THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME


THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME

 
 

A post on a decision by former New Zealand Ombudsman Beverley Wakem on complaints about the Health and Disability Commissioner (HDC) – revealing how at least some of her assessments and decisions were clearly flawed!

 

Published: 24 July 2016

 
 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE FIRST COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST CODE BREACHING COUNSELLORS
PART 3 – THE SECOND COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST A BIASED WINZ DESIGNATED DOCTOR
PART 4 – THE BIZARRE, INCOMPREHENSIBLE COMPLAINTS ASSESSMENT AND ANALYSIS BY AN OMBUDSMAN’s INVESTIGATING OFFICER
PART 5 – THE OMBUDSMAN BEVERLEY WAKEM DECIDES THAT NO ACTION IS NECESSARY, IGNORING COMPELLING EVIDENCE
PART 6 – THE COMPLAINANT’S OBJECTIONS TO THE COMPLAINT HANDLING AND DECISION AND HIS REQUEST FOR A REVIEW
PART 7 – OMBUDSMAN BEVERLEY WAKEM BLUNTLY REFUSES TO REVIEW THE COMPLAINTS, USING QUESTIONABLE DEFENCES
PART 8 – CONCLUSION: “FAIRNESS FOR SOME, CERTAINLY NOT FOR ALL”

 

Please note: Where references are made to the Ombudsmen Act 1975, the version valid Nov. 2013 to July 2014 applies!

 

PART 1 – INTRODUCTION

Those familiar with this blog site, and those who read two earlier posts about the complaints handling by the Health and Disability Commissioner (HDC) – or rather his former Deputy and his Associate Commissioner – will know about some very serious issues that exist with the handling of complaints by that particular Officer of Parliament.

Instead of conscientiously and effectively acting in the spirit of the purpose of the Health and Disability Commissioner Act 1994 (HDC Act) (see section 6) it appears to many complainants, that there exists a “complaints resolution” regime where an excessive use is made of “discretion”, possibly to keep the numbers of complaints down, by simply dismissing a significant number of the many valid complaints that are made. A high percentage of complaints to the HDC have been dismissed – or were “resolved” (i.e. closed) – with the explanation that they were “not needing any action” or “not needing any further action” (as per provisions in section 38). An analysis of data contained in the Annual Reports of the HDC Office and other obtained information raise very serious questions about the complaints handling by that Office.

The same happened in the case of two separate complaints that were made by a complainant (known to us) to the HDC in August 2011 and also in late June 2012, where the Deputy HDC, later supported by the Associate HDC, decided that investigations were “unnecessary”, or that “no further action was needed”. We covered these two complaints in some detail in two long posts on ‘nzsocialjusticeblog2013’, and they are found under these links:
https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

An earlier post raising questions about the actions, or the lack of actions and performance by the HDC, and also covering the legal complications there are with HDC complaints, same as media reports and commentary is found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

After the mentioned complainant, having suffered for years from complex and serious mental health issues, was basically nothing but “fobbed off” by the Deputy HDC and her colleagues, and when suffering further immense distress due to this, he decided to file two separate complaints against the HDC with the Office of the Ombudsmen. The first complaint was dated 07 Nov. 2013 and sent in on 13 Nov. 2013, and the second complaint was dated 16 Dec. 2013 and sent in on that same day. He spent a long time preparing the very detailed, well presented and solidly backed up complaints. He provided ample of supporting documentary evidence, and he trusted that the Ombudsman would look at the matters with the appropriate due care, scrutiny and expert knowledge of the law. He had some faith in the Ombudsman, that as the top watchdog in New Zealand she would be fulfilling her functions with the expected dedication and responsibility, and that she would make a fair and reasonable decision and recommendation on matters presented to her. He thought that she would at least offer him a minimum kind of “remedy” for the great injustice that he felt he had suffered from the HDC making unreasonable and unfair decisions, by not appropriately following processes – as it should be expected under natural justice principles.

Our complainant would though – in total disbelief – find out, that also the Ombudman, supported by an apparently either incompetent or otherwise overworked investigating officer, would make a decision to not investigate the complaints he presented, stating rather bizarre and incomprehensible reasons.

In this post we will cover the shockingly poor and questionable assessment of the complaint by the investigating officer, and the difficult to understand forming of her opinion, that led to the ridiculous final decision, which the Chief Ombudsman Beverley Wakem would then rely on, to make it her own. We will show how a following letter by the complainant, asking for a review of her decision, and providing further explanations and relevant information, would be bluntly refused to be looked at, while the flawed decision would be upheld.

After receiving a final decision, which was only reconfirming her initial decision on the matter, the complainant felt gutted, and he lost trust in the Ombudsman and her Office. He would later resort to making a complaint about the Ombudsman’s Office and their handling of complaints, and also raise the very serious funding and other issues with that same Office, to the Speaker of the House of Representatives. The outcome of that process will be covered in a later post that we intend to prepare and publish.

 
 

PART 2 – THE FIRST COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST CODE BREACHING COUNSELLORS

Following the absolutely unacceptable decision by the Office of the Health and Disability Commissioner, to not investigate a complex, very detailed and solidly supported complaint about an alcohol and drug (A+D) counsellor, and also a follow up counsellor at the same service provider, the complainant spent a significant time and effort to prepare a comprehensive complaint about the handling of the first HDC complaint to the Office of the Ombudsmen. The earlier HDC complaint was covered by us in a post found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2016/03/28/how-the-hdc-throws-out-valid-complaints-and-protects-code-breaching-health-professionals-a-true-story/

We recommend to those who have not read that complaint to the HDC, to read it first, to get a better understanding of what this post covering complaints to the Ombudsman is about. The relevant HDC complaint has on this blog been referred to under ref. number C11HDCxxxxx.

The Ombudsman Act 1975 complaint was completed by – and dated with – the 07 November 2013, but was sent in days later on 13 to early 14 Nov. that year, consisting of a total of 29 emails that had a range of relevant PDF documents attached, some containing correspondence with the HDC Office, and others containing further directly and indirectly relevant evidence, to prove the truthfulness of factual details contained in this Ombudsman Act complaint.

A PDF file containing the authentic text of the 8-page complaint letter is found here:
Ombudsman, HDC complaint, C11HDCxxxxx, WDHB, breach of nat. justice, anon, 07.11.13

A PDF file containing the listed attachments sent with emails covering this complaint is found here:
Ombudsman, HDC complaint, C11HDCxxxxx, email attachmts list, mails sent 13-15.11.13

 

The complaint dated 07 Nov. 2013 contained the following authentic text:

Complaint under section 16 of the Ombudsmen Act 1975 – about the Health and Disability Commissioner’s decision to not formally investigate complaint C11HDCXXXXX, after not giving due, fair, objective and reasonable consideration to all relevant evidence

 

Dear Ombudsman, dear staff at the Office of Ombudsmen

Please accept my request for your assistance in the above mentioned matter of greatest concern.

[1] In filing this complaint with the Office of Ombudsmen I wish to assert that this matter is best handled by your office under section 13 of the ‘Ombudsmen Act 1975’, given the fact, that there is no adequate legal remedy that I can reasonably seek under law, or by using other administrative processes, as referred to under section 17 (1) (a) of the Ombudsmen Act. There is no right of appeal of a decision offered under the ‘Health and Disability Commissioner Act 1994’, and even if a judicial review application to the High Court may technically be an option, I cannot pursue such a course, given my very poor mental and physical health, a complete lack of finance, and un-surmountable difficulties to access professional legal representation to pursue proceedings under restricted legal aid. I suffered extremely poor health previously, while being forced to pursue arduous judicial review proceedings against the Ministry of Social Development during 2011. Also in view of section 65 of the Health and Disability Commissioner Act any review sought would have limited prospects for success.

 

Background and summary of complaint handling by the Office of the Health and Disability Commissioner

[2] On 08 August 2011 I sent an initial formal, written complaint to the Health and Disability Commissioner (HDC) by way of about 30 emails with attached PDF files for evidence. For highly questionable reasons my complaint was never accepted by the Office of the Commissioner, as a staff member claimed they were not able to download my emails and attachments, as they were “freezing” their system. Instead I was forced to reluctantly prepare a highly abbreviated, summarised complaint that was supposed to be no longer than 2 pages, but finally consisted of 3 pages. I consequently sent this complaint dated 09 August 2011 to the HDC Office by way of 3 emails with PDF attachments. In it I clearly stated, that it would be essential to also view the already sent information together with that complaint. I insisted that my complaint would be treated seriously and fairly, and I expected a thorough investigation. With this complaint I only supplied a narrow selection of the documents I had sent to the HDC Office by email earlier, expecting that other documentary evidence would be available or requested, if staff at the office would still be unable to download or obtain the evidence I referred to.

[3] After receiving a letter dated 15 August 2011 confirming receipt of my email letters, and stating that my complaint was being assessed, I relied on being contacted again, should any further information or evidence be required, to conduct an investigation into the matters I presented. A further letter dated 06 October 2011 then only informed me that the HDC Office was asking for a response from Waitemata District Health Board (WDHB). As no further response was forthcoming after that, I phoned the office of the HDC on 13 Dec. 2011. Later on that day, I was informed that a response from WDHB would be assessed. I would be contacted again – but not earlier than late January 2012, a staff member said.

[4] On 25 February 2012 I received a decision from Deputy Commissioner Theo Baker at the HDC Office, stating that further investigation of my complaint was “unnecessary”. A matter which I had already raised with XXXX management earlier in 2011 had according to Miss Baker been handled appropriately by WDHB staff. Wrong file entries had then been amended by added notes. It was apparent that Miss Baker’s focus had exclusively been on that “potentially inaccurate information” having been added to my file. Ms Baker even felt “satisfied” that XXXX Xxxx would continue to provide me with “care of an appropriate standard”. She failed to acknowledge other breaches I had complained about, and that XXXX staff never accepted responsibility for the wrong entries made. Her decision was based on a summarised “general overview” of my treatment by WDHB, nothing else.

