Archive for October, 2015
HOW THE NEW ZEALAND HEALTH AND DISABILITY COMMISSIONER LETS AN APPARENTLY BIASED GENERAL PRACTITIONER OFF THE HOOK, WHO ACTED AS A ‘DESIGNATED DOCTOR’ FOR WORK AND INCOME NZ (WINZ)
A True Story Revealed – Justice Yet Again Being Denied
PART 1 – INTRODUCTION
PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)
PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC
PART 4 – THE COMPLAINANT’S REPLY TO THE HDC AND THEIR DECISION
PART 5 – THE COMPLAINANT’S REQUEST FOR OFFICIAL INFORMATION FROM THE HDC
PART 6 – THE HDC’S RESPONSE TO THE COMPLAINANT’S OFFICIAL INFORMATION ACT REQUEST
PART 7 – THE ASSOCIATE COMMISSIONER KATIE ELKIN’S “FINAL” RESPONSE AND DECISION
PART 8 – THE COMPLAINANT’S LETTER IN RESPONSE TO KATIE ELKIN’S “FINAL” DECISION
PART 9 – THE COMPLAINANT’S REQUESTS UNDER THE OFFICIAL INFORMATION AND PRIVACY ACTS
PART 10 – THE HDC’S LEGAL ADVISOR’S RESPONSE TO THE OIA AND PRIVACY ACT REQUESTS
PART 11 – THE HDC’S TRULY FINAL DECISION, UPON SUPPOSED “REVIEWS” OF THE COMPLAINT
PART 12 – CONCLUSIONS THAT CAN BE DRAWN FROM THE BIZARRE COMPLAINT HANDLING BY THE HDC
PART 1 – INTRODUCTION
It was over three years ago, when someone approached us in an extremely distressed and depressed state of mind, clearly suffering immensely. The person shared with us some almost unbelievable experiences about how he was as a person with serious, complex mental health issues forced to see a so-called Work and Income ‘Designated Doctor’ for a medical examination, and how that doctor presented a recommendation, that was in complete contrast to what his own doctor had been diagnosing and recommending for a number of years. I felt sorry and was very concerned for the man, as he hesitantly shared, that he did at times have suicidal thoughts, which had been aggravated by some of the things that happened to him. He was certainly sharing his true experiences, as he later also presented documentary proof of what had been done to him.
The injustice that he felt he suffered at the hands of that doctor, and the unacceptable, unreasonable decisions that were made upon that doctor’s recommendation, have long been addressed by Work and Income, but it was not an easy way for our friend to get what is commonly called a “settlement” of sorts. He was though at first forced to go and fight a decision, by taking the matter as an appeal to a Medical Appeals Board (MAB), and as that outcome was only marginally “better”, he consequently even had to apply for a judicial review, with the help of legal representation that he could not afford, and initially was unable to find.
But in the end that problem was somehow resolved. What really upset him was that the doctor who caused him all the extremely upsetting and distressing experiences, was basically not being held to account for his failings and flawed recommendation. After gathering much information and seeking further advice, he remembered there is a Health and Disability Commissioner Office here in New Zealand, which is supposed to offer a complaints process to deal with medical and health professionals, who breach the ‘Code of Health and Disability Services Consumers’ Rights’. That Code is administered by the Commissioner, and it is usually only possible to take any any complaint about such a breach further, after first having presented it to the HDC, who acts like a “gate keeper” for medical and disability related complaints. The Medical Council that is the authority for many medical practitioners, and their registrations, will mostly only look at complaints, if they have first been assessed and investigated by the HDC. Indeed virtually all consumers of health and disability services are forced to first go to the HDC, for sought disputes resolutions. Our associate was not really new to the Commissioner, as he had filed a complaint on another, separate issue a year earlier, that did though only result in the HDC taking no action, for rather bizarre reasons, which we will not cover here.
So our friend did decide to file a new complaint to the Commissioner, thinking that justice should prevail, even though his different, earlier complaint had not been not successful, despite of immense efforts he had put into it. But what he then eventually found in dealing with the HDC once again, was completely unbelievable for him, while for insiders it would not have been that surprising at all.
The man, who we may also refer to as the complainant, prepared an extremely detailed and comprehensive complaint with all relevant evidence. Then he sent it to both the Medical Council and the HDC Office. The Medical Council was very swift in informing our complainant, that they would not be looking at his complaint, as the HDC was the Office they considered responsible for handling it.
Our friend had already feared that this would be the position by the Medical Council, so he was hopeful that at least the Health and Disability Commissioner would seriously and honestly assess and investigate his complaint. But as we now know, the HDC does only investigate a tiny percentage of complaints received annually, and the Health and Disability Commissioner Act, that governs the HDC, does limit very much, what a Commissioner can do, certainly when it comes to taking anything like “disciplinary” actions. There is much provision to use discretion.
So our associate went through virtual hell again, finding out, that the Commissioner took only very little action, and sought a response from the doctor that was complained about, and then made bizarre decisions, that he could not accept at all. It later motivated him to even go and raise the issues he observed with the HDC with the Ombudsman, but that process will be written about a bit later in another post, as it deserves separate treatment and attention. Readers will have their eyes widely opened upon reading this particular post, plus the ones that will follow, as it will show, that our Health and Disability Commissioner does seem rather less concerned about the many mistakes made, and certain misconduct by medical examiners, assessors and others, than with simply using the law to keep complaints at a minimum and sending endless people either to “advocacy” or to dismiss their complaints as “requiring no further action”. The post starts in earnest with the next ‘Part 2‘, containing the complete complaint sent to the HDC.
This is definitely a true story and deserves to be taken very seriously, as it presents a range of significant problems with the processes in place in New Zealand, to address medical malpractice, professional misconduct, incompetence and poor delivery of health and disability services. The systems in place leave much to be desired, and are providing little or no justice to the affected and aggrieved, that is certainly in the vast majority of cases. As for the complainant, he does understandably have very good reasons to remain anonymous, as he also has delicate health issues, and as he is therefore vulnerable. Readers are asked to respect this, and to not make efforts to establish his identity. As for documentation made available, sensitive information has been deleted or crossed out, but you can be rest assured, that all that is provided here is absolutely authentic and reliable.
Some will have read the earlier post here on the Health and Disability Commissioner, which is found here:
And some will also have read our post on ‘Designated Doctors’:
PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)
In the following we present the authentic, original complaint letter sent by the complainant to the HDC Office in late June 2012. As mentioned under the ‘Introduction’, some sensitive information is crossed out and in scan copies of attached documents in PDF file format “whitened out”. The full text is shown below, but for easier reading, you may prefer the PDF file version, which can be found by clicking the following link. Further links showing attachments to the complaint can also be clicked on underneath the end of the full complaint below:
xx Xxxxxxxx Street
Phone: 09 xxx xxxx
The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
xx June 2012
Attention: The Health and Disability Commissioner and the Medical Council of NZ
Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Doctor Dxxxx Xxxxxxx
Dear Health and Disability Commissioner, dear Madam / dear Sir,
Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’.
Equally there have been breaches of the ‘Code of Ethics’ of the New Zealand Medical Association, of section 8 (2) of the ‘Health Practitioners Competence Assurance Act 2003’, the ‘Health Information Privacy Code 1994’ and a breach of the ‘Health (Retention of Health Information) Regulations 1996’.
Of relevance is also ‘Cole’s Medical Practice in New Zealand’ (2011 edition) – published by the Medical Council of New Zealand, of which chapter 1 (“Good Medical Practice”) is considered to be the foundation document for standards and ethics to be applied, upheld and followed by registered medical practitioners. The Medical Council has also adopted the ‘Code of Ethics’ published by the New Zealand Medical Association, and binds itself to other codes, statutory and regulatory provisions.
Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by Dr Dxxxx Xxxxxxx, MBChB, General Practitioner, based at Xxxxxxxx Health Centre, Xxxxxxxx, Auckland:
Right 1 Right to be treated with respect
Right 3 Right to dignity and independence
Right 4 Right to services of an appropriate standard
Right 5 Right to effective communication
Right 6 Right to be fully informed
Under the ‘Code of Ethics for the New Zealand Medical Profession’, published by the New Zealand Medical Association, the following principles have been breached:
Principle 1 – Consider the health and well being of the patient to be your first priority.
Principle 2 – Respect the rights, autonomy and freedom of choice of the patient.
Principle 4 – Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.
Principle 8 – Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.
Principle 9 – Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.
Principle 12 – Accept a responsibility for maintaining the standards of the profession.
Under the ‘Health Practitioners Competence Assurance Act 2003’ the following provisions also appear to have been breached:
8 Health practitioners must not practise outside scope of practice
Re the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx breached following rules:
Rule 2 – Source of health information
Rule 3 – Collection of health information from individual
Rule 8 – Accuracy etc. of health information to be checked before use
Under the ‘Health (Retention of Health Information) Regulations 1996’ the following sections have been breached:
5 Definition of minimum retention period
6 Health information to be kept for minimum retention period
A) Designated doctor examination by Dr Dxxxx Xxxxxxx, Xxxxxxxx Health Centre:
Following a decision by Work and Income Case Manager Pxxxxxx Lxx on 22 April 2010, to have my medical situation reviewed, I was on 09 June 2010 referred by fellow Case Manager Rxxx Gxxxxxx to Dr Dxxxx Xxxxxxx (of the Xxxxxxx Health Centre, xx Lxxxxxx Street, Xxxxxxxx, Auckland 1xxx; ph. 09 xxx xxxx) for a “designated doctor” examination under section 44 of the Social Security Act 1964.
I only selected Dr Dxxxx Xxxxxxx from a presented short-list of 6 GPs, because he was the only designated doctor offered to me by the Case Manager, who I could reach relatively conveniently with public transport, upon which I depended. He was unknown to me, and I was given no chance to check his particular qualifications, expertise and to gather any other information about him.
On 17 June 2010 well before 02:30 pm I arrived at the Xxxxxxxx Health Centre for the examination with documents from counsellors, an intern psychologist a psychiatrist and psychotherapist, all giving evidence of specialist treatment I had received for alcohol dependency and mental health conditions.
After waiting for about 15-20 minutes to see Dr Xxxxxxx, he called me up about 5 minutes after the arranged time of 02:30 pm. He asked me to enter for the first examination I ever had of this type. Dr Xxxxxxx had Work and Income forms and a copy of a medical certificate from my own doctor lying on his desk, and once I sat down, he immediately asked me numerous specifically targeted questions.
I was presented and challenged with the following clearly targeted questions:
What benefit I was on,
how long I had been on it,
what benefit I had been on before that,
when I had last worked,
why I had not continued with that work,
what work I had been doing before and since,
why I felt I could not carry on with that work,
why I had not worked since,
why I had not considered doing any other kind of work,
why I felt I could not do any work at present,
how often and for how long I had the binge type relapses I mentioned, and
what I was doing with my time every day.
I felt overwhelmed with his very direct, one-sided questions, which more resembled an interrogation than an examination. Since virtually all questions were targeted at details re my previous work, ability or inability to work, what I was doing and my benefit receipt, rather than relating to any aspects of my existing health issues, I felt pressured to reply in a defensive manner, explaining and justifying myself.
So I explained that I had received the invalid’s benefit since mid 2008, and that this was due to needing longer term treatment for addressing my alcohol dependency, bouts of depression, xxxxxxxx xxxxxxx disorder (XXX) and other related issues. I informed him that I had prior to that been on the sickness benefit since 2006, but that my doctor and Work and Income had agreed to put me on the invalid’s benefit, because my ill health and treatment were expected to take an extensive time.
I referred to my failed attempt to cope with a very stressful job I had started in operations in the xxxxxxx industry right after moving back from Xxxxxxxxx in late 2005. I informed him that the last longer term job I had prior to that ended in April 2003. Also did I mention my worsening ill health and that I had other serious difficulties back in Xxxxxxx then, which led to me suffering severe depression and worsening alcoholism, aggravated by long-term unemployment and social degradation. I made clear that I had returned to New Zealand for the reason of attempting a return to work and a better life here.
I mentioned that I broke down under unbearable stress, during severe depression and relapses on alcohol in Xxxxxxx 2006, which resulted in me being unable to cope and continue with my work, ending up in a severe crisis. I stated that I suffered from alcohol dependency, depression and XXX.
Dr Xxxxxxx appeared to be little impressed, stern, indifferent, and not sympathetic. He persisted with questions like why I felt I could not cope with the work. So I said that my former clerical work in xxxxxx processing was extremely stressful, due to high deadline-, output-performance- and other pressures.
When asked whether I had considered doing other, less stressful work, I informed him of attempts to start temporary jobs in late 2007 and in February 2008, but due to not being able to cope, I had suffered further bad relapses on alcohol, forcing me to immediately terminate employment again. I mentioned that I had considered doing some voluntary part time work for a few hours a week, but as my treatment progressed slowly, and as I also had great difficulty dealing with many other pressing problems at that time, I was not able to consider returning to work for the foreseeable future.
It was nevertheless my goal to achieve lasting abstinence from alcohol, and given the experienced financial problems I would rather be working, I said. It was my intention to return to work at some time in the future, but due to my ill health and other problems, this was not possible now, I added.
Asked re what I was doing with my time every day, I stated, that due to my poor health conditions there was a limit to what I could do and cope with during the day. I’d spend most of time at home, partly doing xxxxxxx xxxxxx, tidying up and keeping xxxxx on things, which was the result of my insufficiently treated XXX. I would also spend some time reading, writing and doing a bit of online studies and correspondence, I mentioned. At times I would go for walks, and I was working on getting some form of a lifestyle balance back, I commented.
I would regularly see a counsellor and focus on my recovery, while I tried to address and manage other pressing matters, I said. The struggle I had with major problems relating to my accommodation, that I had to move a couple of times, and that I had suffered a number of serious upsets and setbacks in my recovery, I mentioned. Resulting recurrent relapses had repeatedly set me back, I said.
Dr Xxxxxxx asked how often I had relapsed recently, so I mentioned three to four times over the previous months. Asked how long they lasted, I told him that they usually lasted 4 days, led to serious physical and mental deterioration, which was followed with long periods of withdrawal. When also asked about when I suffered the last one, I said that this happened about a week and a half before.
Increasingly concerned about his endless questions, almost exclusively revolving around work and my hypothetical ability to work, I told Dr Xxxxxxx, that due to my ongoing poor health, repeated bouts of depression, inability to deal with stressors, recent relapses and my psychological instability, I simply could not look at working in the foreseeable future. I’d need some time to recover, I made clear to him.
I mentioned that I continued to get treatment at XXXX Xxxx in Hxxxxxxxx, where I was seeing a counsellor fortnightly, after having for a longer period consulted one there weekly. My brief treatment for XXX at St Luke’s Community Mental Health Centre in 200x and my attempt to access other treatment in the meantime I did in between is endless questions re work make a mention of.
After about 8 minutes of incessant questioning, Dr Xxxxxx asked me to briefly lie down on a clinical bed. He examined my breathing, heart beat and blood pressure. While he afterwards made a few more notes, I presented him the set of documents from counsellors and specialists at XXXX Xxxx, St Luke’s Community Mental Health Centre, Xxxxx House and some other documents, which gave evidence of my diagnosed health issues and treatment by mental health and addiction specialists.
I presented Dr Xxxxxxx the following documents:
1. letter from V. Bxxxxx, intern psychologist, XXX treatment at St Lukes C.M.H.C, xx.xx.2007;
2. letter from Cxxxx Hxxxxxxxx, Clinician, XXXX Xxxx, dated xx.06.2008;
3. psychiatric assessment from XXXX psychiatrist Dr Jxxx Bxxxxx at XXXX, dated 27.08.2008;
4. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.04.2009;
5. letter from T. Pxxxx, psychotherapist, ‘Xxxxx House Psychotherapy Service’, 28.09.2009;
6. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 29.09.2009;
7. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.12.2009 ( likely but unsure);
8. letter from Axx Mxxxxxxx Xxx, Xxxxx House Psychotherapy Service, dated 14.01.2010;
9. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 15.01.2010;
10. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 16.06.2010 (likely but unsure);
11. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 06.05.2010.
Dr Xxxxxxx only glanced at two to three of the letters I presented, and then told me, that he would not need them, as I had already told him enough. I offered him to take photo copies of them, so he would have them to look at properly later, but he refused, seeing no need for that. He mentioned he’d get a report from my own doctor and told me that he would send his report to Work and Income. After this 12 minute encounter he ushered me out of his consultation room without any proper farewell.
My impression of this supposed examination was not a good one. I later that day also saw my own GP, Dr Xxxxx Txxxxxx, for a newly required Disability Certificate for Work and Income. He did upon my mention of the examination by Dr Xxxxxxx and to my astonishment confide to me, that his colleague, Dr Xxxx (in the same surgery) previously had very negative experiences with Dr Xxxxxxx, and that staff at their Medical Centre didn’t get on well with him, whenever they had to deal with him.
Through requests under the Official Information and Privacy Acts I would later establish that the following information was sent to Dr Xxxxxxx – by Work and Income and also my own GP:
1. The Medical Certificate completed by Dr Txxxxxxx, dated 22.04.2010 (by Work and Income);
2. the designated doctor referral with assessment and report forms, from case manager Rxxx Gxxxxxx, Work and Income Xxxxxxxx (sent by facsimile, 09.06.2010);
3. a short “host doctor report” by email letter from my own GP, Dr Txxxxxxx, from 18.06.2010;
4. the first issued (partly mistakes containing) psychiatric assessment by Dr Jxxx Bxxxx, psychiatrist, XXXX Cxxxxxx, dated 27.08.2008 (1 or 2 copies) (attached to 3.).
Once back home after the examination by Dr Xxxxxxx and my consultation with Dr Txxxxxx, I immediately made detailed notes about the peculiar medical examination and also Dr Txxxxxx’s comments, because I had a persistent feeling of concern about how it had been conducted.
B) Summary of diagnosis, assessment and decision by Dr Dxxxx Xxxxxxx:
1) In the manually completed ‘Designated Doctor Report’ Dr Dxxxx Xxxxxxx of the Xxxxxxxx Health Centre did on 17 and 30 June 2010 state the following:
Under the heading ‘Diagnosis’ and in reply to question 1 he stated as “main clinical conditions or disabilities impacting on the person’s ability to work”: “Alcohol Binge Drinker”
In reply to question 2 he commented re “what other conditions are impacting on the person’s ability to work?”: “Motivation lacking”
Re question 3 he ticked “No” in reply to whether “the impact of the condition on the person’s ability to work is likely to fluctuate or be intermittent”. NO further details are provided to question 4 open for comments as “additional diagnosis”.
Under the heading ‘Current treatment or intervention’ Dr Dxxxx Xxxxxx had ticked “No” for the question “is the person under the care of a specialist(s)?”
Nothing was noted in reply to question 6 asking “what treatment or intervention(s) is the person currently receiving?”
Under the heading ‘Impact on ability to work’ Dr Xxxxxxx has rightly ticked “No” at question 7 (re total blindness). He ticked “Yes” to question 8 and “No” to questions 9, 10 and 11. According to Dr Xxxxxxx I as the patient or client should according to question 13 be re-assessed on 17 September 2010.
To question 14 asking “how do the conditions outlined in questions 1-6 impact on the person’s ability to work?” Dr Xxxxxxx noted down: “Unreliable” and “lacks motivation”.
He did claim under question 15 that I would “now” be able to engage in work planning, training, light/selected duties and part-time work up to 30 hours per week.
As ‘Factors which impact on ability to work’ he has only ticked “substance abuse” and “motivation”.
Under ‘Planning for employment’ he replied to question 17. (“which factors have the most significant impact on the person’s ability to work?”): “Alcohol” and “motivation”.
Re question 19. he suggested that “counselling” and “planning” could address these factors mentioned above.
In question 20. he has marked it as “likely” that I could commence work in the coming 12 months.
The report was finally formally completed and signed 30 June 2010.
2) In a separate, summarising and typed letter – headed with ‘WINZ – Designated Doctor Report’ and dated 30 June 2010 Dr Xxxxxxx stated “Re: Mr Xxxxxxx Xxxxxxx”:
“17 Jun 2010
GP Dr Xxxxx Txxxxxxx, Xxxxxxxxxx Bay
Receives IB now – past two years, SB two years before this.
