Health and Disability Commissioner: Can we trust in HDC independence?


The Health and Disability Commissioner: Can we trust in HDC independence?

 

Note: This post was originally posted by ‘Marc’ on ACC Forum on 04 March 2013, and has only been updated in part. It has been re-published here with Marc’s permission. See this link to the original publication on the ACC Forum website:
http://accforum.org/forums/index.php?/topic/14923-health-and-disability-commissioner/

 

PART 1 – INTRODUCTION:

 

This is a “should read” topic for all concerned with appropriate health care delivery, with fair, properly conducted assessments, with ACC or WINZ decisions based on such “assessments”, done either by ACC assessors or by “designated doctors” that WINZ commonly use (since 2008 trained and mentored by their Principal Health Advisor Dr David Bratt):

Yes, feel “welcome” to our supposed to be truly “independent”, “fair” and “caring” HEALTH AND DISABILITY COMMISSIONER and his staff at their office.

As of recent, some actually quite bizarre, hard to understand “decisions” have been made upon complaints to the Office of the Health and Disability Commissioner. A recent one was made by the Deputy Health and Disability Commissioner Theodora (“Theo”) Baker.

Having seen one such particular decision, I looked up her background and profile on ‘LinkedIn’, and by doing an on-line search, I found some perhaps revealing info re her last job at “Capsticks LLB”, which is a kind of large, virtually “corporate” style law firm in the UK, which does do a lot of work for NHS, private health care providers, trusts, and organisations that work with health care providers there.

See these links for extremely interesting and revealing information:

“Theo” Baker’s personal Linked In “profile” lists her background of having worked for the ‘Health and Disability Commissioner Office’ before – as “Director of Proceedings” from 2004 to 2009. Then she appears to have left that office for an “overseas experience stint” at ‘Capsticks Solicitors LLP’ in the UK for just over a year after that, presumably to get more “legal expertise” in the health sector there – see this:

http://nz.linkedin.com/pub/theo-baker/61/301/b64

See ‘Capsticks LLP’ and some of their business areas (click links):

http://www.capsticks.com/about-us/who-we-are/
http://www.capsticks.com/about-us/what-others-say-about-us/
http://www.capsticks.com/expertise/health-and-social-care/
http://www.capsticks.com/expertise/health-and-social-care/reputation-management/
http://www.capsticks.com/expertise/health-and-social-care/contracting-and-commercial/
http://www.capsticks.com/expertise/regulatory/
http://www.capsticks.com/expertise/risk-management-and-litigation/

http://www.capsticks.com/expertise/risk-management-and-litigation/clinical-negligence-and-risk-management/
Quote:
“Capsticks has been rated as the leading defendant clinical negligence firm in London by both the Legal 500 and Chambers since its inception. Not only does our team of experienced lawyers assist our clients with litigation but we also advise on a variety of legal matters before and after litigation such as instigation and handling of complaints, serious untoward incident reports, risk management and reputation management following adverse incidents.”

That corporate law firm has even entered the “social housing” business now:
http://www.capsticks.com/expertise/social-housing/

 

AMENDMENT / INSERTION:

As some of the above links may not work as intended, try to find the information on the Capsticks LLP website via this link:
http://www.capsticks.com/

“Theo” Baker suddenly returned to New Zealand and did in 2011 accept an appointment by the new Minister of Health, Tony Ryall, to take up a new job at the ‘Office of the Health and Disability Commissioner’ as Deputy Health and Disability Commissioner. She is according to on-line info and their staff chart responsible for “disputes resolution”! Anecdotal information about that “disputes resolution” is, that “resolution” appears to be more about “talking over matters” than investigating and holding medical practitioners and other health professionals accountable by applying sanctions or warnings. GPs I spoke to have confirmed that it is their impression that the new Commissioner is not one to take much of a “firm” or “adversarial” approach. Investigations and decisions that lead to disciplinary or other firm actions appear to be avoided, and a “consultative” approach is taken to “resolve” issues.

Now one may wonder and speculate re what motivated “Theo” Baker to come back to the HDC Office, and why National Party member and now Minister of Health Tony Ryall appointed her.

There was certainly some debate and controversy about the appointment of Anthony Hill as new Health and Disability Commissioner before, which the Otago Daily Times wrote about here:

http://www.odt.co.nz/opinion/opinion/191661/independence-commissioner-paramount

(by the way, the author of that article, Stuart McLennan, was a former staff member of that HDC Office himself, as Complaints Assessor!)

On reading that ODT article, one has to ponder on Dr Des Gorman and his role again, being head of a number of key health administrations (now ACC Board member, so far Health Workforce NZ Chief, National Health Board leader, senior staff member at the Medical School of Auckland Uni, and so forth). He is apparently also a member of an international organisation called the ‘Medical Protection Society’! See this for VERY interesting information:

http://www.medicalprotection.org/
http://www.medicalprotection.org/newzealand/

So Dr Gorman is a clear advocate for protecting the interests of medical professionals, and he was like other key stakeholders (government and other providers and so forth) tasked with the selection process preceding the appointing of the new Health and Disability Commissioner, whom they chose Anthony Hill to be.

Given this information, questions arise about the apparent lack of more resolute enforcing, of sanctioning “actions” and investigations, that have been taken and started under the present Commissioner and his team. Theo Baker herself does anyway appear to “blend in” well with the Commissioner and their office personnel, who now operate under the top Commissioner Anthony Hill, formally appointed by Minister of Health Tony Ryall.

Until the day when this (now slightly amended) post was first written by ‘Marcus’ and published via ACC Forum on about 4th of May 2013, only 7 cases had been decided on in that year, which involved proper investigation and an official, published statement by that office. Since then more cases have been dealt with and published, but they make up only a tip of the iceberg of total complaints received:

http://www.hdc.org.nz/decisions–case-notes/commissioner%27s-decisions

That was a marked drop from what former, apparently more effective and committed Commissioner Ron Paterson did in the way of investigations and decisions upon complaints. He established a clear track record and enforced some reliable standards that others should be measured by.

So with the new approach and the drop in investigations, same as fewer published cases, one may wonder, do so very few “medical misadventures” or other “mistakes” or “failings” happen in the medical and treatment professions in New Zealand these days? That is also in view of an increased population for the country. Well, it seems like with statistics on “welfare”, suddenly figures “improve” under a more cost saving focused, and “burden off-loading” kind of government, and the particular commissioners and other key office holders they have appointed.

Any person who has had reason to make a complaint to the H+D Commissioner (numbers are rather unchanged or even up with these), and who wonders, why no satisfactory action is taken, just needs to draw their conclusions from reading and studying the info found under links shown above! It seems that if it does not involve any serious physical or psychological harm, or even life or death issues, not that much can be expected. A high work-load may of course contribute to that.

Sadly fairness, reasonableness, objectivity and accountability no longer appear to be a priority in many assessments and decisions to be made by many office holders in such key institutions in New Zealand, I am afraid!

Do not be surprised, if you are getting fobbed off, somehow “off-loaded”, treated with insufficient respect, dignity and honesty, be this by ACC, WINZ or any health professional, acting under stress, pressures, and demands to perform responsibilities in a cost saving environment. It is time to worry, really!

Strangely one very recent “decision” was about a WINZ designated doctor, who is well known to be a much used and seemingly preferred “assessor” for MSD and WINZ. The HDC Deputy Commissioner appears to have let him off the hook despite of apparently quite biased and questionable conduct, besides of a totally unfounded diagnosis and “recommendation”. The assessment and examination in question just happened to be “too long ago”, and his (the assessor’s) statement was “contrary” to the one by the complainant, was the simple conclusion, while an abundance of clear, well-documented evidence was apparently not considered worth looking at.

So the matter was “considered” to “not be worth investigating further”. Irrelevant information was given consideration and relevant facts were in part also ignored or not noticed.

Add the dots together: Some New Zealand institutions and agencies are no longer the transparent, accountable and fair ones that many still think they are.

The particular one “decision” referred to is still being disputed, and no further details can and will be made available on this at this stage, for the sake of justice and the intention to avoid any “prejudice”. It will be interesting what will come out of this.

Yet other decisions that have been learned about anecdotally and more, they speak a loud voice of extreme concern, about where some institutions like the Health and Disability Commissioner’s Office are worryingly heading.

Be always mindful, alert and aware, dear folks!

Marc

 

PART 2 – SUPPLEMENTARY INFORMATION (added 05 May 2013)

 

I made that post because unacceptable and improperly conducted assessments by medical professionals done for “third parties” can be disputed and complained about to the Health and Disability Commissioner. Naturally other complaints are the standard “fare” the Commissioner’s offce deals or is supposed to deal with, but assessments that also involved face to face interviewing and physical examinations fall under the scope of the Commissioner’s responsibility and authority.

The following is an excerpt from a document under reference C014605 that the Medical Council has published on this kind of matter:

Review of medical assessment opinions

23. The Health and Disability Commissioner has concluded
that complaints about the contents of an assessment
report and complaints about purely paper-based reviews
are usually not within the Commissioner’s jurisdiction.
The Commissioner cannot look into complaints about
these matters, and you should direct such complaints
directly to the third party, as the party best placed to
address these concerns.

24. Concerns about the conduct of a non-treating doctor
during a face-to-face assessment may fall within the
Health and Disability Commissioner’s jurisdiction, and
such concerns should be directed to the Commissioner’s
office. However, concerns about a non-treating doctor
providing an opinion on a matter outside his or her scope
of practice, or a non-treating doctor’s competence should
be directed to the third party or the Medical Council.”

The document titled “Non-treating doctors performing medical assessments of patients for third parties” can be found by clicking this link:

http://www.mcnz.org.nz/assets/News-and-Publications/Statements/Non-treating-doctors.pdf

Hence it should be of interest to ACC claimants who may also face assessments that could be conducted in an inappropriate manner by a possibly biased assessor.

The example mentioned above shows though, that the Health and Disability Commissioner and Deputy Commissioner seem to rather not wish to deal with such flawed assessments, which is appalling, as the Commissioner has a responsibility to look at professional misconduct and whatever that leads to breaches of rights the Commissioner is supposed to uphold and enforce.

Breaches of rights and improperly conducted assessments by medical professionals should also be possible to be taken to a court, yet no court will bother hearing any case involving health and disability issues, that have not previously been dealth with by the Health and Disability Commissioner. So if the Commissioner simply dismisses a complaint by using a cop-out or white-wash approach, this frustrates a client’s and patient’s right to justice.

So there we have another institution that has been appointed in a biased manner by apparently biased, selected panel members, who also seem to have been mindful of what the Minister may have wished to prefer.

This is stuff the mainstream media should be looking into, but are they?

It is a sad state of affairs what goes on in New Zealand. Rights of citizens and patients are merely stated on paper, but otherwise often totally unenforceable and thus meaningless.

 

PART 3 – THE LAW PROVIDING THE HDC OFFICE WITH A CONVENIENT “OPT OUT WITHOUT ACTION” OPTION (added 10 May 2013)

 

What is of utmost concern is that the Health and Disability Commissioner is under the Health and Disability Commissioner Act 1994 in charge of a number of tasks and responsibilities, which are outlined under section 14 of that Act. Some or a number of actions can be taken by the Commissioner, while others are more or less mandatory.

For instance 14 (1) has the following subsections and provisions, amongst others:

(da) to act as the initial recipient of complaints about health care providers and disability services providers, and to ensure that each complaint is appropriately dealt with:

(e) to investigate, on complaint or on the Commissioner’s own initiative, any action that is or appears to the Commissioner to be in breach of the Code or, in the case of conduct that occurred before the enactment of the Code, in breach of certain disciplinary standards:

(f) to refer complaints, or investigations on the Commissioner’s own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

(g) subject to section 15(2), to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches might be resolved and further breaches avoided:…

The Commissioner also has certain discretions to not investigate complaints, e.g. under section 38:

38 Commissioner may decide to take no action on complaint

(1) At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), 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.

(2) The Commissioner’s consideration under subsection (1) may, in particular, take into account any of the following matters:

(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:

(b) whether the subject matter of the complaint is trivial:

(c) whether the complaint is frivolous or vexatious or is not made in good faith:

(d) whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:

(e) whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.

(3) Subsection (2) does not detract from the generality of subsection (1).

See the following links for more details about the relevant legislation:

http://www.legislation.govt.nz/act/public/1994/0088/latest/DLM333584.html

In any case the Commissioner is responsible for publishing and maintaining the ‘Code of Health and Disability Services Consumers’ Rights’, to publicly inform about these, to ensure that compliance is ensured by service deliverers and professionals involved in that, and to ensure or enable that consumers can make complaints, can consult advocates on matters, and so forth.

The following links give details about that Code on relevant websites:

http://www.hdc.org.nz/the-act–code/the-code-of-rights

http://www.legislation.govt.nz/regulation/public/1996/0078/latest/whole.html

When looking at some of the above comments and stories, same as many others I have learned about, one has to wonder, to what degree the members and staff at the Office of the Health and Disability Commissioner are performing their responsibilities. It appears that various complaints do only get investigated when there are extremely serious cases of physical, psychological or psychiatric harm that were caused. Only a small to tiny percentage of cases appear to get properly investigated and resolutely acted on after all.

Yet in view of the fact, that the Medical Council does usually not accept and investigate any complaints against their members, unless a complaint has first been made to the Commissioner, it would seem that the Health and Disability Commissioner and his Office have a very, very important and highly responsible role to play, when it comes to address professional misconduct and breaches of the above mentioned rights of consumers of health and disability services. Is the Commissioner meeting these fair and justified expectations though?

In any case, the Medical Council has the position just stated, which can be found under this following link:

https://www.mcnz.org.nz/fitness-to-practise/

See this excerpt for instance, found under “Making a complaint” and “the complaint process”:

Complaints raised by, or on behalf of, patients must be notified to the HDC. The HDC process looks at the complaint from a health consumer perspective. For complaints raised by a doctor, or another health professional, about another doctor, the process is different, the complaint comes to us.

Also this …

HDC Process

On receipt of a complaint from a patient or health consumer, the HDC is required to make a preliminary assessment of the complaint to decide what course of action, if any, is appropriate. The HDC Act supports resolution of complaints at the lowest appropriate level.