[5] Extremely concerned about this decision I requested specified information from the HDC Office under the Official Information Act 1982 (O.I.A.) and the Privacy Act 1993 (dated 04 March 2012). A response with revealing information was received with a letter from L. Wadsworth of 23 March 2012.

[6] I wrote back to the HDC Office on 27 March 2012 expressing my strongest disagreement with their decision, questioning the handling of my complaint so far. I reminded The Commissioner that I had initially sent in a comprehensive complaint with much substantial evidence. I also raised the point that I had presented my complaint by covering a much wider range of breaches, and that most of these had not at all been addressed. I stated that there was clear documentary evidence that disproved comments by WDHB and their staff. In detail I pointed out and referenced file and other evidence. I made clear that the only explanation for a named XXXX counsellor’s repeated actions would be bias, which led to a follow-up counsellor to also adopt a bias against me, while relying on false information recorded in my file. I stressed how wrong information was passed on to my own doctor and others, who relied on it. I described the very harmful course of events that followed these actions by XXXX staff. Also did I challenge the truthfulness of CEO Dr Dale Bramley’s comments in his letter to the HDC Office, which only gave an unacceptable “general overview of my care”. I explained some other incidents of incompetence, unprofessional conduct and bias that I had at times experienced from other XXXX staff members. I demanded a complete re-assessment of my complaint, and that all evidence I had sent would be examined. My response was written in great distress.

[7] Following the receipt of information from the HDC Office (under the O.I.A. and Priv. Act), and my letter from 27 March, I presented further submissions to my complaint by way of a letter dated 29 March 2012. I stated that it was unjustified and unreasonable to not further investigate my complaints, as crucial, relevant evidence had not been properly looked at and fairly evaluated. Inaccuracies and mistakes in the assessment of the HDC Office were listed. I pointed out that it was unacceptable by HDC staff to allow WDHB to simply respond by “summarising” information re my treatment and issues, by presenting a “general overview”, which enabled WDHB to avoid responding to individual issues raised. It was proved by me how a follow up counsellor at XXXX Xxxx put incorrect, misleading information into my client file. I presented new clear evidence showing that that counsellor was lying and also biased. I also authorised and invited HDC to contact my own doctor to get confirmation for information I presented being true. Once more I asked for a proper re-assessment of my complaint.

[8] The HDC Office’s Complaints Assessment Manager Deborah O’Flaherty responded to my concerns in a letter dated 16 May 2012, confirming to me for the first time, that only my summarised complaint correspondence from 09 August 2011 had been looked at and examined. She reiterated verbal comments a staff member had made to me on 09 Aug. 2011 that my complaint (by emails) could not be opened on their system “due to its size”. She also confirmed the receipt of 12 further emails from me since then, which contained “large” files. Their office would “not have the resources to process this amount of information”, she stated, and it was simply “not practicable to read each attachment in its entirety”, was her further response. I was informed to keep future correspondence as concise as possible. Apart from that a further response from WDHB had been sought, I was told.

[9] The response from the HDC Office from 16 May 2012 was unacceptable to me, as it raised questions about the competency, performance, effectiveness, reliability and integrity of staff at the HDC Office and their staff. In yet another letter dated 17 May 2012 I stated that it was incomprehensible how their email system could not open ordinary emails with attachments. My emails were of ordinary types and sizes, I explained. I realised that their office would now not properly, sufficiently and reasonably address the issues I had raised, given they had not read and processed the materials supplied. I expressed that I was “soul destroyed” about the previous handling of my complaint. I wrote that I had no hope that a further reply from them would offer the needed, appropriate resolution to this matter. I stated in some despair that I would consider informing the media about this, which I never did in the end.

[10] Following the above correspondence I did again send emails in this matter to the HDC Office on 02 and 06 June 2012, providing further relevant information in relation to my complaint. The email from 02 June referred to false, misleading information the XXXX Xxxx counsellor Mxxxxxx Sxxxxxxxx provided about me to psychotherapist Txxx Pxxxxx at Xxxxx House, and I delivered documentary evidence of this. Receipt of my emails was confirmed as received by email from Jxxxxx Zxxx at the HDC Office on 07 June 2012. In yet another email from 30 Sept. that year I expressed concern about the delay in this matter, asking for an update. An email from J. Zxxx did on 01 October 2012 inform me that the Office was dealing with a large volume of complaints, and that the Commissioner was still reviewing the information gathered on my file. A response in the coming week was indicated.

[11] While no further correspondence came forth from the HDC Office, I did on 06 Nov. 2012 inform their office by email of a separate complaint in the same matter, that I had filed with the ‘Addiction Practitioners’ Association of Aotearoa – New Zealand’ (short DAPAANZ) on 31 May 2012. Both the counsellors I had complained about to the HDC Office under file reference C11HDCXXXXX were members of that Association. I pointed out that the employer of those counsellors, a Mr Wxxxxxxx Txxxxxxxxx, Counselling Manager for XXXX and WDHB, was at the same time the chair at DAPAANZ. He had also communicated in the complaint matter with HDC staff, and presented one or two carefully selected documents in relation to my treatment at XXXX to them. In my email from 06 November I informed the HDC that I had received a scandalous decision from the ‘Professional Standards Committee’ of DAPAANZ in response to my complaint to them. With my email I sent the HDC copies of the clearly biased, unreasonable decision by DAPAANZ, together with my response to it. I stated that Mr Txxxxxxxxx had a clear conflict of interest, and that I suspected his influence on the decision.

[12] In a brief email from J. Zxxx from the HDC Office dated 07 Nov. 2012 receipt of my email from the day before was confirmed. She wrote that the information would be considered with my complaint.

[13] Due to further developments in the unresolved dispute about my complaint to DAPAANZ I did by email on 11 Nov. 2012 send the HDC Office further submissions, which included a new response letter from Mr Ian MacEwan from DAPAANZ from 06 November 2012 – with a reprinted “decision”, a copy of a list of evidence I initially sent to DAPAANZ (from 31 May to 02 June 2012), and my response to DAPAANZ’s final reply, dated 09 November 2012, and with two other documents of relevance.

[14] By email from 30 January 2013 I sent the HDC Office information that I had now also filed a complaint with the Office of the Privacy Commissioner, asking for an investigation in DAPAANZ refusing to make available information I has sought from them under the Privacy Act 1993. A copy of my complaint from 26 Jan. 2013 and a first email to that Commissioner were attached as evidence.

[15] On 08 February 2013 I once again sought confirmation from the HDC Office that my last email had been received by them. On 11 February Jx Zxxx from HDC responded by email confirming this, and stating that the Commissioner was reviewing that information. As no further correspondence or decision from the HDC Office came forth, I did again on 29 March 2013 request a brief update in the matter by way of an email sent. No response was received upon that, so yet another brief email was sent 03 April 2013, expressing concern. That one was responded to by Jxxxxx Zxxx on 04 April, assuring me the complaint had not been overlooked. A formal response next week was promised.

[16] As though no response came after that last mail from the HDC Office yet again, I enquired once more by email on 19 April 2013, whether at least a notification could be sent to me.

[17] On 19 June 2013 I finally received a “final decision” (dated 14 June) from Theo Baker, which again only listed in only slightly altered words the “outstanding concerns” I had in the complaint matter, and which presented me only a little more information than I had received just over a year earlier. The Deputy Commissioner again stated she remained of the opinion, that no further action on my complaint was appropriate. She stated that “all relevant information has been considered” and that my file would remain closed. Another letter from Dr Dale Bramley, CEO for the WDHB, from 06 June 2012 (over 1 year old!) was attached. It did in only slightly different words reiterate most of what had already been communicated before, even including qualifications for the XXXX counsellor M. Sxxxxxxx that he did not even have yet, when he counselled me during 2009. It was also claimed I requested support from XXXX that was outside of the scope of their service, and serious concerns were dismissed again.

[18] As the new, but hardly changed, response from Theo Baker once again left me totally dissatisfied, I did once more request further specified information from my file under the Official Information and the Privacy Acts by way of letters (also by email) dated 24 and 25 June, and 02 July 2013.

[19] Also on 25 June 2013 I sent yet another complaint to the HDC Office, once again raising serious issues about the whole handling of my complaint, which did not consider very relevant information and evidence I had presented. After reiterating my previously submitted objections to her earlier decision from 24 Feb. 2012 (in letters from 27 and 29 March 2012), I provided details about further correspondence and submissions (with evidence) that I presented after that time. It detailed emails, letters and further information sent in from 03 April 2012 to 29 March 2013. Then I exposed and explained that Theo Baker’s new “final decision” was not addressing objections and issues I had raised re her earlier “decision” from 24 Feb. 2012. She had presented almost identical bullet points as my remaining concerns, although I had raised more qualified and wider issues after her initial decision. I took issue that none of the information provided by me after 29 March 2012 – and by Dr Bramley from WDHB on 06 June 2012 – had apparently been looked at. As so many questions still remained unanswered, I listed up 12 points that remained at issue, which still needed to be resolved. So I again asked for a thorough review of the handling, processing, analysis and investigation of my complaint C11HDCXXXXX. I also expected that the Mental Health Commissioner would be consulted on all this.

