HOW THE HEALTH AND DISABILITY COMMISSIONER THROWS OUT VALID COMPLAINTS AND PROTECTS CODE BREACHING HEALTH PROFESSIONALS – A TRUE STORY
Published 28 March 2016
PART 1: INTRODUCTION
PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S
PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY
PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’
PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE
PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER
PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE
PART 8: CONCLUSION
PART 1: INTRODUCTION
When visiting your general practitioner, a hospital, a laboratory, a rehabilitation or counselling service, yes any health or disability services provider, you will most likely have noticed the prominent information posters and brochures, that tell you about your “rights” as a consumer, to take any complaints you may have to the so-called ‘Health and Disability Commissioner’ (HDC). What you read may sound and look very re-assuring, and you would trust, that we are as consumers well looked after here in New Zealand. In many less serious cases people who have various forms of grievances may indeed find some satisfactory resolution to the issues they have with a provider and their service. Generally consumers are advised to first discuss these with their provider, who may offer a remedy that keeps the consumer happy, or at least from taking a matter further. Others may get referred to an HDC advocate, who may briefly assist by offering guidance, advice or casual mediation, to resolve matters with a provider.
Only some people will ever be affected by more serious health or disability services issues. These may perhaps happen in the form of harm suffered due to significant mistakes made by health practitioners and service providers during treatment, or as a consequence of other forms of serious professional malpractice or misconduct. Such failures can happen due to negligence, poorly followed administrative or practice processes, and poor communication may also be an issue. There can also be cases where ethical conduct standards are breached. Often only then, when things get more serious, when significant physical, psychological or emotional harm is suffered, will affected people feel that they have a compelling reason to file a complaint with the Health and Disability Commissioner.
They will trust that their complaint will be taken seriously, that it will be assessed thoroughly, fairly and reasonably, and that the patient and consumer will be listened to. Some will consider that it is important to provide as much detail and information as possible, to have the Commissioner, his Deputy, his Associate and their office staff members feel enabled to carefully, competently and fairly assess and then investigate the matter, so that a deserved, just and acceptable resolution may be offered.
But it is often also then, when the patient will eventually find out, what the law actually says and means, in regards to the handling of any complaint under the so-called ‘Code of Health and Disability Services Consumers’ Rights’ (the Code), which the Health and Disability Commissioner is responsible to administer, promote, enforce and review. The Commissioner is working under the ‘Health and Disability Commissioner Act 1994’ (HDC Act), which sets out his role, functions and responsibilities. Only those well familiar with that Act, and also with other important legislation, such as the ‘Health Practitioners Competence Assurance Act 1993’, the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, same as the Health Information Privacy Code 1994’ (HIPC1994) and other relevant legislation, will understand the complexities of how the system operates.
There are provisions in the HDC Act that relate to, or interact with, provisions in various other statutes, such as the ‘Health Practitioners Competence Assurance Act 1993’. There are certain regulations, there is the ‘Code of Ethics for the New Zealand Medical Profession’, and there may even be other Codes by certain professional organisations or authorities, which apply to practitioners separately. Some Code of Ethics principles may overlap with the ‘Code of Health and Disability Services Consumers’ Rights’, but the HDC’s jurisdiction is restricted to applying ‘the Code’ – for which he is responsible. The ‘Purpose’ of the HDC Act states: “The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.”
This all sounds good, but certain statutory provisions will limit and impact on what the Commissioner can or must do, and the ‘HDC Act’ itself gives the Commissioner an incredibly wide scope for using discretion to take some action or to take no action, which few ordinary citizens really know about. Two “key ways” through which the HDC “promotes” and “protects” the rights of consumers, are by way of “resolving” complaints about infringements of rights, and through “education” of both consumers and providers (see Annual Report 2012/13, ‘2.1’ on page 7). But “resolving” may mean something very different to what the ordinary consumer may expect. “Complaints resolution” must rather be understood as an administrative concept, when looking at how the HDC and his Office staff deal with complaints, which is reflected in the Annual Reports.
It is often only towards the end of a potentially rather lengthy complaints process, that complainants may suddenly find, that what they face, is anything else but transparent, straight forward or fair and reasonable. In a fair number of cases, even rather serious ones, the Commissioner may suddenly inform the complainant, that no investigation is necessary, or that no further investigation is appropriate. One important provision in the HDC Act is section 38, which offers the Commissioner and his Deputies much discretion to decide whether to take any action on a complaint, or whether not. This gives the HDC much discretionary power in his crucial role that he plays as the de-facto “gatekeeper” in the health and disability complaints resolution system. The HDC usually decides whether a complaint may be investigated or not. We must bear in mind that all complaints made by consumers will inevitably end up before the HDC, before they may in very few cases ever end up before the Human Rights Review Tribunal, the Medical Council or any other registration authority (see section 64 ‘Health Practitioners Competence Assurance Act 2003’).
The various actions which the Commissioner can take, where a breach has been established, are also rather discretionary and offer a range of limited options. The HDC can mostly only recommend that certain courses of action should be taken by providers or authorities. Firstly section 34 enables the Commissioner to refer a complaint to the appropriate authority, or the Accident Compensation Corporation (ACC), the Director General of Health, or as it more often so happens, to the service provider to resolve. Section 36 enables the Commissioner to refer the complaint to a statutory officer (Human Rights Commissioner, the Chief Ombudsman or the Privacy Commissioner), and section 37 allows him to refer the matter to an advocate to resolve. The HDC Advocacy service has been expanded over years, to deal with more complaints, most of which go directly to that service branch within the Office, while some formal complaints made to the HDC will also end up there.
As already mentioned, section 38 allows the Commissioner to decide whether to take any action himself, or not, while “having regard to all the circumstances of the case”. That particular phrase is used in many response letters with decisions to take no further action. It can be seen as offering the HDC a very generous legalistic terminology to justify and defend, what he may have done and deemed relevant to have regard to in a complaint matter. With the help of their internal professional Legal Advisors, the HDC is usually well equipped to assert they have considered all that needed to be considered, and a consumer would usually need proper legal advice and representation to challenge decisions by the HDC, where that phrase is used. Section 38 may be used by the HDC to refuse to investigate a complaint, or to take no further action on an assessed complaint that may first have been investigated. But despite of no further action being taken, the HDC can and does in some cases still make certain recommendations to a practitioner or provider, probably more often so in less serious cases.
Section 40 allows the Commissioner to investigate a complaint, if the action is, or appears to him to be, in breach of the Code. Section 45 then gives the Commissioner the authority to “report” an “opinion” to a service provider, and to make “recommendations” as he sees fit. An opinion may also be “reported” to an authority, a professional body, the ACC or any other person he considers appropriate. A complaint may be made by him to any authority in respect of any person, and he may also refer a complaint to the so-called Director of Proceedings.
Recommendations that the HDC may make do commonly include asking the health practitioner or service provider to offer an apology, and he may recommend extra training or improved administrative or other treatment related processes to be put into place. Given the apparent limitations – or wide discretion – which the HDC Act offers the HDC for possible measures to resolve complaints, the consumer’s and complainant’s expectations will in at least many serious cases often be disappointed. The explanations given are often anything but re-assuring to the affected patient or his/her relatives, who will be left with no, or only ridiculously limited forms of “remedy” for the great harm he or she may have suffered.
The HDC’s website and the Office’s Annual Reports show some revealing complaint figures:
Year: New Complaints: Closed Complaints: Investigated Complaints:
2015 1,880 1,910 100
2014 1,784 1,901 115
2013 1,619 1,551 60
2012 1,564 1,380 44
2011 1,405 1,355 27
2010 1,573 1,524 51
2009 1,360 1,378 112
2008 1,292 1,295 100
Year: Code Breached: Referred to Director of Proceedings:
2015 70 14
2014 79 23
2013 42 16
2012 29 8
2011 11 4
2010 36 5
2009 72 15
2008 59 22
Links to HDC website and Annual Reports:
Annual Reports reveal “output targets”, tight budget and criteria limit investigations
What people will only learn by reading the Annual Reports of the HDC is the fact, that they have tight internal “output targets”, which means, they are expected to get 80 percent of complaints “resolved” within only 6 months, 95 percent within 12 months and 99 percent within two years. This does simply mean that a firm, tight preliminary assessment process takes place that involves the reading, analysis, categorisation, prioritisation and selection of complaints that may be deemed “serious enough” to look at more closely internally. In only very few cases will these be formally investigated. The HDC has revealed in at least one of his ‘Annual Reports’ that: “In recent years, investigations have increasingly been used for only the most serious matters such as allegations of sexual impropriety, and other behavior involving significant breaches of ethical and professional boundaries, and major lapses in standard of care” (see ‘Annual Report 2007-08’, page 5 under ‘Investigations’). Looking at the statistics published since then, the HDC has not departed from this approach. Given budget limits the Office has, staff would inevitably be under pressure to get most of the complaints out of the way within those target time frames, and as formal investigations, even just initial, less formal investigations, do take up a lot of time and resources, this must inevitably result in most complaints being moved on or out without being investigated. They will possibly fall under section 38 decisions, where it is decided that any action or further action would be “unnecessary” or “inappropriate”. Some will though also be referred back to the provider to resolve, or to other agencies/authorities, or alternatively to the advocacy services, who already have a high workload themselves to cope with. A fair number of complaints are also ruled as being outside of the Office’s jurisdiction.
The complaints that will actually be formally investigated make up only a tiny percentage of all complaints, and of these again only a proportion are then determined as having established a “breach” of the Code. Only between about 2 and 4 percent, seldom up to perhaps 9 percent, of all complaints tend to be “formally investigated”, going by the data for the last 8 or so years. And as the HDC Office has a limited budget to fund its operations, and while staff numbers have only marginally increased, the ever increasing complaint numbers will lead to an even tighter assessment criteria being used, to more prioritisation and reprioritisation of its internal case workload, so that less time and attention may be spent per processed complaint. It is of course Parliament, in fact rather the majority holding government, which ultimately holds the purse strings for the HDC Office. As the government does as primary health and disability services provider (e.g. through DHBs and their contracted providers) also have an interest in keeping complaints at a minimum, there is of course at least some interest to discourage complaints. This may be “helped” by capping funds for the HDC’s operation. Many disappointed complainants will share their negative experiences, which in turn may eventually also discourage others in the public to even bother making any complaints.
There are only bi-annual, random and limited surveys that the HDC conducts for his main complaints resolution service, to which often only half or even fewer of the approached complainants respond. As individual service providers and District Health Boards (DHBs) are also included in surveys, it is no wonder that the results of such surveys tend to be more positive as they would be if only complainants would be asked questions. Such sample surveys, to which only some of the surveyed persons or parties respond, can hardly be seen as truly representative. But even the HDC’s surveys tend to show less satisfaction among consumers. The survey published in the ‘Annual Report 2014-15’ showed that the HDC did not meet their target of 80 percent consumer and provider satisfaction, as only 65 percent appeared “satisfied” with their service (see page 38 under ‘Output 1 – Complaints management’). The ‘Annual Report 2012-13’ shows on page 39 under ‘Output Class 1: Complaints resolution’ that only 71 percent of only 255 respondents to that survey felt that overall the “complaint process” of the HDC was “fair”, and only 63 percent agreed it was “timely”. The ‘Annual Report 2008-09’ gave a better overview of an earlier survey, where only 67 percent of complainants (then listed separately from providers) felt their complaint was taken “seriously”, where only 62 percent of the same felt the complaint had been dealt with “fairly” and only 64 percent felt their complaint had been “dealt with impartially”. Only 57 percent of complainants understood the reasons for the decision and only 54 percent were “satisfied” with the “management” of their complaint. Such break-downs are no longer provided in the more recent reports. 229 complainants, 188 individual providers and 13 DHBs took part in that survey, representing a 47 percent response rate. On an ongoing basis about 33 percent of advocacy service users get surveyed monthly, but as that service deals with rather low level complaints, it is not surprising that consumer satisfaction is greater for that.
Going over the ‘Annual Reports’ of the HDC Office gives the observer the impression of reading an annual report of a commercial business or that of a corporation, with nice sounding language, phrases and terminology, with a strong emphasis on positive outcomes, repetitive mention of a “customer focus” and so forth. But this appears to rather be a further example of glossing up the less pleasant reality, to present it as something that it does not really look like.
Upon dissecting the information, and analysing the data in those reports, and what is published on the HDC website, it becomes apparent, that the HDC Office does rather look like a kind of “clearing house” for complaints, where they are simply examined, sorted and in large numbers passed on to providers, other agencies and authorities. And a high number of complaints are always dealt with as needing no or no further action, so that they are “closed” and leave a complainant with few or rather no alternatives to have grievances addressed. Not insignificant are complaints about matters that the HDC considers to be out of their jurisdiction. The Office does in its large part rather resemble a “transfer station”, where only a tiny number of complaints will stay to be looked at more closely and then get more or less formally investigated.
It seems to be nothing more than a “monitoring service” to help the government and providers keep an eye on where some problems may exist, and where some action may then be needed, to avoid further future problems to arise. It is through using received and gathered information, for the purpose of “education”, e.g. by presenting six monthly complaints review reports to DHBs and by making the odd “recommendations” to providers, that the Office seems to think it needs to act to bring “improvements”. That is besides of general “advocacy services” for consumers, and the now also integrated “systemic monitoring and advocacy service” of Mental Health and Addiction Services through the Mental Health Commissioner, which the HDC seems to be preoccupied with. Page 10 of the published ‘Annual Report 2015’ even showed that the position of “Mental Health Commissioner” was at that time “vacant”. So much for a “commitment” to that, I presume.
The remaining “complaints resolution” is focused on the small number of the most serious infringements that are found. The practitioners that are considered to have infringed the Code are though often let off lightly, with a kind of “warning” in the form of recommendations to improve and apologise, and the consumer is left with nothing much more than an apology and assurance that such things will be avoided in future. But it is in our view also not credible, that there are only such a small number of complaints, where infringements of the Code are established. It is not credible that of all the complaints made by consumers of health and disability services to the HDC, only so few involve breaches of the Code that deserve to be investigated. There must be a much higher number of breaches occurring, including a higher number of more serious infringements, yet they are never brought to the attention of the public, as they are “resolved” in the highly discretionary manner that the HDC operates under. This is not right and not acceptable, and we do deserve more transparency and more action, yes indeed law changes to the HDC Act. The law and the complaints system should provide for more mandatory action by the HDC that must be taken to also satisfy the needs of aggrieved customers, and where they may have deceased, their relatives and friends. There is a strong and urgent need for providing deserved, fair and reasonable remedies for consumers and their relatives that have been badly affected in so many cases.
Complaint matter covered in this post
This post looks at one perfect example of how some complainants are simply left with nothing short of an appallingly deficient “resolution system” that we have under the HDC. It shows us, that the HDC and his staff use every opportunity and legal provision that is available to them under the Act, and even outside of it, to off-load complaints as not deserving to be investigated, where they simply cannot be bothered. They do at times use bizarre explanations, or excuses, to justify their actions or inaction. When you read it you will realise that a probably ever increasing number of complainants are not at all getting much of an acceptable or even satisfactory “resolution” under the present supposed “watchdog”, who is after all a man who did for many years pursue a successful career as a senior administrator in the public health system. As a lawyer who worked for the Ministry of Health for 15 years, he will know many leading administrators and possibly even practitioners in the system, and has himself stated at the beginning of his appointment as HDC, that he will rather use “advocacy”, “education” and “mediation” as ways to resolve issues and to improve systems.
We are as consumers misled to believe we get a quality grievance resolution service, as implied in the nice, friendly worded, re-assuring brochures at for instance your doctor’s practice. In reality, we do merely have a kind of overloaded, overstretched monitoring service, where the Commissioner appears to pick and choose the cases he and his Deputies may consider valid enough to have a closer look at, upon his or his staff’s sometimes bizarre assessments. He may then take the actions he considers necessary on a case by case basis. If a complaint involves already caused fatal or major physical or mental harms, and has perhaps already been reported on in the community or media, then there is a chance of a proper investigation being conducted. If this is not the case, there seems to be only a slim chance of getting a practitioner and service provider held to account for any of their failures (i.e. breaches of the Code).
This case involves a person with complex mental health and addiction issues, so some may consider it as being less “representative” as other cases, for instance where physical injury or sickness are at the core of issues. But nevertheless, matters of processes not being appropriately followed, of bizarre excuses being made, of apparent bias or natural justice being ignored, these must all be of concern to persons who have to deal with the HDC at some time in their lives. This may potentially include us all. It must be noted too, that only from 2012 on, after the abolition of the separate Mental Health Commissioner’s Office, did the HDC Office have a Mental Health Commissioner as part of their team. That integrated Commissioner was then tasked with “monitoring” mental health and addiction services and with assisting through advocacy, of which we have so far only seen marginal effective use being made.
As stated above, and in earlier blog posts here, under the present HDC complaints “resolution” system, only a tiny percentage of all complaints received by the HDC are actually formally investigated (see the ‘Annual Reports’). To learn more about other various issues that a fair number of complainants have had with the HDC, read also the two older posts found under these links:
Those posts shine light on the Commissioner, his Deputy and Associate Commissioners, presented other true complaint cases, they explain the legal framework, offer a range of revealing, interesting media reports, show how some persons felt offended by the Commissioners’ decisions, and they also offer other in depth analysis and useful information.
PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S
The complainant, whose personal details and identity we have promised to withhold and protect, first filed a complaint with the HDC on 08 August 2011. Having received poor, questionable and ineffective counselling services provided by an alcohol and drug (A+D) counsellor (then still in training) from an established service provider. He stopped consulting the counsellor, after being refused a reasonable letter of support, which should have stated his health conditions and difficulties in coping with stress and life challenges. That kind of letter was crucial for the client to access other support, also to assist in effectively dealing with two legal issues that had arisen, which were threatening to throw him off course with his treatment and rehabilitation plan. The counsellor had at various times been ambiguous and contradicting himself about the scope and type of support service he could offer. While trying a couple of different approaches, to help the client address his life and addiction issues, he failed to maintain the trust of the patient, as he appeared to lack the necessary professional capability, competency, sufficient objectivity and true empathy. Only upon initial reluctance by staff of the provider was the client provided with his whole client file, which revealed how totally incorrect details had been entered by the counsellor, whom he felt he could no longer trust.
It became evident that the counsellor misinterpreted factual information shared with him during counselling sessions, and he also appeared to display a personal bias when working with the client. Some information was recorded correctly at first, and changed weeks or months later, to state very different, conflicting details, which were in part completely untrue. The counsellor also recorded false information on the medication intake of the client, ignored early signals for risks of self harm, and he was generally inconsistent and sloppy with record keeping. Some personal information, some of which was even untrue, had also been passed on to the complainant’s general practitioner (GP), through him to a WINZ “designated doctor” and ‘Cornwall House’ mental health services, without the knowledge of the complainant. When confronting the service provider’s Supervisor and Team Leader, mistakes that were made were not accepted, were excused with bizarre explanations, and an apology was refused. The conduct of a follow up counsellor, who had relied on a summary by the earlier counsellor of the same service, which also contained mistakes, was also unhelpful. She was as Supervisor also a senior colleague of the counsellor, from whom the client/complainant had sought a change.