The HDC may refer the complaint onto, or back to, the Medical Council. We then must act promptly to decide what action should be taken.”

Now given the fact that so many matters brought before the apparently over-worked, under-resourced and under-staffed Office of the H.D.C. are not ending up in investigation, and are in many cases “resolved” without any sanctions or further legal proceedings imposed, one must get very worried about what goes on. Yes, the bulk of complaints to the HDC seem to lead to nothing much at all, as they do not even get accepted as valid complaints! It all seems to be a bit of a catch-22 situation for many that have valid and serious issues with medical professionals and providers, and who want or really need to make a complaint. Without first complaining to the Health and Disability Commissioner, the Medical Council is highly unlikely to accept any complaint directed to them full stop!

If this set-up is intentional and by design, then it is an appalling state of affairs, basically denying very many justice, which also could be seen as a breach under the Bill of Rights Act, I presume.

 

PART 4 – QUESTIONS ABOUT THE “INDEPENDENCE” OF THE HDC AND THEIR DEPUTY COMMISSIONER (added 01 July 2013)

 

Further to Deputy Health and Disability Commissioner Theo Baker some more interesting information is worth looking at:

Theo Baker does on her Linkedin page show that she did from March 2010 to April 2011 work for a year and 2 months as Senior Lawyer for Capsticks LLP.

http://nz.linkedin.com/pub/theo-baker/61/301/b64

That was right before resuming a role at the Office of the Health and Disability Commissioner in July 2011, where she is employed in the senior role ad Deputy Commissioner to this day.

She had been Director of Proceedings for the HDC Office for about 5 years until 2009.

One wonders why she practically “changed sides” as a supposed legal expert at Capsticks, which is a senior legal practice in the United Kingdom, serving also the National Health Service (NHS) there. What does it say about a Commissioner, that in one job for a time acts in a role, where she is supposed to enforce the ‘Code of Health and Disability Services Consumers’ Rights’ here in New Zealand, and in another job – for another period, acts in a role defending health service providers like the the b]NHS[/b] and its various service units or departments?

Capsticks LLP are quite open about their commitment to serve as the legal representatives of health and disability service providers, now having even further solidified their “partnership” with the NHS:
http://www.capsticks.com/
http://www.capsticks.com/expertise/health-and-social-care/contracting-and-commercial/
http://www.capsticks.com/expertise/health-and-social-care/corporate-and-transactions/
http://www.capsticks.com/expertise/health-and-social-care/performance-contract-management/
http://www.capsticks.com/expertise/consulting-services/hr-advisory-and-consultancy-services/
http://www.capsticks.com/expertise/risk-management-and-litigation/clinical-negligence-and-risk-management/

So in view of Theo Baker’s work for Capsticks LLP, and her apparently having no concerns about one year serving health service recipients and their interests, and in another year the health service providers and their interests, one may not be surprised about some of her decisions, which in part have been criticised by patients or their relatives, who filed complaints to the HDC Office.

Here just a few examples that were mentioned in the media:

Watchdog’s refusal to investigate death denies us justice, family say“- New Zealand Herald, 25 April 2013

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10879632

DHB told to apologise to family after patient’s records botched“, New Zealand Herald, 30 August 2012

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830399

Anthony Hill has as Health and Disability Commissioner ensured independence of their office and that natural justice would be followed. See his response to a critical article in the Otago Daily Times from 23 December 2011:

http://www.odt.co.nz/opinion/opinion/192000/decisions-based-unbiased-assessment-facts

He writes the following:

Every complaint that is received by my office is carefully considered and any decision made arises from an unbiased assessment of the facts at issue.

This is the article by Stuart McLennan in the same paper, former HDC complaints assessor, from 21 December 2011 that caused Anthony Hill to respond:

http://www.odt.co.nz/opinion/opinion/191661/independence-commissioner-paramount

Whether this is applied in all cases, as Anthony Hill suggests in his response in the Otago Daily Times from 23.12.2011, one must really wonder about. Anecdotal feedback that I have received suggests it is not always applied.

As the New Zealand Herald articles above suggest, there is dissatisfaction amongst some complainants. I really wonder how many people that made complaints about health or disability service providers feel, that the HDC Office did not deliver a fair, reasonable and objective assessment of the cases – and decisions on them – which they presented. How many out there feel they were let down by the HDC Office? Perhaps some may wish to share their experiences?

Also one must presume that if a decision by the HDC Office is not accepted and seen as reasonable, then perhaps there is also evidence of the law not having applied properly. Natural justice comes to mind. In such a case a judicial review application to a High Court should be possible, as far as I can assess.

 

PART 5 – SOME APPALLING STORIES IN THE MEDIA (added 05 July 2013)

 

Here is yet another media report on affected family members dissatisfied with a decision by the Health and Disability Commissioner, being one from 06th June 2012 in the Bay of Plenty Times, titled “Investigation labelled ‘a whitewash'”:

http://www.nzherald.co.nz/bay-of-plenty-times/news/article.cfm?c_id=1503343&objectid=11065160

Extract from that article:

A Tauranga family are “angry and disillusioned” at an investigation into the death of their son, calling it a “whitewash” by medical professionals.

Brad Milne’s death, in July last year, catapulted his family into a tumult of grief and a frustrating search for answers.

His parents Colin and Marianne lodged a formal complaint regarding the lack of urgency they felt Brad’s case had received in the lead-up to his death.

But nine months later, Health and Disability Commissioner (HDC) Anthony Hill, who investigated the complaint, concluded that “based on the symptoms he (Brad) reported and presented with, the tragic outcome could not have been foreseen by the providers involved in his care”.

Mr Hill’s decision was “to take no further action” as it appeared Brad had “received an appropriate standard of care”.

The outcome received a withering response from Colin Milne, who wrote a letter of complaint to the commissioner on behalf of his deceased son and the Milne family.

“We’ve had a letter back saying their legal team are going to review the whole thing, so we’ll see,” he told the Bay of Plenty Times Weekend.”

“Mr Milne also wrote of his disgust at the lack of family involvement in the report’s compilation.

“We are amazed and angry that in reviewing our complaint you have not sought the input of Brad’s family and friends” and had instead “relied solely on the statements of the medical practitioners involved in Brad’s treatment”.”

…I wonder what has come out of this after all. Perhaps the matter is still being “reviewed”, as the HDC office takes a lot of time processing, assessing and investigating many cases. Any feed-back will be welcome here.

 

PART 6 – FURTHER MEDIA REPORTS ON THE HDC (added 27 Sept. 2013)

 

Here are some news-media reports on our Health and Disability Commissioner:

The first one I printed out from the web and scanned it into a PDF file, which is attached. It is titled “New HDC won’t be ‘new broom'”, which is an article from Jodi Yeats, and which was published by ‘NZ Doctor’ magazine on 19 May 2010.

Already then it was clear that there were not going to be any expected major changes or any improvements in the running of that office. Anthony Hill was quoted as saying before starting is job: “Ron [Paterson] has done a first class job and the office is running well”. Anthony Hill worked as Director General for the Ministry of Health, and also in other roles in that ministry, altogether for 15 years. He was also formerly the Ministry’s Chief Legal Advisor, the article says, so one must presume he knows all the networks and systems, many of the senior and not so senior doctors, and is really nothing but an official careerist, who seems to have been hand-picked by a selected panel, to become Commissioner.

It seems a bit like a cat hired to guard the mice, or an employer who suddenly chooses to become a union advocate, or whatever.

He is quoted as also saying: “The quality agenda asks “what happened, rather than who did it”. He furthermore says: “It is about learning and strengthening the system”. He then also refers to the then new Health Quality and Safety Commission.

What the article reports is basically also just about the same, what I have heard from doctors not so long ago, and Anthony Hill’s track record shows it to this date. His office does under his leadership only take firm, decisive disciplinary – or other similar actions – in very few cases, the rest is all about “talking things over” and “improving” the system.

In the article one can read also: “Both the NZMA and RNZCGP have welcomed the appointment and say they look forward to supporting and assisting the new health and disability commissioner”. Here are the very organisations representing the ones to be checked, actually cheering the man on.

So all of us who may expect some proper complaint resolution, where the professionals that made mistakes or committed misconduct, or seriously breached the Code of Ethics, are held accountable, we should not be surprised that not much is done that “harms” any professional. Such a Commission is a sick joke, really!

The other article is rather short, and was a news-item on 1ZB from 24 July this year, where the Minister for Health Tony Ryall is challenged by opposition health spokeswoman Annette King, to do something about the funding issues the Health and Disability Office has. It is titled “Health Minister told cough up for disability”. The HDC Offices are apparently well short of funds, while probably having a high work-load. According to that short article financial deficits can be expected to 2015 if not 2016, should they not be granted extra shortly.

That tells us of course, that they will be working with too few staff trying to cope with increasing work-loads. Naturally, the not so “pressing” complaints will thus be “off-loaded” a.s.a.p., as part of “prioritising”. Of course their legal staff will know all the ins and outs, to use the gaps and convenient provisions in the law, to find reasons to get away with this.

I ask, when is New Zealand ever going to get true standards and quality control for health and disability services? When are we getting a Health and Disability Commission that actually serves the persons worst affected, that is the end users of health and disability services, who get maltreated, neglected, served poorly, or harmed by incompetent or Code breaching doctors and other health professionals?

Answers to the questions will be welcome, Mr Ryall, same as Miss King, once you are at the helm again!

Link to the 1ZB story: http://www.newstalkzb.co.nz/auckland/news/nbpol/777721561-health-minister-told-cough-up-for-disability
Attached File(s)

Attached File ‘HDC, Health Minister told cought up for disability’, F. Marwick, news article, 1ZB, 24.07.2013:

HDC, Health Minister told cough up for disability, F. Marwick, news article, 1ZB, 24.07.2013

Attached File ‘NZ Doctor, New HDC won’t be ‘new broom”, Jodi Yeats, re A. Hill, article, 19.05.2010:

NZ Doctor, New HDC won’t be ‘new broom’, Jodi Yeats, re A. Hill, article, 19.05.2010

 

PART 7 – BAD EXPERIENCES WITH THE HDC THAT A MENTAL HEALTH SUFFERER HAS SHARED VIA YOUTUBE(added 04 Oct. 2013)

 

It appears that the Health and Disability Commissioner and his “team” are getting increasingly more unpopular!

I came across this, which is a You Tube video showing a person by the name of J.R. Murphy, who has had her own experiences with the office, apparently having made at least one complaint, which seems to be about treatment issues she suffered as a mental health patient (in crisis).

Youtube link(s):
‘Protest Health & Disability Commission, Wellington, Part I’:

Another link leads to a kind of blog she publishes, which reveals much pain, suffering and disappointments, including mistreatment, which I know a fair few other mental health sufferers can relate to.

http://www.jrmurphypoet.com/
http://www.jrmurphypoet.com/2014/03/nz-health-disability-commission-naive-ignorant-corrupt-hdc-threw-me-in-a-bin/

The You Tube clip covering an apparently recent protest in the foyer of the Wellington HDC Office was loaded in mid July 2013, so this must be an ongoing story.

I will not comment much further on this, as I am unfamiliar with the details of the case, but as the person has gone public, I do not doubt that there is truth in what is being raised here. It astonishes me that such issues are not resolved satisfactorily, yes apparently brushed aside or “dismissed” in some form, while the HDC has for some time also now had a MENTAL HEALTH COMMISSIONER working as part of their team.

So I ask, what do HDC do to listen to, to act upon complaints from, and what do they do to defend and enforce the rights of mentally ill in New Zealand? It seems like they do not do their job, and it only reinforces much of what has been raised for concerns in comments made above in this thread.

And the mainstream media seem to pay little attention to all this!

 

PART 8 – A SUMMARY REPORT FROM THE MEDICAL COUNCIL (added 09 Oct. 2013)

 

An interesting summary research report from the New Zealand Medical Journal, from 14 May 2010:

Opportunities to learn from medical incidents: a review of published reports from the Health and Disability Commissioner

By Sara Temelkovski, Kathleen Callaghan

Link to website for download of original report:

http://journal.nzma.org.nz/journal/123-1314/4114/content.pdf

Abstract

Aims To analyse recent published information about the Health and Disability Commissioner’s investigations in the context of The New Zealand Medical Council’s Domains of Competence and investigate possible relationships.

Methods

Retrospective review of 100 recent Health and Disability Commissioner (HDC) investigations published online (all cases reviewed regardless of the Commissioner’s ‘verdict’), involving at least one medical practitioner. Breaches and issues raised were categorised according to the Domains of Competence set by the Medical Council of New Zealand.

Results

The most common area of competence identified in the HDC investigations was that of Medical Expert, in 92.9% of cases. The second was Communication, identified in 48.7% of cases. Many cases included more than one Domain of Competence, with an average of 1.8 domains per investigation. Further characteristics of the cases were examined and a number of medical practitioner, patient, setting and timing statistics are also presented.

Conclusions

This study finds medical expertise and communication skills to be the key areas of a medical practitioner’s role that public complaints address. Beyond this, the limited data available through the Commissioner’s published reports make it difficult to draw conclusions which might assist with the improvement of medical practice in New Zealand.”

Further Extracts:

This paper reviews and analyses published reports by the Health and Disability Commissioner (HDC) in the context of expected duties and responsibilities of medical practitioners in New Zealand. The HDC was established under the Health and Disability Commissioner Act 1994 and is guided by the Code of Health and Disability Services Consumers’ Rights (the Code), which helps to determine whether there has been a breach of basic consumer rights. A key component of the Code is a judgement on whether the consumer received ‘services of an appropriate standard’. The HDC aims not to be influenced by outcomes and instead focuses on ‘the fair, simple, speedy, and efficient resolution of complaints’.1 Much of the Commissioner’s work is not publicly reported, with only the results of his formal investigations published, and therefore available for analysis. The HDC is the largest source of referrals to the Medical Council of New Zealand (NZMC) for competence reviews2. While there is debate about what is meant by “appropriate standard” and how service delivery is measured by the HDC, this study uses the Domains of Competence set out by the NZMC to categorise reported HDC investigation findings.”