[20] Upon my O.I.A. and Privacy Act requests from 24 and 25 June and 02 July 2013 I received a response by way of a letter dated 18 July, signed by Georgina Rood, Legal Advisor at the HDC Office. Information I received confirmation that only WDHB’s Dr Dale Bramley and Mr Wxxxxxxx Txxxxxxxxx, both acting as employers of the XXXX counsellors (about whom I had complained), had been consulted in the handling and investigation of my complaint! Certain other sought documents were made available, while yet other information was being withheld. Georgina Rood could now not say with certainty that all the information and files sent by me to the HDC Office (with the summarised complaint from 09 Aug. 2011) had been presented to WDHB.

[21] On 09 July 2013 I briefly informed the Office of the HDC of responses I had up to that date received from the Office of the Privacy Commissioner, regarding a complaint that I had made about DAPAANZ refusing to give me access to information held on me and my complaint to them.

[22] The newly received information (from 18. July 13) prompted me to submit one more letter to the HDC Office on 05 August 2013, in which I responded to the information and provided yet more evidence. I took issue with what information had last been sent to WDHB (also in the form of bullet points of concern), requested a missing document, and I presented further documents disclosing how counsellor Mxxxxxx Sxxxxxxxx and his employer Wxxxxxxx Txxxxxxxxx had used questionable methods and made dishonest statements, while attempting to cover up misconduct and failings before the DAPAANZ Professional Standards Committee that investigated my complaint to their Association. I presented evidence how Mr Txxxxxxxxx took advantage of the Deputy HDC decision to not investigate my complaint about his employee, using that as a defence in the investigation by the Committee of DAPAANZ. Also did documents received from DAPAANZ with the help of the Privacy Commissioner prove that the Committee members did all to “guide” and assist their member to give the kind of statement that would protect him from being found responsible for breaches of their Code of Ethics! The conduct by all participants in that investigation is nothing short of a clear breach of process and natural justice. In my letter to Mr Hill as HDC I expressed the degree of personal suffering, which the consequences of the misconduct by the counsellors I had complained about had caused me. Again I insisted on a thorough review of my complaint.

[23] In a letter of 05 August 2013 I also insisted on the HDC Office staff to consult with a range of key parties and potential witnesses in the whole complaint matter, who could give crucial further evidence. I included a separate, formal, written authority for the Office to contact and seek information from my own GP, Dr Xxxxx Xxxxxxx, from Txxxx Pxxxxx (psychotherapist at Xxxxx House), from Sxx Xxxxxx (psychologist at Xxxxxxx), from the Office of the Privacy Commissioner, from counsellors Mxxxxxx Sxxxxxx and Lxxxx Xxxxxx at XXXX, from Wxxxxxxx Txxxxxxxxx as their manager and employer, and from Ian MacEwan, Executive Director at DAPAANZ. I expected this would assist resolving matters.

[24] On 05 October 2013 I received a new “response” (dated 03 October) from Katie Elkin, Associate Commissioner (‘Legal and Strategic Relations’) at the HDC Office. She summarised my last submissions and concerns in only 3 bullet points, which hardly addressed any of the more substantial issues and concerns I had repeatedly raised with the HDC Office. Her response was only to my critical comments on “absolutely insufficient consideration” having been given “to important points and evidence” (as revealed by O.I.A. information), on their office not having contacted other parties to confirm evidence, and on information I had received from DAPAANZ about the counsellors I had complained about. She stated that my file and their decision had supposedly been reviewed “on multiple occasions”, and again so recently. Katie Elkin did not comment at all on the fact that any “review” done up to 19 June 2013 had apparently only been done by Deputy Commissioner Theo Baker, who “reviewed” her earlier decision herself. She asserted that it is up to the Commissioner and Deputy Commissioner to determine whether a complaint will be formally investigated, and she stated that options to not take further action are exercised “only after careful assessment of all relevant information”. She claimed this occurred in relation my complaint. Apart from that she dismissed my concerns about the information received from DAPAANZ as falling outside of the jurisdiction of their office. She suggested I raise my concerns with them, and stated the complaint file remains closed.

[25] There was no way that I could accept the response by Katie Elkin (from 03 Oct. 2013) on my requests for a review of decision and re-assessment of my total complaint matter. Consequently I responded by way of a further letter on 07 October 2013, firmly rejecting her response and the apparently final decision by the HDC Office. I reaffirmed my position by reiterating what I had stated previously in letters from 25 June and 05 August 2013. I wrote that even when based on the summarised complaint and evidence provided then and later, the handling of my complaint had been abysmally poor, and close to a level of total contempt of my rights as a consumer of health and disability treatment services. I had to conclude that Theo Baker’s had applied her subjective decision making in the matter, and that stated “reviews” appeared unsubstantiated. I communicated my concerns about the financial resourcing of the HDC Office, and how complaints were being “prioritised”, also according to cost reasons. My concern was expressed about whether the matter had been put before the Mental Health Commissioner and Mr Anthony Hill. In an admittedly rather emotive way I expressed, that as a mental health sufferer the treatment of my case appeared in contempt towards me. I commented on the absurdity to take concerns back to DAPAANZ, who had displayed their own bias and contempt towards my complaint about their member(s), while Mr Txxxxxxxxx is their Chairperson. I expressed that justice had been compromised and that natural justice had not been followed in the assessment and handling of my complaint. With that letter I once more requested certain information under the Official Information and Privacy Acts. My rather emotive comments in the end part of that letter must be excused, as I was extremely distressed by the response from K. Elkin.

[26] My written response from 07 October was sent to the HDC Office by email late that same day; and later also by post. The email with attached PDF files was confirmed as having been received by HDC the next day (also by email). Since then I did only on 07 Nov. 2013 receive some requested information upon O.I.A. and Privacy Act requests, which present nothing really new in this matter.

 

The Health and Disability Commissioner Act 1994

[27] The ‘Health and Disability Commissioner Act’ gives the Health and Disability Commissioner and his Deputy certain discretion to act upon complaints received. I exercised my right under section 31 of this Act to make a complaint about two counsellors employed by XXXX Xxxx, whom I saw for xxxxxxx dependency and related issue treatment during 2009 and 2010. Section 31 also allows the Commissioner to revise a preliminary assessment.

[28] My initial complaint was not accepted for disputed reasons, and a reluctantly summarised complaint following that was accepted by the HDC Office and consequently assessed under section 33. Clearly the HDC Office staff saw sufficient reason to make initial investigations into the matters raised and sought a position from the health and disability service provider XXXX Xxxx, which is part of WDHB, which appears to have been done in the form of a referral under section 34 (1) (d) of this Act. It appears that the HDC Office also took action under section 34 (2). It is uncertain whether the Commissioner did at any time seriously consider taking action under sections 34 (5) or 41 of this Act.

[29] Under section 38 (1) of the Health and Disability Commissioner Act the Commissioner has certain discretion to decide to take no action, or no further action (as the case may require), on a complaint. This is qualified by the wording “if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” Section 38 (2) lists matters the Commissioner may give consideration to in deciding on this. Subsection (3) of the same section states though that subsection (2) does not detract from the generality of subsection (1).

[30] While section 39 authorises and instructs the Commissioner to communicate matters of concern about risks to members of the public, that may be caused by a health practitioner’s practice, or by systemic problems associated with a service provider, to certain authorities, agencies or persons, section 40 gives the Commissioner the powers to investigate matters him-/herself. That is if it appears that there has been a breach of the ‘Code of Health and Disability Services Consumers’ Rights’.

[31] Although it appears uncertain now, I was during the handling and processing of my complaint under the impression that the Commissioner took action according to section 41 under this Act! There is no reason to believe that any action was taken by the Commissioner under section 42 (1), as the only “authority” that the counsellors were registered with voluntarily was the ‘Addiction Practitioners Association Aotearoa – New Zealand’ (DAPAANZ), which is not an authority that is covered under the ‘Health Practitioners Competence Assurance Act 2003’. This may appear to be an anomaly deserving further attention, but as a matter of fact, DAPAANZ and other associations or “authorities” of counsellors are not bound by provisions of that latter statute.

[32] The Commissioner can according to section 45 of this Act take a number of actions when an investigation has given him/her the opinion that there was a breach of the Code (see 45 (1) (a)). Section 45 (2) authorises the Commissioner to report his/her opinion with a recommendation to certain authorities, agencies or persons, make a complaint him-/herself, assist a person to make a formal complaint, or under section 45 (2) (f) refer the matter to the Director of Proceedings. The rights and powers of that Director are outlined in section 47, and the functions of that Director under section 49. The Director of Proceedings can under section 50 (2) file for proceedings before the Human Rights Review Tribunal.

[33] An aggrieved person, like me as a complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal, under the provisions in section 51 (a) or (b). But disturbingly the Health and Disability Commissioner has failed to give due, fair and reasonable consideration to all the relevant information and evidence that I presented with my complaint. Thereby she/he ignored and breached principles of natural justice, and thus decided (without justification) that there was no breach of the Code by the counsellors I complained about! Hence my attempts to seek justice in this matter have been frustrated and denied success.

[34] Due to the legal provisions just stated above, it becomes clear that in my complaint matter, all steps that could potentially be taken, depended on the actions and decisions by the Commissioner, in regards to whether my complaint would be accepted, properly, fairly and objectively assessed, processed and investigated at all. It is clear that the Commissioner holds a kind of “gatekeeper” role, in the handling of any complaints about health and disability services in New Zealand. The success or lack of success of any complaint that is brought by a consumer (or other party) against a practitioner or provider depends largely on what the Commissioner does and decides.

 

The Health Practitioners Competence Assurance Act 2003

[35] Under the ‘Health Practitioner Competence Assurance Act’ section 64 states that any complaints about practitioners covered by that Act, and received by an authority to whom that Act applies, must be forwarded to the Health and Disability Commissioner. Sections 65 and 66 provide for steps an authority under this Act must take if a complaint is being referred to it by the Health and Disability Commissioner. It becomes clear by those and other provisions under this Act (e.g. section 70), that complaints about health practitioners will ultimately in virtually all cases at first be assessed and decided upon by the Commissioner, rather than any authority responsible under this Act for registering practitioners. This certainly applies to complaints from consumers of health and disability services.