In the end, upon reflection and careful analysis of his obtained whole file, and after this unprofessional, ineffective and unacceptable treatment by the service, the client decided to compile a detailed complaint letter. It did not only refer to many individual points at issue that he established, but it was also referenced to particular ‘Rights’ in the ‘Code of Health and Disability Services Consumers’ Rights’ that were breached. Also mentioned as being of relevance were a number of Principles and/or Core Values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ (DAPAANZ), which was the professional association with which the counsellor and follow-up counsellor of the client were registered.
The particular rights that the complainant saw breached under the ‘Code of Health and Disability Services Consumers’ Rights’ were:
Right to be treated with respect
(1) Every consumer has the right to be treated with respect.
(2) Every consumer has the right to have his or her privacy respected.
(3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori.
Right to dignity and independence
Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.
Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(3) Every consumer has the right to have services provided in a manner consistent with his or her needs.
(4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.
Right to effective communication
(1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided. Where necessary and reasonably practicable, this includes the right to a competent interpreter.
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.
Right to complain
(1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.
(5) Every provider must comply with all the other relevant rights in this Code when dealing with complaints.
We will not list the principles and core values under the DAPAANZ Code that were considered to also be breached, nor will we print out the whole complaint letter here, as we think it is best you download and read it in full, found via this link to a PDF copy of it:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, ltr, anon, 08.08.2011
Here is a link also to the DAPAANZ website and their Code (from 2005):
(Please note that any references in the complaint to the Board and Executive of DAPAANZ are historic, as membership of these have since changed!)
What we wish to stress is the fact, that we have hardly ever seen such a detailed and comprehensive, yet well presented complaint, which should definitely have deserved to be taken seriously by the HDC, but which was not, as we will report on in the following.
Concise summary of contents of the complainant’s initial letter to the HDC
The complainant did in his letter first present a summary of the particular Rights of the ‘Code of Health and Disability Services Consumers’ Rights’ that he considered had been breached. He also listed ‘Principles’ and ‘Core Values’ of the ‘Code of Ethics’ of the DAPAANZ that had been breached. He then gave a detailed ‘Background’ mentioning his alcohol dependency, his past treatment, explaining his various mental and other health conditions, and describing how he first sought support and then started working with clinicians and counsellors at the particular alcohol and drug (A+D) counselling service provider. He was honest about the challenges he had faced as an immigrant to this country, and how he encountered difficulties in working with some counsellors, particularly those who wanted him to stick to a rigid 12-steps treatment approach. He stated how many of the clinicians and counsellors he worked with were apparently still in some form of ongoing training and study. He explained how it was hard or even impossible to access supplementary mental health services that he needed, and which could perhaps treat his other conditions, for which the A+D service provider could not offer any expertise and treatment. The complainant also described how he was in 2007 referred to another counsellor, with whom he could not work, after already clearly stating his reservations to work with him from the outset. He made some early written complaints to the counselling service Manager, which were then at that stage treated more seriously.
The complainant explained how he tried twice to start new jobs, which did not work out, as his conditions had not been sufficiently and successfully treated. He felt pressed to try work, because he received very limited, insufficient support from Work and Income, which left him in constant financial difficulty. He had to take in boarders to supplement his meagre income, but as his health conditions made it difficult to live with other persons, this and some new issues that some flat-mates brought into his home only created yet more problems he struggled to cope with. Living in a downstairs unit in a small, old block of units, he also suffered from unbearable noise coming from a unit above, in which a family with kids lived. Only wooden floorboards separated upstairs from downstairs. He described a very unfavourable environment, which did anything but assist his treatment program and recovery.
During 2008 the complainant worked with a rather empathetic and supportive counsellor, and a moderate stabilisation of his situation occurred. But when that counsellor was then assigned to look after a special target group of persons needing A+D counselling, the complainant faced yet another change of counsellor. For a brief period in early 2009 he tried working with the Clinical Team Leader, but as that clinician preferred to record every session on audio, the client/complainant felt uncomfortable with that, upon which he was offered another counsellor, whom he agreed to work with, as there appeared to be no other alternative.
On the domestic front, external disturbances from a hostile neighbour living above and provoking him with excessive noise also impacted badly on his life. After an incident where he apparently used “threatening language” towards that neighbour causing severe noise, he was arrested and charged with “threatening behaviour”, which set off another round of new problems to deal with, because a conviction on such a relatively minor breach of the Summary Offences Act 1981 (see Section 21) was threatening the loss of his “clean slate” status, which he enjoyed after many years had passed after a small number of convictions for again rather minor offences in the mid to late 1980s.
Any return to future work would have been made much more difficult with such a loss of the “clean slate”. “Falling off the wagon” a number of times, another incident happened, where the complainant was in late 2009 also charged with “disorderly behaviour”, which led to the even greater likelihood of him losing his “clean slate”. It set off a downward spiral of relapsing into binge drinking and repeated bouts of depression and increased risk of self harm.
What the complainant would discover later in 2010, and more so during February 2011, after having received a copy of his complete client file, was that his counsellor would first describe the charges the complainant faced in late April correctly as being for “threatening behaviour”. Only three months later, in July 2009, he suddenly changed his records by repeatedly noting down that his client was up before the court for “assaulting his neighbour”. This was not what had happened, and this would be just one example of what the counsellor would wrongly record and misrepresent. Other charges had additional ones added to them, according to his notes, which never existed. And at one stage the complainant would even be suspected of looking for flatmates, while he “hopes to meet someone with whom he can develop an intimate relationship”. That was alleging his client was a kind of “predator”. One can only conclude that he was a hopeless record keeper, and that he possibly, yes more likely so, had a bias. Anything he heard from the client would be recorded in more negative terms, reflecting negatively on his client and being far from the truth. Also did the complainant find out later, that according to the counsellor’s notes, the client would not take any medication.
Only months later, after the first warning signals should have caused the counsellor at the service provider to take action, was his risk of self harm increased from “low” to “medium”. That only happened in mid December 2009, after suicidal ideations were already evident in mid to late April that year. The complainant was astonished and later dismayed at the counsellor’s apparent lack of empathy for him, trying to simply blame all the difficulties he faced on his drinking. He found it incomprehensible that a counsellor ignored all external, environmental factors that impacted on him, only worsening the situation he was in.
When being presented with a rather unhelpful letter of “support” from his counsellor on 23 December 2009, the complainant walked out of a counselling session 5 minutes prior to its conclusion, expressing disappointment and anger that he was not being given proper support in his extremely troubled and desperate situation. The letter mentioned nothing about his complex mental health and other issues he struggled with, and appeared very dismissive of his personal challenges in addressing alcohol abuse and addiction.
After that incident, and a troubled Christmas – New Year period between 2009 and 2010 the complainant sought another change of counsellor, as he could not work with the one he had, whom he no longer trusted, as he appeared biased, incompetent and unwilling to offer effective support. The only clinician who appeared to be prepared to continue working with him was the Clinical Supervisor, who was a female clinician and counsellor. Nevertheless the complainant gave it a go and engaged with her in a number of counselling sessions. Although having had some reservations towards working with her, he did at first find her more experienced and professional, but after a few weeks he felt that she displayed a rather firm, uncompromising, less sympathetic and at times even an apparently biased demeanour, which disturbed him. He also felt uncomfortable working primarily only on “emotions”, as this made him feel vulnerable, particularly while consulting a woman counsellor.
External stressors, disturbances and distractions continued, so counselling became more difficult due to that also. In mid 2010 the complainant was then also confronted with a medical re-examination of his health and benefit status, which led to a disastrous experience where a WINZ commissioned and paid assessor declared him “fit” to return to at least 20 hours of work per week within only three months. This was recommended and then decided on, despite of all of the complainant’s own doctor’s and specialist’s reports stressing a need for ongoing treatment, and confirming permanent disability and another 2 years of inability to work. Hence the complainant was sent off on a virtual roller coaster of emotions and distressed thoughts, and as the new female counsellor he saw did now also show a reluctance to offer any further effective help in the form of support letters, the client was finally thrown off course, and his counselling relationship swiftly deteriorated.
A so-called Medical Appeal Board hearing (set up by WINZ/MSD) led to another flawed, disastrous recommendation, giving qualified support to the WINZ doctor’s recommendation, and so the complainant faced being thrown off his invalid’s benefit and forced to look work within only a short time, while he was under extreme mental and physical stress, relapsing regularly and deteriorating rapidly. The A+D counselling service provider’s clinician’s advice was not helpful, as it seemed totally detached from reality and unrealistic to apply under the circumstances. What would have contributed to the counsellor adopting a less sympathetic approach during treatment must have been the fact, that the complainant was arrested and charged yet again in May 2010, when he was accused of “offensive behaviour” towards a salesperson while intoxicated. In deciding to fight the WINZ decision by going to the High Court and seeking a judicial review, the complainant did by late 2010 gradually disengage from counselling. It was impossible to continue with any treatment while having to spend endless hours every day to try and find a lawyer, to apply for civil legal aid, to prepare for a review and to also familiarise himself with the complex applicable law. That was on top of the ordinary day to day challenges the complainant faced and already struggled with, including dealing with the various charges he had to answer to.
The counsellor suggested he take a break, but that appeared to only upset the complainant, as he had by now also found out what had been put into his file by the counsellors he had worked with. After sending an upsetting email while in distress and a lapse, which was followed by a letter with proper explanations of his situation and position (in Dec. 2010), the complainant did in February 2011 receive a letter from the counsellor, telling him that the file would be closed. The reason given was not what he could agree to, as it was not true and representative of his experience, his views and his position on what was going on. The counsellor claimed it was the client who had “indicated” that he was “no longer requiring the support of” their service. But the complainant felt he could no longer trust her, and that the circumstances of his situation made it impossible to continue counselling with her. He had explained all the external pressures and challenges he was confronted with, and had reflected on the lack of support he had received from his service provider.
The complainant had under the Privacy Act 1993 and the Official Information Act 1982 already obtained information in the form of print-outs of his whole client file on 30 Sept. 2010, which was only reluctantly handed over to him by his counsellor (the Clinical Supervisor). Some information that he found was very disturbing, but it was not until February and March 2011, that the complainant had a clear enough mind-set and sufficient time to look more closely at his client file, in which he found a whole range of mistakes, of completely wrong, inaccurate information. The most numerous and most serious false and misleading entries, some being totally conflicting to earlier entries, had been made by the counsellor he had seen before the Clinical Supervisor. He realised also how “transfer summaries” contained some of these major mistakes and other wrong details, which were then treated as clinical information that his follow-up counsellor would have relied upon, before and during consultations he had with her.
The counsellor he saw during most of 2009 clearly appeared to have developed a bias against his client, and the follow-up counsellor did also reveal a level of bias, as the complainant would discover. The wrong information in the files would have led to serious misunderstandings and misinterpretation of what the complainant – as a client – would have confided to his counsellors. And anyone reading the details (including the Service Manager and others) would also have gotten a distorted impression of the complainant and client. It would then soon also become apparent that some false information had somehow ended up with the client’s GP, who made reference to it in a “host doctor report” the WINZ “designated doctor” who re-examined and interviewed him on 17 June 2010. Other wrong information was apparently also passed on to other providers, without proper, express consent by the client who would soon become the complainant to the HDC. Suddenly the counselling client and complainant could put together a puzzle, which explained why certain information that was totally incorrect or misrepresented had ended up with his GP, with a WINZ doctor, with Cornwall House, neither of whom he ever gave such information.
So the complainant confronted the service provider’s Clinical Team Leader re this and firstly asked for corrections, and then also an apology. A correction was later made by attaching the complainant’s comments to the file, but not by altering earlier entries, which were explained away with bizarre excuses about the counsellor having perhaps “misheard” something. Other details were “not remembered”, and an apology was bluntly refused. For unexplained reasons the Clinical Team Leader soon left to return to his home country overseas, after leaving his position. A follow up Team Leader also rejected to further comment on these matters and also refused an apology. In a letter from 08 June 2011 she used the following comments to justify her predecessor’s actions. She wrote that according to the former Clinical Team Leader there was not “any conclusive finding as to why the exact wording was used by the Clinician in the first instance”. The conversation with the counsellor, to which the complainant had referred to, was “too (far) back in the past”, and the former Clinical Team Leader “did not have any evidence that any negligence or ill-intent was present that would require an apology”. “He therefore regarded the matter as concluded”, she wrote.
This was then the final point where the complainant realised, he had to take this matter further and make a complaint to the Health and Disability Commissioner, as in his views, there were clearly a number of significant breaches made under the Code, during the provision of his health service in the form of counselling from a leading provider of A+D counselling services. The service was clearly intent on covering up the mistakes made, and absolutely refused any responsibility for their staff members for what happened.
The complainant continued his first complaint letter by listing about 19 individual points (see a) to s), pages 16 to 25) of complaint issues, which included details about wrong information put into his client file. He added a number of other “inaccuracies” on page 26 of his letter. Then, from page 26 on, he described how in his view each ‘Right’ under the Code had been breached by the actions or failures of the counsellor/s.
Some of the core issues and alleged ‘Rights’ breaches – in brief
The complainant felt the following rights were breached:
Right 1 – subsections (1) and (2)
The counsellor did not treat him with due respect, as he abused his trust, by putting false and misleading information (e.g. about an alleged “assault”) into the client’s clinical file, and by not offering needed, effective support. This appears to have been the result of a personal bias the counsellor developed over time.
The counsellor also failed to give respect to the suicidal ideations of the client (from as early as mid to late April 2009), and only put the client into the “medium” risk category for self-harm in mid December 2009, after another incident where “suicide” was mentioned. This put the client at great risk, which in itself is showing a lack of respect for what the vulnerable client shared in important information that should have been given more credit.
The privacy of the client was breached; because some of the false information (e.g. about an alleged “assault”) was passed on to the service provider’s psychiatrist (see report from 30.07.2010), and to the client’s GP without his knowledge and express consent, and then the GP also shared this information with the WINZ doctor (18.06.2010) and seems to also have shared this information with Cornwall House.
Author’s note: One would think that ‘Right 1’ requires a health professional to give due respect to what the client shares in information, and if in doubt to double check this. Also should privacy rights be maintained at all times – except where valid reasons exist for making exceptions to the rule.
The counsellor did not treat the client with the dignity he deserved, as he developed a bias against his client, and as he disregarded his client’s independence when the client was explaining his problematic life circumstances.
The client was not offered the needed, deserved trust and credit he deserved, as the counsellor clearly misinterpreted information provided to him. With an apparent judgmental mindset the counsellor made unjustified presumptions and recorded totally untrue information that would present the client in a very negative way, virtually as a “predator”.
A comment like: “He frequently advertises for flatmates whom he desires to be close friends with and also hopes to meet someone with whom he can develop an intimate relationship”, which does in no way reflect what the client claims he ever said or intended, is highly irresponsible and indicative of a lack of respect for the dignity of the client.
Author’s note: Such misrepresentation based on misunderstandings may reveal more about the questionable mindset of the counsellor than the client.
Right 4 – especially subsections (1), (2), (4) and (5)
The counsellor made a large number of inaccurate entries in the client’s file, some apparently as honest mistakes, but others hard to explain as such, some of which were rather serious.
The counsellor displayed a clear lack of diligence, care and skill, particularly in his qualitatively poor record keeping.
Failing to keep accurate and fair records does not meet the professional standard one must expect of a counsellor working in A+D treatment with vulnerable clients some of whom suffer from complex mental health issues, as it puts them at risk, when other professionals rely on false information in their files.
The client was put into disrepute, and professional and ethical standards were not met by the counsellor, who also appeared to have developed a bias against the client.
Potential risks were ignored or treated with negligence, through wrong record keeping and also ignoring privacy rules. Consequential harm was suffered, as other professionals accepted the false information as being truthful and reliable, and thus misunderstood and wrongly assessed the client in following examinations and discussions, which led to a worsening of the client’s life circumstances and his general mental and also physical well-being.
Right 5 – subsections (1) and (2)
The client’s open, honest and at times effective communication of his problems and challenges were either misunderstood, or intentionally wrongly judged, given a detectable bias by the counsellor, which means the counsellor made it impossible that Right 5 could be upheld in the given poor counselling relationship.
In hindsight, there was no safe environment for the client to communicate openly, honestly and effectively, as the counsellor appeared to abuse the trust of his client, by not recording information provided to him in an objective, truthful, correct and proper manner. The client will not have known this (prior to reading his own file), that his communications were not treated as they should have been, and thus not honoured.
Author’s note: One may add, that the counsellor himself may have had difficulty with communicating openly, honestly and effectively, as the complainant described him as at times giving conflicting information and being somewhat inconsistent or ambiguous.
The service provider accepted the formal complaints the client made on 13 and 15 April 2011, but the Clinical Team Leader did not accept the allegations made in the complaint, and hence never accepted any responsibility of their staff member/s or the service for the wrong entries. An apology was firmly refused.
All following complaints correspondence led to no resolution of the complaint matter. A final letter from 11 June 2011, with which the client sought further explanations and clarifications re his complaints, was never responded to by the service provider.
This displays a poor complaint handling, where explanations given in the defence of the counsellor/s were simply not convincing and nothing but an attempt to cover up irregularities that should never have been allowed to happen. The complaint was in the eyes of the complainant not addressed properly, fairly and professionally.
(You can read the details about the above in the complete complaint letter to the HDC!)
Comprehensive documented evidence provided with the complaint letter
The rather comprehensive complaint was supported by a substantial amount of evidence, some of which was apparently directly relevant, and the rest was only offering additional information, that could have assisted the HDC, should any questions have arisen, needing clarifications about the truthfulness and reliability of comments made by the complainant.
The attached documents were numbered and listed from 1 to 117 (see pages 37 to 40 of the letter). We understand that the complainant put so much effort into his correspondence, as he feared that his virtual run through hell with unhelpful state agencies, health service providers, at times incapable counsellors, and also the law enforcement and judicial officers he had to deal with, would simply not be believed without the provided detail and evidence.
In hindsight, I think it is fair to say, he misjudged the HDC Office staff, who were definitely anything but sympathetic and understanding, and felt overwhelmed by the 40 page complaint, with which they would not want anything to do.