Last consistent work 2003. Seven years on benefit. Some years in Xxxxxxxxx on unemployment..
Prev work – xxxxxxx fxxxxxxxxx.
Problems: Alcohol binge drinking. Occas relapses lasting 3-4 days. Attends XXXX regularly – prev weekly, now every two weeks..
Letters from XXXX veriying this sighted.
Says would rather work – when under stress risk of alcohol relapse.
Feels that too much to deal with now.
PB 120/70. overweight. cvs, rs, abdo nad.
Impression: 5x yrs, minimal work past 7yrs. Seems little motivation to work.
30 Jun 2010-10-17 HDR – Personality disorder – XXX, anger issues, episodic depression and alcohol misuse. Report from XXXX psychiatrist – DR Jxxx Bxxxx.
Recommended disulfiram or naltrexone for his alhol abuse – this does not seem to have been tried. It was noted that he had no signs of self neglect, good rapport, well presented, mood appropriate and no thought disorder.
Impression: A 5xyr man who has hardly worked since 40 yrs age. He is a binge drinker, has some personality issues and seems to lack any motivation to work. There are suggested treatments that do not seem to have been tried. He presents well.
Recommendation: He is not eligible for Invalids Benefit. He can certainly work at least 20hrs per week and every effort should be made to get him off benefits and into work. SB to continue meantime.
Yours sincerely …”
C) Diagnosis by my own GP, Dr Xxxxx Txxxxxxx, the Xxxxxxxx Bay Medical Centre:
In contrast the diagnosis and assessment by Dr Xxxxx Txxxxxx was the following:
1. According to the new type of Work and Income Medical Certificate dated 22 April 2010:
When is the person likely to be capable of:
Work planning Over 6 Months
Training Over 6 Months
Light/selected duties Over 6 Months
Part time work (up to 30 hrs/wk) Over 6 Months
Full time work (over 30 hrs/wk) Over 6 Months
Is the person totally blind? No
Unable to work 30 hours per week or more? Yes
Unable to work 15 hours per week or more? Yes
Condition expected to last at lest 2 years? Yes
Life expectance less than 2 years?
Unable to work from 26-04-2010
When should the person’s entitlement to
Benefit next be assessed? 2 years
2. According to the Disability Certificate dated 17 June 2010 (completed on the same day as Dr Xxxxxxx’s assessment!):
Under ‘Disability Details’ Dr Txxxxxx ticked “Yes” at question 3, where he was asked: “Does the person have a disability that meets the Disability Allowance criteria?”
At question 4. it asks: “What is the nature of the person’s disability?”
Dr Txxxxxx did tick ‘Depression (161)’, ‘other cardio- vascular (132)’, ‘other metabolic or endocrine disorders (151)’, ‘Alcohol (170)’.
To question 5 he indicated the expected duration of the disability as being “permanent”.
Re ‘Items / services / treatments / pharmaceuticals’ Dr Txxxxxx mentioned “prescriptions, water filters, transport, dietary supplements, garden costs, phone” that represent costs that arise from the existing health conditions and their necessary treatment.
3. The details in the above Medical Certificate and Disability Certificate were very much in line with the previous Medical Certificates issued by Dr. Txxxxxx on xx June 2008, 23 April 2008, 23 January 2008 and 03 February 2006. A Medical Certificate dated 29 October 2007 did at that time suggest that an improvement in my situation was taking place, but this prospect was short-lived and dashed soon afterwards, when an attempt by me to return to some kind of work (due to great financial difficulties) turned out to be a rushed and disastrous experience.
Medical Certificates based on diagnosis and assessments by Dr Xxxxx Txxxxxx continued to be consistent to this date, which is in clear contrast to the one off very out of line assessment by Dr Dxxxx Xxxxxxx as Work and Income commissioned designated doctor from 17.06.2010.
Indeed Dr Xxxxx Txxxxxx has shown an overwhelming level and degree of consistency in his reports on diagnosis and general health conditions and disabilities. They present a totally different, but due to the number, length of involvement, in-depth understanding and professional competency he possesses, a more convincing picture of my health, than the unprofessional, flawed, incompetent, unfounded, biased one delivered by Dr Dxxx Xxxxxxx.
D) Conclusions drawn and decision made by Regional Health Advisor Team at Auckland Regional Office of MSD – solely based on wrong report by Dr Xxxxxxx:
Mr Axxxx Axxxxxx as Regional Health Advisor for Work and Income (Auckland Regional Office) had on 08 June 2010 by email (addressed to “OHA_Client_Query (MSD)” – CC Jxxxxx Nxxxxxx) presented the selection of GPs that I was allowed to choose from. It included Dr Dxxxx Xxxxxxx.
In an email from 12 July 2010 (08:09 am), sent to “OHA_Client_Query (MSD)”, Jxxxxxxxx Axxx (for the R.H.A.) does present the following ‘Diagnosis’ about me to other staff:
“Diagnosis: Personality disorder, XXX anger issues episodic depression and alcohol misuse”
“RHA recommends: DD recommends transition to Sickness Benefit with engagement to look for work DD states client is not eligible for Invalids Benefit he con certainly work at least 20 hours per week and every effort should be made to get hm off benefits and into work SB to continue meantime. Engagement with ECV to look at work”
“Assessed Designated Doctors report by Dr Dxxxx Xxxxxxx on 30 June 2010
Medical certificate is consistent with Sickness Benefit
Client does not meet medical eligibility for Invalids Benefit”
Hence the Regional Health Advisor and his staff did from the time of receipt of Dr Xxxxxxx’s report ignore ALL medical certificates, reports and assessments from my own regular doctor for over 4 and a half years, which were based on his own diagnosis and supported by various other specialist reports and assessments that he had relied on.
E) Consequences of Dr Xxxxxxx’s assessment and report, and the decisions made by Work and Income – on my counselling treatment, health and general well-being:
The assessment, report and recommendations by Dr Dxxxx Xxxxxxx were fully accepted and adopted by the Regional Health Advisor and other staff of Work and Income as supposedly reliable and competent. Within days I was sent letters for appointments for discussing and preparing for training, a return to work and so forth. This put me under immense psychological stress and pressure, led to a severe crisis with major upsets, and it later lead also to the breakdown in my counselling treatment. There were moments where I displayed suicidal ideations, which has been well recorded.
Instead of being enabled to focus on needed ongoing treatment, I was forced to attend to serious challenges and to defend my rights and basic survival as a sick and disabled person. It forced me to take formal steps to seek and prepare for an appeal under section 53A of the Social Security Act 1964, to address the recommendations made by Dr Xxxxxxx and decisions made by Work and Income staff. Dr Xxxxxxx’s assessment, report and recommendations were clearly not evidence based, were unprofessional, unfair and unreasonable and showed incompetence and disregard. I could no longer focus on further treatment. I had to spend all my time on legal study and paperwork.
It took months to prepare myself for a hearing before a Medical Appeal Board appeal. That was conducted by a panel, which again consisted of 3 general practitioners without appropriate qualifications or expertise in assessing persons with complex mental health illness and addiction conditions. Although the Medical Appeal Board did reach a slightly more acceptable decision than Dr Xxxxxxx, the panel did to some degree still rely on his findings and upheld them. In summary their report and decision turned out to be also partly unfounded, lacking evidence, objectivity and competent evaluation. It turned out to also contain apparent biased, unreasonable recommendations.
Consequently I was taken off the invalid’s benefit and transferred onto the sickness benefit from xx January 2011, leading to yet worse financial problems and increased pressures, as I now had to present new medical certificates from my doctor every 90 days and struggled to survive week to week.
The decision by the Medical Appeal Board and Work and Income forced me to find the assistance of a lawyer, to apply for legal aid and then file a Notice of Proceedings with a Statement of Claim and Affidavit before the High Court in August 2011. All that required huge, stressful efforts and time. This was followed by intensive, lengthy, distressing, arduous settlement negotiations to resolve particular issues and achieve a basic, acceptable outcome (Note: Part of original sentence deleted for legal reasons!). The legal case could likely have been pursued further, but it was eventually due to my radically worsening health, that I was weeks ago forced to agree to a minimum kind of settlement.
Concurrently I had already from April 2009 been struggling to deal with a few minor legal issues that had resulted from a neighbourhood dispute (xx April 2009), a charge laid due to alleged “disorderly behaviour” (at a xxxxxxx xxxxx on xx Nov. 2009) and another charge for alleged “offensive behaviour” (17 May 2010), while a single minor conviction would have resulted in a loss of a so-called “clean slate” I had since 200x been entitled to under the ‘Criminal Records (Clean Slate) Act 2004. Just one minor conviction would have made it impossible for me to find employment for up to 7 years, as some previous minor (alcohol related) convictions from the mid 1980s would have been “re-activated”. I spent most of my time fighting for legal aid that was initially denied, for justice and with huge stress and the help of lawyers managed to have all charges dropped or withdrawn one by one by mid 2011.
The fallout from Dr Xxxxxxx’s decision – and numerous other developments (e.g. difficulties with some boarders, whom I had due to financial pressures have to share my flat with) – severely and negatively impacted on my ability to concentrate on any urgently needed treatment of my illnesses. Instead I suffered irreparable damage, being disabled to a degree that I am struggling to do simple daily chores at my home. My recovery was severely disrupted since mid 2010, and I made no progress in addressing health issues. I would by now have recovered better and possibly would have been able to look at a return to some form of training or employment, had it not been for the irresponsible actions by Dr Dxxxx Xxxxxxx, which I will address in detail in the following chapters of this letter.
Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ identified:
A: Right 1 – Right to be treated with respect
(1) Every consumer has the right to be treated with respect.
Dr Dxxxx Xxxxxxx displayed a clear bias against me as referred client, and apparently also towards the medical professionals at the Xxxxxxxx Bay Medical Centre:
The conduct and manner Dr Xxxxxxx displayed during the medical examination for a second opinion, that was sought by Work and Income, was unprofessional, incompetent, not objective, biased, lacked respect, and was unfairly focussed almost exclusively on questions about work, past problems with work, why I had reservations to resume work, the type of benefits I received, how long I had been on a benefit, whether I had considered part time work and similar. Only little attention was given towards questions relating to my actual health issues. I was given very little time and opportunity to try and explain my situation and health issues.
Presented letters from specialists were only partly and too briefly glanced at, and offered photo-copies were declined with the reason that they were “not needed”.
When I later on 17 June 2010 met with my own trusted GP, Dr Xxxxx Txxxxxxx, he did to my surprise confide to me that his colleague Dr Xxxx, who is working at the same Medical Centre in Xxxxxxxx Bay, had very negative experiences with Dr Xxxxxxx. Dr Xxxxxxx at the Xxxxxxxx Health Centre had repeatedly showed a lack of co-operation and respect when dealing with matters that involved both clinics. He was described by some staff as arrogant. Hence I must conclude that due to past differences Dr Xxxxxxx held a biased and negative view towards doctors and staff at the Xxxxxxxxxx Bay Medical Centre, including Dr Txxxxxx.
Given that only about 10 to 12 minutes were spent with me during the “examination”, I feel that Dr Xxxxxxx was not at all sincerely interested in my problems, concerns and well-being. Even Work and Income do accept and expect that a proper medical examination and assessment should take about 30 to 45 minutes to be conducted and completed. This was certainly not the case in my examination by Dr Dxxxx Xxxxxxx. My impression was (and is) that the examination was conducted by Dr Xxxxxxx with the least, rushed efforts and a prejudicial mindset, which influenced his poor diagnosis and recommendations.
B: Right 3 – Right to dignity and independence
Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.
The already mentioned “bias” that is apparent from certain notes made in the clinical file about me also represents a clear breach of “right 3”, in that it is a clear breach of my dignity.
There were extremely important aspects of my health issues, conditions and disabilities that Dr Xxxxxxx did not sufficiently enquire about – nor in any other way show any interest in. His targeted questioning was pre-occupied with aspects of work and benefit dependence. He ignored my references to serious problems I was dealing with at the time, and he did not allow me to further explain details re this, rather pressing on with his prepared set of one-sided questions and only allowing minimal comments by me. He did not appear to attempt to properly understand my concerns re my health and other problems. This inevitably led to him not understanding or appreciating what did actually happen to me over the previous two years, and what hampered my recovery from alcohol addiction, depression, XXX and related issues.
During the “examination”, and through the way he conducted it in a very questionable, inadmissible manner; it became apparent that he was not that much interested in my answers and comments. He already appeared to have made up his mind from the beginning.
Yet it was Dr Xxxxxxx’s responsibility to offer due respect and give credit, to accept my right to dignity and to consider the information I attempted to provide to him in the form of medical and treatment related documents, in addition to what I attempted to communicate during his “interrogation style” interview focused on work, and only eventually a few health issues.
Last not least Dr Xxxxxxx should have informed me about the way he would conduct the examination, of the right I had as the person to be assessed (e.g. to withdraw my consent and to object to the way parts of all of the examination and interview were being conducted) and about privacy concerns, e.g. re a host doctor report he intended to request. He clearly did not.
C: Right 4 – Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.
There have been breaches of “right 4”, as the seriousness of inaccuracies and mistakes made by Dr Dxxxx Xxxxxxx in his assessment and report display a fundamental failure to uphold reasonable and expected standards of diligence, care and skill.
While examining me and completing his assessment, Dr Xxxxxxx failed to acknowledge and consider the very relevant and important information, that proved to be essential to make a true evaluation of aspects of my already well documented ill health, the various conditions, disabilities and my problematic general circumstances and situation, that had and were seriously impacting on my ability to take on and perform any work in open employment.
The primary information Dr Xxxxxxx appears to have used for making his unfounded diagnosis and biased, unprofessional assessment was apparently his personal interpretation of my answers to his very narrow selection of questions – targeted almost exclusively at facts re my long benefit history, past work, the hypothetical ability for me to perhaps do any alternative work and my personal position and concerns regarding a resumption of work. He only offered a short glance at just 2 or 3 letters from a wide range of presented, highly relevant documents; that I had received from certain treatment and assessment specialists. Apart from that Dr Xxxxxxx simply checked and measured my breathing, heart-beat and blood pressure.
A very brief, summarised host doctor report from my GP, Dr Xxxxx Txxxxxx, which was neither requested nor returned in the required form, was apparently not given that much credit and weight, same as the more comprehensive contents of an attached assessment by Dr Jxxx Bxxxx, psychiatrist at XXXX (dated 27.08.2008).
What is of particular concern, and which has already been raised as part of a separate complaint by me to the Health and Disability Commissioner (see reference C11HDCxxxxx for a complaint about XXXX counsellors, filed 08 and 09 August 2011), the host doctor report by my own GP did regrettably contain a serious mistake. It should never have been included in such a medical report, but the mention of an alleged “assault” that I committed, is likely to have also influenced the decision making by Dr Xxxxxxx, causing him to adopt a rather negative view of myself, and thus applying a degree of negative bias to the assessment.
The fact that Dr Xxxxxxx did even choose to ignore the fact that I had for some time been receiving specialist treatment (counselling, group support, XXX treatment at St Luke’s Community Mental Health Centre), and that I was still engaged in ongoing counselling with XXXX Xxxx in Hxxxxxxx, does strongly suggest selective judgment.
In his Designated Doctor Report he did state that I was not under the care of a specialist(s)! This can be seen from his replies to questions 5 and 6 on the manually completed assessment and report form for Work and Income.
That is clearly completely wrong, because I have been in ongoing treatment with XXXX (Xxxxxxxxx Alcohol and Drug Services) AND other services since early 2006.
I received counselling, group therapy and other support from clinicians, practitioners and facilitators at XXXX since February 2006. XXX treatment was offered to me in form of a briefly available intervention treatment based on cognitive behavioural therapy – as well as attempted xxxxxxxx treatment – at St Luke’s C.M.H.C. during 2007. Other attempts were made to access treatment elsewhere, regrettably without success, also with insufficient funding being offered by Work and Income, to get further treatment for my illnesses and conditions. It is astonishing that Dr Xxxxxxx failed to acknowledge this, even though documentary evidence was offered and delivered. He chose not to view and accept it, which is unprofessional and unethical.
Then Dr Xxxxxxx also did make a very incompetent and wrong diagnosis by confusing cause and result in questions 1 and 2 on that same manually filled out Work and Income designated doctor report form. All he writes is “Alcohol Binge Drinker”, which is hardly a condition as such, but rather a symptom of the condition of alcohol dependency. The same applies to his comment of “Motivation lacking”. He did not bother putting in the required READ codes and in question 3 ignored the fact that likely re-occurring relapses, bouts of depression and their consequences would actually mean that the impact of my conditions would certainly be “fluctuating” and/or be “intermittent” for certain longer periods.
Equally Dr Xxxxxxx gave the wrong answers to questions 9 and 10 on the form, as all evidence presented to him should have suggested that I was not able to work for more than 15 hours a week. Also are conditions like XXX and alcohol dependence permanent conditions, the latter of course being possible to “treat” in such a way to achieve lasting abstinence. The information provided to Dr Xxxxxxx did not at all support his presumptions that lasting, longer term sobriety and abstinence were likely to be achievable within a short to medium period.
Due to Dr Xxxxxxx having failed to come to the correct diagnosis and assessment of my medical problems, he naturally also incorrectly answered to questions 14, 15, 16, 17, 19 and 20. He ignored the conditions of XXX, depression and hypothyroidism, as if they did not exist.
The report completed by Dr Xxxxxxx is in stark contrast to the historic and even following medical assessments by my own doctor, which have shown a high degree of consistency and are supported by assessments; sundry reports and letters form other specialist medical practitioners and health professionals. It should have been the duty of Dr Xxxxxxx to apply diligence, care and skill and thus give the other information the due credit and consideration.
The clear inability of Dr Xxxxxxx to make a correct diagnosis is evidence that he as a registered general practitioner with specialist knowledge in obstetrics and gynaecology was not sufficiently and appropriately qualified to conduct the assessment of a client with my particular complex medical conditions. My particular and complex illnesses include alcohol dependence (commonly referred to as “alcoholism”), which has by XXXX staff repeatedly been assessed and acknowledged as being at a high to severe level. Also do I suffer from depression and the disabling disorder XXX. It requires a person with sufficient expertise in mental health (psychiatry, psychology or psychotherapy) and also sufficient competency in the assessment of addiction illnesses to conduct an expert assessment of a person like me.
In view of this, Dr Xxxxxxx should clearly have acknowledged and accepted his professional limitations and refrained from conducting the assessment and examination sought by Work and Income. As he did not do this, he clearly acted outside his scope of practice, which I consider to be a serious matter.
As Dr Xxxxxxx also failed to inform my own usual doctor about the outcome and report of his assessment, he did not provide any assistance to ensure transparency and continuity in treatment and support for my recovery.
Consequently professional, ethical and legal standards were not upheld by Dr Xxxxxxx during and after the examination and assessment conducted on me on 17 June 2010 -and completed by way of a final report on 30 June that same year.
D: Right 5 – Right to effective communication
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.
There has been a breach of “right 5” under the Code. I was as the assessed person given insufficient chance to exercise the right to communicate in an environment that enables both consumer and provider to communicate openly, honestly, and effectively.
Dr Xxxxxxx did from the start of the examination NOT inform me properly about the way he intended to conduct it. No mention was ever made of my right to object to him conducting the assessment, nor about my right to withdraw from it, once I started to feel uncomfortable, suspicious and no longer had any trust in the process applied by him. I was also not consulted about any privacy questions that should have been relevant to discuss.
His “examination” did resemble a kind of “interrogation” rather than a respectful, fair, balanced and objective interview. His focus was almost solely on getting answers about past work I did, how long I had received the types of benefits I had been on, why I did not continue with started work in 2005/2006, why I could not consider alternative work, what I was doing with my own time while not working and why I felt I could not return to any kind of work for a longer time.
I was not given sufficient opportunity and time to explain matters of my concern about my health issues, and instead I was being rushed through a forceful and one-sided interview, so that there appeared to be only a secondary concern and emphasis on matters re my health.
The supposed “examination” was in the end not a proper examination at all, and it appeared, that the result was pre-determined by his personal impression of me, and the restricted range of questions and possible answers I could give to them. I left the examination with no trust in it.
