from me since then, which contained “large” files. Their office would “not have the resources to process this amount of information”, she stated, and it was simply “not practicable to read each attachment in its entirety”, was her further response. I was informed to keep future correspondence as concise as possible. Apart from that a further response from WDHB had been sought, I was told.

[9] The response from the HDC Office from 16 May 2012 was unacceptable to me, as it raised questions about the competency, performance, effectiveness, reliability and integrity of staff at the HDC Office and their staff. In yet another letter dated 17 May 2012 I stated that it was incomprehensible how their email system could not open ordinary emails with attachments. My emails were of ordinary types and sizes, I explained. I realised that their office would now not properly, sufficiently and reasonably address the issues I had raised, given they had not read and processed the materials supplied. I expressed that I was “soul destroyed” about the previous handling of my complaint. I wrote that I had no hope that a further reply from them would offer the needed, appropriate resolution to this matter. I stated in some despair that I would consider informing the media about this, which I never did in the end.

[10] Following the above correspondence I did again send emails in this matter to the HDC Office on 02 and 06 June 2012, providing further relevant information in relation to my complaint. The email from 02 June referred to false, misleading information the XXXX Xxxx counsellor Mxxxxxx Sxxxxxxxx provided about me to psychotherapist Txxx Pxxxxx at Xxxxx House, and I delivered documentary evidence of this. Receipt of my emails was confirmed as received by email from Jxxxxx Zxxx at the HDC Office on 07 June 2012. In yet another email from 30 Sept. that year I expressed concern about the delay in this matter, asking for an update. An email from J. Zxxx did on 01 October 2012 inform me that the Office was dealing with a large volume of complaints, and that the Commissioner was still reviewing the information gathered on my file. A response in the coming week was indicated.

[11] While no further correspondence came forth from the HDC Office, I did on 06 Nov. 2012 inform their office by email of a separate complaint in the same matter, that I had filed with the ‘Addiction Practitioners’ Association of Aotearoa – New Zealand’ (short DAPAANZ) on 31 May 2012. Both the counsellors I had complained about to the HDC Office under file reference C11HDCXXXXX were members of that Association. I pointed out that the employer of those counsellors, a Mr Wxxxxxxx Txxxxxxxxx, Counselling Manager for XXXX and WDHB, was at the same time the chair at DAPAANZ. He had also communicated in the complaint matter with HDC staff, and presented one or two carefully selected documents in relation to my treatment at XXXX to them. In my email from 06 November I informed the HDC that I had received a scandalous decision from the ‘Professional Standards Committee’ of DAPAANZ in response to my complaint to them. With my email I sent the HDC copies of the clearly biased, unreasonable decision by DAPAANZ, together with my response to it. I stated that Mr Txxxxxxxxx had a clear conflict of interest, and that I suspected his influence on the decision.

[12] In a brief email from J. Zxxx from the HDC Office dated 07 Nov. 2012 receipt of my email from the day before was confirmed. She wrote that the information would be considered with my complaint.

[13] Due to further developments in the unresolved dispute about my complaint to DAPAANZ I did by email on 11 Nov. 2012 send the HDC Office further submissions, which included a new response letter from Mr Ian MacEwan from DAPAANZ from 06 November 2012 – with a reprinted “decision”, a copy of a list of evidence I initially sent to DAPAANZ (from 31 May to 02 June 2012), and my response to DAPAANZ’s final reply, dated 09 November 2012, and with two other documents of relevance.

[14] By email from 30 January 2013 I sent the HDC Office information that I had now also filed a complaint with the Office of the Privacy Commissioner, asking for an investigation in DAPAANZ refusing to make available information I has sought from them under the Privacy Act 1993. A copy of my complaint from 26 Jan. 2013 and a first email to that Commissioner were attached as evidence.

[15] On 08 February 2013 I once again sought confirmation from the HDC Office that my last email had been received by them. On 11 February Jx Zxxx from HDC responded by email confirming this, and stating that the Commissioner was reviewing that information. As no further correspondence or decision from the HDC Office came forth, I did again on 29 March 2013 request a brief update in the matter by way of an email sent. No response was received upon that, so yet another brief email was sent 03 April 2013, expressing concern. That one was responded to by Jxxxxx Zxxx on 04 April, assuring me the complaint had not been overlooked. A formal response next week was promised.

[16] As though no response came after that last mail from the HDC Office yet again, I enquired once more by email on 19 April 2013, whether at least a notification could be sent to me.

[17] On 19 June 2013 I finally received a “final decision” (dated 14 June) from Theo Baker, which again only listed in only slightly altered words the “outstanding concerns” I had in the complaint matter, and which presented me only a little more information than I had received just over a year earlier. The Deputy Commissioner again stated she remained of the opinion, that no further action on my complaint was appropriate. She stated that “all relevant information has been considered” and that my file would remain closed. Another letter from Dr Dale Bramley, CEO for the WDHB, from 06 June 2012 (over 1 year old!) was attached. It did in only slightly different words reiterate most of what had already been communicated before, even including qualifications for the XXXX counsellor M. Sxxxxxxx that he did not even have yet, when he counselled me during 2009. It was also claimed I requested support from XXXX that was outside of the scope of their service, and serious concerns were dismissed again.

[18] As the new, but hardly changed, response from Theo Baker once again left me totally dissatisfied, I did once more request further specified information from my file under the Official Information and the Privacy Acts by way of letters (also by email) dated 24 and 25 June, and 02 July 2013.

[19] Also on 25 June 2013 I sent yet another complaint to the HDC Office, once again raising serious issues about the whole handling of my complaint, which did not consider very relevant information and evidence I had presented. After reiterating my previously submitted objections to her earlier decision from 24 Feb. 2012 (in letters from 27 and 29 March 2012), I provided details about further correspondence and submissions (with evidence) that I presented after that time. It detailed emails, letters and further information sent in from 03 April 2012 to 29 March 2013. Then I exposed and explained that Theo Baker’s new “final decision” was not addressing objections and issues I had raised re her earlier “decision” from 24 Feb. 2012. She had presented almost identical bullet points as my remaining concerns, although I had raised more qualified and wider issues after her initial decision. I took issue that none of the information provided by me after 29 March 2012 – and by Dr Bramley from WDHB on 06 June 2012 – had apparently been looked at. As so many questions still remained unanswered, I listed up 12 points that remained at issue, which still needed to be resolved. So I again asked for a thorough review of the handling, processing, analysis and investigation of my complaint C11HDCXXXXX. I also expected that the Mental Health Commissioner would be consulted on all this.

[20] Upon my O.I.A. and Privacy Act requests from 24 and 25 June and 02 July 2013 I received a response by way of a letter dated 18 July, signed by Georgina Rood, Legal Advisor at the HDC Office. Information I received confirmation that only WDHB’s Dr Dale Bramley and Mr Wxxxxxxx Txxxxxxxxx, both acting as employers of the XXXX counsellors (about whom I had complained), had been consulted in the handling and investigation of my complaint! Certain other sought documents were made available, while yet other information was being withheld. Georgina Rood could now not say with certainty that all the information and files sent by me to the HDC Office (with the summarised complaint from 09 Aug. 2011) had been presented to WDHB.

[21] On 09 July 2013 I briefly informed the Office of the HDC of responses I had up to that date received from the Office of the Privacy Commissioner, regarding a complaint that I had made about DAPAANZ refusing to give me access to information held on me and my complaint to them.

[22] The newly received information (from 18. July 13) prompted me to submit one more letter to the HDC Office on 05 August 2013, in which I responded to the information and provided yet more evidence. I took issue with what information had last been sent to WDHB (also in the form of bullet points of concern), requested a missing document, and I presented further documents disclosing how counsellor Mxxxxxx Sxxxxxxxx and his employer Wxxxxxxx Txxxxxxxxx had used questionable methods and made dishonest statements, while attempting to cover up misconduct and failings before the DAPAANZ Professional Standards Committee that investigated my complaint to their Association. I presented evidence how Mr Txxxxxxxxx took advantage of the Deputy HDC decision to not investigate my complaint about his employee, using that as a defence in the investigation by the Committee of DAPAANZ. Also did documents received from DAPAANZ with the help of the Privacy Commissioner prove that the Committee members did all to “guide” and assist their member to give the kind of statement that would protect him from being found responsible for breaches of their Code of Ethics! The conduct by all participants in that investigation is nothing short of a clear breach of process and natural justice. In my letter to Mr Hill as HDC I expressed the degree of personal suffering, which the consequences of the misconduct by the counsellors I had complained about had caused me. Again I insisted on a thorough review of my complaint.

[23] In a letter of 05 August 2013 I also insisted on the HDC Office staff to consult with a range of key parties and potential witnesses in the whole complaint matter, who could give crucial further evidence. I included a separate, formal, written authority for the Office to contact and seek information from my own GP, Dr Xxxxx Xxxxxxx, from Txxxx Pxxxxx (psychotherapist at Xxxxx House), from Sxx Xxxxxx (psychologist at Xxxxxxx), from the Office of the Privacy Commissioner, from counsellors Mxxxxxx Sxxxxxx and Lxxxx Xxxxxx at XXXX, from Wxxxxxxx Txxxxxxxxx as their manager and employer, and from Ian MacEwan, Executive Director at DAPAANZ. I expected this would assist resolving matters.

[24] On 05 October 2013 I received a new “response” (dated 03 October) from Katie Elkin, Associate Commissioner (‘Legal and Strategic Relations’) at the HDC Office. She summarised my last submissions and concerns in only 3 bullet points, which hardly addressed any of the more substantial issues and concerns I had repeatedly raised with the HDC Office. Her response was only to my critical comments on “absolutely insufficient consideration” having been given “to important points and evidence” (as revealed by O.I.A. information), on their office not having contacted other parties to confirm evidence, and on information I had received from DAPAANZ about the counsellors I had complained about. She stated that my file and their decision had supposedly been reviewed “on multiple occasions”, and again so recently. Katie Elkin did not comment at all on the fact that any “review” done up to 19 June 2013 had apparently only been done by Deputy Commissioner Theo Baker, who “reviewed” her earlier decision herself. She asserted that it is up to the Commissioner and Deputy Commissioner to determine whether a complaint will be formally investigated, and she stated that options to not take further action are exercised “only after careful assessment of all relevant information”. She claimed this occurred in relation my complaint. Apart from that she dismissed my concerns about the information received from DAPAANZ as falling outside of the jurisdiction of their office. She suggested I raise my concerns with them, and stated the complaint file remains closed.

[25] There was no way that I could accept the response by Katie Elkin (from 03 Oct. 2013) on my requests for a review of decision and re-assessment of my total complaint matter. Consequently I responded by way of a further letter on 07 October 2013, firmly rejecting her response and the apparently final decision by the HDC Office. I reaffirmed my position by reiterating what I had stated previously in letters from 25 June and 05 August 2013. I wrote that even when based on the summarised complaint and evidence provided then and later, the handling of my complaint had been abysmally poor, and close to a level of total contempt of my rights as a consumer of health and disability treatment services. I had to conclude that Theo Baker’s had applied her subjective decision making in the matter, and that stated “reviews” appeared unsubstantiated. I communicated my concerns about the financial resourcing of the HDC Office, and how complaints were being “prioritised”, also according to cost reasons. My concern was expressed about whether the matter had been put before the Mental Health Commissioner and Mr Anthony Hill. In an admittedly rather emotive way I expressed, that as a mental health sufferer the treatment of my case appeared in contempt towards me. I commented on the absurdity to take concerns back to DAPAANZ, who had displayed their own bias and contempt towards my complaint about their member(s), while Mr Txxxxxxxxx is their Chairperson. I expressed that justice had been compromised and that natural justice had not been followed in the assessment and handling of my complaint. With that letter I once more requested certain information under the Official Information and Privacy Acts. My rather emotive comments in the end part of that letter must be excused, as I was extremely distressed by the response from K. Elkin.

[26] My written response from 07 October was sent to the HDC Office by email late that same day; and later also by post. The email with attached PDF files was confirmed as having been received by HDC the next day (also by email). Since then I did only on 07 Nov. 2013 receive some requested information upon O.I.A. and Privacy Act requests, which present nothing really new in this matter.

 

The Health and Disability Commissioner Act 1994

[27] The ‘Health and Disability Commissioner Act’ gives the Health and Disability Commissioner and his Deputy certain discretion to act upon complaints received. I exercised my right under section 31 of this Act to make a complaint about two counsellors employed by XXXX Xxxx, whom I saw for xxxxxxx dependency and related issue treatment during 2009 and 2010. Section 31 also allows the Commissioner to revise a preliminary assessment.

[28] My initial complaint was not accepted for disputed reasons, and a reluctantly summarised complaint following that was accepted by the HDC Office and consequently assessed under section 33. Clearly the HDC Office staff saw sufficient reason to make initial investigations into the matters raised and sought a position from the health and disability service provider XXXX Xxxx, which is part of WDHB, which appears to have been done in the form of a referral under section 34 (1) (d) of this Act. It appears that the HDC Office also took action under section 34 (2). It is uncertain whether the Commissioner did at any time seriously consider taking action under sections 34 (5) or 41 of this Act.

[29] Under section 38 (1) of the Health and Disability Commissioner Act the Commissioner has certain discretion to decide to take no action, or no further action (as the case may require), on a complaint. This is qualified by the wording “if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” Section 38 (2) lists matters the Commissioner may give consideration to in deciding on this. Subsection (3) of the same section states though that subsection (2) does not detract from the generality of subsection (1).

[30] While section 39 authorises and instructs the Commissioner to communicate matters of concern about risks to members of the public, that may be caused by a health practitioner’s practice, or by systemic problems associated with a service provider, to certain authorities, agencies or persons, section 40 gives the Commissioner the powers to investigate matters him-/herself. That is if it appears that there has been a breach of the ‘Code of Health and Disability Services Consumers’ Rights’.

[31] Although it appears uncertain now, I was during the handling and processing of my complaint under the impression that the Commissioner took action according to section 41 under this Act! There is no reason to believe that any action was taken by the Commissioner under section 42 (1), as the only “authority” that the counsellors were registered with voluntarily was the ‘Addiction Practitioners Association Aotearoa – New Zealand’ (DAPAANZ), which is not an authority that is covered under the ‘Health Practitioners Competence Assurance Act 2003’. This may appear to be an anomaly deserving further attention, but as a matter of fact, DAPAANZ and other associations or “authorities” of counsellors are not bound by provisions of that latter statute.

[32] The Commissioner can according to section 45 of this Act take a number of actions when an investigation has given him/her the opinion that there was a breach of the Code (see 45 (1) (a)). Section 45 (2) authorises the Commissioner to report his/her opinion with a recommendation to certain authorities, agencies or persons, make a complaint him-/herself, assist a person to make a formal complaint, or under section 45 (2) (f) refer the matter to the Director of Proceedings. The rights and powers of that Director are outlined in section 47, and the functions of that Director under section 49. The Director of Proceedings can under section 50 (2) file for proceedings before the Human Rights Review Tribunal.

[33] An aggrieved person, like me as a complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal, under the provisions in section 51 (a) or (b). But disturbingly the Health and Disability Commissioner has failed to give due, fair and reasonable consideration to all the relevant information and evidence that I presented with my complaint. Thereby she/he ignored and breached principles of natural justice, and thus decided (without justification) that there was no breach of the Code by the counsellors I complained about! Hence my attempts to seek justice in this matter have been frustrated and denied success.

[34] Due to the legal provisions just stated above, it becomes clear that in my complaint matter, all steps that could potentially be taken, depended on the actions and decisions by the Commissioner, in regards to whether my complaint would be accepted, properly, fairly and objectively assessed, processed and investigated at all. It is clear that the Commissioner holds a kind of “gatekeeper” role, in the handling of any complaints about health and disability services in New Zealand. The success or lack of success of any complaint that is brought by a consumer (or other party) against a practitioner or provider depends largely on what the Commissioner does and decides.

 

The Health Practitioners Competence Assurance Act 2003

[35] Under the ‘Health Practitioner Competence Assurance Act’ section 64 states that any complaints about practitioners covered by that Act, and received by an authority to whom that Act applies, must be forwarded to the Health and Disability Commissioner. Sections 65 and 66 provide for steps an authority under this Act must take if a complaint is being referred to it by the Health and Disability Commissioner. It becomes clear by those and other provisions under this Act (e.g. section 70), that complaints about health practitioners will ultimately in virtually all cases at first be assessed and decided upon by the Commissioner, rather than any authority responsible under this Act for registering practitioners. This certainly applies to complaints from consumers of health and disability services.

[36] Under the ‘Health Practitioners Competence Assurance Act’ and in Schedule 2 there is no mention of the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (short DAPAANZ or ‘the Association’) being covered by the provisions of that statute. This means that the Association is not regarded as being an “authority” to which this law applies. Any ‘Professional Conduct Committee’ (see sections 71 to 83 of this Act), that may established in the form of a ‘Professional Standards Committee’ by a body like the ‘DAPAANZ’, does therefore not have to follow the legal guidelines offered under this Act. Only authorities listed in schedule 2 are bound by this Act.

[37] As the counsellors and service provider I complained about are not covered by the ‘Health Practitioners Competence Assurance Act’, the Health and Disability Commissioner was not required to give considerations to that particular Act and its provisions. That means though that the role of the Health and Disability Commissioner in handling my complaint becomes absolutely crucial, as the Committee that was set up by DAPAANZ, to later also consider my complaint to their Association, proved to be absolutely in contempt of the law in regards to natural justice that had to be followed. There is little relief I can seek, and a lack of legal proceedings I can bring, to address the illegal conduct by the ‘Professional Standards Committee’ and the Chair of the Executive of DAPAANZ. Judicial review is no option, and there is no statute covering that body, hence no appeal is possible!

 

[38] Breaches of process and natural justice by the HDC Office

[38a] At the first point of time of hearing about my concerns, that not all evidence and information presented by me had been considered, the Health and Disability Commissioner should have sought advice and clarification from me, what I considered to be of absolute relevance in the matter. I insisted repeatedly that initially sent documents (by email on 08.08.2011) were relevant to properly assess and resolve the complaint; the Commissioner or his/her staff never bothered to do this. Indeed I should have been consulted about my concerns from the start.

[38b] The HDC Office should have given truly fair, objective and reasonable consideration to all presented, received and offered evidence about breaches of my rights, about the professional misconduct by the named practitioners, and about untrue statements made by the counsellors and their employer, and the conflict of interest of the latter. This never happened.

[38c] The HDC Office should have felt obligated to consult other key persons that would appear to be relevant as witnesses – or parties in the complaint matter, in order to establish the truthfulness of information and evidence provided by all the parties involved. This did not happen, as only Mr Txxxxxxxxx was directly consulted as the employer of the counsellors.

[38d] The HDC Office should have read and examined the medical, psychiatric and psychological assessments made on me, and provided in relation to the complaint, as this would be very crucial to properly understand my delicate health conditions, and how the misconduct and failures of the counsellors in question, and resulting harm, would severely impact on me. This appears to not have been done at all, which I consider highly irresponsible.

[38e] The HDC Office should have accepted and examined the evidence I received from the DAPAANZ (presented to the HDC on 05 Aug. 2013), given the involvement of Mr Txxxxxxxxx as employer of the counsellors I complained about. He was allowed input during the investigation by the HDC Office. It is of high relevance that Mr Txxxxxxxxx as employer was at the same time the chairperson of the professional association DAPAANZ that considered a separate complaint I made in the same matter. His conduct in that separate investigation by DAPAANZ, where he is Board Chairperson, should raise greatest concerns.

[38f] It has been reported (F. Marwick, !ZB News, 24.07.13), that the HDC Office has been under serious financial pressures while facing an increased case work load, which has obviously led to extremely strict “prioritisation” in the handling of cases. It appears that this has led to cases like mine not being treated with the deserved attention, scrutiny and respect, which has led to justice having been denied in my case. It is unacceptable to simply dismiss cases that prove misconduct had serious consequences for a mental health sufferer, by applying an “over prioritisation”, while the Health and Disability Commissioner virtually holds a “gate keeper” role in handling complaints from health and disability service consumers.

 

Conclusions and remedies sought under the Ombudsmen Act 1975

[39] The Health and Disability Commissioner made decisions on my complaint, which were in breach of natural justice, as they were based on an flawed, inappropriately conducted assessments and reviews that did not give fair, objective and reasonable consideration to all the truly relevant information and evidence provided, referred to and offered in relation to the complaint.

In view of this, I request your considerations based on all information and evidence provided (incl. correspondence between HDC and me) to make the following recommendations or decisions under section 22 (3) of the Ombudsmen Act 1975 to the Health and Disability Commissioner:

[39-1] That the Health and Disability Commissioner properly reviews my complaint C11HDCXXXXX and gives appropriate, fair, objective and reasonable consideration to all the evidence supplied in the matter (including such provided after earlier decisions or reviews), as this was so far not done, certainly not by Theo Baker until 19 June 2013, and also not afterwards;

[39-2] that the Commissioner consults with my GP, Dr Xxxxx Xxxxxxx, with Mr Txxxx Pxxxxx, psychotherapist at Xxxxx House, with Ms Sxx Xxxxxx, psychologist at Xxxxxxx, on matters I stated, and also seeks independent statements on my claims of the breaches of my consumer rights, from my former counsellors Mxxxxxx Sxxxxxxxx and Lxxxx Xxxxxx;

[39-3] that the Commissioner views and examines evidence from DAPAANZ that I obtained with the assistance of the Privacy Commissioner, simply to assess the conduct of Mr Mxxxxxx Sxxxxxxxx and Mr Wxxxxxxx Txxxxxxxxx during the investigation of my complaint to DAPAANZ, that was handled by their internal “Professional Standards Committee”, as it is of relevance, given the same complaint matter – and both also having had input into the HDC complaint handling;

[39-4] that the Commissioner consults with me prior to such a review, on evidence that I consider relevant, which the Commissioner and his staff may be unsure about, or may have a differing view on regarding it’s relevance (see also point 1.);

[39-5] that the Commissioner firmly follows the principles of natural justice and applies objectivity, fairness and reasonableness and proper process in a complete review of my complaint, and seriously considers conducting a formal investigation into complaint C11HDCXXXXX.

[40] Last not least I wish to reiterate, that this was not the first complaint I made about Waitemata DHB’s XXXX services, as I already had filed a complaint to the HDC Office in early 2007, which could though not be addressed then, due to being insufficiently specific about particular incidents at issue. Besides of the concerns I raised in complaint C11HDCXXXXX, there are serious systemic problems that persist at Xxxxxxxxx Alcohol and Drug Services, which must be examined and addressed.

[41] As already stated, my concern is also, that the Health and Disability Commissioner Office is de-prioritising too many complaints about issues with health and disability services, due to financial pressures, while their office is faced with increasing work loads and at the same time limited funding. As the Health and Disability Commissioner does perform the role of a “gate keeper” when it comes to handling and processing complaints, the refusal to accept and investigate so many complaints leads to a denial of justice for too many, as authorities like the Medical Council will usually not investigate any complaints themselves, unless the HDC Office refers matters to them – to further deal with.

[42] Already now we have too many cases that are before the HDC Office for two or more years, and any breaches that can be addressed under the ‘Health Practitioners Competency Assurance Act 2003’, will not be possible to pursue after the lapse of 3 years (see section 173). Justice delayed is justice denied, and it is a matter of highest concern what happened with not just my complaint, but what happens to many others.

Your respected decision and response in this matter – in due – course will be most appreciated.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

P.S.:

A list of relevant documents and correspondence in this matter will be sent and supplied separately!”

 

Comments by the author:

The above complaint should be self explanatory, but if questions arise for the reader, she or he may wish to revisit the relevant earlier HDC complaint available on this blog, in order to obtain the information it relates to (see link above). The complaint was confirmed as having been received by the Ombudsman’s Office by email at 03:10 pm on 14 Nov. 2013. The complainant sent a further email at 06:30pm on 15 Nov. 2013, clarifying a mistake in the numbering of two emails, asking that this be taken note of. On 20 Nov. 2013 he did also send one more email to the Ombudsman, which was at 11:17pm, asking for a confirmation for that last email, as none had been sent to him. No response was ever received in reply to that.

 
 

PART 3 – THE SECOND COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST A BIASED WINZ DESIGNATED DOCTOR

On 16 December 2013 the complainant sent a further separate complaint to the Office of Ombudsmen, which related to the appalling, unacceptable handling of another earlier complaint made to the HDC, against a Work and Income (WINZ) commissioned “Designated Doctor”. We covered that earlier HDC complaint in a post that is found by clicking this link:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

It was completed by and dated with the 16 December 2013, and was sent in on that same day and into the early hours of 17 Dec. 2013. It was sent in the form of a total of 17 emails that had a range of relevant PDF documents attached, some containing correspondence with the HDC Office, and others containing further directly and indirectly relevant evidence, to prove the truthfulness of factual details contained in this Ombudsman Act complaint. A copy of that complaint was also sent to the Ombudsmen Office by parcel post in the late afternoon on 18 Dec. 2013. There was never any proper email response received upon the emails sent, apart from some automated responses by the Ombudsman Office’s email system.

For those wanting to learn details about the complaint that was filed with the HDC Office on 30 June 2012, we recommend you first read that post and the information provided in documents found via further links in that post. That second HDC complaint has on this blog and in documents available been referred to with reference number C12HDCxxxxx.

A PDF file containing the authentic text of the 13-page complaint letter is found here:
Ombudsman, HDC complaint, C12HDCxxxxx, dec. unreasonable, ltr, 16.12.2013

A PDF file containing the listed attachments sent with emails covering this complaint is found here:
Ombudsman, HDC complaint, C12HDCxxxxx, email attachmts, mails sent 16-17.12.2013

 

The second complaint letter to the Ombudsman contained the following, authentic text:

“Complaint under section 16 of the Ombudsmen Act 1975 – about the Health and Disability Commissioner’s decision to take no action upon complaint C12HDCxxxxx, by not giving appropriate, fair and reasonable consideration to relevant evidence and the law”

 

“Dear Ombudsman, dear staff at the Office of Ombudsmen

Please accept my request for your assistance in the above mentioned matter of greatest concern.

[1] In filing this complaint with the Office of Ombudsmen I wish to assert that this matter is most appropriately handled by your office under section 13 of the ‘Ombudsmen Act 1975’, as there is no adequate legal remedy that I can reasonably seek under law, or by using other administrative processes, as referred to under section 17 (1) (a) of the Ombudsmen Act. There is no right of appeal of a decision offered under the ‘Health and Disability Commissioner Act 1994’. Even if a judicial review application to the High Court might technically be an option, I cannot pursue such a proceeding, given my extremely poor mental and physical health, my complete lack of finance, and un-surmountable difficulties I have to access professional legal representation to pursue such a course under restricted legal aid. I already suffered extremely poor health, when being xxxxxx to pursue arduous judicial review proceedings against the Ministry of Social Development during 2011. Also in view of section 65 of the Health and Disability Commissioner Act any review sought would have very limited prospects for success.

 

Background with a summary of my complaint, and its handling by the Office of the Health and Disability Commissioner

[2] On 30 June 2012 I filed a complaint with the Office of the Health and Disability Commissioner (HDC), stating a number of breaches of professional conduct by the ‘Work and Income’ (WINZ) commissioned designated assessor, Dr Dxxxx Xxxxxxx at the Xxxxxxxx Health Centre in Auckland. Dr Xxxxxxx had conducted an examination on me on 17 June 2010, under the old section 44 of the Social Security Act 1964. I also raised serious breaches under the ‘Code of Ethics’ of the New Zealand Medical Association, and of certain other legal provisions. In detail the following breaches of codes, statutes and regulations were established and presented:
1. The ‘Code of Health and Disability Services Consumer’s Rights’ (rights 1, 3, 4, 5 and 6);
2. the ‘Code of Ethics for the New Zealand Medical Profession’ (principles 1, 2, 4, 8, 9 + 12);
3. the ‘Health Practitioners Competence Assurance Act 2003 (section 8);
4. the ‘Health Information Privacy Code 1994’ (HIPC 1994) (rules 2, 3 and 8) and
5. the ‘Health (Retention of Health Information) Regulations 1996’ (sections 5 and 6).

[3] The comprehensive complaint was presented by way of a letter dated xx June 2012, and altogether 10 emails with various attached evidence documents were initially sent in this matter to the Office of the Health and Disability Commissioner (HDC) from xx June to 02 July 2012. The main complaint letter contained detailed submissions and comprehensive evidence information supporting all aspects of my complaint. All emails with further evidence were at the same time also sent to the Medical Council of New Zealand (MCNZ), as the matter was considered to be of equal concern to that authority, which has Dr Xxxxxxx on their register. The emails were also sent to the New Zealand Medical Association (NZMA) for their attention. The Medical Council (“Xxxxxx”, Senior Professional Standards Coordinator) stated in an email from 03:39 pm on 06 July 2012 that the matter should according to section 64 of the ‘Health Practitioners Competence Assurance Act 2003’ in the first instance be dealt with by the HDC. The New Zealand Medical Association considered itself not responsible to handle the matter. The “safe” receipt of my complaint – with all 10 emails (and by post) – was confirmed by an email from Jx Zxxx, Complaints Assessor at the HDC Office, at 05:11 pm on 06 July 2012.

[4] On 22 July 2012 I sent a further email to Jxxxxx Zxxx at the HDC Office, which carried another evidence document, being a formal ‘settlement’ and apology letter from the Deputy Chief Executive Debbie Power at the Ministry of Social Development (MSD). I had just received that document on xx July, after 10 months of very arduous and extremely stressful settlement negotiations. It was additional to other, more relevant evidence that had been sent by me to the HDC Office before. On 14 August at 04:56 pm I received an email from Michelle Smith, Complaints Assessment Administrator at the HDC Office, again confirming the receipt of my complaint, and providing me with their reference number C12HDCxxxxx.

[5] On 19 September 2012 I received a letter by post from Hxxxxxx Bxxx, Senior Complaints Assessor at the Office of the Health and Disability Commissioner, informing me that the Commissioner had reviewed my complaint, and decided to seek a response from Dr Xxxxxxx, regarding the issues I had raised. It was dated 18 September, and it further said, that once a response had been received and reviewed, I would be contacted again.

[6] After many more months I received a decision on my complaint from Deputy Health and Disability Commissioner Theo Baker on 24 April 2013. The letter appeared wrongly dated with 24 April 2013, as it arrived by ordinary post on that same day. In her decision Theo Baker first listed 5 bullet points with only some of my summarised “particular” concerns. Certain major points of concern were not addressed or responded to at all, and under her “consideration” Ms Baker then stated, that in this instance, the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions”. She also wrote: “It seems that you have been successful at overturning WINZ’s original decision via this appeals route”. She added, that after a response was sought from Dr Xxxxxxx on “communication issues”, he had stated that “his interviews are all patient-centred”, and that he “is very careful to approach all cases in a standardised and non-judgmental manner”. She concluded that his views about his communication style during the consultation were contrary to mine. She did not consider that further investigation into the matter would provide any new information “that would help resolve this discrepancy”, “especially given the amount of time that had elapsed” since the assessment. According with section 38 (1) of the HDC Act she decided to take no action. She had asked Dr Xxxxxxx to “reflect” on the way he had communicated with me. A letter from Dr Xxxxxxx with his position was attached. It was in stark contrast to what I had experienced.

[7] The decision by Theo Baker was absolutely unacceptable to me, given the experiences I had during the examination and assessment by Dr Dxxxx Xxxxxxx on 17 June 2010, and given the comprehensively documented evidence and information I had presented. The HDC Office had only looked at one single breach under the ‘Code of Health and Disability Services Consumer’s Rights’ (right 5) and not responded to any of the other breaches I had complained about, let alone to any questions about Dr Xxxxxxx’s acting outside of his scope of practice, and his breaches of health information privacy and retention provisions. The response received was extremely dismissive of my complaint, and Ms Baker appeared to largely trust statements by Dr Xxxxxxx in response to my complaint. My impression was that documented evidence had not even been looked at, and that no other party involved, like for instance my own doctor, had been contacted to comment on any of the issues raised by me.

[8] In response to the decision by Ms Baker, I first sent a brief email to the HDC Office at 01:22 h on 25 April 2013, in which I expressed my great disappointment and disapproval of the decision. Following that I responded appropriately to her decision by way of on email with a formal letter dated 26 April 2013, sent in at 00:01 am on 27 April 2013. I requested the HDC Office that the matter should now be handled by the Health and Disability Commissioner Anthony Hill himself, or by another Deputy Commissioner, but no longer by Ms Theo Baker. I also insisted that the Mental Health Commissioner should be consulted on all matters raised in relation to my complaint. I expressed my great disappointment and distress about the decision, and that I could not accept it, as insufficient and only selective consideration had been given to relevant, important, crucial facts and evidence. I listed 5 particular points – or areas – that I raised as points at issue with the explanations in the decision, and the reasons given in Ms Baker’s letter. My concerns were that insufficient considerations had been given to very relevant information; and that my complaint had not been properly and thoroughly examined and investigated. Natural justice had not been followed in deciding on my complaint.

[9] In my letter from 26 April I then presented arguments proving that Theo Baker was wrong in her considerations and decision. Firstly I explained the purpose, composition, responsibilities and processes followed in relation to Medical Appeal Boards (MABs) under (old) section 53A of the Social Security Act. I explained how a bxxxxx Principal Health Advisor for MSD, Dr David Bratt, has been training, mentoring and managing both designated doctors and also internal Regional Health and Disability Advisors working for Work and Income. The HDC Office was informed that the supposed “independence” of Medical Appeal Board (MAB) members, same as that of designated doctors, must be questioned. I elaborated on how xxxxxxxxxly and unfairly my appeal had been dealt with by such an xx-objective, natural justice xxxxxxxxx Board. The HDC Office was presented with clear evidence that such a Board would not deal with the conduct or any competency issues of a designated doctor, whose recommendations led to a decision that was appealed by a client. The purpose of a MAB is simply to conduct a review on medical grounds and on work capability aspects, and nothing else. It was the ixxxxxx conduct and decision-making by the MAB that forced me to apply for a judicial review at the High Court at Auckland. My appeal to the MAB was not a success at all, as I had to take legal proceedings to fight it! In explaining details about the MAB I did not intend to distract from the fact that it was my firm view that a MAB would not be responsible to deal with conduct or competency issues about Dr Xxxxxxx.

[10] Secondly I explained that Dr Xxxxxxx’s letter from 22 Nov. 2012 presented only generalised comments re how he conducts examinations, and that they were only in response to a breach of right 5 under the Code. I stated that while Dr Xxxxxxx could not recollect the examination, interview and communications over 2 years ago, I had presented abundant evidence about what he had recorded on me. I also had given a detailed description of the conversation and examination, based on notes I had made right afterwards. I made clear that Dr Xxxxxxx’s report was full of flaws, mistakes and contradictions. His partly wrong and incomplete answers were clearly biased. I reminded the HDC Office that I presented reports from my own GP and other specialists that clearly contradicted Dr Xxxxxxx’s report and recommendations. I criticised that Dr Xxxxxxx’s obvious bias, his reluctance to understand, or appreciate any of my health issues, had not been established by Ms Baker, and that she therefore cannot have considered all evidence. I noted that Dr Xxxxxxx’s competency had not at all been examined, and I explained, how it was absurd to claim I had freely chosen to see him. I stated how Work and Income heavily rely on designated doctor assessments, and I asserted that XXX and Dr Bratt at the same time make efforts to ixxxxxxxx their assessors. I informed that it’s known that Dr Xxxxxxx has been handling a high number of such assessments. An internal MSD memo (fr. 18 June 2010) re an earlier complaint about Dr Xxxxxxx was also presented as evidence.

[11] Thirdly I challenged the HDC Office on the fact that only “right 5” under the ‘Code of Health and Disability Services Consumer’s Rights’ (one of the various breaches I had reported and complained about) had been raised with Dr Xxxxxxx. I noted that the breaches of rights 1, 3, 4 and 6 had not been seriously discussed with him. I took issue with the fact that nothing had been done regarding the breaches of the ‘Code of Ethics for the NZ Medical Profession’, and that no efforts had been made to clarify with Dr Xxxxxxx the alleged breach of section 8 under the ‘Health Practitioners Competence Assurance Act 2003’. It was a matter that must also interest the Medical Council, I stated. I added that nothing appeared to have been done or followed up re breaches of the HIPC 1994 and the ‘Health (Retention of Health Information) Regulations 1996’. Again I referred to evidence I provided of breaches in those areas. I expressed my bitter disappointment that no assessment was done re all those other issues.

[12] Under a fourth point I referred once more to the particular and substantial evidence that I had provided in this matter. I insisted that the Commissioner should have looked at reports from my own doctor, from XXXX counsellors and their psychiatrist, from St Luke’s Community Mental Health Centre, my XxxXxx psychologist and from Xxxxx House, which was essential to understand my medical history, conditions and vulnerabilities. It was equally important to properly assess how Dr Xxxxxxx could in light of the presented, compelling information fail to apply objectivity, I wrote. I stressed that it was important to look at the serious consequences I suffered as a result of Dr Xxxxxxxs biased conduct, wrong assessment and recommendations, while being forced to make an appeal to an also bxxxxx MAB, and even having to prepare for a judicial review at the High Court. The MAB decision, its recommendation and other evidence should have been looked at, I stated. Furthermore I referred to the disastrous impact on my health and my inability to focus on needed treatment, which was worsened by the inappropriate and xxxxxxxxx treatment I received from WINZ staff. I expressed my astonishment that at no time had my own doctor been contacted, and I stated that Ms Baker breached natural justice by basing her decision on totally irrelevant information and facts. My right to take an appeal to the MAB was no reason for Ms Baker to not investigate, I wrote.

[13] Fifthly I stated that it was unacceptable to me, that Ms Baker had accepted the statements by Dr Xxxxxxx in his letter from 22 Nov. 2012 – primarily only on “communication issues” – without any challenge. She had simply commented that his views on his communication style during the consultation were “contrary” to mine. In view of that, I reiterated that Dr Xxxxxxx’s reports on me showed a total disregard to my medical diagnosis, assessment of work capacity and treatment related aspects provided by my own doctor, other medical professionals or specialists. This showed that Dr Xxxxxxx failed to act fairly, responsibly, respectfully and professionally, I wrote. A degree of bias in his conduct was evident, likely in combination with a lack of understanding and appreciation what my true medical conditions and work capacity were, I stated. I expressed my position that it was not fair and reasonable, yes irresponsible, for Ms Baker to largely base her decision on Dr Xxxxxxx’s letter, while ignoring other well-documented evidence. Then I also referred to (old) sections 44 (1) and 54B of the Social Security Act, to prove that there is very little “choice” a WINZ client has, when required to submit him/herself to a medical examination. I expressed my view, that Dr Xxxxxxx’s letter from 22 Nov. 2012 must be seen as a desperate attempt to avoid accountability.

[14] In summarising my response to the decision by Theo Baker, I expressed my concern that by taking no further action on my complaint, this will serve to facilitate the continuation of xxxxxxx processes by doctors like Dr Dxxxx Xxxxxxx and by Work and Income staff, where over recent years already thousands have been txxxxx off invalid’s benefits. Newly implemented welfare reforms would only escalate this axxxxxxxx process, I wrote. I made clear that (to my knowledge) I was the xxxxx person xxxx xx xxxxxx to file for a judicial review proceeding in such a case. The lack of access to justice, the limits to appeals being restricted to only go as far as a Medical Appeal Board (which is not truly independent), would make it impossible for WINZ clients to get fair, just and independent treatment under the present system. I made reference to the harm of severe work capability assessment methods used in the UK, and urged the HDC Office to conduct a thorough, fair, reasonable and objective re-assessment of my whole complaint, and to apply principles of natural justice in a proper investigation.

[15] My response (see [8] to [14]) was first sent to the HDC Office by email at 00:01 am on 27 April 2013, together with 13 further attached evidence documents (PDF and one PowerPoint file/s). A letter by post was also sent off on 30 April 2013 (without the attachments already sent). At the end of my email I also requested a full disclosure of any previous or present contacts (personal, professional or other) any existing or previous staff member working at and for the ‘Office of the Health and Disability Commissioner’ had had with Dr Dxxxx Xxxxxxx. This was a request under the Official Information Act 1982 (O.I.A.). As I did not receive any confirmation that my email had been received (upon requests on 29 and 30 April), I resent the same email once more from a second email address I have, at 12:16 PM on 01 May 2013. On 09 May at 03:18 pm Exxxxx Lxxx, Legal Team Administrator, finally confirmed receipt of my letters dated 26 and 30 April 2013 (also the one sent separately by email on 27 April).

[16] On 31 May I received a letter dated 28 May 2013 from Legal Advisor Georgina Rood at the HDC Office. In reply to my request about HDC staff member contacts with Dr Xxxxxxx, that I had requested under the O.I.A, she refused the information under section 18 (f) of the Official Information Act. Extremely disappointed about the response, I sent yet another, more specified O.I.A. request to the HDC Office by email at 03:00 pm on 03 June 2013. A separate, prepared form was sent with it, intended to facilitate the HDC Office in gathering and supplying the information I sought. Now I requested information about any possible contacts that existing or former HDC staff members, directly involved in the assessment, processing and investigation of my complaint, may have had with Dr Dxxxx Xxxxxxx at any given time. On 05 June (03:52 pm) I received an email confirmation for my email from Exxxx Lxxx at HDC Office. Also on 05 June I did earlier that day send the same request to the HDC Office by parcel post.