Here are only some PDF files that contain full or parts of the crucial and relevant evidence that was sent to the HDC then, most of which will also be provided again via links further down in this post:
HDC Complaint, WDHB counsellor, complainant client file extract, 20.04. – 04.07.2009
HDC complaint, WDHB counsellor, complainant client file extract, 23.07.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 19 – 31.08.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 23.12.09 – 06.05.2010
HDC complaint, WDHB counsellor, provider psychiatrist report on complainant, anon, 27.08.08
HDC complaint, WDHB counsellor, provider psychiatrist’s 2nd assessmt on client, anon, 30.07.10
HDC complaint, WDHB counsellor, complainant’s own Dr report to Design. Dr, hilit, anon, 18.06.2010
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 19.06.08
HDC complaint, WDHB counsellor, complainant’s police bail form, mid-late April 2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 22.04.10
HDC, Complaint, C12HDCxxxxx, complainant, own doctor WINZ disab. cert., anon, 17.06.10
A fair few other evidence files were sent, but as we have no anonymised copies we will not present them. Also were some files only of secondary importance. Others are attached to this following post which covers another valid complaint the complainant made to HDC:
All complaint emails were confirmed as received by emails from the HDC Office
Upon having sent altogether 30 emails with a range of attachments with evidence, the complainant wrote back to the HDC, asking for a confirmation of his complaint emails, which was then provided by email in the late afternoon at 04:26 pm on 08 August 2011 by the HDC Office’s Executive Assistant Kerry Norman.
The following scan copies of emails sent and received on 08 Aug. 2011 confirm this:
HDC complaint, WDHB counsellor, complt email 30, copy, anon, hilit, 04.11h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, hillit, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, emails confrmd recd, 15.09h-16.46h, hilit, 08.08.11
PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY
After having gone to great lengths, to record and present every relevant complaint aspect, and having explained how each relevant ‘Right’ in the Code, same as the DAPAANZ ‘Principles’ and ‘Core Values’, had been breached by the one counsellor, and to a lesser degree by a follow-up counsellor, the complainant was surprised when on the following day on 09 August 2011 a staff member of the HDC phoned him. The young man appeared to be an Assessor.
At about 11:35 hours on that day, a young man, who we will call Mr Axxx Lxxxxx, phoned the complainant, claiming that his complaint could not be processed, as they could not open his emails, which were “freezing” their system. Somewhat astonished the complainant challenged the young man re that, stating that all emails were of ordinary size and type, with a few PDF attachments that were also of normal size. Any common email system would be able to receive and open them, he commented. He also informed the man that he had received a confirmation that the emails had all been received. The young staff member though was completely reluctant to accept the complainant’s view and position, and instead stubbornly insisted on a new, “summarised” complaint that should not be longer than two pages. The complainant explained that this was impossible to do, as there were complex matters involved, so he did not accept what the staff member said to him. In the end, he felt forced though, to consider the matter and get back to the HDC Office at a later stage.
It was not until 17 November 2015 that the HDC Office finally provided a phone log, which they then claimed had in error first been loaded onto another file that contained one generic, earlier complaint by the complainant from 2007(!). It had later been transferred to the “correct” file under C11HDCxxxxx in March 2012, when the mistake had been noted. Hence there was an “Edit” note at the bottom of the log referring to ‘06/03/2012, 11:39:56 a.m.’. This log entry had never been provided to the complainant upon any earlier Official Information Act 1982 (O.I.A.) or Privacy Act 1993 (P.A.) requests he had made.
The contents of that log entry has recently been disputed by the complainant, who raised issues re all this with the HDC Office, but while some comments by the staff member are apparently completely untrue, we present a scan copy of this log here:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11
As far as the complainant recalls and has on record, Mr. Axxx Lxxxxx never talked about administrative or time and resources issues with processing the large volume of the complaint, he only spoke about the technical issues where the emails were “freezing” their system.
So the HDC did basically refuse to accept the initial complaint sent in by the complainant, offering somewhat unbelievable and bizarre explanations about their computer system not being able to cope with the size and volume of the emails, which though appeared to have been received and internally passed on to an Assessment Manager without any problem.
Also did the Assessor note in his log entry that on one hand he told the complainant they could not open the emails, yet at the same time he noted (after insisting on a 2-page complaint and new email): “We would then assess it, and if necessary process the rest of the data he sent in”. So that clearly refers to the information he had then already received and before him. This reveals a clear contradiction that he made, which discredits him as HDC staff member and basically exposes him of having told the complainant lies!
The complainant is now of the view, that the phone log for 09 August 2011 was re-edited and changed from the original entry, which the HDC though dispute.
The second ‘Summary Complaint’, which makes references to already sent evidence
After much consideration, the complainant reluctantly prepared a ‘Summary Complaint’, as he felt the HDC staff member had left him no other option. So he concentrated on some main points that were at issue, and summarised the most important and relevant information that now covered 3 pages. Even with the greatest effort to reduce the complaint matter that he considered as absolutely essential to cover, it was impossible to condense this to only two A4 size pages of paper.
Here is an authentic transcript of the ‘Summary Complaint’ that was sent to the HDC by email on 10 August 2011:
“09 August 2011
Attention: The Health and Disability Commissioner
Re: Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ and the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association, Aotearoa-New Zealand’ (DAPAANZ)
Dear Madam / dear Sir,
Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, which I am presenting by way of this letter in a summarised form. This letter is in relation to a comprehensive complaint already sent to you by emails on 08 August 2011(with substantial relevant documentation).
At the same time I wish to state that this complaint also covers breaches of the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association Aotearoa-New Zealand’ (in short DAPAANZ).
Summary of aspects of counselling treatment and service at issue that require investigation:
As a person suffering from serious mental health conditions like alcohol dependency, xxxxxxxxx xxxxxxxxxx disorder (XXX), depression and anxiety, I have been in treatment with XXXX-Xxxx for addressing my alcohol issues from xx February 2008 onwards.
Following a year of some limited success in addressing my alcoholism (at XXXX-Xxxx) and also (insufficiently) XXX (at St Lukes Community Mental Health Centre), I was in early 2009 transferred to a new counsellor by the name of Mxxxxxx Sxxxxxxxx, who is a qualified clinician working as a counsellor.
From xx March until 23 December 2009 I received regular counselling treatment from Mxxxxxx Sxxxxxxxx, who made substantial efforts to gain my trust, but who was evidently struggling to provide me with the kind of support that I required while dealing with very serious life challenges that included problems with alcoholic relapses, poor housing, noise from neighbours, financial pressures, minimal support from state agencies and some incidents of a legal nature.
Mxxxxxx Sxxxxxxxx confided to me that he had no first hand health issues with alcohol himself, but that he had himself experience with another type of addictive behaviour, which over time appears to have brought him into working as a counsellor.
While I was going through repeated periods of serious crisis, Mxxxxxx Sxxxxxxxx failed to understand, appreciate, and appropriately act upon and/or offer urgently needed psychological, emotional and practical support, to assist me as his client in dealing with the very upsetting experiences and challenges I tried to cope with. He also failed to accept and address his own professional deficiencies by not offering me a more competent alternative for counselling of alcohol dependency.
As I would later (after receiving my client file upon two Official Information Act requests) discover, he furthermore repeatedly entered completely incorrect, inaccurate and even biased information into my client file, which included information that was consequently made available and passed on to other professionals working in mental health and other areas.
This obviously resulted in substantial misinterpretation, misunderstanding, wrong assessments and judgments made about my true health conditions, my personality, thoughts, emotions, and my motivations by other health professionals who relied upon this information.
By refusing to offer proper, practical support by stating known, identified core mental health details in a letter I requested in Dec. 2009, in order to present it in support of an application to access additional support for addressing very serious matters, that would without it lead to a major aggravation of stressors I already suffered from, Mxxxxxx Sxxxxxxxx did personally contribute to the resultant continued worsening of my general mental health situation.
It was his neglect, personal bias and other professional misconduct, combined with clear incompetence, which resulted in me experiencing a progressive break-down and deterioration in my voluntarily started treatment program, ultimately leading to me feeling abandoned and having to withdraw from involvement with a follow-up counsellor (Lxxxx Xxxxxx), who relied on the same incorrect information supplied by Mxxxxxx Sxxxxxxxx for the agreed transition to her as my new counsellor. She consequently also failed to understand the seriousness of issues I was dealing with.
To a lesser degree, but still in an equally concerning manner, Lxxxx Xxxxxx did also omit important information from my client file at XXXX-Xxxx, which happened during the period when our counselling relationship started to seriously deteriorate, due to my loss of trust in her as a fill-in counsellor for Mxxxxxx Sxxxxxxxx, and due to her not fully understanding issues (again due to being misinformed).
One specific item of information that Mxxxxxx Sxxxxxxxx misrepresented in his clinical notes, was the conversion of an earlier entry for a “criminal” charge laid against me for alleged “threatening behaviour” (commonly also known as “intimidation”) – into a supposed charge for “assault on a neighbour”. He also made wrong assertions that I was as a tenant “looking for flatmates with whom I could develop an intimate relationship”.
I never intended such, and it was only a specific incident in August 2009, where misunderstandings between a boarder and me, following an incident involving other persons, as well as due to her personal conduct, led to irritations that caused her to move out again on short notice. True information confided to M. Sxxxxxx was clearly changed by him into false, incorrect and inappropriate information, because he drew unjustified and unreasonable presumptions, and thus misrepresented details.
Phone messages indicating suicidal tendencies I had were not properly addressed by Mxxxxxx Sxxxxxxxx, and he kept me on a “low risk” category for months, before realising upon consulting other staff involved by 14 Dec. 2009, that I should be put into “medium risk for self-harm”. He failed to acknowledge that I had been taking certain medication for most of the time he counselled me.
Lxxxx Xxxxxx did also not enter very important details into my client file, which should have been noted down and reflected true events that occurred, where I did in email letters and phone messages express immense distress, disappointments, suicidal ideas, great misgivings about my treatment by certain government agencies, as well as the lacking understanding, appreciation, support and action by her and XXXX-Xxxx as the service provider.
One of the reasons given was that XXXX staff “would not reply to email correspondence”.
Requests for correction of the mistakes in my client file were not complied with satisfactorily, no assurance was given that mistakes had actually been corrected, and an apology was refused, despite of clear evidence that serious inaccuracies and mistakes were recorded/made.
There are numerous other details re incidents where inappropriate and insufficient service delivery, support and incorrect information are evident at XXXX-Xxxx, which have caused me to prepare a very comprehensive and lengthy complaint, which entails all aspects, details and relevant information that will definitely be required to establish the facts as they are.
After having assessed the complex issues involved myself over recent times, the following points rights and principles have definitely been breached by Mxxxxxx Sxxxxxxxx of XXXX-Xxxx at x Xxxxxxx Xxxxx in Xxxxxxxxx, Auckland. Some of those have apparently also been breached by Lxxxx Xxxxxx and the acting Clinical Team Leader/s at XXXX-Xxxx:
Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland during counselling received there from 2008 until 2010:
Right 1 – Right to be treated with respect
Right 3 – Right to dignity and independence
Right 4 – Right to services of an appropriate standard
Right 5 – Right to effective communication
Right 10 – Right to complain
Under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ the following principles and/or core values have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland:
1. Respect for the dignity of others
2. Beneficence (to do good) and nonmaleficence (to do no harm)
4. Confidentiality and privacy
5. Promotion of client autonomy
6. Honesty & Integrity
9. Professional conduct
In regards to the summarised complaint made here, I must stress, that it is essential to view the already supplied information, particularly the 40 page letter of complaint (in PDF format), as well as relevant excerpts of my clinical file at XXXX Xxxx, a so-called “host doctor report” by my own GP, Dr Xxxxx Txxxxxx (of 18.06.2010), a report by XxxXXXX Psychological Services, dated xx February 2011, as well as psychiatric assessments delivered by Dr Jxxx Bxxxx of XXXX. There are two versions of each assessment done (1 on 27.08.2008, 1 on 30.07.2010), as earlier ones contained mistakes, and the final ones were corrected versions, that still contained a few “minor” mistakes.
This complaint addresses very serious matters that occurred while consulting a leading provider in substance dependency and mental health services, and it is absolutely paramount that this complaint gets treated very seriously and fairly, because negligence, professional misconduct and the resulting developments that happened due to other providers relying on the wrong information recorded in my client file, did lead to major upset and substantial harm I suffered as a client of that service. My rights and interests as patient were not met and upheld.
Standards in mental health and addiction treatment services must at all times deserve to be upheld and enforced in the same way, as it is expected to be done in other health areas!
I expect that a thorough investigation into the conduct of Mxxxxxx Sxxxxxxxx, as well as of Lxxxx Xxxxxx, Dxxxx Fxxx and Dxxxxx Kxxx at XXXX-Xxxx.
Yours sincerely and thankfully
PLEASE SEE SELECTED FILES ATTACHED TO THE EMAIL(s) CARRYING THIS LETTER! “
A copy of the ‘Summary Complaint’ letter itself (dated 09 August 2011), and the 3 emails that carried it – plus a selected number of accompanying attachments with some important documented evidence – can be found here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, summary complt, anon, 09.08.2011
Email 1 from 0:31 am on 10 Aug. 2011 had the following PDF attachments:
1). A copy of the ‘Summary Complaint’ letter from 09 Aug. 2011,
2). Copies of the client’s file notes from the provider fr. 20.04.-25.06.09, pages 61-66,
3). Copies of the client’s file notes from the provider fr. 07.07.-03.08.09, pages 67-70.
Email 2 from 0:33 am on 10 Aug. 2011 had the following PDF attachments:
1). Copies of the client’s file notes from the provider fr. 15.01-06.05.10, pages 13-18 of 27,
2). Copy of the provider’s psychiatrist’s 1st assessment on the client fr. 27.08.08,
3). Copy of the provider’s psychiatrist’s partly corrected 1st assessment on the client fr. 27.08.08.
Email 3 from 0.34 am on 10 Aug. 2011 had the following PDF attachments:
1). Copy of the provider’s psychiatrist’s 2nd assessment on the client fr. 30.07.10,
2). Copy of the provider’s psychiatrist’s 2nd partly corrected assessment on the client fr. 30.07.10,
3). Copy of the complainant’s GP’s “host doctor report” to a WINZ Designated Doctor, containing mistakes, fr. 18.06.10,
4). Copy of a report and treatment plan from a psychological service provider for the complainant, sent to his GP on 13.10.10,
5). Copy of a consultation summary report from a psychological service provider on the complainant, sent to his GP, dated 04.02.11,
6). Copy of the complainant’s GP’s ‘Work Capacity Medical Certificate’ issued for WINZ, dated 21.07.11,
7). Copy of assessments by ‘St Luke’s Comm. Mental Health Services’ on the complainant, fr. 12.01.-13.02.06,
8). Copy of a ‘Disability Certificate’ on the complainant, for WINZ, issued by his GP, from 03.02.06.
So while the above links to the PDFs do not cover all of this, they cover most of that is relevant.
Now the complaint did at least cover the core issues, but the HDC would have needed to also look at the letter sent earlier, plus the evidence in attachments, that was relevant.
The complainant did make sure that he expected the HDC staff to look at the evidence he already sent with the initial complaint, as that would be essential to do. The fact that the HDC never got back for clarifications gave the complainant the impression that the HDC staff did have all the earlier emails and would look at what they deemed relevant.
Only by way of a brief letter dated 15 August 2011 would the HDC Office now confirm the receipt of the complaint. A copy of it is here:
HDC complaint, WDHB counsellor, HDC ltr confirming assessment, ltr, 15.08.2011
HDC complaint, WDHB counsellor, HDC ltr confirming assessmt, hilit, 15.08.2011
For a number of months the complainant would not hear anything back, so he trusted all was ok and would be looked at in a thorough manner.
PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’
While the complainant would not hear back for months, the HDC staff would in the meantime prepare file records that would only later come to the attention of the complainant as a result of Privacy Act and Official Information Act (O.I.A.) requests, which he would then make.
Firstly a record was created in a ‘New Complaint Triage file’, which would on one page show a date for a Triage meeting being ‘8/8/2011’ (see the top of the second page of the scan copy). But apart from that it would show a “complaint received” date being 11 August 2011. A summary of the complaint text would be entered, which the complainant would later find to also contain some inaccuracies and not being complete. See the following links to a copy of that file record, which the complainant would only receive much later on 26 March 2012, after O.I.A. and Privacy Act requests:
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, 11.08.2011
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, hilit, 11.08.2011
The staff would add further information to the newly created complaint file, in the form of what they call a ‘Complaint Summary’ form, with some basic core details about the complainant and his complaint. See the following links to a PDF with a scan copy of this:
HDC complaint, WDHB counsellor, Complaint Summary, anon, 12-16.08.2011
HDC complaint, WDHB counsellor, Complaint Summary, anon, hilit, 12-16.08.2011
Also would they prepare a letter dated 15 August 2011, which was then sent to the complainant, who would receive it a few days later. All it informed about was that an assessment would be made of the complaint, and that a response would be due within 6 weeks. A link to a scan copy of it was already provided above.
The HDC requests an “overview of care” response to the complaint from the WDHB
On 06 October 2011 the HDC (Axxx Lxxxxx, Complaints Assessor) would then write to the Chief Executive Officer of the Waitemata District Health Board (WDHB), Mr Dale Bramley, informing him of the received complaint, and seeking a response to the complaint, along with any relevant clinical notes and documentation. The letter was sent by the HDC to the WDHB, because the service provider was part of services offered by that Health Board. The letter also mentioned that: “Mr Xxxxxx’x complaint is of an unusual length and complexity, and, as such, rather than responding in detail to each individual issue raised, it may be helpful to instead provide a general overview of his care.”
The text of this letter, which would also only come to the attention of the complainant at a later stage, did actually indicate, that the HDC was in receipt not only of the summary complaint sent in on 10 August 2011, but also of the complete complaint letter from 08 August 2011, as comments were made re the “unusual length and complexity” of it. The summary complaint did not match such a description, so there can be no doubt that the HDC had kept at least some of the initially sent in complaint they received and had confirmed on 08 August 2011! A scan copy of this letter can be found via these links:
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview resp., 06.10.2011
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview, hilit, 06.10.11
Having received the complaint, the Service Manager of the provider agency would on 20 October phone the responsible staff member (the Complaints Assessor) at the HDC Office to seek some clarifications. He would at about 11:58 h ask about whether the HDC staff member actually meant that he requested “all relevant notes”. He apparently claimed that the client’s records were “extensive to the point that they would need to hire an extra employee to manage this task”. Upon this the staff member at HDC advised him that they certainly did not require this information, and that they only needed “a high level summary of his care/concerns and the clinical records necessary to support this”. The later obtained log entry from the complainant’s file covering this phone conversation would be made available later, and is found via these links:
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, 11.58h, 20.10.2011
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, hilit, 11.58h, 20.10.11
The WDHB’s prepared and later communicated response to the complaint matter
Some time after this the Chief Executive of the WDHB would write back to the HDC Office and present copies of the client’s file, which contained notes for counselling sessions attended from February 2008 to 23 December 2009, and also separate notes for sessions from January 2010 until early December 2010, plus notes re correspondence and communications between the client and the service provider into early 2011. The notes included the relevant ones already mentioned and listed above under ‘A copy of the ‘Summary Complaint’ letter itself..’
Here are links to a PDF showing handwritten notes the Service Manager left on a front page of the provided client notes on 25 October 2011:
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy anon, 25.10.2011
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy, hilit, 25.10.2011
He clearly states that notes for prior to 2008, a large volume of letters, MH (mental health service related) notes and psychiatric assessments were not included! This is important, as some of this would have shown a much clearer picture of the client’s medical conditions, treatment received and issues he experienced and also complained about over time.