Only later would I learn through an Official Information Act request, that the host doctor report sent by Dr Txxxxxx to Dr Dxxxx Xxxxxxx also contained reference to an “assault” that I had allegedly committed and was trying to defend with legal aid before the courts. I had never committed, nor been charged for an assault, and it should in any case have been expected that Dr Xxxxxxx would show professional conduct in not paying too much attention to such non medical information, which instead appears to have led to him adopting a biased view of me. I was certainly given NO chance to respond to any of the information sent to him by my doctor.
E: Right 6 – Right to be fully informed
(1) Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including –
(c) advice of the estimated time within which the services will be provided; and
(e) any other information required by legal, professional, ethical, and other relevant standards; and
(g) the results of procedures.
Dr Xxxxxxx is also responsible for a breach of “right 6”, as he did not fully inform me about:
1. The way he was going to conduct the examination and assessment;
2. I was never informed about any legal rights that I had to object to his approach, his qualifications and possible lack of expertise, and to withdraw from the examination;
3. he never consulted me about the assessment/report he was going to prepare and what recommendations he would make to Work and Income, so I was given no input at all;
4. I was not asked about what any steps or measures that could be considered to assist me to plan and prepare for a return to work, again I had no input at all to that part of the exam;
5. Dr Xxxxxxx did not discuss with me, nor did he indicate, that he was also supposed to send a copy of his final assessment and report to my own doctor (see expectations on pages 13 and 24 in the ‘Guide for Designated Doctors’ from Work and Income – and points 16 and 17 in the statement issued by the Medical Council of New Zealand: ‘Non-treating doctors performing medical assessments of patients for third parties’).
As I already explained and elaborated on most of these points under chapter “D:” and other parts in this complaint, there is no need to deliberate on this too much further, but it is clear, that Dr Xxxxxxx did not at all make any reasonable effort to inform me about the aspects of the examination, assessment and processes he would follow during its course and afterwards.
Breaches of the Code of Ethics of the New Zealand Medical Profession (by the NZMA):
I Principle 1 – Consider the health and well being of the patient to be your first priority.
Even though the relationship scenario between Dr Xxxxxxx, as the Work and Income commissioned assessor and me as the assessed person did not represent the usual practitioner – patient relationship, Dr Xxxxxxx did according to the ‘Code of Ethics of the New Zealand Medical Profession’ and various legal requirements and other standards have to give proper, sincere considerations for ensuring the health and well being of myself.
Sadly this was not what he did, because due to the already mentioned, and also in following parts to be stated failures; he acted irresponsibly and put my well being and safety at grave risk by not giving due consideration to relevant health information and not completing an objective, evidence based and reasonable report. He allowed bias to influence his decisions.
By making a flawed, inappropriate and misleading assessment, and by passing on a report to Work and Income, that ignored factual medical information and did not seek any proper input from me as the assessed person, he put at risk my health and well being. Staffs at Work and Income were consequently caused to rely on incorrect medical information and to make decisions based on this, which led to very serious, harmful consequences that I suffered.
II Principle 2 – Respect the rights, autonomy and freedom of choice of the patient.
Due to the way the “examination” and “assessment” was conducted, with me being “targeted” with an array of one-sided questions, primarily asking me about past benefit receipt, past work, problems re maintaining work, questions about why I did not continue with work, what my objections were to resuming work, and only in the end placing rather secondary emphasis on what my actual health problems were, what my disabilities were, and what incapacitated me from coping with work, let alone very basic day to day chores and challenges, Dr Xxxxxxx did not sufficiently respect any of my rights, autonomy and freedom. He certainly ignored my limited input and even discouraged it. He did not properly stress any of my mental health conditions in his report, and dismissed my serious alcohol addiction as mere “binge drinking”. That is not conduct that meets the standard expected under principle 2 of the Code.
III Principle 4 – Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.
One should have expected Dr Xxxxxxx, as a qualified general practitioner, with a specialisation in obstetrics and gynaecology, registered under the vocational scope with the Medical Council, to be aware of, mindful of and responsible enough of the requirement to perform his tasks and responsibilities with integrity, compassion and respect for my dignity.
As already mentioned under “II” above, he failed to do so, and he conducted an assessment that he himself was not really sufficiently qualified and experienced enough to perform. It would have required a medical practitioner experienced with appropriate in-depth understanding of mental health conditions and with sufficient expert ability and knowledge of assessing persons with addiction problems, to properly and competently assess me in an examination of that type. Indeed Dr Xxxxxxx should have declined making the assessment, as he was not suitably qualified for doing it. At no time did he show any compassion towards me.
IV Principle 8 – Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.
Regrettably Dr Xxxxxxx did his profession – and the principles persons working in it are supposed to follow – a great and serious disservice, by conducting an assessment of a person he should with his markedly different qualifications and expertise not have assessed at all. He also did not follow numerous guidelines set under the Code, statutory and regulatory provisions. He did treat me disrespectfully as a client/patient (to be assessed) and let down his profession by not abiding to values and principles that should be maintained at all times.
I must and can only refer to what has already been stated in regards to breaches of the Code of Health and Disability Services Consumers’ Rights’, and of other standards, to simply emphasise the failings by Dr Xxxxxxx.
V Principle 9 – Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.
By accepting a referral from Work and Income to perform and conduct an examination and assessment of a person with established mental health issues and clear addiction conditions, and by proceeding with it, despite of lacking the appropriate, sufficient qualifications and in-depth knowledge and understanding in the fields of mental health, psychology, psychiatry and addiction diagnosis and treatment, Dr Xxxxxxx did as a general practitioner with specialisation in obstetrics and gynaecology clearly act outside his vocational scope of practice.
The result of his assessment and his report clearly show that he lacked a solid enough understanding and insight in those areas of medical practice. He allowed himself to be misled by personal misinterpretation and apparent bias, and he made a diagnosis and took further conclusions, which were totally wrong, mixing cause and result, falsely confusing symptoms and conditions, merely noting down “personality disorders” and a “lack of motivation”, etc..
That is not professional conduct to a standard that should be expected of Dr Xxxxxxx, and he should instead have realised his limitations and refrained from conducting the examination.
VI Principle 12 – Accept a responsibility for maintaining the standards of the profession.
Dr Xxxxxxx has not lived up to his responsibility and the standards of his profession. The only logical step for him would be to in hindsight accept his failures, to apologise for his wrong actions and conduct, and to accept full responsibility for what happened in consequence.
That is indeed what I expect from Dr Xxxxxxx now, as he has thus far not lived up to any level of responsibility for misdiagnosis, professional misconduct, biased behaviour, breaches of rules, guidelines, laws and regulations, and for causing a very serious amount of damage to my health and general well-being, last not least also severely upsetting my prospects for a successful recovery, which has led to a set-back of over two years, and resulting loss in income that I could have earned by now.
Under the ‘Health Practitioners Competence Assurance Act 2003’ Dr Xxxxxxx breached the following provisions:
8 Health practitioners must not practise outside scope of practice
(2) No health practitioner may perform a health service that forms part of a scope of practice of the profession in respect of which he or she is registered unless he or she —
(a) is permitted to perform that service by his or her scope of practice; and
(b) performs that service in accordance with any conditions stated in his or her scope of practice.
As a medical practitioner Dr Dxxxx Xxxxxxx has been and still is registered with the New Zealand Medical Council. He is a qualified Bachelor of Medicine and Bachelor of Surgery (MBChB, University of Auckland 1976) and also has a Diploma of the Royal College of Obstetricians and Gynaecologists from the Royal College of Obstetricians and Gynaecologists, England. He was a member of the Royal College of General Practitioners in the UK since 198x, and he has been a Fellow of the Royal New Zealand College of General Practitioners since 200x.
Dr Xxxxxxx’s qualifications clearly are in general practice and represent that of a traditional physician, with a specialisation in obstetrics and gynaecology. I appreciate he has a vocational scope of practice.
There is no evidence of Dr Xxxxxxx having any substantial, formal qualifications (i.e. post graduate) in the areas of psychiatry, psychology or in the areas of assessment and/or treatment of addiction.
As my illnesses, conditions and disabilities clearly primarily are alcohol dependency (“alcoholism”), depression and xxxxxxxxx xxxxxxxxxxx disorder (XXX) as an anxiety disorder, worsened by also diagnosed hypothyroidism; it appears that Dr Xxxxxxx did not have the required, appropriate professional qualifications and expertise to competently conduct a thorough examination and assessment of a person with my particular complex health issues and conditions.
By having accepted a referral from a Work and Income case manager to examine and assess me as a client with primarily mental health and addiction illnesses, and by proceeding with it, he appears to have acted outside of his scope covering registered general practice. As a well educated and qualified professional Dr Xxxxxxx should have realised and acted upon this conflict from the outset, and thus refused to accept examining and assessing me with my known complex medical background.
His actions put him in breach of the Health Practitioners Competence Assurance Act 2003, which is a serious matter, and which should prompt the New Zealand Medical Council to take necessary action. Only proper, evident and certified additional qualifications in mental health and addiction should allow a general practitioner to assess a person with a complex medical picture as the one I have.
Under the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx ignored following rules:
Rule 2 – Source of health information
Provided that Dr Dxxxx Xxxxxxx from the Xxxxxxxx Health Centre would, as an assessing medical practitioner acting for a third party, have been acting within his professional scope of practice, then he would likely have had the authority to lawfully collect health information from me for the purpose of the medical examination and following assessment that he was expected to complete.
That would certainly have been the case, had I given my approval of this and consented to it in full knowledge and awareness of my rights as a patient or client to be assessed. I agreed to provide certain information, but I was never asked whether I agreed to Dr Xxxxxxx seeking a host doctor report from my own GP. Instead Dr Xxxxxxx simply stated, that he would ask my doctor for that, without asking me for my position re this. As I wasn’t informed of my rights, I did feel to have no input.
In any case, Dr Xxxxxxx should according to rule 2 of the H.I.P.C. 1994 primarily have relied on the information that I provided him during the interrogative interview, and that I was willing to provide to him in the form of additional letters from counsellors, a psychiatrist, a psychologist and psychotherapist, who had been involved in my treatment and/or previous assessments.
Dr Xxxxxxx breached sub-rule (2) (a) of rule 2, because he did unreasonably assume that I would consent to a report from my GP to be requested and accessed. He did not make any appropriate effort to seek my consent. Matters re rule 3 (1) were never ever raised by Dr Xxxxxxx. It appears that sub-rules (2) (c) to (h) did not apply in that scenario, so there was no reason and justification for Dr Xxxxxxx to act in the manner he did, thereby ignoring my autonomy as a person being examined.
Rule 3 – Collection of health information from individual
Dr Xxxxxxx did at no time before, during or after the examination and his consequent assessment inform or consult me re questions covered by provisions under sub-rule (1) (e), (f) and (g). One should strictly also expect that he would have informed me of sub-rule (1) (a) to (c), but given the fact that I was aware what the examination was conducted for, that may not have been considered necessary.
The rushed, somewhat forceful way of interviewing by Dr Xxxxxxx did not give me any chance to consider raising any questions concerning privacy issues, same as I was limited in the scope I could have given answers to his specifically targeted questions I was confronted with.
Most certainly Dr Xxxxxxx breached sub-rule (2). Sub-rules (3) and (4) do not appear to apply to the particular examination scenario I was exposed to.
Rule 8 – Accuracy etc. of health information to be checked before use
By at least partly ignoring medical diagnosis- and related information that was contained in a medical certificate completed by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre, on 22 April 2010, by insufficiently considering information given in an assessment by XXXX psychiatrist, Dr Jxxx Bxxxx, dated 27.08.2008, by not taking reliable photo copies of further medical records in the form of letters from professional, registered alcohol and drug clinicians (“counsellors”), an intern psychologist from St Luke’s Community Mental Health Centre and a psychotherapist from Xxxxx House, Dr Xxxxxxx acted in serious neglect, not even attempting to ensure that the information that was made available AND offered to him, was correct and complete.
As already sufficiently explained, the interview conducted during the medical examination on 17 June 2010 consisted of almost exclusively questions about work, benefit status, ability and availability to resume work, my reservations to taking up work and only secondarily related to questions about my complex health conditions and disabilities. No attempt was made to establish my true health situation.
The assessment from XXXX psychiatrist Dr Bxxxx may have appeared to be insufficiently “current”, hence it should have been the duty of Dr Xxxxxxx to thoroughly examine and consider more current and relevant information, which were made available and offered in the form of the additional documents, as well as information that was communicated in the host doctor report from Dr Txxxxxx. It appears that Dr Xxxxxxx did at no time see a need to contact my own GP by telephone, to perhaps discuss particular details that he may have felt uncertain about. There is no record of a consultation.
By failing in ensuring currency, relevancy and accuracy of information, Dr Xxxxxxx relied on insufficient and wrong information, thus making an assessment and report, which actually exposed me to substantial harm, as later developments after the examination and presentation of his report show.
Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx breached the following sections:
5 Definition of minimum retention period
6 Health information to be kept for minimum retention period
Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx is also expected to keep ALL medical records relating to the examination for at least 10 Years (see sections 5 and 6 re of the Regulations re “minimum retention period”).
Dr Xxxxxxx has evidently failed to do this, as my recent applications under the Privacy Act 1993 (and the above mentioned ‘H.I.P.C. 1994’) revealed, only the manually completed designated doctor assessment and report form for Work and Income, and a request letter from him to my own GP (asking for a Host Doctor Report) were being kept in the form of document copies in his files. That at least is all that he presented to me as the only documents he had on file about me.
Dr Xxxxxxx had though been sent a summary host doctor report by email from my GP on 18 June 2010, which he should have kept on file, but this was not done. This was also not done in regards to “letters” from XXXX, my GP, Dr Txxxxxx, referred to in his report letter of 18 June 2010, which clearly includes the assessment by Dr Jxxx Bxxxx, psychiatrist for XXXX, which was at that time the only document my GP could according to records have had on file from XXXX. As there were two copies of that, one initial one with some mistakes, and another one that was partly corrected, it could be; that both copies were sent to Dr Xxxxxxx. According to Dr Xxxxxxx none of these were kept on his file.
Dr Xxxxxxx also failed to keep any record of his notes or transcripts that he must have made during the examination consultation and re phone calls made, or received in relation to the examination under section 44 of the Social Security Act 1964. There have been no copies kept of an email he received from Work and Income case manager Rxxx Gxxxxxx on 09 June 2010, or of any other correspondence.
I have a copy of the report dated 18 June 2010, which my doctor sent to Dr Xxxxxxx, and information contained in it clearly refers to letters from XXXX from 2008.
The fact that Dr Xxxxxxx has not kept all the mentioned documents, correspondence and records clearly puts him in breach of the Health (Retention of Health Information) Regulations 1996’.
As a member of the Medical Council of New Zealand, Dr Xxxxxxx should also have been familiar with the Council’s statement in its document ‘The maintenance and retention of patient records’ from August 2008. That statement with the recommendations and expectations of the Medical Council from its members, which includes sufficient references to the ‘Health (Rentention of Health Information) Regulations 1996’, appears to have been ignored, or at least not properly followed by Dr Xxxxxxx.
Other relevant issues to consider:
Requirements set by Work and Income and the Ministry of Social Development, particularly by way of the resource manual ‘Guide for Designated Doctors’ (2008 issue):
Since 2008 the Ministry of Social Development (MSD) has followed a new approach for appointing and working with designated doctors, who are almost exclusively general practitioners (GPs). ‘Health and Disability Coordinators’ closely liaise and cooperate with selected practitioners, themselves being overseen, instructed and mentored by the so-called Principal Health Advisor and Principal Disability Advisor employed by MSD since late 2007.
The Ministry relies on GPs as designated doctors for conducting examinations, reviews or reassessments under sections 54B (3) and 44 of the Social Security Act 1964.
Case Managers directly dealing with health affected clients also have direct contact with medical practitioners (mostly GPs but also specialists) when seeking clarifications re medical certificates and other medical documents about a client’s health conditions and disabilities, which may affect their ability to work and will determine what kind of benefit is appropriate.
In certain cases Regional Health Advisors (RHAs) and Regional Disability Advisors (RDAs) working at the Ministry’s and Work and Income’s Regional Offices actively work with GPs, discussing specific cases, and to some degree assisting in the areas of training and/or consultations between the Principal Health Advisor and practitioners.
Since 2008 the Ministry has conducted regular training sessions for medical practitioners (mostly GPs) accepted as designated doctors. These sessions were held all over the country, involved introductions, presentations, active scenario discussions and informal conversations (used for “bonding”) by MSD staff – like the Principal Health Advisor Dr David Bratt himself.
Dr David Bratt, a long term general practitioner from Wellington, has been implementing, managing and even himself conducting the “designated doctor training”, since he was appointed by the Ministry to his new position in 2007. He is well known for his very pronounced, firm view and position in regards to sick and disabled persons’ “work ability”.
Given my own experiences, what I learned through other affected persons and the media, there appears to be a justified reason to be very concerned about the degree to which some medical practitioners may possibly be influenced in their supposedly “independent” decision-making, by the very training they receive as designated doctors from the Ministry.
Some training and related presentation material that I obtained under the Official Information Act 1982, by way of online research and through other channels give reason to suggest that more scrutiny and caution should be applied in regards to the content and applied approach provided by the Ministry for this training, which may under certain circumstances result in biased perception and even conduct by medical practitioners exposed to it.
In any case Dr Dxxxx Xxxxxxx would at least have been expected by the Ministry to act and adhere to standard and basic expectations, requirements and guidelines set out in a so-called ‘Guide for Designated Doctors’ (see attached copy from 2008), which is the main resource manual published by the Ministry of Social Development for designated doctors conducting examinations and completing a designated doctor assessment and report form.
Dr Xxxxxxx was expected to do the following during and after the examination he conducted on me on 17 June 2010:
1. Show respect for me and treat me fairly as a patient to be examined and assessed for ‘Work and Income’ as a third party (belonging to the Ministry of Social Development);
2. give competent, professional, objective, fair and reasonable consideration to any medical information that was or appeared relevant to the examination (incl. client comments; letters, assessments, other information from other medical professionals and specialists involved in my treatment and support); see questions 5 and 6 in report;
3. follow the instructions on page 13 of the Guide, titled “Completing the Designated Doctor Report” (see emphasis on course and priorities under “Report Form”), which state that he first should have thoroughly established illness and disability information;
4. consulted and asked me prior to completing questions 17 to 21 in the Assessment and Report form, relating to ‘Planning for employment’;
5. request and consider a Host Doctor Report by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre (see page 13 of the ‘Guide for Designated Doctors’);
6. upon completing the examination and final assessment to also send a copy of his report or assessment to my own GP, Dr Xxxxx Txxxxxx (see pages 13 and 24 of the ‘Guide for Designated Doctors’);
7. Dr Xxxxxxx was expected to discuss the report with me, prior to sending it to Work and Income (see page 13 of the ‘Guide for Designated Doctors’).
An examination of the assessment and report by Dr Xxxxxxx proves the following:
1. Dr Xxxxxxx did not show the due respect and fairness to me as a patient to be assessed by a third party (Work and Income). He did not explain to me details and aspects of the examination and the way he intended to conduct it with me, before questioning me almost exclusively about my benefit situation, past work, inability to work, what I was doing with my time, and so forth. He instead displayed a bias and degree of incompetence, making a wrong, dismissive and irresponsible diagnosis.
2. Dr Xxxxxxx ignored information supplied in the form of the Medical Certificate issued by my own GP, Dr Txxxxxx (fr. 22.04.2010, sent by WINZ), psychiatric assessments from XXXX psychiatrist Jxxx Bxxxx (sent by my GP), a summarised host doctor report from my GP (sent 18.06.2010) and also largely ignored submissions by me during the consultation, as well as in the form of documents from counsellors and specialists treating me. He did to questions 5 and 6 in the assessment and report form tick a box indicating that I was NOT “under the care of a specialist”, while it was evident that I was getting specialist treatment at XXXX, same as earlier at St Lukes C.M.H.C.. He acted irresponsibly, incompetently, unprofessionally, failed to be objective, fair and reasonable by not giving the due consideration to all this in his diagnosis on the form.
