G). LEGAL ASPECTS AND IMPLICATIONS TO CONSIDER RE WORK ABILITY ASSESSMENTS
The involvement of contracted outside, private, work ability assessment providers is of great concern, because there are some major, significant legal implications in all this.
Firstly MSD and their department Work and Income (WINZ) will have finalised contracts with the work ability assessment providers (like with other providers), that will contain not only details about how the providers will have to operate and follow agreed practices and processes, they will also contain certain expectations in regards to meeting certain targets and achieving certain outcomes re the referred sick, injured and disabled clients they will work with. As these contracts will be deemed to be commercially sensitive, they will in all likelihood never be made publicly available. That makes it near impossible to examine and assess, how reasonable and realistic stated expectations may be, that WINZ may put into the providers meeting the contractual agreements.
As it appears to have happened with the designated doctors that WINZ have been using to varying degrees since 1995, it must be feared, that there will be particular “expectations” communicated by WINZ’s Principal Health Advisor Dr Bratt, and the various Regional Health and Disability Advisors, for the contracted assessors to deliver certain assessments on WINZ clients based on such criteria as recommended by “experts” like Mansel Aylward. This may be based on the approach of looking at what clients “can do rather than what they cannot do”. There may be expectations that assessors take an approach that unreasonably questions or discredits client’s own GP’s or specialist’s diagnosis, by applying a degree of scepticism and scrutiny, that may lead to biased conduct by the assessors. The claims by Aylward and some others, that much reported illness may simply be based on “illness belief”, and that certain musculoskeletal and mental health problems may simply rather be “common health complaints”, with “subjective symptoms”, having “psychosomatic” causes, which should not be taken too seriously, can lead to assessments being seriously flawed. One must only look at the presentations by Dr David Bratt, likening benefit dependence to “drug dependence”, to realise, that certain expectations and “standards” will be expressed and expected to be met.
This should strictly not happen and not be condoned, but the RHAs and RDAs have certainly regularly consulted client’s own GPs and other health practitioners, and there is no clear indication that such “cooperation” will not happen with the new WAA service providers.
The use of the now known work ability assessment providers, who are almost exclusively rehabilitation treatment service providers, and in some cases even employment placement service providers, must raise the valid question, why there is a need to even use them for assessments that can already be obtained elsewhere. They do hardly appear to be “independent” or without conflicts of interest, as they offer other services that they will have an interest in “selling” and providing to WINZ and their clients, namely rehab and job placement services.
In any case, the involvement of these particular rehabilitation service providers can only be justified, when earlier assessments will already have been made by clients’ own GPs, own specialists and perhaps in some cases designated doctors, who may have determined that there may be a potential work ability a patient or client has. Only then would it make sense to involve the providers now described as “work ability assessment providers” to perhaps provide additional, more specified assessments, with a focus on prospective rehabilitation. Only if there is a capacity to work, would it make sense to have this further clarified by rehab professionals, who may further determine what work ability there may be. There is no other sense for the involvement of these supposedly “independent” assessors, and the naming of them as being “work ability assessment” providers does seem somehow inappropriate.
That is unless WINZ does not have any faith in clients’ own doctors and even their own selected designated doctors, and therefore follows an ulterior agenda to simply set the bar higher than conventional medical and other health practitioners may have been doing, to simply find ways of moving more sick and disabled off benefit receipt into any kind of “suitable” work, whether it may actually exist or not.
Due to the separation of the assessing party from the commissioning party seeking assessments of clients, it is expected to provide services to; there are different areas of legal accountability, which do only partly overlap. The assessor will perform a role similar to an advisor providing reports and recommendations, which the commissioning party (WINZ) will use to base decisions on. This process of dealing with outsourced assessments has of course already been used with designated doctors that WINZ has been using since 1995.
The experience with designated doctors is, that if they conduct any examinations in a flawed or even illegal manner, for instance by not applying natural justice principles, by using forms of bias, by not basing reports and recommendations on professional, competent, objective analysis and fair judgment, they can hardly be held accountable for this. Designated doctors may be complained about by laying a complaint with the Health and Disability Commissioner (HDC), but as there appears to be a kind of memorandum of understanding between the HDC Office and MSD or Work and Income (like also with ACC), such third party assessments are not usually dealt with by the HDC. In some cases the HDC may look at a case, if it was a face to face assessment, and if other criteria were met, but as has been experienced, the HDC is likely to claim, that any issues with an assessment by a third party should be raised with and resolved by the agency that commissioned the assessment, or by the medical or health professional who conducted the assessment.
The Health Practitioners Competence Assurance Act 2003 will in all likelihood also offer no legal remedies to any aggrieved assessed client, as any practitioner registered by a professional authority like the Medical Council, will not face any investigation and possible disciplinary actions, unless the HDC refers a case to the authority covered by that Act. So clients that may feel they were assessed unfairly, will have little means available to address any issues with a designated doctor, and the same will inevitably apply also to the new work ability assessment providers and their staff.