The full response letter sent by the Chief Executive for WHDB to the HDC Assessor on 26 Oct. 2011, which included the client notes just mentioned, can be found via these links:
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, 26.10.2011
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, hilit, 26.10.11
As discussed between the HDC staff member Axxx Lxxxxx and the Service Manager at the provider as part of WDHB, the Chief Executive Officer, Mr Dale Bramley, did in that letter simply provide “a general overview of Mr Xxxxxx’x care”, rather than respond in detail to each issue raised. This must have been a convenient opportunity to stress such information that he deemed important of helpful (for WDHB and the provider), and to not present information that could show the provider in any bad light. The Chief Executive then gave a historic overview of the client’s and complainant’s engagement with the service provider from January 2006 to April 2011. It was mentioned that the client received 200 face to face outpatient treatment sessions. The client had concurrently been seen by Mental Health Services, for treatment of a disorder, depression and suicidal ideations, which were exacerbated when under the influence of alcohol, he would write. The client’s long term alcohol dependency issues treatment was described by him. The Chief Executive wrote that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years) did not prove effective to address his alcohol dependency”. Mr Bramley then wrote: “Mr Xxxxxx did not wish to pursue any of these options”.
The client’s two “reviews” (2008 and 2010) by a psychiatrist were mentioned, and what had been recommended to the client’s GP for medication to treat the mental disorder. On the second review that disorder was “not considered a significant problem at that time”.
The Chief Executive wrote that the client had on several occasions requested assistance in matters “that are clearly outside the scope of our service”. He mentioned examples relating to treatment the client had received from the New Zealand police and support he sought to ensure his retention of an allowance from WINZ. He then wrote: “Mr Xxxxxx objects if his expectations in such matters cannot be met”. Two formal complaints by the client were mentioned, the reply from the Service Manager to the most recent one being attached, and further reference was made to phone calls and letters in which the client allegedly held the health system, and staff and management of the service provider responsible “for his situation”.
The WDHB boss claimed that “all of the changes of XXXX clinicians described by Mr Xxxxxx were made at his request, except for one occasion”. He wrote the service continued to offer treatment, “within clear boundaries (e.g. dealing with one clinician only, restricting contact to regular appointments rather than phone calls and lengthy emails)”. He wrote: “This action was decided in consultation with the service psychiatrist and the clinical psychologist in order to ensure clear continuity of care but also to help with what the treating clinicians had considered Mr Xxxxxx’x at times offensive verbal and written comments to staff”.
Then the Chief Executive addressed the complaint letter to the HDC, and he believed that the client’s most recent “objections” were related to client file entries from a previous counsellor, whom he names as Mxxxxxx Sxxxxxxxx. The words “threatening and intimidating behaviour” were referred to in relation to an incident the client described during a counselling session. Mr Bramley wrote the counsellor had written down the word “assault” in his case notes instead of the client’s description of an incident, where he used the words “threatening and intimidating behaviour”. Dr Bramley then appeared to admit in his letter that the word “assault” had been used by the counsellor in a letter to the client’s GP, who then used that word in a letter in connection to a “benefit query” with WINZ. The Chief Executive of WDHB then writes, that when the client’s benefit was reduced, he attributed this to the wrongly used term “assault”, believing the benefit would not have been affected, had the correct term “threatening behaviour” been used. Hence the client complained about the use of the wrong term. In his letter Dr Bramley from the WDHB claims the counsellor was “unable to remember” if at the time the term “assault” had actually been used by the client, but “could not exclude that he might have misheard”.
Dr Bramley wrote that the service therefore agreed to add the client’s wording to the file entry (as per Health Information Privacy Code Rule 7, point 3). Then he wrote that the client misinterpreted this readiness by the service provider to add file corrections as an admission of incorrect records by the counsellor, and insisted on an apology. He continued stating: “The service expressed its regret for the sense of dissatisfaction Mr Xxxxxx experienced, and that the service he received left him feeling this way.” Dr Bramley concluded with the comment: “Subsequently (April 2011) Mr Xxxxxx decided to disengage from XXXX”. He also added: “XXXX remain open to re-engage with Mr Xxxxxx any time should he wish to address his alcohol problem”.
Apparently in order to show their service provider in the best of light, and on the other hand trying to discredit the complainant, only one reply letter was selectively presented to the HDC, in order to show how the complainant’s last written formal complaint to the service in question had been treated and decided. Neither was any information about the complainant’s letter to the provider presented, nor any other relevant information that would cast doubt on WDHB. This letter from the Service Manager, dated 30 June 2010, can be found via these links:
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complaint, 30.06.2010
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complt, hilit, 30.06.10
As the complainant has confided to us, and repeatedly re-assured us, the letter by Dr Bramley contains mistakes, inaccuracies, is misleading and is far from representing the true course and details of events and incidents, as he experienced them during the various periods of treatment he received from the service provider. The Chief Executive’s comments that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years), did not prove effective to address his alcohol dependency”, and that “Mr Xxxxxx did not wish to pursue any of these options”, were absurd. Why then had he sought their “service” for over 200 sessions? It clearly was a “white wash”. The contents of this letter would also not be known to the complainant for some time after it was sent to the HDC, as it was left lying in the HDC Office for many months, supposedly being “under review”.
In the meantime, and after all the above had occurred without the knowledge of the complainant, he was left waiting. As Christmas was approaching, he did then at about 11.50 or 11.55 h on 13 December 2011 decide to call the HDC Office, as nothing appeared to be happening. He spoke with a young female staff member at the Office and asked for an update on his complaint. As the staff member informed him that her colleague who had assessed the complaint was presently unavailable, he asked for that person to call him back.
Here are links to a PDF with a HDC log entry made after that call:
HDC complaint, WDHB counsellor, log entry, complainant ph. call, 11.55h, 13.12.2011
HDC complaint, WDHB counsellor, log, complainant ph. call, hilit, 11.55h, 13.12.2011
Later on that same day at about 14;51 h, the Complaint Assessor handling the complaint C11HDCxxxxx phoned the complainant and informed him, that the matter was still under review, and that he would likely hear back from the HDC Office in January 2012. See a PDF with a copy of the later received phone log for that time and date via this link:
HDC complaint, WDHB counsellor, log, Complaint Assessor’s ph. call, hilit, 14.51h, 13.12.11
The Deputy Health and Disability Commissioner’s “decision” on the complaint
Christmas 2011 came and passed, so did January 2012, and there was still no response from the HDC Office. It would finally be on 25 February 2012, when the complainant received a decision letter from the HDC, dated 24 February 2012, which he read in total disbelief. Theo Baker, Deputy Health and Disability Commissioner, listed only five bullet points that summarised the whole complaint, and then referred to a response their Office received from the Chief Executive of the WDHB (dated 26 Oct. 2011), giving an “overview” of the “care” provided to the complainant and former service client.
The bullet points listed under ‘Your complaint’ and following the sentence “You wrote to the Commissioner’s office and advised that your counsellor Mr Sxxxxxxx” – were the following:
“● Refused to acknowledge and address his professional deficiencies.
● Failed to offer you “a more competent alternative for counselling of alcohol dependency”.
● Failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Incorrectly categorised you as “low risk for self harm”.
● Entered incorrect and biased details in your records, resulting in misinterpretation and inaccurate assessments of your condition by other health professionals who relied on his observations.”
Ms Baker then added: “You are also concerned that locum counsellor, Lxxxx Xxxxxx, failed to document important details relating to your misgivings about your treatment and suicidal ideation on your client file. You advised that requests for errors in your client file to be corrected had not been met by XXXX Xxxx.”
Under the heading ‘Response from Waitemata District Health Board’ she then quoted somewhat selectively from Dr Bramley’s letter, which she herself also described as an “overview of the care provided” to the client and complainant. She stressed that except for one case, all changes in the client’s treating clinician had been requested by himself. She accepted the Chief Executive’s explanation that the treatment offered was “within clear boundaries”. She also accepted his comments that the service provider was “open to re-engage” with the client at any time, should he wish to seek treatment. She apparently fully accepted the Chief Executives explanations for how the use of the term “assault” by the counsellor happened. She also simply accepted his words for how the complainant’s words re the incident had been added to the client file. She wrote also: “Dr Bramley notes that this amendment was not an admission of an inaccurate record”.
And under ‘My decision’ Theo Baker then explained that after her assessment she had decided “that further investigation is unnecessary”. She claimed she had “fully reviewed” WDHB’s response and the provided copies of the complainant’s clinical notes. She wrote that it seemed to her that the DHB had handled the incident where potentially inaccurate information was added to the client’s clinical notes “in an appropriate manner”. She was “unable to discern any such omissions”, where relevant information had not been entered into the file, and she was “satisfied” that the service provider was continuing to offer the complainant “with care of an appropriate standard”. She suggested the complainant and former service client contact the Privacy Commissioner, should he have other concerns about inaccurate information in his file. Finally acknowledging “a wide range of concerns” that the complainant had raised, she wrote, that “despite every effort being made, it is not always possible for service providers to provide counselling services that meet every need of every client”. She closed off with the words: “Based on my examination of your complaint, and the response provided by Dr Bramley, I am confident that XXXX Xxxx is committed to providing you with consistent and dependable support. I trust this process has helped to resolve some of your concerns”.
Attached to this “decision” letter was the response received from Dr Bramley, Chief Executive of WDHB, dated 26 October 2011, which we already offered via a link further above. The full response by Theo Baker from 24 February 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC’s initial decision, complete, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial decision, compl., hilit, T. Baker, 24.02.12
She would at the same time send a letter with her decision to the WDHB, found via these links:
HDC complaint, WDHB counsellor, HDC’s initial dec. ltr to WDHB, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial dec. to WDHB, T. Baker, hilit, 24.02.12
The complainant would later on receive a copy of it in response to an O.I.A. and Privacy Act request.
O.I.A. and Privacy Act requests to the HDC, and response received in March 2012
The complainant was rather shocked and also furious at this dismissive decision that had been sent to him. He now mistrusted the HDC Office and their Commissioners and staff, and he now remembered again, how the Complaints Assessor had on 09 August 2011 told him his unconvincing story that the full complaint sent by 30 emails could not be opened, as it allegedly “froze” their system. He had thought this was a weak, unconvincing excuse, as the staff member may not have wanted to process a comprehensive complaint. He remembered how he was forced to re-submit a much abbreviated complaint. Although he had expected the HDC would also still look at the earlier sent complete complaint letter and any relevant evidence sent with it, he now started to wonder what had really happened.
Hence he soon prepared a request under the O.I.A. and the Privacy Act 1993, which he sent of f on or shortly after 04 March 2012. He asked for an authentic copy of the letter the Complaints Assessor had sent to WDHB on 06 Oct. 2011. He also requested any notes, transcripts of phone calls made between WDHB and the HDC Office, as well as emails that had been exchanged. Photo copies or printouts of all memos or other written communications exchanged and communicated between staff at the HDC acting in relation to this complaint, same as notes or transcripts of internal phone calls or formal discussions were asked for.
The following link shows a PDF file with the authentic text of that request from 04 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, O.I.A. + Priv. Act rqst, anon, 04.03.2012
On 26 March 2012 the complainant received a response to his requests (see above), which was dated 23 March 2012 and signed by Lydia Wadsworth, Legal Advisor to the HDC. Enclosed in her response were the following documents, as quoted:
“● Letter from Complaints Assessor Axxx Lxxxxx to Waitemata District Health Board dated 06 October 2011.
● Complaint summary printed 27 February 2012 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act).
● Letter from Deputy Health and Disability Commissioner Theo Baker to Waitemata District Health Board dated 24 February 2012.
● Record of telephone conversation between you and Mr Lxxxxx dated 13 December 2011.
● Record of telephone conversation between you and Complaints Assessor Jxxx Fxxxx dated 13 December 2011.
● Letter from Waitemata District Health Board to Mr Lxxxxx dated 26 October 2011, and your clinical notes as enclosed with that letter.
● Record of telephone conversation between Mr Lxxxxx and Waitemata District Health Board 20 October 2011.
● Administrative record of letter sent to you on 15 August 2011.
● The Complaints Assessment Triage Form.
● Complaint summary printed 16 August 2011 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act). …….”
The following links will load a PDF with the authentic copy of that O.I.A. and Privacy Act response from 23 March 2012:
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, 23.03.2012
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, hilit, 23.03.12
What would also only come to the attention of the complainant much later in the process, once further O.I.A. and Privacy Act requests would be filed and responded to by the HDC, is the fact, that on 27 Feb. 2012 the ‘Complaints Summary File’ would internally be updated. Here is a link to a scan copy of that updated file:
HDC complaint, WDHB counsellor, Complaint Summary, updated, hilit, 27.02.2012
The complainant’s response to Theo Baker’s first “decision”
After having received the completely unacceptable, in view of the complainant appalling decision by Theo Baker, the complainant prepared a response letter to the Commissioner. This 17-page response, dated 27 March 2012, was sent off by email in the early morning of 28 March 2012, and asked for re-assessment of his whole complaint. He expressed that his complaint had not been dealt with properly, had not been taken serious, and had resulted in a completely biased, unfair and unreasonable “white wash”. He expected that all documentation and correspondence should be thoroughly examined, in order to give a properly researched, correct reply in due course. He also expected that each individual breach of rights under the ‘Code of Health and Disability Services Consumer Rights’ and of the principles/core values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association of Aotearoa – New Zealand’ should be replied to separately.
In the beginning of the letter the complainant gave a chronological description of how he sent in his first complaint on 08 August 2011, and then a summary of his complaint (dated 09 August) on 10 August 2011. He critically explained how the Complaints Assessor Axxx Lxxxxxx did phone him on 09 August to claim unconvincingly that they could not download and open the sent emails, as that they were “freezing” their system. Hence they could not be processed. He criticised how the HDC staff member stubbornly insisted on a summary complaint of only two pages having to be sent in. This was not possible given the comprehensive course of developments and details, the complainant stated. He wrote that he had only reluctantly sent in a summary complaint, so the HDC staff would look at and analyse his complaint. Also did he mention, that in order to avoid any misunderstandings, and to ensure that ALL relevant information would be taken into consideration, he had in his summary complaint insisted on the earlier sent correspondence (with attachments) from 08 August 2011 to also be considered in the whole context of the complaint matter.
He then gave a summary of the correspondence that he had so far received from the HDC Office, upon sending in his complaint letters and attachments. He also mentioned the phone calls made and received on 13 December 2011.
Re the Deputy HDC’s decision dated 24 February 2012 he expressed his absolute astonishment and greatest disappointment with the explanations given in that letter. He criticised how the Deputy HDC had primarily – or almost exclusively – only focused on the one incident where the XXXX counsellor had added “potentially inaccurate information” to his client file. This was in relation to the recording of an “assault” (that never happened) rather than the earlier correctly recorded “threatening” or “intimidating behaviour”.
He criticised that the Commissioner had otherwise not addressed any of the other issues that were raised re a fair number of wrong file entries that had been made by the counsellor. The complainant expressed his view that a thorough review of all the information he had supplied cannot have taken place. The complainant described (based on detailed file notes) that the counsellor had on 20 April 2009 noted down the correct information, making a reference to a charge for “threatening behaviour”. He also quoted notes from that same entry that referred to “thinking” or “threatening suicide”. Then he described how on 23 July 2009 the same incident was referred to with noting down “assault against his ex neighbour”, and also with “disorderly behaviour”. The complainant presented other information, then proving that it was 100 percent clear that the counsellor’s use of the word “assault” could never have occurred due to a “misunderstanding”, as he had earlier noted down the correct wording that the client had used. The complainant made clear that the whole matter of that incident where there had been a dispute with a neighbour had been thrown out of the court in January 2010.
Then the complainant explained how the same counsellor did at various other times also record other wrong information in his client file, including in a “Transfer Summary” under “XXXX Follow UP” on page 17 of a 27-page computer printout for 03 February 2010. He referred to a false, misleading file entry that read: “He frequently advertises for flatmates whom he desires to be close friends with and he also hopes to meet someone with whom he can develop an intimate relationship” (see the link to scan copy of the relevant client file offered further above, for notes for 16.37h on 03 Feb. 2010). The complainant did not quote that incorrect, misleading, slandering entry in its exact words in his letter from 27 March 2012.
That “Transfer Summary” would have been read by the follow-up counsellor Lxxxx Xxxxxx, who the complainant (and then client of the service) would see from February 2010 onwards. Hence the wrong and biased information in that file entry would have shown the complainant in very negative light, he argued.
In his letter from 27 March 2012 the complainant went to great lengths to explain and correct many details to the HDC, which the Deputy HDC had clearly not known, or understood, or not even read and examined. The complainant concluded that she failed in her duty as Commissioner by having relied on an incompetent Assessor, which would raise serious questions. He also found it highly irresponsible that the Assessor had in his letter to the Chief Executive of the WDHB from 06 October 2011 suggested that they “should not respond in detail”. The suggestion to only give a “general overview” of the client’s care would have opened all possible back doors for WDHB and the provider to avoid answering to any specific complaints. He also described how the Assessor let the Service Manager off the hook, when asked in a phone call on 20 October 2011 what the HDC would require in the way of records. Requesting only a “high level summary” about the client’s care meant that no substantial emphasis or pressure had been placed on WDHB to be held accountable for the issues that were raised.
The contents of the letter from the Chief Executive, Dr Dale Bramley, the complainant described as unacceptable, misleading, at least in parts incorrect, dismissive and completely inappropriate as a response. He listed, quoted and dissected points at issue in the Chief Executives response to the HDC. He pointed out clear mistakes, and also attempts to mislead and cover up failures and inappropriate conduct by staff by the service provider’s Service Manager. The complainant also explained how endless external issues that he had faced had impacted on his treatment. Such disturbing and upsetting influences had not been understood, had been ignored or dismissed by the service provider’s counselling staff and the Service Manager. His trust in his counsellor had been abused, the complainant asserted. He also remarked that counselling staff were apparently instructed not to assist in such “matters that are clearly outside the scope” of their “service”. This was unprofessional and unreasonable to ignore such impacting issues, the complainant commented. He was very critical of a letter he had requested from his counsellor, which was though never provided in the form he had expected, as it only covered unhelpful details about past and present treatment. More information had been refused under the wrong presumption the client only wanted a letter to get legal aid.
Also did the complainant explain that he had at times contacted the service in a very distressed (and alcoholised) state of mind, and he criticised the comments that he had been “abusive”, which was not true. Further comments and explanations covered more historic issues, and explained why some formal complaints had been made about the way the service provider and certain clinicians had treated him. While most criticism was expressed about the counsellor he saw during 2009, he also presented a number of issues he had with the follow up counsellor, who was little supportive or sympathetic, and with whom he could in the end no longer work. That was what had led to his disengagement, besides of endless other issues he had to address with Work and Income, a Medical Appeal Board, the courts and so forth.