3. He also failed to follow the prescribed form for completing his assessment and report by not adhering to the particular and carefully worded guidelines on top of page 13 of the form – under “Report Form”. Instead of first establishing an in depth picture of my illness and disabilities, Dr Xxxxxxx focused primarily on questions about my past work, reasons for not working or being able to work, my view about past and alternative employment, and attempting to press for reasons why I felt I could not work, before he even asked me about aspects of my health conditions and treatment.
4. I was at no time during the assessment and examination by Dr Xxxxxxx ever asked about what could or should be done to assist me to plan for a return to work. There was no idea that I could have had that he would decide to complete answers (without seeking my input) to questions 17 to 21 on the assessment/report form.
5. Although Dr Xxxxxxx did appear to request a ‘Host Doctor/Usual Practitioner Report’ from my GP, Dr Txxxxxx, it does not have happened in the prescribed form, as my own doctor also only felt prompted to respond by way of an ordinary email letter. Regrettably Dr Txxxxxx’s report contained a mistake referring to me seeking legal aid while facing a charge for an alleged “assault” (wrong information apparently passed on by XXXX counsellor), which never happened, but otherwise it mentioned relevant details re my long standing alcoholism, relapses and need for intensive counselling at XXXX. He mentions depression and XXX as conditions/ disabilities.
6. Having obtained copies of my medical files from both Dr Xxxxx Txxxxxx and Dr Dxxxx Xxxxxxx, it is evident, that Dr Xxxxxxx never sent a copy of his assessment and report to my own GP, as no record at all has been kept and found on file with either one of them. This is a serious breach of the guidelines set out in the Guide for Designated Doctors, where on page 13 Work and Income (and MSD) expect a designated doctor to keep any medical information on file, that has material impact on the formulation of his/her opinion. Consequently my own doctor was never informed about Dr Xxxxxxx’s diagnosis, assessment and final report.
7. Contrary to the strong recommendation and thus expectation by Work and Income at the bottom of page 13 (and the top of page 24) of the Guide, Dr Xxxxxxx never discussed his assessment and report with me. He therefore acted very negligently and made no effort to apply a fair level of transparency in the matter, leaving me as the assessed person totally in the dark about his considerations and recommendation.
‘Non-treating doctors performing medical assessments of patients for third parties’, an official statement by the ‘Medical Council of New Zealand’ from December 2010:
Naturally one would expect that Dr Xxxxxxx, as a general practitioner registered with the Medical Council of New Zealand (under the vocational scope of practice), would have been informed of – and been following – the guidelines in the document ‘Non-treating doctors performing medical assessments of patients for third parties’.
It appears that Dr Xxxxxxx did not follow guidelines given in that document. Dr Xxxxxxx indeed failed to adhere to the statement’s recommendations and expectations:
1. Dr Xxxxxxx failed to inform me properly about the way he intended to conduct the examination, my right to object to it being conducted by him, whether in part or wholly. He did not comply with recommendations and expectations as outlined under point 10 of the statement. During his “interrogation style” interview, he did not give me sufficient opportunity and space to explain matters of my concern, which actually related to aspects of my complex health situation, conditions I suffered from and what the disabilities I have meant in view of coping with various experienced challenges, including problems with accommodation, legal issues to be resolved and a hypothetical return to some form of work. Instead I felt being rushed through an overly enforced, almost coercive kind of questioning that almost exclusively revolved around work, my long term benefit dependency, my ability to work, my view towards past types of work and why I had reservations to resuming alternative work.
Dr Xxxxxxx did not explain to me the different role that he was performing, which was clearly different to that one of my doctor. Indeed no explanations were given from the start of the examination, only that he and I were aware that it was to be completed for Work and Income. As a client of Work and Income I was then not at all aware about the specific role of a designated doctor, and I had no knowledge of the expectations Work and Income has from designated doctors (as outlined in their “Guide” for them).
At NO time during the examination was I informed if my right to withdraw from it, and I was also not given any information about any policy the third party he conducted his assessment for would follow.
2. Most certainly Dr Xxxxxxx totally ignored points 13 and 14 in the statement, as he refused to take photo copies of the specialist counsellor and assessment documents that I offered to him, which was highly relevant for his considerations. He showed no or little interest in meeting the expectations and recommendations under those paragraphs of the statement issued by the Medical Council.
3. Also did Dr Xxxxxxx make recommendations to Work and Income, which resulted in a radical deterioration of my mental and emotional well-being, even leading to me considering self harm or suicide, which is well documented in file notes kept by Work and Income. He dismally ignored the expectations under point 12 of the statement. His assessment and report were clearly not made by applying due diligence and abiding to accuracy, objectivity and true evidence. Instead there are signs of bias and speculative presumptions, which may have been caused by information about an “assault” I was alleged to have committed in the host doctor report. Work and Income was fully relying on Dr Xxxxxxx’s unproven, flawed, biased and incorrect recommendations, and in due course sent me 5 to 6 letters within 4 days, to prepare for training and work. At that stage I had not even learned about their decision based on Dr Xxxxxxx’s assessment, to transfer me onto the Sickness Benefit. On 16 July 2010 I felt harassed and was driven to despair, where I indicated in an upset state, on the phone to a call centre staff member, that I “may as well make an end to it all”.
This was interpreted as an intention to commit self-harm or suicide, and it led to Work and Income calling the police, who threatened to kick in my door, and who finally took me to the Mt Wellington station for a forced assessment by clinical crisis team staff from Cornwall House of the Mental Health Services of the A.D.H.B..
For months my health would deteriorate, for fear of being intimidated, treated unfairly, unreasonably and feeling unable to cope. This led to many relapses on alcohol and worsening health. An already difficult counselling relationship to a counsellor at XXXX Xxxx deteriorated radically, leading to a breakdown and me having to terminate it.
I was forced to take an appeal under section 53A of the Social Security Act 1964 to a Medical Appeal Board, and as their decision was also not meeting legal and other requirements, I had to take the matter to the High Court at Auckland. After struggling to interest a lawyer and to also get a grant for legal aid, I was in Xxxxxx 2011 applying for judicial review proceedings. Only over 10 months of resulting settlement negotiations could it just weeks ago be achieved, that I was finally offered a settlement solution that was reasonably acceptable. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. (Note: Original text edited and partly replaced for legal reasons!)
Dr Xxxxxxx is responsible for a grave escalation of harm, and his actions resulted in a degree of harm to my mental health, general well-being and financial circumstances also, which should make him liable for damages under the laws of New Zealand.
4. Point 6 in the statement does raise the question of suitable qualification and whether there may be any conflict of interest an assessing medical practitioner may have. It leaves the decision-making about this up to the practitioner to make. Yet it is firmly advising a practitioner, who may be approached by a third party to conduct and assessment, to decline a referral, should the practitioner not consider her-/himself suitable for conducting the assessment.
Given the fact that Dr Xxxxxxx is a qualified general practitioner with specialisation in obstetrics and gynaecology, he should have been aware of the fact that he was not suitably qualified to assess me as a person with mental illness and disabilities that lie outside his own scope of practice. Therefore the serious question arises again, why he did proceed with the assessment of a person, who clearly has illnesses and disabilities that lie outside his scope of practice. It appears that Dr Xxxxxxx followed either very poor judgment, or he unjustifiably regarded himself as sufficiently qualified, experienced and competent to make an assessment about a mental health sufferer with complex conditions, including XXX, addiction and alcohol dependence.
In any case, the results of Dr Xxxxxxx’s assessment and report do in this regard speak for themselves, as he failed badly in conducting and completing a competent assessment upon a flawed examination. He did not follow sound judgment and thus failed badly in regards to the recommendations and expectations of this statement.
5. Naturally Dr Xxxxxxx also failed in meeting the expectations set in him under point 5 of the same document and statement published by the Medical Council. He failed to provide an evidence based, correct and objective assessment and recommendation. Submissions form my own doctor; my own verbal submissions and letters of evidence from other specialist medical professionals were simply ignored or held as irrelevant. Such conduct is not meeting the standards of professional conduct.
6. As the “findings” by Dr Dxxxx Xxxxxxx that he noted down in his assessment report to Work and Income were substantially different to the ones of my usual doctor, one would have expected that Dr Xxxxxxx would have followed the expectations under points 16 and 17 of this document, and consequently informed my own GP, Dr Xxxx Txxxxxx, about his different assessment outcome. Dr Xxxxxxx apparently never supplied Dr Txxxxxx with a copy or transcript of his report; so again, he also neglected his duties in this regards.
The result of the totally unacceptable, irresponsible and in part illegal conduct of Dr Dxxxx Xxxxxxx did result in an indescribable course of events causing disastrous consequences and serious harm to my mental and physical health, general wellbeing, financial, personal and other living circumstances. Immeasurable damage was caused, and had Dr Xxxxxxx acted responsibly, competently and professionally within his scope, all this very serious amount of damage could have been avoided.
By taking these steps to raise the very serious matters that went wrong in the course of his conduct and following it, I am resorting to the last means I have to address these wrongdoings and most sincerely hope that you will fairly and reasonably assess, investigate and act upon these complaints in due course.
Appreciating your acknowledgement and consideration of the concerns raised in this letter, I remain
Please be advised that a separate, complete list with all the submissions and relevant documents of evidence will be sent as a further attached document to this letter/email!
Attached to emails carrying the complaint were a number of directly and indirectly relevant evidence and submission documents, sent in PDF files, and the lists(s) of them can be found in this PDF attachment, acessible via this link (again sensitive data has been crossed out for understandable reasons):
Please find some of the selected more important, anonymised crucial evidence documents (in PDF file format and accessible here), by clicking the following links. Included are some medical certificates presented to the HDC (besides of other important evidence), plus the complainant’s “Host Doctor Report” and the Designated Doctor’s report to WINZ:
Here are PDF files containing scan copies if internal emails and SWIFTT notes from Work and Income NZ, dated 12 July 2010, which contain the “recommendations” by their ‘Regional Health Advisor’ (trained by ‘Principal Health Advisor’ Dr Bratt), to get the sick complainant back into work a.s.a.p., by making “every effort” to get him off the benefit:
And here are links to PDF files containing just two out of a total of five letters sent to the SICK complainant and WINZ client, expecting him to prepare for training or work, and to attend appointments with WINZ and Workbridge (dated 08 and 15 July 2010):
As can be seen, the complainant presented a comprehensive complaint to the HDC, and much relevant, but also only indirectly relevant information was provided to back it up. Of very crucial relevance are the medical and disability certificates provided by the complainant’s own doctor for MSD, and of course the ‘Designated Doctor Report’ completed by the doctor complained about. Naturally some of the evidence listed in PDF files that were sent with emails were of more relevance than others. You can rest assured that all were authentic and proved what the complainant stated. As this post will be long and comprehensive as it is, we cannot present all the information that is mentioned. Some cannot be shown for legal reasons.
PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC
As it is rather common with complaints filed with the Health and Disability Commissioner, it took a very long time for the first proper response to come. There was an initial confirmation of the receipt of the complaint presented by our complainant against the general practitioner (GP) and WINZ ‘Designated Doctor’ in question. Further correspondence dated 18 September 2012 and 27 November 2012 informed him that a response had been sought and received from the doctor. But it was not until 24 February 2013 until a “decision” by the Deputy Health and Disability Commissioner Theo Baker was received. I was received by the complainant on 24 February 2013, but as it had that same date in the letter, it must have been written and sent the day before.
In any case, the letter was a huge disappointment for the complainant, who had at least expected a proper investigation. But no action was considered necessary, after the HDC considered the response by the GP. The doctor had responded with a letter dated 22 November 2012, defending himself and presenting himself in the best “professional” manner. A copy of that letter was attached. The Deputy Commissioner considered that an investigation would not be helpful and necessary. She was of the view that a Medical Appeal Board (MAB) was the panel offering rights to appeal WINZ decisions, and wrongly presumed the complainant had been successful in his appeal to such a Board. Re the doctor the Commissioner only asked him to “reflect” on the way he communicated with the complainant. Not surprisingly the complainant was in disbelief and deeply disappointed by the HDC’s decision. His complaint was about a doctor’s unprofessional and obviously biased conduct, and that was certainly not a matter that would be dealt with by a MAB. It appeared the few written comments given by the ‘Designated Doctor’ were considered more reliable than the comprehensive complaint information presented.
Firstly, under the following links you can find the earlier correspondence from the HDC Office, again in PDF file format (containing scan copies of the originals):
Here is the authentic transcript of Theo Baker’s complete letter with her decision, dated 24 February 2013:
Complaint: Dr Dxxxx Xxxxxxx at Xxxxxxxx Health Centre
Our ref: C12HDCxxxxx
I write further to your recent email correspondence with Xxxxxx Xxxx of this Office. We apologise for the delay in responding to you again.
I have now completed my assessment of your complaint and outline my decision below.
You complain that Work and Income New Zealand (WINZ) appointed assessor, Dr Xxxxxxx, performed an inadequate medical consultation and examination on 17 June 2010. You also allege he failed to give due consideration to evidence from other health providers, made incorrect diagnoses, and recorded inaccurate details in his report to WINZ. In particular you raise the following concerns about Dr Xxxxxxx:
* You state his line of questioning resembled an interrogation rather than an examination, as all his questioning was targeted at details associated with your previous work experience and benefit history. He was unsympathetic towards you. The examination only lasted 12 minutes, and you believe Dr Xxxxxxx conducted it with a prejudicial mindset. You feel you were not given sufficient opportunity to explain your health issues.
* You provided Dr Xxxxxxx with documentation that gave evidence of your diagnosed health issues and treatment by mental health and addiction specialists. Upon doing so he advised you that he would not need them, and refused to make a copy of the information to assist with his assessment.
* You dispute the accuracy of the information contained in Dr Xxxxxxx’s WINZ ‘Designated Doctor Report’, and you consider his assessment and report were not evidence based, unfair, unprofessional and biased. In the diagnosis section of the report he referred to you as an “alcohol binge drinker” who lacks motivation to work. The report failed to indicate that you were receiving current treatment/intervention, or were under the care of specialists. You state WINZ relied on his assessment, while ignoring all other medical information, when making its decision to transfer you from an invalids to sickness benefit.
* You state Dr Xxxxxxx is not appropriately qualified to conduct an assessment of a client with your particular medical conditions. You believe he should have acknowledged and accepted his professional limitations and refrained from conducting the assessment.
* You state Dr Xxxxxxx did not follow guidelines set out in the Ministry of Social Development’s resource manual, “Guide for Designated Doctors”.
Under section 38 of the Health and Disability Commissioner Act 1994 (the Act), the Commissioner has the discretion to take no further action on a complaint when he considers it is unnecessary or inappropriate to do so. One of the relevant factors he may take into consideration is whether there is an adequate remedy or right of appeal that it would be reasonable for the complainant to exercise.
In this instance, I consider that the Medical Appeals Board is an adequate right of appeal for WINZ decisions, and it seems that you have been successful at overturning WINZ’s original decision via this appeals route.
However, this Office did ask Dr Xxxxxxx to specifically respond to the communication issues you raised. In his response to this Office, dated 22 November 2012 (copy enclosed), he states that his interviews are all patient-centred, and he is very careful to approach all cases in a standardised and non-judgmental manner. Thus, it is clear that his views about his communication style during the consultation are contrary to yours. I do not consider further investigation into this matter will provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment.
Accordingly, in accordance with section 38(1) of the Health and Disability Commissioner Act 1994, I have decided to take no action on your complaint. I have, however, asked Dr Xxxxxxx to reflect on the way he communicated with you.
Thank you for bringing your concerns to our attention.
Ms Theo Baker
Deputy Health and Disability Commissioner
cc: Dr Xxxxxxx
Please find under the following links a PDF file with a scan copy of that original letter (with sensitive information whitened out):
And here is the letter from the ‘Designated Doctor’ (a common GP), dated 22 Nov. 2012, that was attached to Ms Baker’s response:
What was NOT included in that response by Deputy Commissioner Theo Baker was an earlier reply by the ‘Designated Doctor’, which contained also his “Designated Doctor Report”, that could have been compared to other evidence provided to the HDC, and would thus make it blatantly obvious that the doctor must have been biased, had not professionally and fairly examined and considered all evidence, or both. But most bizarrely, Ms Baker chose to rather back her own decision on the doctor’s letter stating he always acted “professionally” when talking with his patients or clients sent by WINZ. Here is that first reply by the virtual “hatchet doctor”:
HDC complaint, WINZ Design. Dr, Doctor’s first response to HDC, w. D.Dr Report, 20.09.2012
The actions by Theo Baker and the HDC, and her peculiar “decision” reveal how the HDC is really NOT putting the concerns of complainant first, they appear to rather give overly much more favourable consideration to the doctor. Now this challenges the claim of neutrality and “independence” by the HDC!
Also did the doctor himself take the position that “complaints of this nature are more correctly addressed to the Medical Appeals Board” (see letter from 20 Sept. 2012). He also refers to a letter “from your department” (the HDC it appears) from 16 August 2010. So the doctor appears to remind the HDC of some form of an earlier agreement that must have existed about how to deal with complaints about WINZ ‘Designated Doctors’. Also does the doctor make clear that he will copy his letter to the HDC to Anne Alexander, Operations Manager at Work and Income’s Regional Office in Auckland!
This is absolute proof that the HDC is collaborating with the Ministry of Social Development, same as what they do with ACC. And it must have been that reference by the respondent doctor, why this letter was not independently considered and attached to Ms Baker’s decision. Only upon further requests, then also under the Privacy Act, would that letter by the doctor be released later with a letter from their Legal Advisor Georgina Rood, dated 04 Nov. 2013!
We do get the usual media reports about how the HDC “addresses” failures and misconduct by medical practitioners and so forth, but even then, in these “tip of the iceberg” cases, the HDC usually only offers hopeless recommendations, which rather resemble the “slap on the wrist with a wet bus ticket approach”. I must ask, when does our useless media confront the HDC about their true agenda?
PART 4 – THE COMPLAINANT’S REPLY TO THE HDC AND THEIR DECISION
As already mentioned in the introduction, the decision by Deputy Commissioner Theo Baker was totally unacceptable to the complainant. Hence he saw a need to raise his valid concerns and firm objections to it, and asked for a re-assessment of his complaint, and with that a review of the decision. He insisted on Health and Disability Commissioner Anthony Hill, or another Deputy Commissioner, to reconsider the matter, as he had lost all trust in Theo Baker handling any complaints in a fair and just manner. She had also been involved in the handling of the earlier complaint he had made to the HDC in another matter. That had also been handled in a very questionable way, so that in both complaints it would be the HDC’s Legal Advisor, and also Associate Commissioner Katie Elkin, who would then “defend” the decisions made to take no actions.
First here is a link to a PDF copy of the reply letter from the complainant, dated 26 April 2013. Some people may find the text in the PDF copy mor easy to read:
And here is the authentic transcript of the letter by the complainant, dated 26 April 2013:
xx Xxxxxxxxxx Street
Phone: 09 xxx xxxx
The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
26 April 2013
Attention: The Health and Disability Commissioner
Re: Complaint 12HDCxxxxx (breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Dr Dxxxx Xxxxxxx); response to your decision dated 24 April 2013
Dear Health and Disability Commissioner, dear Madam / dear Sir,
This letter is in response to your Deputy Health and Disability Commissioner’s decision to take no further action on my complaint about professional misconduct, breaches of my consumer rights, principles of the ‘Code of Ethics of the New Zealand Medical Profession’ and certain legal provisions, which I established Dr Xxxxxxx, general practitioner (GP) at ‘Xxxxxxxx Health Centre’, has committed.
I request that this letter will be read, the raised issues attended to and dealt with by Commissioner Anthony Hill himself, or another Deputy Commissioner, but not by Ms Theo Baker. Furthermore I insist that your Mental Health Commissioner is consulted on all matters raised in relation my complaint.
Ms Theo Baker based her decision on section 38 (1) of the ‘Health and Disability Commissioner Act 1994’ (the Act), which gives her as Commissioner certain discretion to make such a decision on a complaint received. She gave explanations as to how and why she decided this way on the matter.