New Zealand’s unique environment

“New Zealand has a unique environment when it comes to dealing with medical complaints. Our system of accident compensation with its focus on ‘no fault compensation’ essentially stops the process of highly adversarial case-by-case litigation. The system was originally designed to reduce the net cost of compensating for accident and injury, however many believe that it is also highly advantageous in terms of promoting system safety.”

Method

The study was undertaken by a summer student in the context of a studentship funded by the NZMC. To conduct this study, 100 published investigations by the HDC were selected for analysis, commencing from most recent (at the time of the study) and moving consecutively back in time until 100 investigations had been found, and after excluding the reported investigations described in the next paragraph. Data on the investigations was obtained from publicly available investigation reports posted on the Health and Disability Commissioner’s website http://www.hdc.org.nz.”

*****Personal comment to this review of reports: What is it worth, given the small sample, the selected data and having been conducted by one summer student? It can hardly give a thorough enough picture of what really goes on, but it does at least highlight some major areas of concern, where complaint matters have been formally assessed and investigated!*****

 

PART 9 – REFLECTIONS ON ’60 MINUTES’ AND THEIR EXPOSE ON ACC’S EXIT STRATEGY (added 14 Oct. 2013)

 

Let us remember, 60 minutes about one year ago!

Now what has the Health and Disability Commissioner Office had to say about this???

We have ACC “culling”, WINZ “culling”, and HDC do NOTHING!

 

PART 10 – JOBS COMING AND GOING AT THE HDC

 

Here is a recent job advertisement for a “Legal Advisor” for the HDC Office that I just found as still being active on the web. I did some time before see another advert for such a position, and it appears they either have a high staff turnover (which anecdotal information seems to confirm), or they have a priority to get such legal advisors, possibly to deal with the many dissatisfied complainants, whose complaints are not being investigated, and who may be unhappy about this:

Legal Advisor

Health and Disability Commissioner – Wellington, Wellington

View original job posting »

Job Description

He pānui tēnei ki te hunga mōhio ki ngā mahi mo te Hauora, me te Hauātanga. Tirohia tēnei take nui.

The Health and Disability Commissioner promotes and protects the rights of health and disability services consumers and facilitates the fair and efficient resolution of complaints relating to infringements of those rights.

We are looking for a law graduate or lawyer with up to two years’ experience to provide legal and policy advice on the Health and Disability Commissioner Act 1994, the Code of Rights, and other matters related to the business of the HDC. This is a full-time, permanent position in our Wellington office.

The successful applicant will have:

• an excellent academic record;
• first class analytical and communication skills;
• some experience in contractual drafting and review of corporate documentation;
• an understanding of policy issues affecting the interests of health and disability services consumers;
• excellent research and writing skills;
• sound judgement;
• the ability to handle complex cases and meet deadlines;
• a high level of initiative and self confidence; and
• the ability to work collaboratively within a multidisciplinary team environment.

Knowledge of health care law and/or public law is an advantage. You are expected to have an understanding and acceptance of the principles of the Treaty of Waitangi to ensure a culturally appropriate service.

Applications close 5.00pm, Friday 31 May 2013.

All applicants must complete an HDC application form to be considered.

Please visit the HDC website for the application form and position description.
http://www.hdc.org.n…rrent-vacancies
(note: Link no longer valid)

Please send your completed application form and CV to:
Carmen Allnutt, Office of the Health and Disability Commissioner, PO Box 1791, Auckland or by email to carmena@hdc.org.nz or call 09 373 1046 for further information.”

“New Zealand Government – 5 months ago – save job – share”

Link to Jobseeker.co.nz publication of this job:

http://www.jobseeker.co.nz/job/Legal-Advisor-a23ae0a371e436efaa0a84bdf543517e

 

PART 11 – RADIO NZ ON THE HDC (added 16 Oct. 2013)

 

From the Radio New Zealand website:

http://www.radionz.co.nz/news/national/221826/gp-was-negligent-says-hdc

GP was negligent says HDC

Updated at 3:52 pm on 16 September 2013

“The Health and Disability commissioner has found a GP failed to reasonably care for a patient, who was subsequently diagnosed with advanced bowel cancer after complaining to her doctor over a four year period.

The patient presented with bowel symptoms at least three times between 2008 to 2012 and was initially diagnosed with irritable bowel syndrome.

The Commissioner’s report says the woman felt her GP had “fobbed her off” and asked to see another GP at the practice, who the referred her to a local general surgeon where she was diagnosed with cancer.

Commissioner Anthony Hill says it’s particularly concerning the GP missed several opportunities to further investigate the patient’s ongoing symptoms, especially since she was over the age of 40.

He has asked the GP to write an apology to the patient and undertake an audit of her patients’ clinical records to identify those that need follow ups.”

Own comment on this:

Wow, asking the GP to write an “apology” and to undertake an “audit” of the patient’s clinical records to follow up! What a “decisive” action by the Commissioner, I am sure the GP will be “impressed” by the “firmness” of action faced!? Cancer is an often fatal illness as far as I can remember, so another “wet bus ticket slap on the hand” type of “disciplinary” action.

 

PART 12 MEDIA REPORT: “Delay with HDC report disappoints” (added 16 Oct. 2013)

 

Delay with HDC report disappoints

See below an extract from an ‘Otago Daily Times’ article a few months ago, see this link to this story:

http://www.odt.co.nz/news/dunedin/263397/delay-hdc-report-disappoints

By Eileen Goodwin on Wed, 3 Jul 2013
News: Dunedin | Dunedin Hospital

“An investigation into whether a group of Dunedin Hospital mental health patients was unwittingly involved in an experiment casts a shadow over those awaiting the outcome, an advocate says.

Mike McAlevey, of the Otago Mental Health Support Trust, complained in December 2010 to the office of the Health and Disability Commissioner (HDC) about use of the drug ketamine off-label as an antidepressant.

Ketamine is medically licensed as a rapid-acting anaesthetic.

Mr McAlevey is disappointed the complaint has not yet been resolved.

”I look on these complaints to the HDC as opportunities for everybody to learn. If it’s getting up to three years before any issues are dealt with, then the opportunities for learning are greatly diminished.”

Mr McAlevey said the complaint was not like others, in that it had had publicity, its issues had been canvassed, and the identities of those involved were known.

”The shadow hangs over people … until it’s cleared. And I don’t think it helps with morale in the district health board to have things like this hanging over them.

”It’s not really about ketamine. It’s about informed consent processes, and how the hospital does things around research. What’s research, and what’s not?”

He remained concerned the drug was given to patients without informed consent.

”It was being used [in 2010] as a fairly frontline treatment.”

He did not have an issue with off-label use, if correct protocol was followed.

Ketamine has been gaining attention overseas recently as a potential new antidepressant, following promising clinical trials.

Southern District Health Board mental health medical director Dr James Knight, in a written response yesterday, said one mental health patient still received ketamine injections, at their request.

”This request went through a thorough process to ensure its clinical appropriateness and fully informed consent,” Dr Knight said.

The board had seen a copy of the draft HDC report, he said. The Otago Daily Times asked the HDC about its investigation and was told the query would be considered by its legal team.

Two years ago, the National Health Board said it would investigate the drug’s use in the city’s mental health service during 2010. Its review, not released publicly, was absorbed into the HDC’s later that year.

eileen.goodwin@odt.co.nz”

Comment:

What do they say? “Delayed justice is denied justice”, right? So here we have a complaint already nearly 3 years in “process” at “snail’s pace”, and knowing what kind of “decisions” or “recommendations” are usually the result of any investigation, this is abysmal, what is going on. Facing malpractice, mistreatment, negligence, and what else there is in New Zealand, and you may die before anything is decided, and whatever will be “done” is hardly worth fighting for. Thank you HDC!!???

 

PART 13 – BANG!!! YET ANOTHER JOB ADVERTISED – FOR THE HDC OFFICE IN AUCKLAND!!! IS THE STAFF TURNOVER OUT OF CONTROL NOW, OR HAVE THEY BEEN GIVEN SOME EXTRA FUNDING FOR URGENTLY NEEDED ADDITIONAL STAFF NOW??!!

 

See this link for details:

http://www.mhc.govt….ervices-advisor
note: Link sadly no longer valid)

See this extract from the HDC website, listing a summarised job description:

Disability Services Advisor

Exciting role with breadth!
Sound understanding of the NZ health and disability sector and consumer rights issues essential
Central Auckland location

Under the Health & Disability Commissioner Act 1994, the Commissioner is required to promote and protect the rights of consumers who access health and disability services.

Reporting to the Deputy Commissioner Disability, the Disability Service Advisor contributes to the completion of Disability Services Team work plan, as well as increasing the profile, relevance and accessibility of the Commissioner’s office within the health and disability sector.

This exciting role has lots of variety and offers the successful applicant the opportunity to be part of a highly professional and dedicated team. It is a challenging role that requires an individual who has:

a relevant tertiary qualification, preferably at post-graduate level
a sound understanding of consumer rights issues
experience of national policy, funding and/or management of health, disability and social services
operational experience within the disability sector or aged-care
project management experience
previous education and/or training experience
excellent business writing skills and the ability to synthesize and present complex information to diverse audiences
excellent relationship and stakeholder management skills
a high level of initiative and self-confidence, with the ability to work with a minimum of supervision and meet deadlines
an understanding of the principles of the Treaty of Waitangi.

You can download the Position Description and Application Form here. All applicants must complete an HDC application form to be considered.

Applications for this role close 5.00pm, Monday 4th November 2013.

Please email your completed application form, CV and cover letter to carmena@hdc.org.nz or post to Carmen Allnutt, Office of the Health and Disability Commissioner, PO Box 1791 Auckland; or call 09 373 1046 for further information.”

Own Comment:

The downloadable MS Word job description states that an individual employment contract is offered!!! So the HDC Office seem to be run like that, possibly not having staff on a collective employment agreement, or perhaps only a core of them.

 

PART 14 – MEDIA REPORT: “”Doctor prescribed five times right amount of methadone” (added 22 Oct. 2013)

 

“Doctor prescribed five times right amount of methadone”

Link to Radio NZ news story:

http://www.radionz.co.nz/news/national/221129/doctor-prescribed-five-times-right-amount-of-methadone

Extract:

“Updated at 12:48 pm on 10 September 2013”

The Health and Disability Commissioner Anthony Hill has found a doctor breached the rules protecting a patient’s rights by prescribing the person five times the normal amount of methadone.

The names of the doctor and the patient have been withheld.

The incident in May 2011 involved the Southern District Health Board.

The DHB was also found to have failed the patient, who was addicted to opiates and on the methadone programme at the time.

The incorrect dosage arose when the patient confused milligrams with millilitres when giving the doctor details of the dosage

An attempt on the day to verify the correct dosage was unsuccessful but instead of informing the next shift of this fact, the doctor left the patient’s chart with the incorrect dose on it.

The patient was treated for an overdose in the hospital’s high dependency unit, made a full recovery and was discharged two days later.

The commissioner recommends the doctor and board apologise to the patient and introduce better systems to help with information sharing.

Waitemata District Health Board director of clinical training Pat Alley provided expert advice to he inquiry and describes the mistake as a close call.

Professor Alley says the doctor should have obtained independent verification of the dosage before including it on the patient’s chart.”

Own Comment:

Another slap on the wrist with a wet bus ticket kind of “decision” and “recommendation”.

 

PART 15 – EXTRACTS FROM THE HEALTH AND DISABILITY COMMISSIONER ACT (added 22 Oct. 2013):

 

The following information is a bit more in addition to comment number 11 (see page 1 further above) that was made on 10 May 2013 – on provisions in the ‘Health and Disability Commissioner Act 1994’ and the ‘Health Practitioners’ Competence Assurance Act 2003′. It shows and explains exactly how the statutes link up in specific provisions covering the handling of complaints, and how it will in most cases (if not all) first be the Health and Disability Commissioner, who acts on any complaint brought against a health practitioner.

First: From the ‘Health and Disability Commissioner Act’:

See the link to the online version:
http://www.legislation.govt.nz/act/public/1994/0088/latest/DLM333584.html

Decision to take no action

38 Commissioner may decide to take no action on complaint

(1) At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), 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.

(2) The Commissioner’s consideration under subsection (1) may, in particular, take into account any of the following matters:

(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:

(b ) whether the subject matter of the complaint is trivial:

(c ) whether the complaint is frivolous or vexatious or is not made in good faith:

(d) whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:

(e) whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.

(3) Subsection (2) does not detract from the generality of subsection (1).

(4) In any case where the Commissioner decides to take no action, or no further action, on a complaint, the Commissioner must inform the following persons and agencies of that decision and the reasons for it:

(a) the complainant:

(b ) the health care provider or the disability services provider to whom the complaint relates:

(c ) any agency or any person to whom the complaint has, in accordance with section 34 or section 36, been referred:

(d) any advocate to whom the complaint has been referred.”

Commissioner required to share certain information

39 Commissioner to inform agencies of certain risks

(1) Whenever the Commissioner has reason to believe that the practice of a health practitioner may pose a risk of harm to the public, the Commissioner must promptly notify the appropriate authority of that belief and the reasons for it.

(2) Whenever the Commissioner has reason to believe that failures or inadequacies in the systems or practices of a health care provider or a disability services provider are harming or are likely to harm the health or safety of members of the public, the Commissioner must promptly notify the Director-General of Health of that belief and the reasons for it.

(3) If, during or after an investigation, the Commissioner is of the opinion that there is evidence of a significant breach of duty or misconduct on the part of a health care provider or disability services provider or an officer or employee or member of a health care provider or disability services provider, the Commissioner must promptly refer the matter to the appropriate person or agency.”

Investigations by Commissioner

40 Commissioner may investigate breaches

(1) The Commissioner may decide to investigate any action of a health care provider or a disability services provider if the action is, or appears to the Commissioner to be, in breach of the Code.

(2) The Commissioner may investigate any action of a health practitioner that was taken at any time before 1 July 1996, if it appears that the action affected a health consumer and was, at the time that it was taken, a ground for bringing disciplinary proceedings against the health practitioner under a former health registration enactment.