Even the follow-up counsellor did on 22 December 2010 record totally false and misleading information about the client in his file, the complainant described towards the end of his letter. That was after a phone call she had made to his doctor, about which he had as her client never been informed. The doctor was quoted as having said the client would send him emails daily, which was completely untrue, and which the complainant’s GP would later not even remember having said. Hence he had to find out that the follow up counsellor was nothing but a “blatant liar”, when noting such untrue and misleading information in his file.
Finally the complainant did in this letter ask that all the information the HDC Office had been supplied with would be re-assessed, re-evaluated, the complaints and the circumstances properly investigated, so that a correct, factual, objective, fair and accountability ensuring result would be achieved.
He closed with clear words that explained how he could no longer trust the service provider, given the responses received so far from the WDHB Chief Executive and the Service Manager. He stated he would NEVER seek the services of that particular provider again.
You can read the complete, detailed letter by the complainant that was dated 27 March 2012 by clicking the following link to a PDF file copy:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, reply to decision, anon, 27.03.12
The complainant’s further submission from 29 March 2012 – following the O.I.A. and Privacy Act information release
Once the complainant had a closer look at the documents that he had received from the HDC Office on 26 March 2012, he saw reasons to raise additional serious concerns and present further submissions to the Health and Disability Commissioner. He referred to information that had not been known to him, and which was of high relevance to some core issues he had already raised. He asserted that his complaint from 08 August 2011 had been closed unjustifiably by the HDC Office. He also described the decision by Theo Baker, dated 24 February 2012, as unjustifiable and unreasonable. Key information relevant to his complaint had not been properly examined and assessed, he argued. In his view irrelevant information had been relied on for making the Commissioner’s decision, while relevant information had been overseen, ignored, misinterpreted or incorrectly and unfairly evaluated.
He referred to copies of his client file that the WDHB provider’s Service Manager Wxxxxxxx Txxxxxxxxx had sent to the HDC, which contained pages for the time after mid December 2010, which he so far had not had any copies of. They contained further information about the unacceptable conduct of the follow-up counsellor he had seen at XXXX Xxxx from February 2010 until early December 2010.
But first he went through some incorrect notes that had been made in the ‘New Complaint (Triage) form’ and ‘Complaint Summary’ by the HDC Assessor or other staff. There was for instance a mention made of the counsellor having allegedly “failed to take into account Xxxxxxx’s non-compliance with his medication regime when providing him with counselling”. That though had never been part of his complaint, as he had taken his medication for most of that time, which had though not been noted down by the counsellor. He also had to correct the HDC staff who had wrongfully described the last counsellor he saw at the provider as a “fill-in counsellor”, as she was not merely filling in, but seeing the client for nearly a year.
The complainant then criticised the “open invitation” the HDC Complaints Assessor had given to the Service Manager at the WDHB service provider, by simply allowing him to give only a “general overview of his care” – in relation to the client’s treatment. That way the Manager could overly summarise, generalise and offer edited, unspecified information on the client’s treatment or care. This allowed WDHB to avoid addressing most of the issues that had been raised. Thus WDHB and the service provider had not been challenged on particular points or issues. This would mean the whole complaint process had been compromised from the beginning. He also expressed his impression that not all complaint information had been communicated to the WDHB.
So the complainant did once again ask for a re-assessment of the whole complaint. He asked that the earlier involved Assessor should not be allowed to have any input in a re-assessment and an investigation.
The complainant and former client of the service provider had so far only had copies of his client file notes up to 16 December 2010, so he could now refer to notes in the file for the period after that, going into June 2011. These further notes revealed an astonishing record that his follow-up counsellor had put into his file for 22 December 2010 (at about 02.30 pm), which occurred after he had last seen her on 02 December in that year. The former client (and now complainant) quoted the following from his file: “Phone call to Dr Txxxxxx, advised Dr Txxxxxx session content 02/12/10, email 08/12/10 and letter inviting contact. Informed him that XXXX are not responding to his emails but scan for risk. Informed Dr Txxxxxx that Xxxxxxx drank in recent review hearing with WINZ medical team, which he did not know. Informed him that if Xxxxxxx is discharge I will send a copy of the discharge letter to him.
Dr Txxxxxx stated that he receives an email from Xxxxxxx daily, they also donot respond to his emails and scan for risk.”
This was a complete fabrication or misrepresentation of facts, as the complainant had never sent “daily” emails to his doctor. Also would he soon learn that his GP did not even remember this phone call from his counsellor Lxxxx Xxxxxx on that day and at that time, nor would his doctor remember having said anything to her, that corresponded with what she had noted down. The complainant was not only concerned about the notes about his relapse prior to a so-called ‘Medical Appeal Board’ hearing, which he had actually confided to his doctor, contrary to what the counsellor recorded. He was angered more by the comments about the “daily” emails he was alleged to have sent to his doctor. In December 2010 he had only sent two emails to his GP, one on 19 December and another one on 29 December (after this file note was made). He had even copied in his counsellor on some of those emails, as there were matters of importance which he felt needed to be shared. The complainant stressed in his further letter to the HDC Office that he had prior to 12 July 2010 never sent any emails to his doctor. Only due to a crisis and extremely upsetting consequences following a scandalous WINZ Designated Doctor assessment and an unacceptable WINZ decision based on it, did the complainant see a need to correspond with his GP by email, which never happened that frequently at all. He could simply not go and see his doctor personally each time, as being a beneficiary he could not afford much travel to a more distant suburb where he had previously lived, and he could not afford the fee that his GP would charge for each consultation.
So his follow-up counsellor had without his knowledge recorded totally untrue information in his file, by misrepresenting anything his GP may have said, that is if the client’s doctor actually ever talked with the counsellor over the phone. This appeared to have been done with ulterior motives, like with the intention to discredit the client, with whom the counsellor had in the end followed a very restrictive, tough and unsympathetic line of counselling, which did not work, hence she must have done this to cover up her own failings. The complainant informed the HDC that during his first session with his then new counsellor in early 2010, she had confided to him that she once used to be “a great manipulator”. After having read this falsified note in his file, this flashed back into his memory. In his letter from 29 March the complainant then presented a complete list of all the emails he had ever sent to his GP, up to 19 March 2012, which was nowhere near as frequent as the counsellor had misrepresented it, by misquoting the GP of her client, or even by simply making this up.
The complainant understandably viewed this new discovery as being a very serious matter, which the HDC should take note of. He even invited the Commissioner to contact his own doctor, to seek his view and comments on this newly discovered complaint matter.
Lastly the complainant raised some questions re the Service Manager’s notes on top of the file notes sent by WDHB to the HDC (dated 25 Oct. 2011). He informed the HDC that much correspondence that belonged to his complete client file had not been presented by WDHB, and that 2 assessments by the provider’s psychiatrist, as well as letters and emails that had been exchanged between the client and the service provider, would shed light on more problems that had been raised with XXXX management and staff. WDHB would have little interest in presenting that information, as it would only expose the service provider’s own shortcomings.
This letter from 29 March 2012 was then sent to the HDC by email at 09.55 pm on that same day, to which eleven PDF files were attached. These included a copy of the new letter, and copies of information received from the HDC under the O.I.A. and Privacy Act (letter from the HDC Assessor to WDHB from 06 Oct. 2011, “new complaint file” notes from the HDC dated 08 – 16 Aug. 2011, the ‘Complaint Summary’ information from the HDC file from 12 Aug. 2011 to 27 Feb. 2012, a scan copy of the clinical notes by the second counsellor, for 22 Dec. 2010, and further file notes from the service provider for 02 Dec. 2010 to 08 June 2011). Also did the complainant provide a PDF with a copy of an email he sent to his GP from 12 July 2010 (re WINZ issues), a PDF with a copy of an important email sent to his GP and cc to his counsellor on 13 July 2010 (explaining a developing crisis), a PDF containing an email to his GP from 19 Dec. 2010, and a copy of the last one sent to his doctor (during contact with the service provider) from 13 Feb. 2012. A copy of the same submission letter was also sent to the HDC by post in late afternoon on 29 March 2012.
The following link will load a copy of this letter from 29 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, further subm…, after OIA rel., anon, 29.03.2012
Further emails with relevant documents sent by the complainant to the HDC
As the newly received information from the HDC Office, including false file notes made by his former follow up counsellor, were very upsetting news to the complainant, he was concerned that he may not be taken seriously and thus not be heard. Hence he decided to send the HDC some additional information about his treatment and correspondence with the service provider’s counsellors and management. It disturbed him how WDHB only presented parts of the client file information, withholding other letters and documents that would raise more questions about their version of the his treatment and “care”.
With an email sent at 03.17 pm on 03 April 2012 the complainant presented the HDC Office 12 PDF files with mostly email correspondence he had with the service provider, which included formal complaints he had made to one facility’s manager and also to the Service Manager, who was in charge of the whole counselling services. This included emails to the ‘Counselling Manager’ aka ‘Service Manager’ from 16 and 21 June 2010 (when his counselling encountered serious difficulties), that Manager’s response from 30 June 2010, earlier complaint correspondence dated 31 July and 31 August 2007 (re a requested change of a counsellor), correspondence with the provider’s staff and one manager from 01 to 06 Sept. 2007, the ‘Counselling Manager’s’ response to a complaint from 31 Aug. 2007 – dated 06 Sept. 2007, a letter from the service’s psychiatrist (acknowledging mistakes in the appointment of a counsellor), dated 31 Oct. 2007, a treatment ‘Goal Plan’ agreed with a ‘Service Supervisor’ (who was relentlessly pushing Alcoholics Anonymous) from 17 Oct. 2007, and some further email correspondence between the former client (now complainant) and the ‘Counselling Manager’ from 09 Oct. to 20 Nov. 2007. One further email sent to the HDC at 03.48 pm on 03 April 2012 carried one more PDF file with scan copies of emails re former complaints and concerns covering the period from 21 to 26 Nov. 2007.
On 11 April 2012, when seeing his doctor for an appointment, the complainant asked him re the client file entry and phone call his former follow-up counsellor had allegedly made to him at 02.30 pm on 22 December 2010. To his astonishment, his doctor had no knowledge or memory of that phone call, nor did he remember making any such assertions as the counsellor had made in the notes of the client’s file. That was despite of the complainant showing him a copy of the notes he had received from the HDC Office by way of an O.I.A. and Privacy Act request. The doctor even went through his own notes in his computer system, but found NO record of such a phone call. He said he would make notes of calls he makes and receives.
So in a further email to the HDC, from 09.06 pm on 12 April 2012, the complainant informed the HDC about this fact, again attaching a copy of the XXXX client file note for 02.30 pm on 22 Dec. 2010. He asked how it could be that his doctor would not have a record of this phone call, which would have been important, given he had months earlier displayed suicidal ideations. His conclusion was that the phone call was never made, and that the notes had simply been “forged” or rather fabricated. He stated that he had no remaining trust in his former counsellor. He concluded his email with the comment, that the HDC should feel free to contact his doctor to seek a confirmation from him, that he had no record of this conversation, and that he did not remember it. You can find an anonymised copy of the sent email under this link:
HDC, C11HDCxxxxx, WDHB counsellor, email informing abt no GP record on ph. call, 12.04.12
With yet another email from 02.27 pm on 21 April 2012 the complainant also sent the HDC Office 4 PDF files of firstly a more recent psychological assessment from a psychologist he saw at another clinic, dated 24 Feb. 2012, with a further support letter from that psychologist dated 13 March 2012, a letter from his GP dated 11 April 2012, as well as an earlier letter from his GP from 18 Aug. 2008, stating serious issues the complainant was suffering from, also in relation to problematic, insecure housing he had. This was in order to present more information to give evidence of his complex health conditions and challenges he faced due to these. The receipt of that email and of other ones was again being confirmed by the HDC’s Executive Assistant, Kerry Norman.
The HDC’s Complaints Assessment Manager Deborah O’Flaherty’s response to the emails sent to their Office
On 17 May 2012 the complainant then received a letter from the HDC’s Complaints Assessment Manager, Deborah O’Flaherty, dated 16 May 2012, which was in response to the emails their Office had recently received from him.
She informed the complainant that based on the further points that he had raised, the Commissioner had decided to request a response from Waitemata DHB addressing the points the complainant felt had not been fully considered in their initial assessment. They would be in contact again once they had received that response, she wrote.
She then addressed references the complainant had made re his “full” complaint, and informed him, that he had already been advised by the Assessor Mr Lxxxxx in the phone conversation on 09 August 2011 that the original complaint, as submitted, “could not be opened on our computer system due to its size, and that you would need to submit a more concise version”. She also wrote: “The Deputy Commissioner’s examination of your complaint is based on this revised version, dated 9 August 2011, along with the attached documentation.”
She then wrote that their Office had received “more than 12 emails from you since March 2012”, and that “most of which contain large attached files”. Then she wrote: “As you have already been advised, we do not have the resources to process this amount of information, and it is simply not practicable to read each attachment in its entirety”.
She closed with the comments: “Out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible”.
The jaw of the complainant nearly dropped down to the floor, when he read this letter with such a tone. So the HDC had simply ignored his complaint letter from 08 August 2011 plus apparently all attachments sent with the initially sent 30 emails (where single emails only carried a small number of such, in ordinary sizes). Yet in the letter sent to the Chief Executive Officer of the WDHB on 06 Oct. 2011 it was implied they had a very comprehensive complaint before them. The summarised complaint could not meet such a description. But the HDC now claimed they had only looked at the Summary Complaint from 09 August 2011 and the few attachments to that. And it now even appeared, as if they would not even bother reading documents in their entirety, which explained why his complaint had not been properly assessed, not been thoroughly investigated and not been fairly and reasonably decided on. Also was it simply an exaggeration by the Complaints Assessment Manager that the Office had received 12 emails since March, as probably nearly half of them were separate emails asking for nothing else but a confirmation of the receipt of the above mentioned emails that had been sent. Attachments with documents were also not that long or large.
This was simply a message to the complainant, which told him, that the HDC Office would not bother reading, assessing and investigating any complaints it may deem to be too comprehensive, too complex and detailed. This seemed like making a mockery of the applicable law, the Code of Rights and of the whole complaints processing done by the HDC.
A copy of that letter from the HDC Office from 16 May 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC reply clarifying complt info, D. O’Flaherty, 16.05.2012
HDC complaint, WDHB counsellor, HDC clarifying complt info, D. O’Flaherty, hilit, 16.05.12
The complainant’s response to that letter from 17 May 2012
Of course the complainant could not accept such a response, hence he swiftly replied with a further letter to the HDC Office. On the same day he received the letter from Deborah O’Flaherty, he wrote back to the Commissioner and her.
Acknowledging the last letter from the HDC Office, he wrote the following:
“I take note now that you have based your earlier assessment and investigation merely on a very abbreviated and summarised complaint I wrote to your office on 09 August 2011, in which I made very clear reference to the fact, that the complaint of that date had to be viewed together with my complete complaint of 08 August 2011.
You refer to Mr Axxx Lxxxxx (Assessor) having advised me that he and your office staff had received my initial complaint with submissions, but that it “could not be opened” on your computer system, due to its size.
In all honesty, I am utterly dismayed and disappointed about these comments, and it is incomprehensible to me and others whom I have consulted, how your system is unable to deal with ordinary emails and attachments that every other person has been able to download and open.”
After expressing astonishment or disbelief at the Office’s apparently outdated computer system, he added this: “The fact that you have simply not read and processed the material supplied to you means that your office will certainly not properly, sufficiently and fairly address the issues I have raised.”
He commented that the emails he had sent in recently were of ordinary type and size, same as the attachments to them. He criticised that it was “highly irresponsible not to take note of submissions by complainants, who communicate and send your office highly relevant, sensitive and utterly important documentation and information”.
He added: “My impression is that your office is simply not sufficiently familiar and able to address complex matters and issues arising in the course of mental health and addiction treatments.” The complainant expressed his utter disappointment about the Complaints Assessment Managers letter and how dismissive the HDC Office had been in its previous handling of the complaint, and then deciding his complaint needed no further action.
He furthermore wrote: “I now expect little in the way of actions of thoroughness, seriousness and legally required reasonableness and fairness from your office, and I will definitely consider informing leading NZ media about what really goes on at the Office of the Health and Disability Commissioner”.
But despite of so much disappointment and despair, he nevertheless closed off with a comment that he would look forward to the Office’s further reply in the matter.
A link to a PDF with the full authentic text of this letter by the complainant is here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, ltr in response to HDC’s ltr fr. 16.05.12
PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE
Now, after all of the above, the complainant was highly suspicious about how the HDC was handling complaints such as his one, as factual, well documented evidence appeared to simply be ignored or was given little merit. It was beyond belief, that a letter from a Chief Executive of a DHB, referring mostly to only selectively chosen information, and offering a mere general “overview” of a person’s “care”, was obviously given much more weight than numerous authentic evidence documents that he had supplied to the Office.
The complainant was not quite sure, whether the problems he now faced were mainly due to an Assessor having conducted a poor, appalling assessment, or whether the Deputy Health and Disability Commissioner Theo Baker was responsible for basically “off-loading” his complaint. So he waited with some anticipation for a response to his recent letters, raising objection to the way an assessment had been made and how a decision to not investigate the complaint had been formed. This though would take an extraordinarily long time.
In the meantime he was kept busy with never ending settlement negotiations that MSD had tied him up in, following a judicial review application that challenged a decision by a Medical Appeal Board, which came to a bizarre decision on his entitlement to a WINZ benefit on health grounds. This involved a fair amount of communication and correspondence with his lawyer, whose services he could only afford on civil legal aid (barely covering the costs).
As it now appeared rather unlikely that he would after all the apparent misunderstandings, the absolute reluctance of the HDC to accept and process his initial, full complaint, and after the resulting recent upheaval, get his complaint assessed and investigated fairly, the complainant went about to try another way to address the appalling unprofessional conduct and failures of the counsellors he had seen.
The complainant files a separate complaint with the DAPAANZ
He now prepared a separate complaint to the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’, in short called DAPAANZ. He would raise issues under their ‘Code of Ethics’, where he felt a range of principles and/or core values had been breached by the counsellors and clinicians he had seen at the WDHB service provider. Both counsellors were registered with the Association. It was from 31 May to 02 June 2012 that he sent in 11 emails with a number of attached documents (up to 146) to their Director Ian MacEwan. Again he would present a written complaint letter, plus virtually all scan copies of his client file from the provider, a range of letters and sundry other relevant documents. He gave a sufficient enough background report and gave a detailed report on what occurred during and after his counselling over the years 2009 and 2010. The breaches that he claimed happened were described in some detail. He was more careful with this complaint, trying to avoid “mistakes” he may have made with the HDC complaint.
This separate complaint cannot be covered here as it would vastly exceed the scope of this post, which is more than comprehensive enough already, and we consider presenting that complaint in a separate post at a later time. What we can confide to you though is the fact, that a senior member of the Executive of that Association also happened to be the employer of the two counsellors complained about. Although he excused himself from being part of the committee that would review this complaint to DAPAANZ (due to his conflict of interest), he would later be found to have had input into the discussion and hearing of that complaint, as he was allowed to give “advice” as the counsellor’s employer!