While I respect your Commissioner’s rights and responsibilities under the Act, I feel extremely disappointed, yes devastated, upset and highly distressed, that she has chosen to take this course of action. I cannot accept the decision and how it was made, as the response dated 24 April 2013 (which I presume should have been the 23 April 2013, as I received it by ordinary post on that 24 April) does give me the very clear impression that very insufficient and only selective consideration was given to some of all relevant and crucial facts – plus submitted evidence – that I supplied with my complaint.
I do particularly take issue with the following points:
1. Ms Theo Baker states that she considers it adequate, that I had the right to address issues with Dr Xxxxxxx and his examination, which delivered the “recommendation” on which Work and Income (WINZ) staff made their decision (on medical grounds) about my health related benefit entitlement, by filing an appeal under section 53A of the Social Security Act 1994 and have matters heard by a Medical Appeal Board. She also wrongly states that I was “successful” in following this appeals route.
2. Ms Baker mentions that she asked Dr Dxxxx Xxxxxxx to specifically respond to the “communication issues” I had raised. It appears that none of the many other serious issues (e.g. breaches of various rights, codes and law) I raised in relation to Dr Xxxxxxxx and his conduct was put to him to answer to.
3. While Ms Baker summarily listed some of the main points of issues I had raised about Dr Dxxxx Xxxxxxx and his professional conduct during and after a medical examination (conducted on 17 June 2010 for Work and Income New Zealand (WINZ)), she did not at all address most of these, but one.
4. Her consideration upon which she made the decision to take no further action to investigate – or to take other measures – appears to be solely, or at least primarily, based on the argument that I had the right and ability to raise my issues before a Medical Appeal Board. It appears NO other considerations were given to the large amount of compelling evidence I supplied to your office with my complaint.
5. Ms Theo Baker has clearly also given consideration to statements Dr Dxxxx Xxxxxxx made in a letter dated 22 November 2012. I do though take serious issue with the comments and statements by Dr Xxxxxxx, which are in large part generalisations of his claimed usual conduct and handling of referrals from WINZ. In relation to my case they are absolutely untrue. Dr Xxxxxxx even dares to claim that I basically willingly “chose” to see him for that “interview”, which WINZ required to be conducted as a medical examination under section 44 of the Social Security Act, offering little or no true choice.
Hence Ms Baker has left me in a situation where I can only conclude that totally insufficient considerations were given to indeed very relevant information – and that my complaint has consequently not been properly and thoroughly examined and investigated. The decision by Ms Baker also raises serious questions about fairness, reasonableness and objectivity, which means that in the assessment – and only very limited investigation – principles of natural justice were not followed.
It is my firm view and belief that your staff are bound by natural justice principles in making any determination, as well as they are required to apply a reasonable duty of care, whether it is only for making an initial determination or a final determination on a matter put before you and your office.
Detailed arguments re the issues raised above:
1. A Medical Appeal Board is a panel of 3 medical and health professionals, appointed by a Medical Appeal’s Coordinator employed by the Ministry of Social Development (the Ministry) to hear appeals put before them on medical grounds only. It is common that at least 2 of the 3 members are MSD trained designated doctors (almost all GPs) working with or for MSD. Appointments are made from an established pool of panel members, who in most cases are designated doctors that have been selected by the Ministry, which employs also a Principal Health Advisor, Principal Disability Advisor, a number of Regional Health Advisors, Regional Disability Advisors and so-called Health and Disability Coordinators, who all work with such mentioned doctors and other health professionals.
All the MSD staff mentioned are involved in finding and selecting designated doctors, but a special role is played by Health and Disability Coordinators (see position description in attached PDF document 5, listed at the end of this letter), who regularly visit general practitioners and other health practitioners. All staff working under the Principal Health Advisor (PHA), who has since 2007 been Dr David Bratt, have been and are being managed, trained, instructed and monitored by that PHA. Dr David Bratt is himself known to be a very biased, using selective “research” and even scientifically unproved statistics. As “Principal Health Advisor” (see a position description in attachment 6 listed at bottom of this letter) he has held numerous presentations for GPs and other health professionals, and he also used training material, which contained bizarre, biased statements. In presentations he gave to general practitioners he usually compares benefit dependence to “drug dependence”!
I may in this regard refer you to PDF and PowerPoint documents attached to the email sent with this letter, which are also listed as further evidence documents 8 to 12 at the bottom of this letter! Dr Bratt quite unashamedly exposes his own bias, which MSD and Work and Income appear to not only tolerate, they appear to rather accept and permit Dr Bratt’s position!
While members sitting on a Medical Appeals Board are different medical practitioners – or other health professionals – from the one(s) that acted as designated doctor who initially examined a WINZ referred client/patient under sections 44 and 54B of the Social Security Act, they are in their vast majority also WINZ trained designated doctors (usually GPs). An attached PDF file shows the list of all “designated doctors” used by WINZ, current as on 20 August 2012 (see attachment 2 in the list at the bottom of this letter). All designated doctors have been – and are being regularly informed, trained, instructed and liaised with (or: are liaising) by WINZ and MSD staff (by the Principal Health Advisor, and also by the Regional Health and Disability Advisors, Health and Disability Coordinators).
According to the Social Security Act 1964 the medical practitioners, psychologists or other health professionals that work for WINZ are supposed to be “independent”. The same is supposed to apply to those sitting on Medical Appeal Boards. The truth is far from that, already clearly due to them being carefully chosen and appointed by WINZ and MSD staff. The fact that they are also trained, monitored and bound to fulfil certain strict expectations that the Ministry has in them, does make them anything but “independent”. I have evidence of this, which was also presented in a case filed at the High Court in Auckland on xx Xxxxxxx 2011.
The Medical Appeal Board (3 GPs as long term WINZ designated doctors) that heard my appeal on only medical grounds, was displaying a clear bias. I had repeatedly insisted to the Medical Appeals Coordinator that due to my particular mental health and addiction illnesses, and disabilities arising from them, I should be heard by a panel that had at least one psychologist or psychiatrist. This was bluntly refused, and MSD insisted on me being heard by their chosen GPs, all having no evident mental health and/or addiction treatment knowledge and experience. I presented well over x00 pages of compelling evidence to make my case, but much of it was simply ignored – or not considered fairly, reasonably and objectively.
That Board did at no time pay any attention to the way Dr Xxxxxxx may have conducted his examination and interview, and it was not interested in his professional competencies or any other matters that I raised with your office. As a matter of fact, such a Medical Appeal Board has no responsibility to address any of the particular issues I raised with your office! I refer you to the attached document ‘Medical Appeals Board – A resource for board members’ (see evidence document 7 listed at the bottom), which gives “official” information about the role, appointments, and processes to follow and so forth. On page 19 it is clearly stated what is outside of the area of responsibility for such Medical Appeal Boards.
While the Medical Appeal Board that heard my case adopted a somewhat more moderate, and in part perhaps a slightly “more objective” view on aspects in their report and decision, the members did in the end still stubbornly support and confirm the decision that WINZ made based on the report presented by the apparently even more biased Dr Xxxxxxx. Ignoring very relevant, serious aspects and evidence, I was considered to be able to work part time (over 15 hours a week) within a short time. Presumptions were made about purely hypothetical work that I could perhaps do, while “working around my drinking”. This was the result of the new stringent approach to look rather at what a client “can do”, rather than what a client “cannot do”! Consequently WINZ stopped my invalid’s benefit and put me on a sickness benefit.
Due to some illegal processes followed and the natural justice breaching handling of my case by that Board, I was forced to spend many months looking for a lawyer who would be prepared to assist me and file a judicial review with the High Court. This was the only way I could seek legal redress for the wrong decision made. I approached dozens of lawyers, and only one was after desperate convincing on my behalf prepared to take up my case and prepare judicial review proceedings. As she was doing it all under legal aid, which barely covered her costs, it became clear that she could only spend so much time and effort on it.
It is absurd to claim that I “succeeded” taking the appeals route. There is NO further right of appeal under statutory law once a Medical Appeal Board (appointed by MSD staff!) makes a determination. So I did not succeed with an appeal at all, and I was forced to go and make arduous efforts and suffer endless stress, impacting very badly on my already poor health, to finally at least come to a settlement with MSD (after 10 months of very difficult negotiations). I have attached to this letter a PDF file of relevance, to show the valid legal issues that arose through Dr Xxxxxxx’s flawed, unprofessional, biased medical assessment, and the sought legal remedies of some core claims made against MSD and the Medical Appeal Board that heard my appeal. It is a copy of the original ‘Statement of Claim’, filed at the Auckland High Court on xx Xxxxxx 2011, which is PDF attachment 1 (as listed at the end of this letter). The final settlement was confirmed by a formal, but undated letter, received from MSD on xx Xxxx 2012, which is PDF attachment 2 (as listed at the end of this letter).
I should instead have been given time and peace to focus on my health and needed treatment, but that was definitely NOT possible for all that time. So if this is a “success”, then this is a totally unfounded, ill-informed and unreasonable view by Ms Theo Baker.
My complaint to your office was about Dr Xxxxxxx breaching a number of rights under the ‘Code of Health and Disability Services Consumer’s Rights’, but this has been considered to be unnecessary to address by Ms Baker, as I supposedly could have had these issues resolved by a Medical Appeal Board. It is apparent that Ms Baker does not even understand the realities, the relevant law and the intended role of such a Board, and what can be presented and resolved in applied processes. Clients of WINZ are exposed to bias and unfair treatment by medical practitioners acting as designated doctors (mostly GPs) at all levels.
So the stated considerations by Ms Baker are most certainly not accepted by me, and it is unreasonable, unfair and not based on objective analysis of the facts, what she has decided.
2. I appreciate that a letter from Dr Dxxxx Xxxxxxx (dated 22 December 2012), the assessor and examining medical practitioner in my case (on 17 June 2010), in response to “communication issues”, was attached to the response I received from Ms Theo Baker.
From her response to me, and Dr Xxxxxxx’s letter, it becomes clear that Ms Baker only confronted Dr Xxxxxxx with one point of my complaints, namely that of a breach of Right 5 – ‘Right to Effective Communication’, to which Dr Xxxxxxx gave his comments. These were only made in a generalised form, by him claiming he does usually follow a reasonable standard format and manner in communicating with clients/patients referred to him by WINZ staff. He defends himself by claiming he always acts in a “patient-centred” and “careful” manner.
Dr Xxxxxxx states that he does not have any clear recollection of the examination, interview and communications with me, as it happened nearly two and a half years before. This may well be the case, but your office was presented with abundant evidence showing what he recorded on me and my health conditions, and also what report and recommendations he sent to WINZ. I gave a detailed description of the conversation and examination by Dr Xxxxxxx, which was based on truthful notes I had made right after the interview. Further to that I did in confidence discuss Dr Xxxxxxx’s examination and him personally with my own GP, who confirmed to me that Dr Xxxxxxx was a “difficult” person to deal with, as staff and a colleague of his had experienced this in a very serious manner, where both practices were involved. My own GP informed me that he and others knew, that Dr Xxxxxxx was doing a large amount of examinations and assessments for WINZ, and he often also requested “host doctor reports”.
In his letter Dr Xxxxxxx further claims that all these issues were clearly covered in his report on me, which I presume is the one that he sent to Work and Income. That though is absurd, as I pointed out in detail in my complaint. The report is full of flaws, mistakes, partly does not answer questions, in other parts gives bizarre, incorrect, clearly biased answers, and it does not even meet the basic requirements set in the Guide for Designated Doctors, which WINZ supplies to every doctor they commission to examine their clients on their health. Every person who looked at it, including my lawyer, instantly commented that the report was clearly flawed, biased and prepared in a rushed, unprofessional, anything but considerate manner.
I presented a range of medical certificates, completed forms and other medical reports and letters from my GP and other healthcare specialists, and it is more than clear, that Dr Xxxxxxx’s report and recommendation is totally out of line and without basis. One document (‘Disability Certificate’, see attachment 9 to email 3, sent to you at 02:30 am on 01 July 2012) had been completed by my own GP on that same day as Dr Xxxxxxx’s examination and assessment on me, and that document was also provided as evidence, showing major differences between what Dr Xxxxxxx “diagnosed” and recorded, and what my own doctor found and stated. In my complaint to your office I stated and explained all this in detail.
Ms Baker appears to simply have taken Dr Xxxxxxx’s words in his letter for likely facts, has apparently not even examined the ample evidence that I supplied, and thus she has failed abysmally in not establishing that Dr Xxxxxxx has displayed a clear bias and a true lack of understanding or appreciation of my health issues and conditions. It is evident that Dr Xxxxxxx was the wrong kind of doctor to perform the examination and assessment on me.
There was apparently NO attempt made to challenge Dr Xxxxxxx on his lack of expertise, qualifications and competency in mental health and addiction diagnosis, treatment and examination. That in part explains how his manual and typed reports and recommendations to WINZ are completely unfounded and bizarre. As I have learned over the last three years, it is though common practice, that WINZ send clients to their preferred designated doctors (mostly only GPs), to get the recommendations they want, so they can shift sick and disabled onto a lower paid benefits, and put pressure on them to rather try and find any part or full time work they are supposed to be able to do, despite of their incapacity. Cost saving is the true agenda.
As my own GP and other medical professionals have confided to me, Dr Xxxxxxx has been, and apparently still is, doing a high amount of “examinations” and “assessments” for Work and Income on a regular basis, which clearly is also a sought after, secure revenue stream for him. This will now be even more important to him, given his loss of revenue from XxxCare funding, which was repeatedly reported on in the NZ Doctor magazine in mid to late 2012.
It is absolutely wrong and untrue, that I – or any other WINZ client for that sake, have any kind of real free choice to see Dr Xxxxxxx or any other medical practitioner or specialist for examinations or “interviews” on health conditions, which impact on ability to work or study. Dr Xxxxxxx’s comments that I came to an “interview” at the “request” of WINZ was clear “acceptance” that I was “willing to do this”, is absurd. According to the legal provisions under sections 44 and 54B of the Social Security Act clients can be forced to be medically examined by a medical practitioner or psychologist. Non compliance would mean having one’s benefit cut or stopped! As MSD and WINZ have virtually NO psychologists on their books as “designated doctors”, and very few psychiatrists, they do in virtually all cases send their clients on sickness or invalid’s benefit, or applicants for such benefits, to their preferred and managed designated doctor GPs. I already stated under point 1 above, that they have all been “trained” by PHA Dr David Bratt, and they are also “advised” and “consulted” on a regular basis, what WINZ expects of them. This certainly is not limited to basic standards for filling in medical certificates and the likes. Just looking at presentations by Dr David Bratt (and I have yet more information!) shows, that there is at least a strong attempt made by him, and other MSD and WINZ staff, to unduly influence the doctors they work with (see again attachments 8 – 12).
I do also know a person I have been acquainted with, who was at a later stage in 2011 also TOLD by a WINZ case manager to see Dr Dxxxx Xxxxxxx for an assessment, when having to apply for the invalid’s benefit. That person was initially not even given any choice at all, about whom to see. Only because that person had been advised by me, that he would according to the statute have a right to try and “agree” (and thus try to make his own suggestion for a medical professional) with WINZ – on who to be examined and assessed by, did the person raise issues with the case manager. Eventually he was allowed to see another designated GP.
It is very common that WINZ staff members (usually case managers in cooperation with Regional Health Advisors) do not offer their clients any choice about designated doctors to re-examine and re-assess them. At best they present clients a small short list of their preferred designated doctors, which also happened in my case. I was not given any advice on the law, and that I could propose another doctor than those on the list presented. So I was forced to make an uninformed, very limited “choice” from that list, not knowing what really goes on in such cases. Such a restricted “choice” and “agreement” under the threat of having the benefit stopped for the case of non-compliance, is actually illegal and unfair practice by Work and Income staff! I only learned this later. Nothing re this has changed, according to anecdotal information that I received from others affected and advocates working with beneficiaries. WINZ only settled with me on issues I had raised by way of legal proceedings, xx xxx xx xxxxxxxx (crossed out on legal advice), so they could continue with applying their agenda and processes to others.
Dr Xxxxxxx will as a well known, long term, experienced and surely informed designated doctor for WINZ know full well what the applied processes and procedures in use are, and he is certainly misleading your staff with the comments in his letter to your office.
Last not least, it is also common practice by WINZ and their staff, that they exclusively rely on information in designated doctor reports and recommendations, and largely ignore any other, earlier medical reports and documents presented to them, once a current designated doctor report is received. Whatever a designated doctor diagnoses, records, reports and recommends is in almost all cases accepted by the Health or Disability Advisors working for MSD and WINZ, who then make corresponding recommendations to case managers, who simply adopt these as they are presented. Only “officially” the case manager makes decisions.
This means that the role and service delivered by designated doctors is a highly sensitive and important one. Hence a very high standard must be expected, and detailed scrutiny, consideration of all medical aspects, earlier reports and what else is relevant, should be applied by such doctors as Dr Xxxxxxx. Making wrong diagnosis and recommendations can lead to disastrous consequences; and like in my case push some wrongly assessed WINZ clients close to self harm or suicide! It appears that your staff members are not familiar with the designated doctor and related processes that are followed by Work and Income, and hence Ms Baker has failed to take these matters as seriously as they should be taken. We are dealing with matters involving at times very critical, delicate health issues, and in some cases possibly life or death consequences. Harm should be avoided at all times by any doctor.
With my compelling evidence I also supplied to you a copy of a document dealing with an earlier complaint a WINZ client had made about Dr Dxxxx Xxxxxxx (see evidence document 11 that was attached as PDF to email number 5 that was sent to you at 12:43 h on 02 July 2012). It is an internal memo from Nxxxxx Hxxxxx, Service Development Advisor for MSD, dated 18.06.2010. It should most certainly have prompted your staff to examine my complaint with all raised issues very seriously and thoroughly, which regrettably has not been done.
3. In summary on this point, of all my rights under the ‘Code of Health and Disability Services Consumer’s Rights’ only questions re Right 5 appear to have been raised with Dr Xxxxxxx. The other rights 1, 3, 4 and 6, that were also breached, and which I raised in my original complaint, have by all indications not at all been seriously discussed with him.
Re the ‘Code of Ethics for the New Zealand Medical Profession’ and various principles I listed for having been breached by Dr Xxxxxxx, nothing appears to have been done. Also have there been no apparent efforts made to clarify issues with Dr Xxxxxxx apparently having breached section 8 of the ‘Health Practitioners Competence Assurance Act 2003’: “Health practitioners must not practise outside scope of practice”. It is beyond me how such a serious matter can be left unaddressed by your office! This is a matter that must also interest the Medical Council.
Re the ‘Health Information Privacy Code 1994’, rules 2, 3 and 8 on the sourcing, collection and ensuring the accuracy of health information, nothing seems to have been done either, to examine and assess whether Dr Xxxxxxx did or did not comply with these.
Regarding the ‘Health (Retention of Health Information) Regulations 1996’, particularly sections 5 and 6, nothing has been followed up with Dr Xxxxxxx! He clearly has not kept documents that according to those regulations should have been kept by him. This was made very clear in my complaint and even in response by Dr Xxxxxxx to a Privacy Act request I made to him (by email) on 27 May 2012. You can find proof of this in his email response to me dated 11 June 2012 (11:28 am), which was also provided as evidence document 2, attached to email 1, sent to your office at 10:34 pm on 30 June 2012
All the issues I raised in relation to standards or requirements set by the Code of Ethics, and the various other legal provisions, are clearly also relevant to assess and determine in how far any ‘Rights’ under your office’s own Code were upheld or not by Dr Dxxxx Xxxxxxx.
I am bitterly disappointed that no assessment was done in this regards at all.
4. With my complaint I provided substantial and well documented evidence, to support my complaint. I admit that some of it may only be of secondary or little direct relevance, but one should fairly and reasonably expect that at least the wide range of provided medical records and documents, from my own doctor, Dr Xxxxx Txxxxxx, as well as from XXXX counsellors, a XXXX psychiatrist, from specialists at St Luke’s Community Mental Health Centre, from XxxXXXX psychologist Xxx Lxxxxx, from Xxxxx House, and so forth should have been read by your staff. This appears to not have happened. Again I attach the list of said evidence, detailing what document was attached to which particular email sent, and dated 02 July 2012 to the email carrying this letter. It is listed as “3” under the attachments at the end of this letter.