[17] On 03 July 2013 I received a response to my O.I.A. request from Georgina Rood, which was dated 01 July. She informed me that she had spoken with the staff still at the HDC Office who had direct contact with my file, and she stated, that none of them would know Dr Xxxxxxx, and that none had had contact with him, other than through the complaints process. A small number of staff who no longer worked at the HDC Office also had contact with my file, but re them she again refused information under section 18 (f) of the O.I.A.. She also withheld the names of staff members according to section 9 (2) (a) of the same Act. A special mention was made at the end of her letter, how the HDC Office would handle conflicts of interest.

[18] On 19 September 2013 I received a letter dated 17 September from Katie Elkin, Associate Commissioner, at the HDC Office. It contained a response to my requests for a review of Theo Baker’s decision. Under the heading ‘Complaint’ Ms Elkin listed only 4 bullet points summarising parts of my complaint. Again not all breaches that I raised in my original complaint were mentioned. Ms Elkin stated how a response on my complaint had been sought from Dr Xxxxxxx. She listed my more recently expressed concerns under 6 further bullet points, mentioning my criticism of the MAB, including that such a Board cannot and would not address issues that the HDC Office should address. She also listed some of my other concerns about their Office’s handling of my complaint. Under ‘My response’ she then claimed their Office “considered all the information provided”, and “thoroughly reviewed the file”. She wrote that “having considered all the circumstances of this case”, she was of the view that the Deputy Commissioner’s decision to take no further action remained appropriate. She expressed she was “satisfied” that all relevant information had been considered, and she assured me, that the entire complaint was provided to Dr Xxxxxxx. While she acknowledged that complaints about a non-treating doctor contracting as assessor to a third-party may fall under the Commissioner’s jurisdiction, she noted, that “most of my concerns relate to the processes and policies of WINZ and of the Board”. She claimed such matters were outside their jurisdiction and were more appropriately dealt with by agencies concerned, or the High Court and the Ombudsman. She stated that the Commissioner and Deputy Commissioner have a “wide” discretion to take no action under section 38 of the HDC Act, “wherever they consider”, “in all the circumstances”, even where matters fall under their jurisdiction. One of each letters to and from Dr Xxxxxxx were attached (18 and 20 Sept. 2012).

[19] At 01:18 am on 23 September 2013 I sent an email with my response (dated 22 September) to the decision by Katie Elkin. The letter was addressed to Mr Anthony Hill as Commissioner. Exxxxx Lxxx, Legal Team Advisor at the HDC Office, confirmed receipt of my email at 11:32 am on 26 September. My comments were going to be given consideration, she wrote. In my letter I expressed my extreme shock, dismay and upset about the stated justifications for not pursuing the matter and not reviewing the earlier decision. I expressed that I felt offended by the claim the MAB would be the appropriate institution to deal with my complaint. I reiterated points at issue that had not been addressed, like the scope of practice of Dr Xxxxxxx, a breach of the ‘Health Information Privacy Code 1994’, a breach of the ‘Health (Retention of Health Information) Regulations 1996’, stated breaches of the ‘Code of the Health and Disability Services Consumer’s Rights’, and of the ‘Code of Ethics of the New Zealand Medical Profession’. I again referred to presented evidence, same as how Dr Bratt from MSD uses presentations to inxxxxxxx medical practitioners. I wrote that it was unreasonable to expect persons with mental illness to seek remedies through the courts, and that my remaining trust and hope in justice in New Zealand had been destroyed. I expressed serious misgivings about the handling of my complaint and others’ complaints by the HDC Office. I concluded that MSD and their designated doctors would be encouraged to continue putting unacceptable pressures on sick and disabled, to deliver outcomes they desire.

[20] On 07 October 2013 (08:19 and also 08:38 pm) I sent a further request under the O.I.A. and Privacy Act to the HDC Office, seeking certain specified information about correspondence and other communications between the HDC Office and Dr Xxxxxxx, copies of memos or other written correspondence exchanged between staff at the HDC Office, and information on any contacts the Office may have had with staff at the MSD, with Xxx Lxxxxx at XxxXXXX, with my GP, Dr Txxxxxx, or any other person, in relation to this complaint. It was sent by way of a PDF attachment to an email that was also sent re another complaint matter.

[21] A response (dated 04 Nov. 2013) to my request from 07 October was received from Georgina Rood, Legal Advisor, by post on 07 Nov. 2013. A small number of documents were supplied, which mostly represented letters from HDC to Dr Xxxxxxx, or from him to the HDC Office. A file note of a phone call to Dr Xxxxxxx on 22 Nov. 2012 was also included. A ‘New Complaint (Triage Form)’, 2 other file notes and copies of the first page of on-forwarded emails from me were included. Some information was removed from a number of documents. Internal communications between HDC staff and their legal team members were being withheld. The reply then stated that none of the persons or agencies I had mentioned in my request, other than Dr Xxxxxxx and myself, had been contacted in relation to the complaint. That was an important revelation, proving that NO effort had been made by the HDC Office, to seek verification and clarification of provided evidence information, from health professionals that could have been able to do so. The ‘NEW COMPLAINT (TRIAGE)’ form contained some contradicting and false information, referring under ‘Complaint summary’ to “ACC-appointed assessor Dr Xxxxxxx”. At the top it had ticked boxes under ‘Other authority referral/Involvement’ for “Registration body” and “Other: HRC, Ministry of Social Affairs”. Yet none of those agencies or authorities had ever been consulted, which altogether proved yet again, my complaint had been handled in a very dismissive manner.

[22] On 25 November I received a further letter from Katie Elkin, Associate Commissioner, Legal and Strategic Relations, dated 22 November 2013. It was in response to some concerns I had raised in my last letter to the Office of the HDC. Katie Elkin claimed that they had again reviewed my file, but she again stated: “I remain of the opinion that the Deputy Commissioner’s decision remains appropriate in the circumstances, and there is no basis to reopen your complaint file.” Ms Elkin stressed that the Commissioner and Deputy Commissioners’ discretion to take no further action on a complaint is wide. It was more appropriate for WINZ to address my concerns, she added, and she reiterated, that “the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office.” Ms Elkin also added that the Commissioner does not have jurisdiction to consider issues relating to information privacy. It was the first time during the lengthy handling and extensive correspondence in this matter, that I was suddenly being referred to the Privacy Commissioner re those aspects of my complaint. In her conclusion she did not consider that my latest correspondence provided any basis to reconsider the (earlier) decision. She wrote: “I do not consider that further consideration of this complaint would be productive.”

[23] Given the contents and tone of the final response I received from Katie Elkin from the HDC Office, I did not respond further to her unhelpful comments and explanations. I remain to be completely in disagreement with that last, and also the previous decisions by the HDC Office, and I do not accept the reasons and explanations given, for not taking any further action in the complaint matter under reference C12HDCxxxxx. Consequently I see no other solution, but to file a complaint to the Office of Ombudsmen, as the matter deserves an appropriate, thorough, fair and reasonable, truly independent investigation by one of the Ombudsmen.

 

The Health and Disability Commissioner Act 1994

[24] According to section 6 of ‘The Health and Disability Commissioner Act 1994’ the purpose of the Act is to promote and protect the rights of health consumers and disability services consumers, by facilitation fair, simple, speedy and efficient resolution of complaints about infringements of those rights. Section 7 states that, in exercising any powers or functions under this Act, the New Zealand Health and Disability Strategies must be taken into account, where they are applicable, same as the objectives for District Health Boards.

[25] Under section 14 of this Act the Health and Disability Commissioner and his Deputies perform a range of functions and responsibilities, including the preparation of a draft, the review and maintenance of the ‘Code of Health and Disability Services Consumers’ Rights’. They are also responsible for the initial receipt of complaints about health care and disability services providers (s. 14 (1) (da)). They must ensure that each complaint is appropriately dealt with. This includes actions such as investigating complaints, to refer complaints or investigations to the Director of Proceedings, to make certain recommendations or suggestions, to report to the Minister and to perform other functions, powers and duties under the same Act.

[26] I exercised my right under section 31 (1) of this Act, and made a complaint about the WINZ commissioned designated doctor Dxxxx Xxxxxxx. Under section 33 (1) the Deputy Commissioner made a preliminary assessment of the complaint. The Commissioner and his Deputies had certain options to refer the matter to an agency, person or advocate, to call a conference, to investigate the matter him-/herself, or to take no action on it. In this case the Deputy Commissioner referred the complaint to Dr Xxxxxxx to answer to, and after a review decided to take no further action. According to section 33 (2), the Commissioner must promptly notify parties of their preliminary assessment, which appears to only have happened in conjunction with a final decision, which took 5 months to reach. That is in my view anything but prompt. Sections 33 (3) and (4) authorised the Deputy Commissioner to revise her preliminary assessment, but despite of requests for a review, this was not done and refused.

[27] The HDC Office clearly saw sufficient reason to make initial inquiries or investigations into the breaches of the Code that I had reported, and it sought a response from Dr Xxxxxxx himself, which appears to have occurred under section 34 (1) (d) of this Act. It appears that the HDC Office also took action under section 34 (2). It does not appear that the Commissioner did at any time seriously consider taking actions available under sections 34 (5) or 40 of this Act. Also did the Commissioner or his Deputies refrain from using any powers under section 36.

[28] Under section 38 (1) of the Health and Disability Commissioner Act the Commissioner and his Deputies have a certain discretion to decide to take no action, or no further action (as the case may require), on a complaint. This is qualified by the wording “if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” Section 38 (2) lists matters the Commissioner may give consideration to in deciding on this. These include taking into account the time lapsed since the subject matter of the complaint arose, whether the matter is trivial, frivolous, vexatious or not in good faith, whether the person affected wants no action taken, and under subsection (e), whether there is “in all the circumstances an adequate remedy or right of appeal, that it would be reasonable for the person alleged to be aggrieved to exercise.” Subsection (3) states though that subsection (2) does not detract from the generality of subsection (1).

[29] Section 39 authorises and instructs the Commissioner to promptly communicate matters of concern about risks, which may be caused by a health practitioner’s practice, to the appropriate authority. The Commissioner must also promptly notify the Director General of Health, if he has reason to believe that systemic failures or inadequacies, or the practice of a health care or disability service provider, are harming – or likely to harm – health or safety of members of the public. Section 40 gives the Commissioner and his Deputies the powers to investigate matters him-/herself. That is, where it is evident, or it appears, that there has been a breach of the ‘Code of Health and Disability Services Consumers’ Rights’. The Commissioner or his/her Deputy must then also notify an authority according to section 42 (1).

[30] The Commissioner can according to section 45 of this Act take a number of actions when an investigation has given him/her the opinion that there was a breach of the Code (see 45 (1) (a)). Section 45 (2) authorises the Commissioner to report his/her opinion with a recommendation to certain authorities, agencies or persons, make a complaint him-/herself, assist a person to make a formal complaint, or under section 45 (2) (f) refer the matter to the Director of Proceedings. The rights and powers of that Director are outlined in section 47, and the functions of that Director under section 49. The Director of Proceedings can under section 50 (2) file for proceedings before the Human Rights Review Tribunal.

[31] An aggrieved person, as I am as the complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal, if the provisions under section 51 (a) or (b) are met. But disturbingly the Deputy Health and Disability Commissioner failed to give due, fair and reasonable consideration to the abundance of relevant information and evidence that I presented during the course of my complaint. Both the Deputy and Associate Commissioners based their decision, to take no action, primarily on completely flawed considerations, and by relying on an incorrect interpretation of the law. The claim that the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions” is not relevant as a matter for consideration in respect of the particular complaint I filed with the HDC Office. It is not a relevant matter to take account of under section 38 (2) (e), because my complaint was about breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, which raised issues about Dr Dxxxx Xxxxxxx’s conduct during the examination, and how he completed the assessment on me. The Commissioners ignored and breached natural justice, taking account of irrelevant considerations, instead of the repeatedly presented, valid, relevant matters for consideration. Without justification they decided, that there was no breach of the Code by Dr Dxxxx Xxxxxxx! In regards to section 51 (a) or (b) their decision has frustrated my attempts in seeking and finding justice in this matter.

[32] In view of the legal provisions just outlined above, it becomes clear that in this complaint matter, all steps that could potentially be taken to address breaches I raised, depended on the actions and decisions by the Commissioner, in regards to whether my complaint would be accepted, properly, fairly and objectively assessed, processed and investigated at all. It is clear that the Commissioner holds a kind of “gatekeeper” role, in the handling of any complaints about health and disability services in New Zealand. The success or lack of success of any complaint that is brought by a consumer (or other party) against a practitioner or provider depends largely on what the Commissioner does and decides.

 

The Health Practitioners Competence Assurance Act 2003

[33] Under the ‘Health Practitioner Competence Assurance Act’ section 64 states that any complaints about practitioners who are covered by that Act, and that are received by a responsible authority to whom that Act applies, must be forwarded to the Health and Disability Commissioner. While I had sent my complaint in this matter at the same time to the Medical Council of New Zealand, I was indeed informed by an email from “Xxxxxxx” (Senior Professional Standards Coordinator, Medical Council), received at 03:39 pm on 06 July 2012, that the HDC Office is the “most appropriate organisation to direct” my “correspondence to”.

[34] Section 65 provides for steps that an authority under this Act, like the Medical Council (see Schedule 2), must take if a complaint is being referred to it by the Health and Disability Commissioner under section 34 (1) (a) of the ‘Health and Disability Commissioner Act’. Section 66 outlines how the Health and Disability Commissioner must notify the authority of a pending complaint. Section 70 of the ‘Health Practitioners Competence Assurance Act’ states that an authority may not take any action concerning the complaint, or the subject matter of an investigation by the HDC Office, until notified whether the matter is not to be investigated (or investigated further), that the matter has been resolved, or that it is not to be referred to the Director of Proceedings, or that the Director will not institute disciplinary proceedings. Section 65 (2) allows an authority (e.g. the Medical Council) to refer a complaint received by it from the HDC Office to a professional conduct committee. Sections 71 to 83 of the Health Practitioners Competence Assurance Act stipulate processes to follow for and by such committees. Section 81 (2) provides for such a committee to formulate and lay a charge against a practitioner before a ‘Health Practitioners Disciplinary Tribunal’ (see sections 84 to 105 of this Act).

[35] By looking at the above and other provisions under this particular Act it becomes clear, that complaints about health practitioners will ultimately, and in virtually all cases, at first be assessed and decided upon by the Health and Disability Commissioner, rather than any authority responsible under this Act for registering practitioners. This certainly applies to complaints from consumers of health and disability services. That means also, that the role of the Health and Disability Commissioner in handling my complaint becomes absolutely crucial. Any authority – like the Medical Council, is unlikely to consider conducting any committee or tribunal hearing, or to take any other measures, unless the Health and Disability Commissioner or his Deputies refer a complaint to it under section 43 (1) (a) of the Health and Disability Commissioner Act 1994. Hence there is now no remedy or relief I can seek, or legal proceedings I can bring, to address the breaches of conduct by Dr Dxxxx Xxxxxxx.

 

[36] Breaches of natural justice, of process and legal provisions by the HDC Office

[36a] The comments by the Deputy and Associate Commissioners (see also paragraphs [6], [18], [22] and [31]), that the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions” (Theo Baker’s letter from 24 April 2013), and that “most of my concerns relate to the processes and policies of WINZ and of the Board” (K. Elkin’s letter from 17 Sept. 2013), and also that “the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office” (K. Elkin’s letter from 22 Nov. 2013), are apart from the last one completely incorrect, and they are – in regards to my particular complaint – all not relevant matters to consider under section 38 (2) (e) of the Health and Disability Commissioner Act. My complaint was about breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, which happened in the course of Dr Dxxxx Xxxxxxx inappropriately conducting a medical examination, and in a biased, unprofessional manner preparing related assessment reports on me. I must refer to the points I complained about in my original complaint letter from xx June 2012 (see also [2] and [3] in this letter). An appeal to a Medical Appeals Board (see old section 53A of the Social Security Act) would not address the conduct of Dr Xxxxxxx in view of the ‘Code of Health and Disability Services Consumer’s Rights’, the ‘Code of Ethics’, of any competency, health information privacy and information retention issues. The Commissioner also failed to consider the actual lack of independence of an MAB (appointed by MSD), that “designated doctors” and MAB members get trained and mentored by the apparently xxxxxx Principal Health Advisor of MSD, and that I did not succeed with my appeal to the MAB. I refer to my letters with further explanations and submissions to the HDC Office, dated 26 April and 22 Sept. 2013 (see also [8] to [15] and [19] above).The Commissioners misinterpreted statutory provisions, ignored and breached natural justice, by taking into account irrelevant considerations, instead of the repeatedly presented, valid, relevant matters. Section 38 (1) of the ‘Health and Disability Commissioner Act states’: “the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” As the Commissioners did not have regard to all the circumstances of my case, they breached law.

[36b] In Dr Xxxxxxx’s letter to the HDC Office from 20 September 2012 he mentions that he did not provide medical treatment to me, and that he was under the understanding that “all complaints of this nature are more correctly addressed to the Medical Appeals Board”. He also refers to a letter dated 16 August 2010, which he apparently received from the HDC Office, and which he claims outlines such policy. This implies that the Health and Disability Commissioner is reluctant to deal with complaints about third-party assessors. That presumption is reinforced by comments made in a letter from Katie Elkin dated 17 Sept. 2013 (see last chapter on page 2), where she states “that complaints that relate to a non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction under the Act”. She reiterated that comment at the bottom of page 1 of her final letter dated 22 Nov. 2013, and at the top of page 3 again stated, that “it was more appropriate for WINZ, as the third-party contracting Dr Xxxxxxx to provide an assessment, to address your concerns about his assessment of you”. This apparent reluctance by the Health and Disability Commissioner, or his Deputies, to assess and investigate complaints about third-party assessors, who are registered health and medical professionals bound by the ‘Health Practitioners Competency Assurance Act’, the ‘Code of Ethics of the New Zealand Medical Profession’, and other legal provisions is unacceptable. Such practitioners, acting as examining assessors, must surely also be bound by the ‘Code of Health and Disability Services Consumer’s Rights’ (the Code), especially when a face to face consultation and physical examination is taking place. I view the position by the HDC Office in this regards as compromising the law. The provisions under section 38 of the ‘Health and Disability Commissioner Act’, to take no action or no further action, must not and cannot be interpreted that widely, as it may please the Commissioner by following selective, irrelevant, unreasonable or even subjective considerations. A registered health practitioner has obligations to respect the rights of consumers under the Code, also when conduction assessments (see section 20 (1) and particularly section/s 20 (2) (a) and (b)), which the Health and Disability Commissioner has a responsibility for to uphold and enforce.

[36c] In her decision from 24 April 2013 Theo Baker revealed that her Office had only specifically asked Dr Xxxxxxx to respond to an alleged breach of Right 5 of the Code, which means that none of the other reported breaches had been pursued. Consequently the Deputy and Associate Commissioners failed to give due and fair consideration to breaches I reported of rights 1, 3, 4 and 6 that under the ‘Code of Health and Disability Services Consumer’s Rights’. While Katie Elkin, Associate Commissioner, stated on page 2 in her letter from 17 Sept. 2013 (under “My response”), that a copy of my entire complaint was presented to Dr Xxxxxxx on 18 Sept. 2012, the copy of that letter sent to me upon an O.I.A. request does not state, whether only the complaint letter was sent, or whether it was sent together with all provided attachments. Hence I remain unconvinced that Dr Xxxxxxx was presented with all the evidence that I supplied. It raises serious questions, why Dr Xxxxxxx was only asked to specifically respond to “communication issues”, and apart from that allowed to offer his much “generalised” comments as a response to all other aspects. Dr Xxxxxxx’s responses are unconvincing in view of the comprehensive evidence I supplied, and he presented no copies of documents that I presented to him, or that my doctor sent him. Dr Xxxxxxx appears to be working in a manner, where he keeps as little documentation as possible, in order to avoid any legal questions or challenges that may arise. That is while he is according to the ‘Health (Retention of Health Information) Regulations 1996’ expected to keep certain medical records on file for a number of years. Not until the last response by Katie Elkin from 22 Nov. 2013 did the HDC Office provide any comment in regards to this breach by Dr Xxxxxxx! That response was completely unsatisfactory. In any case, same as under [36a], section 38 (1) of the ‘Health and Disability Commissioner Act’ was not followed; as the Commissioners handling my complaint failed to have regard to all the circumstances of my case (see also my letters from 26. April and 22 Sept. 2013).

[36d] Dr Xxxxxxx’s and Theo Baker’s comments (see Dr Xxxxxxx’s letter from 22 Nov. 2012 and Theo Baker’s decision dated 24 April 2013) concerning the lapse of time since the examination and assessment from 17 to 30 June 2010 are not accepted as a fair, reasonable consideration under section 38 (2) (a) of the Act for the Health and Disability Commissioner to not further investigate the matter. I was unable to make a complaint to the HDC Office until late June 2012, because other, related matters were still before the High Court – pending a judicial review proceeding. Given that circumstance the HDC Office would not have taken any action at all, until that would have been resolved. Also, in view of the Office of the Health and Disability Commissioner taking nearly a year, to present a first decision on the matter, and then not making necessary, due efforts to appropriately and fairly re-assess, clarify and confirm presented information and evidence, it is completely unreasonable to assert that the lapse of time since the subject matter arose warrants a decision to take no action. With the extra delay and final decision to not take further action, Theo Baker and Katie Elkin did as Commissioners in this case actually xxxxxxxxx the course of justice, as according to section 173 (Part 7) of the ‘Health Practitioners Competence Assurance Act 2003’ no information about offences under the Act may be laid 3 years after the time the matter for the information arose! Consequently I have been denied justice, which may raise issues with section 27 of the New Zealand Bill of Rights Act 1990, or at least the intention and “spirit” behind that provision.

[36e] In her letter from 17 September 2013 Katie Elkin only addressed a few summarised aspects of the breaches I reported, and of the issues I had raised, in her few bullet points. In her letter from 22 Nov. 2013 the Associate Commissioner suddenly referred me to the Privacy Commissioner to have unresolved issues re health information privacy and retention addressed there, which was something that I could certainly have been advised to do much earlier than this. This clearly relates to my complaint about Dr Xxxxxxx’s breaches of the HIPC 1994 and the Health (Retention of Health Information) Regulations 1996. As the Commissioner and his Deputies are according to section 14 (2) (b) of the Health and Disability Commissioner Act supposed to consult and cooperate with the Privacy Commissioner, the Ombudsmen and other statutory officials, one should have expected that the matter would have been raised much earlier, or even be referred to the Privacy Commissioner directly by one of the Commissioners. This did not happen, and therefore the Commissioners failed to act accordingly as provided under section 36 of the HDC Act. Also has the Commissioner certain responsibilities regarding privacy law as stated in section 20 (1) (c) (i) of the Health and Disability Commissioner Act 1994. By informing me of their position at the very end of a prolonged complaint process, and after an earlier conducted review, the Health and Disability Commissioner neglected their duty to consult with the Privacy Commissioner, and also with me, in a timely manner.

[36f] There was no mention in any decision that I received from the HDC Office, that the Mental Health Commissioner had been consulted on my complaint, which is what I had expressly asked for in my letter dated 26 April 2013 (see chapter 2 on page 1). Consequently the possibly only sufficiently, appropriately qualified Commissioner based at the HDC Office, Dr Lynne Lane (MB ChB, FNZCPHM 2008), was apparently not given a chance to look at and assess the complaint, the submissions and evidence presented, and to consider my mental health issues, which are highly relevant in view of the biased, un-objective, unprofessional and apparently incompetent treatment I received by Dr Dxxxx Xxxxxxx. The harm caused could only have been properly understood by a person with competence in the assessment, diagnosis and treatment of complex mental health issues. Given the apparent fact, that my complaint and submissions were not read, examined and assessed by the Mental Health Commissioner, I must conclude that I was denied a competent and fair hearing, and that consequently the natural justice principle ‘audi alteram partem” was breached. Only a proper re-assessment following the provisions of statute, regulation and natural justice, and a fair and reasonable process of decision-making, will ensure that justice can be applied in this matter.

[36g] Overall the Office of the Deputy Health and Disability Commissioner and her staff applied a dismissive and even negligent approach towards the assessment and handling of my complaint. This does not only become evident by some clear mistakes in the ‘(TRIAGE)’ form, but also by not having made any efforts to contact potential witnesses who could have verified and commented on crucial information that was provided. Most concerning is that undue major consideration was given to Dr Xxxxxxx’s two letters with his own summarising statements in response to aspects of my complaint (dated 20 Sept. and 22 Nov. 2012). There appears to be no other convincing reason for Theo Baker’s decision to not properly examine other information and matters presented with my complaint C12HDCxxxxx, apart from her apparent personal bias against me. It was obviously caused by the fact that she had already dealt with a highly complex complaint on another matter I had presented, where I had complained about her handling of it. I took issue with her handling of my complaint under the reference C11HDCxxxxx by way of a letter dated 27 March 2012. It was in response to Theo Baker’s initial decision on that complaint dated 24 February 2012. Later correspondence and information received under the O.I.A. and Privacy Act revealed that a sought review of Miss Baker’s decision in that matter was only dealt with reluctantly and half heartedly. In view of the convincing evidence and information provided in this complaint matter under reference C12HDCxxxxx, a fair minded, informed person would have decided differently to Deputy Commissioner Theo Baker. The later responses by Katie Elkin as Associate Commissioner were obviously made after much legal consultations amongst staff and advisors within the HDC Office, and must be viewed as damage control.

[36h] An aggrieved person, as I am as the complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal him/herself, under the provisions in section 51 (a) or (b) of the ‘Health and Disability Commissioner Act’. But as the Deputy and Associate Health and Disability Commissioners failed to give due, fair and reasonable consideration, by not having regard to all the circumstances of the case (i.e. the substantial compelling evidence that I presented during the course of my complaint), they failed to acknowledge and accept there were breaches of the Code! As a result their decision has denied me access to justice. Again this raises issues with the New Zealand Bill of Rights Act 1990 and with natural justice.

[36i] According to section 7 (a) of the Health and Disability Commissioner Act the Commissioner, and where applicable his Deputies with the relevant delegated powers, must in exercising or performing any power or function take into account the New Zealand health strategy and the New Zealand disability strategy. ‘The New Zealand Disability Strategy 2001’, published by the Office for Disability Issues – under the Ministry of Social Development, states under ‘Objective 6’: “Foster an aware and responsive public service”, and further to that, see ‘Action’ 6.3: “Ensure that all government agencies treat disabled people with dignity and respect”. Although not a government agency as such, but as a public office with responsibilities to uphold the ‘Code of Health and Disability Services Consumers’ Rights’, it must surely be expected that the HDC Office honours, respects and adheres to that part of the strategy. The ‘New Zealand Disability Action Strategy’ requires regular annual ‘Progress Reports’ on the implementation of the strategy to be published. Also has New Zealand has signed the ‘United Nations Convention on the Rights of Persons with Disabilities’, which appears to have been integrated into, or aligned with ‘The New Zealand Disability Strategy’. It must therefore be expected that an Office like the HDC Office must follow the provisions/principles under Article 12 – and particularly Article 13 – of that UN Convention. But with much regret, I must note, that the treatment I have received from the Deputy and Associate Commissioners of the HDC Office, in the process of handling my complaint, has been lacking due respect, fairness and reasonableness, leading to a situation where access to justice has been denied. It appears that the Commissioners and their staff of the Office of the HDC lack the necessary training and competency to handle complaints from mental health sufferers in an appropriate, supportive and respectful manner. This is a matter of great concern and requires most urgent resolution.

 

Remedies sought under the Ombudsmen Act 1975

[37] The Health and Disability Commissioner, represented by his Deputy and Associate Commissioner, made an assessment and decisions on my complaint, which are in breach of natural justice, which are based on the misinterpretation of statutory and regulatory provisions, and which ultimately deny me justice. The final decision is based on flawed, inappropriately conducted assessments and reviews, that did not give fair, objective and reasonable consideration to all the truly relevant information and evidence provided, referred to and offered in relation to the complaint. The Commissioner/s decided without justification to take no action – or no further action – on my complaint, while failing to have regard to all the circumstances of the case. In view of this, I ask you as Ombudsman for your considerations based on all information and evidence provided (incl. correspondence between the HDC Office and me) to make the following recommendations or decisions under section 22 (3) of the Ombudsmen Act 1975 to the Health and Disability Commissioner, and otherwise:

[37-1] That the Health and Disability Commissioner, or any of his Deputy or Associate Commissioners and their staff, properly and thoroughly reviews and re-assesses my complaint C12HDCxxxxx, and in doing so give the appropriate, fair, objective and reasonable consideration to all the evidence supplied in the matter (including such provided after an earlier decision or review in the course of the complaint handling).

[37-2] That the Health and Disability Commissioner, or his Deputy or Associate Commissioner, directly involves and consults with the Mental Health Commissioner in conducting such a proper and thorough review as asked for under [37-1].

[37-3] That the Health and Disability Commissioner, or any Deputy or Associate Commissioner, same as the Mental Health Commissioner, will at all stages of his/her review, re-assessment and future decision-making, truly follow the principles of natural justice, and strictly adhere to the statutory and regulatory provisions – as they should be correctly interpreted under the law.

[37-4] that the Health and Disability Commissioner, any Deputy-, Associate- or Mental Health Commissioner, will during the review, re-assessment and in their future decision-making consult any witnesses, who may be required to verify, confirm and comment on any documentary or other information provided, thus facilitating a fair, reasonable and objective handling of the complaint. This may include my own GP, Dr Xxxxx Txxxxxx, my psychologist Xxx Lxxxxx at XxxXXXX Psychological Services, other specialists or practitioners involved in my care, same as staff of the Ministry of Social Development, or any other relevant person. Where necessary, I will ensure to provide a written authority to the HDC Office to contact and consult with particular health professionals that were involved in my care.

[37-5] That the Health and Disability Commissioner, his Deputies, Associate or Mental Health Commissioner, will consult in this matter with the Privacy Commissioner and the Office of Ombudsmen, where this is necessary and appropriate, to resolve health information privacy and retention issues that were raised as part of the complaint. In the case that such issues are better dealt with by the Privacy Commissioner, the matter should be referred to that Commissioner by the Health and Disability Commissioner.

[37-6] That the Health and Disability Commissioner, his Deputies, Associate or Mental Health Commissioner, will ensure that measures will be taken and implemented as soon as reasonably possible, to provide needed training to all staff employed by the HDC Office, on how to appropriately, fairly and respectfully deal with complainants, witnesses or any other persons that suffer from mental health – or any other illness causing disabilities, that are not always well understood and appreciated.

[37-7] That the Health and Disability Commissioner – or any Commissioner with his delegated authority – will ensure that I will be given access to justice, either by the Commissioner taking appropriate actions him-/herself, or by the matter being referred to the Director of Proceedings, and/or by referring the matter to the Medical Council for further action. This is in reliance on natural justice, as well as statutory and regulatory law being applied appropriately, fairly, objectively and reasonably in resolving the complaint matter.

[37-8] That any other recommendation or decision be made, which you as Ombudsman see appropriate in this matter, which may include reporting to the Minister of Health, the Prime Minister, the House of Representatives or any other authorities, to recommend a review of the law, to remedy inconsistencies in processes and procedures that prevent persons in my situation from accessing and finding justice.

 

Closing comments and concerns

[38] It is my concern also that the Health and Disability Commissioner Office is re- and de-prioritising too many complaints about issues with health and disability services, due to financial pressures, while their office is faced with increasing work loads and at the same time limited funding. The recently published annual report of the Health and Disability Commissioner has revealed some details on this. As the Health and Disability Commissioner does perform the role of a “gate keeper” when it comes to handling and processing complaints, the refusal to accept and investigate many complaints leads to a denial of justice for too many. Authorities like the Medical Council will usually not investigate any complaints themselves, unless the HDC Office refers matters to them – to further deal with.

[39] Already now we have too many cases that are before the HDC Office for two or more years, and any breaches that can be addressed under the ‘Health Practitioners Competency Assurance Act 2003’, will not be possible to pursue after the lapse of 3 years (see section 173). Justice delayed is justice denied, and it is a matter of highest concern what happened with not just my complaint, but what happens to many others.

Your respected decision and response in this matter – in due – course will be most appreciated.

 

Yours thankfully and sincerely

 

Xxxxxxxx Xxxxxxx

 
 

P.S.:

Lists of supplied, relevant evidence documents and correspondence in this matter will be found at the bottom of a number of emails that will be sent separately in this matter to your Office’s email address! Those relevant documents that will be attached to those emails will not be attached to a copy of this letter that will be also sent to you by post.”

 

Comments by the author:

The above complaint should be self explanatory, but if questions arise for the reader, she or he may wish to revisit the relevant earlier HDC complaint available on this blog, in order to obtain the information it relates to. There was never a separate, formal email response from the Office of Ombudsmen confirming receipt of this whole complaint. Hence the complainant did at 02:25pm on 23 Feb. 2014 send in a follow up email, requesting a confirmation of receipt and update for his complaint. Only ever was there just one automated response received from the email system at the Ombudsmen’s Office at 02:27pm on that same day, no other correspondence or other communications were ever received for months to follow!

 
 

PART 4 – THE BIZARRE, INCOMPREHENSIBLE COMPLAINTS ASSESSMENT AND ANALYSIS BY AN OMBUDSMAN’s INVESTIGATING OFFICER

 

After having sent in each of the above complaints to the Office of Ombudsmen, there was no proper response to the complainant for months to come. There had in the end only been just that one brief email acknowledgment from 03:10pm on 14 Nov. 2013 – that followed the first complaint, which the complainant received. So after waiting over four to five months for a proper written reply re either matter, the complainant did at about 11.30 am on 22 April 2014 phone the Ombudsman’s Office to enquire about the progress of the complaints. As the investigating officer was apparently not available, the complainant had to leave a voice mail message for her, which was also not responded to. So he phoned yet again at 10.30am on 28 April 2014, when he finally reached the investigating officer, who confirmed that she actually had both complaints in front of her. She advised the complainant that she would respond within two weeks with a letter authorised by the Chief Ombudsman.

But for further weeks no letter came, hence the complainant phoned the Office once again at 11.35am on 26 May 2014. He then received an explanation that there had been a delay in progressing the matter, but he was assured that a response should reach him by the end of that week. He finally got a letter signed by the Chief Ombudsman, Dame Beverley Wakem, on 30 May, which was dated 28 May 2014.

The complainant was shocked and dismayed at the response, which told him, that the Chief Ombudsman, clearly basing her decision on the investigating officer’s assessment, analysis and advice, did at that stage “not intend to commence Ombudsmen Act 1975 investigations into either of the complaints”. While the response was signed by Ms Beverley Wakem, it had of course been prepared by the investigating officer mentioned at the top of the same letter under “Contact”. It was clear to the complainant that Ms Wakem would not have investigated the matters and written the correspondence herself, as it would usually be the case with such shared administrative responsibilities. So when we are in the following talking about the “Ombudsman” or “Chief Ombudsman” Beverley Wakem, we must bear in mind, that the information and comments contained in that letter were actually those prepared by the investigator, which the Ombudsman simply accepted and took over as being her own. The complainant could only explain the rather bizarre, incomprehensible assessments, analysis and decisions made in relation to his two, combined complaints, as having been the result of an either over-worked, poorly trained or otherwise incompetent investigating officer working for the Chief Ombudsman.

To the astonishment of the complainant, both complaints had been combined into one complaint file under one reference number, and they were being responded to in the same one letter. They were in that letter addressed separately, but the ‘Conclusion’ in that letter presented the Ombudsman’s (and investigating officer’s) decision on both complaints.

 

Summarised contents of Ms Wakem’s letter, that had been prepared by the investigator

After offering apologies that she (and her Office) had not been in a position to progress consideration of the complaints sooner, Ms Beverley Wakem did first explain that her Office was “not an appeal authority against decisions made by the HDC”. She explained that while Ombudsmen had authority to investigate decisions by the HDC, relating to a “matter of administration”, an Ombudsman’s review of bodies such as the HDC, was limited. She explained to the complainant how the HDC was established by Parliament as a specialist reviewer of issues concerning complaints relating to the health and disability sector. The Ombudsman would only consider complaints about the HDC by considering “the fairness and effectiveness of the process followed by the HDC”, she wrote. And an Ombudsman would only determine whether the decision that was arrived at was one that was reasonably open to the decision-maker to have been made, she added.

She made clear that by statute the HDC was the only authority “capable of determining whether a health professional has breached the Code of Health and Disability Services Consumers’ Rights (‘the Code’)”. Ms Wakem wrote that an Ombudsman could not substitute his or her view on whether a breach of the Code had occurred. She stated that she was therefore unable to ‘investigate and provide an opinion’ on the standard of treatment the complainant received from the counselling service provider or the designated doctor. What she may do was to consider whether the HDC, in forming any view (in this case whether to take no further action on either or both complaints) had “followed processes that were fair and reasonable” and ended in decisions that “were reasonably open to the HDC to have made”, she commented.

Ms Wakem then also explained when and how section 22(3) of the Ombudsmen Act 1975 would come into play. It would only come into operation if the Ombudsman concluded (after an investigation), that an agency that had been complained about, had acted apparently contrary to law, unreasonably or in one of the other ways as identified in sections 22(1) or (2), she wrote. She also mentioned that any recommendation made following an investigation was non-binding. Then the Chief Ombudsman went on to explain her view and considerations on either complaint case, firstly on the first complaint about the counsellor/s and their employer.

Under ‘The first complaint’ Ms Wakem wrote (based on her investigating officer’s assessment and analysis), that the complainant’s main concern was “the HDC’s alleged failure to consider all the material and evidence” he had originally submitted on 08 August 2011. But then she simply adopted the assertion by the Deputy HDC, Ms Baker: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” She also quoted the HDC from a letter their staff sent to the WDHB, stating that the “complaint is of an unusual length and complexity, and, as such, rather than responding in detail to each individual issue raised, it may be helpful to instead provide a general overview of his care.”

Ms Wakem then wrote that it seemed to her “that the HDC was reasonable to ask” the complainant to provide a summary of his concerns, and to advise the WDHB that not every point had to be addressed – given the very large number of issues raised. The Ombudsman wrote that (in her view) the HDC went through the material the complainant had provided, and sought responses (from WDHB) he “deemed relevant to his consideration of the complaint”. She also stressed that the HDC “has discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose.” She continued commenting that when the complainant was not satisfied with the HDC’s initial decision, “the HDC agreed to review the file and gathered further information from WDHB”.

The Chief Ombudsman claimed in her letter, that the complainant was then aware, that the HDC’s examination of his complaint was based on “the revised version, dated 9 August 2011, along with the attached documentation”. She pointed to comments in a letter dated 16 May 2012 (from the HDC’s Complaints Assessment Manager). She wrote also, that (in her view) it was apparent, that the HDC considered all the emails the complainant had sent in during early 2012, adding “most of which contained large attachments”. She furthermore commented: “It was at that stage that the HDC advised that it did not have the resources to process the amount of material you were sending in”. She added that the complainant was then asked (by the HDC) for the following: “out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible.”

She commented that the file was reviewed for a third time in late 2013. Ms Wakem wrote that on 14 June 2013 the Deputy HDC, Ms Theo Baker, advised that following that review “no further action would be taken on the complaint”. The Ombudsman did then again simply accept the claims by the HDC, and wrote: “She noted that all relevant information pertaining to your complaint had been considered and that further correspondence from the HDC on this complaint would not be appropriate.” She did though also comment that the HDC did respond to the complainant’s further correspondence, and referred to Associate Commissioner Katie Elkin’s letter from 05 October 2013 (wrong date), in which Ms Elkin had explained to the complainant, that the HDC can decide to take no further action on a matter and that this discretion is exercised “only after careful assessment of all relevant information”.

While the Ombudsman then commented that she appreciated that the complainant remained dissatisfied with the HDC’s decision to take no further action on his complaint, she stated: “It is not clear to me that in making that decision, the HDC failed to take all the information into account.” She commented on the complainant’s concerns that by “summarising” material he had presented, he felt the HDC ignored some more salient facts. But Ms Wakem then wrote that “given the amount of material you submitted to the HDC, it seems reasonable for the HDC to have summarised key points, in order to assess the material efficiently and fairly”. She continued with commenting: “The fact that the WDHB was not asked to consider every detail presented in the hundreds of pages you submitted to the HDC does not indicate that the relevant material was not considered by the HDC.” The Ombudsman asserted that there was nothing in the material that she had seen that would indicate that the HDC’s decision was based on “inadequate consideration of the facts”.

At the end of her summary of ‘the first complaint’ she pointed to provisions under section 14(1)(m) of the Health and Disability Commissioner Act 1994, commenting that the HDC may “gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s function under this Act”. She also commented that the HDC was under no obligation to interview witnesses, thus basically defending the HDC.

Under ‘The second complaint’ Ms Wakem then referred to the complainant’s complaint about alleged breaches of professional conduct by a “WINZ designated assessor”, which had been lodged between 30 June and 02 July 2012. She mentioned the name of the general practitioner and the centre he worked in. She also mentioned the letter and ten subsequent emails (it was actually altogether 17 emails!) with attached PDF documents. She commented that the HDC asked the doctor to consider the complainant’s “concerns”. Deputy HDC Theo Baker assessed the complaint and concluded that in accordance with section 18(1) of the HDC Act “no further action should be taken”, she wrote. The Chief Ombudsman wrote that the HDC “considered both the information” the complainant provided, and the doctor’s “comments in response”. “Reasons for her decision were provided”, Ms Wakem wrote (all based of course on her investigator’s assessment and advice).