It will not surprise any readers here that the final outcome of the DAPAANZ complaint was at least as equally appalling as this complaint would again show to be. There were indications of some behind the scene contacts, that appear to have occurred, and either due to these, or to the more official version of events, it led to the employer basically assisting his staff to get off the claims made against them – in both complaints. And to the astonishment and confusion of the complainant, the DAPAANZ would even present their shoddy “decision” only months later, by email on 01 November 2012, well before the HDC would provide a second decision.
Further correspondence with the HDC Office, while the complainant is left waiting
Getting back to the HDC now, the complainant waited for a new response and perhaps more acceptable decision by the Health and Disability Commissioner, but nothing came. He also sought additional information under the Privacy Act from a separate psychotherapy service he had attended between October and March 2010. When provided with copies of his clinical file there, he discovered yet again, how one of the counsellors he had seen at the WDHB service provider had made inappropriate and incorrect comments to a psychotherapist that had been involved with the same client at the other provider.
He found a file entry that the psychotherapist had noted down on 11 Jan. 2010 re a phone call he had received on that same day from the complainant’s and then client’s counsellor for the year 2009. The file notes said this:
“ … Xxxxxxx had attended a session with Mxxxxxx on 23/12/09 during which Xxxxxxx had become angry when Mxxxxxx had not provided him with a letter saying that XXXX supported him in his attempt to get legal aid. Xxxxxxx had left session angrily saying that he hated Xxx Xxxxxxx (see XXXX notes 23/12/09). Mxxxxxx reports that Xxxxxxx has become angry with other XXXX counsellors in the past in this way and has subsequently changed counsellors. Mxxxxxx will try to contact Xxxxxxx and re-engage with him.”
Here is a link to a PDF file with a scan copy of the relevant two pages of the client file, with personal details deleted:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, file record w. lies fr. counsellor, 11.01.10
Here is a link to a PDF with a scan copy of that letter dated 23 December 2009, that the counsellor presented to the then client, now complainant:
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
(a copy of this was sent to the HDC with the initial complaint)
This was another piece of evidence that did prove to the complainant that his counsellor, who he refused to see after his presentation of a ridiculously brief and unhelpful letter, stating only his past engagement with the service provider, and their intention to work with him in the future, was dishonest, biased against him and misrepresented facts behind his back.
The comment that he as the former client of the counsellor “had become angry with other XXXX counsellors in the past in this way” was a blatant lie, as he had never before expressed anger during any counselling session, and as he had never walked out on any counsellor ever before! Also was it simply not true that he had asked for a letter that would say his counselling provider supported him getting legal aid. All he had asked for was a letter stating his health issues, the stress and other discussed challenges he was dealing with, besides of mentioning his ongoing counselling engagement.
This prompted the complainant to send the HDC Office yet another email at 03.03 pm on 02 June 2012, with which he pointed all this out, and attached to it, he sent the HDC copies of the pages from the client file from the psychotherapy service provider. As there was again no response to that email, he did in the morning of 06 June ask for a confirmation of its receipt, which never came. Hence he sent another email to seek the same at about 09.11 pm in the evening of 06 June 2012. A confirmation was finally received from Complaints Assessor Jx Zxxx at 11.08 am on 07 June.
For the coming months there was no further response from the HDC, hence on 30 Sept. 2012 the complainant wrote an email to the HDC, asking for an update on his complaint, as he became concerned that it had been nearly 14 months, when he first filed the complaint. An update – again from Jx Zxxx – and from 01 Oct. 2012, simply apologised for the delay and explained: “As you have correctly stated, we are dealing with a large volume of complaints at present”. The Commissioner was still reviewing the information gathered on file, she wrote. A formal response was indicated to come “in the next few weeks”.
After receiving a scandalous, dismissive “decision” by email on 01 Nov. 2012 from the above mentioned DAPAANZ Director, which was based on an evidently unprofessionally conducted review of a complaint filed with them, the complainant wrote to the HDC Office once again at 10.40 pm on 06 Nov. 2012. He expressed his great concerns and outlined how it was apparent that the senior member of the DAPAANZ Executive Board, who was also the employer of the counsellors he had complained about, may have helped dismiss a complaint against his staff members, while he had a conflict of interest.
He mentioned how a ‘Professional Standards Committee’ acted in anonymity, as no names had been mentioned about who had been involved in investigating and deciding on his complaint. The MS Word copy of the contradictory, unfair and unreasonable report and decision from 29 Oct. 2012 was initially sent without any signature, and appeared to be prepared by people lacking the necessary knowledge and competence to conduct a professional ethics committee hearing. Attached to this email the complainant sent the HDC Office two copies of the bizarre “decision” letter by that ‘Committee’, and his own response to DAPAANZ from that same day.
On 07 Nov. 2012 at 10.20 am Jx Zxxx, Complaints Assessor at the HDC Office, thanked him for providing their Office with this information, and she wrote that this information would now be considered as part of the Commissioner’s review of his complaint.
In the meantime there was a further response by DAPAANZ, who suddenly sent a more “formal” report and decision to the complainant, now with letterhead and a signature by their Director, but nobody else. That was followed by a new response by the complainant, who stated his serious misgivings and concerns about the DAPAANZ position. With an email from 11 Nov. 2012 the complainant informed the HDC Office of the additional correspondence he had with DAPAANZ, who stuck to their decision and offered little in further explanations. He sent copies of his letter from 09 Nov. 2012 to DAPAANZ, a reply from Ian MacEwan from DAPAANZ from 06 Nov., a PDF file with the evidence he had sent DAPAANZ, plus a copy of the complaint letter he had sent to them.
Despite of the earlier disappointment with the HDC decision, he was still somewhat hopeful that his endless efforts to reveal the truth and to present documentary evidence may finally convince the HDC to take investigative actions against the counsellors and the service that employed them as part of WDHB.
By email from 10.07 am on 30 Jan. 2013 the complainant informed the HDC of a Privacy Commissioner complaint he had filed against DAPAANZ. As no confirmation of receipt was forthcoming from the HDC, he asked for a confirmation again by email at 07.54 pm on 08 Feb. 2013. On 11 Feb. 2013 (09.23 am) Jx Xxxx, Complaints Assessor, confirmed the receipt of that email and information, which was being reviewed. Time continued to pass and no response came from the HDC, hence the complainant wrote again at 11.40 pm on 29 March that year, asking for an update on the two complaints he did in the meantime have before their Office. A second complaint, which we already presented in a post on in this blog, related to a general practitioner who had assessed the complainant for Work and Income. On 03 April 2013 he sent one further brief email, as he never received an update. This was replied to by the same Assessor, assuring him that his complaint had not been overlooked. In her email from 09.37 am on 04 April she wrote that the complainant should expect a formal response in the coming week. Nothing came that next week, so he wrote yet again at 11.06 pm on 19 April 2013, mentioning he had now waited another two weeks, and not received anything. He wrote that he would have appreciated a brief notification for any delay.
After only receiving a letter from the Deputy Health and Disability Commissioner Theo Baker in relation to the other complaint matter (C12HDCxxxxx) dated 24 April 2013, but no response to recent email(s), the complainant wrote again by email at 01.22 am on 25 April 2013. He now expressed clear frustrations with the lack of progress in his complaint under the HDC reference C11HDCxxxxx, writing that he had the impression complaints of the type he presented were handled in a form that was close to contempt, and that they were nor seriously considering the overwhelming amount of clear, well documented evidence. He even considered steps in the form of applying for judicial review, because the other complaint had also been dismissed with the comment that no action needed to be taken. The complainant was again critical of the way assessments appeared to be done, and asked again that the HDC Office review their processes and the decisions made so far.
The Deputy HDC’s second “final” decision in this complaint matter from 14 June 2013
It was finally on 19 June 2013 that the complainant received a second “final” decision by Theo Baker that was dated 14 June. With this letter the Deputy Commissioner did simply uphold her earlier decision, stating: “I remain of the opinion that my decision to take no further action on your complaint was appropriate”. The complaint would remain closed, she wrote. The letter was only two pages long and again had a further response from WDHB attached, which was though dated 06 June 2012 (!!!), that means OVER TWO YEARS OLD, and had apparently been left lying in the HDC Office since then. There was hardly any change in the description of issues that she mentioned, and in the explanations that she gave.
Ms Baker even seemed to refer to an email that was never sent on 24 April, as one was only sent to their Office on 25 April. Her letter gave the impression that crucial, also newly presented, compelling evidence of the counsellors’ misrepresentation of facts, if not blatant lies to cover up their failings, including the recording of false file notes, had not even been looked at! Hence this was yet another appalling decision by the Commissioner that shocked the complainant and left him in disbelief.
Again Theo Baker only listed five bullet points that were supposed to summarise the complainant’s remaining concerns, which were only slightly different to the bullet points she listed in her first decision from 24 February 2012. They were now formulated as being:
“● Counsellor, Mr Mxxxxxx Sxxxxxxxx, was not qualified to offer counselling for alcohol dependency, and should have offered you a more competent alternative counsellor.
● Mr Sxxxxxxxx failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Mr Sxxxxxxxx failed to acknowledge that you had been taking certain medications for most the time he counselled you.
● Mr Sxxxxxxxx incorrectly assessed you as being at a low risk for self harm, before realising that you should have been assessed as being at medium risk.
● Counsellor, Ms Hxxxxx, did not enter important details into your file, including instances where you had expressed to her “immense distress, disappointments, suicidal ideas and great misgivings” about your treatment.”
And once again, Ms Baker did pick only some bullet points from the response provided yet again by Dr Dale Bramley, Chief Executive Officer for the WDHB, which were:
“● Mr Sxxxxxxxx holds a Bachelor in Counselling degree from the Wellington Institute of Technology, and a Post-Graduate Certificate in Health Science from the University of Auckland. He is also a registered practitioner with the Drug and Alcohol Practitioners’ Association Aotearoa New Zealand. WDHB notes that Mr Sxxxxxxxx provided you with services within his clinical scope of practice.
● WDHB thoroughly investigated your concerns about whether Mr Sxxxxxxxx was providing you with appropriate care, clinical management and support. WDHB considers that your dissatisfaction arose from occasions where you requested assistance with matters that were outside the scope of what XXXX could provide.
● Mr Sxxxxxxxx was aware that you were on medication at the time he was your counsellor, and this is evidenced by the clinical notes.
● Mr Sxxxxxxxx assessed your risk of self-harm according to your presentation at the time. Mr Sxxxxxxxx’s assessment of your risk level was a correct reflection of his clinical opinion at the time.
● Ms Xxxxxx entered information into your file that, in her clinical opinion, she considered relevant at the time of your presentations.”
And after summarising these selected few defensive comments that were taken from Dr Bramley’s second, equally selective, at least partly misrepresentative and self-serving response, Ms Baker then delivered under ‘My decision’ the following bizarre explanations:
“I have thoroughly reviewed your file in light of WDHB’s response and your outstanding concerns. Having done so, I remain of the opinion that my decision to take no further action on your complaint was appropriate.
I consider that WDHB’s latest response comprehensively addresses your outstanding concerns. It seems to me that the WDHB staff who dealt with you were adequately qualified, were aware that you were on medication, and made clinical judgments according to your presentation to them at the relevant time. I am also satisfied that WDHB responded appropriately to your formal complaints to them about the services provided to you.
I consider that, though your personal expectations of the XXXXX service may not have been met, this may have been because some of your expectations went beyond the scope of the services offered by XXXXX. I reiterate the comments I made in my decision letter dated 24 February 2012, that counselling is a particularly difficult service to coordinate due to the subjective needs of the consumers using these services and that, despite every effort being made, it is not always possible to meet every need of every individual.
I note that you have raised concerns with the fairness of HDC’s processes and decisions in its consideration of this complaint. Having reviewed your file, I am satisfied that all relevant information has been considered in coming to this decision. I consider that there is no indication of any procedural issues which necessitate revisiting my decision.
Your complaint will therefore remain closed. I appreciate that this is not the outcome you were hoping for, however I do not consider that further consideration of your complaint is necessary or appropriate.”
Theo Baker’s complete decision with the attached letter from the WDHB can be found via these links:
HDC complaint, WDHB counsellor, HDC’s 2nd decision w. WDHB ltr, T. Baker, 14.06.2013
HDC complaint, WDHB counsellor, HDC’s 2nd dec. ltr, compl., late, hilit, T. Baker, 14.06.13
She would again send a letter with her decision to the Chief Executive Officer of WDHB, which is found via this link:
HDC complaint, WDHB counsellor, HDC’s 2nd decsn ltr to WDHB, T. Baker, hilit, 14.06.13
A copy of that letter would also be provided to the complainant in response to an O.I.A. and Privacy Act request.
So we have simply a continuation of the same approach, where a response letter from the Chief Executive of WDHB serves as the Deputy HDC’s justification to virtually throw this complaint out, to dismiss it as not deserving further action or investigation. That is by ignoring black on white, authentic evidence of the counsellors’ professional misconduct, and the HDC had not even bothered to consult with or seek an opinion from the complainant’s own doctor or other professionals, whose documented reports and other evidence the former client of the controversial service presented to the HDC. The HDC staff did not even challenge the two counsellors directly re the alleged breaches of the Code of Rights laid against them.
Either this is clear evidence of the HDC staff members’ complete incompetence in not being able to conduct proper assessments, of their inability to handle and examine complex cases involving much information, or it is evidence of a degree of bias the Deputy HDC may have, simply rather choosing to believe statements and comments made by professional medical professionals that have been complained about, or relying on the senior administrators of the DHB and other service providers they work for.
The second response from the WDHB was as questionable, partly incorrect and misleading as the first one, even starting with the qualifications of the counsellor mainly complained about. At the time the counselling relationship existed during 2009 he did not have the extra Post-Graduate Certificate in Health Science from Auckland University, which he only obtained afterwards in 2010. His and the follow-up counsellor’s DAPAANZ registration are irrelevant, as the also bizarre “report” and “decision” upon an unsuccessful complaint to that Association’s ‘Professional Standards Committee’ had shown the complainant. That Committee was just as incompetent and biased as the HDC appears to have been, when assessing, examining and making a decision on a detailed, well documented complaint. That means the membership of DAPAANZ gives the practitioners good protection, as the Association rather advocates for its members than looks after their client’s interests.
There were other irregularities and inconsistencies that the complainant found in the response from Dr Bramley, same as there were with his first response. The appalling record keeping and the noting down of completely false information in the client’s file were not even being addressed, while the preferred focus on supposed “out of scope expectations” was ridiculous.
Of course the complainant would not accept this kind of decision, and in order to dig deeper into what was really going on, he did soon prepare further O.I.A. and Privacy Act requests, to try and access more information that he had not yet asked for.
PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER
The complainant files two further requests under the O.I.A. and Privacy Act
On 24 June 2013 the complainant sent off the following request under the O.I.A. and Privacy Act. He asked for the following:
“A. An authentic copy of a letter sent by your staff member Deborah O’Flaherty, Complaints Assessment Manger, dated 16 May 2012, to the Waitemata Disctrict Health Board (short ‘WDHB’, to their Board Office and/or the Chief Executive Officer, or any other office of the WDHB) in regards to my complaint to your office under reference C11HDCxxxxx.
The complaint relates to the alleged misconduct of clinicians Mxxxxx Sxxxxxxx and Lxxxx Hxxxxx at Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX) in Xxxxxxxxx, which is a service of the WDHB. I understand that letter to have contained questions that were made to the WDHB to address and resolve outstanding concerns and issues in the complaint matter.
B. At the same time I request any other correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference. This should include a detailed list of all complaint related submissions I presented in this matter that were presented to WDHB and/or XXXX.
C. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s office, same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint made by me.”
He also mentioned the following, in order to be reasonable with this request:
“Any information that was already supplied up to the date of a previous request of this nature (dated 03 March 2012) will not need to be included.”
On 25 June 2013 the complainant added the following O.I.A. and Privacy Act request:
“In addition to information already requested by way of a letter (also sent by email) on 24 June 2013, please provide me with the following specified information:
A. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the Office of the Privacy Commissioner in relation to the above mentioned complaint matter.
In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.
B. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my own general practitioner, Dr Bxxxx X. Xxxxxxx, of the Xxxxxxxxxx Xxx Medical Centre in Xxxxxxxxxx Xxx Road, Xxxxxxxxxx Xxx, Auckland in relation to the above mentioned complaint matter.
In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.
C. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former counsellors Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx, both clinicians employed by Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX Xxxx), Xxxxxxxx, Auckland in relation to the above mentioned complaint matter.
In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.
D. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former facilitator (of an attended counselling group), Psychotherapist Txxx Pxxxxx of ‘Xxxxx Xxxxx Specialist Psychotherapy Services’, in Xxxxxx Xxxx Road, Auckland in relation to the above mentioned complaint matter.
E. Information on whether – and in what form – the Mental Health Commissioner, employed by, or liaising with, the Office of the Health and Disability Commissioner, was consulted or corresponded with in relation to the above mentioned complaint matter.
This specified information is sought under the above provisions of the Official Information Act 1982 and the Privacy Act 1993.
Please supply the information in clearly readable form as photo-copies of originals, system data printouts or other official types of records within the prescribed official response time.
Yours sincerely and thankfully
Links to the PDF copies with the text of the two further requests mentioned above are here:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, anon, 24.06.2013
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, further, anon, 25.06.2013
The complainant sends a letter dated 25 June 2013 directly to the HDC Anthony Hill
Also on 25 June 2013 the complainant wrote yet another letter to the HDC Office, this time addressing it directly to Mr Anthony Hill, the Health and Disability Commissioner himself.
He referred to Theo Baker’s earlier handling of the complaint matter, and expressed his objections to her decision from 24 February 2012, which she had upheld with her further decision from 14 June 2013, after virtually sitting on the WDHB response from early June 2012 for over a year.
The complainant then submitted his objections which he had already raised re Ms Baker’s first decision from 24 February 2012, in his letter dated 27 March 2012. He mentioned that he also presented proof that his complaint had not been properly assessed and investigated. Only one point of his whole complaint – about wrong information having been recorded in his client file – had then been looked at, he wrote. He pointed out that there were a number of serious breaches that occurred under the ‘Code of Health and Disability Services Consumers’ Rights’ and also under the ‘Code of Ethics’ of the DAPAANZ.
He did then again raise the particular HDC process issue where the Complaints Assessor Axxx Lxxxxx had simply refused to accept his initial complaint (from 08 Aug. 2011) and forced him to present a summarised complaint, because the Assessor alleged the emails the complainant had first sent were “freezing” their system. So the complainant stressed yet again, that he had in the Summary Complaint stated that it must be viewed together with the already sent information and documents (from 08 Aug. 2011).
Re the Deputy HDC’s handling of his case he wrote: “Theo Baker, and her staff, clearly failed to properly and thoroughly assess the complaint from the start, and failed to sufficiently, objectively and fairly consider a comprehensive range of very relevant, well documented, compelling information put before them. Theo Baker consequently relied on only very selected, partly wrongly understood or misinterpreted, and otherwise insufficiently examined and evaluated crucial information, which was mostly kept in records provided.”