(3) The Commissioner may investigate an action under this section either on complaint or on the Commissioner’s own initiative.”

42 On notification of investigation authority not to take disciplinary action until further notice

(1) In any case where, after deciding to investigate the action of a health care provider or a disability services provider, it appears to the Commissioner that the investigation directly concerns a health practitioner, the Commissioner must promptly give notice of the investigation to the appropriate authority.

(2) Once the authority has received the notice, no disciplinary action under the Health Practitioners Competence Assurance Act 2003 may be taken in relation to any subject matter of the investigation until—

(a) the Commissioner notifies the authority—

(i) that the matter is not to be investigated, or investigated further, under this Act; or

(ii) that the complaint or matter has been resolved; or

(iii) that the matter is not to be referred to the Director of Proceedings under section 45(2)(f); or

(b ) the Director of Proceedings notifies the authority of his or her decision under section 49 not to institute disciplinary proceedings in relation to the matter.

(3) This section does not prevent any action under the Health Practitioners Competence Assurance Act 2003—

(a) under any of sections 36 to 42, 45 to 51, or 69 of that Act; or

(b ) in bringing and completing disciplinary proceedings initiated by a charge laid by the Director of Proceedings.”

45 Procedure after investigation

(1) This section applies if, after making an investigation under this Part, the Commissioner is of the opinion that any action that was the subject matter of the investigation—

(a) was in breach of the Code; or

(b ) in the case of an action of a health practitioner that was taken at a time before 1 July 1996, affected a health consumer and was, at the time that it was taken, a ground for bringing disciplinary proceedings against the health practitioner under a former health registration enactment.

(2) If this section applies, the Commissioner may do all or any of the following:

(a) report the Commissioner’s opinion, with reasons, to any health care provider or disability services provider whose action was the subject matter of the investigation, and may make any recommendations as the Commissioner thinks fit:

(b) report the Commissioner’s opinion, with reasons, together with any recommendations that the Commissioner thinks fit, to all or any of the following:

(i) any authority or professional body:

(ii) the Accident Compensation Corporation:

(iii) any other person that the Commissioner considers appropriate:

(c) make any report to the Minister that the Commissioner thinks fit:

(d) make a complaint to any authority in respect of any person:

(e) if any person wishes to make such a complaint, assist that person to do so:

(f) refer 1 or more health care providers or disability services providers to the Director of Proceedings for the purpose of deciding whether any 1 or more of the following actions should be taken in relation to those providers:

(i) any of the actions contemplated by section 47:

(ii) the institution of proceedings under section 50:

(iii) the institution of disciplinary proceedings.

(3) On referring 1 or more health care providers or disability services providers to the Director of Proceedings under subsection (2)(f), the Commissioner must advise the Director of Proceedings of any relevant factors of the kind specified in section 44(3).

(4) Subsection (2)(f)(ii) does not apply if this section applies because of subsection (1)(b ).”

49 Functions of Director of Proceedings

(1) The functions of the Director of Proceedings under this Part are—

(a) to decide, on referral from the Commissioner pursuant to section 45(2)(f),—

(i) whether to institute proceedings under section 50, or disciplinary proceedings, or both, against a person against whom a complaint has been made under this Part or in respect of whom an investigation has been conducted under this Part; and

(ii) whether to take any of the actions contemplated by section 47; and

(b) if the Director of Proceedings decides that such proceedings should be instituted or, as the case may be, that any such action should be taken, to institute the proceedings or, as the case may be, to take the action.”

Proceedings before Human Rights Review Tribunal

50 Proceedings before Human Rights Review Tribunal

(1) This section applies to any health care provider or disability services provider in respect of whom or of which an investigation has been conducted under this Part in relation to any action alleged to be in breach of the Code.

(2) Subject to sections 44(1) and 53, civil proceedings before the Human Rights Review Tribunal shall lie at the suit of the Director of Proceedings against any person to whom this section applies for a breach, by that person, of the Code.

(3) The Director of Proceedings may, under subsection (2), bring proceedings on behalf of a class of persons, and may seek on behalf of persons who belong to the class any of the remedies described in section 54, where the Director of Proceedings considers that a person to whom this section applies is carrying on a practice which affects that class and which is in breach of the Code.

(4) Where proceedings are commenced by the Director of Proceedings under subsection (2), neither the complainant (if any) nor the aggrieved person (if not the complainant) shall be an original party to, or, unless the Tribunal otherwise orders, join or be joined in, any such proceedings.”

51 Aggrieved person may bring proceedings before Tribunal

Notwithstanding section 50(2) but subject to section 53, the aggrieved person (whether personally or by any person authorised to act on his or her behalf) may bring proceedings before the Tribunal against a person to whom section 50 applies if he or she wishes to do so, and—

(a) the Commissioner, having found a breach of the Code on the part of the person to whom that section applies, has not referred the person to the Director of Proceedings under section 45(2)(f); or

(b ) the Director of Proceedings declines or fails to take proceedings.”

52 Remedies that may be sought

(1) Subject to subsection (2), in any proceedings before the Tribunal brought by the Director of Proceedings or the aggrieved person, the plaintiff may seek such of the remedies described in section 54 as he or she thinks fit.

(2) If any person has suffered personal injury (within the meaning of the Accident Compensation Act 2001) covered by that Act, no damages (other than punitive damages in accordance with section 57(1)(d)) arising directly or indirectly out of that personal injury—

(a) may be sought by or on behalf of that person in any proceedings under section 50 or section 51:

(b ) may be awarded to or for the benefit of that person in any such proceedings.”

53 Limitation on right to bring proceedings

Nothing in section 50 or section 51 authorises or permits the Director of Proceedings or any aggrieved person to bring proceedings before the Tribunal in respect of any action that is alleged to be in breach of the Code in any case where the matter has been resolved under this Act by agreement between the parties concerned, unless a term of that agreement has not been complied with.”

54 Powers of Human Rights Review Tribunal

(1) If, in any proceedings under section 50 or section 51, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is in breach of the Code, it may grant 1 or more of the following remedies:

(a) a declaration that the action of the defendant is in breach of the Code:

(b ) an order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order:

(c ) damages in accordance with section 57:

(d) an order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach:

(e) such other relief as the Tribunal thinks fit.

(2) In any proceedings under section 50 or section 51, the Tribunal may award such costs against the defendant as it thinks fit, whether or not it makes any other order, or may award costs against the plaintiff, or may decline to award costs against either party.

(3) Where the Director of Proceedings is the plaintiff, any costs awarded against him or her shall be paid by the Commissioner, and the Commissioner shall not be entitled to be indemnified by the complainant or, as the case may be, the aggrieved person.

(4) It shall not be a defence to proceedings under section 50 or section 51 that the breach was unintentional or without negligence on the part of the defendant or any officer or employee or member of the defendant, but the Tribunal shall take the conduct of the defendant or, as the case may require, of any officer or employee or member of the defendant into account in deciding what, if any, remedy to grant.

(5) In any proceedings under section 50 or section 51 in respect of any action of a health practitioner, the Tribunal shall, where that action has been the subject of disciplinary proceedings, have regard to the findings of the body before which those disciplinary proceedings were heard and to any penalty imposed on that health practitioner in those proceedings.”

Own Comments to this:

Looking at the above the Health and Disability Commissioner has a lot of discretion as to what to do upon a complaint. It starts with the provisions under section 38 to do potentially do nothing (which may be justified with certain reasons, or not, based on a range of considerations), and alternatively a course may be taken to investigate a complaint or action, as section 40 allows, which can be on the Commissioner’s own initiative, or by following a complaint that was received (usually a health or disability service consumer).

Section 39 provides for the Commissioner to take action if information received gives reason to believe that a health practitioner’s actions, or a systemic situation, may pose a risk to cause harm, and it forces the Commissioner to notify an “authority” the practitioner is registered with, or to notify the Director General of Health, and in cases like established malpractice the person or provider concerned.

According to section 40 the Commissioner “may” investigate an action (or complaint), but that does not mean he/she has to, so there is again a fair degree of discretion available, which it seems is being used in most cases. Starting a formal investigation is done after an initial assessment, and records show that only a small number of complaints end in proper investigations, which possibly is, because such an investigation can already mean that a practitioner or provider of services may be ordered to stop practicing for the time the investigation takes place.

Section 42 provides that the “authority” (which in many cases would be the ‘Medical Council’, or a similar “registration body”) must not take disciplinary action until further notice, for as long as the Health and Disability Commissioner is conducting an investigation and makes a determination following it. Section 45 then gives the Commissioner a range of possible steps to take, upon having completed an investigation, where a breach of the Code has been established. Referring the matter to the Director of Proceedings is just one option, which seems to be very rarely taken.

Sections 49 and 50 offer provisions for the Director of Proceedings to file for civil proceedings for a matter that was investigated and found to be in breach of the Code to the Human Rights Review Tribunal. Section 51 also allows the aggrieved person (or complainant) to start proceedings before the same Tribunal, but this can only be done, if upon a formal investigation a breach of the Code has been established by the Commissioner. This is quite important, as it limits what an aggrieved person can do, yes, it basically all depends on what the Health and Disability Commissioner and/or Director of Proceedings have already decided, what can be done by the affected complainant or aggrieved party.

Section 53 also limits what can be done by a Director of Proceedings or the aggrieved person, if any kind of agreement or “settlement” was already reached between the parties to resolve a complaint. Only if a condition has not been met, can proceedings be commenced at the Human Rights Review Tribunal. Section 54 then stipulates what power the Tribunal has, and what remedies it can impose and enforce. It seems to be the case that only the Human Rights Review Tribunal has real “teeth” to address complaints about breaches of the Code, as the HDC office seem too reluctant to even “investigate”, let alone refer matters to disciplinary action or the Tribunal.

In summary, it becomes clear, that the Health and Disability Commissioner does ultimately have the say in whether any formal investigation is going to be made, whether a breach can and will be established, and what will be done upon it! If the Commissioner does not consider a matter as being serious enough to call it a breach of the Code, or chooses to take other measures to address a complained about (or reported) “action”, then there are substantial hurdles for any affected patient or client, to take any action her- or himself.

Also does the Medical Council (like other “authorities”) seem to follow a line, where they will do all to “resolve” any issues at the lowest possible level, before it may go to a professional conduct committee or a tribunal hearing. This and other factors explain, why so few cases end up in proper disciplinary measures of whatever kind. It appears the HDC are rather concerned to not push their investigations and actions “too far”, with the intention to avoid the serious consequences this can have for any health or medical practitioner. I would say it raises serious issues with the Commissioner and his/her office, as it does not seem to be very effective in enforcing consumer rights and applied standards.

 

PART 16 – EXTRACTS FROM THE HEALTH PRACTITIONERS’ COMPETENCE ASSURANCE ACT 2003 (added 22 Oct. 2013)

 

The following are provisions in the Health Practitioners’ Competence Assurance Act 2003:

Part 3

Competence, fitness to practise, and quality assurance

34 Notification that practice below required standard of competence

(1) If a health practitioner (health practitioner A) has reason to believe that another health practitioner (health practitioner B ) may pose a risk of harm to the public by practising below the required standard of competence, health practitioner A may give the Registrar of the authority that health practitioner B is registered with written notice of the reasons on which that belief is based.

(2) If a person holding office as Health and Disability Commissioner or as Director of Proceedings under the Health and Disability Commissioner Act 1994 has reason to believe that a health practitioner may pose a risk of harm to the public by practising below the required standard of competence, the person must promptly give the Registrar of the responsible authority written notice of the circumstances on which that belief is based.

(3) Whenever an employee employed as a health practitioner resigns or is dismissed from his or her employment for reasons relating to competence, the person who employed the employee immediately before that resignation or dismissal must promptly give the Registrar of the responsible authority written notice of the reasons for that resignation or dismissal.

(4) No civil or disciplinary proceedings lie against any person in respect of a notice given under this section by that person, unless the person has acted in bad faith.”

35 Authority must notify certain persons of risk of harm to public

(1) Whenever an authority that a health practitioner is registered with has reason to believe that the practice of the health practitioner may pose a risk of harm to the public, the authority must promptly give the following persons written notice of the circumstances that have given rise to that belief:

(a) the Accident Compensation Corporation:

(b ) the Director-General of Health:

(c ) the Health and Disability Commissioner:

(d) any person who, to the knowledge of the authority, is the employer of the health practitioner.

(2) Whenever an authority that a health practitioner is registered with has reason to believe that the practice of the health practitioner may pose a risk of harm to the public, the authority may give written notice to any person who works in partnership or in association with the practitioner of the circumstances that have given rise to that belief.

(3) If, after giving notice under this section in respect of a health practitioner, the authority forms the view that the practice of the health practitioner never posed, or no longer poses, a risk of harm to the public, the authority must promptly notify every recipient of the notice under this section of the current position in respect of the health practitioner.

(4) Promptly after giving a notice under this section about a health practitioner, the Registrar of the authority must give a copy of the notice to the practitioner.”

36 When authority may review health practitioner’s competence

(1) Promptly after receiving a notice of the kind described in subsection (2), an authority must make inquiries into, and may review, the competence of a health practitioner who is registered with the authority and who holds a current practising certificate.

(2) The notices referred to in subsection (1) are—

(a) a notice of a professional conduct committee’s recommendation under section 80(2)(a) or section 79(b ), so far as that recommendation relates to competence; or

(b ) a notice given under section 34.

(3) Subsection (1) does not apply if the authority has reason to believe that a notice given under section 34 by a health practitioner is frivolous or vexatious.

(4) The responsible authority may at any time review the competence of a practitioner who holds a current practising certificate, whether or not—

(a) there is reason to believe that the practitioner’s competence may be deficient; or

(b) the authority receives a notice of the kind described in subsection (2).

(5) In conducting a review under this section, the authority must consider whether, in the authority’s opinion, the health practitioner’s practice of the profession meets the required standard of competence.”