Ms Wakem then wrote how the complainant had advised her that “certain major points” of his complaint “had not been addressed or responded to at all”, and that Ms Baker’s decision was “unacceptable”. Then the Chief Ombudsman wrote how the complainant had between 25 and 27 April 2013 “submitted considerable correspondence to the HDC”, about his concerns. Not going into details she then wrote, that Ms Elkin had in September 2013 written “that the HDC’s initial decision stood”. She added in her letter to the complainant: “When you complained again, Ms Elkin responded on 25 November 2013 (it was actually the 22 Nov. 2012!) setting out the reasons why there was no basis to reopen the file”.

However, Ms Wakem, the Chief Ombudsman, did then sum up the five bullet points that the complainant had (in her view) complained about, being – that the HDC:

“● failed to provide relevant information to Dr Xxxxxxx and to ask him to comment on certain issues raised in your complaint;
● failed to interview third parties you identified as key to your complaint;
● unreasonably made comments concerning the lapse of time between the submission of the complaint and the events being complained about when you had been unable to make your complaint to the HDC earlier because related matters had been the subject of a Judicial Review hearing;
● Was reluctant to investigate a complaint against a non-treating doctor (who still falls within HDC jurisdiction); and
● May not have considered its obligations under the UN Convention concerning persons with disabilities when considering your complaint.”

After that Beverley Wakem commented on each of those points, writing re the first issue, that the HDC had advised her that the entire 20 page complaint letter had been sent to the GP, but that they noted, that they were unclear, “whether the substantial documentation attached to the complaint letter had been sent”. She mentioned the “follow up communication” that occurred on 22 November 2012 with the doctor, where the HDC had asked him to respond particularly “to the issue about communication”. And then Ms Wakem stated: “It is for the HDC to determine what information he requires for the purpose of his assessment of a complaint”.

On the second matter the Ombudsman commented, “the HDC has discretion under section 14(1)(m) of the Act to gather such information as he/she sees appropriate”.

In relation to the third “issue”, she wrote: “I note this matter was referred to in Ms Baker’s 24 April 2013 letter when she explained that further investigation into Dr Xxxxxxx’s style of communication was contrary to yours and that ‘further investigation into this matter will [not] provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment’”. She commented: “It seems to me that this was not an unreasonable comment to have made in the circumstances, given the inherent difficulties for parties to recall discussions which took place some years ago.” She further added, that notwithstanding that passage of time, “the HDC assessed your complaint”.

Regarding the fourth issue the Ombudsman then commented on how Ms Elkin had in her letter of 17 September 2013 explained that although complaints against non treating doctors acting for a third party may fall within the Commissioner’s jurisdiction, “in this case, most of the concerns” the complainant had raised, “related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction”. Besides of mentioning this, the Ombudsman also pointed out (based on Ms Elkin’s comments) that even where jurisdiction could be established, the HDC and Deputy HDC had “a wide discretion” to take no further action under section 38. She concluded with comments like: “Finally, there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to you as a health and disability consumer, under the Act.” She lastly noted that no finding had been made on the doctor’s record keeping.

Under ‘Conclusion’ the Ombudsman then summed up her decision. She wrote: “At this stage I do not intend to commence Ombudsmen Act 1975 investigations into either of the complaints you have made to this Office”. She “appreciated” that the complainant would be disappointed and again outlined her limitations as Ombudsman, stating “that in the absence of any indication that the HDC’s decision-making processes themselves were unreasonable or defective, it is difficult for an Ombudsman to investigate a complaint against the HDC.”

She also wrote that even if she had decided to investigate, the remedies she may have been able to use were limited, and she would most likely have referred the matter back to the HDC for consideration. But then the HDC was not bound by any suggestion or recommendation she could in that case have made, she added. Even if the HDC would agree to review the files afresh, there was always the possibility that the outcome would be the same findings, she asserted. In light of all this she had closed the file, taking no action at all to investigate.

A PDF file containing an authentic scan copy of the Chief Ombudsman’s decision letter dated 28 May 2014 is found via this hyperlink here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, decision, anon, 28.05.14
A PDF file with the same copy – high-lit – is found here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, decision, anon, hilit, 28.05.14

 

Comments by the author:

The complainant was very upset about this “decision” letter from the Chief Ombudsman, which did for a start contain a number of mistakes, starting with some wrong dates for correspondence being referred to. There were also some apparent misunderstandings of the expectations of the complainant, and of concerns and issues he presented. Not all concerns the complainant had presented were actually being addressed. It was clear to him, that the letter had not been written by Ms Wakem, and that it was not based on her own assessment, analysis and conclusions. It was a letter prepared by the investigating officer who had handled the case, who had (under time and work load pressure) apparently rushed over the complaint letters, and only a few other relevant documents that she looked at. It was apparent that a lot of sent in correspondence and presented evidence, and supplementary information, had not been looked at, most certainly not properly.

The earlier phone calls, which the complainant had made, they had already indicated, that the Office of Ombudsmen staff were way behind processing and progressing complaints, and this was proved by repeated media reports about the growing “back log” at the Office of Ombudsmen. That is why there had not been a response for months, and only after the complainant made first phone contacts, leaving also a voice mail message, would the Office staff have looked at the complaint. Feeling under pressure to resolve the matter, it must have been dealt with somewhat speedily and superficially.

Also does it seem that the Ombudsman, and particularly her investigating officer, had only marginal and brief contact with the HDC Office, in order to discuss the complaints. There is indeed little indication or evidence of any significant discussions having occurred between the HDC and Ombudsmen Offices in this case.

In summary, one can conclude from the repeated quotes of explanations and comments the Deputy HDC and Associate HDC had used in their correspondence with the complainant, that the Ombudsman relied heavily on the HDC’s judgment and “competencies”, rather than give much credit to what the complainant had presented.

There is no need to explain, that given the above, the complainant felt compelled to further argue his case, by presenting further correspondence. He would re-assert his position and remaining concerns, and also present additional evidence and ask for a review of the decision.

 
 

PART 5 – THE OMBUDSMAN BEVERLEY WAKEM DECIDES THAT NO ACTION IS NECESSARY, IGNORING COMPELLING EVIDENCE

 

It is clear to any person who has experience in multi-layered, work shared administration, that Beverly Wakem did not herself assess, analyse and evaluate the two complex complaints, but left this work to her investigating officer. Any informed person will understand that Ms Wakem will not have formed the final decision not to conduct an investigation into the two complaints all by herself. The Chief Ombudsman will instead have relied on her own staff for doing most – if not all – of this work. She will perhaps have read through bits of the complaint and sent in evidence, but even that is not certain, given the huge workload the Office has over the years been dealing with.

Thus it is rather clear, that it was the investigating officer who did the bulk of the work for Ms Wakem, and that it was the investigator who presented the Chief Ombudsman with the letter dated 28 May 2014, that she had prepared as a response to be sent to the complainant. As already mentioned, it must also be presumed that the work done by the investigating officer would have been done in a rush, under great time and other constraints, as nothing much will have been done with the two complaints until the complainant phoned the Office on 22 April 2014, seeking an update on the processing of his complaint.

So within only a few weeks the very complex matters will have been rushed through, while no thorough assessment and detailed analysis of the complaints happened. As a result a very flawed and poor decision was formed, not to investigate either of the complaints.

From Ms Wakem’s letter it is evident that she (or rather her investigating officer) heavily relied on the earlier “judgment” and “competency” of the Deputy HDC and her Associate at the HDC Office. Repeated references to comments made by the two provide sufficient evidence of this. Hence the already observed bias that the complainant noticed in the earlier, flawed HDC decisions was also adopted and followed by the Ombudsman (initially her investigating officer). They appear to have given more credit to the “evidence” provided by the HDC staff than to anything the complainant presented, including the documentary evidence, which appears to not even have been looked at – certainly not most of it.

Re the 1st complaint under the HDC’s reference C11HDCxxxxxx the following was simply accepted as “fact”, ignoring any evidence to the contrary, presented by the complainant:
1. That the computer system at the HDC “froze” when receiving the emails with attachments from the complainant, although email correspondence proves this wrong;
2. that it was reasonable for the HDC to simply expect the Waitemata DHB (WDHB) and their CEO Dale Bramley to provide only a “summary” of the “treatment history” of the complainant, instead of addressing various valid individual issues;
3. that the WDHB CEO’s comments were all correct, truthful and reliable, and had more merit than what the complainant alleged against their service’s counsellor/s;
4. that the HDC acted reasonably and fairly by seeking responses he “deemed relevant to his consideration of the complaint” – without questioning the judgment of the HDC;
5. that “the HDC agreed to review the file and gathered further information from WDHB”, while also acknowledging “that the HDC advised that it did not have the resources to process the amount of material” the complainant had sent in;
6. that the HDC was right in stating “that all relevant information pertaining to” the complainant’s “complaint had been considered and that further correspondence from the HDC on this complaint would not be appropriate.”, trusting fully the HDC;
7. that the HDC exercised its discretion “only after careful assessment of all relevant information”, even though careful examination of evidence would question this;
8. that the HDC considered all relevant material, even though “the WDHB was not asked to consider every detail presented in the hundreds of pages … submitted to the HDC…”, thus exaggerating and ridiculing the actual evidence by the complainant;
9. that with the above (see ‘3.’), the counsellor might have “misheard” the client when recording wrong information in the client’s file, although the counsellor had initially recorded the true references in the same file, and later very different, false notes;
10. that WDHB’s service provider did all that was required from it, by simply adding particular “wording” (comments) by the complainant to his client file, after he complained about wrong information having been recorded in the file (see also ‘3’);
11. that the service provider (as part of WDHB) was reasonable in not offering an apology to the complainant, as it had found no indication of the counsellor having intentionally put false notes in the client file.

From the response by the Chief Ombudsman Dame Beverley Wakem, it can be seen, that she did (based on her investigating officer) only bother look at aspects of the administrative “process” followed by the HDC. It appears that she did not bother examining the sent in documentary evidence, which would have revealed that the HDC failed to consider very relevant information, and instead relied overly much on less relevant, even incorrect, untrue and illogical information. This means that the process can hardly have been objective, fair and reasonable.

By simply accepting the above listed points, and not questioning the HDC’s assessment of the conduct of the counsellor/s, and by instead relying primarily on the reports from the Chief Executive of the WDHB, Ms Wakem (based on her investigator) ignored important evidence that was presented to her. That evidence should have at least compelled her to conduct a formal, more thorough investigation into the HDC’s assessment and decision making. The Ombudsman’s Office had been presented with authentic copies of the complainant’s client file, showing how a counsellor first recorded more correct information, and only months later recorded contradictory and totally false information. It had also received authentic copies of emails to and from the HDC, proving that ALL the initial complaint emails from 08 August 2011 had been received and passed on internally, hence could not have “frozen” their computer system. Additional evidence documents showed recorded other important facts, and thus it should have been sufficiently clear, that the HDC could not have been right and could not have conducted a thorough, fair and reasonable assessment and investigation. As a result the HDC’s decision was flawed and not acceptable, but the Ombudsman failed to see this.

Re the 2nd complaint under the HDC’s reference C12HDCxxxxxx the following was simply accepted as “fact”, ignoring any evidence to the contrary, presented by the complainant:
1. that “ten” subsequent emails were sent to the HDC following/with the complaint letter, while the actual emails sent numbered 17, which a list of emails showed;
2. that the HDC “considered both the information” the complainant provided, and the doctor’s “comments in response”, although presented documents challenged this;
3. that the HDC was unclear, “whether the substantial documentation attached to the complaint letter had been sent”, while the doctor himself mentioned no attachments;
4. that the complainant had between 25 and 27 April 2013 “submitted considerable correspondence to the HDC”, although this was and is viewed differently;
5. that the Deputy HDC was reasonable in deciding that although the doctor’s style of communication was contrary to what the complainant stated, “further investigation into this matter will [not] provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment”;
6. that the HDC reasonably considered that “most of the concerns” the complainant had raised, “related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction”, while records contradict this;
7. that there was “nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had” to the complainant as a health and disability consumer, while factual info strongly indicating the opposite was ignored;
8. that the designated doctor’s record of events, his conduct and his style of communication was not in breach of the Code, while his comments contradicted the comments by the complainant, supported by well documented, supporting evidence;
9. that the complainant had allegedly been “successful” in his “appeal” against a Medical Appeals Board decision, based on HDC’s bizarre, untrue, unsubstantiated comments.

Like with the first complaint, the Chief Ombudsman appeared to reduce her assessment and decision on the complaint about the HDC’s handling of the second complaint by looking only at administrative process. Ample room for interpretation and discretion was allowed, to let the HDC off the hook, by considering the HDC acted “fairly” and “reasonably” in the circumstances, when conducting the assessment and forming a decision.

Again, the Ombudsman simply relied on the above listed points and ignored significant documentary evidence, that showed how the general practitioner, acting as a WINZ examiner and third party assessor, could not have been honest and correct in his comments in response to allegations made against him. The Chief Ombudsman, Ms Wakem (based on her investigator’s assessment), simply relied on information that should have been less relevant, and ignored very relevant information, provided to her. The general practitioner’s designated doctor report to WINZ revealed how he had failed to consider important information made available to him by the complainant as the assessed person, and how he completed a flawed report that was in stark contrast to reports from the client’s own doctor and specialists. Also did he lack the professional qualifications to competently assess a person with complex mental health conditions, suffering from addiction. The biggest mistake the HDC had made was to simply dismiss the complaint, by wrongly stating, the matter was better dealt with by WINZ or a Medical Appeals Board. Also had the HDC wrongly asserted that the client had been “successful” with an appeal to the latter. But the law clearly states that a doctor’s misconduct can only be considered under the Code by the HDC – or by an agency, authority or person that the HDC may refer the matter to. This is what the Deputy HDC had failed to properly acknowledge and consider, and when the Ombudsman looked at the HDC’s decision, she simply adopted the same view, while not bothering to challenge the HDC’s view and judgment, examining whether it had been objective, reasonable and fair.

This can only be explained by the Ombudsman and her investigator not having looked at the documents presented with the complaint about the HDC’s complaint handling under reference C12HDCxxxxx. The claim by the Ombudsman, that there was no reason to further investigate the matter, based on the above, and otherwise solely on the HDC’s earlier view that the medical practitioner’s view on his style of communication with clients was different from the comments by the complainant, appears to simply have been a convenient excuse to not bother with the complaint. One may suspect that it was simply a too “complex” matter to bother with, given the high work load and limited resources of the Ombudsman’s Office, and that the Ombudsman may have thought, the complainant was perhaps even a bit “frivolous”, “daring” to present two complaints against the HDC. Hence he was not taken too seriously. All in all, our impression is the Ombudsman, or rather her investigator, did not do a good, proper job.

 
 

PART 6 – THE COMPLAINANT’S OBJECTIONS TO THE COMPLAINT HANDLING AND DECISION AND HIS REQUEST FOR A REVIEW

 

Understandably very disappointed by the decision he received from the Office of Ombudsmen, which the complainant attributed to the flawed assessment, analysis and decision formed by the investigating officer, he soon wrote a response to the letter signed by Beverley Wakem. In the early morning on 16 June 2014 he sent off his response (with that same date) to the Ombudsmen’s email address. It consisted of altogether three emails with a formal letter and some 16 further attached documents. These included a copy of the response letter, plus evidence, including such proving that all his emails sent to the HDC on 08 Aug. 2011 had been received by that Office, thus contradicting his emails “froze” their system, and also listing all attachments sent in with his two Ombudsmen complaints.

He also sent a formal written response off by parcel post – at close to midday on 18 June 2014, containing the complete letter and lists of attachments he had already sent. That parcel post letter would be received by the Ombudsmen’s Office at 11:33 am on the following day, as a track and trace record would confirm.

In his response the complainant would present the following objections, his arguments and he would point out the various mistakes the investigator made, which led to the flawed, unacceptable decision. He asked the Chief Ombudsman for a review of the complaint and the decisions, which he expected to be done by another investigating officer.

A PDF file containing the authentic text of the 16-page response letter is found here:
Ombudsman, HDC, complaints, C11HDCxxxxx, C12HDCxxxxx, reply to dec., anon, 16.06.14

 

Here is the full transcript of the complainant’s response and request for review to the Chief Ombudsman, dated 16 June 2014:

 

Re: Serious objections to the handling of complaints under your Office’s reference 3xxxxx, by investigating officer Xxxxx Gxxxxx, covering issues I raised re the handling of complaints C11HDCxxxxx and C12HDCxxxxx by the Office of the Health and Disability Commissioner (HDC)

 

Dear Beverley Wakem – Chief Ombudsman

Thank you for your letter dated 28 May 2014, in which you presented me your Office’s decision to not investigate my above mentioned complaints about the unacceptable handling of issues that I raised with the Office of the Health and Disability Commissioner (on 08 and 09 August 2011 and on xx June 2012). Both these matters were for some reason dealt with under your Office’s reference number 3xxxxx. My complaints to your Office were recently considered by your investigating officer Xxxxx Gxxxxx. It appears that my complaints from 07 (sent 13) November and 16 December 2013 were only finally processed by Ms Gxxxxxx, after I followed up both my complaints by way of a phone call to your Wellington Office at about 11:30 am on 22 April 2014. I called your Office, because I had not received any response at all to my complaints, apart from an initial email acknowledgment on 14 Nov. 2013.

Despite of having left a voice mail message for your then unavailable investigating officer, there was again no response, hence I phoned her yet again at 10:30 am on 28 April 2014. Then she advised me that she had my cases before her, and would within two weeks respond by way of a letter authorised by you as Ombudsman. Due to still not receiving any letter, I was prompted to phone your Office and the responsible officer again a third time at 11:35 am on 26 May this year. I was then advised that there was a delay with preparing a letter, but that I should hopefully get it by the end of the same week. I can confirm that I finally received the response to both my complaints on Friday, 30 May 2014.

Upon reading that response, which was clearly prepared by Ms Gxxxxxx, and signed by you as Chief Ombudsman, I was indeed extremely disappointed, even shocked and dismayed. It was most certainly not the kind of reply I had expected, and it contains considerations, conclusions and explanations that are at least in part based on clearly incorrect information, that are inappropriate and not acceptable. Miss Gxxxxxx has obviously failed to understand, view and to consider very relevant evidence, and hence I must ask for a proper review of my complaints, by another investigator than Miss Gxxxxxx.

 

Your Office’s response, prepared by Miss Gxxxxxx – her general explanations

While I appreciate Ms Gxxxxxx explaining the role of the Ombudsman, I was already sufficiently informed about this, and well aware, that your Office would look only at the administrative handling, at processes followed and at how a decision may have been reasonably formed as a result of that, rather than treating my complaint as an “appeal”. I accept and acknowledge that your Office’s role is limited to considering aspects of fairness, effectiveness, and I presume also of the correctness and appropriateness, of processes followed by the Health and Disability Commissioner (HDC) and his staff. Also was I aware, and pointed this out in my own complaint(s) to your Office, that the HDC is the only authority that can and will under statutory provisions make any determination, whether a breach of the ‘Code of Health and Disability Services Consumers’ Rights’ (‘the Code’) occurred. I did never expect your Office to freshly investigate the actual core complaint matters in regards to alleged breaches by XXXX counsellors in one case, and by Dr Dxxxx Xxxxxxx in the other, as a Work and Income (WINZ) commissioned assessor in the other.

Perhaps some wording or formulations I used in my complaint letters to your Office did not make this clear enough, but I fully accepted that your staff would only look at whether the HDC Office had followed fair and reasonable processes, and whether decisions were reasonably formed and made by the HDC. I certainly had formed the view, and maintain my position on this, that the HDC acted in breach of natural justice and failed to apply fairness, reasonableness and objectivity in handling my complaints, and that is why I asked your Office to take actions as they are available under section 22 (3) of the Ombudsmen Act 1975. It is clear to me, that the scope and powers of the Office of Ombudsmen is limited to present reports and recommendations, and that they are not binding. Nonetheless, a recommendation is usually at least taken note of, and that would be worth achieving.

Having carefully read the response to both my complaints, which was prepared by Miss Xxxxx Gxxxxxx, I must inform you that I firmly disagree with her assessment, analysis and conclusions. I do in particular take issue with the following points:

 

Re Miss Gxxxxxx’s response in relation to both complaints

While it was one of my concerns that the Office of the Health and Disability Commissioner (HDC) was evidently under-funded, was struggling with limited resources and was at least during the handling of my complaints C11HDCXXXXX and C12HDCXXXXX dealing with a too high work-load for their staff, this was certainly not my only concern. It is therefore not acceptable that Miss Gxxxxxx merely states (supposedly based on my “claim”): “that the HDC decided to take no further action on your complaints because it was under financial constraints and had an increased workload.”

This diverts attention from the number of other genuine concerns I stated in both my complaints to your Office. These included the Health and Disability Commissioner’s –
● refusal to accept my email submissions sent re complaint C11HDCXXXXX on 08 Aug. 2011
● failure to consult with me to resolve questions or issues regarding relevant submissions
● failure to fairly, objectively and reasonably consider provided, relevant evidence
● failure or reluctance to obtain particular information from involved parties (incl. third parties)
● refusal to consult the Mental Health Commissioner in dealing with my complaints
● refusal to take action upon my complaints, which under existing legislation denies me justice
● practice to put discretion to take action – or not – before the adherence to natural justice
● insufficient consideration to how breaches of ‘the Code’ affected me health- and otherwise
● non-action on wider concerns re access to justice by complainants in general

 

It is disappointing that Miss Gxxxxxx appears to have focused on just the above quoted one of my concerns in determining why the HDC may have decided to take no further action on my complaints. I have realised that Miss Gxxxxxx regrettably failed to consider important, relevant submissions and crucial evidence that was sent with my complaints. Instead she appears to have simply read only some of the correspondence between the HDC and myself, as well as the few, limited responses from the respondents to my HDC complaints. Without viewing other provided evidence, it was impossible for her to assess what would be relevant, and what may not have been, to be considered by the HDC.

I do not accept the comment by Ms Gxxxxxx in the letter she prepared for you to sign, where she claims in the fifth paragraph on page 2: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” As Miss Gxxxxxx did apparently not read email 8 of the 29 emails I sent to your Office on 13 to 14 Nov. 2013, she failed to realise that a staff member of the HDC Office actually responded to the 30th email sent by me on 08 August 2011, and confirmed that ALL emails had been received and actually passed on to their Complaints Assessment team! To reply to that email with 7 attachments of an ordinary size and type, it was necessary to open it and read it, which happened without problems, and this proves that Miss Gxxxxxx blindly accepted incorrect claims by HDC staff that I will prove wrong!

What Miss Gxxxxxx also failed to understand was, that despite of a large volume of evidence that was presented, particularly with the first complaint to the HDC (C11HDCxxxxx), there was only part of it of primary, direct relevance, and a fair bit of it of a secondary relevance, the latter being provided only to ensure the HDC would have all information available, in case information needed to be double-checked against the primary evidence, or the submissions I made in the complaint letters themselves. A good assessor and investigator would have established that, and worked their way through this. In any case, some evidence from third parties was also crucial to view, in order to properly assess and understand the whole scope of points (breaches of the Code) at issue, and what wider implications they do have also for other complainants. I was very precise in my complaint letters to the Office of the HDC, stating and explaining clearly the breaches of the Code, and providing more than sufficient references to sources of evidence in particular documents that I also provided, especially my XXXX Xxxx client file, but also other sources. It is simply bizarre, that the HDC accepted without any questions certain statements by respondents, where for instance in one case (of a number of cases) clearly documented, but untrue and incorrect information was alleged to perhaps having been put into my counselling file – due to their (XXXX) staff having “misheard” comments I made. HDC staff never properly read, questioned, examined and correctly assessed that and other made available information, which is totally unacceptable.

I will in the following address these and other matters by responding to Miss Gxxxxxx’s summary report, her considerations, conclusions and decisions on each of the two separate complaints.

 

Re Miss Gxxxxxx’s assessment and decision on “the first complaint”

1. Staff at the HDC Office lied about reason why initial complaint was not accepted

I must inform you that I have recently checked and researched once again all initial correspondence that was sent by email from me to the HDC Office on 08 August 2011 (and the days following), and what was sent to me by the HDC staff in response to this. It can now be proved beyond any doubt, that the HDC staff were being dishonest and lied, when claiming the submissions received from me by way of emails “froze” their system, so they could not open the emails and attachments “due to size”.

I will present to your Office PDF files containing the scan copies of printed out emails, which I am still keeping as originals in the in- and outboxes of my ‘Yahoo…’ email account. These PDF files will be attached to emails carrying this response to your Office. They will contain authentic email text and details, for the emails sent by me to the HDC Office and for the ones that I received from their Office. The documents prove Mr Axxxxxxxx Lxxxxx wrong; who phoned me close to midday on 09 August 2011, and claimed they could not open and process my emails, as according to him they “froze” their system. The information contained in the emails prove wrong the comments made by Deborah O’Flaherty, Complaints Assessment Manager at the HDC, who claimed in a letter to me, dated 16 May 2012: “In your recent correspondence, you have made reference to comments made in your original, “full” complaint. You were clearly advised by Mr Lxxxxx in your phone conversation on 09 August 2011 that your original complaint, as submitted, could not be opened on our computer system due to its size, and that you would need to submit a more concise version. The Deputy Commissioner’s examination of your complaint is based on this revised version, dated 9 August 2011, along with the attached documentation.”

As I was on 08 August 2011 spending hours into the early morning sending off the range of emails covering a complex complaint matter, which could never be addressed by just looking at a suggested 2-page “summary”, the last email number 30 to the HDC Office in relation to complaint C11HDCxxxxx was sent to their Office at 04:11 am in the early morning of that day. It had 7 PDF files attached, all of which were of a standard ordinary size, ranging from 400 to 3,000 KB (kilobytes). That total email was about 8 MB (megabytes) in size, hence it was of a typical size like all other single emails, ranging between about 6 to 8 MB. Only emails 3, 4, 5, 6, 7 and 9 had a maximum size of about 9 MB. So email 30 was an average size email, with ordinary PDF files containing scanned documents. The inbox of the HDC Office’s computer system allowed the receipt of up to about 10 MB size emails.

After sending in the number of emails, I did at about 03:10 pm later in the afternoon on 08 August 2011, send in a short email, asking the HDC Office staff to simply confirm receipt of the emails – plus attached documents. That follow up email did also have the last email 30 with all 7 PDF files attached. Like all other emails it went through and was thus received by the HDC Office. I did at 04:26 pm on that same day then receive an email from Kerry Norman, Executive Assistant, clearly confirming that ALL my emails had been received by their office, and that they had been given to the Complaints Assessment Manager for consideration. The Complaints Assessment team would be in touch with me in due course, the email further stated. The response thus received from Kerry Norman had the last email from me attached to it, albeit without attachments, which is the normal way in responses. There was NO mention of any problems with opening, downloading or otherwise processing the emails. It is clear that the staff member was able to open the email from 03:10 pm, to read it and respond to it. If the system would have “frozen”, this would never have been possible and no reply would have come. The reply from Kerry Norman did further below also have my earlier email from about 04:10 am (email 30) attached! Upon the receipt of that email, I did at 04:46 pm on 08 August 2011 send an email to the HDC Office, thanking for the confirmation just received.

Following Official Information Act (O.I.A.) requests to the HDC Office I later received a “triage meeting” and “NEW COMPLAINT (TRIAGE)” form, which reveals that there was apparently a file opened on 08 August 2011, and likely also a triage meeting held. But no information was entered in the form for 08 August, and only on 11 August was the remaining form completed, which only included information based on the “summarised” complaint, which I was forced to reluctantly prepare upon Mr Lxxxxx’s comments that they could not process my initial complaint, as the emails allegedly “froze” their system.

Apart from that phone call from Axxx Lxxxxx at midday on 09 August 2011, and the confirmation email from Kerry Norman, there was no further correspondence or communication that came from the HDC Office, except a letter from Michelle Smith, dated 15 August 2011, confirming my emails (the ones sent 10 August) were received on 11 August. It merely stated my complaint was being assessed, and that I would be contacted again. There was no mention of which of my earlier emails I sent may have been accepted or not. So I simply concluded that the HDC Office had received all my earlier emails, and was after all able to process at least some of the relevant information, given it was all of normal size and types. I expected to be contacted again, should the HDC require further information or any clarification on received information, during or after completion of an assessment. As I expected that such complaints would take a fair bit of time, I did not follow it up and waited to be contacted again.

The evidence available shows, that my earlier suspicions were justified: The HDC staff did not tell the truth, when they told me that my emails could not be opened, because they “froze” their system, “due to size”. I was simply being lied to, and it appears that some staff members at the HDC Office were simply unwilling to process, assess and investigate a complex complaint matter. It appears the assessors did not even bother to read any of the initial complaint submissions, and therefore made no efforts to consult me on it. Instead they gave me incorrect information, tricked and pressured me into re-submitting a far too short complaint, which though contained my statement that it must be viewed together with earlier submitted information. My initial submissions were though simply ignored, probably deleted – as no longer considered relevant. The focus was only on the unreasonably obtained, far too abbreviated, insufficiently descriptive complaint summary, while my reference to earlier presented evidence was also conveniently ignored! Given the documentation of the false claims by HDC staff, like for instance in the letter from Deborah O’Flaherty to me (from 16 May 2012), it must reasonably be presumed, that at least Deputy HDC Theo Baker was well aware of what was going on.

Consequently Miss Gxxxxxx was also misled by the wrong information stated and quoted repeatedly by the HDC Office and their staff, and her following assertion (in the letter prepared for you to sign) is proved as absolutely wrong: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” Given the new evidence I am presenting, your staff must surely review their position.

This is a very serious matter and it is my firm view, that it must now definitely be investigated by your Office. It is my impression that Mr “Axxx” Lxxxxx, who told me the lies, worked at the HDC Office only for a temporary period. I only had to deal with him twice. Given his unconvincing, dishonest conduct towards me as a complainant, I conclude that he was not performing his duties as expected, and either was asked to leave the HDC Office (being given notice), or he did so on his own accord, realising his limitations. I later also learned that other staff members had left during the time my complaint was handled. In 2010 there was a change of Health and Disability Commissioner, when Mr Anthony Hill commenced in this role. My described experiences, combined with the earlier change of internal leadership, indicate a probably high staff turnover in their office at that time. It should be part of your investigation to establish what really happened. I can inform you that the HDC Office did upon O.I.A. requests also only provide me with a transcript of a phone conversation Mr Lxxxxx had with me on 13 December 2011. There was never a transcript provided covering the conversation we had on 09 August 2011. It appears to have been withheld or destroyed, following highly questionable motives.

 

2. The HDC’s request for a “summarised” version of my complaint C11HDCXXXXX

In your letter, which I understand was prepared by Miss Gxxxxxx, it is quoted (bottom page 2): “However it seems to me that the HDC was reasonable to ask you to provide a summary of your concerns and to advise the WDHB that not every point had to be addressed – given the large number of issues raised”. “The HDC went through the material you provided and sought responses the HDC deemed relevant to his consideration of the complaint. You will be aware that the HDC has discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose.”

It was indeed a major concern that I had about the handling of my complaint by the HDC (being about the treatment received from two XXXX counsellors, see their reference C11HDCxxxxx), that the HDC Office staff failed to consider all the submissions and evidence that I considered of relevance. Xxxxx Gxxxxxx is wrong when she asserts that I expected the HDC Office staff to consider ALL the material and evidence I originally submitted on 08 August 2011, without any qualification. What I expected the HDC to accept and examine was all relevant information, as I stated in the bottom paragraph in my letter to the HDC of 27 March 2012. Initially I simply submitted the substantial amount of evidence, wanting to ensure all information was available to conduct potentially necessary extra checking with additional evidence documents. Naturally all documents would have had to be viewed, and the HDC would then be able to decide about the level of relevance. Where there may have been doubt, I expected to be consulted on what would ultimately be relevant. There was a fair amount of directly relevant documents with evidence, and there was a lot of evidence of a secondary or even lesser type, simply to offer information, should questions arise re facts stated in letters and primary evidence.

In the reluctantly prepared summary of the same complaint, which the HDC Office staff pressured me into providing, given the already mentioned false claims, I stated in my complaint from 09 August 2011, that my complaint must be viewed with the already supplied information. The main emphasis was on the comprehensive 40 page complaint letter, relevant extracts from my client file, and a number of other documents. I made reference to this, as I did not believe the claims by the HDC staff member called “Axxx” that they couldn’t open and download any of the emails and attachments I had sent them, which were all sent in usual, reasonable size formats and lots.

If there would have been any issues with accessing any of the earlier sent emails and attachments, I expected the HDC to contact me, to clarify what files may ultimately be relevant, and which they may have needed me to point out, or resend, if not by email, perhaps by way of post. But no efforts were made by the HDC Office staff, to clarify this, hence I presumed they could access the information sent earlier after all. For further reference, please see my submission under paragraph [2] in my letter to your Office dated 07 November 2013. It was only upon receiving a letter from the HDC’s Complaints Assessment Manager dated 16 May 2012, that it was finally made clear, that the HDC had only assessed and processed the information I sent them on 09 and/or 10 August 2011 (see paragraph [8] in my complaint to your Office). As I already mentioned under Point 1. above (page 3 of this letter), Deborah O’Flaherty falsely claimed in her letter that my original complaint could not be opened on their system “due to its size”. It was “not practicable to read each attachment in its entirety”, she furthermore wrote. She also wrote that they would “not have the resources to process this amount of information”, when referring to some further emails I had sent with information since then.

While it would of course have been reasonable to expect clarification from me about actual relevance of documentary and other evidence, the primary evidence, and references to sources that prove facts (e.g. the client file at XXXX), were clearly pointed out in my main complaint letter dated 08 August 2011. The letter was 40 pages long, partly because in it I quoted a lot of information from my client file at XXXX Xxxx, while at the same time referencing this to events, dates file pages and so forth. It contained detailed reports and explanations, but was well structured. I have no doubt that the HDC Office staff were able to open all emails from 08 August 2011, and to download the PDFs with scanned pages of the main complaint letter, the identical text of which was also contained in the first email sent at about 03:10 am on 08 August 2011. As they simply could not bother, they decided to mislead me into believing the emails would “freeze” their system, so I was given no option to discuss anything about the initially sent submissions, and was rather pressured into submitting a totally new “summary complaint”, which Mr Lxxxxx actually wanted in only 2 pages! It is impossible to cover the breaches that occurred, and the background, in such a short space. In my summary complaint I was unable to provide any significant amount of information and references, and hence I had to ensure that the HDC would after all make an effort to consider what was already sent.

While the HDC does under section 14 (1) (m) of the Health and Disability Commissioner Act 1994 have some discretion in the gathering of information to assist him in carrying out his functions, we are here not simply talking about “gathering” such. I presented the information as part of my initial complaint. There was no discretion for the HDC to decide upon “gathering” the evidence, as it was presented to the Commissioner and his staff. In this context it is worth to also consider other responsibilities of the HDC, namely the one covered by section 14 (1) (da) of the HDC Act, where the Commissioner acts as the original recipient of complaints, and where he is also held responsible for ensuring that each complaint is appropriately dealt with. I dare to suggest that in my case, especially now, given dishonest conduct by HDC Office staff, the HDC has the responsibility to investigate, on complaint, actions that appear in breach of the Code, as he is able to under section 14 (1) (e). There was already sufficient reason for the HDC to seek information from the Waitemata District Health Board (WDHB, responsible for XXXX) in this matter, after simply looking at the summarised complaint. Had the HDC looked properly at the original complaint and submitted evidence, he would have found compelling reasons to further investigate the complaint matter, seeking yet more information.

Therefore I do not accept that the discretion of the HDC leaves it open only to his “opinion” to gather information he deems (in subjective terms) necessary to assist him carrying out his functions. The requirement to ensure that a complaint is appropriately dealt with, certainly where the Commissioner assesses and/or investigates a complaint, requires that discretion must be applied within reason, fairly and in a balanced manner. The HDC is after all required to follow natural justice, and that applies to assessments of complaints as well, and deciding about what evidence may be gathered or considered of relevance, must surely also be decided on the basis of how this should be done by following principles ensuring procedural fairness. When substantial relevant evidence is supplied, it does under natural justice mean, that a substantial response to it should also be asked for, from the other party. At least all crucial, salient information must be extracted and summarised, in order to sufficiently represent the core points at issue, and then must be presented to the other side to respond to. It is not in line with natural justice, to selectively pick only bits of information and evidence relating to alleged breaches of the Code, and then only ask for a “general overview” of the complainant’s treatment.

I may also quote section 6 and the ‘Purpose’ of the Health and Disability Commissioner Act 1994:
“The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.” While I accept, that it should be important to try and facilitate a simple, speedy and efficient resolution of complaints, I would argue that in some cases, where the complaint matter at issue involves complex situations, developments and involvements of parties, there must be exceptions made, so that also more complicated complaints get processed fairly. It appears, by mentioning the word “fair” in the beginning of that provision, that it must be a priority to handle, address and resolve complaints in such a manner. As your letter rightly states in the second paragraph on page 2, the HDC is “the only authority capable of determining whether a health professional has breached the Code”. That being the case, does in itself give a compelling reason to ensure that the HDC must act highly diligently, conscientiously and responsibly, within the legal framework, to ensure complaints are above all taken seriously and are treated fairly.

As the HDC staff were not being honest, by telling lies about a complaint sent by email not being able to be processed and assessed due to their computer system allegedly “freezing”, this actually takes away any right the Commissioner may normally have, to argue about reasonableness to ask for a “summary” of a complaint. Suggesting a “summary” complaint is needed for falsely given reasons, and by making misleading statements, that does not justify the HDC to defend himself and his staff against any other criticism I was forced to direct at them. It would perhaps have been a different story, had the HDC staff been dealing with me honestly and openly about their motives, and had they themselves made reasonable efforts by at first looking at what they had received in the way of my complaint on 08 August 2011, but that did not happen. The argument for justified “reasonableness” in the HDC’s actions, delivered in your letter, prepared by Miss Gxxxxxx is therefore fully dismissed!

Miss Gxxxxx’s comments, that the HDC did “review” my file when I expressed that I did not accept the decision by Deputy Commissioner Theo Baker (from 24 February 2012), and again later, do neither resolve anything, nor justify anything the HDC did wrong from the beginning. Repeatedly reviewing only the summary complaint and evidence cannot lead to a satisfactory outcome, given what happened on 09 August 2011. Instead the HDC should have consulted with me, what of the originally sent information was after all relevant to consider, but they did of course not even want to go there.

 

3. The HDC’s selective handling, assessment and consideration of evidence

In your letter (prepared by Miss Gxxxxxx.”, see the 3rd paragraph page 3) you state: “I appreciate that you remain dissatisfied with the HDC’s decision to take no further action on your complaint but it is not clear to me that in making that decision, the HDC failed to take all the information into account.”
I also read: “However, given the amount of material you submitted to the HDC, it seems reasonable for the HDC to have summarised key points, in order to assess the material efficiently and fairly.” “The fact that the WDHB was not asked to consider every detail presented in the hundreds of pages you submitted to the HDC does not indicate that the relevant material was not considered by the HDC.” “There is nothing in the material I have seen to indicate that the HDC’s decision was based on “inadequate consideration of the facts”.”

Firstly these comments appear to be somewhat contradictory to earlier ones. On page 2 in your Office’s letter Miss Gxxxxxx accepted – on false advice by the HDC Office staff – that their systems ‘froze’, so they could not read or download the initially sent complaint by way of 30 emails on 08 August 2011 (the bulk of them each carrying just a few documents as attachments). On page 3 of the letter Miss Gxxxxxx prepared for you (dated 28 May 2014), she then writes about “hundreds of pages” that I submitted (chapter/paragraph 3 on page 3). The fact is, that I later saw a need to provide more and also newly acquired evidence, as I then realised, after receiving the HDC’s letter from 16 May 2012, that the Office was only processing the “summary complaint”. There were a number of emails I sent in to the HDC Office from March 2012 onwards, but they and attachments were in my memory certainly not “hundreds of pages”. It does seem that Miss Gxxxxxx suddenly contradicts herself, compared to earlier conclusions that she drew. But this aside I must address the following.

The HDC can gather information in an apparently less formal way, but also apply provisions under section 62 of the Health and Disability Commissioner Act. It appears that section 62 is rather only used in the course of conducting formal investigations, which regrettably in my case was refused to be done. Instead the HDC simply asked for information from the Waitemata District Health Board (WDHB), at the first instance to simply provide a “general overview” of my care (letter fr. 06 Oct. 2011).

Under paragraph [38] in my complaint to your Office I listed the summarised points at issue with the handling of my complaint by the HDC, and this included under paragraph [38a] that it should have been reasonably expected that the HDC sought advice and clarification from me, what of the previously sent evidence I would consider of absolute relevance in the matter, so they could then have a look at it. The HDC did nothing at all to consult me to establish this, and simply ignored any of my repeated concerns and proceeded to only look at what information they felt may be relevant, and that was bits mentioned in the summary complaint from 09 August 2011, and again only parts of evidence I presented. Indeed I have no evidence that the HDC looked at much evidence at all, apart from my letters, at insufficiently read and analysed notes in my XXXX file, and what the WDHB stated.