The complainant mentioned how he had suffered as a consequence of wrong information having been put into his client file, on which other health professionals had relied on.
He referred to letters from Lydia Wadsworth (Legal Advisor) and how he had then sent further submissions to the HDC Office in a letter dated 29 March 2012. So the complainant did once again list important points he had raised in that letter under A) to F). He also mentioned his further correspondence, including submissions and evidence that he had sent to the HDC Office since then. He listed what emails with what contents and attachments he sent in under a) to j) from 03 April 2012 to 03 April 2013, and the limited responses he received.
The complainant explained in some detail why the first decision from 24 Feb. 2012 by Theo Baker was totally unacceptable, again referring to his letters from 27 and 29 March 2012 and making further summarising comments. He then explained how the flaws and issues with Ms Baker’s first decision had not been addressed by her new, final decision from 14 June 2013. He listed the bullet points of his remaining concerns, as she had summarised them, and also listed the points that Dr Bramley as Chief Executive Officer for WDHB had addressed in return. He described the “outstanding concerns” listed as bullet points by Theo Baker as being “virtually identical” to the ones she mentioned in her decision from 24 Feb. 2012. He also described the answers given by Dr Bramley from WDHB as being “basically nothing much more than a reiteration of their earlier position, only offering some limited additional information”. The complainant asserted that no satisfactory answer had been given to his serious complaints about false information having been recorded in his clinical file. He critically summarised how Theo Baker had justified her more recent decision.
From page 6 to 8 in this letter the complainant then listed 12 separate points that showed where issues had not at all been properly addressed in the Deputy HDC’s letters, and also not by the WDHB’s response from 06 June 2012. Many of his stated arguments and much of his referred to evidence were a repeat of what he had raised and presented before, but he also added new points at issue, that were based on newly obtained information, which showed how the counsellors he had previously seen at the service provider of WDHB had misrepresented information, had recorded false information, had lied and also tried to blemish his reputation, to cover themselves. He mentioned how the first counsellor he saw during 2009 did not even have the full qualifications then, which Dr Bramley had listed in his further response. The complainant firmly rejected the Chief Executive’s assertion that he had been provided with “appropriate care”, “clinical management” and “support” during the course of his treatment. He did also not accept that WDHB had properly investigated his complaint.
The complainant criticised Ms Baker for having ignored information he had sent in on the DAPAANZ and its unacceptable handling of a separate complaint. He mentioned that both counsellors who he had complained about were registered members with that Association, and that their employer was even the Chair of their Board, raising serious questions about the ‘Professional Standards Committee’ appointed by that Executive Board acting independently.
He also raised natural justice issues re the way his complaint had been mishandled from the beginning. He reasserted that the summarised complaint would have to be viewed together with information he had already sent in on 08 August 2011. He later had to resubmit some information, which had not been received well, he wrote. Hence he expected that all this information, including what he had to add at a later stage would have to be considered.
So in summary, the complainant did ask for a review of the assessment, investigation and decision made on the complaint. He also expected that the Mental Health Commissioner would be consulted and involved in this process. He criticised Deborah O’Flaherty’s comments in her letter from 16 May 2012 that as their Office would not have the resources to process large amounts of information, attachments (to emails) would not be read in their entirety. He felt this comment and conduct were unacceptable. The complainant did in the end of his new letter also mention, that he had learned, that Theo Baker had once worked for ‘Capsticks Solicitors LLP’ in the UK, who had for many years been loyal and committed legal representatives for the NHS and other leading health service providers there. He expressed concerns about how committed she may be in her present role.
This letter was sent to the HDC by email at 10.05 pm on 25 June 2013, after the O.I.A. and Privacy Act requests had also been sent in on 24 and 25 June 2013. Also was a hard copy of the same response letter sent off by parcel post on 27 June 2013.
Here is a link to the PDF with the complainant’s reply letter to the HDC from 25 June 2013:
HDC, complaint, C11HDCxxxxx, WDHB, response to fin. decision, anon, 25.06.2013
The complainant sends off a further O.I.A. and Privacy Act request on 02 July 2013
On 02 July 2013 the complainant sent yet another brief request under the O.I.A. and Privacy Act to the HDC Office, as he had forgotten to include some specified information in the earlier sent ones from 24 and 25 June. He now also requested the following:
“Please do also provide me with the following specified information:
Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (short DAPAANZ) in relation to the above mentioned complaint matter.
This would include Executive Director Ian MacEwan, Chairperson Wxxxxxxx Txxxxxxxxx, or any other member of the Executive and/or staff – or member – employed by that association.
In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations”.
Here is a link to the PDF with the further O.I.A. and Privacy Act request by the complainant:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqst, anon, 02.07.2013
The complainant presents the HDC a decision from the Privacy Commissioner who ordered DAPAANZ to release personal information held on him
Following a complaint to the Privacy Commissioner earlier in the year (dated 26 Jan. 2013), the complainant would in early July receive a decision which informed him that the DAPAANZ had been asked to release correspondence and notes containing personal information on the complainant to him.
As this was a major development in his dispute with DAPAANZ, he considered this was also information that should perhaps be considered by the HDC and his staff. Hence at just before midnight on 09 July 2013 he sent the HDC Office one more email that had attached an earlier letter from the Privacy Commissioner dated 01 March 2013 and also the very recently received decision by that Commissioner dated 05 July 2013.
Although possibly not of direct relevance to his HDC complaint, the complainant felt, it was information the HDC should know about, as it related to the counsellors complained about, and also their employer, who appeared to be making efforts to assist his staff getting off the complaints.
The HDC’s Legal Advisor Georgina Rood’s response to the O.I.A. and Privacy Act requests
On 22 July 2013 the complainant received a letter signed by Georgina Rood, Legal Advisor, from the HDC Office, which was dated 18 July 2013 and contained information he had sought with his O.I.A. and Privacy Act requests from 24 and 25 June and 02 July 2013.
A fair amount of the provided information had indeed already been supplied with the earlier O.I.A. and Privacy Act response from the HDC Office, which was sent to the complainant by Lydia Wadsworth, Legal Advisor, on 23 March 2012. But there was some correspondence and other complaint file information that was more recent and partly new to the recipient.
This included a letter from Deborah O’Flaherty to the Chief Executive Officer of WDHB dated 16 May 2012, with which the HDC Office sought further information from WDHB to answer bullet point listed outstanding concerns the complainant had raised, according to the HDC that is. These bullet points resembled or were even identical to the ones that Theo Baker had listed in her last decision from 14 June 2013.
That particular letter would also reveal, that the HDC had actually also written the following to the WDHB:“It would be most beneficial if the response could include comments from both Mr Sxxxxxxxx and Mrs Xxxxxx personally”. So the Deputy HDC and her Legal Advisor had actually sought comments from the two counsellors, which were though apparently not being provided by Dr Bramley from WDHB in his letter to the HDC from 06 June 2012. Comments may have been provided to him by the counsellors internally, via the Service Manager, but they were not presented in response statements to the HDC.
On page 2 of this O.I.A. and Privacy Act response letter from Georgina Rood there was also mention of the following: “As you will see from the information released to you and as set out above, HDC sent a copy of your original complaint to WDHB as an attachment to our letter dated 6 October 2011. Your original complaint was made up of three emails, with a total of 14 Attachments. I am not able to say with absolute certainty whether all of that material was sent WDHB; though it is HDC’s usual practice to send the entire complaint to the provider concerned.”
This clarified to the complainant again, that the “original complaint” the HDC was talking about was the one dated 09 August 2011, which was sent in as three emails with attachments, and which did NOT include the complaint letter or any attachments sent on 08 Aug. 2011.
Legal Advisor Ms Good withheld in their entirety (see page 2):
“● requests for legal advice in relation to this complaint from HDC staff to HDC’s legal team; and
● legal advice provided in response to those requests.”
She wrote there was no other record on file (apart from what had been mentioned and/or provided) of any other communications between HDC staff in relation to this complaint.
There had been NO communications, correspondence or consultations between HDC staff and the Privacy Commissioner, the client’s and complainant’s GP, the complainant’s former counsellors, the client’s former facilitator or psychotherapist from a specialist psychotherapy service, the Mental Health Commissioner or anyone at DAPAANZ, the Legal Advisor informed. There had also not been any other direct contact with any other person at the service provider in question or WDHB, besides of one phone conversation with the Service Manager, besides of the correspondence with Dr Bramley, she clarified. The counsellors were understood to have contributed to the response from WDHB dated 06 June 2012.
So the complainant had at least got some useful information about how his complaint had been handled and re what happened behind the scenes.
Here are links to PDFs with a scan copy of Georgina Rood’s letter from 18 July 2013:
HDC complaint, WDHB counsellor, HDC’s reply to further Priv. Act rqsts, G. Rood, 18.07.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act reply, G. Rood, 18.07.13
Here are links to that important letter that the HDC sent to WDHB on 16 May 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, 16.05.12
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, hilit, 16.05.12
Other documents sought through the O.I.A. and Privacy Act requests has already been made available earlier, and can be found via other links shown further above. If they are not shown, they are of little importance or relevance.
The complainant’s letter providing crucial new evidence he received from DAPAANZ, showing how the employer assisted his counsellors in getting off any claimed breaches
On 02 August 2013 the complainant received a letter from Mr Ian MacEwan at the DAPAANZ, with which he was presented 22 emails, letters and notes that had been created, recorded and kept in a complaint file with the complainant’s personal information in it. A fair amount – if not most – of this information included correspondence and notes that formed part of communications and discussions that the ‘Professional Standards Committee’ (PSC) members had, when processing and deciding on the complaint about the two counsellors as members of their Association. They were the same counsellors employed by the provider that belonged to WDHB, about whom he had complained to the HDC.
Upon reading the highly sensitive and revealing information, it had become evident, how appallingly the complaint had been dealt with, and how apparent bias could be detected in comments by two of the three Committee members. He could see how the employer of the counsellors, who also happened to be a senior member of the DAPAANZ Executive, was even allowed input by giving his “advice” on crucial matters – as the “employer” of the accused. It was apparent, how the main counsellor, who was asked questions, was in the end being “guided” and assisted through the “investigation” process, as he was basically provided with the right kind of legalistically formulated answers, that would help him get off the allegations and claims made against him. This was allowed although he had initially been found to be “stonewalling”.
The complainant was furious and appalled about the evidence before him, and he felt that this information should certainly also be of interest to the HDC, and possibly be considered with material already provided. The information from DAPAANZ showed how defensive, deceptive and dishonest not only the counsellor but also his employer was.
In his new letter to the HDC, dated 05 Aug. 2013, the complainant first thanked for the information the HDC’s Legal Advisor provided with the letter from 18 July 2013. He did then comment critically on the little changed bullet points that had been presented to the WDHB in the letter from the HDC dated 16 May 2012. They would give insufficient consideration to the points of concern he had raised and evidence he had mentioned in his letters from 27 and 29 March 2012, he wrote. He felt that no proper efforts appeared to have been made to actually look at the abundance of clearly documented evidence that he had presented.
Then he insisted that the HDC should seek the confirmation of evidence he had supplied, and for any other details that may be relevant, from persons he listed from a) to h). These included his doctor, a formerly consulted psychotherapist, a psychologist, an investigator at the Privacy Commissioner’s Office, the two counsellors/clinicians he had seen at the service provider (faced with his complaint), the Counselling Manager (aka ‘Service Manager’) at that service, and Mr Ian MacEwan, Executive Director at DAPAANZ.
In a ‘Part 2’ of his letter he then outlined in more detail, what the emails and notes he had received from DAPAANZ actually contained in the way of comments and exchanged correspondence between the members of the so called ‘Professional Standards Committee’ of DAPAANZ. In chronological order he quoted extracts from emails, and thus gave evidence of how the employer of the counsellors, who was at the same time the Chair of the DAPAANZ Executive, was able to have input in the review of the complaint before that Committee. It showed how the one counsellor who the complainant saw during 2009 was being assisted to find and then give the answers to get him off the alleged claims made against him. He also revealed how the employer of the counsellors contradicted himself re the provider’s rules and their staff’s scope for writing support or advocacy letters. The counsellor defended himself with the bizarre claim, he could not comment on any file notes, as he had not received any authority from his former client to release such. There was at no time any thought given to whether the former client should actually have been approached and asked by the counsellor or his manager to give permission, which never happened. Also would this ‘PSC’ never approach the complainant to seek his authority for his notes to be discussed by the clinician.
The complainant pointed out, how some of his own former comments, how his file notes and so forth were taken out of context, were misrepresented and misinterpreted, and how some Committee members appeared to have a bias against him as the complainant from the very beginning of the review. The complainant concluded that the “hearing” that the Committee held was conducted by biased persons who also unreasonably allowed the employer input in the process (while having a clear conflict of interest). He raised issue with the PSC members acting under “anonymity” when examining the complaint. He considered that the decision was even without any legal validity, due to the unfair and unreasonable process that had been followed, and due to how the bizarre decision had been presented. He explained how the DAPAANZ tried to cover the whole matter up, after the complainant filed a request under the Privacy Act as early as on 05 Dec. 2012. Only after the Privacy Commissioner ordered the DAPAANZ Executive Director to release the information, did the Association reluctantly comply (possibly not even providing all information they still had).
The complainant stated also that the employer of the counsellors, Mr Txxxxxxxxxx, had deceitfully exploited the premature decision by Theo Baker (from 24 Feb. 2012) to close the file in this case with the HDC office, by claiming to the DAPAANZ ‘PSC’ that there had been no other complaint, consequent investigation or still unresolved process in relation to counsellor Mxxxxxx Sxxxxxxxx as his employee. In doing this he took advantage of the Deputy HDC’s flawed earlier decision to defend his staff member, and to assist him getting of the allegations made against him to DAPAANZ. Apparently in email 6 of the DAPAANZ correspondence in relation to the complaint the employer was quoted stating this: “There are no past or present concerns in terms of clinical practice or ethics, nor any outstanding processes or investigations regarding either of the named clinicians with regard to any allegations, which may have been made against them.”
In order to emphasise this, the complainant wrote in his letter to the HDC on 05 Aug. 2013:
“So here is the proof that your Health and Disability Commissioner Office’s failure to properly, thoroughly and fairly investigate, to actually look at the sufficient evidence, and challenge Waitemata DHB and XXXX on it, you allowed them and their employee Mxxxxx Sxxxxxx “off the hook”, so to say, even encouraging them to use the inaction by HDC to throw out my complaint made to DAPAANZ!”
Mentioning the more than two years time the complainant had spent on raising this matter with the HDC Office, he appealed to Anthony Hill to follow his request to conduct a thorough review in the whole matter. He had suffered immensely due to the professional misconduct of the health professionals he had raised issues about, he wrote, and he concluded with saying, it was in Mr Hill’s hands to finally sort all this out.
To gain a greater insight and understanding of the issues with the DAPAANZ report and decision, and the emails received from DAPAANZ, plus what some of the crucial contents of them was, the reader here is best advised to read the whole letter, which the complainant wrote and sent to the HDC by email on 05 August 2013. 6 PDF files with copies of the emails and so forth were attached to the email. An also attached authority gave permission to the HDC staff to contact his doctor and other mentioned health professionals and one other persons, to seek and obtain confirmation for the evidence he had provided. A separate hard copy of the letter and authority were also sent by parcel post on 07 August 2013.
Here is a link to the complainant’s letter to the HDC, dated 05 Aug. 2013:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, crucial evidence, ltr, 05.08.13
The HDC’s Associate Commissioner’s final decision on this complaint from 03 Oct. 2013
After waiting a further couple of months, the complainant would on 05 Oct. 2013 receive an apparently absolutely final response in this complaint matter from Associate Commissioner Katie Elkin (responsible for Legal and Strategic Relations). It seemed that at this stage the complaint matter was exclusively being handled by the HDC’s senior legal staff.
Under now only three bullet points Ms Elkin listed as ‘Your concerns’ only a few selected points at issue, which the complainant had raised in his last and earlier correspondence:
“● The information released to you by this Office under the Official Information Act shows that there has been “absolutely insufficient consideration to important points of evidence” that you have raised.
● This Office has not contacted other parties to confirm the evidence you have presented or to obtain further information relevant to your complaint.
● You have received information from the Addiction Practitioners’ Association Aotearoa New Zealand (DAPAANZ) which shows that DAPAANZ was biased and unreasonable in responding to your complaint about clinicians Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx.”
She also wrote:
“You ask for “a review of the initial assessment, the investigation and the final decision” in relation to your complaint to this Office.”
Then she writes under ‘My response’:
“Your file and the decisions made on your complaint have already been reviewed on multiple occasions. Following your most recent correspondence, your file has again been reviewed. Having considered all relevant information, I am of the view that the Deputy Commissioner’s decision to take no further action on your complaint remains appropriate.
Please note that your complaint was not formally investigated. As you will appreciate, it is for the Commissioner and Deputy Commissioners to determine whether to formally investigate a complaint, and only a small proportion of the complaints received each year proceed to formal investigation. The Health and Disability Commissioner Act 1994 provides a number of other resolution options, including the option to take no further action under section 38(1). This option is exercised only after careful assessment of all relevant information at the initial complaints assessment stage. This is what occurred in relation to your complaint. I am satisfied that all relevant information has been taken into account in reaching that decision.
I note that your concerns about the process and decision of DAPAANZ’s Professional Standards Committee are outside the jurisdiction of this Office as DAPAANZ was not providing a health or disability service to you. I suggest that you raise your concerns about DAPAANZ’s process directly with that organisation.
Given the above, your complaint will remain closed. I understand that this is not the outcome you were hoping for. However, I do not consider that further consideration of the same matters raised in your initial complaint would be productive.”
This did read and sound like a broken record to the complainant, and he realised, how the HDC’s Associate Commissioner, same as before the Deputy Commissioner and the Legal Advisors, appeared to choose to be wilfully ignorant of facts they simply did not want to have any knowledge of. It looked like they were wearing mental “blinkers” and made every effort to not acknowledge as “relevant” any information that could put any earlier decisions into question. They indeed appeared to do anything possible to protect the WDHB’s Chief Executive Officer and his position, which he had taken in defence of the Service Manager and the staff of the provider of services that had been challenged by the complaint. Carefully worded legalistic explanations appeared to be used repeatedly, to simply dismiss issues and evidence. Endless discretion appeared to be used in assessing and deciding complaints and the complainant would never be told, what the HDC would have considered as being relevant, and what not so, as only general comments were made. Any new information that could threaten their earlier position and decision as being seen to be unfair, unreasonable or even illegal, was simply dismissed as not being relevant, or raising matters that were “out of scope”. The stretching and bending of explanations, arguments, excuses and decisions by the HDC made them look like engaging in extreme forms of “legal gymnastics”.