[36] Under the ‘Health Practitioners Competence Assurance Act’ and in Schedule 2 there is no mention of the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (short DAPAANZ or ‘the Association’) being covered by the provisions of that statute. This means that the Association is not regarded as being an “authority” to which this law applies. Any ‘Professional Conduct Committee’ (see sections 71 to 83 of this Act), that may established in the form of a ‘Professional Standards Committee’ by a body like the ‘DAPAANZ’, does therefore not have to follow the legal guidelines offered under this Act. Only authorities listed in schedule 2 are bound by this Act.

[37] As the counsellors and service provider I complained about are not covered by the ‘Health Practitioners Competence Assurance Act’, the Health and Disability Commissioner was not required to give considerations to that particular Act and its provisions. That means though that the role of the Health and Disability Commissioner in handling my complaint becomes absolutely crucial, as the Committee that was set up by DAPAANZ, to later also consider my complaint to their Association, proved to be absolutely in contempt of the law in regards to natural justice that had to be followed. There is little relief I can seek, and a lack of legal proceedings I can bring, to address the illegal conduct by the ‘Professional Standards Committee’ and the Chair of the Executive of DAPAANZ. Judicial review is no option, and there is no statute covering that body, hence no appeal is possible!

 

[38] Breaches of process and natural justice by the HDC Office

[38a] At the first point of time of hearing about my concerns, that not all evidence and information presented by me had been considered, the Health and Disability Commissioner should have sought advice and clarification from me, what I considered to be of absolute relevance in the matter. I insisted repeatedly that initially sent documents (by email on 08.08.2011) were relevant to properly assess and resolve the complaint; the Commissioner or his/her staff never bothered to do this. Indeed I should have been consulted about my concerns from the start.

[38b] The HDC Office should have given truly fair, objective and reasonable consideration to all presented, received and offered evidence about breaches of my rights, about the professional misconduct by the named practitioners, and about untrue statements made by the counsellors and their employer, and the conflict of interest of the latter. This never happened.

[38c] The HDC Office should have felt obligated to consult other key persons that would appear to be relevant as witnesses – or parties in the complaint matter, in order to establish the truthfulness of information and evidence provided by all the parties involved. This did not happen, as only Mr Txxxxxxxxx was directly consulted as the employer of the counsellors.

[38d] The HDC Office should have read and examined the medical, psychiatric and psychological assessments made on me, and provided in relation to the complaint, as this would be very crucial to properly understand my delicate health conditions, and how the misconduct and failures of the counsellors in question, and resulting harm, would severely impact on me. This appears to not have been done at all, which I consider highly irresponsible.

[38e] The HDC Office should have accepted and examined the evidence I received from the DAPAANZ (presented to the HDC on 05 Aug. 2013), given the involvement of Mr Txxxxxxxxx as employer of the counsellors I complained about. He was allowed input during the investigation by the HDC Office. It is of high relevance that Mr Txxxxxxxxx as employer was at the same time the chairperson of the professional association DAPAANZ that considered a separate complaint I made in the same matter. His conduct in that separate investigation by DAPAANZ, where he is Board Chairperson, should raise greatest concerns.

[38f] It has been reported (F. Marwick, !ZB News, 24.07.13), that the HDC Office has been under serious financial pressures while facing an increased case work load, which has obviously led to extremely strict “prioritisation” in the handling of cases. It appears that this has led to cases like mine not being treated with the deserved attention, scrutiny and respect, which has led to justice having been denied in my case. It is unacceptable to simply dismiss cases that prove misconduct had serious consequences for a mental health sufferer, by applying an “over prioritisation”, while the Health and Disability Commissioner virtually holds a “gate keeper” role in handling complaints from health and disability service consumers.

 

Conclusions and remedies sought under the Ombudsmen Act 1975

[39] The Health and Disability Commissioner made decisions on my complaint, which were in breach of natural justice, as they were based on an flawed, inappropriately conducted assessments and reviews that did not give fair, objective and reasonable consideration to all the truly relevant information and evidence provided, referred to and offered in relation to the complaint.

In view of this, I request your considerations based on all information and evidence provided (incl. correspondence between HDC and me) to make the following recommendations or decisions under section 22 (3) of the Ombudsmen Act 1975 to the Health and Disability Commissioner:

[39-1] That the Health and Disability Commissioner properly reviews my complaint C11HDCXXXXX and gives appropriate, fair, objective and reasonable consideration to all the evidence supplied in the matter (including such provided after earlier decisions or reviews), as this was so far not done, certainly not by Theo Baker until 19 June 2013, and also not afterwards;

[39-2] that the Commissioner consults with my GP, Dr Xxxxx Xxxxxxx, with Mr Txxxx Pxxxxx, psychotherapist at Xxxxx House, with Ms Sxx Xxxxxx, psychologist at Xxxxxxx, on matters I stated, and also seeks independent statements on my claims of the breaches of my consumer rights, from my former counsellors Mxxxxxx Sxxxxxxxx and Lxxxx Xxxxxx;

[39-3] that the Commissioner views and examines evidence from DAPAANZ that I obtained with the assistance of the Privacy Commissioner, simply to assess the conduct of Mr Mxxxxxx Sxxxxxxxx and Mr Wxxxxxxx Txxxxxxxxx during the investigation of my complaint to DAPAANZ, that was handled by their internal “Professional Standards Committee”, as it is of relevance, given the same complaint matter – and both also having had input into the HDC complaint handling;

[39-4] that the Commissioner consults with me prior to such a review, on evidence that I consider relevant, which the Commissioner and his staff may be unsure about, or may have a differing view on regarding it’s relevance (see also point 1.);

[39-5] that the Commissioner firmly follows the principles of natural justice and applies objectivity, fairness and reasonableness and proper process in a complete review of my complaint, and seriously considers conducting a formal investigation into complaint C11HDCXXXXX.

[40] Last not least I wish to reiterate, that this was not the first complaint I made about Waitemata DHB’s XXXX services, as I already had filed a complaint to the HDC Office in early 2007, which could though not be addressed then, due to being insufficiently specific about particular incidents at issue. Besides of the concerns I raised in complaint C11HDCXXXXX, there are serious systemic problems that persist at Xxxxxxxxx Alcohol and Drug Services, which must be examined and addressed.

[41] As already stated, my concern is also, that the Health and Disability Commissioner Office is de-prioritising too many complaints about issues with health and disability services, due to financial pressures, while their office is faced with increasing work loads and at the same time limited funding. As the Health and Disability Commissioner does perform the role of a “gate keeper” when it comes to handling and processing complaints, the refusal to accept and investigate so many complaints leads to a denial of justice for too many, as authorities like the Medical Council will usually not investigate any complaints themselves, unless the HDC Office refers matters to them – to further deal with.

[42] Already now we have too many cases that are before the HDC Office for two or more years, and any breaches that can be addressed under the ‘Health Practitioners Competency Assurance Act 2003’, will not be possible to pursue after the lapse of 3 years (see section 173). Justice delayed is justice denied, and it is a matter of highest concern what happened with not just my complaint, but what happens to many others.

Your respected decision and response in this matter – in due – course will be most appreciated.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

P.S.:

A list of relevant documents and correspondence in this matter will be sent and supplied separately!”

 

Comments by the author:

The above complaint should be self explanatory, but if questions arise for the reader, she or he may wish to revisit the relevant earlier HDC complaint available on this blog, in order to obtain the information it relates to (see link above). The complaint was confirmed as having been received by the Ombudsman’s Office by email at 03:10 pm on 14 Nov. 2013. The complainant sent a further email at 06:30pm on 15 Nov. 2013, clarifying a mistake in the numbering of two emails, asking that this be taken note of. On 20 Nov. 2013 he did also send one more email to the Ombudsman, which was at 11:17pm, asking for a confirmation for that last email, as none had been sent to him. No response was ever received in reply to that.

 
 

PART 3 – THE SECOND COMPLAINT ABOUT THE HDC’s HANDLING OF A COMPLAINT AGAINST A BIASED WINZ DESIGNATED DOCTOR

On 16 December 2013 the complainant sent a further separate complaint to the Office of Ombudsmen, which related to the appalling, unacceptable handling of another earlier complaint made to the HDC, against a Work and Income (WINZ) commissioned “Designated Doctor”. We covered that earlier HDC complaint in a post that is found by clicking this link:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

It was completed by and dated with the 16 December 2013, and was sent in on that same day and into the early hours of 17 Dec. 2013. It was sent in the form of a total of 17 emails that had a range of relevant PDF documents attached, some containing correspondence with the HDC Office, and others containing further directly and indirectly relevant evidence, to prove the truthfulness of factual details contained in this Ombudsman Act complaint. A copy of that complaint was also sent to the Ombudsmen Office by parcel post in the late afternoon on 18 Dec. 2013. There was never any proper email response received upon the emails sent, apart from some automated responses by the Ombudsman Office’s email system.

For those wanting to learn details about the complaint that was filed with the HDC Office on 30 June 2012, we recommend you first read that post and the information provided in documents found via further links in that post. That second HDC complaint has on this blog and in documents available been referred to with reference number C12HDCxxxxx.

A PDF file containing the authentic text of the 13-page complaint letter is found here:
Ombudsman, HDC complaint, C12HDCxxxxx, dec. unreasonable, ltr, 16.12.2013

A PDF file containing the listed attachments sent with emails covering this complaint is found here:
Ombudsman, HDC complaint, C12HDCxxxxx, email attachmts, mails sent 16-17.12.2013

 

The second complaint letter to the Ombudsman contained the following, authentic text:

Complaint under section 16 of the Ombudsmen Act 1975 – about the Health and Disability Commissioner’s decision to take no action upon complaint C12HDCxxxxx, by not giving appropriate, fair and reasonable consideration to relevant evidence and the law

 

Dear Ombudsman, dear staff at the Office of Ombudsmen

Please accept my request for your assistance in the above mentioned matter of greatest concern.