Miss Gxxxxxx simply accepts that it is “reasonable” for the HDC to suggest to the Waitemata District Health Board (WDHB) that they need not respond to each individual issue raised (in my complaint), but rather “provide a general overview of his care”. I take issue with her conclusion and decision on this aspect, as my complaint was not about my “treatment” and “care” as a whole, it was about specified breaches of the Code! Every “issue” I raised with my initial complaint from 08 August 2011 was well defined, individually listed, described and stated, and related to the Code the HDC is supposed to monitor, uphold and enforce. While I listed breaches also of the Code of Ethics of the Addiction Practitioners’ Association Aotearoa – New Zealand (DAPAANZ), these were largely also overlapping with the consumers’ rights contained in the Code. It is highly irresponsible to allow a respondent in the form of a health or disability services provider to simply evade any accountability and responsibility, by not asking them to answer to clearly defined breaches, and by instead offering a wide discretion, to provide a generalised form of a response, like an “overview” of a person’s care.

It appears that all that the WDHB was first sent by the HDC Office – alongside their letter from 06 October 2011 – was my “summary complaint” letter from 09 August 2011. It does not appear that any of the attachments to the three emails I sent the HDC on 10 August 2011 were provided. To allow WDHB to respond with merely a “general overview” does certainly not sufficiently answer to the specific, detailed and explained breaches of the Code that I had stated in my original 40 page complaint from 08 August 2011. The information in the summarised complaint was not that comprehensive at all, and did not go into any specific details, apart from two of Mxxxxxx Sxxxxxxxx’s wrong file record entries. These were not submissions of a large volume at all, that WDHB were sent. The summarised complaint missed most of the detailed information in the original complaint, and it was consequently insufficiently representing the various stated points or breaches at issue.

As a phone conversation transcript from the HDC shows, dated 20 October 2011 (11:58 am), Mr Lxxxxx gave in to some pressure by WDHB’s Counselling Manager Wxxxxxxx Txxxxxxxx, by allowing WDHB to not supply much in the way of records after all (apart from the client file notes kept on counselling meetings). Mr Lxxxx merely asked for a “high level summary of his care/concerns, and the clinical records necessary to support this”. None of the many letters dealing with complaint issues that existed from me and WDHB – or rather XXXX staff – were made available, which would have revealed much more in the way of problems that occurred with XXXX counsellors! In view of this I ask, how much “summarising”, and “abbreviating” of information is reasonable, where a complaint matter is actually quite complex? The overly summarised complaint that was in the end assessed and further processed made it impossible to properly address the breaches I wished to be dealt with.

In this regard, I can only consider Xxxxx Gxxxxxx’s conclusions and decision on the issue of discretionarily accepted evidence as flawed and unreasonable. Even the initial complaint did not really cover a “large number of issues”, they were a limited number of issues, just explained and presented in a rather comprehensive, detailed form, and also referenced to events, sources, the law and so forth.

Miss Gxxxxxx then writes on page 2 that in her view it was reasonable for the HDC to proceed as he did, by going through the material I provided and seeking responses “the HDC deemed relevant to his consideration of the complaint”. She writes that the HDC has “discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose”. Miss Gxxxxxx also writes that the HDC agreed to review the file after I expressed my dissatisfaction with the decision (dated 24 February 2012) “and gathered further information from WDHB”.

She ignores though the fact, that when acting upon my letters dated 27 and 29 March 2012 (with additional evidence documents), in which I sought a re-assessment of my complaint, Deborah O’Flaherty did (on behalf of the Deputy HDC) in her letter dated 16 May 2012 only present the same, slightly reworded summary bullet points to CEO Bramley of WDHB, as Theo Baker had used in her decision dated 24 February 2012. These had been extracted from the summary complaint dated 09 August 2011, which had already been presented to WDHB before. The bullet points only insufficiently described the points at issue from my summarised complaint. With just minor amendments, the HDC was simply asking for a further position on points already presented – yet again. It appears that neither of my letters from 27 and 29 March 2012 was attached to that letter. That can hardly be seen as gathering further information in addition to what had already been asked and received. Not surprisingly, although this time offering more detailed (yet partly incorrect) answers, WDHB’s CEO did not deliver that much more in the way of answers to the alleged breaches, and merely reiterated a lot.

There was no question asked by the HDC about the particular complaint I had then recently added, that my own doctor contradicted a note Lxxxx Xxxxxx as XXXX counsellor entered into my client file on 22 Dec. 2010, claiming my doctor had told her I was sending him an email every day. This was untrue, and my doctor did not even remember a call from Miss Xxxxxx then, and his own file records showed NO record of such a phone call, which he would have kept. This was just one matter that was never raised and addressed by the HDC (see my letter from 29 March 2012, part E, pages 4 and 5). Not confronting XXXX staff with the evidence will naturally not lead to them being held accountable!

It was by the way Deputy HDC Theo Baker herself, who reviewed my file again, which needs to be noted. It must be doubted that she would have applied much scrutiny to her own earlier decision.

Miss Gxxxxxx asserts that “furthermore, it is apparent that the HDC considered all the emails you sent in early 2012, most of which contained large attachments”. She also quotes from the HDC letter dated 16 May 2012: “out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible”. She fails to appreciate, that the matters dealt with were complex, and could only be fully understood, assessed and evaluated by looking at substantial information and evidence that I provided with my original complaint. That one though had of course never even been considered! Apart from that I did later make every effort, to keep correspondence precise and more concise.

Xxxxx Gxxxxx then refers to another review of my file in late 2013, which followed the second decision letter from Deputy HDC Theo Baker from 14 June 2013, in which she again decided to take no further action, and she quotes from a letter from Associate Commissioner Katie Elkin dated 05 Oct. 2013, “that the HDC can decide to take no further action on a matter and that this discretion is exercised “only after careful assessment of all relevant information”.”

Ms Gxxxxxx continues and states that “it is not clear to me that in making that decision, the HDC failed to take all the information into account”. She also writes: “There is nothing in the material I have seen to indicate that the HDC’s decision was based on “inadequate consideration of the facts”. At the end of her deliberations on the “first complaint” she points out the provisions under section 14 (1) (m) of the Health and Disability Commissioner Act 1994, which states that the HDC may “gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s functions under this Act.” She lastly writes that the HDC is under no obligation to interview witnesses. I question again, how can too wide discretion ensure that complaints are dealt with “appropriately”? Once more I may recall section 14 (1) (da) and (e), qualifying how discretion may need to be applied.

In your Office’s letter to me, Miss Gxxxxx only refers to my further emails received by the HDC in early 2012, which according to her were given consideration. She does not mention, nor does she appear to have given any consideration to information I provided to the HDC Office by way of emails, letter and attached documents on 05 August 2013 and shortly after. As pointed out in paragraphs [38b] and [38e] of my complaint letter to your Office dated 07 Nov. 2013, and although this information was presented after the two decisions by Miss Theo Baker on complaint C11HDCxxxxx, to take no action, it was highly relevant and revealing information requiring consideration as part of a further review.

In this first complaint the WDHB’s Dale Bramley relied on reports from Mr Wxxxxxxx Txxxxxxxxx as XXXX Counselling Manager and direct employer of the counsellors complained about. Also did the HDC rely on the information presented by Mr Txxxxxxxxx from XXXX (see the phone transcript from 20 October 2011 by Axxxxxxxx Lxxxxx – and see documents eventually sent to the HDC), same as the HDC relied on responses from Dr Bramley, that were at least partly based on statements and information provided by Mr Txxxxxxxxx.

As the direct employer of Mr Sxxxxxxx and Miss Xxxxxx, Mr Txxxxxxxxx did all to divert attention from complaints that I had made about some XXXX staff before, and about correspondence I had with him in that regard. Mr Txxxxxxxx also put implied pressure on HDC staff member Mr Lxxxxx, to not have to send all information they had on me to the HDC, so he could limit it to the counselling file and little else more. His attempts were clearly to protect his staff and himself, in which he naturally had an interest. See attachment 6 to my email (number 27) to your Office from 23.52 h on 13 November 2013.

A separate complaint on the same breaches and issues, but based on the ‘Code of Ethics’ for their professional organisation, was also made by me to the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (DAPAANZ) on 31 May 2012. I filed a complaint with that organisation as both XXXX counsellors were also members of the organisation, and because I started to realise that the HDC may not assist with coming to the expected decision to actually investigate the breaches against their Code. My emails from 05 August 2013 and a letter by post from 07 August 2013 informed the HDC Office about information that would show how Mr Txxxxxxxxx, who was not only the employer of the respondents, but also was and apparently still is the Chair of the DAPAANZ Executive, interfered in the complaint resolution process of their own Executive’s appointed ‘Professional Standards Committee’. Emails finally released with the help of the Privacy Commissioner reveal this, same as how Counsellor Mr Sxxxxxxxx was “stone walling”, and was later assisted by the Committee members, to give the very answer he needed to give, to get off the alleged breaches claims I made against him.

Mr Txxxxxxxxx did not only deliver his “advice” as employer and WDHB staff member on matters in that complaints handling process, he conveniently used the fact that the HDC had not investigated the two employees of his, as a defence for them before the DAPAANZ complaints panel. This is to my understanding a breach of process and a serious matter, which was relevant also for the HDC to take into consideration, as the HDC himself gave Mr Txxxxxxxxx credit for providing information on his staff.

Yet neither the HDC Office, nor now Miss Gxxxxxx at your Office, has seen any need to investigate this and much other evidence I provided. It is in my view nothing short of scandalous, how counsellors committing professional misconduct, are protected and let off without any consequences, by the HDC and also the DAPAANZ! In order to appropriately assess and decide on complaints, evidence that in its type, form and nature is more than apparent to be of relevance, must surely be given consideration, as otherwise any assessment or investigation becomes a farce.

As I already stated further above (see from bottom of page 5 to page 6) it is not acceptable to interpret section 14 (1) (m) of the Health and Disability Commissioner Act 1994 too liberally, allowing the Commissioner such a degree of discretion and freedom to seek and assess information merely based on an “opinion”, ignoring natural justice principles like reason and fairness, and due diligence to be followed in executing his duties. Other responsibilities of the HDC, like the one covered by section 14 (1) (da) of the HDC Act, requires the Commissioner to act as the original recipient of complaints. He is responsible for ensuring that each complaint is appropriately dealt with. I believe that in this case, especially given the dishonest conduct by HDC Office staff, the HDC has the responsibility to investigate actions that appear in breach of the Code, as he can under section 14 (1) (e).

Miss Gxxxxxx does not appear to have properly looked at and examined the additional evidence I supplied in the form of a range of relevant documents attached to emails carrying my complaint letter to your Office. She could only herself have properly assessed the handling and processing of my complaint and submitted information, had she also assessed the quality and contents of crucial evidence that was presented to the HDC Office attached to email letters I sent. Therefore it appears Miss Gxxxxx has based her assessment and decision almost solely on correspondence between HDC and me, which has not given her the full picture. She is overly relying on comments the HDC made in correspondence to me, some of which I quoted earlier, and sadly she gives insufficient consideration to the convincing information and arguments I presented with presented documentary evidence. As I have again checked what documents that I had sent with my complaint to your Office, it appears that Miss Gxxxxx did not even view most of the files I sent in with my emails, hence her flawed decision.

It was – and still is my view, that it should have been necessary for the HDC Office staff to seek responses and evidence from certain directly involved persons and witnesses (also third party witnesses), to attempt to get clarification on important details in relation to my complaints. I do in this regard refer you to ponder my point raised in paragraph [38c] in my complaint to your Office.

In order to conclude, in essence, in this complaint matter C11HDCXXXXX, the HDC did initially only seek a response from WDHB in the way of a “general overview” of my care (letter from 06 Oct. 2011), which was based on the summarised complaint from 09 August 2011. Later on 16 May 2012 a second response was sought, listing very similar bullet points that Theo Baker as Deputy HDC had also listed in her decision to take no action from 24 February 2012. It was merely a reformulation of short listed issues that had been found in my summary complaint from 09 August 2011. But at least they were then later expressed in the letter seeking a response.

What never appears to have happened was, that the partly incorrect, otherwise incomplete, also contradictory and thus misleading, defensive responses by the CEO Dr Bramley from WDHB (from 26 October 2011 and 06 June 2012) were never properly checked against the information in my XXXX counselling client file, and against other evidence I had made available, and definitely not against the information that I had made available on 08 August 2011, which was never looked at and most likely deleted. WDHB’s responses appear to have been taken at face value, and the CEO of WDHB was given credit for his summarised, succinct comments, whether they were correct or not, and my mostly clear, black on white type of evidence was simply discarded and dismissed. Theo Baker simply accepted the WDHB version that mistakes in my counselling file were most likely made due to Mr Sxxxxxxxx as my counsellor having “misheard” something. That is absurd, as he recorded certain information correctly in the beginning, and then changed the information in other entries months later. Hence the Deputy HDC did not even bother to properly read the XXXX counselling file entries, as she would then have picked this up. Miss Gxxxxxx has in her “assessment” failed to check relevant details in the same XXXX file and other documents herself. With regret I must presume that she followed Theo Baker’s conclusions and flawed reasoning, giving more credit to a CEO of the WDHB, than to an affected beneficiary suffering from mental health condition, no matter how much evidence he provides.

Theo Baker took over a year to “complete” her assessment, and then send her second final decision (from 14 June 2013) to me. It had a final response from WDHB attached to it, which was already OVER one year old. It is beyond belief, that nothing was done about my complaint for one year, and then – in June 2013 – Miss Baker suddenly sees a reason to present her final decision, without any further evident analysis and investigation having been conducted in the meantime. This betrays a rather dismissive attitude towards the whole complaint. As stated earlier, it is my impression that Miss Baker was informed about the lies I was initially told by other HDC staff members.

As that same dismissive approach was evident in the earlier decision by Theo Baker, did I respond with my letters from 27 March, 29 March 2012 outlining the true scope of my complaint, the contradicting and wrong information presented by WDHB, and further explained my position while also providing some further relevant evidence. I was upon the second decision by Theo Baker prompted to ask for a review of decision on 25 June 2013, stating the reasons for this. Much of what I wrote in my letters was reiterating issues that I raised before. But I did of course also add further, newer evidence, which should have been considered, but never really was. Once the complaint was in the hands of the HDC legal department and Katie Elkin, the HDC and staff were only interested in defending their earlier positions, and simply not prepared to honestly review the complaint or new evidence again.

 

4. The HDC’s lack of resources

As I already commented on page two in this letter (re your Office’s response to my complaints, prepared by Miss Gxxxxxx), it is very clear that the HDC lacked financial and other resources, which Complaints Assessment Manager Deborah O’Flaherty openly admitted in her letter from 16 May 2012. She wrote: “We have received more than 12 emails from you since March 2012, most of which contain large attached files. As you have already been advised, we do not have the resources to process this amount of information, and it is simply not practicable to read each attachment in its entirety”.

These “large” files may have appeared “large” only due to them being scan copies of documents, which due to my scanner are converted into “byte” large PDF documents, they were of ordinary types and sizes, and of page numbers that any offices should ordinarily be able to cope with. It was again due to the fact that my initial complaint from 08 August 2011 had not been accepted, that I felt a need to keep the HDC informed about further relevant information, which would need to be considered as evidence. There were also some ongoing developments directly relevant to some issues covered by the complaint C11HDCXXXXX, which resulted in more information becoming available by the month.

With my letter to your Office from 07 Nov 2013 I provided you with a reference to some available evidence quoted in a media report on 1ZB (see paragraph [38f]) from 24 July 2013, which stated that the HDC Office was under serious financial pressures. This is certainly not a new situation.

I have seen through the handling of my complaint(s), and through reading and hearing other reports, including annual reports by the HDC, that the HDC Office has been struggling to cope with its effective operation, and the letter by Ms O’Flaherty only confirms what I have known for some time. While funding may be beyond the control of the HDC, it is unacceptable to a complainant like me, to be treated the way I was, simply because resources are lacking. As this leads to more persons being denied justice, this is a matter that I would have thought your Office would also take seriously, and raise with the government. I regret that Miss Gxxxxxx did not even elaborate on paragraphs [41] and [42] in my complaint. As this is a matter that will concern the wider public, I must ask and insist that your Office gives more consideration to this unsatisfactory situation at the HDC Office.

 

Re your assessment and decision on “the second complaint”, prepared by Ms Gxxxxx

1. Mistakes and misinterpretations in Miss Gxxxxxx’s summary introduction to the complaint

My second complaint to your Office was about the Health and Disability Commissioner’s handling of a complaint I made about the conduct of Dr Dxxx Xxxxxxx, a general practitioner based at the Xxxxxxxx Health Centre, in Xxxxxxxx Auckland, who has to my knowledge over many years conducted a large number of “examinations” or assessments for Work and Income New Zealand (short ‘WINZ’). On 17 June 2010 he conducted a WINZ commissioned “medical examination” on me, which was anything but a proper examination, but rather an interrogation about my ability and preparedness to return to work. This was followed by an extremely flawed “recommendation” and “report” by Dr Xxxxxxx (completed 30 June 2010), both of which were provided to Work and Income New Zealand.

Details about Dr Xxxxxxx’s “examination”, background- and other information are contained in my complaint letter from 30 June 2012, and a number of emails sent then and afterwards carried further evidence documents (mostly in ordinary size PDF files). My complaint to the Office of the Health and Disability Commissioner was not filed until 30 June 2012, as other legal actions on a related matter had to be closed before a complaint would even be looked at by the Commissioner.

In your Office’s letter (from 28 May 2014), prepared by Miss Gxxxxxx – in reply to my complaint about the HDC’s handling of complaint C12HDCXXXXX, she firstly gives a brief summary of the complaint (see pages 3 and 4). Again I must immediately note that Miss Gxxxxxx made some mistakes, for instance by referring to a wrong date on the HDC Office’s Miss Katie Elkin’s final letter to me, which should have been 22 and not 25 November 2013.

Miss Gxxxxxx lists only five short bullet points in the letter prepared as the response to my complaint to your Office. They are overly abbreviating and summarising a number of points I raised in my complaint to your Office dated 16 December 2013. According to Miss Gxxxxxx my complaint was supposedly only about the following, namely that the HDC (quoted from the letter):

● failed to provide relevant information to Dr Xxxxxxx and to ask him to comment on certain issues raised in your complaint;
● failed to interview third parties you identified as key to your complaint;
● unreasonably made comments concerning the lapse of time between the submission of the complaint and the events being complained about when you had been unable to make your complaint to the HDC earlier because related matters had been the subject of a Judicial Review hearing;
● Was reluctant to investigate a complaint against a non-treating doctor (who still falls within HDC jurisdiction); and
● May not have considered its obligations under the UN Convention concerning persons with disabilities when considering your complaint.

 

In all honesty, I am rather disappointed with Miss Gxxxxxx’s summary, and how she made it up from what I had actually stated in paragraphs [36a] to [36i] in my letter from 16 December 2013 – as being relevant points for your Office to consider. Having read my own submissions again and also the bullet points listed in your letter, I am struggling to follow your investigator in her reasoning for summarising the points I raised – in the way she did. She picked certain relevant points of my concerns out of the text, but ignored others, and then rather poorly summarised only some of the points needing to be addressed. I must say that Miss Gxxxxxx has failed to extract some important core points I presented, and reduced them to bullet points that do not sufficiently express what I stated in my complaint.

The breaches of natural justice, of process and legal provisions by the HDC in this complaint could and should better have been summarised like this:

● The HDC took into account irrelevant considerations, like the available Medical Appeal Board process dealing with my complaint, instead of relevant considerations, when deciding to take no action on my complaint, thus failing to have regard to all the circumstances of the case;
● The HDC was (indeed) rather reluctant to investigate a complaint about a non-treating doctor, acting as a third party assessor, as the handling of the complaint and decision showed;
● The HDC failed to give fair and due consideration to breaches of rights 1, 3, 4 and 6 under the Code, while only specifically asking Dr Xxxxxxx to respond to a breach of right 5;
● It was unreasonable for the HDC to make comments about the lapse of time since the assessment by Dr Xxxxxxx took place and the time the complaint was filed, while at the same time taking extensive time to deal with the complaint, as in the end the decision to take no action was (not so much simply “frustrating” but) denying me justice in the end;
● the HDC failed to take action according to section 36 of the Health and Disability Commissioner Act, by not consulting with the Privacy Commissioner on a possible referral of part of the complaint matter;
● Although mental health conditions and their assessment were aspects of the complaint about Dr Dxxxx Xxxxxxx, and although it was expressly asked for (letter from 26 April 2013) the HDC failed to consult the Mental Health Commissioner, who should have been the more appropriate staff member dealing with such a case;
● Deputy HDC Theo Baker appeared to be prejudiced in the assessment and handling of complaint C12HDCxxxxx, as there is no other convincing reason for her dismissive, negligent approach to the complaint, like not contacting potential witnesses, except her developing a negative bias towards me during the difficult dealings in relation to complaint C11HDCxxxxx;
● by not giving due, fair and reasonable consideration to all the circumstances of the case, the HDC failed to establish breaches of the Code, which as a consequence denies me any further prospect for justice;
● the HDC failed to take into account the ‘New Zealand Disability Strategy 2001’ (see also ‘Action 6.3’), which incorporates the ‘UN Convention on the Rights of Disabled Persons’, by not giving sufficient due respect and applying fairness and reasonableness in handling the complaint of a person with mental health issues and disabilities.

Further concerns that I mentioned in my complaint letters to the HDC, and also in my complaint to your Office, but which I did not list at the end of my letter to your Office from 16 December 2013 were:

Dr Dxxxx Xxxxxxx’s –
● Breaches under the ‘Code of Ethics for the New Zealand Medical Profession’,
● breach under the ‘Health Practitioners Competence Assurance Act 2003’,
● breaches under the ‘Health Information Privacy Code 1994’ and
● potential breaches of the ‘Health (Retention of Health Information) Regulations 1996’.

It appears that the HDC did not feel to have the jurisdictional scope to address these issues, or was simply reluctant to consider these, mostly for no stated reasons.

But as we are dealing with the response prepared by Miss Gxxxxx for you as Chief Ombudsman, I will not endeavour to spend further time contemplating on the bullet points and how they may best have been formulated. What I must say is that Miss Gxxxxx did not address all that I raised in my complaint.

 

2. Miss Gxxxxxx’s considerations, comments and decisions on “the second complaint”

Nevertheless, Miss Gxxxxxx wrote that: “With regard to the first issue, the HDC has advised me that your entire 20-page letter of complaint was sent to Dr Xxxxxxx on 18 September 2012. However the HDC notes that it is unclear whether the substantial documentation attached to the complaint letter had been sent. A later follow up communication with Dr Xxxxxxx occurred on 22 November 2012 when the HDC asked him to respond particularly to the issue about communication. It is for the HDC to determine what information he requires for the purpose of his assessment of a complaint.”

Like I have already done in relation the “first complaint” further above, I take issue with the view that it is solely up to the HDC’s personal opinion to subjectively determine what information he requires for assessing a complaint. The HDC may well have discretion in principle, but the HDC is also responsible to act under section 14 (1) (da) and (e) of the Health and Disability Commissioner Act. As stated before, the Commissioner is also bound to follow natural justice, and must therefore always apply a balance in the gathering and presentation of information in assessing, analysing and resolving a complaint. On the basis of procedural fairness, the HDC should have listed the core points I presented in my complaint, and not simply pick one he/she considered worth following up with Dr Xxxxxxx as the respondent. In my complaint to the HDC I did not just raise “communication” issues; there were other concerns I presented, which were simply left out when asking Dr Xxxxxxx for a further response. It is my view that the HDC had to properly examine and assess all the breaches I stated, and as they have been backed up by sufficient evidence and my personal record of the “medical examination” by Dr Xxxxxxx, they should have all been presented to him in a manner to respond to directly.

Miss Gxxxxxx writes re her second bullet point: “On the second matter, as noted previously, the HDC has discretion under section 14 (1) (m) of the Act to gather such information as he/she sees appropriate”.

Section 14 (1) (m) must be interpreted in its true meaning, and that is that it is meant to give the HDC the power to gather information. It does not so much imply that the HDC has unrestricted personal freedom to choose and use discretion, as any actions taken must also be taken in the context of other applicable legal provisions in the Health and Disability Commissioner Act 1994, same in the context of other statutory provisions, and by adhering to the principles of natural justice. It is my view that it was not reasonable for the Commissioner to simply just pick one breach of the Code, the one of right 5, to seek a particular response to, as there is no information or evidence that this was the only breach giving reason, for it to be further pursued with Dr Xxxxxxx. There was sufficient information provided, to give reason to also seek additional statements from Dr Xxxxxxx on other stated breaches. For instance I obtained legal advice that Dr Xxxxxxx certainly breached natural justice, by refusing to give consideration to medical records I presented to him, which he rejected, without good reason.

Re Miss Gxxxxxx’s comments in relation to “the third issue” (her 3rd bullet point) and re Theo Baker’s comments in her letter from 24 April 2013, I may with some reservations agree with part of her response, but I do not accept that further investigation may not have provided further information to resolve the discrepancy between what Dr Xxxxxxx claimed in his response from 22 Nov. 2012, and what I reported in my complaint. The documentary evidence that I provided in the matter, like the assessment report and recommendation by Dr Xxxxxxx, in comparison to certificates and other records provided from my own doctor and others, clearly showed that Dr Xxxxxxx could not have conducted himself the way he did. If he was so professional, respectful and considerate, why then did he present such flawed reports?

Miss Gxxxxxx writes re the “fourth issue”: “Regarding the forth issue, Ms Elkin explained in her letter of 17 September 2013 that although complaints against non-treating doctors contracted to a third party may fall within the commissioner’s jurisdiction under the Act, in this case, most of the concerns you had raised against Dr Xxxxxxx related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction. I see that Ms Elkin also noted that even where jurisdiction can be established, the Act gives the HDC (and Deputy HDC) a wide discretion to take no further action under section 38.”

Again, here Miss Gxxxxxx is simply repeating what Miss Elkin from the HDC Office states, without apparently giving any consideration to what I wrote back to Miss Elkin in reply. I have the impression she did not even properly read my explanations in my letter to your Office, dated 16 December 2013, where under paragraph [36a] I addressed the questions regarding the Medical Appeal Board and its purpose and responsibilities, and under paragraph [36b], where I addressed the issue with the HDC having displayed some reluctance to deal with a case about alleged misconduct by a third party medical assessor. I have the impression Miss Gxxxxxx does not understand the responsibilities of a Medical Appeal Board, which is responsible only (under the Social Security Act 1964) to hear appeals by looking at a person’s health situation and disability, including their ability or lack thereof to work, in relation to benefit entitlements. The Medical Appeal Board is NOT at all dealing with the conduct of a medical practitioner or assessor that led to breaches of the Code. My complaint correspondence (e.g. from 26 April 2013) to the HDC did of course explain a lot about the processes involved, and how the Medical Appeal Board is appointed, works and deals with cases and so forth, same as I explained details about designated doctors, and how the Ministry of Social Development (M.S.D.) has actually been expressing expectations towards such designated doctors as Dr Xxxxxxx, to deliver the outcomes they would expect – or rather desire. That does not mean that I was in my complaint correspondence primarily expressing concerns that were more relevant to be dealt with by a Medical Appeal Board. I must reassert: My complaint to the HDC was about Dr Xxxxxxx’s conduct!

In this regard I note with much disappointment, that Miss Gxxxxxx did not appear to spend any time considering the relevant aspects involving the training of designated doctors like Dr Xxxxxxx – by the Ministry of Social Development, and especially by persons like the Principal Health Advisor Dr David Bratt. She did not appear to consider that the way training, mentoring and liaising, same as paying designated doctors, as conducted through the M.S.D., could – and likely would cause – issues with true “independence” of designated doctors and how they can make potentially biased recommendations. Those are matters of relevance, as this is influencing the conduct of such assessors as Dr Xxxxxxx.

With my letter to the HDC dated 26 April 2013 I sent the HDC a range of attached documents giving evidence of the apparent bxxx Dr David Bratt displays in his “presentations” to general practitioners, and other health professional, likening “benefit dependence” to “drug dependence”. Dr Bratt also selectively uses statistical data to send messages to the GP audiences he presents these to, which are simply one-sided and at least in part lack scientific validity, most certainly balance. Partly as a result of discovery as part of former legal proceedings, I have more information available covering the training of designated doctors that was commenced in 2008 and which is being continued through various communication channels, same as M.S.D. train their Regional Health and Disability Advisors based in their various Regional Offices. This training is overseen and conducted by Dr Bratt, and it is abundantly clear, that he and his employer are walking on a xxxxx xxxx, and are operating on the borderline of xxxxxxxx, making regular attempts to influence doctors, to make decisions that save the Ministry costs, by denying sick and disabled certain benefit entitlements. I also sent relevant documents and information on this to your Office, which was primarily with email 15, sent 03.10 h on 17 December 2013. I have the impression that Miss Gxxxxxx did not properly consider the information.

I find it astonishing that neither the HDC nor the Office of Ombudsmen appears to be too concerned about the potential breach of natural justice, and even statutory legal provisions in this area of medical and work ability assessments, committed by designated WINZ doctors, who are often bxxxxx. But there is at least one other complaint reaching into this sensitive area, which is also before your Office under reference 36xxxx, and which is being overseen by former HDC, Mr Ron Patterson, and is being dealt with by Jxxxx Hxxxxxxxx and Txxxx Sxxxxx. That complaint has been before your investigators and reviewers for nearly a year now, and M.S.D. are according to information I received, definitely extremely reluctant to release certain information about Dr Bratt and others employed by the Ministry, working with him. Perhaps Miss Gxxxxxx may wish to consult them on what that is all about.

What I can finally say in regards to discretion the HDC may have under section 38 of the Act, to take no action, the decision by Ms Elkin can definitely not be justified by using section 38 (2) (e) of the Health and Disability Commissioner Act. It is not a valid consideration, to claim that my complaint issues were more appropriately being dealt with by a Medical Appeal Board. I also continue to dispute that the HDC had discretion to take no action upon my complaint under section 38 (1), given the types and quality of evidence that I supplied. It is my view and position that the Commissioner did not have regard to all the circumstances of the case in considering that action to investigate was unnecessary or inappropriate. Given the range of evidence I supplied by way of my submissions, and relevant documents, which also included evidence about the bxxx of the MSD and WINZ Principal Health Advisor, Dr David Bratt, who trains designate doctors performing duties for WINZ, it is my position, that the Commissioner did not have regard to all the circumstances of the case to take no action.

Documents I provided with a track record of my own doctor’s and other health professional’s diagnosis and assessments, some of which were presented to Dr Xxxxxxx, are in stark contrast to Dr Xxxxxxx’s examination report and recommendation to WINZ. To simply take Dr Xxxxxxx’s words in his letters to the HDC, and at the same time ignoring the starkly different information in his reports, being totally different to reports by others, does signal a bias in the Deputy HDC’s assessment of my complaint. Following my first complaint, and the issues I raised with Theo Baker’s handling of it, she must have developed a bias against me, being dissatisfied or even annoyed about my continued criticism. I need to refer you to documents covering my health situation and relevant matters that were attached to emails 2, 3, 4, 5 and partly also to email number 6 sent to your Office in this matter. Again, my impression is that Miss Gxxxxxx did not view any of these, as she simply followed the HDC’s arguments.

Miss Gxxxxxx writes: “Finally, there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to you as a health and disability consumer, under the Act.” I further note that the HDC made no finding about Dr Xxxxxxx’s record keeping as you claim.”

It does not look as if that is supposed to be addressing Miss Gxxxxxx’s “fifth bullet point” on page 4 of the letter from your Office, and while I acknowledge her comments, I do not agree with them. I wish Miss Gxxxxxx would have explained her last sentences, because I cannot find any conclusive evidence to prove her comments. In the whole, I regret to conclude, the stated considerations, explanations and comments by Miss Gxxxxxx to “complaint two” leave to be desired. I feel that she did not properly address my points raised under paragraphs [36a] to [36i] in my letter from 16 December 2013, and I have the impression, she did not spend much time examining any relevant attached evidence to the emails my complaint was sent with.

Re her claim that there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to me, I argue, there is nothing in the correspondence from the HDC indicating what of the supplied evidence they did take into consideration and what not. The terminology used is rather “general” and unspecific, as it is not stating clearly what they considered being relevant and what not. So it proves nothing. As for Dr Xxxxxxx’s record keeping having been addressed by the HDC, I have not found any comments the HDC made on that issue.

I certainly feel that my rights as a health and disability consumer were not met under the Act. It is my impression that the HDC did not appropriately fulfil the ‘Purpose’ of the Act, stated in section 6.

 

3. ‘Conclusions’ – as drawn and formulated by Miss Gxxxxxx in the letter prepared for you

In your letter, prepared by Miss Gxxxxxx, you inform me that at this stage you do not intend commencing Ombudsmen Act 1975 investigations into either of the complaints I sent to your Office. You state and explain the limitations of your Office and other relevant aspects, like what action there may have been, should an investigation have been conducted and my complaints have been upheld.

While I appreciate your summary conclusions, prepared by Miss Gxxxxxx, I understand that these were based on the information that was so far sent to you, or rather based on those parts of my complete submissions that were viewed and assessed. It is my impression though, that not all relevant documents and information were examined and assessed. Also has new information come to light, and existing information has been further clarified and explained by me in this letter to your Office.

 

My position on the decisions received, and my request for a thorough review

Dear Chief Ombudsman, as I have expressed in this letter, it is clear to me that the complaints I filed with your Office were assessed by your investigating officer Xxxxx Gxxxxxx, and that she will possibly have done so to the best of her knowledge and capabilities. It is more than evident though, that Miss Gxxxxxx cannot have checked, viewed and assessed all documents that I provided, as she did not even pick up on a mistake I made with listing attachments at the bottom of email 4 (sent 00.41 h on 17 Dec. 2013), where I appear to have inserted the same list as I did in email 3 for complaint C12HDCXXXXX. Only if Miss Gxxxxxx, or staff performing tasks for her, had actually looked at the attachments, would she have noticed the contradicting information. In that case the responsible action to take then would have been to contact me and clarify the details re the attachments. That did not happen, and also did Miss Gxxxxxx make no mention of this in her response to my complaints under reference 3xxxxx. To avoid further doubts and confusion, I will attached to the email(s) carrying this letter send you two PDF files with the lists of all attachments sent with emails for both complaints.

A fair few very relevant pieces of evidence and relevant information have gone unnoticed, or have not been viewed and assessed as they deserve to be. It appears that the HDC Office staff did not only act in a somewhat rushed, pressure driven and later dismissive way in dealing with the complaints I presented to their Office, they even resorted to telling lies about them being unable to open my emails. I feel that the HDC and his staff did badly fail in their responsibilities, and could have conducted themselves in a more reasonable and certainly more honest manner, consulting with me on how to constructively resolve some issues. Telling lies is not a constructive way of solving anything. The appropriate way to deal with the first complaint would have been to be honest about the situation, and not misinform me about a system “freezing” and so forth, but to offer me a fair and reasonable opportunity to present a complex complaint in a more acceptable way. That though was not even attempted. I was simply told lies, and was then was expected to present a very complex case on just two A4 size pages, which was absolutely unreasonable and impossible.

As I was a rather new complainant, and as the HDC Office staff had more experience, certainly with how their systems and internal staff members operate, they had the responsibility to act fairly and reasonably, which they failed to do. In the end I was not given a fair chance to be heard, and once I justifiably raised issues with the way the HDC handled my complaint, I was basically treated as an undesired overly “litigious” person, and not given much more consideration. This impacted negatively on my attempt to present and be given respect and consideration with my second complaint. That complaint was as justified as the first one. I did not choose to spend hundreds of hours and endless days, weeks and months on working on collating evidence, on preparing submissions and corresponding with the HDC Office just for frivolous or other unacceptable reasons.

What I have received in response to the complaints to your Office is now more than disappointing, and I cannot and do not accept the conclusion and decision by your Office staff to simply close the file and take no action in these matters relating to the HDC. Given the now absolutely clear evidence, that the HDC staff actually told me lies about their system, and also otherwise acted irresponsibly, by not giving consideration to crucial evidence, I must assert, that this should now definitely give your Office sufficient reasons to conduct a formal investigation in the handling of my complaints by the HDC, and in the way their Office operates generally.

I do also seek a thorough review of the way my complaints to your Office were handled by Miss Xxxxx Gxxxxxx, who as an investigating officer did not appear to deal appropriately with my complaints, she most certainly failed to consider some absolutely relevant evidence and crucial information. Also were my complaints not progressed for months, and no response was sent upon receiving the second complaint by 17 Dec. 2013. Your cooperation and assistance in this matter will be most appreciated.

Yours sincerely

 

Xxxxxxx Xxxxxx

*****Attachments will be listed in the email (s) carrying this letter*****

 

Here is a list of the attachments that were sent with the 3 emails carrying this response letter (all, or at least most, have already been published via links in the earlier posts mentioned in ‘Part 1’ and ‘Part 2’ of this post, others are found in earlier posts):

Email 1:
1). ‘Ombudsman, ref. 3xxxxx, complaints C11HDCxxxxx, C12HDCxxxxx, reply to decision, 16.06.14.pdf’.

Email 2:
1). ‘HDC, C11HDCxxxxx, email 30, X. Xxxxxx to HDC, scan copy, compl., 04.11 am, 08.08.2011.pdf’;
2). ‘HDC, C11HDCxxxxx, follow up email, X. Xxxxxxx to HDC, scan copy, 03.10 pm, 08.08.2011.pdf’;
3). ‘HDC, C11HDCxxxxx, emails, confirmed recpt of ALL, K. Norman, Exec. Asst, 04.26 pm, 08.08.2011.pdf’;
4). ‘HDC, C11HDCxxxxx, email, thanks f. comfirmtn, X. Xxxxxx to HDC, 04.46 pm, 08.08.2011.pdf’;
5). ‘HDC, C11HDCxxxxx, email 30, follow up email, X. Xxxxxx to HDC, confd recpt by HDC, 08.08.2011.pdf’;
6). ‘H + D Commissioner, C11HDCxxxxx, complaint, ltr re details and status, D. O’Flaherty, 16.05.2012.pdf’;
7). ‘H + D Commissioner, C11HDCxxxxx, OIA Release, X. Xxxxxx, Complaint Summary, 12.08.11 – 27.02.12.pdf’;
8). ‘H + D Commissioner, C11HDCxxxxx, OIA Release, new complaint notes, 08-16.08.2011.pdf’.

Email 3:
1). ‘Ombudsman, 3xxxxx, complaints C11HDCxxxxx, C12HDCxxxxx, reply to decision, ltr, 16.06.14.pdf’ … with the following note added:
“(PDF file containing my response letter without handwritten signature, which may be easier to download and read, if so required)”;
2). ‘Ombudsman, HDC complaint, C11HDCxxxxx, email attachments list, mails sent 13-15.11.13.pdf’;
3). ‘Ombudsman, HDC complaint C12HDCxxxxx, email attachments list, mails sent 16-17.12.13.pdf’;
4). ‘MSD, Des. Dr Training, Comm. Requiremts, J. Rxxxxxx, M. Mxxxxxxxx, memo, hi-lit, 23.01.2008.pdf’;
5). ‘MSD, Design. Dr. Fee Adjustment Proposal, Dr. D. Bratt, memo, copy, hi-lit, 19.11.2008.pdf’;
6). ‘C1 1515 Bratt-Hawker, ‘Ready, Steady, Crook – Are we killing our patients with kindness’, present’n, 2010.pdf’ … with note: “(see especially pages 13, 20, 21 and 35 in that presentation)”;
7). ‘Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too – June 2012.pdf’…
with the following note added in brackets: “(see pages 16 and 33 in that presentation)”.

These notes were added at the bottom of the third email sent that day:
“Note: Attachments 4 to 7 are highly relevant to consider with complaint C12HDCxxxxx (to the HDC Office)! Also of much relevance is attachment 11 to email 6 sent in that complaint matter, at 00:49 h on 17 Dec. 2013, same as a fair few other documents sent in the same complaint matter!”

“PS:
PLEASE CONFIRM THE RECEIPT OF ALL 3 EMAILS IN RELATION TO YOUR COMPLAINT REFERENCE 3xxxxx – FROM 05:02 AM ON 16 JUNE 2014 TO THE RECEIPT OF THIS EMAIL ON THE SAME DAY, BY RETURN EMAIL. FOR SOME REASON YOUR AUTOMATED RESPONSE SYSTEM DOES NOT SEEM TO WORK. IF ANY EMAIL WITH ATTACHMENTS MAY BE MISSING, PLEASE INFORM ME FORTHWITH, SO I CAN RESENT THE INFORMATION.”

 

Author’s further note re the complainants email responses sent to the Ombudsman:
As there was no automated or any other response received from the Office of Ombudsmen on 16 June 2014, the complainant sent off a follow up email at 08.30 pm on that same day, requesting confirmation of the receipt of all emails sent before (between 05.02 am and 05.48 am). But strangely there was NO automated response or any other response that the complainant would ever receive upon sending in these emails. He would though later learn that the correspondence had indeed been received, but the response by Chief Ombudsman Beverley Wakem would be rather brief, unhelpful and condescending.

 

Comments by the author:

Again, that letter is self explanatory, and does not require much in the way of further explanations or clarifications. It is clear that the complainant did not accept the assessments and decisions as they had been made and presented to him, and he expected his objections, further evidence and submissions to be taken seriously and the whole matter to be reviewed.