Please use these links to a copy of Ms Elkin’s response letter from 03 Oct. 2013:
HDC complaint, WDHB counsellor, HDC’s final dec. on review reqst, K. Elkin, 03.10.2013
HDC complaint, WDHB counsellor, HDC’s final review + decision, K. Elkin, 03.10.13
PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE
Even though all efforts to appeal to the HDC, and to also try and hold the HDC to account for their responsibilities and flawed decisions, appeared to be futile, the complainant would not yet give up. He continued to express his disappointment, frustration and even anger at the in his view totally unacceptable assessments and decisions. He would on 07 October 2013 file yet another request under the O.I.A. and Privacy Act for specified information with the HDC.
The request included the following information:
“I ask you to supply the below listed information in the form of good quality photo copies, system printouts or other easily readable documents, covering all of the information that was not yet covered and/or presented upon a previous request of this nature:”
“A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff, including those at XXXX) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference.
B. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s offices (both Auckland and Wellington), same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint.
C. I ask you furthermore for information on any contacts your office had in this matter with the Privacy Commissioner, The Addiction Practitioners’ Association of Aotearoa – New Zealand (DAPAANZ), Mr Wxxxxxxx Txxxxxxxxx (Chair at DAPAANZ, Manager at XXXX), Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx (counsellors at XXXX), Mr Xxxx Pxxxxx at ‘Xxxxx Xxxxx Psychotherapy Services’, Xxx Lxxxxx at ‘XxxXXXX Psychological Services’ and my GP, Dr Xxxxx Txxxxxx. If any consultation or correspondence was conducted between your offices and these persons, I request copies of this.”
This O.I.A. and Privacy Act request was sent off after 08 pm in the evening of 07 Oct. 2013, together with a rather angry letter in response to Ms Elkin’s letter from 03 Oct. 2013, and yet another request for information in relation to his other complaint under ref. C12HDCxxxxx.
Here is a link to the PDF copy of the draft letter with the complete text from 07 Oct. 2013:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, new, anon, 07.10.2013
The complainant’s final reply to the Commissioner from 07 Oct. 2013
Naturally being extremely disappointed the complainant saw a need to express his utter disappointment, frustration, disillusionment and even anger about the HDC’s last correspondence in this matter, and the decision they upheld despite of ample compelling evidence proving the misconduct of the counsellors at XXXX Xxxx as part of the WDHB.
He acknowledged the letter he had received from Katie Elkin, stating the HDC Office’s final position. He mentioned the information he had recently received from the DAPAANZ (after the Privacy Commissioner’s intervention) and referred to the employer of the counsellors complained about, and how he had involvement in the complaints handling by the PSC of DAPAANZ.
The complainant then wrote that he had made the HDC Office aware of the fact that the same employer, who was also the Chair of the Executive of DAPAANZ, had taken advantage of Deputy Commissioner Theo Baker’s refusal to investigate his complaint to the HDC. He wrote that the employer and DAPAANZ Executive Chair had used her decision in defence of his staff during the “investigation” by the PSC (appointed by the DAPAANZ Executive).
Critically reflecting on Ms Elkin’s letter, from which he quoted, he then wrote:
“From this I can come to my own logical conclusion that your Deputy Commissioner Theo Baker has simply applied her own subjective decision making in this whole complaint matter, and the supposed “reviews” are simply claims that I consider to be totally unsubstantiated. If a proper review of my file had ever been conducted, the clear contradictions and untrue statements and claims by the respondents and their employer, the unreasonableness of the Deputy Commissioner’s decision to not further investigate, and also presented solid evidence would have become overwhelmingly convincing.
It is my impression that your staff members apply a “prioritisation” and “reprioritisation” approach to complaints that leave too many to drop below the desk, so to say. I am informed that your office has been facing serious funding issues, and therefore a lack of resources, to deal with a growing number of complaints and case loads. Your office depends on funding under the Ministry of Health, or other government spending, and the government does itself set certain priorities by limiting funding, that affect your office’s ability to address complaints.
If the cases are not considered “serious” enough, they are likely to be treated like my complaint, and basically get thrown out of the process. By this you do though treat mental health sufferers, and consumers of services in this area, with utmost contempt. I asked that the Mental Health Commissioner takes a look at my complaint, and I expected a proper review to be done, but the response from your legal department does not even address the justified requests and answers I raised!
Hence I challenge you to answer to me, whether this matter and ALL evidence was put before your Mental Health Commissioner, same as the head Commissioner, Mr Hill, as that is what I asked for.
I also have NO response to matters I proposed and asked for in that correspondence from 05 August 2013. Instead I have been sent a legalistically formulated letter, simply justifying your office’s handling, without addressing any of the many concerns I raised fairly and validly. It appears that unless a mental health service consumer suffers death or serious physical injury, then her or his concerns are not taken seriously at all by the Office of the Health and Disability Commissioner.
For years I experienced appalling treatment by XXXX and their staff, and my complaint about Mr Sxxxxxxx and Ms Hxxxxx was not the first one. It was made for very valid reasons, and it was certainly well documented, and more than needed evidence was made available, but your staff did not accept it from the start. That in my eyes exposes conduct of utter contempt and lack of respect towards a very valid complaint. Indeed my impression is that many staff members that you employ do not deserve to sit and work where they are, given their attitude, their lack of sincerity and qualifications.
With your most insulting final decision in this matter, I feel forced to take matters into my own hands, to address the evident injustices, serious failings, the appalling lack of standards being enforced that abound in this country. New Zealand does to me increasingly ring into my ears as a country of utter hypocrisy, of deception, lies, manipulation, of “old boys” and “old girls networks”, indeed corruption on a wider scale, and the lack of actions by your office have only reinforced my view that it was the biggest mistake I ever made, to return to this country, that unjustifiably calls itself one of the “least corrupt” places on this planet.
The suggestion I take my concerns about the handling of my complaint by DAPAANZ to them again, that is the most absurd recommendation I have ever received from your office. It is like going to the abuser, to seek redress for abuse! It is clearly an organisation run by a tight nit Executive, whose members are headed by the very employer of the persons I complained about!”
The letter continued a wee bit with some further hefty criticism of DAPAANZ, the Commissioner’s Office and how complainants appear to be treated by them. We refer you to the full letter to the HDC that the complainant wrote on that day, and sent off after 08 pm in the evening of 07 October 2013, which is found via this link:
HDC, complaint, C11HDCxxxxx, WDHB, reply to fin. decision, anon, 07.10.2013
The email carrying that letter and the further requests for information was confirmed as having been received by Exxxxx Lxxx, Legal Team Administrator, at the HDC Office by email at 12.31 pm on 08 Oct. 2013.
The letter from the HDC’s Legal Advisor, Georgina Rood, providing remaining information sought per O.I.A. and Privacy Act – from 04 Nov. 2013
On 07 Nov. 2013 the complainant would receive a response from the HDC Office, this time again from Georgina Rood, Legal Advisor. She replied to the complainant’s last letter and gave answers and provided limited information to the O.I.A. and Privacy Act requests.
She ignored the hefty criticism and angry comments the complainant had expressed in his letter from 07 October and instead only addressed information matters.
She wrote in response to request or question A) in the complainant’s letter from 07 Oct.:
“There is no record on this complaint file of any contact between HDC and Waitemata DHB having occurred since your last information request. I therefore refuse this aspect of your request pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”
In response to request/question B) she wrote:
“I have withheld, in its entirety, a legal advice memorandum prepared by a member of HDC’s legal team in relation to this complaint. This document is withheld pursuant to section 9(2)(h) of the Official Information Act and section 29(1)(f) of the Privacy Act, in order to maintain legal professional privilege.”
“Aside from that document, there is no other record on this complaint file of any communications between HDC staff having occurred since your last request information request. I therefore refuse this aspect of your request, pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”
In response to request/question C) she wrote:
“There is no record on this complaint file of any contact between HDC and these parties having occurred since your last information request….”
Please click these links to find the PDF with the HDC’s truly final response in this matter:
HDC complaint, WDHB counsellor, HDC’s further reply to Priv. Act rqst, G. Rood, 04.11.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act response, hilit, G. Rood, 04.11.13
There was no further correspondence from the HDC Office to the separate letter by the complainant from 07 October 2013, in which he expressed strong criticism about the whole handling of his complaint. It appeared the HDC considered the matter closed for good, and did not wish to engage into further correspondence.
The complainant himself had given up on this complain, as he was being kept busy with other matters he had to address, and as he now also experienced similar problems with the second complaint he had before the HDC Office under reference C12HDCxxxxx, which was already covered at some length under a post found via this link:
After being treated with such contempt by the HDC Office, the complainant now saw no other available ways of addressing the raised issues he experienced with the counsellors employed by the service provider managed and operated by or under the WDHB. Not only did the HDC dismiss the blatantly obvious professional misconduct by the counsellors at that service, the DAPAANZ did the same. The employer, who was Chair of the Executive of that Association, covered his staff and did directly and indirectly involve himself in the “investigation” or review of both complaint matters. He continued to operate in both his roles, as we know up to this day. So do both counsellors continue to work in their roles and fields, having suffered NO consequences at all from noting false information in client files, from misrepresenting facts, from breaching client confidentiality rules, from acting in neglect and through displaying a clear bias and levels of incompetence.
PART 8: CONCLUSION
In late 2013 the complainant would file two complaints with the Office of the Ombudsmen, of which one was about the HDC’s handling of this complaint, and the second one about a clearly biased, also inappropriately acting WINZ “designated doctor”. While that matter also dragged on for months, it was decided on in a similarly dismissive fashion on 28 May 2014, as the Office of Ombudsmen was then clearly under immense work-load pressure and severely under-funded. This and the apparent incompetence of an investigator showed in the “decision” that was then presented. The Ombudsman also saw no need to investigate. A request for review was treated in an appalling manner by Ombudsman Beverley Wakem.
Her decision would later even be presented to the Speaker of the House of Representatives, but as we learned, he did not wish to have anything to do with this, referred it back to the Ombudsman, who simply rejected any failures or mistakes. We endeavour to present the course of the handling of those complaints and requests in a separate post, as it is impossible to further add to this already very extensive post.
More recent follow-up O.I.A. and Privacy Act requests to the HDC
But more recently a further attempt was made to obtain some more information in relation to this complaint matter, and also in relation to the other one. It was on 19 October 2015 when the complainant wrote again to the HDC and asked for the following information, again under the O.I.A. and the Privacy Act:
“A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and of any notes and transcripts made of phone calls (ingoing and outgoing), and also of relevant internal and external discussions and created reports, generated, sent, or received and exchanged between any of the various persons involved in the filing, processing, assessment and initial decision-making of complaint C11HDCxxxxx at the Health and Disability Commissioner’s Office, for the period from 08 August to 16 August 2011. This would naturally also include any of the above in relation to me as the complainant.
B. I request authentic photo copies, and/or printouts of digitally stored copies, of all written correspondence and attached documents received by the Office of the Health and Disability Commissioner from Dr Dxxxx Xxxxxxx, in particular being correspondence dated 20 September 2012, only some of which appears to have been provided to me before with a letter from Ms Georgina Rood, Legal Advisor, dated 04 Nov. 2013. This is in relation to complaint C12HDCxxxxx. In the copy of the main letter from Dr Xxxxxxx to your Office from that date, I read a reference in his letter, which states the following: “As I did not provide medical treatment to Mr Xxxxxxx (misspelled) I am of the understanding that all complaints of this nature are more correctly addressed by the Medical Appeals Board. I attach a letter dated 16 August 2010 from your department which outlines such policy previously.” A copy of that attached letter dated 16 August 2010, which appears to have been generated and sent by your Office’s legal department to possibly general practitioners, WINZ designated doctors, medical practitioner or health professional organisations, or any other affected party, and with that apparently also Dr Xxxxxxx, was never included in any of the documents sent to me. I therefore ask for a copy of that particular document now. Even if some bits of the contents of that letter may need to be withheld for privacy reasons, it is my firm view, that making this letter available is certainly in the public interest.
C. I request also information on the particular reason, as to why with the initial decision in complaint matter C12HDCxxxxx, dated 24 February 2013, and sent by Ms Theo Baker as Deputy Commissioner, only a copy of Dr Xxxxxxx’s letter from 22 November 2012 had been attached. I seek information and an explanation as to why the earlier response your Office received from Dr Xxxxxxx (dated 20 Sept. 2012) had been withheld from me as complainant for nearly one year after your Office received it from Dr Xxxxxxx, and why it was only provided to me upon my Official Information and Privacy Acts requests from 07 October 2013. I may point out, that this again raises very serious issues with your Office’s complaint handling, as I must observe a clear failure in your Office’s adherence to the core principles of natural justice.”
Please find the complete request in a PDF that can be loaded via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, O.I.A. +Priv. Act rqsts, new, anon, 19.10.15
A response by Senior Legal Advisor to the HDC, Helen Davidson, dated 17 Nov. 2015 followed, which is attached here:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, anon, 17.11.15
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, hilit, 17.11.15
Senior Legal Advisor Helen Davidson provided information to request ‘A.’, which now included an “edited” phone log for around 11.35 am on 09 August 2011, which the complainant had so far not been provided with. It covered the phone call by the Complaints Assessor Axxx Lxxxxx, who called the complainant on that day to explain that his emails and attachments were allegedly “freezing” their computer system. The notes that had been recorded on that log entry on the file did not correspond with what the complainant remembered having been discussed. He only remembered the Assessor giving technical reasons for the initial complaint not being able to be processed, but in the log there was now also talk of administrative reasons. As he suspected the log had later been changed or “falsified”, he sent in yet another letter to the HDC on 24 Nov. 2015, a copy of which can be found via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, 24.11.15
Here are links that show the received phone log, which was also already provided in the beginning of this long post (one copy is not market, the other one is highlighted with some manually noted down comments by the complainant):
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11
The complainant asked for an explanation and for a correction of the file notes, adding that he had a different memory of the phone call and its contents. As no response was forthcoming, the complainant was then forced to chase up this request for further information (also in the other complaint matter) with two further letters on 15 Dec. 2015 and 15 Feb. 2016, which referred to the earlier letter from 24 Nov. 2015, again asking for a response.
Finally, in late February 2016, a letter with further information and explanations was received from the HDC Office, dated 19 Feb. 2016. It was again a letter from Katie Elkin, Associate Commissioner, who gave the following explanations in relation to this complaint matter:
“File note from Mr Xxxxxx from 9 August 2011”
“You also raise concerns with a file note by Mr Xxxxxx of 9 August 2011, including that the note recorded incorrect information, has been improperly altered, and that the file note was not provided to you when you made previous requests for information to this Office.
As is evident from the file note, this was originally lodged under a previous complaint you had made to this Office, but was loaded under C11HDCxxxxx in March 2012. I understand that it is for this reason that the date “6 March 2012” is present on the file note; this was the date on which a file note was transferred to file C11HDCxxxxx once it became apparent that the file note had been placed on an older file. While it is clear that the file note was moved to the appropriate file, there is nothing to indicate that is has been improperly altered by Mr Xxxxxx as you allege. In particular, I note that there is no change in wording from the original file note of 9 August 2011 on your older file and the file note on C11HDCxxxxx other than to acknowledge the movement between files.
Notwithstanding this, I acknowledge that you disagree with Mr Xxxxxx’x record of your conversation, and, as requested, your position regarding the accuracy of that record has been recorded alongside that file note on your complaint file.
I note that the file note did not fall within the ambit of previous information requests you have made to this Office, with the exception of your request of 4 March 2012. Unfortunately it was not evident at that point that the file note in question had been placed on the file for a previous complaint you had made. We apologise for that oversight and note that you have now been provided with a copy of the file note.”
The letter from Ms Elkin that contains these explanations is found in a PDF via these links:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, 19.02.16
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, hilit, 19.02.16
The letter from the HDC has since been followed up, and as answers given re so far refused information and outstanding questions were not satisfactory, the matter has also now been referred to the Ombudsman to resolve. The complainant was not convinced that the above log for that phone call on 09 Aug. 2011 had been put on the older file (from 2007!) by accident, as that file had long been closed, and a new file appeared to already have been created on 08 August 2011. It is also hard to believe that this document was “overlooked” when an O.I.A. and Privacy Act request was filed with the HDC on 04 March 2012, as such requests generally take days or even weeks to be processed and responded to. If it had been shifted from one file to the correct one C11HDCxxxxx on 06 March, it must have been found then.
This raises even more questions, including the one, whether the HDC did intentionally withhold this phone call log for so long, as the HDC Assessor and his superiors may have feared legal challenges due to their bizarre, unconvincing claims that the emails sent on 08 August 2011 “froze” their system.
What we have learned through the above complaints handling and decision making shows that the HDC appears to follow highly questionable, inappropriate if not even potentially illegal practices. The following points of immense concern stand out:
● HDC staff – likely instructed to do so – used lies and unconvincing claims that emails did “freeze” their system in order to avoid having to deal with a complex complaint.
● HDC staff – likely instructed to do so – forced the complainant to “summarise” a very complex complaint into a 2-3 pages long complaint, ignoring all earlier sent evidence.
● The Deputy HDC first picked only one main “issue”, and later only a few bullet points of “concerns” the complainant raised, ignoring the wider range of Code breaches.
● The Assessor and Deputy HDC offered the Chief Executive Officer of WDHB a back-door by only requiring a “general overview” of the complainant’s treatment and “care”, enabling the employer to avoid answering to particular breaches.
● The Deputy HDC dismissed the complaint, deciding not to investigate it, despite of overwhelming documentary evidence of two counsellors breaching the Code of Rights.
● Requests for re-assessments, reviews of decisions and an investigation were dismissed as being unnecessary, and flawed decisions were upheld, ignoring existing and new compelling, documented evidence of breaches of the Code of Rights.
● The HDC used legal expert advisors to provide legalistic explanations and excuses to dismiss the complaint, ignoring relevant evidence or declaring such as “out of scope”.
● The employer of the counsellors complained about, was allowed to influence the reviewers of both complaints, by selectively presenting misleading information and untrue statements, and thus helped his staff members to get off both complaints.
There is sufficient anecdotal, and increasingly more reliable factual evidence of the HDC actually making significant efforts to keep investigated complaints at a minimum, by using questionable, inappropriate and possibly even illegal methods to dismiss complaints as not requiring any investigation or any further action. At least natural justice principles appear to have been breached. Therefore we are of the view that these concerns raised in this post deserve greater and wider scrutiny, and ideally an official investigation into the operation and processes followed at the Office of the Health and Disability Commissioner.
Also is a proper, wider review of the Health and Disability Commissioner Act 1994 overdue, which should not be limited to the less publicised reviews the HDC conducts from time to time, but which should involve much wider consultation, by introducing a Bill. A proper parliamentary legal reform process would have to be followed, including Select Committee hearings, and a law change should give the HDC more powers, including some mandatory actions he/she should have to take where serious and certain specified breaches of the Code are established. The ability to make a decision to take no action, or to take no further action, should be restricted to truly minor breaches of the Code.
This would have to be complemented with better financial and personnel resourcing of the HDC Office, so the Commissioners and their staff can actually fulfil the purpose of the Act.
Quest for Justice
(Post completed on 03 May 2016 and updated on 09 May 2016)