[1] In filing this complaint with the Office of Ombudsmen I wish to assert that this matter is most appropriately handled by your office under section 13 of the ‘Ombudsmen Act 1975’, as there is no adequate legal remedy that I can reasonably seek under law, or by using other administrative processes, as referred to under section 17 (1) (a) of the Ombudsmen Act. There is no right of appeal of a decision offered under the ‘Health and Disability Commissioner Act 1994’. Even if a judicial review application to the High Court might technically be an option, I cannot pursue such a proceeding, given my extremely poor mental and physical health, my complete lack of finance, and un-surmountable difficulties I have to access professional legal representation to pursue such a course under restricted legal aid. I already suffered extremely poor health, when being xxxxxx to pursue arduous judicial review proceedings against the Ministry of Social Development during 2011. Also in view of section 65 of the Health and Disability Commissioner Act any review sought would have very limited prospects for success.

 

Background with a summary of my complaint, and its handling by the Office of the Health and Disability Commissioner

[2] On 30 June 2012 I filed a complaint with the Office of the Health and Disability Commissioner (HDC), stating a number of breaches of professional conduct by the ‘Work and Income’ (WINZ) commissioned designated assessor, Dr Dxxxx Xxxxxxx at the Xxxxxxxx Health Centre in Auckland. Dr Xxxxxxx had conducted an examination on me on 17 June 2010, under the old section 44 of the Social Security Act 1964. I also raised serious breaches under the ‘Code of Ethics’ of the New Zealand Medical Association, and of certain other legal provisions. In detail the following breaches of codes, statutes and regulations were established and presented:
1. The ‘Code of Health and Disability Services Consumer’s Rights’ (rights 1, 3, 4, 5 and 6);
2. the ‘Code of Ethics for the New Zealand Medical Profession’ (principles 1, 2, 4, 8, 9 + 12);
3. the ‘Health Practitioners Competence Assurance Act 2003 (section 8);
4. the ‘Health Information Privacy Code 1994’ (HIPC 1994) (rules 2, 3 and 8) and
5. the ‘Health (Retention of Health Information) Regulations 1996’ (sections 5 and 6).

[3] The comprehensive complaint was presented by way of a letter dated xx June 2012, and altogether 10 emails with various attached evidence documents were initially sent in this matter to the Office of the Health and Disability Commissioner (HDC) from xx June to 02 July 2012. The main complaint letter contained detailed submissions and comprehensive evidence information supporting all aspects of my complaint. All emails with further evidence were at the same time also sent to the Medical Council of New Zealand (MCNZ), as the matter was considered to be of equal concern to that authority, which has Dr Xxxxxxx on their register. The emails were also sent to the New Zealand Medical Association (NZMA) for their attention. The Medical Council (“Xxxxxx”, Senior Professional Standards Coordinator) stated in an email from 03:39 pm on 06 July 2012 that the matter should according to section 64 of the ‘Health Practitioners Competence Assurance Act 2003’ in the first instance be dealt with by the HDC. The New Zealand Medical Association considered itself not responsible to handle the matter. The “safe” receipt of my complaint – with all 10 emails (and by post) – was confirmed by an email from Jx Zxxx, Complaints Assessor at the HDC Office, at 05:11 pm on 06 July 2012.

[4] On 22 July 2012 I sent a further email to Jxxxxx Zxxx at the HDC Office, which carried another evidence document, being a formal ‘settlement’ and apology letter from the Deputy Chief Executive Debbie Power at the Ministry of Social Development (MSD). I had just received that document on xx July, after 10 months of very arduous and extremely stressful settlement negotiations. It was additional to other, more relevant evidence that had been sent by me to the HDC Office before. On 14 August at 04:56 pm I received an email from Michelle Smith, Complaints Assessment Administrator at the HDC Office, again confirming the receipt of my complaint, and providing me with their reference number C12HDCxxxxx.

[5] On 19 September 2012 I received a letter by post from Hxxxxxx Bxxx, Senior Complaints Assessor at the Office of the Health and Disability Commissioner, informing me that the Commissioner had reviewed my complaint, and decided to seek a response from Dr Xxxxxxx, regarding the issues I had raised. It was dated 18 September, and it further said, that once a response had been received and reviewed, I would be contacted again.

[6] After many more months I received a decision on my complaint from Deputy Health and Disability Commissioner Theo Baker on 24 April 2013. The letter appeared wrongly dated with 24 April 2013, as it arrived by ordinary post on that same day. In her decision Theo Baker first listed 5 bullet points with only some of my summarised “particular” concerns. Certain major points of concern were not addressed or responded to at all, and under her “consideration” Ms Baker then stated, that in this instance, the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions”. She also wrote: “It seems that you have been successful at overturning WINZ’s original decision via this appeals route”. She added, that after a response was sought from Dr Xxxxxxx on “communication issues”, he had stated that “his interviews are all patient-centred”, and that he “is very careful to approach all cases in a standardised and non-judgmental manner”. She concluded that his views about his communication style during the consultation were contrary to mine. She did not consider that further investigation into the matter would provide any new information “that would help resolve this discrepancy”, “especially given the amount of time that had elapsed” since the assessment. According with section 38 (1) of the HDC Act she decided to take no action. She had asked Dr Xxxxxxx to “reflect” on the way he had communicated with me. A letter from Dr Xxxxxxx with his position was attached. It was in stark contrast to what I had experienced.

[7] The decision by Theo Baker was absolutely unacceptable to me, given the experiences I had during the examination and assessment by Dr Dxxxx Xxxxxxx on 17 June 2010, and given the comprehensively documented evidence and information I had presented. The HDC Office had only looked at one single breach under the ‘Code of Health and Disability Services Consumer’s Rights’ (right 5) and not responded to any of the other breaches I had complained about, let alone to any questions about Dr Xxxxxxx’s acting outside of his scope of practice, and his breaches of health information privacy and retention provisions. The response received was extremely dismissive of my complaint, and Ms Baker appeared to largely trust statements by Dr Xxxxxxx in response to my complaint. My impression was that documented evidence had not even been looked at, and that no other party involved, like for instance my own doctor, had been contacted to comment on any of the issues raised by me.

[8] In response to the decision by Ms Baker, I first sent a brief email to the HDC Office at 01:22 h on 25 April 2013, in which I expressed my great disappointment and disapproval of the decision. Following that I responded appropriately to her decision by way of on email with a formal letter dated 26 April 2013, sent in at 00:01 am on 27 April 2013. I requested the HDC Office that the matter should now be handled by the Health and Disability Commissioner Anthony Hill himself, or by another Deputy Commissioner, but no longer by Ms Theo Baker. I also insisted that the Mental Health Commissioner should be consulted on all matters raised in relation to my complaint. I expressed my great disappointment and distress about the decision, and that I could not accept it, as insufficient and only selective consideration had been given to relevant, important, crucial facts and evidence. I listed 5 particular points – or areas – that I raised as points at issue with the explanations in the decision, and the reasons given in Ms Baker’s letter. My concerns were that insufficient considerations had been given to very relevant information; and that my complaint had not been properly and thoroughly examined and investigated. Natural justice had not been followed in deciding on my complaint.

[9] In my letter from 26 April I then presented arguments proving that Theo Baker was wrong in her considerations and decision. Firstly I explained the purpose, composition, responsibilities and processes followed in relation to Medical Appeal Boards (MABs) under (old) section 53A of the Social Security Act. I explained how a bxxxxx Principal Health Advisor for MSD, Dr David Bratt, has been training, mentoring and managing both designated doctors and also internal Regional Health and Disability Advisors working for Work and Income. The HDC Office was informed that the supposed “independence” of Medical Appeal Board (MAB) members, same as that of designated doctors, must be questioned. I elaborated on how xxxxxxxxxly and unfairly my appeal had been dealt with by such an xx-objective, natural justice xxxxxxxxx Board. The HDC Office was presented with clear evidence that such a Board would not deal with the conduct or any competency issues of a designated doctor, whose recommendations led to a decision that was appealed by a client. The purpose of a MAB is simply to conduct a review on medical grounds and on work capability aspects, and nothing else. It was the ixxxxxx conduct and decision-making by the MAB that forced me to apply for a judicial review at the High Court at Auckland. My appeal to the MAB was not a success at all, as I had to take legal proceedings to fight it! In explaining details about the MAB I did not intend to distract from the fact that it was my firm view that a MAB would not be responsible to deal with conduct or competency issues about Dr Xxxxxxx.

[10] Secondly I explained that Dr Xxxxxxx’s letter from 22 Nov. 2012 presented only generalised comments re how he conducts examinations, and that they were only in response to a breach of right 5 under the Code. I stated that while Dr Xxxxxxx could not recollect the examination, interview and communications over 2 years ago, I had presented abundant evidence about what he had recorded on me. I also had given a detailed description of the conversation and examination, based on notes I had made right afterwards. I made clear that Dr Xxxxxxx’s report was full of flaws, mistakes and contradictions. His partly wrong and incomplete answers were clearly biased. I reminded the HDC Office that I presented reports from my own GP and other specialists that clearly contradicted Dr Xxxxxxx’s report and recommendations. I criticised that Dr Xxxxxxx’s obvious bias, his reluctance to understand, or appreciate any of my health issues, had not been established by Ms Baker, and that she therefore cannot have considered all evidence. I noted that Dr Xxxxxxx’s competency had not at all been examined, and I explained, how it was absurd to claim I had freely chosen to see him. I stated how Work and Income heavily rely on designated doctor assessments, and I asserted that XXX and Dr Bratt at the same time make efforts to ixxxxxxxx their assessors. I informed that it’s known that Dr Xxxxxxx has been handling a high number of such assessments. An internal MSD memo (fr. 18 June 2010) re an earlier complaint about Dr Xxxxxxx was also presented as evidence.