 
 

PART 7 – OMBUDSMAN BEVERLEY WAKEM BLUNTLY REFUSES TO REVIEW THE COMPLAINTS, USING QUESTIONABLE DEFENCES

By way of a letter dated 10 July 2014 Ms Beverly Wakem, Chief Ombudsman, presented her final response in the two complaint matters. It would come as a huge disappointment to the complainant, as the final response showed no appreciation for, and sympathy with, his situation and feelings. Ms Wakem was actually somewhat condescending and very dismissive of the further presentations made by the complainant, bluntly refusing to even look at further evidence that was provided (also in the form of further attached PDF documents). Thus she upheld her earlier decision, which would protect the HDC from any challenges made against him and the decisions made by the Deputy HDC.

Here is the authentic transcript from her letter dated 10 July 2014:

“Dear Mr Xxxxxx

Ombudsmen Act complaint: Health and Disability Commissioner

I refer to your email of 16 June 2014 and the considerable number of attachments.

I do not intend to respond to the points raised in your correspondence. On the information before me I find no basis for me to take up an investigation. I have already explained an Ombudsman’s limitations when considering complaints against the HDC. In this case I cannot see the need to commence an investigation under the Ombudsmen Act 1975, into the HDC’s handling of your complaints, for the reasons explained in my earlier letter.

As to your comments regarding Ms Gxxxxxx I reject these utterly and I find both your allegations and tone offensive. No further communication will therefore be entered into regarding your complaint against the HDC. Your Official Information Act complaints against the Ministry of Social Development will be processed in the usual manner.

Yours sincerely

(Signature) …….

Dame Beverley Wakem DNZM, CBE
Chief Ombudsman”

 
 

PDF files with an authentic scan copy of Ms Wakem’s response letter dated 10 July are found here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, refusal to review, anon, 10.07.14
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, refusal to review, hilit, 10.07.14

 

Comments by the author:

The response by Ms Wakem as Chief Ombudsman was certainly a very unhelpful one, as she apparently refused to even look at the presented further submissions and evidence by the complainant. She did in my view unreasonably use her discretion when deciding not to further investigate the complaints presented to her, thus ignoring very relevant evidence. That further evidence would also prove her investigator wrong, who appeared to have fully relied on the HDC’s judgment and decision, rather than on what the complainant had presented. Under section 17(1)(b) of the Ombudsmen Act 1975 (old version effective then), an Ombudsman can refuse to investigate a complaint, but must have regard to all the circumstances of the case in doing so. The fair question must be asked whether the Ombudsman had regard to all the circumstances of the case (see also the amended Ombudsmen Act 1975 s 17(1)((f)). The Chief Ombudsman certainly failed to perform her functions under section 13(1) of the Ombudsmen Act, to investigate apparent professional misconduct by a HDC staff member, who wrongly stated that the emails received in relation to the first HDC complaint C11HDCxxxx “froze” their computer system, when this was clearly not the case. The Chief Ombudsman appears to also have failed in her duties as an employer under section 11(2) under the Ombudsmen Act 1975, as she did not follow her duty to question her investigating officer re the allegations made by the complainant, and instead simply dismissed the complainant’s further letter, and defended her staff, blindly relying on her poor judgment.

 
 

PART 8 – CONCLUSION: “FAIRNESS FOR SOME, CERTAINLY NOT FOR ALL”

Upon reading all the above, and having looked at the many authentic evidence documents that were first presented to the HDC in these complaint matters, and that were later also presented to the Office of Ombudsmen, we are absolutely convinced that former Chief Ombudsman Beverley Wakem got it seriously wrong with her decisions. She did apparently rely firmly on her investigating officer’s competency, abilities and judgment, when she made an assessment on the complaints, when doing her analysis and when forming her view on it. That would in usual fashion have been presented to Ms Wakem, and she appeared to have relied on it, without asking any questions.

But in doing so, she sanctioned the whole complaint handling and the final decision on the matters, and thus owned it. As the complainant reasserted his concerns, provided further arguments and evidence, she then reacted somewhat angrily at the criticism that was also presented to her by the complainant in his letter from 16 June 2014. Apparently annoyed and reluctant to have her own staff put under any serious scrutiny, and also faced with endless back logs of complaints, due to lack of funding for her Office’s work, she decided to bluntly “fob off” the complainant with her letter from 10 July 2014. In doing so she failed in her responsibility to hold her own staff to account, and she failed to act fairly and reasonably, firmly refusing to review the complaints and decisions, while there was sufficient evidence presented that should have prompted her to do just that, to act also responsibly within the scope of her functions under the Ombudsmen Act 1975.

As a consequence of the flawed decision(s), and the rather poor handling of the two complaints, the complainant can only look upon this case as not having been resolved fairly and reasonably, again, due to irrelevant information having been relied on, due to some wrong information having been relied on, and due to relevant information (i.e. presented evidence) largely having been ignored. The HDC could rejoice, having been let off the hook again, this time by our leading “watchdog”, which at times appears to have had no teeth, at least under former Chief Ombudsman, Dame Beverley Wakem. Hence the slogan used by the Ombudsman’s Office, and printed on each letter and shown on their website, reading “Fairness for all”, rings rather hollow in the ears of the complainant, same as it will have in too many other complainants’ ears, who may have experienced similar treatment.

 
 

We conclude, that due to the above, the following has not been addressed:

 

Re HDC complaint C11HDCxxxxx, the Ombudsman let the HDC off the hook, by:
● ignoring ample clear evidence the complainant had presented to the HDC, showing how the counsellor/s complained about had breached the ‘Code’, and then considering the HDC had acted “reasonably” in deciding that an investigation was unnecessary;
● ignoring that HDC staff must have lied when saying that emails with attached evidence documents (sent in by the complainant on 08 Aug. 2011) “froze” their computer system, while all emails had actually been confirmed as having been received and passed on internally without any problem;
● ignoring that emails with the original complaint had been received and passed on internally by the HDC staff, without any evident technical issues, and then considering the HDC acted “reasonably” in asking the complainant for a “summary” complaint;
● failing to challenge the action of the HDC re asking the WDHB and its CEO to provide only a “summary” of the complainant’s treatment history, instead of asking them to address clearly stated individual breaches of the ‘Code’, and then simply considering the HDC acted “reasonably”;
● ignoring the numerous, well documented concerns presented to the HDC by the complainant, and instead giving more credit to the responses by the WDHB’s CEO, the Service Manager and his counselling staff, in deciding no investigation of the HDC was necessary;
● ignoring that the HDC cannot have acted “fairly” and “reasonably”, when taking the view that it did not have the resources to look at all the evidence presented in the complaint matter, as that must have clearly compromised the assessment and decision by the HDC;
● interpreting the HDC’s right to use discretion too liberally, when accepting the HDC acted “reasonably” under the law, in choosing not to consult with the complainant’s own doctor and some other key persons during the complaints resolution, which could have assisted the HDC in getting a more objective impression of what occurred.

The HDC has up to this day faced no consequences, despite of having:
● failed to act objectively, fairly and reasonably, by deciding that no action was necessary, in view of ample, clear evidence of ‘Code’ breaches by the counsellors complained about;
● HDC staff tell lies that emails with attached evidence documents, sent in by the complainant, supposedly “froze” their computer system, while all emails were confirmed received and internally passed on without any issues;
● unreasonably pressured the complainant to present a short, summarised complaint, that could never cover all the breaches and issues the complainant had experienced and presented;
● failed to check with the complainant re his references to information already sent with the original complaint, so to ensure that all relevant evidence would be viewed and assessed;
● abused his/her discretion under the HDC Act, by apparently selectively picking the evidence information that suited the HDC to dismiss the complaint as not needing to be investigated;
● let the CEO of WDHB present untrue comments in response to the complaint, clearly intended to discredit the complainant, e.g. by claiming he chose not to take up particular treatment offers proposed to him, and that he had “unreasonable”, “out of scope” expectations, and that he had been “abusive” to staff;
● let WDHB and their service provider off the hook, dismissing concerns and evidence that wrong and incorrect information had repeatedly been put into the complainant’s client file by its counsellor at XXXX Xxxx;
● let the provider’s counsellor off the hook, despite of him developing an apparent bias towards his client during treatment, which was evident when reading the falsely entered, untrue and also incomplete clinical notes;
● let both the counsellor complained about off the hook, despite of their documented efforts to misinform other clinicians involved in the care for the patient/client, again aimed at discrediting him;
● disregarded how the counsellor’s employer (and Service Manager) misled both the HDC and DAPAANZ about complaints before the other agency, while the employer even had a conflict of interest, by being both the Chair of the DAPAANZ Executive (the registration body), and the employer of the clinician complained about
● abused his/her right to use discretion, when unreasonably choosing not to consult with the complainant’s own doctor and some other key persons during the complaints resolution, which could have assisted the HDC in getting a more objective impression of what had actually occurred (see ‘Authority’ given dated 05 Aug. 2013).

 

Re HDC complaint C12HDCxxxxx, the Ombudsman let the HDC off the hook, by:
● ignoring ample clear documentary evidence the complainant had presented to the HDC, that showed how the WINZ commissioned general practitioner had written and presented a biased, very flawed ‘designated doctor report’, and then considering the HDC had acted “reasonably” in deciding that no investigation was necessary;
● ignoring the well documented, numerous concerns presented to the HDC by the complainant, and instead considering the HDC acted “fair” and “reasonably”, when giving more credit to the two brief written responses by the WINZ commissioned doctor, when the HDC decided that no investigation of the complaint was necessary;
● ignoring the consistent reports from the complainant’s own GP and specialists, presented by him to the HDC, that were in stark contrast to the WINZ commissioned doctor’s report, and still considering the HDC was “reasonable” and “fair” in his/her assessment and decision making as part of the process followed;
● not challenging the HDC on his/her decision to only look at a potential breach of ‘Right 5’, of the ‘Code’ to “effective communication”, while the complainant provided sufficient information suggesting breaches also of ‘Rights’ 1, 3, 4 and 6;
● not examining whether the HDC misinterpreted the law, which does not provide for a Medical Appeals Board (appointed by MSD) to hear and decide on issues relating to the conduct of a WINZ commissioned “Designated Doctor” when examining a client;
● accepting untrue comments by the Deputy HDC, claiming the complainant had “succeeded” in an appeal to a Medical Appeals Board, while he had not, and then still considering the HDC acted “fairly” and “reasonably”;
● ignoring reliable, relevant evidence information also presented to the HDC by the complainant, which showed that the MSD made ongoing attempts to influence it’s commissioned medical examiners (‘Designated Doctors’), by encouraging them to make decisions to keep applicants and claimants off benefit entitlement and support;
● ignoring that the HDC had been informed that there had been at least one earlier complaint about the same doctor made to MSD, referred to in a provided ‘Memo’ from MSD dated 18 June 2010, which raised concerns about the general practitioner’s conduct in assessing persons with conditions he had no scope to examine them for;
● dismissing the important fact that had been outlined to the HDC, that the doctor was not qualified to examine and assess persons with mental health and addiction issues, and still considering the HDC acted “reasonably” within his/her scope to dismiss the complaint.

The HDC has up to this day faced no consequences, despite of having:
● relied primarily and apparently almost exclusively on the comments made by the general practitioner and WINZ examiner, when defending and justifying his actions, and dismissing evidence and comments sent in by the complainant;
● misinterpreted the law, which does not provide for a Medical Appeals Board (appointed by MSD) to hear and decide on issues relating to the conduct of a WINZ commissioned “Designated Doctor” when examining a client;
● made false statements and drawn wrong conclusions, about the complainant’s earlier and unsuccessful appeal to the Medical Appeals Board appointed by MSD;
● abused his/her discretion under the HDC Act, by apparently selectively picking the evidence information that suited the HDC to dismiss the complaint as not needing to be investigated;
● ignored that the ‘Designated Doctor’ commissioned by WINZ made a recommendation about a client with mental health and addiction issues, although he was not qualified and registered as a practitioner possessing such competencies;
● ignored reliable evidence information presented to the HDC by the complainant, which showed that the MSD had made ongoing attempts to influence it’s commissioned medical examiners (‘Designated Doctors’), by encouraging them to make decisions to keep applicants and claimants off benefit entitlement and support;
● ignored documented evidence that there had been at least one earlier complaint about the same doctor, made to MSD in 2010, which raised concerns about the general practitioner’s conduct in assessing persons with conditions he had no scope of practice to examine them for;
● dismissed the important fact that had been outlined to the HDC, that the doctor was not qualified to examine and assess persons with mental health and addiction issues;
● gave too little regard to the fact the assessing WINZ commissioned doctor had also not bothered keeping related medical examination records on file, which one should reasonably have expected, as examinations can justifiably be challenged and records be required of the practitioner.

 

All in all the complainant had learned the hard way, what it meant dealing with not only an under-funded, overloaded and dismissively complaints “resolving” HDC Office, but also with an even more under-resourced, overly stressed, over-worked and at times rather poorly performing Office of Ombudsmen. It was more than evident that both the investigator, and even the Chief Ombudsman, was in these complaint cases not up to her task and standard in their performance. That is why the complainant would later take a complaint about issues he perceived to exist at the last mentioned Office to the Office of the Controller and Auditor General (OAG), which we endeavour to cover in a later post.

 
 

Quest for Justice

 
 

► In a separate post, we will present what further action was taken re these matters!

 

HOW THE HDC THROWS OUT VALID COMPLAINTS AND PROTECTS CODE BREACHING HEALTH PROFESSIONALS – A TRUE STORY

HOW THE HEALTH AND DISABILITY COMMISSIONER THROWS OUT VALID COMPLAINTS AND PROTECTS CODE BREACHING HEALTH PROFESSIONALS – A TRUE STORY

 

Published 28 March 2016

 
 

CONTENTS

PART 1: INTRODUCTION

PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S

PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY

PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’

PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE

PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER

PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE

PART 8: CONCLUSION

 
 

PART 1: INTRODUCTION

 

When visiting your general practitioner, a hospital, a laboratory, a rehabilitation or counselling service, yes any health or disability services provider, you will most likely have noticed the prominent information posters and brochures, that tell you about your “rights” as a consumer, to take any complaints you may have to the so-called ‘Health and Disability Commissioner’ (HDC). What you read may sound and look very re-assuring, and you would trust, that we are as consumers well looked after here in New Zealand. In many less serious cases people who have various forms of grievances may indeed find some satisfactory resolution to the issues they have with a provider and their service. Generally consumers are advised to first discuss these with their provider, who may offer a remedy that keeps the consumer happy, or at least from taking a matter further. Others may get referred to an HDC advocate, who may briefly assist by offering guidance, advice or casual mediation, to resolve matters with a provider.

Only some people will ever be affected by more serious health or disability services issues. These may perhaps happen in the form of harm suffered due to significant mistakes made by health practitioners and service providers during treatment, or as a consequence of other forms of serious professional malpractice or misconduct. Such failures can happen due to negligence, poorly followed administrative or practice processes, and poor communication may also be an issue. There can also be cases where ethical conduct standards are breached. Often only then, when things get more serious, when significant physical, psychological or emotional harm is suffered, will affected people feel that they have a compelling reason to file a complaint with the Health and Disability Commissioner.

They will trust that their complaint will be taken seriously, that it will be assessed thoroughly, fairly and reasonably, and that the patient and consumer will be listened to. Some will consider that it is important to provide as much detail and information as possible, to have the Commissioner, his Deputy, his Associate and their office staff members feel enabled to carefully, competently and fairly assess and then investigate the matter, so that a deserved, just and acceptable resolution may be offered.

But it is often also then, when the patient will eventually find out, what the law actually says and means, in regards to the handling of any complaint under the so-called ‘Code of Health and Disability Services Consumers’ Rights’ (the Code), which the Health and Disability Commissioner is responsible to administer, promote, enforce and review. The Commissioner is working under the ‘Health and Disability Commissioner Act 1994’ (HDC Act), which sets out his role, functions and responsibilities. Only those well familiar with that Act, and also with other important legislation, such as the ‘Health Practitioners Competence Assurance Act 1993’, the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, same as the Health Information Privacy Code 1994’ (HIPC1994) and other relevant legislation, will understand the complexities of how the system operates.

There are provisions in the HDC Act that relate to, or interact with, provisions in various other statutes, such as the ‘Health Practitioners Competence Assurance Act 1993’. There are certain regulations, there is the ‘Code of Ethics for the New Zealand Medical Profession’, and there may even be other Codes by certain professional organisations or authorities, which apply to practitioners separately. Some Code of Ethics principles may overlap with the ‘Code of Health and Disability Services Consumers’ Rights’, but the HDC’s jurisdiction is restricted to applying ‘the Code’ – for which he is responsible. The ‘Purpose’ of the HDC Act states: “The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.”

This all sounds good, but certain statutory provisions will limit and impact on what the Commissioner can or must do, and the ‘HDC Act’ itself gives the Commissioner an incredibly wide scope for using discretion to take some action or to take no action, which few ordinary citizens really know about. Two “key ways” through which the HDC “promotes” and “protects” the rights of consumers, are by way of “resolving” complaints about infringements of rights, and through “education” of both consumers and providers (see Annual Report 2012/13, ‘2.1’ on page 7). But “resolving” may mean something very different to what the ordinary consumer may expect. “Complaints resolution” must rather be understood as an administrative concept, when looking at how the HDC and his Office staff deal with complaints, which is reflected in the Annual Reports.

It is often only towards the end of a potentially rather lengthy complaints process, that complainants may suddenly find, that what they face, is anything else but transparent, straight forward or fair and reasonable. In a fair number of cases, even rather serious ones, the Commissioner may suddenly inform the complainant, that no investigation is necessary, or that no further investigation is appropriate. One important provision in the HDC Act is section 38, which offers the Commissioner and his Deputies much discretion to decide whether to take any action on a complaint, or whether not. This gives the HDC much discretionary power in his crucial role that he plays as the de-facto “gatekeeper” in the health and disability complaints resolution system. The HDC usually decides whether a complaint may be investigated or not. We must bear in mind that all complaints made by consumers will inevitably end up before the HDC, before they may in very few cases ever end up before the Human Rights Review Tribunal, the Medical Council or any other registration authority (see section 64 ‘Health Practitioners Competence Assurance Act 2003’).

The various actions which the Commissioner can take, where a breach has been established, are also rather discretionary and offer a range of limited options. The HDC can mostly only recommend that certain courses of action should be taken by providers or authorities. Firstly section 34 enables the Commissioner to refer a complaint to the appropriate authority, or the Accident Compensation Corporation (ACC), the Director General of Health, or as it more often so happens, to the service provider to resolve. Section 36 enables the Commissioner to refer the complaint to a statutory officer (Human Rights Commissioner, the Chief Ombudsman or the Privacy Commissioner), and section 37 allows him to refer the matter to an advocate to resolve. The HDC Advocacy service has been expanded over years, to deal with more complaints, most of which go directly to that service branch within the Office, while some formal complaints made to the HDC will also end up there.

As already mentioned, section 38 allows the Commissioner to decide whether to take any action himself, or not, while “having regard to all the circumstances of the case”. That particular phrase is used in many response letters with decisions to take no further action. It can be seen as offering the HDC a very generous legalistic terminology to justify and defend, what he may have done and deemed relevant to have regard to in a complaint matter. With the help of their internal professional Legal Advisors, the HDC is usually well equipped to assert they have considered all that needed to be considered, and a consumer would usually need proper legal advice and representation to challenge decisions by the HDC, where that phrase is used. Section 38 may be used by the HDC to refuse to investigate a complaint, or to take no further action on an assessed complaint that may first have been investigated. But despite of no further action being taken, the HDC can and does in some cases still make certain recommendations to a practitioner or provider, probably more often so in less serious cases.

Section 40 allows the Commissioner to investigate a complaint, if the action is, or appears to him to be, in breach of the Code. Section 45 then gives the Commissioner the authority to “report” an “opinion” to a service provider, and to make “recommendations” as he sees fit. An opinion may also be “reported” to an authority, a professional body, the ACC or any other person he considers appropriate. A complaint may be made by him to any authority in respect of any person, and he may also refer a complaint to the so-called Director of Proceedings.

Recommendations that the HDC may make do commonly include asking the health practitioner or service provider to offer an apology, and he may recommend extra training or improved administrative or other treatment related processes to be put into place. Given the apparent limitations – or wide discretion – which the HDC Act offers the HDC for possible measures to resolve complaints, the consumer’s and complainant’s expectations will in at least many serious cases often be disappointed. The explanations given are often anything but re-assuring to the affected patient or his/her relatives, who will be left with no, or only ridiculously limited forms of “remedy” for the great harm he or she may have suffered.

 

The HDC’s website and the Office’s Annual Reports show some revealing complaint figures:

Year: New Complaints: Closed Complaints: Investigated Complaints:
2015 1,880 1,910 100
2014 1,784 1,901 115
2013 1,619 1,551 60
2012 1,564 1,380 44
2011 1,405 1,355 27
2010 1,573 1,524 51
2009 1,360 1,378 112
2008 1,292 1,295 100

Year: Code Breached: Referred to Director of Proceedings:
2015 70 14
2014 79 23
2013 42 16
2012 29 8
2011 11 4
2010 36 5
2009 72 15
2008 59 22

 

Links to HDC website and Annual Reports:

http://www.hdc.org.nz/
http://www.hdc.org.nz/media/294868/hdc%20annual%20report%202015.pdf
http://www.hdc.org.nz/media/276015/hdc%20annual%20report%202014.pdf
http://www.hdc.org.nz/media/250804/hdc%20annual%20report%202013.pdf
http://www.hdc.org.nz/publications/other-publications-from-hdc/annual-reports/annual-report-for-the-year-ending-30-june-2012
http://www.hdc.org.nz/media/188004/annual%20report%202011.pdf
http://www.hdc.org.nz/media/158595/annual%20report%202010.pdf
http://www.hdc.org.nz/media/31143/report%202009.pdf
http://www.hdc.org.nz/media/18366/annual-report-website08.pdf

 

Annual Reports reveal “output targets”, tight budget and criteria limit investigations

What people will only learn by reading the Annual Reports of the HDC is the fact, that they have tight internal “output targets”, which means, they are expected to get 80 percent of complaints “resolved” within only 6 months, 95 percent within 12 months and 99 percent within two years. This does simply mean that a firm, tight preliminary assessment process takes place that involves the reading, analysis, categorisation, prioritisation and selection of complaints that may be deemed “serious enough” to look at more closely internally. In only very few cases will these be formally investigated. The HDC has revealed in at least one of his ‘Annual Reports’ that: “In recent years, investigations have increasingly been used for only the most serious matters such as allegations of sexual impropriety, and other behavior involving significant breaches of ethical and professional boundaries, and major lapses in standard of care” (see ‘Annual Report 2007-08’, page 5 under ‘Investigations’). Looking at the statistics published since then, the HDC has not departed from this approach. Given budget limits the Office has, staff would inevitably be under pressure to get most of the complaints out of the way within those target time frames, and as formal investigations, even just initial, less formal investigations, do take up a lot of time and resources, this must inevitably result in most complaints being moved on or out without being investigated. They will possibly fall under section 38 decisions, where it is decided that any action or further action would be “unnecessary” or “inappropriate”. Some will though also be referred back to the provider to resolve, or to other agencies/authorities, or alternatively to the advocacy services, who already have a high workload themselves to cope with. A fair number of complaints are also ruled as being outside of the Office’s jurisdiction.

The complaints that will actually be formally investigated make up only a tiny percentage of all complaints, and of these again only a proportion are then determined as having established a “breach” of the Code. Only between about 2 and 4 percent, seldom up to perhaps 9 percent, of all complaints tend to be “formally investigated”, going by the data for the last 8 or so years. And as the HDC Office has a limited budget to fund its operations, and while staff numbers have only marginally increased, the ever increasing complaint numbers will lead to an even tighter assessment criteria being used, to more prioritisation and reprioritisation of its internal case workload, so that less time and attention may be spent per processed complaint. It is of course Parliament, in fact rather the majority holding government, which ultimately holds the purse strings for the HDC Office. As the government does as primary health and disability services provider (e.g. through DHBs and their contracted providers) also have an interest in keeping complaints at a minimum, there is of course at least some interest to discourage complaints. This may be “helped” by capping funds for the HDC’s operation. Many disappointed complainants will share their negative experiences, which in turn may eventually also discourage others in the public to even bother making any complaints.

There are only bi-annual, random and limited surveys that the HDC conducts for his main complaints resolution service, to which often only half or even fewer of the approached complainants respond. As individual service providers and District Health Boards (DHBs) are also included in surveys, it is no wonder that the results of such surveys tend to be more positive as they would be if only complainants would be asked questions. Such sample surveys, to which only some of the surveyed persons or parties respond, can hardly be seen as truly representative. But even the HDC’s surveys tend to show less satisfaction among consumers. The survey published in the ‘Annual Report 2014-15’ showed that the HDC did not meet their target of 80 percent consumer and provider satisfaction, as only 65 percent appeared “satisfied” with their service (see page 38 under ‘Output 1 – Complaints management’). The ‘Annual Report 2012-13’ shows on page 39 under ‘Output Class 1: Complaints resolution’ that only 71 percent of only 255 respondents to that survey felt that overall the “complaint process” of the HDC was “fair”, and only 63 percent agreed it was “timely”. The ‘Annual Report 2008-09’ gave a better overview of an earlier survey, where only 67 percent of complainants (then listed separately from providers) felt their complaint was taken “seriously”, where only 62 percent of the same felt the complaint had been dealt with “fairly” and only 64 percent felt their complaint had been “dealt with impartially”. Only 57 percent of complainants understood the reasons for the decision and only 54 percent were “satisfied” with the “management” of their complaint. Such break-downs are no longer provided in the more recent reports. 229 complainants, 188 individual providers and 13 DHBs took part in that survey, representing a 47 percent response rate. On an ongoing basis about 33 percent of advocacy service users get surveyed monthly, but as that service deals with rather low level complaints, it is not surprising that consumer satisfaction is greater for that.

Going over the ‘Annual Reports’ of the HDC Office gives the observer the impression of reading an annual report of a commercial business or that of a corporation, with nice sounding language, phrases and terminology, with a strong emphasis on positive outcomes, repetitive mention of a “customer focus” and so forth. But this appears to rather be a further example of glossing up the less pleasant reality, to present it as something that it does not really look like.

Upon dissecting the information, and analysing the data in those reports, and what is published on the HDC website, it becomes apparent, that the HDC Office does rather look like a kind of “clearing house” for complaints, where they are simply examined, sorted and in large numbers passed on to providers, other agencies and authorities. And a high number of complaints are always dealt with as needing no or no further action, so that they are “closed” and leave a complainant with few or rather no alternatives to have grievances addressed. Not insignificant are complaints about matters that the HDC considers to be out of their jurisdiction. The Office does in its large part rather resemble a “transfer station”, where only a tiny number of complaints will stay to be looked at more closely and then get more or less formally investigated.

It seems to be nothing more than a “monitoring service” to help the government and providers keep an eye on where some problems may exist, and where some action may then be needed, to avoid further future problems to arise. It is through using received and gathered information, for the purpose of “education”, e.g. by presenting six monthly complaints review reports to DHBs and by making the odd “recommendations” to providers, that the Office seems to think it needs to act to bring “improvements”. That is besides of general “advocacy services” for consumers, and the now also integrated “systemic monitoring and advocacy service” of Mental Health and Addiction Services through the Mental Health Commissioner, which the HDC seems to be preoccupied with. Page 10 of the published ‘Annual Report 2015’ even showed that the position of “Mental Health Commissioner” was at that time “vacant”. So much for a “commitment” to that, I presume.

The remaining “complaints resolution” is focused on the small number of the most serious infringements that are found. The practitioners that are considered to have infringed the Code are though often let off lightly, with a kind of “warning” in the form of recommendations to improve and apologise, and the consumer is left with nothing much more than an apology and assurance that such things will be avoided in future. But it is in our view also not credible, that there are only such a small number of complaints, where infringements of the Code are established. It is not credible that of all the complaints made by consumers of health and disability services to the HDC, only so few involve breaches of the Code that deserve to be investigated. There must be a much higher number of breaches occurring, including a higher number of more serious infringements, yet they are never brought to the attention of the public, as they are “resolved” in the highly discretionary manner that the HDC operates under. This is not right and not acceptable, and we do deserve more transparency and more action, yes indeed law changes to the HDC Act. The law and the complaints system should provide for more mandatory action by the HDC that must be taken to also satisfy the needs of aggrieved customers, and where they may have deceased, their relatives and friends. There is a strong and urgent need for providing deserved, fair and reasonable remedies for consumers and their relatives that have been badly affected in so many cases.

 

Complaint matter covered in this post

This post looks at one perfect example of how some complainants are simply left with nothing short of an appallingly deficient “resolution system” that we have under the HDC. It shows us, that the HDC and his staff use every opportunity and legal provision that is available to them under the Act, and even outside of it, to off-load complaints as not deserving to be investigated, where they simply cannot be bothered. They do at times use bizarre explanations, or excuses, to justify their actions or inaction. When you read it you will realise that a probably ever increasing number of complainants are not at all getting much of an acceptable or even satisfactory “resolution” under the present supposed “watchdog”, who is after all a man who did for many years pursue a successful career as a senior administrator in the public health system. As a lawyer who worked for the Ministry of Health for 15 years, he will know many leading administrators and possibly even practitioners in the system, and has himself stated at the beginning of his appointment as HDC, that he will rather use “advocacy”, “education” and “mediation” as ways to resolve issues and to improve systems.

We are as consumers misled to believe we get a quality grievance resolution service, as implied in the nice, friendly worded, re-assuring brochures at for instance your doctor’s practice. In reality, we do merely have a kind of overloaded, overstretched monitoring service, where the Commissioner appears to pick and choose the cases he and his Deputies may consider valid enough to have a closer look at, upon his or his staff’s sometimes bizarre assessments. He may then take the actions he considers necessary on a case by case basis. If a complaint involves already caused fatal or major physical or mental harms, and has perhaps already been reported on in the community or media, then there is a chance of a proper investigation being conducted. If this is not the case, there seems to be only a slim chance of getting a practitioner and service provider held to account for any of their failures (i.e. breaches of the Code).

This case involves a person with complex mental health and addiction issues, so some may consider it as being less “representative” as other cases, for instance where physical injury or sickness are at the core of issues. But nevertheless, matters of processes not being appropriately followed, of bizarre excuses being made, of apparent bias or natural justice being ignored, these must all be of concern to persons who have to deal with the HDC at some time in their lives. This may potentially include us all. It must be noted too, that only from 2012 on, after the abolition of the separate Mental Health Commissioner’s Office, did the HDC Office have a Mental Health Commissioner as part of their team. That integrated Commissioner was then tasked with “monitoring” mental health and addiction services and with assisting through advocacy, of which we have so far only seen marginal effective use being made.

As stated above, and in earlier blog posts here, under the present HDC complaints “resolution” system, only a tiny percentage of all complaints received by the HDC are actually formally investigated (see the ‘Annual Reports’). To learn more about other various issues that a fair number of complainants have had with the HDC, read also the two older posts found under these links:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

Those posts shine light on the Commissioner, his Deputy and Associate Commissioners, presented other true complaint cases, they explain the legal framework, offer a range of revealing, interesting media reports, show how some persons felt offended by the Commissioners’ decisions, and they also offer other in depth analysis and useful information.

 
 

PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S

 

The complainant, whose personal details and identity we have promised to withhold and protect, first filed a complaint with the HDC on 08 August 2011. Having received poor, questionable and ineffective counselling services provided by an alcohol and drug (A+D) counsellor (then still in training) from an established service provider. He stopped consulting the counsellor, after being refused a reasonable letter of support, which should have stated his health conditions and difficulties in coping with stress and life challenges. That kind of letter was crucial for the client to access other support, also to assist in effectively dealing with two legal issues that had arisen, which were threatening to throw him off course with his treatment and rehabilitation plan. The counsellor had at various times been ambiguous and contradicting himself about the scope and type of support service he could offer. While trying a couple of different approaches, to help the client address his life and addiction issues, he failed to maintain the trust of the patient, as he appeared to lack the necessary professional capability, competency, sufficient objectivity and true empathy. Only upon initial reluctance by staff of the provider was the client provided with his whole client file, which revealed how totally incorrect details had been entered by the counsellor, whom he felt he could no longer trust.

It became evident that the counsellor misinterpreted factual information shared with him during counselling sessions, and he also appeared to display a personal bias when working with the client. Some information was recorded correctly at first, and changed weeks or months later, to state very different, conflicting details, which were in part completely untrue. The counsellor also recorded false information on the medication intake of the client, ignored early signals for risks of self harm, and he was generally inconsistent and sloppy with record keeping. Some personal information, some of which was even untrue, had also been passed on to the complainant’s general practitioner (GP), through him to a WINZ “designated doctor” and ‘Cornwall House’ mental health services, without the knowledge of the complainant. When confronting the service provider’s Supervisor and Team Leader, mistakes that were made were not accepted, were excused with bizarre explanations, and an apology was refused. The conduct of a follow up counsellor, who had relied on a summary by the earlier counsellor of the same service, which also contained mistakes, was also unhelpful. She was as Supervisor also a senior colleague of the counsellor, from whom the client/complainant had sought a change.

In the end, upon reflection and careful analysis of his obtained whole file, and after this unprofessional, ineffective and unacceptable treatment by the service, the client decided to compile a detailed complaint letter. It did not only refer to many individual points at issue that he established, but it was also referenced to particular ‘Rights’ in the ‘Code of Health and Disability Services Consumers’ Rights’ that were breached. Also mentioned as being of relevance were a number of Principles and/or Core Values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ (DAPAANZ), which was the professional association with which the counsellor and follow-up counsellor of the client were registered.

 

The particular rights that the complainant saw breached under the ‘Code of Health and Disability Services Consumers’ Rights’ were:

 

Right 1
Right to be treated with respect
(1) Every consumer has the right to be treated with respect.
(2) Every consumer has the right to have his or her privacy respected.
(3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori.

Right 3
Right to dignity and independence
Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

Right 4
Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(3) Every consumer has the right to have services provided in a manner consistent with his or her needs.
(4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

Right 5
Right to effective communication
(1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided. Where necessary and reasonably practicable, this includes the right to a competent interpreter.
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

Right 10
Right to complain
(1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.
(5) Every provider must comply with all the other relevant rights in this Code when dealing with complaints.

We will not list the principles and core values under the DAPAANZ Code that were considered to also be breached, nor will we print out the whole complaint letter here, as we think it is best you download and read it in full, found via this link to a PDF copy of it:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, ltr, anon, 08.08.2011

Here is a link also to the DAPAANZ website and their Code (from 2005):
http://www.dapaanz.org.nz/code-of-ethics/
(Please note that any references in the complaint to the Board and Executive of DAPAANZ are historic, as membership of these have since changed!)

What we wish to stress is the fact, that we have hardly ever seen such a detailed and comprehensive, yet well presented complaint, which should definitely have deserved to be taken seriously by the HDC, but which was not, as we will report on in the following.

 

Concise summary of contents of the complainant’s initial letter to the HDC

The complainant did in his letter first present a summary of the particular Rights of the ‘Code of Health and Disability Services Consumers’ Rights’ that he considered had been breached. He also listed ‘Principles’ and ‘Core Values’ of the ‘Code of Ethics’ of the DAPAANZ that had been breached. He then gave a detailed ‘Background’ mentioning his alcohol dependency, his past treatment, explaining his various mental and other health conditions, and describing how he first sought support and then started working with clinicians and counsellors at the particular alcohol and drug (A+D) counselling service provider. He was honest about the challenges he had faced as an immigrant to this country, and how he encountered difficulties in working with some counsellors, particularly those who wanted him to stick to a rigid 12-steps treatment approach. He stated how many of the clinicians and counsellors he worked with were apparently still in some form of ongoing training and study. He explained how it was hard or even impossible to access supplementary mental health services that he needed, and which could perhaps treat his other conditions, for which the A+D service provider could not offer any expertise and treatment. The complainant also described how he was in 2007 referred to another counsellor, with whom he could not work, after already clearly stating his reservations to work with him from the outset. He made some early written complaints to the counselling service Manager, which were then at that stage treated more seriously.

The complainant explained how he tried twice to start new jobs, which did not work out, as his conditions had not been sufficiently and successfully treated. He felt pressed to try work, because he received very limited, insufficient support from Work and Income, which left him in constant financial difficulty. He had to take in boarders to supplement his meagre income, but as his health conditions made it difficult to live with other persons, this and some new issues that some flat-mates brought into his home only created yet more problems he struggled to cope with. Living in a downstairs unit in a small, old block of units, he also suffered from unbearable noise coming from a unit above, in which a family with kids lived. Only wooden floorboards separated upstairs from downstairs. He described a very unfavourable environment, which did anything but assist his treatment program and recovery.

During 2008 the complainant worked with a rather empathetic and supportive counsellor, and a moderate stabilisation of his situation occurred. But when that counsellor was then assigned to look after a special target group of persons needing A+D counselling, the complainant faced yet another change of counsellor. For a brief period in early 2009 he tried working with the Clinical Team Leader, but as that clinician preferred to record every session on audio, the client/complainant felt uncomfortable with that, upon which he was offered another counsellor, whom he agreed to work with, as there appeared to be no other alternative.

On the domestic front, external disturbances from a hostile neighbour living above and provoking him with excessive noise also impacted badly on his life. After an incident where he apparently used “threatening language” towards that neighbour causing severe noise, he was arrested and charged with “threatening behaviour”, which set off another round of new problems to deal with, because a conviction on such a relatively minor breach of the Summary Offences Act 1981 (see Section 21) was threatening the loss of his “clean slate” status, which he enjoyed after many years had passed after a small number of convictions for again rather minor offences in the mid to late 1980s.

Any return to future work would have been made much more difficult with such a loss of the “clean slate”. “Falling off the wagon” a number of times, another incident happened, where the complainant was in late 2009 also charged with “disorderly behaviour”, which led to the even greater likelihood of him losing his “clean slate”. It set off a downward spiral of relapsing into binge drinking and repeated bouts of depression and increased risk of self harm.

What the complainant would discover later in 2010, and more so during February 2011, after having received a copy of his complete client file, was that his counsellor would first describe the charges the complainant faced in late April correctly as being for “threatening behaviour”. Only three months later, in July 2009, he suddenly changed his records by repeatedly noting down that his client was up before the court for “assaulting his neighbour”. This was not what had happened, and this would be just one example of what the counsellor would wrongly record and misrepresent. Other charges had additional ones added to them, according to his notes, which never existed. And at one stage the complainant would even be suspected of looking for flatmates, while he “hopes to meet someone with whom he can develop an intimate relationship”. That was alleging his client was a kind of “predator”. One can only conclude that he was a hopeless record keeper, and that he possibly, yes more likely so, had a bias. Anything he heard from the client would be recorded in more negative terms, reflecting negatively on his client and being far from the truth. Also did the complainant find out later, that according to the counsellor’s notes, the client would not take any medication.

Only months later, after the first warning signals should have caused the counsellor at the service provider to take action, was his risk of self harm increased from “low” to “medium”. That only happened in mid December 2009, after suicidal ideations were already evident in mid to late April that year. The complainant was astonished and later dismayed at the counsellor’s apparent lack of empathy for him, trying to simply blame all the difficulties he faced on his drinking. He found it incomprehensible that a counsellor ignored all external, environmental factors that impacted on him, only worsening the situation he was in.

When being presented with a rather unhelpful letter of “support” from his counsellor on 23 December 2009, the complainant walked out of a counselling session 5 minutes prior to its conclusion, expressing disappointment and anger that he was not being given proper support in his extremely troubled and desperate situation. The letter mentioned nothing about his complex mental health and other issues he struggled with, and appeared very dismissive of his personal challenges in addressing alcohol abuse and addiction.

After that incident, and a troubled Christmas – New Year period between 2009 and 2010 the complainant sought another change of counsellor, as he could not work with the one he had, whom he no longer trusted, as he appeared biased, incompetent and unwilling to offer effective support. The only clinician who appeared to be prepared to continue working with him was the Clinical Supervisor, who was a female clinician and counsellor. Nevertheless the complainant gave it a go and engaged with her in a number of counselling sessions. Although having had some reservations towards working with her, he did at first find her more experienced and professional, but after a few weeks he felt that she displayed a rather firm, uncompromising, less sympathetic and at times even an apparently biased demeanour, which disturbed him. He also felt uncomfortable working primarily only on “emotions”, as this made him feel vulnerable, particularly while consulting a woman counsellor.

External stressors, disturbances and distractions continued, so counselling became more difficult due to that also. In mid 2010 the complainant was then also confronted with a medical re-examination of his health and benefit status, which led to a disastrous experience where a WINZ commissioned and paid assessor declared him “fit” to return to at least 20 hours of work per week within only three months. This was recommended and then decided on, despite of all of the complainant’s own doctor’s and specialist’s reports stressing a need for ongoing treatment, and confirming permanent disability and another 2 years of inability to work. Hence the complainant was sent off on a virtual roller coaster of emotions and distressed thoughts, and as the new female counsellor he saw did now also show a reluctance to offer any further effective help in the form of support letters, the client was finally thrown off course, and his counselling relationship swiftly deteriorated.