Also should it have been of real relevance, what happened as a consequence of Dr Xxxxxxx’s wrong assessment and recommendations, e.g. how Work and Income harassed me with letters demanding I attend Workbride and other interviews, prepare for work and study and the likes. It would have been even more important to view the documents showing how my requests for a psychologist or psychiatrist to be member of the Medical Appeal Board hearing my appeal against the wrong decision by WINZ, which was based on false, flawed information from Dr Xxxxxxx, was completely ignored and not followed by MSD. This clearly shows the complete disregard that MSD and WINZ have towards clients seeking justice and fairness.
Other information, like reports from XxxXXXX (early 2011 and 2012) clearly show how the whole processes involving the designated doctor assessment, the Medical Appeal Board hearing, and the constant denial of my rights, impacted extremely badly on my health. The mentioned developments and my desperate attempts to seek a judicial review impacted severely on my ability to focus on recovery. Rather than being forced to fight for my rights as a wrongfully treated WINZ client, also wrongly assessed by the biased designated doctor Dxxxx Xxxxxxx, I should have been treated with fairness, reasonableness, objectivity and respect.
The Medical Appeal Board’s decision and recommendation in my case should have been looked at, to see how biased that panel was, at the same time also lacking the qualifications, expertise and competence to properly hear an appeal from a person with my conditions.
Evidence I supplied clearly shows how I was eventually forced to take matters to the High Court, which caused enormous stress and impacted severely on my health, so that I am still suffering from the consequences of this. This happened to me already struggling with illness.
As it was my sincere expectation that your office would have the skills, the understanding, appreciation, the means and abilities of your staff, to fairly, reasonably and objectively examine and assess a complaint about Dr Dxxxx Xxxxxxx and his clearly proved wrong conduct, I put faith and trust into a fair and reasonable process to be followed.
The decision that your staff have presented to me resembles a slap in the face to me, and it is more than extremely disappointing, that apparently only very selective, low level and limited efforts were made to examine and address the number of issues I raised. I was stunned when my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre, recently told me (upon my questions), that he was never contacted by anyone from your office, to perhaps get some information on my situation, my health issues and about Dr Xxxxxxx’s involvement from him.
I already made it absolutely clear under point 1 in this letter, that in no way could the Medical Appeal Board that was only tasked with considering my appeal on medical grounds, have any authority, let alone ability and means, to deal with the issues that I raised with your office in regards to Dr Xxxxxxx, his appalling, biased, in part unprofessional and illegal conduct.
Claiming that my right and ability to make an appeal to a Medical Appeal Board on medical grounds is a fair reason to NOT investigate – or otherwise address issues I raised with my complaint to your office – is actually untrue and not acceptable. Ms Baker has therefore made a decision based on totally irrelevant information and facts. This represents a breach of natural justice, and I must appeal to you to remedy this and review the decision made in this matter.
5. Ms Baker appears to have accepted Dr Xxxxxxx’s statements in his letter from 22 Nov. 2012 to your office rather unchallenged. She merely states that his statements and comments are “contrary” to the ones I presented. She appears to have taken his word for him claiming his interviewing of clients/patients “are all patient-centred”, that he is “very careful” to approach all cases in a “standardised” and “non-judgmental” manner.
She writes: “Thus, it is clear that his views about his communication style during the consultation are contrary to yours”.
This is unacceptable to me, as the very reports that Dr Xxxxxxx completed on me show a total disregard to the presented medical diagnosis, assessment of work capacity and various treatment related, or other aspects, that were stated in records by my own doctor and other medical professionals or “specialists”! They clearly show that Dr Xxxxxxx failed to act fairly, responsibly, respectfully and professionally. He did prepare reports that were not based on the available objective information and facts presented to him. If unsure, he should have sought further information, but he did not bother to do this, displaying a high degree of bias or neglect.
A degree of bias certainly appears to be evident, likely in combination with a lack of understanding and appreciation of what my true medical conditions and work capacity were.
As this is all clearly well documented, it is not fair and reasonable for Ms Baker to simply base her considerations so substantially on that letter from Dr Xxxxxxx, for making the decision she made. Ignoring highly relevant information and documents of evidence is irresponsible and in conflict with the responsibilities she has as Deputy Health and Disability Commissioner.
I presume though that she has based her decision on what other staff working under her have presented to her as their “assessment”, so she may simply have relied on this questionable advice and decided to sign a letter that announces and tries to justify the decision made.
As for the claims by Dr Xxxxxxx, that I willingly agreed to see him upon a request by WINZ, I have already explained under point 2, that there is little voluntary and fair agreement possible for any WINZ client facing a review and a mandatory examination (see sections 44 (1) and 54B (3) of the Social Security Act. The Chief Executive and her/his staff can “require” sickness and invalid’s beneficiaries to be examined, this isn’t just a kind “request” we are talking about.
Section 44 (1) of that Social Security Act 1964 states the following:
“The chief executive may require an applicant for an invalid’s benefit, or a person in receipt of an invalid’s benefit, to submit himself or herself for examination by a medical practitioner or a psychologist. The medical practitioner or psychologist must be agreed for the purpose between the applicant or beneficiary and the chief executive, or, failing agreement, must be nominated by the chief executive.”
And section 54B of the same Act states this:
“The chief executive may at any time require an applicant for a sickness benefit or a sickness beneficiary to submit himself or herself for examination by a medical practitioner or psychologist. The medical practitioner or psychologist must be agreed for the purpose between the applicant or beneficiary and the chief executive, or, failing agreement, must be nominated by the chief executive.”
It is clear that WINZ will ultimately have the upper hand to appoint and assign the kind of designated doctors they have chosen to conduct such examinations. Client input will regularly be rejected, and so medical practitioners like Dr Xxxxxxx will be the ones offering the often biased, not independent assessments and recommendations that MSD and WINZ want.
Non-compliance with WINZ will mean that WINZ case managers and their advisors will argue that they have insufficient information to renew or grant a sickness or invalid’s benefit, which would put enormous financial pressure on any affected person. Clients face pressure to accept the processes presented to them, or to lose their required, basic benefit income.
As I am now well informed and could offer you a huge amount of further compelling evidence, how MSD and WINZ work when assessing clients for their health conditions and work capacity, I can assure you that any talk about “independence” of doctors like Dr Xxxxxxx, and informed “choice” and willing “agreement” on any assessor by clients affected is a distortion of the truth. MSD have done all to keep information withheld, and it was only thanks to my lawyer that I obtained highly sensitive, revealing information, what has and is going on behind the scenes. In view of this, the letter by Dr Xxxxxxx, dated 22 Nov. 2012, must be seen as a desperate attempt to avoid accountability and to cover himself from undesired consequences!
Final comments, conclusions and expectations:
Given that the stated (wrong) reasons for not taking further action on resolving my complaint existed at least since the receipt of the letter from Dr Xxxxxxx (dated 22 Nov. 12) by your office on 27 November 2012, I must ask in all sincerity, what was otherwise done with my complaint over the last 5 months?
If his response, and the then already known fact, that I had taken an appeal to a Medical Appeal Board in October 2010, were the supposedly major relevant matters to consider, then I am left under the impression that my complaint seems to have been lying unattended in your offices for most of that time. I see little evidence that any of my submitted, relevant evidence documents have been looked at.
This is not a good look for the Office of the Health and Disability Commissioner.
The decision to take no further action will also serve to facilitate the continuation of illegal processes by doctors like Dr Dxxxx Xxxxxxx and by Work and Income staff, who have over recent years already thrown thousands off the invalid’s benefit, under the draconian ‘Future Focus’ policies introduced in 2010. The new welfare reforms to be implemented from July this year will escalate this appalling process, and I expect that the result will be the first kinds of self harm and suicides by wrongly diagnosed and assessed WINZ clients, particularly those with mental health conditions and issues, who will be denied fair treatment and respect even more frequently.
Appeals to Medical Appeal Boards, with members that are also MSD chosen and appointed, and who are also anything but truly “independent”, are the only measure any WINZ client can take after having been given an unsatisfactory diagnosis and recommendation by practitioners like designated doctor Dxxxx Xxxxxxx. I was the first and only person who ever managed to file for judicial review in such a case. The lack of access to justice, also due to new limitations to obtain legal aid, and the total absence of any further appeals provisions after Medical Appeal Board hearings, makes it impossible for WINZ clients to get fair, just and independent treatment under the present system.
The Minister for Social Development has already announced to introduce work capability assessments along the lines they are done by ATOS Origin Healthcare for the Department of Work and Pensions in the UK. Recently published data reported that over 1,100 affected sick and disabled in the UK either died early while not coping with wrong assessments and higher work expectations, or simply committed suicide. It is extremely disconcerting that senior staff members of your office, like Ms Baker, do take such a dismissive position on questionable conduct by medical assessors like Dr Xxxxxxx.
I must urge you to conduct a thorough, fair, reasonable and objective re-assessment of my whole complaint, and to apply principles of natural justice in conducting a real, proper investigation in the matters raised by me with your office.
If this will not be done, then I will need to examine, whether it will be possible and advisable to seek a judicial review of the decision made.
I trust that you will look honestly and seriously at the concerns, objections and disapproval I have expressed in this letter, and I will look forward to your response in due course.
Yours thankfully and sincerely
Further to the above I seek full disclosure of any previous or present contacts (personal, professional or other) any existing or previous staff member working at and for the ‘Office of the Health and Disability Commissioner’ has had with Dr Dxxxx Xxxxxxx, general practitioner, and also previous xxxx xxxx xxxxxxxx at Auckland University’s Medical School. This may also be treated as a request under the Official Information Act 1982.
Attachments to email sent with this letter:
1. PDF file with ‘Statement of Claim’, for Application for Review, from xx Xxxxxxx 2011, filed with the High Court at Auckland, xx Xxxxxxx 2011; stating the various legal issues and implications in question – also of relevance to certain issues in this complaint matter (see Dr Xxxxxxx);
2. PDF file with “Settlement” letter and apology from the Deputy Chief Executive Debbie Power, Ministry of Social Development, which is undated, but was received on xx Xxxx 2012 (about 40 days after settlement was agreed to by me, and only received after my lawyer repeatedly “reminded” MSD of their commitment and obligation to present such a letter!);
3. PDF file with the list of submissions and evidence documents that I provided to your office in this matter of complaint C12HDCxxxxx, dated 02 July 2012; which contain relevant evidence;
4. PDF file with the ‘Designated Doctor List’ for such designated doctors and their qualifications, that MSD and Work and Income use as their “pool” of chosen assessors, 20 August 2012, it shows that they are almost exclusively general practitioners, and that there is NO psychologist available; all these have been, and get trained and instructed on an ongoing basis;
5. PDF file with position description for Health and Disability Coordinator, MSD, obtained by way of O.I.A. request, undated, likely from 2007, outlining also how such staff work closely with medical practitioners, by communicating the expectations and “services” by MSD and WINZ;
6. PDF file with position description for Principal Health Advisor, MSD, obtained through O.I.A. request, undated, likely from 2007 (yet still valid), outlining how this senior Advisor manages, mentors, instructs, trains, liaises and works with Regional Health or Disability Advisors, and to some degree also with designated doctors, GPs and other health professionals in general;
7. PDF file with ‘Medical Appeals Board – A resource for board members’, giving “official” information about the role, appointments, processes to follow and so forth, obtained through my lawyer in early 2012; it makes clear, that MSD choose, train and appoint the members; on page 19 it is written that only medical and work capacity aspects are considered by the MAB;
8. PDF file with article in NZ Doctor on Dr David Bratt, PHA for MSD and Work and Income, titled “Harm lurks for benefit addicts”, and quoting his comparisons between benefit dependence and drug dependence (!), fr. 01 August 2012;
9. PDF file with article in NZ Doctor, “Questioning the direction of MSD policy’, raising valid criticism about Dr Bratt and his biased position, by Tim Walker Nelson, from 29 August 2012;
10. PDF file with GP presentation by Dr Bratt, 2012, called ‘Medical Certificates are Clinical Instruments Too!’, in which he compares benefit receipt with drug dependence (see pages 3, 16 and 33), and also uses very selectively chosen statistics and presumed “research” findings;
11. PDF file with GP presentation by Dr Bratt, 2010, called ‘Ready, Steady, Crook, Are we killing our patients with kindness?’, in which Dr Bratt also compares benefit dependence to drug addiction (see pages 13, 20, 21 and 35), and again uses very selectively chosen statistics and supposed “research” findings, mostly coming from one known school of thought in the UK;
12. A PowerPoint presentation by Dr Bratt, titled ‘Pressure / No Pressure, Strategies for Pushy Patients’, see sheet/page 27 for his usual, biased comparison of benefit dependence to drug dependence!;
13. PDF file containing a scan copy of the signed original of this letter, dated 26 April 2013.
The first two attachments will not be published here, as they cover legal matters and details that can due to a settlement agreement not be made public. The third attachment has already been made available futher above (with the original complaint letter from late June 2012). The remaining attachments are listed below (apart from the last one):
MSD, Designated Doctor List, complete, as in August 2012
MSD, O.I.A. Request, Health + Disab.Coordinator, pos. descrptn, highlighted points, Feb. 2007
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007
MSD, Medical Appeal Board, Resource for Bd Members, manual, undated, rec’d Jan. 2012
Dr D. Bratt, MSD, ‘Harm lurks for benefit addicts’, article, NZ Doctor, 01.08.12, scan, 18.08.2012
Dr D. Bratt, MSD, PHA, critical ltr by reader T. Walker Nelson, NZ Doctor, 29.08.2012
Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too – June 2012
C1 1515 Bratt-Hawker, ‘Ready, Steady, Crook – Are we killing our patients with kindness’, present’n, 2010
As the reader of the above letter can see, the complainant in this matter had already made great efforts to inform himself about the way MSD and WINZ work, what processes were in place, and who he had to deal with (including those ones operating behind the scenes). Not only did he gather personal experiences during the MAB appeal process and then the preparation for a judicial review proceeding, with advice and guidance from a top lawyer, he obtained great insight into the way the system works, and he was also able to get further support from some committed advocates in the field. So equipped with all this, a good presentation was made to push for his case also before the HDC.
We do not need to elaborate much on the good, convincing arguments in his letter, they perfectly correspond with and prove what some of us have already written about on in various posts on this blog. Our friend has of course also been a valuable source of information, where we may have been in the dark, and there has been some productive exchange of information.
So with the above, he presented to the HDC not only his position on their truly appalling “decision”, he also presented them information about the Principal Health Advisor Dr Bratt, the fact that he has been “training” the WINZ ‘Designated Doctors’, that he has made bizarre claims, and that he is himself rather biased. The various information should show the HDC that serious questions should be asked re MSD’s and Work and Income’s treatment of beneficiaries with health conditions. Likening benefit dependence to “drug dependence” is in itself inappropriate conduct for a senior Health Advisor of the Ministry. Sufficient information is presented as evidence (see the attachments to his emails), and with challenging the view of the Commissioner, that the MAB would be the right place to have his concerns heard, he expected that all this must surely suffice to convince the HDC himself, to take another look at the complaint and what was presented with it.
Bear in mind though, at this stage the HDC has still withheld that first response by the ‘Designated Doctor’ that they received over half a year earlier (dated 20 Sept. 2012!).
PART 5 – THE COMPLAINANT’S REQUEST FOR OFFICIAL INFORMATION FROM THE HDC
But after sending that letter from 26 April 2013 the complainant remained highly concerned and suspicious about the Health and Disability Commissioner, and how his complaint had so far been treated. Hence he decided to send a further letter on 03 June 2013, asking for more specified information under the Official Information Act 1982. Previous negative experiences with the HDC Office, same with certain other official agencies and departments, had sharpened his senses. He wanted to make sure that he got all information and assurances that he could. An OIA request would also send the HDC a signal, that their conduct and actions were carefully being watched.
He was actually prompted to send such a further, more specified request, after receiving the following letter from the HDC Office (dated 28 May 2013):
HDC, Complaint, C12HDCXXXXX, Design. Dr, reply to OIA rqst, G. Rood, xx.05.2013
Georgina Rood, Legal Advisor, wrote in that response to a request for information (see bottom of the complainat’s letter from 26 April 2013):
“I have considered your request under the Official Information Act 1982 (the Act). To fully answer your request would require HDC to contact all current and former staff to question them on their relationship (if any) with Dr Xxxxxxx. I consider that this information cannot be made available without substantial collation or research by HDC staff.” She continued: “I therefore refuse your request under section 18 (f) of the Act.”
Here is the authentic transcript of the complainant’s Official Information Act request (dated 03 June 2013):
Xx Xxxxxxxxx Street
Phone: 09 xxx xxxx
The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
03 June 2013
Attention: The Health and Disability Commissioner
Re: Complaint C12HDCxxxxx; request according to sections 12 and 16 of the Official Information Act 1982
Dear Madam / dear Sir,
Thank you for your letter dated 28 May 2013, from your Legal Advisor Georgina Rood, which I received in response to a request under the Official Information Act 1982 (The Act), which I made at the end of a letter to your office, which was dated 26 April 2013 (see page 9 under “P.S.”).
Your office has refused to provide the information I sought under section 18 (f) of the Act, stating that the information cannot be made available without substantial collation or research by your office. Your concern was that you would have to contact all present and former staff members of your office and question them re the information I sought. Therefore I have decided to make a new request for a much more limited range and form of specified information.
Please provide me with a full disclosure of previous or present contacts (personal, professional or other), that any existing (and/or former) staff member of the ‘Office of the Health and Disability Commissioner’, who has been directly involved in the assessment, processing and investigation of complaint C12HDCxxxxx, has had with Dr Dxxxx Xxxxxxx, general practitioner at Xxxxxxxx Health Centre. Dr Xxxxxxx has also worked as a xxxxxxxxx xxxxxxx at Auckland University’s Medical School.
If detailed contacts cannot be established, I expect at least a list of the names and confirmed or denied contacts for the present – and possibly also former – staff members of your office, and whether they were professional, work related or private contacts, and during what time periods these were.
In order to more conveniently facilitate a process of establishing such previous or present contacts, a draft form has been attached, which you may consider to present to those staff members who may fall into the categories mentioned above. They would thus not need to be interviewed individually, and could simply fill out the form to the best of their knowledge and sign this internally for your verification.
Please supply the information in clearly readable form of photo-copies, as printouts or as a completed, signed summary list. I insist on the release of this information as it is in the public interest.
Yours sincerely and thankfully
Here is a link to a PDF containing the same, in perhaps more readable format:
HDC, Complaint, C12HDCXXXXX, Design. Dr, further O.I.A. rqst, anon, 03.06.13
PART 6 – THE HDC’S RESPONSE TO THE COMPLAINANT’S OFFICIAL INFORMATION ACT REQUEST
On 03 July 2013 the complainant received a response from the HDC’s Legal Advisor, Georgina Rood, which was dated 01 July and which gave answers to the complainant’s questions, whether any existing or former staff at the HDC Office, who had worked on his complaint, had any previous contact with the doctor he had complained about.
The response by HDC can be found under this link:
HDC, Complaint, C12HDCXXXXX, Design. dr, reply to OIA rqst, G. Rood, 01.07.2013
Georgina Rood wrote:
“I have considered your request under the Official Information Act 1982. My response to your request is set out below.”
“As a preliminary comment, please note that many of the staff who have been involved with your complaint file were only involved in peripheral ways, for example, by processing your incoming mail.
I have spoken directly with the staff members who have had contact with your complaint file, and who still work at HDC. They all confirm that they do not know Dr Xxxxxxx, and have had no contact with him other than through the HDC complaints process.
There are a small number of staff who had contact with your complaint file but who no longer work at HDC. I have decided to refuse your request for information in relation to these individuals under section 18(f) of the Official Information Act, as HDC does not hold any information about these individual’s knowledge of, or contact with, Dr Xxxxxxx. I have decided to withhold the names of the staff members who have had contact with your complaint file. These names are withheld under section 9(2)(a) of the Official Information Act, to protect the privacy of those individuals.
You may request a review of this decision from the Office of the Oubudsman.