An appeal may be possible under the Social Security Act on medical grounds to the Medical Appeal Board (or “Medical Board”), but again, that Board will only look at the medical and work capability information provided and used for an assessment, and never be able to address any conduct by an assessor, except for making a recommendation on the documentary and verbal evidence put before it, that may be different from the previous assessor’s recommendation.
That means that these new contracted, private, outside work ability assessment providers will be able to operate with too little scrutiny, except for that which will be placed upon them by Work and Income, as part of contractual agreements. Of course the medical and health professionals employed by the providers will be bound by the Code of Ethics of the medical profession, but with the present setup of the law, there is very little that can be done to effectively hold the staff accountable for any wrong actions – including incorrect assessments they provide.
As the ‘Legislation Advisory Committee’ already stated in their submission to the Social Security (Benefit Categories and Work Focus) Amendment Bill, the Chief Executive of MSD and Work and Income now have such wide ranging powers of discretion, which include deciding about the work ability of clients, that most decisions will inevitably and ultimately be made by WINZ staff acting under the authority of the Chief Executive. This is a major concern, and it basically invites the same kinds of problems that occurred in the UK, during the use of ATOS Healthcare as an outside assessor for the DWP. Recommendations are made, whether correct or not, passed on to WINZ, and the RHAs, RDAs and case managers will generally accept them and base decisions on them.
The individual staff members working for the contracted work ability assessment providers will be bound by probably individual employment contracts and confidentiality clauses, so they will not be encouraged to divulge any sensitive information that may expose any provider for any shortcomings or wrongdoings that may have occurred. Only in extreme cases may some use special legislation protecting whistle-blowers, if very severe cases of misconduct, misdiagnosis and so forth may happen. The risk will always be dismissal, and that in itself will force staff to “tow the line” and also cover each other’s backs.
Naturally the private providers will also NOT be bound by the Official Information Act 1982, so the public will have no means to scrutinise their operations and actions in any way. They will be bound by the Privacy Act 1993, but that will only allow affected, assessed clients to seek information relating only directly to their information that was provided and handled in relation to their assessment. It will limit access to any information to individual case scenarios. As few clients will want to share their personal medical records with media or the public, few will dare raising any issues that will arise.
At least there will not be the same problem as with the outsourced “Mental Health Employment Service” providers, who will be motivated by earning as many rewarding fees as they can, in order to meet at least certain targets to cover costs and achieve at least some profits. That “reward system” can in itself have negative, harmful consequences for clients those providers are supposed to offer “wrap around services” and get into employment. With a flat fee of $ 650 per assessment though, the only motivator the WAA service providers have will be, to do as many assessments as possible. Only if they have after that also the prospect of WINZ perhaps also paying for rehabilitation services for clients, then they may be extra motivated to find more clients “fit for work”, even where there may be questions whether they really are, simply to get more “business” that way.
While I am not in a position to give any proper, professional legal advice to any WINZ clients on how to deal with private, outside WAA service providers, I would nevertheless advise affected persons to be extra careful and cautious, and to prepare well for these assessments. As it has been suggested re assessments with “designated doctors”, it will be wise to have a support person to serve as a witness, or if that may be a problem, to perhaps record the conversations of the 1-hour interview with an assessor. I would recommend that affected clients ensure they have up to date medical and other record with them, when they go there, and present what needs to be presented, to provide evidence of medical diagnosis, of treatment and what else may matter. It may be a good idea to have the assessor sign a statement re what documents they were presented. Most certainly it will be important to state clearly and correctly what sickness, injury, disability, health conditions and impairments a person has, and to stress the very aspects that prove that certain work is not an option.
The Social Security Act provides for harsh sanctions if the attendance of such assessments is refused or failed without good, sufficient reason, so it is no option to not cooperate, unless good reasons exist. I would also advise affected to ask the assessor for their qualifications, whether they are registered with a particular medical or health professional authority and of course what their full name is, that is if they do not provide the information themselves. I would also ask about whom else will be involved in preparing the final report and recommendations. If no recording is made, I would afterwards make detailed notes about what was asked and what was answered and discussed during the assessment interview. I would make a list of documents provided, and I would ask for a copy of the assessment report once it has been sent to WINZ, as WINZ will certainly have to provide the information under the Privacy Act.
If the recommendation appears unreasonable, unfair and based on irrelevant information, I would certainly request a review of decision if WINZ have relied on such a flawed assessment report and recommendation, and if a review will not bring the desired result, I would seriously consider making and appeal to a Medical Appeal Board.
These new providers and new processes are new territory for clients and WINZ staff to work on, so it pays to follow also media and other reports on how other persons fare with them. It pays to read up on Mansel Aylward, Dr David Bratt, and what these persons represent in regards to “medical opinions”, as what they propagate can hardly be based on sound science and research. This must be raised again and again, and the medical profession and scientific community must be challenged to address the issues that have repeatedly been raised about Professor Aylward and his like-minded colleagues.