[11] Thirdly I challenged the HDC Office on the fact that only “right 5” under the ‘Code of Health and Disability Services Consumer’s Rights’ (one of the various breaches I had reported and complained about) had been raised with Dr Xxxxxxx. I noted that the breaches of rights 1, 3, 4 and 6 had not been seriously discussed with him. I took issue with the fact that nothing had been done regarding the breaches of the ‘Code of Ethics for the NZ Medical Profession’, and that no efforts had been made to clarify with Dr Xxxxxxx the alleged breach of section 8 under the ‘Health Practitioners Competence Assurance Act 2003’. It was a matter that must also interest the Medical Council, I stated. I added that nothing appeared to have been done or followed up re breaches of the HIPC 1994 and the ‘Health (Retention of Health Information) Regulations 1996’. Again I referred to evidence I provided of breaches in those areas. I expressed my bitter disappointment that no assessment was done re all those other issues.

[12] Under a fourth point I referred once more to the particular and substantial evidence that I had provided in this matter. I insisted that the Commissioner should have looked at reports from my own doctor, from XXXX counsellors and their psychiatrist, from St Luke’s Community Mental Health Centre, my XxxXxx psychologist and from Xxxxx House, which was essential to understand my medical history, conditions and vulnerabilities. It was equally important to properly assess how Dr Xxxxxxx could in light of the presented, compelling information fail to apply objectivity, I wrote. I stressed that it was important to look at the serious consequences I suffered as a result of Dr Xxxxxxxs biased conduct, wrong assessment and recommendations, while being forced to make an appeal to an also bxxxxx MAB, and even having to prepare for a judicial review at the High Court. The MAB decision, its recommendation and other evidence should have been looked at, I stated. Furthermore I referred to the disastrous impact on my health and my inability to focus on needed treatment, which was worsened by the inappropriate and xxxxxxxxx treatment I received from WINZ staff. I expressed my astonishment that at no time had my own doctor been contacted, and I stated that Ms Baker breached natural justice by basing her decision on totally irrelevant information and facts. My right to take an appeal to the MAB was no reason for Ms Baker to not investigate, I wrote.

[13] Fifthly I stated that it was unacceptable to me, that Ms Baker had accepted the statements by Dr Xxxxxxx in his letter from 22 Nov. 2012 – primarily only on “communication issues” – without any challenge. She had simply commented that his views on his communication style during the consultation were “contrary” to mine. In view of that, I reiterated that Dr Xxxxxxx’s reports on me showed a total disregard to my medical diagnosis, assessment of work capacity and treatment related aspects provided by my own doctor, other medical professionals or specialists. This showed that Dr Xxxxxxx failed to act fairly, responsibly, respectfully and professionally, I wrote. A degree of bias in his conduct was evident, likely in combination with a lack of understanding and appreciation what my true medical conditions and work capacity were, I stated. I expressed my position that it was not fair and reasonable, yes irresponsible, for Ms Baker to largely base her decision on Dr Xxxxxxx’s letter, while ignoring other well-documented evidence. Then I also referred to (old) sections 44 (1) and 54B of the Social Security Act, to prove that there is very little “choice” a WINZ client has, when required to submit him/herself to a medical examination. I expressed my view, that Dr Xxxxxxx’s letter from 22 Nov. 2012 must be seen as a desperate attempt to avoid accountability.

[14] In summarising my response to the decision by Theo Baker, I expressed my concern that by taking no further action on my complaint, this will serve to facilitate the continuation of xxxxxxx processes by doctors like Dr Dxxxx Xxxxxxx and by Work and Income staff, where over recent years already thousands have been txxxxx off invalid’s benefits. Newly implemented welfare reforms would only escalate this axxxxxxxx process, I wrote. I made clear that (to my knowledge) I was the xxxxx person xxxx xx xxxxxx to file for a judicial review proceeding in such a case. The lack of access to justice, the limits to appeals being restricted to only go as far as a Medical Appeal Board (which is not truly independent), would make it impossible for WINZ clients to get fair, just and independent treatment under the present system. I made reference to the harm of severe work capability assessment methods used in the UK, and urged the HDC Office to conduct a thorough, fair, reasonable and objective re-assessment of my whole complaint, and to apply principles of natural justice in a proper investigation.

[15] My response (see [8] to [14]) was first sent to the HDC Office by email at 00:01 am on 27 April 2013, together with 13 further attached evidence documents (PDF and one PowerPoint file/s). A letter by post was also sent off on 30 April 2013 (without the attachments already sent). At the end of my email I also requested a full disclosure of any previous or present contacts (personal, professional or other) any existing or previous staff member working at and for the ‘Office of the Health and Disability Commissioner’ had had with Dr Dxxxx Xxxxxxx. This was a request under the Official Information Act 1982 (O.I.A.). As I did not receive any confirmation that my email had been received (upon requests on 29 and 30 April), I resent the same email once more from a second email address I have, at 12:16 PM on 01 May 2013. On 09 May at 03:18 pm Exxxxx Lxxx, Legal Team Administrator, finally confirmed receipt of my letters dated 26 and 30 April 2013 (also the one sent separately by email on 27 April).

[16] On 31 May I received a letter dated 28 May 2013 from Legal Advisor Georgina Rood at the HDC Office. In reply to my request about HDC staff member contacts with Dr Xxxxxxx, that I had requested under the O.I.A, she refused the information under section 18 (f) of the Official Information Act. Extremely disappointed about the response, I sent yet another, more specified O.I.A. request to the HDC Office by email at 03:00 pm on 03 June 2013. A separate, prepared form was sent with it, intended to facilitate the HDC Office in gathering and supplying the information I sought. Now I requested information about any possible contacts that existing or former HDC staff members, directly involved in the assessment, processing and investigation of my complaint, may have had with Dr Dxxxx Xxxxxxx at any given time. On 05 June (03:52 pm) I received an email confirmation for my email from Exxxx Lxxx at HDC Office. Also on 05 June I did earlier that day send the same request to the HDC Office by parcel post.

[17] On 03 July 2013 I received a response to my O.I.A. request from Georgina Rood, which was dated 01 July. She informed me that she had spoken with the staff still at the HDC Office who had direct contact with my file, and she stated, that none of them would know Dr Xxxxxxx, and that none had had contact with him, other than through the complaints process. A small number of staff who no longer worked at the HDC Office also had contact with my file, but re them she again refused information under section 18 (f) of the O.I.A.. She also withheld the names of staff members according to section 9 (2) (a) of the same Act. A special mention was made at the end of her letter, how the HDC Office would handle conflicts of interest.

[18] On 19 September 2013 I received a letter dated 17 September from Katie Elkin, Associate Commissioner, at the HDC Office. It contained a response to my requests for a review of Theo Baker’s decision. Under the heading ‘Complaint’ Ms Elkin listed only 4 bullet points summarising parts of my complaint. Again not all breaches that I raised in my original complaint were mentioned. Ms Elkin stated how a response on my complaint had been sought from Dr Xxxxxxx. She listed my more recently expressed concerns under 6 further bullet points, mentioning my criticism of the MAB, including that such a Board cannot and would not address issues that the HDC Office should address. She also listed some of my other concerns about their Office’s handling of my complaint. Under ‘My response’ she then claimed their Office “considered all the information provided”, and “thoroughly reviewed the file”. She wrote that “having considered all the circumstances of this case”, she was of the view that the Deputy Commissioner’s decision to take no further action remained appropriate. She expressed she was “satisfied” that all relevant information had been considered, and she assured me, that the entire complaint was provided to Dr Xxxxxxx. While she acknowledged that complaints about a non-treating doctor contracting as assessor to a third-party may fall under the Commissioner’s jurisdiction, she noted, that “most of my concerns relate to the processes and policies of WINZ and of the Board”. She claimed such matters were outside their jurisdiction and were more appropriately dealt with by agencies concerned, or the High Court and the Ombudsman. She stated that the Commissioner and Deputy Commissioner have a “wide” discretion to take no action under section 38 of the HDC Act, “wherever they consider”, “in all the circumstances”, even where matters fall under their jurisdiction. One of each letters to and from Dr Xxxxxxx were attached (18 and 20 Sept. 2012).

[19] At 01:18 am on 23 September 2013 I sent an email with my response (dated 22 September) to the decision by Katie Elkin. The letter was addressed to Mr Anthony Hill as Commissioner. Exxxxx Lxxx, Legal Team Advisor at the HDC Office, confirmed receipt of my email at 11:32 am on 26 September. My comments were going to be given consideration, she wrote. In my letter I expressed my extreme shock, dismay and upset about the stated justifications for not pursuing the matter and not reviewing the earlier decision. I expressed that I felt offended by the claim the MAB would be the appropriate institution to deal with my complaint. I reiterated points at issue that had not been addressed, like the scope of practice of Dr Xxxxxxx, a breach of the ‘Health Information Privacy Code 1994’, a breach of the ‘Health (Retention of Health Information) Regulations 1996’, stated breaches of the ‘Code of the Health and Disability Services Consumer’s Rights’, and of the ‘Code of Ethics of the New Zealand Medical Profession’. I again referred to presented evidence, same as how Dr Bratt from MSD uses presentations to inxxxxxxx medical practitioners. I wrote that it was unreasonable to expect persons with mental illness to seek remedies through the courts, and that my remaining trust and hope in justice in New Zealand had been destroyed. I expressed serious misgivings about the handling of my complaint and others’ complaints by the HDC Office. I concluded that MSD and their designated doctors would be encouraged to continue putting unacceptable pressures on sick and disabled, to deliver outcomes they desire.