Part 4

Complaints and discipline

Referral of complaints and interim suspensions

64 Complaints about practitioners

(1) Whenever the responsible authority receives a complaint alleging that the practice or conduct of a health practitioner has affected a health consumer, the authority must promptly forward the complaint to the Health and Disability Commissioner.

(2) This section does not apply to a complaint that an authority receives from the Health and Disability Commissioner.

(3) In subsection (1), health consumer has the same meaning as in the Health and Disability Commissioner Act 1994.”

65 Response to complaints referred by Health and Disability Commissioner

(1) When the Health and Disability Commissioner refers a complaint to the responsible authority under section 34(1)(a) of the Health and Disability Commissioner Act 1994, the authority must promptly assess the complaint and consider, in light of the nature and circumstances of the complaint, the action or actions that the authority should take to respond to the complaint.

(2) Without limiting the generality of subsection (1), the authority may decide to refer the complaint to a professional conduct committee.”

66 Health and Disability Commissioner must notify authority of pending complaint

The Health and Disability Commissioner must, under section 42(1) of the Health and Disability Commissioner Act 1994, notify the responsible authority of any investigation under that Act that directly concerns a health practitioner.”

68 Referral of complaints and notices of conviction to professional conduct committee

(1) If the responsible authority decides, under section 65(2), to refer a complaint to a professional conduct committee, it must do so as soon as practicable after it makes that decision.

(2) When a notice of conviction is given under section 67 to the authority, the authority must, as soon as reasonably practicable after receiving the notice, refer the notice to a professional conduct committee.

(3) If the responsible authority considers that information in its possession raises 1 or more questions about the appropriateness of the conduct or the safety of the practice of a health practitioner, it may refer any or all of those questions to a professional conduct committee.

(4) If at any time, while a matter concerning a health practitioner is under consideration by a professional conduct committee, the responsible authority thinks that a further matter concerning that practitioner should form part of the committee’s consideration, the authority may refer the further matter to the committee.”

69 Interim suspension of practising certificate pending prosecution or investigation

(1) This section applies if a practitioner is alleged to have engaged in conduct that—

(a) is relevant to—

(i) a criminal proceeding that is pending against the practitioner; or

(ii) an investigation about the practitioner that is pending under the Health and Disability Commissioner Act 1994 or under this Act; and

(b) in the opinion of the responsible authority held on reasonable grounds, casts doubt on the appropriateness of the practitioner’s conduct in his or her professional capacity.

(2) If this section applies, the responsible authority may order that—

(a) the practising certificate of the health practitioner be suspended; or

(b) 1 or more conditions be included in the health practitioner’s scope of practice.

(3) The authority may not make an order under subsection (2) unless it has first—

(a) informed the health practitioner concerned why it may make an order under that subsection in respect of the health practitioner; and

(b) given the health practitioner a reasonable opportunity to make written submissions and be heard on the question, either personally or by his or her representative.

(4) The authority must revoke an order under subsection (2) as soon as practicable after—

(a) the authority is satisfied that the appropriateness of the practitioner’s conduct in his or her professional capacity is no longer in doubt; or

(b) the criminal proceeding on which the practitioner’s suspension is based is disposed of otherwise than by his or her conviction; or

(c ) if the criminal proceeding on which the practitioner’s suspension is based results in his or her conviction, the authority is satisfied that no disciplinary action is to be taken or continued in respect of that conviction under the Health and Disability Commissioner Act 1994 or under this Act; or

(d) if the investigation on which the practitioner’s suspension is based has been completed, the authority is satisfied that the practitioner will not be charged as a result of the investigation.

(5) An order under subsection (2) or subsection (4) takes effect immediately, and the authority must ensure that the practitioner is notified as soon as practicable.”

70 No action to be taken while matter under investigation by Health and Disability Commissioner

(1) When, in accordance with section 64, an authority notifies the Health and Disability Commissioner of a complaint or, in accordance with section 66, the Health and Disability Commissioner notifies an authority of an investigation, the authority may not take any action under this Part concerning the complaint or the subject matter of the investigation until—

(a) the Health and Disability Commissioner notifies the authority—

(i) that the matter is not to be investigated, or investigated further, under the Health and Disability Commissioner Act 1994; or

(ii) that the complaint or matter has been resolved; or

(iii) that the matter is not to be referred to the Director of Proceedings under section 45(2)(f) of that Act; or

(b ) the Director of Proceedings notifies the authority of his or her decision under section 49 of that Act not to institute disciplinary proceedings in relation to the matter.

(2) This section is subject to section 69.”

Professional conduct committees

71 Professional conduct committees

(1) Each authority may from time to time appoint, in relation to a particular case or cases of a particular class, a professional conduct committee consisting of—

(a) 2 health practitioners who are registered with the authority; and

(b ) 1 layperson.

(2) The authority may, if in any particular case it considers it appropriate to do so, appoint, under subsection (1), a health practitioner or, as the case requires, a layperson who is a member of the authority.

(3) The authority must appoint one of the members of each professional conduct committee to preside at the meetings of the committee.”

See also this link to the Act:

http://www.legislation.govt.nz/act/public/2003/0048/latest/DLM203312.html

 

Own Comments to this:

Sections 34 to 36 (above) do primarily provide for health professionals being expected to give notice to their “authority” and other institutions if they have concerns about a colleague or peer professional not complying with the code, by lacking competence or fitness, and thus posing a risk for causing harm. The authority must notify other persons in such cases, and certain measures like a review of the practitioner’s competence can and must be taken following that.

I believe it is fair to say, that those section will only be applied in a small number of cases, as practitioners will most likely attempt to resolve issues with colleagues in a way that would avoid escalating noticed issues. Only if very serious risks and a lack of cooperation of a colleague may become evident, is it likely to end in formal notices to be made.

The other sections under Part 4 of the Act cover complaints and how they are being handled. It makes clear that if an authority like the Medical Council receives a complaint, they must notify the Health and Disability Commissioner, and where the Commissioner receives a complaint, he/she must notify the responsible authority of this.

Again, it is first of all the Health and Disability Commissioner expected to take measures upon receiving a complaint (directly or indirectly), or by taking action out of the Commissioner’s own initiative, so this means the Commissioner does actually perform a kind of “GATEKEEPER ROLE”. Consequently it is again first up to the Commissioner to follow up matters, to make an assessment, to decide on whether a formal investigation is justified or not, and whether a breach of the Code will be established or be evident. During an investigation the “authority” of the practitioner will not be allowed to take separate actions, until notified by the Health and Disability Commissioner on her/his result and decision.

An “authority”, e.g. the Medical Council, can take own measures once notified about the outcome of the Commissioner’s assessment and possible investigation. But should the Commissioner (or Director of Proceedings) see no need to investigate, or to investigate further, and not establish that a breach occurred, or recommend a remedy other than referring the matter on for civil proceedings or “disciplinary actions”, then it will in most likelihood mean, that the relevant “authority” will also take no further action.

So the Health and Disability Commissioner occupies a key role in handling complaints and in following up actions of concern, and it seems that it will ultimately depend on the Commissioner what will be done about this. With the kinds of decisions or recommendations by the Commissioner that have been presented in some “comments” above, it raises very serious concerns, how effectively rights, codes and standards are being enforced in the health and disability sector in New Zealand. Indeed, the system of checks and balances appears to be very much lacking here. The apparent reluctance of the Commissioner to decisively and firmly hold health practitioners accountable, is an immense worry and unacceptable.

 

SCHEDULE 2 IN THE ACT:

Schedule 2

Bodies continued in existence and appointed as authorities in respect of health professions

s 114(1)

Authorities Professions

Chiropractic Board (being the Board continued by section 3(1) of the Chiropractors Act 1982) Practice of chiropractic
Dietitians Board (being the Board continued by section 4(1) of the Dietitians Act 1950) Practice of dietetics
Medical Radiation Technologists Board (being the Board continued by section 4A(1) of the Medical Auxiliaries Act 1966) Practice of medical radiation technology
Medical Council of New Zealand (being the Council continued by section 122(1) of the Medical Practitioners Act 1995) Practice of medicine
Medical Sciences Council of New Zealand (formerly known as the Medical Laboratory Science Board, being the Board continued by section 4(1) of the Medical Auxiliaries Act 1966, which Board was formerly known as the Medical Laboratory Technologists Board) Practice of medical laboratory science
Nursing Council of New Zealand (being the Council continued by section 3 of the Nurses Act 1977) Practice of nursing
Occupational Therapy Board (being the Board continued by section 4(1) of the Occupational Therapy Act 1949) Practice of occupational therapy
Optometrists and Dispensing Opticians Board (being the Board continued by section 3(1) of the Optometrists and Dispensing Opticians Act 1976, which Board was formerly known as the Opticians Board) Practice of optometry Practice of optical dispensing
Physiotherapy Board (being the Board continued by section 4(1) of the Physiotherapy Act 1949) Practice of physiotherapy
Podiatrists Board (being the Board continued by section 4B(1) of the Medical Auxiliaries Act 1966) Practice of podiatry
Psychologists Board (being the Board continued by section 3(1) of the Psychologists Act 1981) Practice of psychology

Schedule 2: amended, on 1 August 2011, by clause 7(6) of the Health Practitioners Competence Assurance (Designation of Anaesthetic Technology Services as Health Profession) Order 2011 (SR 2011/227).

See this link for the New Zealand Legislation website and the ‘Health Practitioners’ Competence Assurance Act 2003′, to which this Schedule 2 is attached:

http://www.legislation.govt.nz/act/public/2003/0048/latest/DLM203312.html#DLM205228

Schedule 2 link:

http://www.legislation.govt.nz/act/public/2003/0048/latest/DLM205228.html

Own Comments:

Schedule 2 lists the so-called “authorities” to which this Act applies, and one can see, that some professional associations, e.g. for counsellors and the likes, are not covered. This means, that some health professionals are not affected by the statutory provisions under the ‘Health Practitioners’ Competence Assurance Act’, and so not bound by them.

 

PART 17 – OFFICIAL INFORMATION ACT REQUESTS TO THE HDC (added 24 October 2013):

 

Dear, oh dear, oh dear, Health and Disability Commissioner, where are your honest, open answers to these justified O.I.A. (Official Information Act) requests? One is long overdue, another was withheld, and yet another was only partly replied to. I suggest that persons reading this, make their own requests, to dig into the HDC and ask what they are up to, as it is long overdue to expose what is happening in their office:

LINK:
https://fyi.org.nz/body/health_and_disability_commissioner

“Official Information Act requests to Health and Disability Commissioner –
A public authority”

“3 Offical Information Act requests to Health and Disability Commissioner”

“How many complaints lodged nationwide against, CareNZ, and Pathways; Request sent to Health and Disability Commissioner by Paul Riddler on June 01, 2013.”

Long overdue.

“please could you provide me with the following information. 1. How many complaints have been lodged nationwide, against the following health provider…”

Suicide reduction strategy

Partially successful.

“by Health and Disability Commissioner to Josh Martin on September 21, 2012.”

 Partially successful.

“Dear Mr Martin, Please find attached our reply to your email of 19 September 2012 in PDF. If you would like a hard copy of this reply, kindly provi…”

Submission to OIA review

Refused.

“by Health and Disability Commissioner to Alex Harris on August 27, 2012.”

 Refused.

https://fyi.org.nz/request/426/response/2929/attach/3/2408%20001.pdf

See the response to the last one under that link just offered!

 

PART 18 – FURTHER POSITION DESCRIPTIONS FOR JOBS WITH THE HDC (added on 07 Nov. 2013):

 

I came across 2 position descriptions for “jobs” at the HDC Office last night, which maybe of interest for some, as they show what kind of prerequisites, and abilities are expected for roles that recently appeared to have been available at one of the HDC Offices:

1. Complaints Assessor, Auckland (job description is from Jan. 2013):

http://www.google.co…%2520fixed-term)%2520akl%2520jan%25202013.docx&ei=_kR6Us7FDoSTiQfh6oHQDA&usg=AFQjCNHnBRkN0dwGV2TTjCU-i9Bf4ZouxA
(note: Link no longer valid)

2. Complaints Assessor, Auckland (which may be the same role as above):

http://www.google.co…20akl%2520(2013).docx&ei=_kR6Us7FDoSTiQfh6oHQDA&usg=AFQjCNFyUJJeCtT0uvpbYjlXvyUQP1Hm8w
(note: link no longer valid)

And it seems to be for this job advertisement here (indeed for 2 jobs, that were advertised in June 2013, both for Auckland):

http://www.newzealand.jobistan.co/government-jobs-vacancies/complaints-assessors/

Complaints Assessors
06.19.2013 · Posted in Government Jobs

Job Type: Ongoing – Full Time
Category:
Location: Auckland
Date Advertised: 19-JUN-13
Job Reference: NZ/CLA14
Job Title: Complaints Assessors
Business Unit:
Summary:

• Two positions
• Central Auckland location
• Immediate start

He pānui tēnei ki te hunga mōhio ki ngā mahi mo te Hauora, me te Hauātanga. Tirohia tēnei take nui.

The Health and Disability commissioner promotes and protects the rights of health and disability services consumers and facilitates the fair and efficient resolution of complaints relating to infringements of those rights.

The Complaints Assessor role is a frontline position tasked with handling complaints about health or disability services from consumers. A significant part of the job involves drafting sound, high-quality correspondence.

This diverse role requires:
• excellent written and oral communication skills;
• proven ability to identify and solve problems, in consultation with colleagues;
• ability to manage a caseload and daily tasks in an organised and professional manner;
• a calm and professional attitude;
• ability to work under pressure and meet deadlines;
• a sound understanding of the NZ health and disability sector and consumer rights issues.

A relevant tertiary qualification (e.g. LLB or BCA) is preferable.

You are expected to have an understanding and acceptance of the principles of the Treaty of Waitangi to ensure a culturally appropriate service.

All applicants must complete an HDC application form to be considered.

Please visit the HDC website for the application form and position description.
http://www.hdc.org.nz/utilities/current-vacancies

Please send your completed application form, covering letter and CV to:
Carmen Allnutt, Office of the Health and Disability Commissioner, PO Box 1791, Auckland 1140 or by email to carmena@hdc.org.nz by 5pm Friday 28 June 2013.