Conflicts of interest
Please be assured that HDC has a robust process for managing conflicts of interest. Staff must declare any personal interests they have that may compromise (or appear to compromise) HDC’s impartiality. If an HDC staff member has a close personal relationship with a party involved in a particular complaint, they must disclose this to their manager so that the conflict can be managed appropriately.
That may have sounded re-assuring to an ordinary person, but while there may be no staff working at the HDC who may have had a conflict of interest of that type, the complainant maintained a very cautious approach towards the HDC and their Office’s staff.
PART 7 THE ASSOCIATE COMMISSIONER KATIE ELKIN’S “FINAL” RESPONSE AND DECISION – FROM 17 SEPT. 2013:
It did again take a few more months until the HDC Office responded again, answering to the letter of the complainant from 26 April, which had been sent both by email and by ordinary, registered post. On 17 Sept. 2013 the Health and Disability Commissioner’s ASSOCIATE COMMISSIONER Katie Elkin presented this “final decision” on this complaint matter:
Complaint: Dr Dxxxx Xxxxxxx
Our ref.: C12HDCxxxxx
Thank you for your letters dated 26 April 2013 and 30 April 2013. I apologise for the delay in responding to you. I understand that you are disappointed with the Deputy Commissioner’s decision to take no further action on your complaint.
On 22 July 2012 you made a complaint about a Work and Income New Zealand (WINZ) related medical assessment conducted by general practitioner, Dr Dxxxx Xxxxxxx on 17 June 2010. You raised the following concerns:
* You stated that Dr Xxxxxxx’s conduct during the examination was inappropriate: his line of questioning resembled an interrogation rather than an examination, he was unsympathetic, he did not give you sufficient opportunity to explain your health issues, did not appropriately consider the evidence you provided, he conducted the examination with a prejudicial mindset, and the examination took only 12 minutes.
* You stated that Dr Xxxxxxx’s report to WINZ contained inaccurate information, and that his assessment and report were not evidence based, unfair, unprofessional and biased. You state that WINZ relied on Dr Xxxxxxx’s report, while ignoring other relevant medical information.
* You stated that Dr Xxxxxxx is not appropriately qualified to conduct an assessment of a client with your particular medical conditions.
* You stated that Dr Xxxxxxx did not follow the guidelines set out in the Ministry of Social Development’s resource manual, “Guide for Designated Doctors”.
In assessing your complaint this Office requested a response and information from Dr Xxxxxxx. Dr Xxxxxxx provided an initial response on 20 September 2012. This Office contacted Dr Xxxxxxx to ask him to provide a further response to address certain issues raised in your complaint that Dr Xxxxxxx’s initial response had not covered. That additional response was received from Dr Xxxxxxx on 27 November 2012.
On 24 April 2013 the Deputy Commissioner wrote to inform you of her decision to take no further action on your complaint, pursuant to section 38(1) of the Health and Disability Commissioner Act 1994 (the Act).
You have since written to this Office expressing your dissatisfaction with the Deputy Commissioner’s decison. You have raised the following concerns:
* The Medical Appeal Board (the Board) was not an alternate appeal option for you, because:
– you believe that it is biased against claimants;
– it cannot and does not address issues that this Office should address (for example, Dr Xxxxxxx’s conduct); and
– you were not successful in your appeal to the Board, as the Deputy Commissioner appeared to believe.
* This Office did not put all your concerns to Dr Xxxxxxx.
* The Deputy Commissioner’s decision letter did not address all of your concerns.
* This Office did not consider all of the evidence you supplied in support of your complaint.
* Dr Xxxxxxx’s response was insufficient and only related to his “usual” conduct.
* This Office did not follow the principles of natural justice in considering your complaint.
We have carefully considered all the information provided and thoroughly reviewed the file relating to your complaint. Having considered all the circumstances of this case, I am of the view that the Deputy Commissioner’s decision to take no further action on your complaint remains appropriate.
In relation to your concern that this Office did not appropriately consider the information you supplied, I am satisfied that all relevant information has been considered during the assessment of your complaint.
You also expressed concern that only part of your complaint was put to Dr Xxxxxxx. I can assure you that a copy of your entire complaint was provided to Dr Xxxxxxx by this Office on 18 September 2012. I enclose a copy of that letter, and of Dr Xxxxxxx’s initial response, for your information.
I acknowledge that complaints that relate to non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction under the Act. However, I note that most of your concerns relate to the processes and policies of WINZ and of the Board. Such matters are outside the jurisdiction of this Office and are more appropriately dealt with by the agencies concerned, or through appeal rights to entities such as the High Court and the Ombudsman.
Even where jurisdiction can be established, the Commissioner and Deputy Commissioners have a number of options open to them in deciding how best to resolve such complaints. One such option is to take no further action pursuant to section 38 of the Act. The discretion under section 38 is wide and allows the Commissioner or Deputy Commissioners to decide to take no further action wherever they consider, in all circumstances, further action is unnecessary or inappropriate. I consider that the issues you raised which were within jurisdiction were considered by the Deputy Commissioner and were appropriately addressed in her decision.
Accordingly, your complaint will remain closed. Thank you for bringing your concerns to the Commissioner’s attention.
Legal and Strategic Relations
Copy of letter to Dr Xxxxxxx, 18 September 2012
Copy of Dr Xxxxxxx’s initial response, 20 September 2012″
Here is a scan copy contained in a PDF file with Katie Elkin’s “final” decision:
HDC complaint, WINZ Design. Dr, HDC’s decision confirmed, compl., K. Elkin, 17.09.2013
HDC complaint, WINZ Design. Dr, HDC’s decision confirmed, ltr, hilit, K. Elkin, 17.09.13
This letter from Katie Elkin, Associate Commissioner, and intriguingly in charge of “Legal and Strategic Relations” is one that deserves special attention. Apart from only marginally referring to the concerns of the complainant, by just summarising some of these, it simply reiterates what had been written in the earlier decision, and it is therefore just a repeat of their position. The apparent legal expert avoids bringing anything into discussion that the complainant raised in his letter from 26 April, particularly in regards to MSD’s and Work and Income’s Principal and Regional Health and Disability Advisors. There is no comment on the allegations that a ‘Designated Doctor’ like the one complained about may be biased or breaching the Code through misconduct, due to the “training” and guidance received from Dr Bratt.
Katie Elkin does in her response simply state that they “carefully considered all the information provided and thoroughly reviewed the file relating to your complaint”. She asserts: “I am satisfied that all relevant information has been considered during the assessment of your complaint.” She then refers to section 38 of the Health and Disability Commissioner Act and the wide discretion available for the Commissioners to take no action, “wherever they consider, in all the circumstances, further action is unnecessary or inappropriate.”
This is the particularly, smartly drafted provision in the statute, that is also used in the statutes that govern the functions and discretion in decision-making for the Privacy Commissioner and the Ombudsman. It is like a “magic open window of opportunity” for all these Officers of Parliament to take advantage of, when they decide, they cannot bother taking any action upon a complaint, for whatever reason. It enables them also to decide to not hold anyone to account, whom they rather would not wish to bother. And it is used generously all the time, without complainants having much of a chance to argue against their decisions. How would a complainant prove what information was really “relevant” or not, whether it had actually been “considered” or not, and how could one argue, whether anything was considered or not “in all the circumstances”? So the HDC’s other legal expert here, Ms Elkin, can simply state the decision that was made was “appropriate”.
And the following comment by the Commissioner can only be seen as a diversion from what the complaint was really about: “However, I note that most of your concerns relate to the processes and policies of WINZ and of the Board. Such matters are outside the jurisdiction of this Office and are more appropriately dealt with by the agencies concerned, or through appeal rights to entities such as the High Court and the Ombudsman.”
The complaint was not about WINZ and the Board, although issues with them were of course also being mentioned by the complainant, the issues raised with the HDC were about the Designated Doctor’s conduct.
Of particular importance is now of course also that first response from the ‘Designated Doctor’ from 20 Sept. 2012, that had the ‘Designated Doctor Report’ attached (from 17 June and 30 June 2010). Simply by comparing the report with the other medical information sent by the complainant to the HDC, the assessor and Commissioner(s) would see straight away, that there is a stark difference, and that the doctor complained about would indeed appear biased and also otherwise out of step. But the HDC appears to have shown NO interest in that. And only now did the complainant have a chance to read the letter from the ‘Designated Doctor’ from 20 Sept. 2012. The justified question is also, why was this left lying around for months, and NO action taken?
I do not need to explain, why the complainant was both extremely disappointed and indeed furious about this letter and “final decision”. He expressed his feelings, thoughts and concerns in a further letter, which will follow.
PART 8 – THE COMPLAINANT’S LETTER IN RESPONSE TO KATIE ELKIN’S “FINAL” DECISION
The complainant could not accept such a response and “final” decision as had been presented to him by Katie Elkin from the HDC. He realised that his complaint had not been assessed and decided on fairly and reasonably, and he sensed that the HDC was simply totally reluctant to involve himself or his Deputy or Associate Commissioners into a matter of a “third party medical assessor” making a controversial, flawed recommendation on a WINZ client with mental health and addiction issues. There appeared to be no other explanation for the Commissioner’s ignoring absolutely relevant facts, and to base a decision on rather irrelevant facts and inappropriate considerations, such as that a ‘Medical Appeals Board’ should be the body responsible for looking at an examining Designated Doctor’s unprofessional conduct, when it is only meant to look at medical and/or work ability related aspects.
So he did respond to the decision by Associate Commissioner Elkin by way of a new letter dated 22 September 2013. This is the transcript of his critical and challenging letter:
Xx Xxxxxxxxxx Street
Phone: 09 xxx xxxx
Mr Anthony Hill
The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
22 September 2013
Attention: Mr Anthony Hill – The Health and Disability Commissioner, and Katie Elkin – Associate Commissioner (Legal and Strategic Relations)
Re: Complaint C12HDCxxxxx (breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Dr Dxxxx Xxxxxxx); response to your final decision dated 17 Sept. 2013
Dear Health and Disability Commissioner, dear Katie Elkin
Upon receiving your letter dated 17 September, which was in response to my complaint to your office (dated 26 April this year) about an earlier decision by Deputy Health and Disability Commissioner Theo Baker (dated 24 April 2013), I am extremely shocked, dismayed and severely upset about your stated justifications to not further pursue the serious matter and fairly review that earlier decision.
It is to me an affront to be claiming, that the Medical Appeal Board that heard my appeal against a decision based on a totally flawed and biased assessment by Dr Dxxxx Xxxxxxx, was the appropriate institution to deal with the serious complaints and evidence I presented to your office.
A number of issues have simply not been addressed, although you claim that your office viewed all the relevant evidence presented to you. For instance nothing has been done to address the fact that Dr Xxxxxxx made an examination and assessment on a person with complex health conditions that do not fall under his scope of practice. Also has there been no action to address issues with Dr Xxxxxxx not abiding by the ‘Health Information Privacy Code 1994’ and the ‘Health (Retention of Health Information) Regulations 1996’. There has been ample documentary evidence presented to your office, showing that Dr Xxxxxxx breached the ‘Code of Health and Disability Services Consumer’s Rights’ and the ‘Code of Ethics for the New Zealand Medical Profession’.
I also presented you sufficient evidence showing the biased presentations that the Ministry of Social Development’s Principal Health Advisor Dr David Bratt is using to influence medical practitioners and other health professionals. All this should have raised the concerns of your office, as medical professionals are increasingly expected to compromise their codes of ethics in making assessments on sick and disabled, that rather meet the expectations of Work and Income than be truly independent.
It was explained to you what the role of a Medical Appeal Board is, and it is clear that it does not review many of the issues I raised with your office. Expecting persons suffering mental illness to use other legal remedies such as making claims through the courts is an unreasonable expectation, as lawyers are these days also very reluctant to take on work for persons like me on limited legal aid.
You have indeed destroyed the last tiny bit of trust and hope that I may still have had left in justice being applied in New Zealand! What I have experienced over the last few years has proved to me, that justice is in many cases just referred to as an empty word, as it is not being applied and honoured in many cases. Access to justice is made extremely difficult for persons with no or limited financial means, hence there is for very many affected no reasonable, manageable way to have disputes or grievances of the kinds I raised addressed. Even the Medical Appeal Board members are appointed by the Ministry of Social Development, so they are not as “independent” as they claim.
You leave me in a situation where I have to review all other means and ways to raise awareness for the issues I faced with a designated doctor, with the treatment dished out by Work and Income staff, and how you and your staff choose to distance yourself from responsibilities that you have and should honour. I have in the meantime learned about many other persons feeling not having been taken seriously by the Office of the Health and Disability Commissioner. Indeed it appears the small number of complaints that are ever addressed and reported on in the media is just a tiny tip of the iceberg, of what otherwise goes on in New Zealand. I am truly very shocked about what I have learned.
In the meantime designated doctors and the Ministry of Social Development are due to your inaction virtually encouraged to continue putting unacceptable pressures and expectations on sick and disabled, and also on medical and health professionals, to deliver outcomes they desire. So much for human rights and “justice” in New Zealand, I must say.
With thanks for your acknowledgment.
And here is a link to a PDF file copy of that letter by the complainant (with sensitive details crossed out):
PART 9 – THE COMPLAINANT’S REQUESTS UNDER THE OFFICIAL INFORMATION AND PRIVACY ACTS
Given the appalling “decisions” be the HDC, to take no action, and to not investigate the complaint any further, the complainant felt his worst fears had been proven to be true, namely that the HDC cannot be trusted when it comes to honestly, fairly and reasonably upholding the rights of consumers of health and disability services under the Code he is meant to administer and enforce. As he also followed other media reports about HDC decisions, he knew that there are many other complainants who felt the HDC let them down.
In order to try and hold the HDC to account, he filed yet another request under the OIA, and this time also under the Privacy Act 1993. He knew that the HDC was bound by both statutes, so had to make certain information available. On 07 October 2013 he sent the following request to the HDC Office:
Here is the full transcript of that letter requestion information under the OIA and Privacy Act:
XX Xxxxxxxxx Street
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
07 October 2013
Attention: The Health and Disability Commissioner
Re: Complaint C12HDCXXXXX: Requests according to sections 12 and 16 of the Official Information Act 1982 and under s 34 (and principle 6) of the Privacy Act 1993
Dear Madam / dear Sir,
Please receive my formal request for specified information under the Official Information Act 1982 and the Privacy Act 1993. I ask you to supply the below listed information in the form of good quality photo copies, system printouts or other easily readable documents, covering all of the information that was not yet covered and/or presented upon a previous request of this nature:
A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Dr Dxxxx Xxxxxxx and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference.
B. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s offices (both Auckland and Wellington), same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint.
C. I ask you furthermore for information on any contacts your office had in this matter with the Privacy Commissioner, with any staff members at the Ministry of Social Development (incl. Principal Health Advisor Dr Bratt), with Xxx Xxxxxx at ‘XxxXXXX Psychological Services’, with my GP, Dr Xxxxx Txxxxxxx, or with any other person. If any consultation or correspondence was conducted between your offices and these persons, I request authentic copies of this.
Please supply the information in clearly readable form as photo-copies of originals, system data printouts or other official types of records within the prescribed official response time.
Yours sincerely and thankfully
By clicking the following link you will find an easier readable copy of that letter (again with sensitive details crossed out):
PART 10: THE HDC’S LEGAL ADVISOR’S RESPONSE TO THE OIA AND PRIVACY ACT REQUESTS
On 04 Nov. 2013 the HDC Office presented the following reply to the complainant’s OIA and Privacy Act requests from 07 October 2013:
“Dear Mr Xxxxxxxx
Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDC0xxxx
Thank you for your letter of 7 October 2013 requesting certain information in relation to this complaint.
I have considered your request under the Privacy Act 1993 (the PA) and the Official Information Act 1982 (OIA). My responses to each of your requests are set out below.
All correspondence and any notes and transcripts of phone calls exchanged between Dr Dxxxxx Xxxxxxx and the Health and Disability Commissioner’s office in relation to this complaint.
I enclose the following documents:
● letter from HDC to Dr Xxxxxxx, dated 18 September 2012;
● letter from Dr Xxxxxxx to HDC, dated 20 September 2012;
● file note of phone call from HDC to Dr Xxxxxxx, dated 22 November 2012;
● letter from Dr Xxxxxxx to HDC, dated 22 November 2012;
● letter from HDC to Dr Xxxxxxx, dated 27 November 2012; and
● letter from HDC to Dr Xxxxxxx, dated 24 April 2013.
There is no record on file of any other communications between HDC and Dr Xxxxxxx in relation to this complaint.
I have removed Dr Xxxxxxx’s Medical Council registration number from those documents pursuant to section 9(2)(a) of the OIA, in order to protect his privacy.
All memos or other written communications exchanged between staff action in relation to this complaint within HDC’s offices (both Auckland and Wellington), including file records, notes of transcripts of internal phone calls or formal discussions
I enclose the following documents:
● ‘New Complaint (Triage)’ form, dated 30 July 2012;
● file note of a discussion between Senior Complaints Assessor, Axxxx Jxxxxx and Complaints Assessment Manager, Deborah O’Flaherty, dated 18 December 2012;
● forwarded email, dated 22 April 2013;
● forwarded email, dated 29 April 2013; and
● file note of a visit by you to HDC’s Auckland office, dated 20 September 2013.
I have removed the names of HDC staff members from the internal emails released to you, pursuant to section 9(2)(a) of the OIA; in order to protect the privacy of those individuals.
I have removed information from the ‘New Complaint (Triage)’ form pursuant to:
● section 9(2)(g)(i) of the OIA, in order to maintain the effective conduct of public affairs through the free and frank expression of opinions between HDC employees in the course of their duty; and
● section 9 (2)(a) of the OIA, in order to protect Dr Xxxxxxx’s privacy.
The following documents have been withheld in their entirety pursuant to section 9(2)(h) of the OIA, and section 29 (1)(f) of the PA, in order to maintain legal professional privilege:
● requests for legal advice from HDC staff to HDC’s legal team, and legal advice provided by members of that team;
● a file note prepared by a a member of HDC’s legal team, dated 1 July 2013; and
● communications between a member of HDC’s legal team and other HDC staff, dated 28 June 2013 and 1 July 2013.
There is no record on file of any other communications between HDC staff in relation to this complaint.
Information on any consultation or correspondence, in relation to this complaint, between HDC and:
● the Privacy Commissioner;
● the Ministry of Social Development (including Principal Health Advisor, Dr Bratt);
● Sxx Xxxxxx at XxxXXXX Psychological Services;
● General Practitioner Dr Xxxxx Txxxxxx; or
● any other person.
There is no record on file of contact between HDC and any of those parties in relation to this complaint. The records on file show that the only contact with external parties in relation to this complaint has been with you, and with Dr Xxxxxxx.
You may seek a review of this decision from the Office of the Ombudsman or the Privacy Commissioner.
Please note that pursuant to Principle 7 of the Privacy Act, you may request correction of your personal information.
And under this following link you can find an PDF file with the authentic scan copy of Georgina Rood’s letter from 04 Nov. 2013 (again with sensitive information whitened out for legal and privacy reasons):
HDC complaint, WINZ Design. Dr, HDC’s OIA + Priv. Act resp., hilit, anon, 04.11.13
Of the range of documents that were released, most have already been published above (i.e. correspondence from and to the HDC), and some others share little or no additional information. Only the following is worth to publish here also (with some details whitened out for legal and privacy reasons):
The ‘New Complaint (Triage)’ form (updated 30.07.12):
HDC, C12HDCXXXXX, Design. Dr, Breach of Code, HDC Triage form, anon, 22-30.07.2012
An internal record on a phone call by the ‘Desginated Doctor’ to HDC (fr. 22.11.12):
HDC, C12HDCXXXXX, Design. Dr, Code breach, ph. record, Des. Dr call, hilit, 09.49h, 22 Nov. 2012
An internal record of a discussion between the HDC’s Senior Assessor and Complaints Assessment Manager (from 18.12.12):
HDC, C12HDCXXXXX, Design. Dr, O.I.A. + Priv. Act rqst, internal disc. notes, 18.12.12
With such OIA and Privacy Act responses, also the complainant knew, that it is more important to look at what was withheld and refused as information, than what was actually made available. From the comments by the Legal Advisor it becomes totally clear, that the Commissioners and possibly other HDC staff sought and received legal advice. From the notes made on 18 December 2012 it becomes apparent that already then the HDC considered to take no action (as possible under section 38 of the Act). But the complaint was left lying in their office for further months, until Theo Baker would decide to let the Designated Doctor “off the hook”, and presented her decision to the complainant.