A so-called Medical Appeal Board hearing (set up by WINZ/MSD) led to another flawed, disastrous recommendation, giving qualified support to the WINZ doctor’s recommendation, and so the complainant faced being thrown off his invalid’s benefit and forced to look work within only a short time, while he was under extreme mental and physical stress, relapsing regularly and deteriorating rapidly. The A+D counselling service provider’s clinician’s advice was not helpful, as it seemed totally detached from reality and unrealistic to apply under the circumstances. What would have contributed to the counsellor adopting a less sympathetic approach during treatment must have been the fact, that the complainant was arrested and charged yet again in May 2010, when he was accused of “offensive behaviour” towards a salesperson while intoxicated. In deciding to fight the WINZ decision by going to the High Court and seeking a judicial review, the complainant did by late 2010 gradually disengage from counselling. It was impossible to continue with any treatment while having to spend endless hours every day to try and find a lawyer, to apply for civil legal aid, to prepare for a review and to also familiarise himself with the complex applicable law. That was on top of the ordinary day to day challenges the complainant faced and already struggled with, including dealing with the various charges he had to answer to.

The counsellor suggested he take a break, but that appeared to only upset the complainant, as he had by now also found out what had been put into his file by the counsellors he had worked with. After sending an upsetting email while in distress and a lapse, which was followed by a letter with proper explanations of his situation and position (in Dec. 2010), the complainant did in February 2011 receive a letter from the counsellor, telling him that the file would be closed. The reason given was not what he could agree to, as it was not true and representative of his experience, his views and his position on what was going on. The counsellor claimed it was the client who had “indicated” that he was “no longer requiring the support of” their service. But the complainant felt he could no longer trust her, and that the circumstances of his situation made it impossible to continue counselling with her. He had explained all the external pressures and challenges he was confronted with, and had reflected on the lack of support he had received from his service provider.

The complainant had under the Privacy Act 1993 and the Official Information Act 1982 already obtained information in the form of print-outs of his whole client file on 30 Sept. 2010, which was only reluctantly handed over to him by his counsellor (the Clinical Supervisor). Some information that he found was very disturbing, but it was not until February and March 2011, that the complainant had a clear enough mind-set and sufficient time to look more closely at his client file, in which he found a whole range of mistakes, of completely wrong, inaccurate information. The most numerous and most serious false and misleading entries, some being totally conflicting to earlier entries, had been made by the counsellor he had seen before the Clinical Supervisor. He realised also how “transfer summaries” contained some of these major mistakes and other wrong details, which were then treated as clinical information that his follow-up counsellor would have relied upon, before and during consultations he had with her.

The counsellor he saw during most of 2009 clearly appeared to have developed a bias against his client, and the follow-up counsellor did also reveal a level of bias, as the complainant would discover. The wrong information in the files would have led to serious misunderstandings and misinterpretation of what the complainant – as a client – would have confided to his counsellors. And anyone reading the details (including the Service Manager and others) would also have gotten a distorted impression of the complainant and client. It would then soon also become apparent that some false information had somehow ended up with the client’s GP, who made reference to it in a “host doctor report” the WINZ “designated doctor” who re-examined and interviewed him on 17 June 2010. Other wrong information was apparently also passed on to other providers, without proper, express consent by the client who would soon become the complainant to the HDC. Suddenly the counselling client and complainant could put together a puzzle, which explained why certain information that was totally incorrect or misrepresented had ended up with his GP, with a WINZ doctor, with Cornwall House, neither of whom he ever gave such information.

So the complainant confronted the service provider’s Clinical Team Leader re this and firstly asked for corrections, and then also an apology. A correction was later made by attaching the complainant’s comments to the file, but not by altering earlier entries, which were explained away with bizarre excuses about the counsellor having perhaps “misheard” something. Other details were “not remembered”, and an apology was bluntly refused. For unexplained reasons the Clinical Team Leader soon left to return to his home country overseas, after leaving his position. A follow up Team Leader also rejected to further comment on these matters and also refused an apology. In a letter from 08 June 2011 she used the following comments to justify her predecessor’s actions. She wrote that according to the former Clinical Team Leader there was not “any conclusive finding as to why the exact wording was used by the Clinician in the first instance”. The conversation with the counsellor, to which the complainant had referred to, was “too (far) back in the past”, and the former Clinical Team Leader “did not have any evidence that any negligence or ill-intent was present that would require an apology”. “He therefore regarded the matter as concluded”, she wrote.

This was then the final point where the complainant realised, he had to take this matter further and make a complaint to the Health and Disability Commissioner, as in his views, there were clearly a number of significant breaches made under the Code, during the provision of his health service in the form of counselling from a leading provider of A+D counselling services. The service was clearly intent on covering up the mistakes made, and absolutely refused any responsibility for their staff members for what happened.

The complainant continued his first complaint letter by listing about 19 individual points (see a) to s), pages 16 to 25) of complaint issues, which included details about wrong information put into his client file. He added a number of other “inaccuracies” on page 26 of his letter. Then, from page 26 on, he described how in his view each ‘Right’ under the Code had been breached by the actions or failures of the counsellor/s.

 

Some of the core issues and alleged ‘Rights’ breaches – in brief

The complainant felt the following rights were breached:

Right 1 – subsections (1) and (2)

The counsellor did not treat him with due respect, as he abused his trust, by putting false and misleading information (e.g. about an alleged “assault”) into the client’s clinical file, and by not offering needed, effective support. This appears to have been the result of a personal bias the counsellor developed over time.

The counsellor also failed to give respect to the suicidal ideations of the client (from as early as mid to late April 2009), and only put the client into the “medium” risk category for self-harm in mid December 2009, after another incident where “suicide” was mentioned. This put the client at great risk, which in itself is showing a lack of respect for what the vulnerable client shared in important information that should have been given more credit.

The privacy of the client was breached; because some of the false information (e.g. about an alleged “assault”) was passed on to the service provider’s psychiatrist (see report from 30.07.2010), and to the client’s GP without his knowledge and express consent, and then the GP also shared this information with the WINZ doctor (18.06.2010) and seems to also have shared this information with Cornwall House.

Author’s note: One would think that ‘Right 1’ requires a health professional to give due respect to what the client shares in information, and if in doubt to double check this. Also should privacy rights be maintained at all times – except where valid reasons exist for making exceptions to the rule.

Right 3

The counsellor did not treat the client with the dignity he deserved, as he developed a bias against his client, and as he disregarded his client’s independence when the client was explaining his problematic life circumstances.

The client was not offered the needed, deserved trust and credit he deserved, as the counsellor clearly misinterpreted information provided to him. With an apparent judgmental mindset the counsellor made unjustified presumptions and recorded totally untrue information that would present the client in a very negative way, virtually as a “predator”.

A comment like: “He frequently advertises for flatmates whom he desires to be close friends with and also hopes to meet someone with whom he can develop an intimate relationship”, which does in no way reflect what the client claims he ever said or intended, is highly irresponsible and indicative of a lack of respect for the dignity of the client.

Author’s note: Such misrepresentation based on misunderstandings may reveal more about the questionable mindset of the counsellor than the client.

Right 4 – especially subsections (1), (2), (4) and (5)

The counsellor made a large number of inaccurate entries in the client’s file, some apparently as honest mistakes, but others hard to explain as such, some of which were rather serious.

The counsellor displayed a clear lack of diligence, care and skill, particularly in his qualitatively poor record keeping.

Failing to keep accurate and fair records does not meet the professional standard one must expect of a counsellor working in A+D treatment with vulnerable clients some of whom suffer from complex mental health issues, as it puts them at risk, when other professionals rely on false information in their files.

The client was put into disrepute, and professional and ethical standards were not met by the counsellor, who also appeared to have developed a bias against the client.

Potential risks were ignored or treated with negligence, through wrong record keeping and also ignoring privacy rules. Consequential harm was suffered, as other professionals accepted the false information as being truthful and reliable, and thus misunderstood and wrongly assessed the client in following examinations and discussions, which led to a worsening of the client’s life circumstances and his general mental and also physical well-being.

Right 5 – subsections (1) and (2)

The client’s open, honest and at times effective communication of his problems and challenges were either misunderstood, or intentionally wrongly judged, given a detectable bias by the counsellor, which means the counsellor made it impossible that Right 5 could be upheld in the given poor counselling relationship.

In hindsight, there was no safe environment for the client to communicate openly, honestly and effectively, as the counsellor appeared to abuse the trust of his client, by not recording information provided to him in an objective, truthful, correct and proper manner. The client will not have known this (prior to reading his own file), that his communications were not treated as they should have been, and thus not honoured.

Author’s note: One may add, that the counsellor himself may have had difficulty with communicating openly, honestly and effectively, as the complainant described him as at times giving conflicting information and being somewhat inconsistent or ambiguous.

Right 10

The service provider accepted the formal complaints the client made on 13 and 15 April 2011, but the Clinical Team Leader did not accept the allegations made in the complaint, and hence never accepted any responsibility of their staff member/s or the service for the wrong entries. An apology was firmly refused.

All following complaints correspondence led to no resolution of the complaint matter. A final letter from 11 June 2011, with which the client sought further explanations and clarifications re his complaints, was never responded to by the service provider.

This displays a poor complaint handling, where explanations given in the defence of the counsellor/s were simply not convincing and nothing but an attempt to cover up irregularities that should never have been allowed to happen. The complaint was in the eyes of the complainant not addressed properly, fairly and professionally.

(You can read the details about the above in the complete complaint letter to the HDC!)

 

Comprehensive documented evidence provided with the complaint letter

The rather comprehensive complaint was supported by a substantial amount of evidence, some of which was apparently directly relevant, and the rest was only offering additional information, that could have assisted the HDC, should any questions have arisen, needing clarifications about the truthfulness and reliability of comments made by the complainant.

The attached documents were numbered and listed from 1 to 117 (see pages 37 to 40 of the letter). We understand that the complainant put so much effort into his correspondence, as he feared that his virtual run through hell with unhelpful state agencies, health service providers, at times incapable counsellors, and also the law enforcement and judicial officers he had to deal with, would simply not be believed without the provided detail and evidence.

In hindsight, I think it is fair to say, he misjudged the HDC Office staff, who were definitely anything but sympathetic and understanding, and felt overwhelmed by the 40 page complaint, with which they would not want anything to do.

 

Here are only some PDF files that contain full or parts of the crucial and relevant evidence that was sent to the HDC then, most of which will also be provided again via links further down in this post:
HDC Complaint, WDHB counsellor, complainant client file extract, 20.04. – 04.07.2009
HDC complaint, WDHB counsellor, complainant client file extract, 23.07.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 19 – 31.08.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 23.12.09 – 06.05.2010
HDC complaint, WDHB counsellor, provider psychiatrist report on complainant, anon, 27.08.08
HDC complaint, WDHB counsellor, provider psychiatrist’s 2nd assessmt on client, anon, 30.07.10
HDC complaint, WDHB counsellor, complainant’s own Dr report to Design. Dr, hilit, anon, 18.06.2010
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 19.06.08
HDC complaint, WDHB counsellor, complainant’s police bail form, mid-late April 2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 22.04.10
HDC, Complaint, C12HDCxxxxx, complainant, own doctor WINZ disab. cert., anon, 17.06.10

A fair few other evidence files were sent, but as we have no anonymised copies we will not present them. Also were some files only of secondary importance. Others are attached to this following post which covers another valid complaint the complainant made to HDC:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

 

All complaint emails were confirmed as received by emails from the HDC Office

Upon having sent altogether 30 emails with a range of attachments with evidence, the complainant wrote back to the HDC, asking for a confirmation of his complaint emails, which was then provided by email in the late afternoon at 04:26 pm on 08 August 2011 by the HDC Office’s Executive Assistant Kerry Norman.

The following scan copies of emails sent and received on 08 Aug. 2011 confirm this:
HDC complaint, WDHB counsellor, complt email 30, copy, anon, hilit, 04.11h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, hillit, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, emails confrmd recd, 15.09h-16.46h, hilit, 08.08.11

 
 

PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY

 

After having gone to great lengths, to record and present every relevant complaint aspect, and having explained how each relevant ‘Right’ in the Code, same as the DAPAANZ ‘Principles’ and ‘Core Values’, had been breached by the one counsellor, and to a lesser degree by a follow-up counsellor, the complainant was surprised when on the following day on 09 August 2011 a staff member of the HDC phoned him. The young man appeared to be an Assessor.

At about 11:35 hours on that day, a young man, who we will call Mr Axxx Lxxxxx, phoned the complainant, claiming that his complaint could not be processed, as they could not open his emails, which were “freezing” their system. Somewhat astonished the complainant challenged the young man re that, stating that all emails were of ordinary size and type, with a few PDF attachments that were also of normal size. Any common email system would be able to receive and open them, he commented. He also informed the man that he had received a confirmation that the emails had all been received. The young staff member though was completely reluctant to accept the complainant’s view and position, and instead stubbornly insisted on a new, “summarised” complaint that should not be longer than two pages. The complainant explained that this was impossible to do, as there were complex matters involved, so he did not accept what the staff member said to him. In the end, he felt forced though, to consider the matter and get back to the HDC Office at a later stage.

It was not until 17 November 2015 that the HDC Office finally provided a phone log, which they then claimed had in error first been loaded onto another file that contained one generic, earlier complaint by the complainant from 2007(!). It had later been transferred to the “correct” file under C11HDCxxxxx in March 2012, when the mistake had been noted. Hence there was an “Edit” note at the bottom of the log referring to ‘06/03/2012, 11:39:56 a.m.’. This log entry had never been provided to the complainant upon any earlier Official Information Act 1982 (O.I.A.) or Privacy Act 1993 (P.A.) requests he had made.

The contents of that log entry has recently been disputed by the complainant, who raised issues re all this with the HDC Office, but while some comments by the staff member are apparently completely untrue, we present a scan copy of this log here:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11

As far as the complainant recalls and has on record, Mr. Axxx Lxxxxx never talked about administrative or time and resources issues with processing the large volume of the complaint, he only spoke about the technical issues where the emails were “freezing” their system.

So the HDC did basically refuse to accept the initial complaint sent in by the complainant, offering somewhat unbelievable and bizarre explanations about their computer system not being able to cope with the size and volume of the emails, which though appeared to have been received and internally passed on to an Assessment Manager without any problem.

Also did the Assessor note in his log entry that on one hand he told the complainant they could not open the emails, yet at the same time he noted (after insisting on a 2-page complaint and new email): “We would then assess it, and if necessary process the rest of the data he sent in”. So that clearly refers to the information he had then already received and before him. This reveals a clear contradiction that he made, which discredits him as HDC staff member and basically exposes him of having told the complainant lies!

The complainant is now of the view, that the phone log for 09 August 2011 was re-edited and changed from the original entry, which the HDC though dispute.

 

The second ‘Summary Complaint’, which makes references to already sent evidence

After much consideration, the complainant reluctantly prepared a ‘Summary Complaint’, as he felt the HDC staff member had left him no other option. So he concentrated on some main points that were at issue, and summarised the most important and relevant information that now covered 3 pages. Even with the greatest effort to reduce the complaint matter that he considered as absolutely essential to cover, it was impossible to condense this to only two A4 size pages of paper.

Here is an authentic transcript of the ‘Summary Complaint’ that was sent to the HDC by email on 10 August 2011:

 

“09 August 2011

Attention: The Health and Disability Commissioner

Re: Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ and the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association, Aotearoa-New Zealand’ (DAPAANZ)

Dear Madam / dear Sir,

Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, which I am presenting by way of this letter in a summarised form. This letter is in relation to a comprehensive complaint already sent to you by emails on 08 August 2011(with substantial relevant documentation).

At the same time I wish to state that this complaint also covers breaches of the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association Aotearoa-New Zealand’ (in short DAPAANZ).

Summary of aspects of counselling treatment and service at issue that require investigation:

As a person suffering from serious mental health conditions like alcohol dependency, xxxxxxxxx xxxxxxxxxx disorder (XXX), depression and anxiety, I have been in treatment with XXXX-Xxxx for addressing my alcohol issues from xx February 2008 onwards.

Following a year of some limited success in addressing my alcoholism (at XXXX-Xxxx) and also (insufficiently) XXX (at St Lukes Community Mental Health Centre), I was in early 2009 transferred to a new counsellor by the name of Mxxxxxx Sxxxxxxxx, who is a qualified clinician working as a counsellor.

From xx March until 23 December 2009 I received regular counselling treatment from Mxxxxxx Sxxxxxxxx, who made substantial efforts to gain my trust, but who was evidently struggling to provide me with the kind of support that I required while dealing with very serious life challenges that included problems with alcoholic relapses, poor housing, noise from neighbours, financial pressures, minimal support from state agencies and some incidents of a legal nature.

Mxxxxxx Sxxxxxxxx confided to me that he had no first hand health issues with alcohol himself, but that he had himself experience with another type of addictive behaviour, which over time appears to have brought him into working as a counsellor.

While I was going through repeated periods of serious crisis, Mxxxxxx Sxxxxxxxx failed to understand, appreciate, and appropriately act upon and/or offer urgently needed psychological, emotional and practical support, to assist me as his client in dealing with the very upsetting experiences and challenges I tried to cope with. He also failed to accept and address his own professional deficiencies by not offering me a more competent alternative for counselling of alcohol dependency.

As I would later (after receiving my client file upon two Official Information Act requests) discover, he furthermore repeatedly entered completely incorrect, inaccurate and even biased information into my client file, which included information that was consequently made available and passed on to other professionals working in mental health and other areas.

This obviously resulted in substantial misinterpretation, misunderstanding, wrong assessments and judgments made about my true health conditions, my personality, thoughts, emotions, and my motivations by other health professionals who relied upon this information.

By refusing to offer proper, practical support by stating known, identified core mental health details in a letter I requested in Dec. 2009, in order to present it in support of an application to access additional support for addressing very serious matters, that would without it lead to a major aggravation of stressors I already suffered from, Mxxxxxx Sxxxxxxxx did personally contribute to the resultant continued worsening of my general mental health situation.

It was his neglect, personal bias and other professional misconduct, combined with clear incompetence, which resulted in me experiencing a progressive break-down and deterioration in my voluntarily started treatment program, ultimately leading to me feeling abandoned and having to withdraw from involvement with a follow-up counsellor (Lxxxx Xxxxxx), who relied on the same incorrect information supplied by Mxxxxxx Sxxxxxxxx for the agreed transition to her as my new counsellor. She consequently also failed to understand the seriousness of issues I was dealing with.

To a lesser degree, but still in an equally concerning manner, Lxxxx Xxxxxx did also omit important information from my client file at XXXX-Xxxx, which happened during the period when our counselling relationship started to seriously deteriorate, due to my loss of trust in her as a fill-in counsellor for Mxxxxxx Sxxxxxxxx, and due to her not fully understanding issues (again due to being misinformed).

One specific item of information that Mxxxxxx Sxxxxxxxx misrepresented in his clinical notes, was the conversion of an earlier entry for a “criminal” charge laid against me for alleged “threatening behaviour” (commonly also known as “intimidation”) – into a supposed charge for “assault on a neighbour”. He also made wrong assertions that I was as a tenant “looking for flatmates with whom I could develop an intimate relationship”.

I never intended such, and it was only a specific incident in August 2009, where misunderstandings between a boarder and me, following an incident involving other persons, as well as due to her personal conduct, led to irritations that caused her to move out again on short notice. True information confided to M. Sxxxxxx was clearly changed by him into false, incorrect and inappropriate information, because he drew unjustified and unreasonable presumptions, and thus misrepresented details.

Phone messages indicating suicidal tendencies I had were not properly addressed by Mxxxxxx Sxxxxxxxx, and he kept me on a “low risk” category for months, before realising upon consulting other staff involved by 14 Dec. 2009, that I should be put into “medium risk for self-harm”. He failed to acknowledge that I had been taking certain medication for most of the time he counselled me.

Lxxxx Xxxxxx did also not enter very important details into my client file, which should have been noted down and reflected true events that occurred, where I did in email letters and phone messages express immense distress, disappointments, suicidal ideas, great misgivings about my treatment by certain government agencies, as well as the lacking understanding, appreciation, support and action by her and XXXX-Xxxx as the service provider.

One of the reasons given was that XXXX staff “would not reply to email correspondence”.

Requests for correction of the mistakes in my client file were not complied with satisfactorily, no assurance was given that mistakes had actually been corrected, and an apology was refused, despite of clear evidence that serious inaccuracies and mistakes were recorded/made.

There are numerous other details re incidents where inappropriate and insufficient service delivery, support and incorrect information are evident at XXXX-Xxxx, which have caused me to prepare a very comprehensive and lengthy complaint, which entails all aspects, details and relevant information that will definitely be required to establish the facts as they are.

After having assessed the complex issues involved myself over recent times, the following points rights and principles have definitely been breached by Mxxxxxx Sxxxxxxxx of XXXX-Xxxx at x Xxxxxxx Xxxxx in Xxxxxxxxx, Auckland. Some of those have apparently also been breached by Lxxxx Xxxxxx and the acting Clinical Team Leader/s at XXXX-Xxxx:

Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland during counselling received there from 2008 until 2010:

Right 1 – Right to be treated with respect
Right 3 – Right to dignity and independence
Right 4 – Right to services of an appropriate standard
Right 5 – Right to effective communication
Right 10 – Right to complain

Under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ the following principles and/or core values have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland:

1. Respect for the dignity of others
2. Beneficence (to do good) and nonmaleficence (to do no harm)
3. Trust
4. Confidentiality and privacy
5. Promotion of client autonomy
6. Honesty & Integrity
7. Fairness
8. Skilfulness
9. Professional conduct

In regards to the summarised complaint made here, I must stress, that it is essential to view the already supplied information, particularly the 40 page letter of complaint (in PDF format), as well as relevant excerpts of my clinical file at XXXX Xxxx, a so-called “host doctor report” by my own GP, Dr Xxxxx Txxxxxx (of 18.06.2010), a report by XxxXXXX Psychological Services, dated xx February 2011, as well as psychiatric assessments delivered by Dr Jxxx Bxxxx of XXXX. There are two versions of each assessment done (1 on 27.08.2008, 1 on 30.07.2010), as earlier ones contained mistakes, and the final ones were corrected versions, that still contained a few “minor” mistakes.

This complaint addresses very serious matters that occurred while consulting a leading provider in substance dependency and mental health services, and it is absolutely paramount that this complaint gets treated very seriously and fairly, because negligence, professional misconduct and the resulting developments that happened due to other providers relying on the wrong information recorded in my client file, did lead to major upset and substantial harm I suffered as a client of that service. My rights and interests as patient were not met and upheld.

Standards in mental health and addiction treatment services must at all times deserve to be upheld and enforced in the same way, as it is expected to be done in other health areas!

I expect that a thorough investigation into the conduct of Mxxxxxx Sxxxxxxxx, as well as of Lxxxx Xxxxxx, Dxxxx Fxxx and Dxxxxx Kxxx at XXXX-Xxxx.

Yours sincerely and thankfully

Xxxxxxx Xxxxxx

Attachments:

PLEASE SEE SELECTED FILES ATTACHED TO THE EMAIL(s) CARRYING THIS LETTER! “

 

A copy of the ‘Summary Complaint’ letter itself (dated 09 August 2011), and the 3 emails that carried it – plus a selected number of accompanying attachments with some important documented evidence – can be found here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, summary complt, anon, 09.08.2011

HDC, C11HDCxxxxx, WDHB counsellor, Summary Complaint, all emails, 10.08.2011

HDC Complaint, WDHB counsellor, complainant client file extract, 20.04. – 04.07.2009

HDC complaint, WDHB counsellor, complainant client file extract, 23.07.2009

HDC complaint, WDHB counsellor, complainant’s client file extracts, 23.12.09 – 06.05.2010

HDC complaint, WDHB counsellor, provider psychiatrist report on complainant, anon, 27.08.08

HDC complaint, WDHB counsellor, provider psychiatrist’s 2nd assessmt on client, anon, 30.07.10

HDC complaint, WDHB counsellor, complainant’s own Dr report to Design. Dr, hilit, anon, 18.06.2010

HDC complaint, WDHB counsellor, complainant’s psychological report, anon, 13.10.2010

Email 1 from 0:31 am on 10 Aug. 2011 had the following PDF attachments:
1). A copy of the ‘Summary Complaint’ letter from 09 Aug. 2011,
2). Copies of the client’s file notes from the provider fr. 20.04.-25.06.09, pages 61-66,
3). Copies of the client’s file notes from the provider fr. 07.07.-03.08.09, pages 67-70.

Email 2 from 0:33 am on 10 Aug. 2011 had the following PDF attachments:
1). Copies of the client’s file notes from the provider fr. 15.01-06.05.10, pages 13-18 of 27,
2). Copy of the provider’s psychiatrist’s 1st assessment on the client fr. 27.08.08,
3). Copy of the provider’s psychiatrist’s partly corrected 1st assessment on the client fr. 27.08.08.

Email 3 from 0.34 am on 10 Aug. 2011 had the following PDF attachments:
1). Copy of the provider’s psychiatrist’s 2nd assessment on the client fr. 30.07.10,
2). Copy of the provider’s psychiatrist’s 2nd partly corrected assessment on the client fr. 30.07.10,
3). Copy of the complainant’s GP’s “host doctor report” to a WINZ Designated Doctor, containing mistakes, fr. 18.06.10,
4). Copy of a report and treatment plan from a psychological service provider for the complainant, sent to his GP on 13.10.10,
5). Copy of a consultation summary report from a psychological service provider on the complainant, sent to his GP, dated 04.02.11,
6). Copy of the complainant’s GP’s ‘Work Capacity Medical Certificate’ issued for WINZ, dated 21.07.11,
7). Copy of assessments by ‘St Luke’s Comm. Mental Health Services’ on the complainant, fr. 12.01.-13.02.06,
8). Copy of a ‘Disability Certificate’ on the complainant, for WINZ, issued by his GP, from 03.02.06.

So while the above links to the PDFs do not cover all of this, they cover most of that is relevant.

Now the complaint did at least cover the core issues, but the HDC would have needed to also look at the letter sent earlier, plus the evidence in attachments, that was relevant.

The complainant did make sure that he expected the HDC staff to look at the evidence he already sent with the initial complaint, as that would be essential to do. The fact that the HDC never got back for clarifications gave the complainant the impression that the HDC staff did have all the earlier emails and would look at what they deemed relevant.

Only by way of a brief letter dated 15 August 2011 would the HDC Office now confirm the receipt of the complaint. A copy of it is here:
HDC complaint, WDHB counsellor, HDC ltr confirming assessment, ltr, 15.08.2011
HDC complaint, WDHB counsellor, HDC ltr confirming assessmt, hilit, 15.08.2011

For a number of months the complainant would not hear anything back, so he trusted all was ok and would be looked at in a thorough manner.

 
 

PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’

 

While the complainant would not hear back for months, the HDC staff would in the meantime prepare file records that would only later come to the attention of the complainant as a result of Privacy Act and Official Information Act (O.I.A.) requests, which he would then make.

Firstly a record was created in a ‘New Complaint Triage file’, which would on one page show a date for a Triage meeting being ‘8/8/2011’ (see the top of the second page of the scan copy). But apart from that it would show a “complaint received” date being 11 August 2011. A summary of the complaint text would be entered, which the complainant would later find to also contain some inaccuracies and not being complete. See the following links to a copy of that file record, which the complainant would only receive much later on 26 March 2012, after O.I.A. and Privacy Act requests:
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, 11.08.2011
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, hilit, 11.08.2011

The staff would add further information to the newly created complaint file, in the form of what they call a ‘Complaint Summary’ form, with some basic core details about the complainant and his complaint. See the following links to a PDF with a scan copy of this:
HDC complaint, WDHB counsellor, Complaint Summary, anon, 12-16.08.2011
HDC complaint, WDHB counsellor, Complaint Summary, anon, hilit, 12-16.08.2011

Also would they prepare a letter dated 15 August 2011, which was then sent to the complainant, who would receive it a few days later. All it informed about was that an assessment would be made of the complaint, and that a response would be due within 6 weeks. A link to a scan copy of it was already provided above.

 

The HDC requests an “overview of care” response to the complaint from the WDHB

On 06 October 2011 the HDC (Axxx Lxxxxx, Complaints Assessor) would then write to the Chief Executive Officer of the Waitemata District Health Board (WDHB), Mr Dale Bramley, informing him of the received complaint, and seeking a response to the complaint, along with any relevant clinical notes and documentation. The letter was sent by the HDC to the WDHB, because the service provider was part of services offered by that Health Board. The letter also mentioned that: “Mr Xxxxxx’x complaint is of an unusual length and complexity, and, as such, rather than responding in detail to each individual issue raised, it may be helpful to instead provide a general overview of his care.”

The text of this letter, which would also only come to the attention of the complainant at a later stage, did actually indicate, that the HDC was in receipt not only of the summary complaint sent in on 10 August 2011, but also of the complete complaint letter from 08 August 2011, as comments were made re the “unusual length and complexity” of it. The summary complaint did not match such a description, so there can be no doubt that the HDC had kept at least some of the initially sent in complaint they received and had confirmed on 08 August 2011! A scan copy of this letter can be found via these links:
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview resp., 06.10.2011
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview, hilit, 06.10.11

Having received the complaint, the Service Manager of the provider agency would on 20 October phone the responsible staff member (the Complaints Assessor) at the HDC Office to seek some clarifications. He would at about 11:58 h ask about whether the HDC staff member actually meant that he requested “all relevant notes”. He apparently claimed that the client’s records were “extensive to the point that they would need to hire an extra employee to manage this task”. Upon this the staff member at HDC advised him that they certainly did not require this information, and that they only needed “a high level summary of his care/concerns and the clinical records necessary to support this”. The later obtained log entry from the complainant’s file covering this phone conversation would be made available later, and is found via these links:
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, 11.58h, 20.10.2011
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, hilit, 11.58h, 20.10.11

 

The WDHB’s prepared and later communicated response to the complaint matter

Some time after this the Chief Executive of the WDHB would write back to the HDC Office and present copies of the client’s file, which contained notes for counselling sessions attended from February 2008 to 23 December 2009, and also separate notes for sessions from January 2010 until early December 2010, plus notes re correspondence and communications between the client and the service provider into early 2011. The notes included the relevant ones already mentioned and listed above under ‘A copy of the ‘Summary Complaint’ letter itself..’

Here are links to a PDF showing handwritten notes the Service Manager left on a front page of the provided client notes on 25 October 2011:
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy anon, 25.10.2011
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy, hilit, 25.10.2011

He clearly states that notes for prior to 2008, a large volume of letters, MH (mental health service related) notes and psychiatric assessments were not included! This is important, as some of this would have shown a much clearer picture of the client’s medical conditions, treatment received and issues he experienced and also complained about over time.

The full response letter sent by the Chief Executive for WHDB to the HDC Assessor on 26 Oct. 2011, which included the client notes just mentioned, can be found via these links:
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, 26.10.2011
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, hilit, 26.10.11

As discussed between the HDC staff member Axxx Lxxxxx and the Service Manager at the provider as part of WDHB, the Chief Executive Officer, Mr Dale Bramley, did in that letter simply provide “a general overview of Mr Xxxxxx’x care”, rather than respond in detail to each issue raised. This must have been a convenient opportunity to stress such information that he deemed important of helpful (for WDHB and the provider), and to not present information that could show the provider in any bad light. The Chief Executive then gave a historic overview of the client’s and complainant’s engagement with the service provider from January 2006 to April 2011. It was mentioned that the client received 200 face to face outpatient treatment sessions. The client had concurrently been seen by Mental Health Services, for treatment of a disorder, depression and suicidal ideations, which were exacerbated when under the influence of alcohol, he would write. The client’s long term alcohol dependency issues treatment was described by him. The Chief Executive wrote that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years) did not prove effective to address his alcohol dependency”. Mr Bramley then wrote: “Mr Xxxxxx did not wish to pursue any of these options”.

The client’s two “reviews” (2008 and 2010) by a psychiatrist were mentioned, and what had been recommended to the client’s GP for medication to treat the mental disorder. On the second review that disorder was “not considered a significant problem at that time”.

The Chief Executive wrote that the client had on several occasions requested assistance in matters “that are clearly outside the scope of our service”. He mentioned examples relating to treatment the client had received from the New Zealand police and support he sought to ensure his retention of an allowance from WINZ. He then wrote: “Mr Xxxxxx objects if his expectations in such matters cannot be met”. Two formal complaints by the client were mentioned, the reply from the Service Manager to the most recent one being attached, and further reference was made to phone calls and letters in which the client allegedly held the health system, and staff and management of the service provider responsible “for his situation”.

The WDHB boss claimed that “all of the changes of XXXX clinicians described by Mr Xxxxxx were made at his request, except for one occasion”. He wrote the service continued to offer treatment, “within clear boundaries (e.g. dealing with one clinician only, restricting contact to regular appointments rather than phone calls and lengthy emails)”. He wrote: “This action was decided in consultation with the service psychiatrist and the clinical psychologist in order to ensure clear continuity of care but also to help with what the treating clinicians had considered Mr Xxxxxx’x at times offensive verbal and written comments to staff”.

Then the Chief Executive addressed the complaint letter to the HDC, and he believed that the client’s most recent “objections” were related to client file entries from a previous counsellor, whom he names as Mxxxxxx Sxxxxxxxx. The words “threatening and intimidating behaviour” were referred to in relation to an incident the client described during a counselling session. Mr Bramley wrote the counsellor had written down the word “assault” in his case notes instead of the client’s description of an incident, where he used the words “threatening and intimidating behaviour”. Dr Bramley then appeared to admit in his letter that the word “assault” had been used by the counsellor in a letter to the client’s GP, who then used that word in a letter in connection to a “benefit query” with WINZ. The Chief Executive of WDHB then writes, that when the client’s benefit was reduced, he attributed this to the wrongly used term “assault”, believing the benefit would not have been affected, had the correct term “threatening behaviour” been used. Hence the client complained about the use of the wrong term. In his letter Dr Bramley from the WDHB claims the counsellor was “unable to remember” if at the time the term “assault” had actually been used by the client, but “could not exclude that he might have misheard”.

Dr Bramley wrote that the service therefore agreed to add the client’s wording to the file entry (as per Health Information Privacy Code Rule 7, point 3). Then he wrote that the client misinterpreted this readiness by the service provider to add file corrections as an admission of incorrect records by the counsellor, and insisted on an apology. He continued stating: “The service expressed its regret for the sense of dissatisfaction Mr Xxxxxx experienced, and that the service he received left him feeling this way.” Dr Bramley concluded with the comment: “Subsequently (April 2011) Mr Xxxxxx decided to disengage from XXXX”. He also added: “XXXX remain open to re-engage with Mr Xxxxxx any time should he wish to address his alcohol problem”.

Apparently in order to show their service provider in the best of light, and on the other hand trying to discredit the complainant, only one reply letter was selectively presented to the HDC, in order to show how the complainant’s last written formal complaint to the service in question had been treated and decided. Neither was any information about the complainant’s letter to the provider presented, nor any other relevant information that would cast doubt on WDHB. This letter from the Service Manager, dated 30 June 2010, can be found via these links:
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complaint, 30.06.2010
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complt, hilit, 30.06.10

 

As the complainant has confided to us, and repeatedly re-assured us, the letter by Dr Bramley contains mistakes, inaccuracies, is misleading and is far from representing the true course and details of events and incidents, as he experienced them during the various periods of treatment he received from the service provider. The Chief Executive’s comments that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years), did not prove effective to address his alcohol dependency”, and that “Mr Xxxxxx did not wish to pursue any of these options”, were absurd. Why then had he sought their “service” for over 200 sessions? It clearly was a “white wash”. The contents of this letter would also not be known to the complainant for some time after it was sent to the HDC, as it was left lying in the HDC Office for many months, supposedly being “under review”.

In the meantime, and after all the above had occurred without the knowledge of the complainant, he was left waiting. As Christmas was approaching, he did then at about 11.50 or 11.55 h on 13 December 2011 decide to call the HDC Office, as nothing appeared to be happening. He spoke with a young female staff member at the Office and asked for an update on his complaint. As the staff member informed him that her colleague who had assessed the complaint was presently unavailable, he asked for that person to call him back.
Here are links to a PDF with a HDC log entry made after that call:
HDC complaint, WDHB counsellor, log entry, complainant ph. call, 11.55h, 13.12.2011
HDC complaint, WDHB counsellor, log, complainant ph. call, hilit, 11.55h, 13.12.2011

Later on that same day at about 14;51 h, the Complaint Assessor handling the complaint C11HDCxxxxx phoned the complainant and informed him, that the matter was still under review, and that he would likely hear back from the HDC Office in January 2012. See a PDF with a copy of the later received phone log for that time and date via this link:
HDC complaint, WDHB counsellor, log, Complaint Assessor’s ph. call, hilit, 14.51h, 13.12.11

 

The Deputy Health and Disability Commissioner’s “decision” on the complaint

Christmas 2011 came and passed, so did January 2012, and there was still no response from the HDC Office. It would finally be on 25 February 2012, when the complainant received a decision letter from the HDC, dated 24 February 2012, which he read in total disbelief. Theo Baker, Deputy Health and Disability Commissioner, listed only five bullet points that summarised the whole complaint, and then referred to a response their Office received from the Chief Executive of the WDHB (dated 26 Oct. 2011), giving an “overview” of the “care” provided to the complainant and former service client.

The bullet points listed under ‘Your complaint’ and following the sentence “You wrote to the Commissioner’s office and advised that your counsellor Mr Sxxxxxxx” – were the following:

“● Refused to acknowledge and address his professional deficiencies.
● Failed to offer you “a more competent alternative for counselling of alcohol dependency”.
● Failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Incorrectly categorised you as “low risk for self harm”.
● Entered incorrect and biased details in your records, resulting in misinterpretation and inaccurate assessments of your condition by other health professionals who relied on his observations.”

Ms Baker then added: “You are also concerned that locum counsellor, Lxxxx Xxxxxx, failed to document important details relating to your misgivings about your treatment and suicidal ideation on your client file. You advised that requests for errors in your client file to be corrected had not been met by XXXX Xxxx.”

Under the heading ‘Response from Waitemata District Health Board’ she then quoted somewhat selectively from Dr Bramley’s letter, which she herself also described as an “overview of the care provided” to the client and complainant. She stressed that except for one case, all changes in the client’s treating clinician had been requested by himself. She accepted the Chief Executive’s explanation that the treatment offered was “within clear boundaries”. She also accepted his comments that the service provider was “open to re-engage” with the client at any time, should he wish to seek treatment. She apparently fully accepted the Chief Executives explanations for how the use of the term “assault” by the counsellor happened. She also simply accepted his words for how the complainant’s words re the incident had been added to the client file. She wrote also: “Dr Bramley notes that this amendment was not an admission of an inaccurate record”.

And under ‘My decision’ Theo Baker then explained that after her assessment she had decided “that further investigation is unnecessary”. She claimed she had “fully reviewed” WDHB’s response and the provided copies of the complainant’s clinical notes. She wrote that it seemed to her that the DHB had handled the incident where potentially inaccurate information was added to the client’s clinical notes “in an appropriate manner”. She was “unable to discern any such omissions”, where relevant information had not been entered into the file, and she was “satisfied” that the service provider was continuing to offer the complainant “with care of an appropriate standard”. She suggested the complainant and former service client contact the Privacy Commissioner, should he have other concerns about inaccurate information in his file. Finally acknowledging “a wide range of concerns” that the complainant had raised, she wrote, that “despite every effort being made, it is not always possible for service providers to provide counselling services that meet every need of every client”. She closed off with the words: “Based on my examination of your complaint, and the response provided by Dr Bramley, I am confident that XXXX Xxxx is committed to providing you with consistent and dependable support. I trust this process has helped to resolve some of your concerns”.

Attached to this “decision” letter was the response received from Dr Bramley, Chief Executive of WDHB, dated 26 October 2011, which we already offered via a link further above. The full response by Theo Baker from 24 February 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC’s initial decision, complete, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial decision, compl., hilit, T. Baker, 24.02.12

She would at the same time send a letter with her decision to the WDHB, found via these links:
HDC complaint, WDHB counsellor, HDC’s initial dec. ltr to WDHB, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial dec. to WDHB, T. Baker, hilit, 24.02.12

The complainant would later on receive a copy of it in response to an O.I.A. and Privacy Act request.

 

O.I.A. and Privacy Act requests to the HDC, and response received in March 2012

The complainant was rather shocked and also furious at this dismissive decision that had been sent to him. He now mistrusted the HDC Office and their Commissioners and staff, and he now remembered again, how the Complaints Assessor had on 09 August 2011 told him his unconvincing story that the full complaint sent by 30 emails could not be opened, as it allegedly “froze” their system. He had thought this was a weak, unconvincing excuse, as the staff member may not have wanted to process a comprehensive complaint. He remembered how he was forced to re-submit a much abbreviated complaint. Although he had expected the HDC would also still look at the earlier sent complete complaint letter and any relevant evidence sent with it, he now started to wonder what had really happened.

Hence he soon prepared a request under the O.I.A. and the Privacy Act 1993, which he sent of f on or shortly after 04 March 2012. He asked for an authentic copy of the letter the Complaints Assessor had sent to WDHB on 06 Oct. 2011. He also requested any notes, transcripts of phone calls made between WDHB and the HDC Office, as well as emails that had been exchanged. Photo copies or printouts of all memos or other written communications exchanged and communicated between staff at the HDC acting in relation to this complaint, same as notes or transcripts of internal phone calls or formal discussions were asked for.
The following link shows a PDF file with the authentic text of that request from 04 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, O.I.A. + Priv. Act rqst, anon, 04.03.2012

 

On 26 March 2012 the complainant received a response to his requests (see above), which was dated 23 March 2012 and signed by Lydia Wadsworth, Legal Advisor to the HDC. Enclosed in her response were the following documents, as quoted:
“● Letter from Complaints Assessor Axxx Lxxxxx to Waitemata District Health Board dated 06 October 2011.
● Complaint summary printed 27 February 2012 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act).
● Letter from Deputy Health and Disability Commissioner Theo Baker to Waitemata District Health Board dated 24 February 2012.
● Record of telephone conversation between you and Mr Lxxxxx dated 13 December 2011.
● Record of telephone conversation between you and Complaints Assessor Jxxx Fxxxx dated 13 December 2011.
● Letter from Waitemata District Health Board to Mr Lxxxxx dated 26 October 2011, and your clinical notes as enclosed with that letter.
● Record of telephone conversation between Mr Lxxxxx and Waitemata District Health Board 20 October 2011.
● Administrative record of letter sent to you on 15 August 2011.
● The Complaints Assessment Triage Form.
● Complaint summary printed 16 August 2011 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act). …….”