[20] On 07 October 2013 (08:19 and also 08:38 pm) I sent a further request under the O.I.A. and Privacy Act to the HDC Office, seeking certain specified information about correspondence and other communications between the HDC Office and Dr Xxxxxxx, copies of memos or other written correspondence exchanged between staff at the HDC Office, and information on any contacts the Office may have had with staff at the MSD, with Xxx Lxxxxx at XxxXXXX, with my GP, Dr Txxxxxx, or any other person, in relation to this complaint. It was sent by way of a PDF attachment to an email that was also sent re another complaint matter.

[21] A response (dated 04 Nov. 2013) to my request from 07 October was received from Georgina Rood, Legal Advisor, by post on 07 Nov. 2013. A small number of documents were supplied, which mostly represented letters from HDC to Dr Xxxxxxx, or from him to the HDC Office. A file note of a phone call to Dr Xxxxxxx on 22 Nov. 2012 was also included. A ‘New Complaint (Triage Form)’, 2 other file notes and copies of the first page of on-forwarded emails from me were included. Some information was removed from a number of documents. Internal communications between HDC staff and their legal team members were being withheld. The reply then stated that none of the persons or agencies I had mentioned in my request, other than Dr Xxxxxxx and myself, had been contacted in relation to the complaint. That was an important revelation, proving that NO effort had been made by the HDC Office, to seek verification and clarification of provided evidence information, from health professionals that could have been able to do so. The ‘NEW COMPLAINT (TRIAGE)’ form contained some contradicting and false information, referring under ‘Complaint summary’ to “ACC-appointed assessor Dr Xxxxxxx”. At the top it had ticked boxes under ‘Other authority referral/Involvement’ for “Registration body” and “Other: HRC, Ministry of Social Affairs”. Yet none of those agencies or authorities had ever been consulted, which altogether proved yet again, my complaint had been handled in a very dismissive manner.

[22] On 25 November I received a further letter from Katie Elkin, Associate Commissioner, Legal and Strategic Relations, dated 22 November 2013. It was in response to some concerns I had raised in my last letter to the Office of the HDC. Katie Elkin claimed that they had again reviewed my file, but she again stated: “I remain of the opinion that the Deputy Commissioner’s decision remains appropriate in the circumstances, and there is no basis to reopen your complaint file.” Ms Elkin stressed that the Commissioner and Deputy Commissioners’ discretion to take no further action on a complaint is wide. It was more appropriate for WINZ to address my concerns, she added, and she reiterated, that “the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office.” Ms Elkin also added that the Commissioner does not have jurisdiction to consider issues relating to information privacy. It was the first time during the lengthy handling and extensive correspondence in this matter, that I was suddenly being referred to the Privacy Commissioner re those aspects of my complaint. In her conclusion she did not consider that my latest correspondence provided any basis to reconsider the (earlier) decision. She wrote: “I do not consider that further consideration of this complaint would be productive.”

[23] Given the contents and tone of the final response I received from Katie Elkin from the HDC Office, I did not respond further to her unhelpful comments and explanations. I remain to be completely in disagreement with that last, and also the previous decisions by the HDC Office, and I do not accept the reasons and explanations given, for not taking any further action in the complaint matter under reference C12HDCxxxxx. Consequently I see no other solution, but to file a complaint to the Office of Ombudsmen, as the matter deserves an appropriate, thorough, fair and reasonable, truly independent investigation by one of the Ombudsmen.

 

The Health and Disability Commissioner Act 1994

[24] According to section 6 of ‘The Health and Disability Commissioner Act 1994’ the purpose of the Act is to promote and protect the rights of health consumers and disability services consumers, by facilitation fair, simple, speedy and efficient resolution of complaints about infringements of those rights. Section 7 states that, in exercising any powers or functions under this Act, the New Zealand Health and Disability Strategies must be taken into account, where they are applicable, same as the objectives for District Health Boards.

[25] Under section 14 of this Act the Health and Disability Commissioner and his Deputies perform a range of functions and responsibilities, including the preparation of a draft, the review and maintenance of the ‘Code of Health and Disability Services Consumers’ Rights’. They are also responsible for the initial receipt of complaints about health care and disability services providers (s. 14 (1) (da)). They must ensure that each complaint is appropriately dealt with. This includes actions such as investigating complaints, to refer complaints or investigations to the Director of Proceedings, to make certain recommendations or suggestions, to report to the Minister and to perform other functions, powers and duties under the same Act.

[26] I exercised my right under section 31 (1) of this Act, and made a complaint about the WINZ commissioned designated doctor Dxxxx Xxxxxxx. Under section 33 (1) the Deputy Commissioner made a preliminary assessment of the complaint. The Commissioner and his Deputies had certain options to refer the matter to an agency, person or advocate, to call a conference, to investigate the matter him-/herself, or to take no action on it. In this case the Deputy Commissioner referred the complaint to Dr Xxxxxxx to answer to, and after a review decided to take no further action. According to section 33 (2), the Commissioner must promptly notify parties of their preliminary assessment, which appears to only have happened in conjunction with a final decision, which took 5 months to reach. That is in my view anything but prompt. Sections 33 (3) and (4) authorised the Deputy Commissioner to revise her preliminary assessment, but despite of requests for a review, this was not done and refused.

[27] The HDC Office clearly saw sufficient reason to make initial inquiries or investigations into the breaches of the Code that I had reported, and it sought a response from Dr Xxxxxxx himself, which appears to have occurred under section 34 (1) (d) of this Act. It appears that the HDC Office also took action under section 34 (2). It does not appear that the Commissioner did at any time seriously consider taking actions available under sections 34 (5) or 40 of this Act. Also did the Commissioner or his Deputies refrain from using any powers under section 36.

[28] Under section 38 (1) of the Health and Disability Commissioner Act the Commissioner and his Deputies have a certain discretion to decide to take no action, or no further action (as the case may require), on a complaint. This is qualified by the wording “if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” Section 38 (2) lists matters the Commissioner may give consideration to in deciding on this. These include taking into account the time lapsed since the subject matter of the complaint arose, whether the matter is trivial, frivolous, vexatious or not in good faith, whether the person affected wants no action taken, and under subsection (e), whether there is “in all the circumstances an adequate remedy or right of appeal, that it would be reasonable for the person alleged to be aggrieved to exercise.” Subsection (3) states though that subsection (2) does not detract from the generality of subsection (1).

[29] Section 39 authorises and instructs the Commissioner to promptly communicate matters of concern about risks, which may be caused by a health practitioner’s practice, to the appropriate authority. The Commissioner must also promptly notify the Director General of Health, if he has reason to believe that systemic failures or inadequacies, or the practice of a health care or disability service provider, are harming – or likely to harm – health or safety of members of the public. Section 40 gives the Commissioner and his Deputies the powers to investigate matters him-/herself. That is, where it is evident, or it appears, that there has been a breach of the ‘Code of Health and Disability Services Consumers’ Rights’. The Commissioner or his/her Deputy must then also notify an authority according to section 42 (1).

[30] The Commissioner can according to section 45 of this Act take a number of actions when an investigation has given him/her the opinion that there was a breach of the Code (see 45 (1) (a)). Section 45 (2) authorises the Commissioner to report his/her opinion with a recommendation to certain authorities, agencies or persons, make a complaint him-/herself, assist a person to make a formal complaint, or under section 45 (2) (f) refer the matter to the Director of Proceedings. The rights and powers of that Director are outlined in section 47, and the functions of that Director under section 49. The Director of Proceedings can under section 50 (2) file for proceedings before the Human Rights Review Tribunal.

[31] An aggrieved person, as I am as the complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal, if the provisions under section 51 (a) or (b) are met. But disturbingly the Deputy Health and Disability Commissioner failed to give due, fair and reasonable consideration to the abundance of relevant information and evidence that I presented during the course of my complaint. Both the Deputy and Associate Commissioners based their decision, to take no action, primarily on completely flawed considerations, and by relying on an incorrect interpretation of the law. The claim that the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions” is not relevant as a matter for consideration in respect of the particular complaint I filed with the HDC Office. It is not a relevant matter to take account of under section 38 (2) (e), because my complaint was about breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, which raised issues about Dr Dxxxx Xxxxxxx’s conduct during the examination, and how he completed the assessment on me. The Commissioners ignored and breached natural justice, taking account of irrelevant considerations, instead of the repeatedly presented, valid, relevant matters for consideration. Without justification they decided, that there was no breach of the Code by Dr Dxxxx Xxxxxxx! In regards to section 51 (a) or (b) their decision has frustrated my attempts in seeking and finding justice in this matter.

[32] In view of the legal provisions just outlined above, it becomes clear that in this complaint matter, all steps that could potentially be taken to address breaches I raised, depended on the actions and decisions by the Commissioner, in regards to whether my complaint would be accepted, properly, fairly and objectively assessed, processed and investigated at all. It is clear that the Commissioner holds a kind of “gatekeeper” role, in the handling of any complaints about health and disability services in New Zealand. The success or lack of success of any complaint that is brought by a consumer (or other party) against a practitioner or provider depends largely on what the Commissioner does and decides.

 

The Health Practitioners Competence Assurance Act 2003

[33] Under the ‘Health Practitioner Competence Assurance Act’ section 64 states that any complaints about practitioners who are covered by that Act, and that are received by a responsible authority to whom that Act applies, must be forwarded to the Health and Disability Commissioner. While I had sent my complaint in this matter at the same time to the Medical Council of New Zealand, I was indeed informed by an email from “Xxxxxxx” (Senior Professional Standards Coordinator, Medical Council), received at 03:39 pm on 06 July 2012, that the HDC Office is the “most appropriate organisation to direct” my “correspondence to”.