For further information, please contact Carmen Allnutt at carmena@hdc.org.nz or phone 09 373 1046.

They also seemed to have been advertised via this “Jobseeker” website:

http://www.jobseeker.co.nz/job/Complaints-Assessor-8e6333d930e9e0aa7d8b08cd82878fb9

There was also another job description for Deputy Commissioner that I downloaded, and the job description (also from Jan. 2013) can be found via this link:

http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.hdc.org.nz%2Fmedia%2F230951%2Fdeputy%2520commissioner%2520disability%2520pd%2520jan%252013.docx&ei=XEh6UovrLoWdiAfpvoCwDQ&usg=AFQjCNHJRE65hAmNSpksBWuykjaHs7b8YQ

Further to this I will attach two MS Word versions of those job descriptions that I obtained, being for the two types of positions referred to above!

 

Closing Comment:

I think this may give some interested people insight into job expectations, and it may help us to compare these with what we actually get “delivered” in the way of supposed “service” from these “professionals”, which has left me rather negatively impressed, having heard from quite a few people who have been severely disappointed by the treatment they received from staff at the HDC Office.

My impression is also, that the HDC Office is either struggling to keep certain staff, or have a fair bit of a staff turnover, which may tell us something about the working conditions there.
Attached File(s)

Attached File: ‘complaints assessor assistant (part-time, fixed-term), akl jan 2013.doc’:
complaints assessor assistant (part-time, fixed-term) akl jan 2013
Attached File: ‘deputy commissioner disability pd jan 13.doc’:
deputy commissioner disability pd jan 13

 

PART 19: AN INTERESTING BOOK TO READ – CONTAINING A CHAPTER BY RON PATERSON, FORMER HDC (added 19 Nov. 2013):

 

‘Bioethics, Medicine and the Criminal Law’

A book edited by Danielle Griffiths and Andrew Sanders, selected text viewable via this link to a website:

http://books.google.co.nz/books?id=EBeh-kC74KkC&pg=PA239&lpg=PA239&dq=health+and+disability+commissioner&source=bl&ots=S2fNdae5tj&sig=cHODWcwINwFDUtjP4BwlNYqOSLE&hl=en&sa=X&ei=YgqLUtWsHsWrkgXiqYH4DQ&ved=0CCcQ6AEwADha#v=onepage&q=health%20and%20disability%20commissioner&f=false

(Copyright Cambridge University Press 2013)

Various authors, incl. Ron Paterson, are listed in this “preview”!

Some may take interest in this, I thought.

 

PART 20: RADIO NZ NEWS REPORT ON HIGH LEVEL OF COMPLAINTS TO HDC OFFICE (added 19 Nov. 2013):

 

NEWS JUST OUT – via Radio New Zealand (19 Nov. 2013):

New high for health and disability complaints

Link to news-article on website:
http://www.radionz.co.nz/news/national/228247/new-high-for-health-and-disability-complaints

Quoted:

The number of complaints to the Health and Disability Commissioner about health services have set a new record.

In his annual report, the Commissioner Anthony Hill says his office received more complaints than ever before.

He says it is pleasing, however, to see providers respond positively and make significant changes.

In the year to June, his office received 1619 complaints – a 4% increase on the previous year and a 15% increase in the last two years.

Of the 60 formal investigations, the office found the complainant’s rights had been breached in 42.”

Comment:

Yes, so here we have it, increased work-load, limited finance, weak, useless legal provisions, and half hearted commitment by governments and the ones in charge, to really reform the complaints framework in New Zealand. This country is in this a TOTAL LAUGHING STOCK, when compared to so many other developed countries. What “changes” does Anthony Hill talk about???

Advice to those affected: Avoid at all costs – to get sick, injured and born disabled, as if you end up in the care of any incompetent, negligent or poorly performing treatment service provider, here in NZ you have stuff all in the way of any hope to get any proper redress or remedy. That is unless you may die, but what benefit is it to you then?

All providers face here are mostly just “wet bus ticket type slaps on the hand”, some “recommendation”, some suggestion or advice – to avoid future mistakes or review processes or conduct. Name suppression is applied in most (if not all) cases the HDC deals with. New Zealand must be a good place for those working in the delivery sector, as they have very little to fear. There is always the option to leave and head overseas, without any legal “record”.

 

PART 21: THE HEALTH AND DISABILITY COMMISSIONER’S ANNUAL REPORT FOR THE YEAR ENDING 30 JUNE 2013 (added 26 Nov. 2013):

 

Well, here it is, one of the main “projects” the Commissioner’s Office seems to be busy with collating for, with preparing for, and with writing and publishing once a year. A glossy report, with an innocent little child on the front page, pretending that the job of the Office is being fulfilled and their duties honoured:

http://www.hdc.org.nz/media/250804/hdc%20annual%20report%202013.pdf

The foreword is presented by long term “Health Sector Careerist” Mr Anthony Hill, who shies away from putting his signature under decisions his office makes. He tends to leave it to his Deputy and Associate Commissioners to take over responsibilities, and of course their legal experts.

Not that they do much in the way of actually honest, effective and responsible work when handling complaints, they rather appear to be busy promoting the image of their office, themselves, and what they supposedly do for sick and disabled. Re the latter, one must wonder, when out of over 1,600 complaints in a year they only actually investigate just 60 of those cases. Out of 60 investigations 42 breaches were established, and only a miniscule 16 complaint cases were passed on to the Director of Proceedings, that is ONE PERCENT!!!

So most complaints are either not acted upon, many are passed on to advocates to “talk over” with a provider, many others are left for the service provider to “sort out”, and stuff all else is done, apart from gathering endless data for nice graphs, having staff write a few sample scenarios, and then present this “corporate style” thick brochure or “report” for the government and public to digest.

Much glossed over, shameful hiding of the sad truth in the New Zealand health and disability sector, that is all this seems to be, I am afraid.

A disgrace in print and in body, that is truth about the Health and Disability Commissioner Office.

Just have a look at this other post and comment thread in this forum, which is just another eye opener:

http://accforum.org/forums/index.php?/topic/15326-hatchet-doctor-exposed-winz-acc-alert-hdc-office-do-cop-out/

PERSONAL PROPOSAL:

MAY I PROPOSE WE RENAME THE HEALTH AND DISABILITY COMMISSIONER THE FOLLOWING:

THE HEALTH AND DISABILITY COMPLAINTS CONCEALER – IN SHORT HDCC, RATHER THAN THE PRESENT TITLE HDC!

 

PART 22 TRANSPARENCY INTERNATIONAL NZ CONSIDERS NEW ZEALAND AS LEAST CORRUPT COUNTRY (added 26 Dec. 2013):

 

There have recently been reports published by ‘Transparency International New Zealand’ (TINZ, the NZ branch of the international organisation), which once again present New Zealand as one of the least corrupt countries in the world. Alongside Denmark it is supposed to be the least corrupt country in the world, this year’s survey published on 03 or 09 December 2013 tells us. The SSC (‘State Services Commission’) seems to “celebrate” this in their published official response:

http://www.ssc.govt.nz/transparency-international-report-dec13

“SSC Response to National Integrity System Assessment Report”

Extract:

“State Services Commissioner Iain Rennie today welcomed the findings of full National Integrity System Assessment Report from Transparency International launched today.

New Zealand, along with Denmark, has again been rated at the top Transparency International Corruptions Perceptions Index results in 2013 of 182 countries, this year with a score of 91 out of 100.

“These results reflect the high levels of integrity, strong spirit of service and the sustained efforts of many State servants working across a range of government agencies,” Mr Rennie said.

“Many New Zealanders may not be aware how highly New Zealand is rated highly on a number of international integrity measures and how important high levels of integrity are to the way that the State services operates,

“I have been further heartened by our ability to maintain and even slightly improve in some measures recently,” he said.”

‘SCOOP’ published this brief article on 24 Dec. 2013:

http://www.scoop.co.nz/stories/PO1312/S00298/transparency-internationalnis-supplemental-reports-released.htm

NIS Supplemental Reports Released

Extract:

“Four supplementary papers commissioned to augment the just released Integrity Plus 2013 New Zealand National Integrity System Assessment have been released and posted to our website. They are all available at the Integrity Plus 2013 New Zealand NIS landing page where you will also find the full report and its executive summary.

Alternatively each supplementary paper may be directly downloaded:
• Crown Entities
• Environmental Governance
• Fiscal Transparency
• Public Procurement

These papers cover areas of particular importance to the New Zealand NIS which, in the opinion of TINZ, needed to be considered in more detail or greater depth than was practical in the confines of the standard NIS assessment report.

For more information and access to the complete NIS report, visit Integrity Plus 2013 New Zealand NIS.”

Transparency International NZ reports on this via their own website:

http://www.transparency.org.nz/2013/Integrity-Plus-2013-New-Zealand-National-Integrity-System-Assessment

Integrity Plus 2013 New Zealand National Integrity System Assessment

The complete report and supplementary papers can be downloaded from that website.

The reason I am posting this information here is partly due to having come across the following information:

Link:

http://www.transparency.net.nz/about/

Quoted:

“Transparency New Zealand is not to be confused with Transparency International which has a branch in New Zealand.

We operate a number of sites being

http://anticorruptionnz.wordpress.com/

http://anticorruption.co.nz/

We also support and assist others in operating their own blogs associated with corruption in New Zealand.

New Zealand may be listed as the least corrupt but this is far from the truth , we have a system here which involves putting up brick walls and letting people bang their heads against it until they give up .

Hiding the corruption does not make you the least corrupt , it says that you have a serious issue with integrity.”

Further Link:

http://www.transparency.net.nz/2013/05/17/transparency-international-new-zealand-not-what-it-is-cracked-up-to-be/

“Transparency International New Zealand -not what it is cracked up to be”

Extract:

“Transparency International New Zealand (TINZ) has released the first wave of its emergent findings in its independent review of New Zealand’s National Integrity Systems with a public forum at Victoria University, Wellington according to Voxy .

The article was picked up by Kiwis First where it is pointed out that “The New Zealand government has less of a problem getting TINZ’s ear than the public” this article is worth a read and the web site is worth repeated visits

Our research has revealed the reason behind this could be their connections with government which are listed in their latest news letter .

It is interesting that the very parties who are Paying Susan Snively’s wages are the very parties whose integrity she is reporting on . Also amongst the members are the very organsiations which we seek accountability from .

Our question is can you be part of a watchdog organization if you are the dog being watched ? IS this not a conflict of interest ? even bribery in another form ? If I am paying for a study , if I am funding it does that not sway the study to be favourable to me so that I can fund the next study? so TINZ in my opinion is using corrupt practices to show that New Zealand is NOT corrupt.

the national integrity survey sponsors according to the May 2013 Transparency Times May 2013 include

The Office of the Auditor General
School of Government, VUW
Ministry for Justice
Statistics New Zealand
The Human Rights Commission
NZ Public Service Association
The Gamma Foundation
The State Services Commission
Treasury
The Department of the Prime Minister and Cabinet
The Civil Aviation Authority
The Department of Conservation
The Ministry of Social Development
The Ombudsman
The New Zealand Defence Force
The SFO
The Ministry of Transport
NZTA
Maritime NZ
Te Puni Kokori
Bell Gully
UVW School of Government PwC
Deloitte
KPMG”

Also – quote:

“Fortunately for TINZ their members which number about 70 include representatives if not entire government departments for most of these sectors – therefore the internal in put will be vast and favorable to the perception of New Zealand being corruption free.

I for one believe that the resulting ” integrity survey “ wil not be worth the paper it is written on.

If you wish to discuss this subject further you can do so on the new zealand justice forum”

Also have a read of this:

https://nz.news.yahoo.com/a/-/top-stories/20484728/mates-on-boards-a-bad-look-says-report/

“Mates on boards a bad look, says report”

Extract:

“Ministers are perceived to be appointing mates to the boards of government-owned entities but they are not meddling too much in their operations, according to a report.

Transparency International NZ says an independent commissioner or the State Services Commissioner should provide assurance to the public about board appointments.

The idea is mooted in a supplementary paper to the Integrity Plus 2013 New Zealand National Integrity System Assessment by Transparency International NZ.

“Ministers still wield substantial power in making board appointments without any particularly strong checks and balances,” the paper released on December 24 says.

Perceptions that government appointments to Crown entity boards are politically motivated remain.”

Radio NZ reported on this worrying news also on 25 December 2013:

http://www.radionz.co.nz/news/national/231840/transparency-group-calls-for-change

Extract from news item:

“An independent report has found a lack of checks and balances around the way ministers appoint people to the boards of Crown entities.

Transparency International, a global organisation that measures corruption, has released papers that scrutinise the integrity of aspects of government in New Zealand.

The organisation says Crown entities such as Crown research institutes, district health boards and universities, are generally performing well.

But it says government ministers wield substantial power in making board appointments, and that has created a perception that appointments are a form of political patronage.

It suggests the Government improve transparency by establishing an independent commissioner, or widening the State Services Commissioner’s role.

The Government has rejected the conclusions saying rigorous process is already in place for making ministerial appointments.

Duty minister Nikki Kaye said legislation governing Crown entities safeguards their operational independence.”

I will try to attach a copy of that supplementary paper in PDF file form to this comment!

 

Own summary conclusion:

The Health and Disability Commissioner must surely be one of these ‘Crown Entities’ that ‘Transparency International (NZ)’ are talking about. We all know how they work now at the HDC Office, how they pretend to be doing an effective, committed job protecting the “rights” of health and disability services consumers, while the truth is far from it. We also know how certain professional persons get picked for the job, who appear to be favoured by certain governments that happen to be in power at that very time, and that follow certain political agendas.

I question the truthfulness and integrity of most of TINZ’s reports, as they are apparently sponsored and paid by the NZ government (or “Crown Entities”), and therefore by the very kinds of offices that they are also meant to scrutinise. Yes, I question that New Zealand is on their international index really as un-corrupt as they claim. But there seems to be a realisation, that the truth can no longer be hidden, hence that revelation about appointments by Ministers to Crown Entities. We shall watch what will happen in future.
Attached File(s)

Attached File: ‘Transparency Int’l, NZ, Supplementary-Paper-1-Crown-Entities, 2013.pdf’:
Transparency Int’l, NZ, Supplementary-Paper-1-Crown-Entities, 2013

 

PART 23: JUSTICE DENIED BY HDC (added 05 Feb. 2014):

 

Can you believe this? 5 YEARS, for the HDC to come to a damned decision on an appalling case of NEGLECT!!!