The following links will load a PDF with the authentic copy of that O.I.A. and Privacy Act response from 23 March 2012:
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, 23.03.2012
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, hilit, 23.03.12

 

What would also only come to the attention of the complainant much later in the process, once further O.I.A. and Privacy Act requests would be filed and responded to by the HDC, is the fact, that on 27 Feb. 2012 the ‘Complaints Summary File’ would internally be updated. Here is a link to a scan copy of that updated file:
HDC complaint, WDHB counsellor, Complaint Summary, updated, hilit, 27.02.2012

 

The complainant’s response to Theo Baker’s first “decision”

After having received the completely unacceptable, in view of the complainant appalling decision by Theo Baker, the complainant prepared a response letter to the Commissioner. This 17-page response, dated 27 March 2012, was sent off by email in the early morning of 28 March 2012, and asked for re-assessment of his whole complaint. He expressed that his complaint had not been dealt with properly, had not been taken serious, and had resulted in a completely biased, unfair and unreasonable “white wash”. He expected that all documentation and correspondence should be thoroughly examined, in order to give a properly researched, correct reply in due course. He also expected that each individual breach of rights under the ‘Code of Health and Disability Services Consumer Rights’ and of the principles/core values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association of Aotearoa – New Zealand’ should be replied to separately.

In the beginning of the letter the complainant gave a chronological description of how he sent in his first complaint on 08 August 2011, and then a summary of his complaint (dated 09 August) on 10 August 2011. He critically explained how the Complaints Assessor Axxx Lxxxxxx did phone him on 09 August to claim unconvincingly that they could not download and open the sent emails, as that they were “freezing” their system. Hence they could not be processed. He criticised how the HDC staff member stubbornly insisted on a summary complaint of only two pages having to be sent in. This was not possible given the comprehensive course of developments and details, the complainant stated. He wrote that he had only reluctantly sent in a summary complaint, so the HDC staff would look at and analyse his complaint. Also did he mention, that in order to avoid any misunderstandings, and to ensure that ALL relevant information would be taken into consideration, he had in his summary complaint insisted on the earlier sent correspondence (with attachments) from 08 August 2011 to also be considered in the whole context of the complaint matter.

He then gave a summary of the correspondence that he had so far received from the HDC Office, upon sending in his complaint letters and attachments. He also mentioned the phone calls made and received on 13 December 2011.

Re the Deputy HDC’s decision dated 24 February 2012 he expressed his absolute astonishment and greatest disappointment with the explanations given in that letter. He criticised how the Deputy HDC had primarily – or almost exclusively – only focused on the one incident where the XXXX counsellor had added “potentially inaccurate information” to his client file. This was in relation to the recording of an “assault” (that never happened) rather than the earlier correctly recorded “threatening” or “intimidating behaviour”.

He criticised that the Commissioner had otherwise not addressed any of the other issues that were raised re a fair number of wrong file entries that had been made by the counsellor. The complainant expressed his view that a thorough review of all the information he had supplied cannot have taken place. The complainant described (based on detailed file notes) that the counsellor had on 20 April 2009 noted down the correct information, making a reference to a charge for “threatening behaviour”. He also quoted notes from that same entry that referred to “thinking” or “threatening suicide”. Then he described how on 23 July 2009 the same incident was referred to with noting down “assault against his ex neighbour”, and also with “disorderly behaviour”. The complainant presented other information, then proving that it was 100 percent clear that the counsellor’s use of the word “assault” could never have occurred due to a “misunderstanding”, as he had earlier noted down the correct wording that the client had used. The complainant made clear that the whole matter of that incident where there had been a dispute with a neighbour had been thrown out of the court in January 2010.

Then the complainant explained how the same counsellor did at various other times also record other wrong information in his client file, including in a “Transfer Summary” under “XXXX Follow UP” on page 17 of a 27-page computer printout for 03 February 2010. He referred to a false, misleading file entry that read: “He frequently advertises for flatmates whom he desires to be close friends with and he also hopes to meet someone with whom he can develop an intimate relationship” (see the link to scan copy of the relevant client file offered further above, for notes for 16.37h on 03 Feb. 2010). The complainant did not quote that incorrect, misleading, slandering entry in its exact words in his letter from 27 March 2012.

That “Transfer Summary” would have been read by the follow-up counsellor Lxxxx Xxxxxx, who the complainant (and then client of the service) would see from February 2010 onwards. Hence the wrong and biased information in that file entry would have shown the complainant in very negative light, he argued.

In his letter from 27 March 2012 the complainant went to great lengths to explain and correct many details to the HDC, which the Deputy HDC had clearly not known, or understood, or not even read and examined. The complainant concluded that she failed in her duty as Commissioner by having relied on an incompetent Assessor, which would raise serious questions. He also found it highly irresponsible that the Assessor had in his letter to the Chief Executive of the WDHB from 06 October 2011 suggested that they “should not respond in detail”. The suggestion to only give a “general overview” of the client’s care would have opened all possible back doors for WDHB and the provider to avoid answering to any specific complaints. He also described how the Assessor let the Service Manager off the hook, when asked in a phone call on 20 October 2011 what the HDC would require in the way of records. Requesting only a “high level summary” about the client’s care meant that no substantial emphasis or pressure had been placed on WDHB to be held accountable for the issues that were raised.

The contents of the letter from the Chief Executive, Dr Dale Bramley, the complainant described as unacceptable, misleading, at least in parts incorrect, dismissive and completely inappropriate as a response. He listed, quoted and dissected points at issue in the Chief Executives response to the HDC. He pointed out clear mistakes, and also attempts to mislead and cover up failures and inappropriate conduct by staff by the service provider’s Service Manager. The complainant also explained how endless external issues that he had faced had impacted on his treatment. Such disturbing and upsetting influences had not been understood, had been ignored or dismissed by the service provider’s counselling staff and the Service Manager. His trust in his counsellor had been abused, the complainant asserted. He also remarked that counselling staff were apparently instructed not to assist in such “matters that are clearly outside the scope” of their “service”. This was unprofessional and unreasonable to ignore such impacting issues, the complainant commented. He was very critical of a letter he had requested from his counsellor, which was though never provided in the form he had expected, as it only covered unhelpful details about past and present treatment. More information had been refused under the wrong presumption the client only wanted a letter to get legal aid.

Also did the complainant explain that he had at times contacted the service in a very distressed (and alcoholised) state of mind, and he criticised the comments that he had been “abusive”, which was not true. Further comments and explanations covered more historic issues, and explained why some formal complaints had been made about the way the service provider and certain clinicians had treated him. While most criticism was expressed about the counsellor he saw during 2009, he also presented a number of issues he had with the follow up counsellor, who was little supportive or sympathetic, and with whom he could in the end no longer work. That was what had led to his disengagement, besides of endless other issues he had to address with Work and Income, a Medical Appeal Board, the courts and so forth.

Even the follow-up counsellor did on 22 December 2010 record totally false and misleading information about the client in his file, the complainant described towards the end of his letter. That was after a phone call she had made to his doctor, about which he had as her client never been informed. The doctor was quoted as having said the client would send him emails daily, which was completely untrue, and which the complainant’s GP would later not even remember having said. Hence he had to find out that the follow up counsellor was nothing but a “blatant liar”, when noting such untrue and misleading information in his file.

Finally the complainant did in this letter ask that all the information the HDC Office had been supplied with would be re-assessed, re-evaluated, the complaints and the circumstances properly investigated, so that a correct, factual, objective, fair and accountability ensuring result would be achieved.

He closed with clear words that explained how he could no longer trust the service provider, given the responses received so far from the WDHB Chief Executive and the Service Manager. He stated he would NEVER seek the services of that particular provider again.

You can read the complete, detailed letter by the complainant that was dated 27 March 2012 by clicking the following link to a PDF file copy:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, reply to decision, anon, 27.03.12

 

The complainant’s further submission from 29 March 2012 – following the O.I.A. and Privacy Act information release

Once the complainant had a closer look at the documents that he had received from the HDC Office on 26 March 2012, he saw reasons to raise additional serious concerns and present further submissions to the Health and Disability Commissioner. He referred to information that had not been known to him, and which was of high relevance to some core issues he had already raised. He asserted that his complaint from 08 August 2011 had been closed unjustifiably by the HDC Office. He also described the decision by Theo Baker, dated 24 February 2012, as unjustifiable and unreasonable. Key information relevant to his complaint had not been properly examined and assessed, he argued. In his view irrelevant information had been relied on for making the Commissioner’s decision, while relevant information had been overseen, ignored, misinterpreted or incorrectly and unfairly evaluated.

He referred to copies of his client file that the WDHB provider’s Service Manager Wxxxxxxx Txxxxxxxxx had sent to the HDC, which contained pages for the time after mid December 2010, which he so far had not had any copies of. They contained further information about the unacceptable conduct of the follow-up counsellor he had seen at XXXX Xxxx from February 2010 until early December 2010.

But first he went through some incorrect notes that had been made in the ‘New Complaint (Triage) form’ and ‘Complaint Summary’ by the HDC Assessor or other staff. There was for instance a mention made of the counsellor having allegedly “failed to take into account Xxxxxxx’s non-compliance with his medication regime when providing him with counselling”. That though had never been part of his complaint, as he had taken his medication for most of that time, which had though not been noted down by the counsellor. He also had to correct the HDC staff who had wrongfully described the last counsellor he saw at the provider as a “fill-in counsellor”, as she was not merely filling in, but seeing the client for nearly a year.

The complainant then criticised the “open invitation” the HDC Complaints Assessor had given to the Service Manager at the WDHB service provider, by simply allowing him to give only a “general overview of his care” – in relation to the client’s treatment. That way the Manager could overly summarise, generalise and offer edited, unspecified information on the client’s treatment or care. This allowed WDHB to avoid addressing most of the issues that had been raised. Thus WDHB and the service provider had not been challenged on particular points or issues. This would mean the whole complaint process had been compromised from the beginning. He also expressed his impression that not all complaint information had been communicated to the WDHB.

So the complainant did once again ask for a re-assessment of the whole complaint. He asked that the earlier involved Assessor should not be allowed to have any input in a re-assessment and an investigation.

The complainant and former client of the service provider had so far only had copies of his client file notes up to 16 December 2010, so he could now refer to notes in the file for the period after that, going into June 2011. These further notes revealed an astonishing record that his follow-up counsellor had put into his file for 22 December 2010 (at about 02.30 pm), which occurred after he had last seen her on 02 December in that year. The former client (and now complainant) quoted the following from his file: “Phone call to Dr Txxxxxx, advised Dr Txxxxxx session content 02/12/10, email 08/12/10 and letter inviting contact. Informed him that XXXX are not responding to his emails but scan for risk. Informed Dr Txxxxxx that Xxxxxxx drank in recent review hearing with WINZ medical team, which he did not know. Informed him that if Xxxxxxx is discharge I will send a copy of the discharge letter to him.
Dr Txxxxxx stated that he receives an email from Xxxxxxx daily, they also donot respond to his emails and scan for risk.”

This was a complete fabrication or misrepresentation of facts, as the complainant had never sent “daily” emails to his doctor. Also would he soon learn that his GP did not even remember this phone call from his counsellor Lxxxx Xxxxxx on that day and at that time, nor would his doctor remember having said anything to her, that corresponded with what she had noted down. The complainant was not only concerned about the notes about his relapse prior to a so-called ‘Medical Appeal Board’ hearing, which he had actually confided to his doctor, contrary to what the counsellor recorded. He was angered more by the comments about the “daily” emails he was alleged to have sent to his doctor. In December 2010 he had only sent two emails to his GP, one on 19 December and another one on 29 December (after this file note was made). He had even copied in his counsellor on some of those emails, as there were matters of importance which he felt needed to be shared. The complainant stressed in his further letter to the HDC Office that he had prior to 12 July 2010 never sent any emails to his doctor. Only due to a crisis and extremely upsetting consequences following a scandalous WINZ Designated Doctor assessment and an unacceptable WINZ decision based on it, did the complainant see a need to correspond with his GP by email, which never happened that frequently at all. He could simply not go and see his doctor personally each time, as being a beneficiary he could not afford much travel to a more distant suburb where he had previously lived, and he could not afford the fee that his GP would charge for each consultation.

So his follow-up counsellor had without his knowledge recorded totally untrue information in his file, by misrepresenting anything his GP may have said, that is if the client’s doctor actually ever talked with the counsellor over the phone. This appeared to have been done with ulterior motives, like with the intention to discredit the client, with whom the counsellor had in the end followed a very restrictive, tough and unsympathetic line of counselling, which did not work, hence she must have done this to cover up her own failings. The complainant informed the HDC that during his first session with his then new counsellor in early 2010, she had confided to him that she once used to be “a great manipulator”. After having read this falsified note in his file, this flashed back into his memory. In his letter from 29 March the complainant then presented a complete list of all the emails he had ever sent to his GP, up to 19 March 2012, which was nowhere near as frequent as the counsellor had misrepresented it, by misquoting the GP of her client, or even by simply making this up.

The complainant understandably viewed this new discovery as being a very serious matter, which the HDC should take note of. He even invited the Commissioner to contact his own doctor, to seek his view and comments on this newly discovered complaint matter.

Lastly the complainant raised some questions re the Service Manager’s notes on top of the file notes sent by WDHB to the HDC (dated 25 Oct. 2011). He informed the HDC that much correspondence that belonged to his complete client file had not been presented by WDHB, and that 2 assessments by the provider’s psychiatrist, as well as letters and emails that had been exchanged between the client and the service provider, would shed light on more problems that had been raised with XXXX management and staff. WDHB would have little interest in presenting that information, as it would only expose the service provider’s own shortcomings.

This letter from 29 March 2012 was then sent to the HDC by email at 09.55 pm on that same day, to which eleven PDF files were attached. These included a copy of the new letter, and copies of information received from the HDC under the O.I.A. and Privacy Act (letter from the HDC Assessor to WDHB from 06 Oct. 2011, “new complaint file” notes from the HDC dated 08 – 16 Aug. 2011, the ‘Complaint Summary’ information from the HDC file from 12 Aug. 2011 to 27 Feb. 2012, a scan copy of the clinical notes by the second counsellor, for 22 Dec. 2010, and further file notes from the service provider for 02 Dec. 2010 to 08 June 2011). Also did the complainant provide a PDF with a copy of an email he sent to his GP from 12 July 2010 (re WINZ issues), a PDF with a copy of an important email sent to his GP and cc to his counsellor on 13 July 2010 (explaining a developing crisis), a PDF containing an email to his GP from 19 Dec. 2010, and a copy of the last one sent to his doctor (during contact with the service provider) from 13 Feb. 2012. A copy of the same submission letter was also sent to the HDC by post in late afternoon on 29 March 2012.

The following link will load a copy of this letter from 29 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, further subm…, after OIA rel., anon, 29.03.2012

 

Further emails with relevant documents sent by the complainant to the HDC

As the newly received information from the HDC Office, including false file notes made by his former follow up counsellor, were very upsetting news to the complainant, he was concerned that he may not be taken seriously and thus not be heard. Hence he decided to send the HDC some additional information about his treatment and correspondence with the service provider’s counsellors and management. It disturbed him how WDHB only presented parts of the client file information, withholding other letters and documents that would raise more questions about their version of the his treatment and “care”.

With an email sent at 03.17 pm on 03 April 2012 the complainant presented the HDC Office 12 PDF files with mostly email correspondence he had with the service provider, which included formal complaints he had made to one facility’s manager and also to the Service Manager, who was in charge of the whole counselling services. This included emails to the ‘Counselling Manager’ aka ‘Service Manager’ from 16 and 21 June 2010 (when his counselling encountered serious difficulties), that Manager’s response from 30 June 2010, earlier complaint correspondence dated 31 July and 31 August 2007 (re a requested change of a counsellor), correspondence with the provider’s staff and one manager from 01 to 06 Sept. 2007, the ‘Counselling Manager’s’ response to a complaint from 31 Aug. 2007 – dated 06 Sept. 2007, a letter from the service’s psychiatrist (acknowledging mistakes in the appointment of a counsellor), dated 31 Oct. 2007, a treatment ‘Goal Plan’ agreed with a ‘Service Supervisor’ (who was relentlessly pushing Alcoholics Anonymous) from 17 Oct. 2007, and some further email correspondence between the former client (now complainant) and the ‘Counselling Manager’ from 09 Oct. to 20 Nov. 2007. One further email sent to the HDC at 03.48 pm on 03 April 2012 carried one more PDF file with scan copies of emails re former complaints and concerns covering the period from 21 to 26 Nov. 2007.

On 11 April 2012, when seeing his doctor for an appointment, the complainant asked him re the client file entry and phone call his former follow-up counsellor had allegedly made to him at 02.30 pm on 22 December 2010. To his astonishment, his doctor had no knowledge or memory of that phone call, nor did he remember making any such assertions as the counsellor had made in the notes of the client’s file. That was despite of the complainant showing him a copy of the notes he had received from the HDC Office by way of an O.I.A. and Privacy Act request. The doctor even went through his own notes in his computer system, but found NO record of such a phone call. He said he would make notes of calls he makes and receives.

So in a further email to the HDC, from 09.06 pm on 12 April 2012, the complainant informed the HDC about this fact, again attaching a copy of the XXXX client file note for 02.30 pm on 22 Dec. 2010. He asked how it could be that his doctor would not have a record of this phone call, which would have been important, given he had months earlier displayed suicidal ideations. His conclusion was that the phone call was never made, and that the notes had simply been “forged” or rather fabricated. He stated that he had no remaining trust in his former counsellor. He concluded his email with the comment, that the HDC should feel free to contact his doctor to seek a confirmation from him, that he had no record of this conversation, and that he did not remember it. You can find an anonymised copy of the sent email under this link:
HDC, C11HDCxxxxx, WDHB counsellor, email informing abt no GP record on ph. call, 12.04.12

With yet another email from 02.27 pm on 21 April 2012 the complainant also sent the HDC Office 4 PDF files of firstly a more recent psychological assessment from a psychologist he saw at another clinic, dated 24 Feb. 2012, with a further support letter from that psychologist dated 13 March 2012, a letter from his GP dated 11 April 2012, as well as an earlier letter from his GP from 18 Aug. 2008, stating serious issues the complainant was suffering from, also in relation to problematic, insecure housing he had. This was in order to present more information to give evidence of his complex health conditions and challenges he faced due to these. The receipt of that email and of other ones was again being confirmed by the HDC’s Executive Assistant, Kerry Norman.

 

The HDC’s Complaints Assessment Manager Deborah O’Flaherty’s response to the emails sent to their Office

On 17 May 2012 the complainant then received a letter from the HDC’s Complaints Assessment Manager, Deborah O’Flaherty, dated 16 May 2012, which was in response to the emails their Office had recently received from him.

She informed the complainant that based on the further points that he had raised, the Commissioner had decided to request a response from Waitemata DHB addressing the points the complainant felt had not been fully considered in their initial assessment. They would be in contact again once they had received that response, she wrote.

She then addressed references the complainant had made re his “full” complaint, and informed him, that he had already been advised by the Assessor Mr Lxxxxx in the phone conversation on 09 August 2011 that the original complaint, as submitted, “could not be opened on our computer system due to its size, and that you would need to submit a more concise version”. She also wrote: “The Deputy Commissioner’s examination of your complaint is based on this revised version, dated 9 August 2011, along with the attached documentation.”

She then wrote that their Office had received “more than 12 emails from you since March 2012”, and that “most of which contain large attached files”. Then she wrote: “As you have already been advised, we do not have the resources to process this amount of information, and it is simply not practicable to read each attachment in its entirety”.

She closed with the comments: “Out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible”.

The jaw of the complainant nearly dropped down to the floor, when he read this letter with such a tone. So the HDC had simply ignored his complaint letter from 08 August 2011 plus apparently all attachments sent with the initially sent 30 emails (where single emails only carried a small number of such, in ordinary sizes). Yet in the letter sent to the Chief Executive Officer of the WDHB on 06 Oct. 2011 it was implied they had a very comprehensive complaint before them. The summarised complaint could not meet such a description. But the HDC now claimed they had only looked at the Summary Complaint from 09 August 2011 and the few attachments to that. And it now even appeared, as if they would not even bother reading documents in their entirety, which explained why his complaint had not been properly assessed, not been thoroughly investigated and not been fairly and reasonably decided on. Also was it simply an exaggeration by the Complaints Assessment Manager that the Office had received 12 emails since March, as probably nearly half of them were separate emails asking for nothing else but a confirmation of the receipt of the above mentioned emails that had been sent. Attachments with documents were also not that long or large.

This was simply a message to the complainant, which told him, that the HDC Office would not bother reading, assessing and investigating any complaints it may deem to be too comprehensive, too complex and detailed. This seemed like making a mockery of the applicable law, the Code of Rights and of the whole complaints processing done by the HDC.

A copy of that letter from the HDC Office from 16 May 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC reply clarifying complt info, D. O’Flaherty, 16.05.2012
HDC complaint, WDHB counsellor, HDC clarifying complt info, D. O’Flaherty, hilit, 16.05.12

 

The complainant’s response to that letter from 17 May 2012

Of course the complainant could not accept such a response, hence he swiftly replied with a further letter to the HDC Office. On the same day he received the letter from Deborah O’Flaherty, he wrote back to the Commissioner and her.

Acknowledging the last letter from the HDC Office, he wrote the following:
“I take note now that you have based your earlier assessment and investigation merely on a very abbreviated and summarised complaint I wrote to your office on 09 August 2011, in which I made very clear reference to the fact, that the complaint of that date had to be viewed together with my complete complaint of 08 August 2011.

You refer to Mr Axxx Lxxxxx (Assessor) having advised me that he and your office staff had received my initial complaint with submissions, but that it “could not be opened” on your computer system, due to its size.

In all honesty, I am utterly dismayed and disappointed about these comments, and it is incomprehensible to me and others whom I have consulted, how your system is unable to deal with ordinary emails and attachments that every other person has been able to download and open.”

After expressing astonishment or disbelief at the Office’s apparently outdated computer system, he added this: “The fact that you have simply not read and processed the material supplied to you means that your office will certainly not properly, sufficiently and fairly address the issues I have raised.”

He commented that the emails he had sent in recently were of ordinary type and size, same as the attachments to them. He criticised that it was “highly irresponsible not to take note of submissions by complainants, who communicate and send your office highly relevant, sensitive and utterly important documentation and information”.

He added: “My impression is that your office is simply not sufficiently familiar and able to address complex matters and issues arising in the course of mental health and addiction treatments.” The complainant expressed his utter disappointment about the Complaints Assessment Managers letter and how dismissive the HDC Office had been in its previous handling of the complaint, and then deciding his complaint needed no further action.

He furthermore wrote: “I now expect little in the way of actions of thoroughness, seriousness and legally required reasonableness and fairness from your office, and I will definitely consider informing leading NZ media about what really goes on at the Office of the Health and Disability Commissioner”.

But despite of so much disappointment and despair, he nevertheless closed off with a comment that he would look forward to the Office’s further reply in the matter.

A link to a PDF with the full authentic text of this letter by the complainant is here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, ltr in response to HDC’s ltr fr. 16.05.12

 
 

PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE

 

Now, after all of the above, the complainant was highly suspicious about how the HDC was handling complaints such as his one, as factual, well documented evidence appeared to simply be ignored or was given little merit. It was beyond belief, that a letter from a Chief Executive of a DHB, referring mostly to only selectively chosen information, and offering a mere general “overview” of a person’s “care”, was obviously given much more weight than numerous authentic evidence documents that he had supplied to the Office.

The complainant was not quite sure, whether the problems he now faced were mainly due to an Assessor having conducted a poor, appalling assessment, or whether the Deputy Health and Disability Commissioner Theo Baker was responsible for basically “off-loading” his complaint. So he waited with some anticipation for a response to his recent letters, raising objection to the way an assessment had been made and how a decision to not investigate the complaint had been formed. This though would take an extraordinarily long time.

In the meantime he was kept busy with never ending settlement negotiations that MSD had tied him up in, following a judicial review application that challenged a decision by a Medical Appeal Board, which came to a bizarre decision on his entitlement to a WINZ benefit on health grounds. This involved a fair amount of communication and correspondence with his lawyer, whose services he could only afford on civil legal aid (barely covering the costs).

As it now appeared rather unlikely that he would after all the apparent misunderstandings, the absolute reluctance of the HDC to accept and process his initial, full complaint, and after the resulting recent upheaval, get his complaint assessed and investigated fairly, the complainant went about to try another way to address the appalling unprofessional conduct and failures of the counsellors he had seen.

 

The complainant files a separate complaint with the DAPAANZ

He now prepared a separate complaint to the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’, in short called DAPAANZ. He would raise issues under their ‘Code of Ethics’, where he felt a range of principles and/or core values had been breached by the counsellors and clinicians he had seen at the WDHB service provider. Both counsellors were registered with the Association. It was from 31 May to 02 June 2012 that he sent in 11 emails with a number of attached documents (up to 146) to their Director Ian MacEwan. Again he would present a written complaint letter, plus virtually all scan copies of his client file from the provider, a range of letters and sundry other relevant documents. He gave a sufficient enough background report and gave a detailed report on what occurred during and after his counselling over the years 2009 and 2010. The breaches that he claimed happened were described in some detail. He was more careful with this complaint, trying to avoid “mistakes” he may have made with the HDC complaint.

This separate complaint cannot be covered here as it would vastly exceed the scope of this post, which is more than comprehensive enough already, and we consider presenting that complaint in a separate post at a later time. What we can confide to you though is the fact, that a senior member of the Executive of that Association also happened to be the employer of the two counsellors complained about. Although he excused himself from being part of the committee that would review this complaint to DAPAANZ (due to his conflict of interest), he would later be found to have had input into the discussion and hearing of that complaint, as he was allowed to give “advice” as the counsellor’s employer!

It will not surprise any readers here that the final outcome of the DAPAANZ complaint was at least as equally appalling as this complaint would again show to be. There were indications of some behind the scene contacts, that appear to have occurred, and either due to these, or to the more official version of events, it led to the employer basically assisting his staff to get off the claims made against them – in both complaints. And to the astonishment and confusion of the complainant, the DAPAANZ would even present their shoddy “decision” only months later, by email on 01 November 2012, well before the HDC would provide a second decision.

 

Further correspondence with the HDC Office, while the complainant is left waiting

Getting back to the HDC now, the complainant waited for a new response and perhaps more acceptable decision by the Health and Disability Commissioner, but nothing came. He also sought additional information under the Privacy Act from a separate psychotherapy service he had attended between October and March 2010. When provided with copies of his clinical file there, he discovered yet again, how one of the counsellors he had seen at the WDHB service provider had made inappropriate and incorrect comments to a psychotherapist that had been involved with the same client at the other provider.

He found a file entry that the psychotherapist had noted down on 11 Jan. 2010 re a phone call he had received on that same day from the complainant’s and then client’s counsellor for the year 2009. The file notes said this:
“ … Xxxxxxx had attended a session with Mxxxxxx on 23/12/09 during which Xxxxxxx had become angry when Mxxxxxx had not provided him with a letter saying that XXXX supported him in his attempt to get legal aid. Xxxxxxx had left session angrily saying that he hated Xxx Xxxxxxx (see XXXX notes 23/12/09). Mxxxxxx reports that Xxxxxxx has become angry with other XXXX counsellors in the past in this way and has subsequently changed counsellors. Mxxxxxx will try to contact Xxxxxxx and re-engage with him.”

Here is a link to a PDF file with a scan copy of the relevant two pages of the client file, with personal details deleted:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, file record w. lies fr. counsellor, 11.01.10

Here is a link to a PDF with a scan copy of that letter dated 23 December 2009, that the counsellor presented to the then client, now complainant:
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
(a copy of this was sent to the HDC with the initial complaint)

This was another piece of evidence that did prove to the complainant that his counsellor, who he refused to see after his presentation of a ridiculously brief and unhelpful letter, stating only his past engagement with the service provider, and their intention to work with him in the future, was dishonest, biased against him and misrepresented facts behind his back.

The comment that he as the former client of the counsellor “had become angry with other XXXX counsellors in the past in this way” was a blatant lie, as he had never before expressed anger during any counselling session, and as he had never walked out on any counsellor ever before! Also was it simply not true that he had asked for a letter that would say his counselling provider supported him getting legal aid. All he had asked for was a letter stating his health issues, the stress and other discussed challenges he was dealing with, besides of mentioning his ongoing counselling engagement.

This prompted the complainant to send the HDC Office yet another email at 03.03 pm on 02 June 2012, with which he pointed all this out, and attached to it, he sent the HDC copies of the pages from the client file from the psychotherapy service provider. As there was again no response to that email, he did in the morning of 06 June ask for a confirmation of its receipt, which never came. Hence he sent another email to seek the same at about 09.11 pm in the evening of 06 June 2012. A confirmation was finally received from Complaints Assessor Jx Zxxx at 11.08 am on 07 June.

For the coming months there was no further response from the HDC, hence on 30 Sept. 2012 the complainant wrote an email to the HDC, asking for an update on his complaint, as he became concerned that it had been nearly 14 months, when he first filed the complaint. An update – again from Jx Zxxx – and from 01 Oct. 2012, simply apologised for the delay and explained: “As you have correctly stated, we are dealing with a large volume of complaints at present”. The Commissioner was still reviewing the information gathered on file, she wrote. A formal response was indicated to come “in the next few weeks”.

After receiving a scandalous, dismissive “decision” by email on 01 Nov. 2012 from the above mentioned DAPAANZ Director, which was based on an evidently unprofessionally conducted review of a complaint filed with them, the complainant wrote to the HDC Office once again at 10.40 pm on 06 Nov. 2012. He expressed his great concerns and outlined how it was apparent that the senior member of the DAPAANZ Executive Board, who was also the employer of the counsellors he had complained about, may have helped dismiss a complaint against his staff members, while he had a conflict of interest.

He mentioned how a ‘Professional Standards Committee’ acted in anonymity, as no names had been mentioned about who had been involved in investigating and deciding on his complaint. The MS Word copy of the contradictory, unfair and unreasonable report and decision from 29 Oct. 2012 was initially sent without any signature, and appeared to be prepared by people lacking the necessary knowledge and competence to conduct a professional ethics committee hearing. Attached to this email the complainant sent the HDC Office two copies of the bizarre “decision” letter by that ‘Committee’, and his own response to DAPAANZ from that same day.

On 07 Nov. 2012 at 10.20 am Jx Zxxx, Complaints Assessor at the HDC Office, thanked him for providing their Office with this information, and she wrote that this information would now be considered as part of the Commissioner’s review of his complaint.

In the meantime there was a further response by DAPAANZ, who suddenly sent a more “formal” report and decision to the complainant, now with letterhead and a signature by their Director, but nobody else. That was followed by a new response by the complainant, who stated his serious misgivings and concerns about the DAPAANZ position. With an email from 11 Nov. 2012 the complainant informed the HDC Office of the additional correspondence he had with DAPAANZ, who stuck to their decision and offered little in further explanations. He sent copies of his letter from 09 Nov. 2012 to DAPAANZ, a reply from Ian MacEwan from DAPAANZ from 06 Nov., a PDF file with the evidence he had sent DAPAANZ, plus a copy of the complaint letter he had sent to them.

Despite of the earlier disappointment with the HDC decision, he was still somewhat hopeful that his endless efforts to reveal the truth and to present documentary evidence may finally convince the HDC to take investigative actions against the counsellors and the service that employed them as part of WDHB.

By email from 10.07 am on 30 Jan. 2013 the complainant informed the HDC of a Privacy Commissioner complaint he had filed against DAPAANZ. As no confirmation of receipt was forthcoming from the HDC, he asked for a confirmation again by email at 07.54 pm on 08 Feb. 2013. On 11 Feb. 2013 (09.23 am) Jx Xxxx, Complaints Assessor, confirmed the receipt of that email and information, which was being reviewed. Time continued to pass and no response came from the HDC, hence the complainant wrote again at 11.40 pm on 29 March that year, asking for an update on the two complaints he did in the meantime have before their Office. A second complaint, which we already presented in a post on in this blog, related to a general practitioner who had assessed the complainant for Work and Income. On 03 April 2013 he sent one further brief email, as he never received an update. This was replied to by the same Assessor, assuring him that his complaint had not been overlooked. In her email from 09.37 am on 04 April she wrote that the complainant should expect a formal response in the coming week. Nothing came that next week, so he wrote yet again at 11.06 pm on 19 April 2013, mentioning he had now waited another two weeks, and not received anything. He wrote that he would have appreciated a brief notification for any delay.

After only receiving a letter from the Deputy Health and Disability Commissioner Theo Baker in relation to the other complaint matter (C12HDCxxxxx) dated 24 April 2013, but no response to recent email(s), the complainant wrote again by email at 01.22 am on 25 April 2013. He now expressed clear frustrations with the lack of progress in his complaint under the HDC reference C11HDCxxxxx, writing that he had the impression complaints of the type he presented were handled in a form that was close to contempt, and that they were nor seriously considering the overwhelming amount of clear, well documented evidence. He even considered steps in the form of applying for judicial review, because the other complaint had also been dismissed with the comment that no action needed to be taken. The complainant was again critical of the way assessments appeared to be done, and asked again that the HDC Office review their processes and the decisions made so far.

 

The Deputy HDC’s second “final” decision in this complaint matter from 14 June 2013

It was finally on 19 June 2013 that the complainant received a second “final” decision by Theo Baker that was dated 14 June. With this letter the Deputy Commissioner did simply uphold her earlier decision, stating: “I remain of the opinion that my decision to take no further action on your complaint was appropriate”. The complaint would remain closed, she wrote. The letter was only two pages long and again had a further response from WDHB attached, which was though dated 06 June 2012 (!!!), that means OVER TWO YEARS OLD, and had apparently been left lying in the HDC Office since then. There was hardly any change in the description of issues that she mentioned, and in the explanations that she gave.

Ms Baker even seemed to refer to an email that was never sent on 24 April, as one was only sent to their Office on 25 April. Her letter gave the impression that crucial, also newly presented, compelling evidence of the counsellors’ misrepresentation of facts, if not blatant lies to cover up their failings, including the recording of false file notes, had not even been looked at! Hence this was yet another appalling decision by the Commissioner that shocked the complainant and left him in disbelief.

Again Theo Baker only listed five bullet points that were supposed to summarise the complainant’s remaining concerns, which were only slightly different to the bullet points she listed in her first decision from 24 February 2012. They were now formulated as being:
“● Counsellor, Mr Mxxxxxx Sxxxxxxxx, was not qualified to offer counselling for alcohol dependency, and should have offered you a more competent alternative counsellor.
● Mr Sxxxxxxxx failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Mr Sxxxxxxxx failed to acknowledge that you had been taking certain medications for most the time he counselled you.
● Mr Sxxxxxxxx incorrectly assessed you as being at a low risk for self harm, before realising that you should have been assessed as being at medium risk.
● Counsellor, Ms Hxxxxx, did not enter important details into your file, including instances where you had expressed to her “immense distress, disappointments, suicidal ideas and great misgivings” about your treatment.”

And once again, Ms Baker did pick only some bullet points from the response provided yet again by Dr Dale Bramley, Chief Executive Officer for the WDHB, which were:
“● Mr Sxxxxxxxx holds a Bachelor in Counselling degree from the Wellington Institute of Technology, and a Post-Graduate Certificate in Health Science from the University of Auckland. He is also a registered practitioner with the Drug and Alcohol Practitioners’ Association Aotearoa New Zealand. WDHB notes that Mr Sxxxxxxxx provided you with services within his clinical scope of practice.
● WDHB thoroughly investigated your concerns about whether Mr Sxxxxxxxx was providing you with appropriate care, clinical management and support. WDHB considers that your dissatisfaction arose from occasions where you requested assistance with matters that were outside the scope of what XXXX could provide.
● Mr Sxxxxxxxx was aware that you were on medication at the time he was your counsellor, and this is evidenced by the clinical notes.
● Mr Sxxxxxxxx assessed your risk of self-harm according to your presentation at the time. Mr Sxxxxxxxx’s assessment of your risk level was a correct reflection of his clinical opinion at the time.
● Ms Xxxxxx entered information into your file that, in her clinical opinion, she considered relevant at the time of your presentations.”

And after summarising these selected few defensive comments that were taken from Dr Bramley’s second, equally selective, at least partly misrepresentative and self-serving response, Ms Baker then delivered under ‘My decision’ the following bizarre explanations:
“I have thoroughly reviewed your file in light of WDHB’s response and your outstanding concerns. Having done so, I remain of the opinion that my decision to take no further action on your complaint was appropriate.

I consider that WDHB’s latest response comprehensively addresses your outstanding concerns. It seems to me that the WDHB staff who dealt with you were adequately qualified, were aware that you were on medication, and made clinical judgments according to your presentation to them at the relevant time. I am also satisfied that WDHB responded appropriately to your formal complaints to them about the services provided to you.

I consider that, though your personal expectations of the XXXXX service may not have been met, this may have been because some of your expectations went beyond the scope of the services offered by XXXXX. I reiterate the comments I made in my decision letter dated 24 February 2012, that counselling is a particularly difficult service to coordinate due to the subjective needs of the consumers using these services and that, despite every effort being made, it is not always possible to meet every need of every individual.

I note that you have raised concerns with the fairness of HDC’s processes and decisions in its consideration of this complaint. Having reviewed your file, I am satisfied that all relevant information has been considered in coming to this decision. I consider that there is no indication of any procedural issues which necessitate revisiting my decision.

Your complaint will therefore remain closed. I appreciate that this is not the outcome you were hoping for, however I do not consider that further consideration of your complaint is necessary or appropriate.”

Theo Baker’s complete decision with the attached letter from the WDHB can be found via these links:
HDC complaint, WDHB counsellor, HDC’s 2nd decision w. WDHB ltr, T. Baker, 14.06.2013
HDC complaint, WDHB counsellor, HDC’s 2nd dec. ltr, compl., late, hilit, T. Baker, 14.06.13

She would again send a letter with her decision to the Chief Executive Officer of WDHB, which is found via this link:
HDC complaint, WDHB counsellor, HDC’s 2nd decsn ltr to WDHB, T. Baker, hilit, 14.06.13

A copy of that letter would also be provided to the complainant in response to an O.I.A. and Privacy Act request.

So we have simply a continuation of the same approach, where a response letter from the Chief Executive of WDHB serves as the Deputy HDC’s justification to virtually throw this complaint out, to dismiss it as not deserving further action or investigation. That is by ignoring black on white, authentic evidence of the counsellors’ professional misconduct, and the HDC had not even bothered to consult with or seek an opinion from the complainant’s own doctor or other professionals, whose documented reports and other evidence the former client of the controversial service presented to the HDC. The HDC staff did not even challenge the two counsellors directly re the alleged breaches of the Code of Rights laid against them.

Either this is clear evidence of the HDC staff members’ complete incompetence in not being able to conduct proper assessments, of their inability to handle and examine complex cases involving much information, or it is evidence of a degree of bias the Deputy HDC may have, simply rather choosing to believe statements and comments made by professional medical professionals that have been complained about, or relying on the senior administrators of the DHB and other service providers they work for.

The second response from the WDHB was as questionable, partly incorrect and misleading as the first one, even starting with the qualifications of the counsellor mainly complained about. At the time the counselling relationship existed during 2009 he did not have the extra Post-Graduate Certificate in Health Science from Auckland University, which he only obtained afterwards in 2010. His and the follow-up counsellor’s DAPAANZ registration are irrelevant, as the also bizarre “report” and “decision” upon an unsuccessful complaint to that Association’s ‘Professional Standards Committee’ had shown the complainant. That Committee was just as incompetent and biased as the HDC appears to have been, when assessing, examining and making a decision on a detailed, well documented complaint. That means the membership of DAPAANZ gives the practitioners good protection, as the Association rather advocates for its members than looks after their client’s interests.

There were other irregularities and inconsistencies that the complainant found in the response from Dr Bramley, same as there were with his first response. The appalling record keeping and the noting down of completely false information in the client’s file were not even being addressed, while the preferred focus on supposed “out of scope expectations” was ridiculous.

Of course the complainant would not accept this kind of decision, and in order to dig deeper into what was really going on, he did soon prepare further O.I.A. and Privacy Act requests, to try and access more information that he had not yet asked for.

 
 

PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER

 

The complainant files two further requests under the O.I.A. and Privacy Act

On 24 June 2013 the complainant sent off the following request under the O.I.A. and Privacy Act. He asked for the following:

“A. An authentic copy of a letter sent by your staff member Deborah O’Flaherty, Complaints Assessment Manger, dated 16 May 2012, to the Waitemata Disctrict Health Board (short ‘WDHB’, to their Board Office and/or the Chief Executive Officer, or any other office of the WDHB) in regards to my complaint to your office under reference C11HDCxxxxx.