H). CLOSING NOTES AND FINAL CONCLUSIONS
It is with great disappointment, but should not surprise, that the government and Social Development Minister Paula Bennett show no signs of wanting to review or even reverse the draconian, largely punitive welfare reforms, as the following news-media report reveals. It appears they are hell-bent on pushing on with this agenda, to drive sick and disabled into jobs and off benefits, without the proper support and fair, respectful treatment that clients should be able to expect. In view of that, it is a duty of those of us, to use our remaining capabilities to continue raising the very serious issues that remain.
Paula Bennett and WINZ are clearly not intent on changing anything
‘Bennett: No changes at Work and Income’, ‘Stuff.co’, ‘Nelson Mail’, 02 May 2014:
“Social Development Minister Paula Bennett says she is proud of Work and Income’s 4500 staff and won’t be making changes as a result of a campaign by Nelson woman Sarah Wilson.
Wilson has said the department is inhumane, and that dealing with it is frustrating, depressing, anxiety-inducing, dehumanising and debilitating. Her complaint about her treatment as a beneficiary led to an apology from the Nelson office.
But Bennett, who visited the Nelson office yesterday, said while there she had been approached by a woman tearfully complimenting the work of two staff, and had been shown letters and notes received from people who disagreed with Wilson.”
“With 295,000 people on welfare, she had much more to think about than Wilson, she said, and she saw no need to make changes as a result of what Wilson had said.
Although there were some mistakes, Work and Income staff cared about the people they dealt with and wanted to help them – that was why they worked there.
“I’m really proud of them,” Bennett said. “I stand not just beside them, I stand in front of them and I’m happy to take any flak for the policies, but I think the work that they’re doing is outstanding.” “
Comment: SOME NEVER LEARN!
Best wishes –
Quest for Justice 09 May 2014
(This series of posts was first published via ACC Forum, and has been published here with the permission of the author)
A further link to an earlier article in the ‘Nelson Mail’ on 24 March 2014:
‘Sick writer fights for beneficiaries‘, by Stacey Knott
Links to Sarah Wilson’s ‘Writehanded’ blogs:
Contents of Study
Part A) WORK AND INCOME INTRODUCES “INDEPENDENT” WORK ABILITY ASSESSMENTS PROVIDED BY PRIVATE, OUTSOURCED CONTRACTORS
Part A.1.: Introduction and Background Information
Part A.2.: Social Security Act changes facilitating the new, draconian measures introduced as part of the major welfare reforms
Part A.3.: Aylward’s “UNUM-sponsored” “research” adopted by the AFOEM
Part A.4.: A.4.: Sundry information on medical certification and work ability assessments – in forms and relevant publications
Part A.5.: The use of Designated Doctors to conduct examinations / assessments
Part A.6.: Media reports on the changes in the area of work ability assessments
Part B) ACC’S APPROACH AND PROCESSES IN REGARDS TO WORK CAPABILITY ASSESSMENTS AND REHABILITATION
Part B.1.: Legislation: The Accident Compensation Act 2001
Part B.2.: Information on assessments from the ACC website
Part B.3.: Critical reports and submissions on ACC processes and practices
Part B.4.: Media reports on ACC and their questionable practices and failures
Part B.5.: Comparison between the WINZ / MSD approach and the ACC approach to work ability and related assessments
Part C) WORK AND INCOME’S CONTRACTED WORK ABILITY ASSESSMENT (WAA) PROVIDERS
Part C.1.: New Zealand Doctor publishes details of WAA contractors
Part D) RADIO NZ INTERVIEW WITH MSD’s SANDRA KIRIKIRI
Part D.1.: A revealing interview by Radio New Zealand’s Kathryn Ryan with MSD’s ‘Director of Welfare Reform’, Sandra Kirikiri, on the expansion of a new WINZ scheme using “intensive case-management” and outsourced, private service providers, to place sick and disabled beneficiaries into jobs
Part D.2.: Analysis, conclusions and comments on that Radio NZ interview
Part D.3.: Some links to websites offering relevant media reports
Part E) OFFICIAL INFORMATION ACT REQUESTS AND ANSWERS RECEIVED FROM MSD
Part E.1.: Official Information Act (O.I.A.) request from 16 Jan. 2014, re “Mental Health Employment Services’ and ‘Work Ability Assessments’, with answers received (in italics) from Debbie Power, Chief Executive, dated 24 April 2014:
Part E.2.: Own Conclusions and Comments on the O.I.A. response by MSD dated 24 April 2014:
Part E.3.: Earlier O.I.A. request and replies from MSD
Part F) THE NEW WORK ABILITY ASSESSMENT PROVIDERS WINZ HAS ENTERED CONTRACTS WITH – A CLOSER LOOK
Part G) LEGAL ASPECTS AND IMPLICATIONS TO CONSIDER RE WORK ABILITY ASSESSMENTS
Part H) CLOSING NOTES AND FINAL CONCLUSIONS
Final Part) Contents of Study