“Watchdog faults midwife in high-profile baby death case”

See this link to the ONLY one news item on this so far:
http://www.radionz.co.nz/national/programmes/checkpoint/audio/2584722/watchdog-faults-midwife-in-high-profile-baby-death-case

But there is a report or article in the NZ Herald too:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11197184

“Care by a midwife that led to the death of a newborn baby and almost claimed the life of his mother was a “major departure from the accepted standard of care”, a report has found.

The Health and Disability Commissioner’s report, released this afternoon, has come more than four years after baby Adam Barlow died in October 2009 and his mother Linda Barlow was left with debilitating injuries following a horrific labour that former Hamilton midwife Jennifer Rowan was in charge of.”

Read the rest of this horrifying story!

So what about the HDC and their priorities, it now takes so many cases, with complaints, to take over 2 or 3 years, which means that the Health Practitioner Competency Assurance Act becomes null and void, because after about 3 years no complaint or “information” about a practitioner coming under that Act can be followed up then.

We have a disgusting situation, where justice is being delayed for thousands, and justice delayed is JUSTICE DENIED!

 

PART 24: HEALTH AND DISABILITY COMMISSIONER CALLS FOR REVIEW AND INVITES SUBMISSIONS, JUST BEFORE CHRISTMAS HOLIDAY PERIOD (from 08 Feb. 2014):

 

‘Review of the Act and Code 2014’

http://www.hdc.org.nz/the-act–code/review-of-the-act-and-code-2014

Suddenly, barely three weeks before Christmas and the main holiday period, when most people are too busy planning their holidays and time off work, the HDC Office decides to announce (virtually ONLY via their own website, and with little media attention), that they will “review” the Act and Code, and that submissions will be invited. The deadline is set for 05 February 2014 (3 days ago), at the end of weeks of holidays, where few would give serious thought and pay attention to such important matters, like improving the law, and just at the time school starts again.

What “bizarre” timing, I must say. So no wonder, that virtually nobody here, and out there, will have known about all this!

The only other source of relevant information I could just find via a “Google Search” was this link, informing of the review:

http://www.hiirc.org.nz/page/44053/review-of-health-and-disability-commissioner/;jsessionid=2AD5B051F33858515669327DA94EB099?tag=policy&tab=2618&contentType=27&section=8959

In the ‘consultation document’ Anthony Hill writes:

2004 Review

The second review of the Act and Code was completed in 2004 by former Commissioner Ron Paterson. The report to the Minister dated 30 June 2004 confirmed, that, overall the Act and Code operated effectively. However, former Commissioner Paterson recommended that reviews of the Act and Code occur less frequently, that the Act reflect the Office’s current practice of honouring Treaty principles, and that the Code be amended in relation to the “best interests” test for research involving consumers who are not competent to consent. These recommendations have not led to any amendment of the Act or Code. …”

It is clear that the HDC Office does NOT really WANT any frequent reviews or CHANGES to the Act and Code!

It states this so clearly re the further chapter in that document:

2009 Review

The third review of the Act and Code was undertaken in 2009 by former Commissioner Ron Paterson. The report to the Minister dated 30 June 2009 confirmed that the Act and Code were working well, however several amendments to the Act and Code were recommended.”

Then it lists a few proposed amendments that are not really that helpful at all. Re the ‘Director of Proceedings’ being able to only take action upon referral from the Commissioner, and the title of section 38 to be changed, allowing the HDC Office itself much discretion to take no “further” action, it actually suggests that the rights of consumers to file complaints and have action taken upon them, are actually rather being moderated or weakened! And Anthony Hill supports this, besides of a few other points, like reviewing the Act and Code only every ten years, and only earlier, if so desirable.

This is indeed an insult to injury for many that had past dealings with the HDC Office, and have not had their complaints been heard appropriately.

 

Closing comments:

The timing of this review process just proves, that they are doing all to avoid public discussion of the Act and Code, and to just leave things as they are, yes, to indeed weaken the rights of consumers of health and disability services! Did they ever send out consumer or complainant surveys to ask complainants whether they were “satisfied” with the outcomes of their complaints? I doubt that! Over 1,600 complaints they had in their last administrative year, and only about 60 were “formally” investigated! That tells us enough, I think.

And this is a link to the report by the HDC to the Minister, that was later published in June 2014:
http://www.hdc.org.nz/media/268443/act%20and%20code%20review%202014%20-%20report%20to%20minister.pdf

 

PART 25: INTERESTING COMMENTS ABOUT ‘ASSESSORS’ AND HDC IN A COMMENT THREAD OF A POST BY SARAH WILSON ON THE ‘WRITEHANDED’ BLOG (added 10 Oct. 2014):

 

Recently I read some interesting comments made by “Muzz” on a blog that is published by Sarah Wilson from Nelson, and who does at least now and then write some interesting posts on her experiences with Work and Income and how she struggled to get acknowledgment and the needed respectful treatment by WINZ staff to get support while dealing with her sickness and disability.

“Muzz” commented on own experiences with an “assessor”, and how inquiries were made to the Health and Disability Commissioner, and how a complaint to one authority was not successful. Various offices and institutions that are supposed to serve consumers of health and disability services, and monitor such, seem to be busy passing the buck again. That is nothing new though, and it will hardly stop, despite of taking matters to the Office of Ombudsmen, and perhaps even further. At least committed attempts are made by some to address known issues, like biased assessors making blatantly biased recommendations and assessments, which WINZ and ACC use to deny certain rights to benefits or claims.

Hence I want to share the information by offering a link to the post titled “All eyes on you”, in which Sarah primarily describes how WINZ now uses draconian security, search and surveillance measures to “protect” their staff from threats and worse. That is already enough to digest as it is, but read the many informative comments further below the post, and it shines more light on what goes on. There are many people affected, but many find few ways to help and defend themselves. At least a start is made by raising awareness and sharing stories and information:

“All eyes on you”, post by Sarah Wilson, on her ‘Writehanded’ blog (fr. 24 Sept. 2014):

http://www.writehanded.org/blog/2014/09/24/all-eyes-on-you/

Question: When does the Health and Disability Commissioner actually accept his/her responsibilities and DOES the job we expect to be done???

 

PART 26: AT LONG LAST THE CURRENT HDC ANTHONY HILL HAS REACHED NUMBERS OF PUBLISHED “DECISIONS” THAT REACH SIMILAR NUMBERS THAT USED TO BE PUBLISHED UNDER FORMER HDC RON PATERSON (added 12 Oct. 2014):

 

As on the 12th of October 2014, when I was going through the “decisions” made by the HDC for this year, I was a little bit surprised. Since about late 2013, especially early this year, the HDC appears to have been making more decisions than earlier during 2013 and certainly more than in 2012. So far 53 decisions have been published for 2014, which brings the number back to about what the previous Commissioner Ron Patterson had been dealing with per annum. Anthony Hill and his Deputy Commissioner/s presented about 50 decisions during the whole of 2013, and it was only 32 in 2012, and a dismal 13 were published during 2011. This “improvement” does though say very little about the “quality” of any decisions or investigations made, so it would be premature to talk of any true improvement in the handling of complaints. Perhaps the previously very underfunded Office is now processing a bit more work than before, after having been granted some additional financial resources by the government.

Here are the links to the decision pages on the HDC website:
http://www.hdc.org.nz/decisions–case-notes/commissioner’s-decisions
http://www.hdc.org.nz/decisions–case-notes/commissioner’s-decisions/2014

Having followed some of the cases and decisions via the media, the usual “recommendations” and “slap on the wrist with a wet bus ticket” kind of measures were mostly made and taken as the result of investigations and decisions made. In view of this, I have no more confidence in the HDC doing their job than before. Too many will not get a fair and reasonable hearing of their complaints, and have their cases referred to “advocacy”, or simply not getting acted on at all, for all sorts of peculiar reasons.

 

PART 27: A STUDY PUBLISHED IN THE NEW ZEALAND MEDICAL JOURNAL (VOL. 126, NR. 1371, FROM 15 MARCH 2013) BY KATHARINE WALLIS SHINES LIGHT ON WHY BOTH ACC AND THE HDC HAVE BEEN REFERRING FEW MEDICAL MALPRACTICE OR “MISADVENTURE” CASES TO THE MEDICAL COUNCIL (added 11 NOV. 2014):

 

An interested reader of this blog pointed out to me a very, very interesting study report, which was already published in March last year in the New Zealand Medical Journal. The report contains very interesting, revealing information, and shows how certain law reforms in 2005 led to less accountability being applied on medical practitioners and other health professionals, who may have been found to have “failed” in their practice. It makes very interesting reading and really would deserve a proper post on its own. I will only offer a bit of information here, and provide a link to it, so interested readers can form their own views and draw their own conclusions.

The study also shows how the HDC has not placed much emphasis on formal investigations, and rather chosen other ways of “addressing” complaints made to his Office. It becomes rather clear, that the HDC is not so much interested in firmly holding practitioners to account, by referring cases to the Director of Proceedings or to the Medical Council, but rather uses “advocacy” and other ways to “resolve” complaints.

The title of the study is:
“New Zealand’s 2005 ‘no-fault’ compensation reforms and medical professional accountability for harm”
(by Katharine Wallis)

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2013/vol-126-no-1371/article-wallis

Extract:
“Patient complaints to the Health and Disability Commissioner” — “Comparing the 5 years before and after the 2005 compensation reforms, patient complaints against all types of providers increased from 1206 to 1318 per year on average (Table 3).21 Despite the increase in complaints, HDC investigations decreased (Table 3).

In line with declining investigations, the Commissioner referred fewer providers (of any type) to the Director of Proceedings for possible discipline (from 21 to 16 per year on average) while maintaining steady referrals to the Medical Council (about 24 doctors each year) (Table 3).”

“Referrals to the Medical Council” – “Comparing the 5 years before and after the compensation reforms, Medical Council data reveal that referrals to the Medical Council decreased from 61 to 44 doctors per year on average (Table 4).22 The decrease was mainly due to declining referrals from ACC (Table 2).

Prior to the 2005 compensation reforms ACC accounted for 19% of all referrals but this decreased after the compensation reforms to only 4%.22 The Health and Disability Commissioner was the dominant source of competence referrals, accounting for about half of all referrals to Council. Referrals from peers and employers remained steady at less than 10 referrals each per year. College recertification programmes gave rise to few referrals.

In line with decreased referrals, the Medical Council conducted fewer performance reviews (from 35 to 26 per year on average) and referred fewer doctors to its professional conduct committee for possible discipline (Table 4).22

Disciplinary proceedings
Comparing the 5 years before and after the compensation reforms, both the HDC office (via the Director of Proceedings) and the Medical Council (via a Professional Conduct Committee (PCC)) brought fewer disciplinary charges against doctors before the Health Practitioners Disciplinary Tribunal (Table 4).16

Charges brought by the Director of Proceedings decreased from six to three per year on average, and charges by the PCC decreased from seven to five per year on average. More disciplinary hearings ended in guilty findings (from 65% to 83%) but overall fewer doctors were found guilty of professional misconduct (Table 4).

In comparison to the number of complaints and compensation claims lodged each year, very few doctors faced either a performance review or a disciplinary charge (Figure 4). Comparing the 5 years before and after the 2005 compensation reforms, fewer doctors were held to account by either the performance review process or the disciplinary process (Figure 3).”

“Discussion”
In the years following the 2005 ‘no-fault’ compensation reforms, claiming for medical injury compensation increased, ACC reporting overall increased but ACC reporting to the Medical Council decreased. The reforms thus increased the barrier between the compensation scheme and the Medical Council, and decreased accountability via compensation.

Doctors have responded to the no-fault compensation reforms by assisting more patients to lodge claims for compensation (reflected in increased claiming) and by contesting fewer claims decisions now that claims acceptance no longer implies wrong-doing or fault on the part of the doctor (reflected in the decreased claims decision time – from an average of 5 months to 13 days).23

The reforms have, therefore, improved both access to compensation for medical injury and the efficiency of the compensation scheme. The reforms have also increased the cost of medical injury compensation.10,24 This may yet result in further reform, given the vulnerability of the ACC legislation to change with political whim.

While decreased ACC reporting to the Medical Council has freed doctors to engage in the compensation claims process with little fear of disciplinary repercussions, decreased ACC reporting risks leaving poorly performing doctors in practice unchecked. Patient safety is not likely to be greatly compromised by this, however, because ACC reporting seldom identified poorly performing doctors.

Furthermore, the greatest threat to patient safety comes not from the few poorly performing doctors but rather from all doctors, the majority of whom are competent, fit to practise, and well-intentioned.25-28 ACC reporting to the Medical Council was never likely to have been an effective strategy for protecting patient safety.

The decrease in ACC reporting to the Medical Council is offset by an increase in ACC reporting to the “authorities responsible for patient safety” overall. The increased reporting has provided the authorities with new opportunities to remedy “risk of harm to the public” and to improve patient safety.

Patient complaints to the Health and Disability Commissioner increased in the years following the compensation reforms, suggesting an increase in demand for accountability. This is not likely due to the reforms which, if anything, by improving access to compensation might have been expected to reduce patient dissatisfaction following an adverse event and thus to have reduced the demand for personal accountability via complaint.