The complaint relates to the alleged misconduct of clinicians Mxxxxx Sxxxxxxx and Lxxxx Hxxxxx at Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX) in Xxxxxxxxx, which is a service of the WDHB. I understand that letter to have contained questions that were made to the WDHB to address and resolve outstanding concerns and issues in the complaint matter.

B. At the same time I request any other correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference. This should include a detailed list of all complaint related submissions I presented in this matter that were presented to WDHB and/or XXXX.

C. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s office, same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint made by me.”

He also mentioned the following, in order to be reasonable with this request:
“Any information that was already supplied up to the date of a previous request of this nature (dated 03 March 2012) will not need to be included.”

 

On 25 June 2013 the complainant added the following O.I.A. and Privacy Act request:

“In addition to information already requested by way of a letter (also sent by email) on 24 June 2013, please provide me with the following specified information:

A. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the Office of the Privacy Commissioner in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

B. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my own general practitioner, Dr Bxxxx X. Xxxxxxx, of the Xxxxxxxxxx Xxx Medical Centre in Xxxxxxxxxx Xxx Road, Xxxxxxxxxx Xxx, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

C. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former counsellors Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx, both clinicians employed by Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX Xxxx), Xxxxxxxx, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

D. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former facilitator (of an attended counselling group), Psychotherapist Txxx Pxxxxx of ‘Xxxxx Xxxxx Specialist Psychotherapy Services’, in Xxxxxx Xxxx Road, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

E. Information on whether – and in what form – the Mental Health Commissioner, employed by, or liaising with, the Office of the Health and Disability Commissioner, was consulted or corresponded with in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

This specified information is sought under the above provisions of the Official Information Act 1982 and the Privacy Act 1993.

Please supply the information in clearly readable form as photo-copies of originals, system data printouts or other official types of records within the prescribed official response time.

Yours sincerely and thankfully

Xxxxxxx Xxxxxx”

Links to the PDF copies with the text of the two further requests mentioned above are here:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, anon, 24.06.2013
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, further, anon, 25.06.2013

 

The complainant sends a letter dated 25 June 2013 directly to the HDC Anthony Hill

Also on 25 June 2013 the complainant wrote yet another letter to the HDC Office, this time addressing it directly to Mr Anthony Hill, the Health and Disability Commissioner himself.

He referred to Theo Baker’s earlier handling of the complaint matter, and expressed his objections to her decision from 24 February 2012, which she had upheld with her further decision from 14 June 2013, after virtually sitting on the WDHB response from early June 2012 for over a year.

The complainant then submitted his objections which he had already raised re Ms Baker’s first decision from 24 February 2012, in his letter dated 27 March 2012. He mentioned that he also presented proof that his complaint had not been properly assessed and investigated. Only one point of his whole complaint – about wrong information having been recorded in his client file – had then been looked at, he wrote. He pointed out that there were a number of serious breaches that occurred under the ‘Code of Health and Disability Services Consumers’ Rights’ and also under the ‘Code of Ethics’ of the DAPAANZ.

He did then again raise the particular HDC process issue where the Complaints Assessor Axxx Lxxxxx had simply refused to accept his initial complaint (from 08 Aug. 2011) and forced him to present a summarised complaint, because the Assessor alleged the emails the complainant had first sent were “freezing” their system. So the complainant stressed yet again, that he had in the Summary Complaint stated that it must be viewed together with the already sent information and documents (from 08 Aug. 2011).

Re the Deputy HDC’s handling of his case he wrote: “Theo Baker, and her staff, clearly failed to properly and thoroughly assess the complaint from the start, and failed to sufficiently, objectively and fairly consider a comprehensive range of very relevant, well documented, compelling information put before them. Theo Baker consequently relied on only very selected, partly wrongly understood or misinterpreted, and otherwise insufficiently examined and evaluated crucial information, which was mostly kept in records provided.”

The complainant mentioned how he had suffered as a consequence of wrong information having been put into his client file, on which other health professionals had relied on.

He referred to letters from Lydia Wadsworth (Legal Advisor) and how he had then sent further submissions to the HDC Office in a letter dated 29 March 2012. So the complainant did once again list important points he had raised in that letter under A) to F). He also mentioned his further correspondence, including submissions and evidence that he had sent to the HDC Office since then. He listed what emails with what contents and attachments he sent in under a) to j) from 03 April 2012 to 03 April 2013, and the limited responses he received.

The complainant explained in some detail why the first decision from 24 Feb. 2012 by Theo Baker was totally unacceptable, again referring to his letters from 27 and 29 March 2012 and making further summarising comments. He then explained how the flaws and issues with Ms Baker’s first decision had not been addressed by her new, final decision from 14 June 2013. He listed the bullet points of his remaining concerns, as she had summarised them, and also listed the points that Dr Bramley as Chief Executive Officer for WDHB had addressed in return. He described the “outstanding concerns” listed as bullet points by Theo Baker as being “virtually identical” to the ones she mentioned in her decision from 24 Feb. 2012. He also described the answers given by Dr Bramley from WDHB as being “basically nothing much more than a reiteration of their earlier position, only offering some limited additional information”. The complainant asserted that no satisfactory answer had been given to his serious complaints about false information having been recorded in his clinical file. He critically summarised how Theo Baker had justified her more recent decision.

From page 6 to 8 in this letter the complainant then listed 12 separate points that showed where issues had not at all been properly addressed in the Deputy HDC’s letters, and also not by the WDHB’s response from 06 June 2012. Many of his stated arguments and much of his referred to evidence were a repeat of what he had raised and presented before, but he also added new points at issue, that were based on newly obtained information, which showed how the counsellors he had previously seen at the service provider of WDHB had misrepresented information, had recorded false information, had lied and also tried to blemish his reputation, to cover themselves. He mentioned how the first counsellor he saw during 2009 did not even have the full qualifications then, which Dr Bramley had listed in his further response. The complainant firmly rejected the Chief Executive’s assertion that he had been provided with “appropriate care”, “clinical management” and “support” during the course of his treatment. He did also not accept that WDHB had properly investigated his complaint.

The complainant criticised Ms Baker for having ignored information he had sent in on the DAPAANZ and its unacceptable handling of a separate complaint. He mentioned that both counsellors who he had complained about were registered members with that Association, and that their employer was even the Chair of their Board, raising serious questions about the ‘Professional Standards Committee’ appointed by that Executive Board acting independently.

He also raised natural justice issues re the way his complaint had been mishandled from the beginning. He reasserted that the summarised complaint would have to be viewed together with information he had already sent in on 08 August 2011. He later had to resubmit some information, which had not been received well, he wrote. Hence he expected that all this information, including what he had to add at a later stage would have to be considered.

So in summary, the complainant did ask for a review of the assessment, investigation and decision made on the complaint. He also expected that the Mental Health Commissioner would be consulted and involved in this process. He criticised Deborah O’Flaherty’s comments in her letter from 16 May 2012 that as their Office would not have the resources to process large amounts of information, attachments (to emails) would not be read in their entirety. He felt this comment and conduct were unacceptable. The complainant did in the end of his new letter also mention, that he had learned, that Theo Baker had once worked for ‘Capsticks Solicitors LLP’ in the UK, who had for many years been loyal and committed legal representatives for the NHS and other leading health service providers there. He expressed concerns about how committed she may be in her present role.

This letter was sent to the HDC by email at 10.05 pm on 25 June 2013, after the O.I.A. and Privacy Act requests had also been sent in on 24 and 25 June 2013. Also was a hard copy of the same response letter sent off by parcel post on 27 June 2013.

Here is a link to the PDF with the complainant’s reply letter to the HDC from 25 June 2013:
HDC, complaint, C11HDCxxxxx, WDHB, response to fin. decision, anon, 25.06.2013

 

The complainant sends off a further O.I.A. and Privacy Act request on 02 July 2013

On 02 July 2013 the complainant sent yet another brief request under the O.I.A. and Privacy Act to the HDC Office, as he had forgotten to include some specified information in the earlier sent ones from 24 and 25 June. He now also requested the following:

“Please do also provide me with the following specified information:

Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (short DAPAANZ) in relation to the above mentioned complaint matter.

This would include Executive Director Ian MacEwan, Chairperson Wxxxxxxx Txxxxxxxxx, or any other member of the Executive and/or staff – or member – employed by that association.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations”.

Here is a link to the PDF with the further O.I.A. and Privacy Act request by the complainant:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqst, anon, 02.07.2013

 

The complainant presents the HDC a decision from the Privacy Commissioner who ordered DAPAANZ to release personal information held on him

Following a complaint to the Privacy Commissioner earlier in the year (dated 26 Jan. 2013), the complainant would in early July receive a decision which informed him that the DAPAANZ had been asked to release correspondence and notes containing personal information on the complainant to him.

As this was a major development in his dispute with DAPAANZ, he considered this was also information that should perhaps be considered by the HDC and his staff. Hence at just before midnight on 09 July 2013 he sent the HDC Office one more email that had attached an earlier letter from the Privacy Commissioner dated 01 March 2013 and also the very recently received decision by that Commissioner dated 05 July 2013.

Although possibly not of direct relevance to his HDC complaint, the complainant felt, it was information the HDC should know about, as it related to the counsellors complained about, and also their employer, who appeared to be making efforts to assist his staff getting off the complaints.

 

The HDC’s Legal Advisor Georgina Rood’s response to the O.I.A. and Privacy Act requests

On 22 July 2013 the complainant received a letter signed by Georgina Rood, Legal Advisor, from the HDC Office, which was dated 18 July 2013 and contained information he had sought with his O.I.A. and Privacy Act requests from 24 and 25 June and 02 July 2013.

A fair amount of the provided information had indeed already been supplied with the earlier O.I.A. and Privacy Act response from the HDC Office, which was sent to the complainant by Lydia Wadsworth, Legal Advisor, on 23 March 2012. But there was some correspondence and other complaint file information that was more recent and partly new to the recipient.

This included a letter from Deborah O’Flaherty to the Chief Executive Officer of WDHB dated 16 May 2012, with which the HDC Office sought further information from WDHB to answer bullet point listed outstanding concerns the complainant had raised, according to the HDC that is. These bullet points resembled or were even identical to the ones that Theo Baker had listed in her last decision from 14 June 2013.

That particular letter would also reveal, that the HDC had actually also written the following to the WDHB:“It would be most beneficial if the response could include comments from both Mr Sxxxxxxxx and Mrs Xxxxxx personally”. So the Deputy HDC and her Legal Advisor had actually sought comments from the two counsellors, which were though apparently not being provided by Dr Bramley from WDHB in his letter to the HDC from 06 June 2012. Comments may have been provided to him by the counsellors internally, via the Service Manager, but they were not presented in response statements to the HDC.

On page 2 of this O.I.A. and Privacy Act response letter from Georgina Rood there was also mention of the following: “As you will see from the information released to you and as set out above, HDC sent a copy of your original complaint to WDHB as an attachment to our letter dated 6 October 2011. Your original complaint was made up of three emails, with a total of 14 Attachments. I am not able to say with absolute certainty whether all of that material was sent WDHB; though it is HDC’s usual practice to send the entire complaint to the provider concerned.”

This clarified to the complainant again, that the “original complaint” the HDC was talking about was the one dated 09 August 2011, which was sent in as three emails with attachments, and which did NOT include the complaint letter or any attachments sent on 08 Aug. 2011.

Legal Advisor Ms Good withheld in their entirety (see page 2):
“● requests for legal advice in relation to this complaint from HDC staff to HDC’s legal team; and
● legal advice provided in response to those requests.”

She wrote there was no other record on file (apart from what had been mentioned and/or provided) of any other communications between HDC staff in relation to this complaint.

There had been NO communications, correspondence or consultations between HDC staff and the Privacy Commissioner, the client’s and complainant’s GP, the complainant’s former counsellors, the client’s former facilitator or psychotherapist from a specialist psychotherapy service, the Mental Health Commissioner or anyone at DAPAANZ, the Legal Advisor informed. There had also not been any other direct contact with any other person at the service provider in question or WDHB, besides of one phone conversation with the Service Manager, besides of the correspondence with Dr Bramley, she clarified. The counsellors were understood to have contributed to the response from WDHB dated 06 June 2012.

So the complainant had at least got some useful information about how his complaint had been handled and re what happened behind the scenes.

Here are links to PDFs with a scan copy of Georgina Rood’s letter from 18 July 2013:
HDC complaint, WDHB counsellor, HDC’s reply to further Priv. Act rqsts, G. Rood, 18.07.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act reply, G. Rood, 18.07.13

Here are links to that important letter that the HDC sent to WDHB on 16 May 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, 16.05.12
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, hilit, 16.05.12

Other documents sought through the O.I.A. and Privacy Act requests has already been made available earlier, and can be found via other links shown further above. If they are not shown, they are of little importance or relevance.

 

The complainant’s letter providing crucial new evidence he received from DAPAANZ, showing how the employer assisted his counsellors in getting off any claimed breaches

On 02 August 2013 the complainant received a letter from Mr Ian MacEwan at the DAPAANZ, with which he was presented 22 emails, letters and notes that had been created, recorded and kept in a complaint file with the complainant’s personal information in it. A fair amount – if not most – of this information included correspondence and notes that formed part of communications and discussions that the ‘Professional Standards Committee’ (PSC) members had, when processing and deciding on the complaint about the two counsellors as members of their Association. They were the same counsellors employed by the provider that belonged to WDHB, about whom he had complained to the HDC.

Upon reading the highly sensitive and revealing information, it had become evident, how appallingly the complaint had been dealt with, and how apparent bias could be detected in comments by two of the three Committee members. He could see how the employer of the counsellors, who also happened to be a senior member of the DAPAANZ Executive, was even allowed input by giving his “advice” on crucial matters – as the “employer” of the accused. It was apparent, how the main counsellor, who was asked questions, was in the end being “guided” and assisted through the “investigation” process, as he was basically provided with the right kind of legalistically formulated answers, that would help him get off the allegations and claims made against him. This was allowed although he had initially been found to be “stonewalling”.

The complainant was furious and appalled about the evidence before him, and he felt that this information should certainly also be of interest to the HDC, and possibly be considered with material already provided. The information from DAPAANZ showed how defensive, deceptive and dishonest not only the counsellor but also his employer was.

In his new letter to the HDC, dated 05 Aug. 2013, the complainant first thanked for the information the HDC’s Legal Advisor provided with the letter from 18 July 2013. He did then comment critically on the little changed bullet points that had been presented to the WDHB in the letter from the HDC dated 16 May 2012. They would give insufficient consideration to the points of concern he had raised and evidence he had mentioned in his letters from 27 and 29 March 2012, he wrote. He felt that no proper efforts appeared to have been made to actually look at the abundance of clearly documented evidence that he had presented.

Then he insisted that the HDC should seek the confirmation of evidence he had supplied, and for any other details that may be relevant, from persons he listed from a) to h). These included his doctor, a formerly consulted psychotherapist, a psychologist, an investigator at the Privacy Commissioner’s Office, the two counsellors/clinicians he had seen at the service provider (faced with his complaint), the Counselling Manager (aka ‘Service Manager’) at that service, and Mr Ian MacEwan, Executive Director at DAPAANZ.

In a ‘Part 2’ of his letter he then outlined in more detail, what the emails and notes he had received from DAPAANZ actually contained in the way of comments and exchanged correspondence between the members of the so called ‘Professional Standards Committee’ of DAPAANZ. In chronological order he quoted extracts from emails, and thus gave evidence of how the employer of the counsellors, who was at the same time the Chair of the DAPAANZ Executive, was able to have input in the review of the complaint before that Committee. It showed how the one counsellor who the complainant saw during 2009 was being assisted to find and then give the answers to get him off the alleged claims made against him. He also revealed how the employer of the counsellors contradicted himself re the provider’s rules and their staff’s scope for writing support or advocacy letters. The counsellor defended himself with the bizarre claim, he could not comment on any file notes, as he had not received any authority from his former client to release such. There was at no time any thought given to whether the former client should actually have been approached and asked by the counsellor or his manager to give permission, which never happened. Also would this ‘PSC’ never approach the complainant to seek his authority for his notes to be discussed by the clinician.

The complainant pointed out, how some of his own former comments, how his file notes and so forth were taken out of context, were misrepresented and misinterpreted, and how some Committee members appeared to have a bias against him as the complainant from the very beginning of the review. The complainant concluded that the “hearing” that the Committee held was conducted by biased persons who also unreasonably allowed the employer input in the process (while having a clear conflict of interest). He raised issue with the PSC members acting under “anonymity” when examining the complaint. He considered that the decision was even without any legal validity, due to the unfair and unreasonable process that had been followed, and due to how the bizarre decision had been presented. He explained how the DAPAANZ tried to cover the whole matter up, after the complainant filed a request under the Privacy Act as early as on 05 Dec. 2012. Only after the Privacy Commissioner ordered the DAPAANZ Executive Director to release the information, did the Association reluctantly comply (possibly not even providing all information they still had).

The complainant stated also that the employer of the counsellors, Mr Txxxxxxxxxx, had deceitfully exploited the premature decision by Theo Baker (from 24 Feb. 2012) to close the file in this case with the HDC office, by claiming to the DAPAANZ ‘PSC’ that there had been no other complaint, consequent investigation or still unresolved process in relation to counsellor Mxxxxxx Sxxxxxxxx as his employee. In doing this he took advantage of the Deputy HDC’s flawed earlier decision to defend his staff member, and to assist him getting of the allegations made against him to DAPAANZ. Apparently in email 6 of the DAPAANZ correspondence in relation to the complaint the employer was quoted stating this: “There are no past or present concerns in terms of clinical practice or ethics, nor any outstanding processes or investigations regarding either of the named clinicians with regard to any allegations, which may have been made against them.”

In order to emphasise this, the complainant wrote in his letter to the HDC on 05 Aug. 2013:
“So here is the proof that your Health and Disability Commissioner Office’s failure to properly, thoroughly and fairly investigate, to actually look at the sufficient evidence, and challenge Waitemata DHB and XXXX on it, you allowed them and their employee Mxxxxx Sxxxxxx “off the hook”, so to say, even encouraging them to use the inaction by HDC to throw out my complaint made to DAPAANZ!”

Mentioning the more than two years time the complainant had spent on raising this matter with the HDC Office, he appealed to Anthony Hill to follow his request to conduct a thorough review in the whole matter. He had suffered immensely due to the professional misconduct of the health professionals he had raised issues about, he wrote, and he concluded with saying, it was in Mr Hill’s hands to finally sort all this out.

To gain a greater insight and understanding of the issues with the DAPAANZ report and decision, and the emails received from DAPAANZ, plus what some of the crucial contents of them was, the reader here is best advised to read the whole letter, which the complainant wrote and sent to the HDC by email on 05 August 2013. 6 PDF files with copies of the emails and so forth were attached to the email. An also attached authority gave permission to the HDC staff to contact his doctor and other mentioned health professionals and one other persons, to seek and obtain confirmation for the evidence he had provided. A separate hard copy of the letter and authority were also sent by parcel post on 07 August 2013.

Here is a link to the complainant’s letter to the HDC, dated 05 Aug. 2013:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, crucial evidence, ltr, 05.08.13

 

The HDC’s Associate Commissioner’s final decision on this complaint from 03 Oct. 2013

After waiting a further couple of months, the complainant would on 05 Oct. 2013 receive an apparently absolutely final response in this complaint matter from Associate Commissioner Katie Elkin (responsible for Legal and Strategic Relations). It seemed that at this stage the complaint matter was exclusively being handled by the HDC’s senior legal staff.

Under now only three bullet points Ms Elkin listed as ‘Your concerns’ only a few selected points at issue, which the complainant had raised in his last and earlier correspondence:
“● The information released to you by this Office under the Official Information Act shows that there has been “absolutely insufficient consideration to important points of evidence” that you have raised.
● This Office has not contacted other parties to confirm the evidence you have presented or to obtain further information relevant to your complaint.
● You have received information from the Addiction Practitioners’ Association Aotearoa New Zealand (DAPAANZ) which shows that DAPAANZ was biased and unreasonable in responding to your complaint about clinicians Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx.”

She also wrote:
“You ask for “a review of the initial assessment, the investigation and the final decision” in relation to your complaint to this Office.”

Then she writes under ‘My response’:
“Your file and the decisions made on your complaint have already been reviewed on multiple occasions. Following your most recent correspondence, your file has again been reviewed. Having considered all relevant information, I am of the view that the Deputy Commissioner’s decision to take no further action on your complaint remains appropriate.

Please note that your complaint was not formally investigated. As you will appreciate, it is for the Commissioner and Deputy Commissioners to determine whether to formally investigate a complaint, and only a small proportion of the complaints received each year proceed to formal investigation. The Health and Disability Commissioner Act 1994 provides a number of other resolution options, including the option to take no further action under section 38(1). This option is exercised only after careful assessment of all relevant information at the initial complaints assessment stage. This is what occurred in relation to your complaint. I am satisfied that all relevant information has been taken into account in reaching that decision.

I note that your concerns about the process and decision of DAPAANZ’s Professional Standards Committee are outside the jurisdiction of this Office as DAPAANZ was not providing a health or disability service to you. I suggest that you raise your concerns about DAPAANZ’s process directly with that organisation.

Given the above, your complaint will remain closed. I understand that this is not the outcome you were hoping for. However, I do not consider that further consideration of the same matters raised in your initial complaint would be productive.”

This did read and sound like a broken record to the complainant, and he realised, how the HDC’s Associate Commissioner, same as before the Deputy Commissioner and the Legal Advisors, appeared to choose to be wilfully ignorant of facts they simply did not want to have any knowledge of. It looked like they were wearing mental “blinkers” and made every effort to not acknowledge as “relevant” any information that could put any earlier decisions into question. They indeed appeared to do anything possible to protect the WDHB’s Chief Executive Officer and his position, which he had taken in defence of the Service Manager and the staff of the provider of services that had been challenged by the complaint. Carefully worded legalistic explanations appeared to be used repeatedly, to simply dismiss issues and evidence. Endless discretion appeared to be used in assessing and deciding complaints and the complainant would never be told, what the HDC would have considered as being relevant, and what not so, as only general comments were made. Any new information that could threaten their earlier position and decision as being seen to be unfair, unreasonable or even illegal, was simply dismissed as not being relevant, or raising matters that were “out of scope”. The stretching and bending of explanations, arguments, excuses and decisions by the HDC made them look like engaging in extreme forms of “legal gymnastics”.

Please use these links to a copy of Ms Elkin’s response letter from 03 Oct. 2013:
HDC complaint, WDHB counsellor, HDC’s final dec. on review reqst, K. Elkin, 03.10.2013
HDC complaint, WDHB counsellor, HDC’s final review + decision, K. Elkin, 03.10.13

 
 

PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE

 

Even though all efforts to appeal to the HDC, and to also try and hold the HDC to account for their responsibilities and flawed decisions, appeared to be futile, the complainant would not yet give up. He continued to express his disappointment, frustration and even anger at the in his view totally unacceptable assessments and decisions. He would on 07 October 2013 file yet another request under the O.I.A. and Privacy Act for specified information with the HDC.

The request included the following information:
“I ask you to supply the below listed information in the form of good quality photo copies, system printouts or other easily readable documents, covering all of the information that was not yet covered and/or presented upon a previous request of this nature:”

“A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff, including those at XXXX) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference.

B. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s offices (both Auckland and Wellington), same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint.

C. I ask you furthermore for information on any contacts your office had in this matter with the Privacy Commissioner, The Addiction Practitioners’ Association of Aotearoa – New Zealand (DAPAANZ), Mr Wxxxxxxx Txxxxxxxxx (Chair at DAPAANZ, Manager at XXXX), Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx (counsellors at XXXX), Mr Xxxx Pxxxxx at ‘Xxxxx Xxxxx Psychotherapy Services’, Xxx Lxxxxx at ‘XxxXXXX Psychological Services’ and my GP, Dr Xxxxx Txxxxxx. If any consultation or correspondence was conducted between your offices and these persons, I request copies of this.”

This O.I.A. and Privacy Act request was sent off after 08 pm in the evening of 07 Oct. 2013, together with a rather angry letter in response to Ms Elkin’s letter from 03 Oct. 2013, and yet another request for information in relation to his other complaint under ref. C12HDCxxxxx.

Here is a link to the PDF copy of the draft letter with the complete text from 07 Oct. 2013:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, new, anon, 07.10.2013

 

The complainant’s final reply to the Commissioner from 07 Oct. 2013

Naturally being extremely disappointed the complainant saw a need to express his utter disappointment, frustration, disillusionment and even anger about the HDC’s last correspondence in this matter, and the decision they upheld despite of ample compelling evidence proving the misconduct of the counsellors at XXXX Xxxx as part of the WDHB.

He acknowledged the letter he had received from Katie Elkin, stating the HDC Office’s final position. He mentioned the information he had recently received from the DAPAANZ (after the Privacy Commissioner’s intervention) and referred to the employer of the counsellors complained about, and how he had involvement in the complaints handling by the PSC of DAPAANZ.

The complainant then wrote that he had made the HDC Office aware of the fact that the same employer, who was also the Chair of the Executive of DAPAANZ, had taken advantage of Deputy Commissioner Theo Baker’s refusal to investigate his complaint to the HDC. He wrote that the employer and DAPAANZ Executive Chair had used her decision in defence of his staff during the “investigation” by the PSC (appointed by the DAPAANZ Executive).

Critically reflecting on Ms Elkin’s letter, from which he quoted, he then wrote:
“From this I can come to my own logical conclusion that your Deputy Commissioner Theo Baker has simply applied her own subjective decision making in this whole complaint matter, and the supposed “reviews” are simply claims that I consider to be totally unsubstantiated. If a proper review of my file had ever been conducted, the clear contradictions and untrue statements and claims by the respondents and their employer, the unreasonableness of the Deputy Commissioner’s decision to not further investigate, and also presented solid evidence would have become overwhelmingly convincing.

It is my impression that your staff members apply a “prioritisation” and “reprioritisation” approach to complaints that leave too many to drop below the desk, so to say. I am informed that your office has been facing serious funding issues, and therefore a lack of resources, to deal with a growing number of complaints and case loads. Your office depends on funding under the Ministry of Health, or other government spending, and the government does itself set certain priorities by limiting funding, that affect your office’s ability to address complaints.

If the cases are not considered “serious” enough, they are likely to be treated like my complaint, and basically get thrown out of the process. By this you do though treat mental health sufferers, and consumers of services in this area, with utmost contempt. I asked that the Mental Health Commissioner takes a look at my complaint, and I expected a proper review to be done, but the response from your legal department does not even address the justified requests and answers I raised!

Hence I challenge you to answer to me, whether this matter and ALL evidence was put before your Mental Health Commissioner, same as the head Commissioner, Mr Hill, as that is what I asked for.

I also have NO response to matters I proposed and asked for in that correspondence from 05 August 2013. Instead I have been sent a legalistically formulated letter, simply justifying your office’s handling, without addressing any of the many concerns I raised fairly and validly. It appears that unless a mental health service consumer suffers death or serious physical injury, then her or his concerns are not taken seriously at all by the Office of the Health and Disability Commissioner.

For years I experienced appalling treatment by XXXX and their staff, and my complaint about Mr Sxxxxxxx and Ms Hxxxxx was not the first one. It was made for very valid reasons, and it was certainly well documented, and more than needed evidence was made available, but your staff did not accept it from the start. That in my eyes exposes conduct of utter contempt and lack of respect towards a very valid complaint. Indeed my impression is that many staff members that you employ do not deserve to sit and work where they are, given their attitude, their lack of sincerity and qualifications.

With your most insulting final decision in this matter, I feel forced to take matters into my own hands, to address the evident injustices, serious failings, the appalling lack of standards being enforced that abound in this country. New Zealand does to me increasingly ring into my ears as a country of utter hypocrisy, of deception, lies, manipulation, of “old boys” and “old girls networks”, indeed corruption on a wider scale, and the lack of actions by your office have only reinforced my view that it was the biggest mistake I ever made, to return to this country, that unjustifiably calls itself one of the “least corrupt” places on this planet.

The suggestion I take my concerns about the handling of my complaint by DAPAANZ to them again, that is the most absurd recommendation I have ever received from your office. It is like going to the abuser, to seek redress for abuse! It is clearly an organisation run by a tight nit Executive, whose members are headed by the very employer of the persons I complained about!”

The letter continued a wee bit with some further hefty criticism of DAPAANZ, the Commissioner’s Office and how complainants appear to be treated by them. We refer you to the full letter to the HDC that the complainant wrote on that day, and sent off after 08 pm in the evening of 07 October 2013, which is found via this link:
HDC, complaint, C11HDCxxxxx, WDHB, reply to fin. decision, anon, 07.10.2013

The email carrying that letter and the further requests for information was confirmed as having been received by Exxxxx Lxxx, Legal Team Administrator, at the HDC Office by email at 12.31 pm on 08 Oct. 2013.

 

The letter from the HDC’s Legal Advisor, Georgina Rood, providing remaining information sought per O.I.A. and Privacy Act – from 04 Nov. 2013

On 07 Nov. 2013 the complainant would receive a response from the HDC Office, this time again from Georgina Rood, Legal Advisor. She replied to the complainant’s last letter and gave answers and provided limited information to the O.I.A. and Privacy Act requests.

She ignored the hefty criticism and angry comments the complainant had expressed in his letter from 07 October and instead only addressed information matters.

She wrote in response to request or question A) in the complainant’s letter from 07 Oct.:
“There is no record on this complaint file of any contact between HDC and Waitemata DHB having occurred since your last information request. I therefore refuse this aspect of your request pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”

In response to request/question B) she wrote:
“I have withheld, in its entirety, a legal advice memorandum prepared by a member of HDC’s legal team in relation to this complaint. This document is withheld pursuant to section 9(2)(h) of the Official Information Act and section 29(1)(f) of the Privacy Act, in order to maintain legal professional privilege.”

“Aside from that document, there is no other record on this complaint file of any communications between HDC staff having occurred since your last request information request. I therefore refuse this aspect of your request, pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”

In response to request/question C) she wrote:
“There is no record on this complaint file of any contact between HDC and these parties having occurred since your last information request….”

Please click these links to find the PDF with the HDC’s truly final response in this matter:
HDC complaint, WDHB counsellor, HDC’s further reply to Priv. Act rqst, G. Rood, 04.11.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act response, hilit, G. Rood, 04.11.13

There was no further correspondence from the HDC Office to the separate letter by the complainant from 07 October 2013, in which he expressed strong criticism about the whole handling of his complaint. It appeared the HDC considered the matter closed for good, and did not wish to engage into further correspondence.

The complainant himself had given up on this complain, as he was being kept busy with other matters he had to address, and as he now also experienced similar problems with the second complaint he had before the HDC Office under reference C12HDCxxxxx, which was already covered at some length under a post found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

After being treated with such contempt by the HDC Office, the complainant now saw no other available ways of addressing the raised issues he experienced with the counsellors employed by the service provider managed and operated by or under the WDHB. Not only did the HDC dismiss the blatantly obvious professional misconduct by the counsellors at that service, the DAPAANZ did the same. The employer, who was Chair of the Executive of that Association, covered his staff and did directly and indirectly involve himself in the “investigation” or review of both complaint matters. He continued to operate in both his roles, as we know up to this day. So do both counsellors continue to work in their roles and fields, having suffered NO consequences at all from noting false information in client files, from misrepresenting facts, from breaching client confidentiality rules, from acting in neglect and through displaying a clear bias and levels of incompetence.

 
 

PART 8: CONCLUSION

 

In late 2013 the complainant would file two complaints with the Office of the Ombudsmen, of which one was about the HDC’s handling of this complaint, and the second one about a clearly biased, also inappropriately acting WINZ “designated doctor”. While that matter also dragged on for months, it was decided on in a similarly dismissive fashion on 28 May 2014, as the Office of Ombudsmen was then clearly under immense work-load pressure and severely under-funded. This and the apparent incompetence of an investigator showed in the “decision” that was then presented. The Ombudsman also saw no need to investigate. A request for review was treated in an appalling manner by Ombudsman Beverley Wakem.

Her decision would later even be presented to the Speaker of the House of Representatives, but as we learned, he did not wish to have anything to do with this, referred it back to the Ombudsman, who simply rejected any failures or mistakes. We endeavour to present the course of the handling of those complaints and requests in a separate post, as it is impossible to further add to this already very extensive post.

 

More recent follow-up O.I.A. and Privacy Act requests to the HDC

But more recently a further attempt was made to obtain some more information in relation to this complaint matter, and also in relation to the other one. It was on 19 October 2015 when the complainant wrote again to the HDC and asked for the following information, again under the O.I.A. and the Privacy Act:

“A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and of any notes and transcripts made of phone calls (ingoing and outgoing), and also of relevant internal and external discussions and created reports, generated, sent, or received and exchanged between any of the various persons involved in the filing, processing, assessment and initial decision-making of complaint C11HDCxxxxx at the Health and Disability Commissioner’s Office, for the period from 08 August to 16 August 2011. This would naturally also include any of the above in relation to me as the complainant.

B. I request authentic photo copies, and/or printouts of digitally stored copies, of all written correspondence and attached documents received by the Office of the Health and Disability Commissioner from Dr Dxxxx Xxxxxxx, in particular being correspondence dated 20 September 2012, only some of which appears to have been provided to me before with a letter from Ms Georgina Rood, Legal Advisor, dated 04 Nov. 2013. This is in relation to complaint C12HDCxxxxx. In the copy of the main letter from Dr Xxxxxxx to your Office from that date, I read a reference in his letter, which states the following: “As I did not provide medical treatment to Mr Xxxxxxx (misspelled) I am of the understanding that all complaints of this nature are more correctly addressed by the Medical Appeals Board. I attach a letter dated 16 August 2010 from your department which outlines such policy previously.” A copy of that attached letter dated 16 August 2010, which appears to have been generated and sent by your Office’s legal department to possibly general practitioners, WINZ designated doctors, medical practitioner or health professional organisations, or any other affected party, and with that apparently also Dr Xxxxxxx, was never included in any of the documents sent to me. I therefore ask for a copy of that particular document now. Even if some bits of the contents of that letter may need to be withheld for privacy reasons, it is my firm view, that making this letter available is certainly in the public interest.

C. I request also information on the particular reason, as to why with the initial decision in complaint matter C12HDCxxxxx, dated 24 February 2013, and sent by Ms Theo Baker as Deputy Commissioner, only a copy of Dr Xxxxxxx’s letter from 22 November 2012 had been attached. I seek information and an explanation as to why the earlier response your Office received from Dr Xxxxxxx (dated 20 Sept. 2012) had been withheld from me as complainant for nearly one year after your Office received it from Dr Xxxxxxx, and why it was only provided to me upon my Official Information and Privacy Acts requests from 07 October 2013. I may point out, that this again raises very serious issues with your Office’s complaint handling, as I must observe a clear failure in your Office’s adherence to the core principles of natural justice.”

Please find the complete request in a PDF that can be loaded via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, O.I.A. +Priv. Act rqsts, new, anon, 19.10.15

A response by Senior Legal Advisor to the HDC, Helen Davidson, dated 17 Nov. 2015 followed, which is attached here:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, anon, 17.11.15
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, hilit, 17.11.15

Senior Legal Advisor Helen Davidson provided information to request ‘A.’, which now included an “edited” phone log for around 11.35 am on 09 August 2011, which the complainant had so far not been provided with. It covered the phone call by the Complaints Assessor Axxx Lxxxxx, who called the complainant on that day to explain that his emails and attachments were allegedly “freezing” their computer system. The notes that had been recorded on that log entry on the file did not correspond with what the complainant remembered having been discussed. He only remembered the Assessor giving technical reasons for the initial complaint not being able to be processed, but in the log there was now also talk of administrative reasons. As he suspected the log had later been changed or “falsified”, he sent in yet another letter to the HDC on 24 Nov. 2015, a copy of which can be found via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, 24.11.15

Here are links that show the received phone log, which was also already provided in the beginning of this long post (one copy is not market, the other one is highlighted with some manually noted down comments by the complainant):
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11

The complainant asked for an explanation and for a correction of the file notes, adding that he had a different memory of the phone call and its contents. As no response was forthcoming, the complainant was then forced to chase up this request for further information (also in the other complaint matter) with two further letters on 15 Dec. 2015 and 15 Feb. 2016, which referred to the earlier letter from 24 Nov. 2015, again asking for a response.

Finally, in late February 2016, a letter with further information and explanations was received from the HDC Office, dated 19 Feb. 2016. It was again a letter from Katie Elkin, Associate Commissioner, who gave the following explanations in relation to this complaint matter:

“File note from Mr Xxxxxx from 9 August 2011”

“You also raise concerns with a file note by Mr Xxxxxx of 9 August 2011, including that the note recorded incorrect information, has been improperly altered, and that the file note was not provided to you when you made previous requests for information to this Office.

As is evident from the file note, this was originally lodged under a previous complaint you had made to this Office, but was loaded under C11HDCxxxxx in March 2012. I understand that it is for this reason that the date “6 March 2012” is present on the file note; this was the date on which a file note was transferred to file C11HDCxxxxx once it became apparent that the file note had been placed on an older file. While it is clear that the file note was moved to the appropriate file, there is nothing to indicate that is has been improperly altered by Mr Xxxxxx as you allege. In particular, I note that there is no change in wording from the original file note of 9 August 2011 on your older file and the file note on C11HDCxxxxx other than to acknowledge the movement between files.

Notwithstanding this, I acknowledge that you disagree with Mr Xxxxxx’x record of your conversation, and, as requested, your position regarding the accuracy of that record has been recorded alongside that file note on your complaint file.

I note that the file note did not fall within the ambit of previous information requests you have made to this Office, with the exception of your request of 4 March 2012. Unfortunately it was not evident at that point that the file note in question had been placed on the file for a previous complaint you had made. We apologise for that oversight and note that you have now been provided with a copy of the file note.”

The letter from Ms Elkin that contains these explanations is found in a PDF via these links:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, 19.02.16
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, hilit, 19.02.16

The letter from the HDC has since been followed up, and as answers given re so far refused information and outstanding questions were not satisfactory, the matter has also now been referred to the Ombudsman to resolve. The complainant was not convinced that the above log for that phone call on 09 Aug. 2011 had been put on the older file (from 2007!) by accident, as that file had long been closed, and a new file appeared to already have been created on 08 August 2011. It is also hard to believe that this document was “overlooked” when an O.I.A. and Privacy Act request was filed with the HDC on 04 March 2012, as such requests generally take days or even weeks to be processed and responded to. If it had been shifted from one file to the correct one C11HDCxxxxx on 06 March, it must have been found then.

This raises even more questions, including the one, whether the HDC did intentionally withhold this phone call log for so long, as the HDC Assessor and his superiors may have feared legal challenges due to their bizarre, unconvincing claims that the emails sent on 08 August 2011 “froze” their system.

 

Final considerations

What we have learned through the above complaints handling and decision making shows that the HDC appears to follow highly questionable, inappropriate if not even potentially illegal practices. The following points of immense concern stand out:
● HDC staff – likely instructed to do so – used lies and unconvincing claims that emails did “freeze” their system in order to avoid having to deal with a complex complaint.
● HDC staff – likely instructed to do so – forced the complainant to “summarise” a very complex complaint into a 2-3 pages long complaint, ignoring all earlier sent evidence.
● The Deputy HDC first picked only one main “issue”, and later only a few bullet points of “concerns” the complainant raised, ignoring the wider range of Code breaches.
● The Assessor and Deputy HDC offered the Chief Executive Officer of WDHB a back-door by only requiring a “general overview” of the complainant’s treatment and “care”, enabling the employer to avoid answering to particular breaches.
● The Deputy HDC dismissed the complaint, deciding not to investigate it, despite of overwhelming documentary evidence of two counsellors breaching the Code of Rights.
● Requests for re-assessments, reviews of decisions and an investigation were dismissed as being unnecessary, and flawed decisions were upheld, ignoring existing and new compelling, documented evidence of breaches of the Code of Rights.
● The HDC used legal expert advisors to provide legalistic explanations and excuses to dismiss the complaint, ignoring relevant evidence or declaring such as “out of scope”.
● The employer of the counsellors complained about, was allowed to influence the reviewers of both complaints, by selectively presenting misleading information and untrue statements, and thus helped his staff members to get off both complaints.

There is sufficient anecdotal, and increasingly more reliable factual evidence of the HDC actually making significant efforts to keep investigated complaints at a minimum, by using questionable, inappropriate and possibly even illegal methods to dismiss complaints as not requiring any investigation or any further action. At least natural justice principles appear to have been breached. Therefore we are of the view that these concerns raised in this post deserve greater and wider scrutiny, and ideally an official investigation into the operation and processes followed at the Office of the Health and Disability Commissioner.

Also is a proper, wider review of the Health and Disability Commissioner Act 1994 overdue, which should not be limited to the less publicised reviews the HDC conducts from time to time, but which should involve much wider consultation, by introducing a Bill. A proper parliamentary legal reform process would have to be followed, including Select Committee hearings, and a law change should give the HDC more powers, including some mandatory actions he/she should have to take where serious and certain specified breaches of the Code are established. The ability to make a decision to take no action, or to take no further action, should be restricted to truly minor breaches of the Code.

This would have to be complemented with better financial and personnel resourcing of the HDC Office, so the Commissioners and their staff can actually fulfil the purpose of the Act.

 
 

Quest for Justice

 

(Post completed on 03 May 2016 and updated on 09 May 2016)