PART 11 – THE HDC’S TRULY FINAL DECISION, UPON SUPPOSED “REVIEWS” OF THE COMPLAINT
It took a few more weeks, until the complainant was then presented the very final “decision” by the HDC, again by Katie Elkin, in charge of ‘Legal and Strategic Relations’. Here is her letter dated 22 Nov. 2013, first with the authentic transcript (without the doctor’s name and sensitive details):
Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDCxxxxx
Thank you for your letter of 22 September 2013. I understand that you remain disappointed with the Deputy Commissioner’s decision on this complaint.
You remain of the opinion that certain aspects of your complaint, and the evidence you provided in support, were not appropriately considered by the Deputy Commissioner in reaching her decision to take no further action. In your most recent correspondence you point specifically to the following aspects of your complaint, which you consider have not been addressed:
* your contention that Dr Xxxxxxx did not have the relevant experience to assess you, and in doing so was acting outside his scope of practice;
* Dr Xxxxxxx’s compliance with the Health Information Privacy Code 1994 (the HIPC), and with the Health (Retention of Health Information) Regulations 1996 (the Regulations);
* the “bias” demonstrated by the Ministry of Social Development’s Principal Health Advisor; and
* the role of the Medical Appeals Board.
We have again reviewed your file in light of your most recent letter. I remain of the opinion that the Deputy Commissioner’s decision remains appropriate in the circumstances, and there is no basis to reopen your file.
As has been explained in previous correspondence, complaints that relate to a non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction. However the Commissioner and the Deputy Commissioners’ discretion to take no further action on a complaint is wide. I remain of the opinion that the discretion was exercised appropriately in this case, and that it was more appropriate for WINZ, as the third-party contracting Dr Xxxxxxx to provide an assessment, to address your concerns about his assessment of you.
As has also been explained previously, the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office.
Please also note that the Commissioner does not have jurisdiction to consider issues relating to information privacy. Your concerns about Dr Xxxxxxx’s compliance with the HIPC and the Regulations are therefore best addressed by the Office of the Privacy Commissioner. You can contact the Privacy Commissioner by phone on 0800 803 909, or via their website: http://www.privacy.org.nz.
While I understand that the Deputy Commissioner’s decision was not the outcome you had hoped for, I do not consider that your latest correspondence provides any basis to reconsider that decision.
I do not consider that further consideration of this complaint would be productive.
Legal and Strategic Relations
And here is a link to the PDF containing a scan copy of that letter to the complainant:
So we can see how the complainant was simply presented more of the same, that the HDC considers the Medical Appeals Board to be the more appropriate institution to deal with most issues, yes the HDC now consider that the complaint and concerns by the complainant are largely “out of scope” of their jurisdiction. Re other related complaint matters the complainant now even gets referred on to the Privacy Commissioner! And at the end the Associate Commissioner makes clear, that she considers further consideration of the complaint to not be productive.
In our humble view this is a complete, with legal “advice” achieved and backed “white-wash”! As we now know, this was actually proposed to not be dealt with by the HDC by the doctor himself (see his letters from 20 Sept. and 22 Nov. 2012), and it was adopted as the “solution” by the senior Assessor staff within the HDC already on 18 Dec. 2012, right before the Christmas and summer holiday break. And with her already preconceived “decision” Theo Baker did after the holidays try to rid herself of this case, with her legalistic, yet unconvincing arguments that no investigation was appropriate. As the complainant would not accept her explanations and position, the HDC was forced to use all available legal expertise to get rid of him, essentially basing their position on the comments by the Designated Doctor and questionable legal arguments.
The complainant gave up on the HDC, and would later take the matter further to the Office of the Ombudsmen. We endeavour to cover that with another post in the not too distant future.
PART 12 – CONCLUSIONS THAT CAN BE DRAWN FROM THE BIZARRE COMPLAINT HANDLING BY THE HDC
The handling of this complaint raises a number of very serious questions, concerns and issues. It may be a case where the particular aspects of the complaint could be seen by some as being somewhat “difficult” to assess and decide upon. That is, because it involves a person with complex mental health conditions. But in all honesty, we should be able to expect the HDC to treat all complaints the same and most certainly objectively, fairly and reasonably, by following due diligence and by applying natural justice principles. When looking at the way this matter has been handled, it can only be considered as having been assessed and decided on in an appalling manner.
The complainant presented honest, well articulated and well presented concerns about the apparent misconduct of a general practitioner (GP), acting as a ‘Designated Doctor’ for Work and Income NZ (WINZ). The GPs responsibilities were clearly to examine the person on aspects of his particular medical conditions, on the disability arising from such, and on resulting capacity or incapacity to work (see the then applicable old sections 44 and 54B of the Social Security Act 1964). He should have strictly adhered to the ‘Code of Health and Disability Services Consumers’ Rights’ mentioned under section 19 and 20 of the ‘Health and Disability Commissioner Act 1994 (HDC Act). He should also have respected and followed the Code of Ethics of the New Zealand Medical Profession, and he should as well have followed the ‘Guide for Designated Doctors’ that the Ministry of Social Development (MSD) has issued for ‘Designated Doctors’.
The Codes just mentioned, and even the ‘Guide’ provided by MSD, stipulate clear rules and guidelines to follow for a doctor like the one complained about, and by looking at the evidence presented to the HDC, the doctor did clearly not abide by the rules and guidelines. There was ample documentary evidence provided to the HDC to prove this, but instead, the HDC only picked one ‘Right’, being ‘Right 5 – Right to effective communication’, to ask the Designated Doctor to comment on. All other Rights that were also breached were left aside or ignored, and most of the evidence presented was apparently also considered as irrelevant, as otherwise the assessment and decision by the HDC would have been a different one.
It appears rather that the HDC, his Deputy and Associate Commissioner simply pick and choose what they may consider warranting a closer look at, based most probably on the potential for public anger that non-action may otherwise cause. So when it comes to a matter where there was no fatality, no serious physical injury, and no easily provable harm caused, such like psychological or emotional harm, as was mainly the result in this case, then the HDC appears likely to not bother investigating, or to take any other significant action.
The HDC will nevertheless make an initial assessment of the complaint, which is required and provided for under section 33 of the HDC Act. But already section 33(1)(b) provides the HDC with the option to decide, whether to take no action on a complaint.
And as the complainant was already known to the Commissioner and his Deputy Theo Baker, who had dealt also with an earlier complaint by him against a counsellor a year before, there appears to have been an extra reluctance, and thus a bias to not investigate this complaint. The complainant had already “dared” to take issue with the handling of his earlier complaint, which was just as valid as this complaint, but that did not go down well with the HDC.
That other complaint may later also be presented by us in a separate post, provided we have the time and resources to do so. It does though get mention in a decision on a complaint to the Office of Ombudsmen, where for peculiar reasons two complaints against the HDC were dealt with in the same process by that Office. That Ombudsman complaint matter is planned to be covered by a future post anyway. So readers following this blog will get some idea about what that complaint entailed, and where the HDC abysmally failed also.
In any case, the above post shows exactly what key role and powers the HDC holds as a “gate-keeper” for medical and disability related complaints, as all consumers of such services are under the ‘Health Practitioners Competence Assurance Act 2003’ expected to file their complaints first with the HDC, before the matter may be heard and dealt with by an authority such as the Medical Council. Section 64 of that Act states rather clearly, that when the responsible authority receives a complaint from an affected health consumer about an alleged conduct or practice of a health practitioner, then it must promptly forward that complaint to the HDC. That means any consumer of health and disability services must raise any problems that arose due to a breach of the Code first with the HDC. So if the Medical Council or any other responsible authority receives a complaint instead, that authority will forward the consumer’s complaint to the HDC anyway. The HDC does though later have the option to refer a complaint matter, where a breach of the Code has been established, either to the HDC’s Director of Proceedings, or directly to an authority like the Medical Council. But if NO breach of the Code has been established or identified by the HDC, and when no investigation takes place, then the consumer will have no means to take any complaint further, as her/his hands are tied, due to the statutory and regulatory provisions that cover these areas.
This gives the HDC an immense amount of power to decide which complaint gets investigated and may be referred to an authority like the Medical Council, and which won’t. And as section 38 of the Health and Disability Commissioner Act 1994 gives the HDC a very wide discretion for deciding to take no action or no further action, the consumer is left totally dependent on the HDC and their inclination to decide on her/his complaint. Section 38 (1) states the following:
“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.”
While subsection (2) of the HDC Act offers the HDC a range of matters to “consider”, subsection (3) states this: “(3) Subsection (2) does not detract from the generality of subsection (1).”
So the HDC can use a wide range of considerations to take no action or no further action, while “having regard to all the circumstances of the case”, and where such action or further action is “unnecessary” or “inappropriate”. That leaves the HDC with so much discretion and scope for his interpretation of matters and circumstances relating to a complaint case, when deciding what may warrant taking no action, it is easy for the HDC to liberally take advantage of the law. Some will say though, it does too easily allow for the potential abuse of discretion. And the generous provision for using discretion is exactly why only a small percentage of all complaints filed with the HDC are ever investigated. Advocacy and other forms of “complaint resolution”, same as “education”, are also preferred actions by the HDC. Hence medical and health practitioners do mostly have little to fear from the HDC, apart perhaps from some damage to their reputation, where their names will be revealed.
The only way a complainant can challenge the HDC’s decision is, if there are genuine questions or errors of law in the decision made, so a judicial review can be applied for. Alternatively a complaint to the Ombudsman is possible, but as experience has shown, the Ombudsman does also have a very limited scope to act, and at best can only make a recommendation, which is also not binding. And as the Ombudsman has also very much discretion to investigate or take no action, there is only a minimal chance of a complaint to the Ombudsman succeeding in any recommendation to the HDC. While section 14 of the Ombudsmen Act 1975 lists the functions of that Officer, and while it provides for the Ombudsman to investigate decisions and recommendations made by administrators covered by the Act, section 17 gives the Ombudsman much discretion to refuse to investigate a complaint.
Section 17 states:
“(1) An Ombudsman may—
(a) refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition the House of
Representatives, to which it would have been reasonable for the complainant to resort; or
(b) refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.
(2) Without limiting the generality of the powers conferred on Ombudsmen by this Act, it is hereby declared that an Ombudsman may in his discretion decide not to investigate, or, as
the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than
12 months before the complaint is received by the Ombudsman,
or if in his opinion—
(a) the subject matter of the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in
good faith; or
(c) the complainant has not a sufficient personal interest in the subject matter of the complaint.”
In this complaint the HDC has with their decision effectively blocked the complainant from taking any further action, as he had no financial means to afford legal representation, and as he would most likely not have succeeded with a judicial review, given the wide scope for discretion the HDC has under the HDC Act. The only alternative option available to him was to make a complaint to the Ombudsman, which later proved to be a path that was full of other hurdles, and that did then later not succeed anyway. The HDC was able to give primary consideration to the respondent doctor’s own presented statements, and by using his/her discretion, able to throw this complaint out, apparently considering other evidence from the complainant as “less relevant” (despite of compelling documentary evidence). Thus the HDC protected the senior GP, who has also had some past involvement with Auckland University, from any criticism and questioning of his professional conduct and competency.
Information contained in the doctor’s letter to the HDC from 20 September 2012, and also in his letter from 22 Nov. 2012, reveals though, that there appears to be some collaboration between MSD (WINZ) and the HDC. It appears that a form of agreement exists, where the HDC will not take any action on examiners or “third party assessors” working for WINZ, and simply refer matters back to WINZ or their Medical Appeals Board, to deal with. We have heard of similar arrangements or agreements existing between the HDC and ACC.
From this complaint we can summarise the following important points:
● the HDC picked only “Right 5” as an apparently easy or “soft” potential breach of the Code to follow up, all else was more or less dismissed as irrelevant or out of scope;
● the HDC did not consider all evidence as they should have, as the documented medical history and presentations made at the time of the examination, and being available during completion of the ‘Designated Doctor Report’, show very clear contrasts between that report, and on the other hand the complainant’s own doctor’s plus other specialists’ reports
● the HDC used defensive, legalistic arguments to excuse themselves for not needing to look at the greater picture, i.e. the breaches of conduct by the GP in relation to various codes and legal provisions
● the written responses by the complained about doctor reveal some collaboration between ‘Designated Doctors’, MSD and the HDC, which assists them to shift around legal accountability for their separated responsibilities and actions
● With their first decision, and for a long time into the complaints process, HDC withheld the GP’s original response (from 20 Spet. 2012) from the complainant, one must presume, because they feared that the reasons for their decision to not investigate the complaint further may be exposed
● The HDC very heavily relies on the extremely wide and generous provisions of section 38 of the HDC Act to use every opportunity to take no (further) action, and to thus keep complaints that are investigated at a minimum, which results also in keeping medical practitioners and other health professionals protected from further investigation by authorities such as the Medical Council
● When challenged about their unacceptable handling of complaints, HDC swiftly involve internal Legal Advisors to dismiss complainants’ concerns with legal arguments, to take no action, sending also the message, they will not consider matters any further
Although this particular, comprehensive complaint may be of a type that may differ from many other ones the HDC receives, it nevertheless shows how the HDC does act more generally, in the handling of many, if not most complaints.
Some people have over the times also raised concerns about the appointment of the HDC, and Wikipedia write the following on the present HDC:
“The Current Health and Disability Commissioner
Anthony Hill, Health and Disability Commissioner, began his term in July 2010. Mr Hill is committed to a consumer centred and engaged system, that is integrated in its care, focussed on safety and quality, and which encourages communication and learning.
Mr Hill came to the HDC after six years as a Deputy Director-General of Health. During that time he had oversight of the funding and performance of the District Health Boards (then $12b), and a range of health crown entities, including Pharmac, the New Zealand Blood Service, and the HDC. His regulatory functions included Medsafe, the National Radiation Laboratory, and HealthCert.
He has in-depth experience of the health and disability sectors, and began his 15-year tenure with the Ministry of Health as Chief Legal Advisor. Mr Hill has practised law in both private and public sectors. He holds bachelor’s degrees in Law and Commerce from the University of Canterbury and Master of Laws from the University of Virginia. “
Here is a link to the Wikipedia entry on the HDC:
So the present HDC has a long career in the health sector behind him, and is equipped with good, in-depth medico legal expertise and knows the government funded, and partly privately contracted services in New Zealand inside out. He is likely to have established many personal relationships with leading health board and other administrators and medical and health practitioners. The question arises, is a person who has over so many years played an integral role in running and administering the largely publicly funded health sector the right kind of appointment for the position of HDC, as he may perhaps be inclined to be too favourable towards “supporting” and protecting the vested interest parties in that sector? I leave it to the readers to make their own judgments on this.
Other concerns were expressed in an article in the ‘Otago Daily Times’ from 21 December 2011, where Stuart McLennan expressed his concerns about whether the independence of the HDC had been put into question by having certain potentially biased persons appointed to a panel that selected the suitable candidate. The article is found via the following link:
„Independence of commissioner paramount“
The following text extract speaks for itself:
“As with any quasi-judicial office, impartiality and independence is essential for the HDC. The commissioner must be seen to be independent of the interests of provider and consumer groups. The process for appointing the commissioner should, therefore, be uncontaminated by even a perception of bias.
It is therefore concerning that the interview panel that was convened in the selection of the current commissioner clearly had a perception of bias with the inclusion of health provider representatives.
The panel comprised the director-general of health, and three others nominated by Minister of Health Tony Ryall – Pat Seymour, a lay member of the Nursing Council of New Zealand who has previously been involved as a member of hospital and health boards, and who sits on the National Party’s board of directors; Pamela Jefferies, the former chief commissioner of the Human Rights Commission and a former member of Wairarapa DHB; Des Gorman, a doctor, of Health Workforce New Zealand and, at the time, head of the University of Auckland’s School of Medicine (Prof Gorman was also, at the time, a member of the Medical Protection Society [MPS] New Zealand Advisory Panel, a position that was declared).
Of particular concern is Prof Gorman’s involvement given his position on the MPS New Zealand panel at the time. The primary aim of the MPS is to protect and safeguard the professional reputations of individual members and the professions to which they belong, by assisting doctors with specific problems that arise from their clinical practice and lobbying for doctors’ interests in the regulatory environment. In the New Zealand context, this includes doctors who have a complaint to the HDC against them.”
And also when looking at the CV of Deputy Health and Disability Commissioner Theo Baker on her ‘Linked In’ profile, then we can also see that she has as a professional lawyer been sitting on both sides of the fence. When working in the UK in 2010 to 2011, she was working as a ‘Senior Lawyer’ for ‘Capsticks LLP’, a leading law firm that has in the past represented agencies and employers of the National Health Service (NHS) in the UK, for instance also in cases where patients made claims against doctors who allegedly committed medical misadventures or professional misconduct:
March 2010 – April 2011 (1 year 2 months)”
Apart from that Ms Baker has since 2000 made a “career” in a couple of senior roles at the Health and Disability Commissioner Office. She is like Mr Hill an expert in the law covering health and disability related matters, and she will be well familiar with relevant statutory and case law, thus having the knowledge to make decisions that will be hard for laypersons to challenge.
And there we have the major challenge for the ordinary complainant to the HDC, that is the lack of legal knowledge and expertise, to know how to present a complaint in an effective and convincing manner, which means, that most complainants will not have much of a leg to stand on, when their complaint is dismissed as deserving no action or no further action. Only with legal representation may someone have a chance to impress the HDC, and then it is still extremely hard to build a case, given the generous provisions for discretions, which we have already mentioned above.
In summary, the HDC appears to rather be serving as nothing much more than a monitoring “watchdog” that mostly takes no action, or at best makes recommendations for improved practices, for more training and consultation with health and disability consumers. Most of these “recommendations” resemble little more than “a slap on the wrist with a wet bus-ticket”, when directed at health professionals. It appears that the Office of the HDC was set up with the intention to just keep an eye on what areas may need to be looked at, to improve services in the health and disability sectors, rather than actually uphold and firmly enforce the rights of affected complainants. There have been very few cases where medical and health professionals faced serious professional consequences, by also being held to account by the Director of Proceedings, the Medical Council or other authorities.
What is needed is a radical reform of the Health and Disability Commissioner Act 1994, to introduce new, additional powers and a mandatory requirement for the HDC to take certain actions, and to impose some disciplinary sanctions on practitioners who breach the Code in at least certain serious, specified situations. Otherwise the HDC will continue to lose public respect and its reputation, which have already been seriously damaged in the eyes of an increasing number of persons that have had any dealings with the HDC Office.
I recommend that readers also read an earlier post on the issues that exist with the HDC, found under this link:
Updated on 11 October 2015
Any persons facing an examination by a WINZ ‘Designated Doctor’ or ACC Assessor would also be well advised to read the following document issued by the ‘NZ Medical Council’:
‘Non-treating doctors performing medical assessments of patients for third parties’ (2010)
Take note of paragraphs 4, 5, 8, 9, 10, 12, 15, 16 and 21. Of particular interest in relation to this post are also paragraphs 23 and 24!
ADDENDUM: WHERE IT ALL ENDED – A LONG JOURNEY SEEKING JUSTICE, ALL IN VAIN (added 02 December 2015):
The above complaint and how it had been handled, was presented to the Ombudsman, who also saw no reason to investigate. So the complainant took the matter further to the Office of the Auditor General (OAG), as part of a request for an inquiry and special audit of the Office of Ombudsmen. The OAG could not be bothered nor could after that the Speaker of Parliament, despite of the evident problems with under-funding and other issues at the HDC Office and Ombudsman’s Office.
Here are links to PDF documents showing how the journey ended for the complainant:
Speaker of Parliament, Complaint abt Ombudsman, HDC complt handling, anon., xx.05.15
If you have read all the above, you will know where what kinds of problems lie. Work has started on another post or two, that will reveal what happened on that journey, including how the Ombudsman also makes “bizarre” decisions. We hope to present more soon.