Despite the increase in complaints, the Commissioner investigated fewer complaints and referred fewer providers for discipline while maintaining steady referrals to the Medical Council. The decrease in investigations is likely due, in part, to the HDC amendment Act 2003, which gave the Commissioner new (non-investigative) options in handling complaints, such as referring complaints to the Medical Council or back to provider without investigation. The decrease in investigations also likely reflects Commissioner Paterson’s efforts to catch up on a backlog of complaints from previous years when he took office in 2000,29 and his stated preference for early resolution: “early resolution is usually considered in the best interests of both complainant and provider, [and so] fewer cases are concluded by formal investigation.”29

Decreased ACC reporting to the Medical Council contributed to an overall decrease in referrals to the Medical Council. The Medical Council responded by conducting fewer performance reviews and referring fewer doctors for discipline. The Medical Council’s power to take a rehabilitative response to referrals as an alternative to discipline was introduced in the mid-1990s and continues today under the Health Practitioners Competence Assurance Act.30

The reforms of the 1990s resulted in a decrease in disciplinary proceedings and a corresponding increase in performance reviews and educational programmes, reflecting a change in accountability as more doctors were held to account via the performance review process rather than the disciplinary process.31 In the years after the 2005 compensation reforms, however, both performance reviews and disciplinary proceedings decreased, reflecting an overall decrease in accountability (Figure 3).

Both the Medical Council and the HDC office brought fewer disciplinary charges against doctors before the Disciplinary Tribunal. It is not clear why this was so. The at times exorbitant cost of proceedings may be a factor. The scarcity of disciplinary proceedings means that Tribunal members have little opportunity to debate and determine professional standards and little opportunity to gain experience in the role.

In the years following the 2005 compensation reforms, then, there has been a decrease in ACC referrals to the Medical Council, referrals to the Medical Council overall, Medical Council performance reviews, HDC investigations, and medical disciplinary proceedings. These changes reflect decreased medical professional accountability.

Overall, very few poorly performing doctors are identified and dealt with in New Zealand each year, suggesting that either there are very few poorly performing doctors in New Zealand or that the current processes to identify and deal with them are ineffective. The previous Commissioner Paterson believes the latter and has called for change.32

It is not possible to conclude from this study whether there is too much or too little individual accountability in New Zealand, or whether a different form of accountability is needed. Nevertheless, the trend for decreasing medical professional accountability in New Zealand’s raises the question of whether doctors are adequately held to account under New Zealand’s current regulatory system. However, since most harm stems from care that is well-intentioned and delivered by professionals who are competent and fit to practise, rather than (or in addition to) increasing individual accountability, we may do well to explore alternative models of collective or institutional responsibility.33

In conclusion, accountability via compensation decreased following the 2005 ‘no-fault’ compensation reforms, contributing to an overall decrease in New Zealand’s medical professional accountability processes. There is no evidence that the trade-off in accountability has increased openness and learning about error and injury, or improved patient safety, but nor is there evidence to suggest that the change has led to worse patient care.

Further research is needed to understand the effect of the no-fault compensation system on health care ethics and practice, and to explore models of collective responsibility and incentives to reduce (unintentional) injury.

Further work is also needed and to learn from ACC reported “risk of harm to the public” and the provider feedback about ACC reported events to improve patient safety.”

Note: Please look up the original report via the provided link, to view the tables referred to!

 

Closing comment:

Time permitting, I may dedicate a separate post to this topic, at a later stage. But the information provided raises valid questions about the way our HDC complaints system, same as the legal framework governing practice, registrations and professional conduct operate. It appears that the law has intentionally been so designed to keep patients suffering or experiencing malpractice from litigating and seeking proper and effective complaints resolution. Practitioners are on the other hand rather well protected and do not appear to face that much in the way of true, firm accountability, apart from perhaps being publicly “embarrassed”.

P.S.: See also these links with more information:
http://www.ncbi.nlm.nih.gov/pubmed/23793119

“Under a system of no-fault compensation for medical injury, is fear as a driver of over-diagnosis diminished?”, Katharine A. Wallis:
http://www.preventingoverdiagnosis.net/2014presentations/Board%203_Katharine%20A%20Wallis.pdf

 

PART 28: ‘FAMILY TRAUMATISED AFTER SON’S AVOIDABLE DEATH (added 21 April 2015):

 

The Health and Disability Commissioner (HDC) has over the last year or so apparently made efforts to investigate more complaints, but when it comes to “resolving” them, we are faced with the familiar problems.

“Resolution” does according to the Act that the Commissioner works under mean anything from doing nothing, to making a recommendation (for future improvements, more training), to perhaps give a warning, or to refer a serious breach of the Code to the Director of Proceedings. In most cases though much discretion is available under the Act, and it is used in the vast majority of cases, to do noting, or very little indeed.

On their website the following is published under this link:
http://www.hdc.org.nz/decisions–case-notes/commissioner%27s-decisions

“Resolution, protection, learning”

“One of the objectives of the Health and Disability Commissioner Act is to “secure the fair, simple, speedy and efficient resolution of complaints”. The earlier a complaint is raised and addressed, the greater the chance of achieving this objective and a good resolution. For this reason, it is important in the first instance to consider complaining directly to the provider, or seeking the assistance of a Health and Disability Consumer Advocate to resolve your complaint.”

By most persons’ experience, the provider will perhaps admit some minor wrongdoings or failures and perhaps even apologise, but in more serious cases attempt to claim they did all that was necessary for them to do, or what was within their controls. An Advocate is now the next most recommended step to take and involve, but the HDC Advocacy service has received mixed responses from persons using it. It seems that referring a complaint to be dealt with by having an Advocate assist, will end up as the complainant playing a game of to and fro with the provider, while the Advocate “mediates”. I have heard of some rather negative feedback coming from complainants, feeling the Advocate is only there to get the complaint off the table, without too much fuss.

Now we have just had another case of a complaint, where it has once more become blatantly evident, how weak and ineffective the HDC Office is, when dealing with genuine, serious complaints, and when making decisions. In this very serious case the matter will apparently even be referred to the Director of Proceedings. But that Director has himself some discretion again, whether to refer a case to the Human Rights Tribunal. The matter has also been reported by the HDC to the Nursing Council and the Medical Council, who could start their own disciplinary process, but that is never a given.

http://www.hdc.org.nz/decisions–case-notes/commissioner%27s-decisions/2015/13hdc00482

 

And here is what the NZ Herald and other media are reporting:

Family traumatised after son’s avoidable death

‘If you shoot someone in NZ you will go to jail … if you die in our health system, those responsible just get told off’.

Link to the NZ Herald article from Martin Johnston, 21 April 2015:

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11435762

 

EXTRACT:

“A traumatised family have hit out at the health system over the “totally avoidable” death of their 15-year-old son after a nurse disconnected his oxygen-monitoring machine while attending to another patient.

Matthew “Matt” Gunter died in November 2012 from a brain injury caused by a lack of blood flow and oxygen while he was recovering from emergency surgery.

The Nelson College boarder from Greymouth on the West Coast had had his appendix removed at his home-town hospital.

After surgery, he had a “laryngospasm”, in which the vocal cord muscles tighten, closing the airway. The lungs keep sucking and the negative pressure pulls fluid into them. The heart then has to work harder and the blood has less oxygen.

An autopsy report said the laryngospasm was successfully treated but it appeared the lung fluid problem wasn’t recognised.

Matt was on supplemental oxygen overnight in Grey Base Hospital’s children’s ward. The sole nurse turned off his oxygen saturation level monitoring machine at 5am – because she had to attend to another patient – and did not assess him again until 6.30am, when she found him in respiratory arrest.

Resuscitation was attempted and Matt was flown to Christchurch Hospital’s intensive care unit. He died there days later.”

“”This was a totally avoidable death and a waste of a young man’s life,” said Mrs Gunter. Mrs Gunter had called for the health workers involved in her son’s care to be named. “You should be able to look online and see that this has happened to them and this is the result of it,” she told Radio New Zealand.”

“Mr Hill he said there is a “cultural shift” occurring around the naming of people.

“And there’s an important conversation that needs to be had and that we are currently having in New Zealand,” he told RNZ.

“We need to be clear about what we are trying to achieve in New Zealand in the delivery of health care and how best to achieve that.”

Transparency was “important”, he said.”

“It was clear there was a “fundamental failure” by the health workers involved in Matt’s care, he told RNZ.”

“The health board would return to Mr Hill in six months to show the changes that have taken place to avoid the same situation from happening again.”

“Releasing his report on the case yesterday, Health and Disability Commissioner Anthony Hill said two nurses, an anaesthetist and their employer, the West Coast District Health Board, had breached the Code of Patients’ Rights. He did not publicly name the health staff.”

“Mr Hill made five recommendations to the DHB, including a review of staff training.

He also notified the Nursing Council of both nurses’ names and the Medical Council of the doctor’s, and referred the night nurse to the prosecutor in his office for a decision on whether to take disciplinary proceedings. He said both nurses had shown a lack of critical thinking.”

“Mrs Gunter said the health workers were “clearly accountable for the death of our son and the result is just lip service”.

“The truth of it is this: if you shoot someone in New Zealand you will go to jail, but if you die in our health system, those responsible just get told off. Where is the justice in this?”

‘”I am disheartened and disappointed. I believed in this system but it has let us down in the worst way possible,” said Mrs Gunter, a district nurse for the DHB.”

 

And this is really revealing, once again, as I have heard this from many complainants about various failures and mistakes by health and disability providers:

“Mrs Gunter told the Herald: “I have read every report I was able to read. In each report the stories changed. You tell me what’s the truth.”

Read the whole article in the Herald by clicking the link above!

Comment:

How much more harm must be done, before the ones in government take action, to change the law, so that the HDC is not longer a toothless watch-dog, offering wet bust ticket on the wrist type decisions, or often takes no action at all??? The HDC must be given more powers, and also be expected to take certain action for certain cases, with much less discretion.

See also a story about this in ‘The Press’:

http://www.stuff.co.nz/national/health/67893756/family-blame-anaesthetist-for-death-of-15yearold-son

 
 

PART 29: MEDIA REPORTS FROM 04 MAY 2015: “SURGEON OPERATED WITHOUT REASONABLE CARE AND SKILL”

 

Another horror story about medical misadventure was reported by the Health and Disability Commissioner yesterday, 04 May 2015, who though withheld the name of the doctor responsible. It was due to media, including Radio New Zealand, that the doctor’s name was despite of the Commissioner’s reservations published.

The Otago Daily Times reported on it:

“Surgeon operated ‘without reasonable care and skill’ “

Here is a link to their report:
http://www.odt.co.nz/news/national/341055/surgeon-operated-without-reasonable-care-and-skill

 

Extract:

An elderly man died from complications of blood loss after two major blood vessels were damaged, according to an investigation that concluded his surgeon had operated “without reasonable care and skill”.

Health and Disability Commissioner Anthony Hill says in a public report that the general surgeon, whose name he has withheld, and the Nelson Marlborough District Health Board breached the code of patients’ rights.

He has sent the case to his prosecutor who will decide whether to lay charges against the surgeon at the Health Practitioners Disciplinary Tribunal.

The man, who had had other illnesses, underwent open – as opposed to keyhole – surgery to remove his gallbladder.

The surgeon had told him that it would need to be an open procedure because of a previous surgery.

There is no record of any information regarding possible non-surgical treatment options being provided to the man,” the commissioner’s office said today. “At the time, the surgeon was subject to voluntary restrictions on his surgical practice, which the man was also not informed of.”

The restrictions were a voluntary agreement with the Medical Council not to undertake keyhole gallbladder removal surgeries until completion of performance assessment process, unless a specialist surgeon was scrubbed in with him and prepared to take over the operation at any stage.

– See more at: http://www.odt.co.nz/news/national/341055/surgeon-operated-without-reasonable-care-and-skill#sthash.fnL8dFM7.dpuf

 

Also of interest is the Radio NZ National report with an audio link from 04 May 2015:

“Surgeon, DHB slated over death”

(Updated at 7:00 pm on 4 May 2015)

http://www.radionz.co.nz/news/national/272774/surgeon,-dhb-slated-over-death

Comment:

Well, at least in this, shockingly serious case, more than a “wet bus ticket slap on the wrist” action appears to be taken!

 

NOTICE – 06 OCTOBER 2015:

PLEASE ALSO TAKE NOTE OF A VERY REVEALING NEW POST FROM 04 OCTOBER 2015 – ABOUT THE HDC AND THEIR BIZARRE HANDLING OF A COMPLAINT MATTER INVOLVING THE APPARENT MISCONDUCT AND BIAS OF A WINZ ‘DESIGNATED DOCTOR’:

https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

 

 
 

FURTHER NOTICE – 06 DECEMBER 2015:

 

A new blog on ‘WordPress’ reveals how the appallingly poor performance of our HDC Office, the supposed Health and Disability Commissioner “watchdog” is as gatekeeper for all health and disability services consumers’ complaints effectively helping cover up unacceptable practices. It shows how this affects many persons with particular health issues, as the result of gallbladder removals, also done with misrepresenting likely risks:

https://nzhealthcarefraud.wordpress.com/open-letter-human-rights-complaint/

https://nzhealthcarefraud.wordpress.com/

While we may not quite agree with some claims and some graphic pictures that are shown, it deserves a careful read and further study!

 

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  1. #1 by John Baker on 07/11/2014 - 1:22 pm

    Hi, like to make contact. Looking to go live with evidence on what you have just written. A look over with input would be most appreciated if you have time. Cheers -keep up the good work

  2. #2 by John Baker on 07/11/2014 - 1:37 pm

    Oh and I have the statical evidence needed to back up all your claims about ACC and HDC blocking complaints against medical professionals. HDC is the perfect protection filter for heath service providers. Just re reviewed your material. Awesome stuff. Please make contact

  3. #3 by John Baker on 27/01/2015 - 1:10 pm

    Hi again M. This blog post has some much good info 🙂 . I was wondering if your had time if I could engage some of your writing skills time to help provide structure two articles in draft. 1] Flyer to drop on hospital parked cars (all DHB’s) . 2] 7 pager (mostly quotes ) 100,000k reward for proof HDC has not covered up medical fraud . I could post temporally on-line for you to provide comment – input. Happy to pay for your time. I am Dyslexic, I planning hit the road from bottom to Top of NZ and need some material in hand. Your in site could help make article more harder hitting. Thanks for your reply. J

  1. THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME | nzsocialjusticeblog2013
  2. HAVE YOU HAD ISSUES WITH HDC DECISIONS? AN ADVOCATE SEEKS FEEDBACK | nzsocialjusticeblog2013

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