[34] Section 65 provides for steps that an authority under this Act, like the Medical Council (see Schedule 2), must take if a complaint is being referred to it by the Health and Disability Commissioner under section 34 (1) (a) of the ‘Health and Disability Commissioner Act’. Section 66 outlines how the Health and Disability Commissioner must notify the authority of a pending complaint. Section 70 of the ‘Health Practitioners Competence Assurance Act’ states that an authority may not take any action concerning the complaint, or the subject matter of an investigation by the HDC Office, until notified whether the matter is not to be investigated (or investigated further), that the matter has been resolved, or that it is not to be referred to the Director of Proceedings, or that the Director will not institute disciplinary proceedings. Section 65 (2) allows an authority (e.g. the Medical Council) to refer a complaint received by it from the HDC Office to a professional conduct committee. Sections 71 to 83 of the Health Practitioners Competence Assurance Act stipulate processes to follow for and by such committees. Section 81 (2) provides for such a committee to formulate and lay a charge against a practitioner before a ‘Health Practitioners Disciplinary Tribunal’ (see sections 84 to 105 of this Act).

[35] By looking at the above and other provisions under this particular Act it becomes clear, that complaints about health practitioners will ultimately, and in virtually all cases, at first be assessed and decided upon by the Health and Disability Commissioner, rather than any authority responsible under this Act for registering practitioners. This certainly applies to complaints from consumers of health and disability services. That means also, that the role of the Health and Disability Commissioner in handling my complaint becomes absolutely crucial. Any authority – like the Medical Council, is unlikely to consider conducting any committee or tribunal hearing, or to take any other measures, unless the Health and Disability Commissioner or his Deputies refer a complaint to it under section 43 (1) (a) of the Health and Disability Commissioner Act 1994. Hence there is now no remedy or relief I can seek, or legal proceedings I can bring, to address the breaches of conduct by Dr Dxxxx Xxxxxxx.

 

[36] Breaches of natural justice, of process and legal provisions by the HDC Office

[36a] The comments by the Deputy and Associate Commissioners (see also paragraphs [6], [18], [22] and [31]), that the Medical Appeals Board would represent an “adequate right of appeal for WINZ decisions” (Theo Baker’s letter from 24 April 2013), and that “most of my concerns relate to the processes and policies of WINZ and of the Board” (K. Elkin’s letter from 17 Sept. 2013), and also that “the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office” (K. Elkin’s letter from 22 Nov. 2013), are apart from the last one completely incorrect, and they are – in regards to my particular complaint – all not relevant matters to consider under section 38 (2) (e) of the Health and Disability Commissioner Act. My complaint was about breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, which happened in the course of Dr Dxxxx Xxxxxxx inappropriately conducting a medical examination, and in a biased, unprofessional manner preparing related assessment reports on me. I must refer to the points I complained about in my original complaint letter from xx June 2012 (see also [2] and [3] in this letter). An appeal to a Medical Appeals Board (see old section 53A of the Social Security Act) would not address the conduct of Dr Xxxxxxx in view of the ‘Code of Health and Disability Services Consumer’s Rights’, the ‘Code of Ethics’, of any competency, health information privacy and information retention issues. The Commissioner also failed to consider the actual lack of independence of an MAB (appointed by MSD), that “designated doctors” and MAB members get trained and mentored by the apparently xxxxxx Principal Health Advisor of MSD, and that I did not succeed with my appeal to the MAB. I refer to my letters with further explanations and submissions to the HDC Office, dated 26 April and 22 Sept. 2013 (see also [8] to [15] and [19] above).The Commissioners misinterpreted statutory provisions, ignored and breached natural justice, by taking into account irrelevant considerations, instead of the repeatedly presented, valid, relevant matters. Section 38 (1) of the ‘Health and Disability Commissioner Act states’: “the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.” As the Commissioners did not have regard to all the circumstances of my case, they breached law.

[36b] In Dr Xxxxxxx’s letter to the HDC Office from 20 September 2012 he mentions that he did not provide medical treatment to me, and that he was under the understanding that “all complaints of this nature are more correctly addressed to the Medical Appeals Board”. He also refers to a letter dated 16 August 2010, which he apparently received from the HDC Office, and which he claims outlines such policy. This implies that the Health and Disability Commissioner is reluctant to deal with complaints about third-party assessors. That presumption is reinforced by comments made in a letter from Katie Elkin dated 17 Sept. 2013 (see last chapter on page 2), where she states “that complaints that relate to a non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction under the Act”. She reiterated that comment at the bottom of page 1 of her final letter dated 22 Nov. 2013, and at the top of page 3 again stated, that “it was more appropriate for WINZ, as the third-party contracting Dr Xxxxxxx to provide an assessment, to address your concerns about his assessment of you”. This apparent reluctance by the Health and Disability Commissioner, or his Deputies, to assess and investigate complaints about third-party assessors, who are registered health and medical professionals bound by the ‘Health Practitioners Competency Assurance Act’, the ‘Code of Ethics of the New Zealand Medical Profession’, and other legal provisions is unacceptable. Such practitioners, acting as examining assessors, must surely also be bound by the ‘Code of Health and Disability Services Consumer’s Rights’ (the Code), especially when a face to face consultation and physical examination is taking place. I view the position by the HDC Office in this regards as compromising the law. The provisions under section 38 of the ‘Health and Disability Commissioner Act’, to take no action or no further action, must not and cannot be interpreted that widely, as it may please the Commissioner by following selective, irrelevant, unreasonable or even subjective considerations. A registered health practitioner has obligations to respect the rights of consumers under the Code, also when conduction assessments (see section 20 (1) and particularly section/s 20 (2) (a) and (b)), which the Health and Disability Commissioner has a responsibility for to uphold and enforce.

[36c] In her decision from 24 April 2013 Theo Baker revealed that her Office had only specifically asked Dr Xxxxxxx to respond to an alleged breach of Right 5 of the Code, which means that none of the other reported breaches had been pursued. Consequently the Deputy and Associate Commissioners failed to give due and fair consideration to breaches I reported of rights 1, 3, 4 and 6 that under the ‘Code of Health and Disability Services Consumer’s Rights’. While Katie Elkin, Associate Commissioner, stated on page 2 in her letter from 17 Sept. 2013 (under “My response”), that a copy of my entire complaint was presented to Dr Xxxxxxx on 18 Sept. 2012, the copy of that letter sent to me upon an O.I.A. request does not state, whether only the complaint letter was sent, or whether it was sent together with all provided attachments. Hence I remain unconvinced that Dr Xxxxxxx was presented with all the evidence that I supplied. It raises serious questions, why Dr Xxxxxxx was only asked to specifically respond to “communication issues”, and apart from that allowed to offer his much “generalised” comments as a response to all other aspects. Dr Xxxxxxx’s responses are unconvincing in view of the comprehensive evidence I supplied, and he presented no copies of documents that I presented to him, or that my doctor sent him. Dr Xxxxxxx appears to be working in a manner, where he keeps as little documentation as possible, in order to avoid any legal questions or challenges that may arise. That is while he is according to the ‘Health (Retention of Health Information) Regulations 1996’ expected to keep certain medical records on file for a number of years. Not until the last response by Katie Elkin from 22 Nov. 2013 did the HDC Office provide any comment in regards to this breach by Dr Xxxxxxx! That response was completely unsatisfactory. In any case, same as under [36a], section 38 (1) of the ‘Health and Disability Commissioner Act’ was not followed; as the Commissioners handling my complaint failed to have regard to all the circumstances of my case (see also my letters from 26. April and 22 Sept. 2013).

[36d] Dr Xxxxxxx’s and Theo Baker’s comments (see Dr Xxxxxxx’s letter from 22 Nov. 2012 and Theo Baker’s decision dated 24 April 2013) concerning the lapse of time since the examination and assessment from 17 to 30 June 2010 are not accepted as a fair, reasonable consideration under section 38 (2) (a) of the Act for the Health and Disability Commissioner to not further investigate the matter. I was unable to make a complaint to the HDC Office until late June 2012, because other, related matters were still before the High Court – pending a judicial review proceeding. Given that circumstance the HDC Office would not have taken any action at all, until that would have been resolved. Also, in view of the Office of the Health and Disability Commissioner taking nearly a year, to present a first decision on the matter, and then not making necessary, due efforts to appropriately and fairly re-assess, clarify and confirm presented information and evidence, it is completely unreasonable to assert that the lapse of time since the subject matter arose warrants a decision to take no action. With the extra delay and final decision to not take further action, Theo Baker and Katie Elkin did as Commissioners in this case actually xxxxxxxxx the course of justice, as according to section 173 (Part 7) of the ‘Health Practitioners Competence Assurance Act 2003’ no information about offences under the Act may be laid 3 years after the time the matter for the information arose! Consequently I have been denied justice, which may raise issues with section 27 of the New Zealand Bill of Rights Act 1990, or at least the intention and “spirit” behind that provision.

[36e] In her letter from 17 September 2013 Katie Elkin only addressed a few summarised aspects of the breaches I reported, and of the issues I had raised, in her few bullet points. In her letter from 22 Nov. 2013 the Associate Commissioner suddenly referred me to the Privacy Commissioner to have unresolved issues re health information privacy and retention addressed there, which was something that I could certainly have been advised to do much earlier than this. This clearly relates to my complaint about Dr Xxxxxxx’s breaches of the HIPC 1994 and the Health (Retention of Health Information) Regulations 1996. As the Commissioner and his Deputies are according to section 14 (2) (b) of the Health and Disability Commissioner Act supposed to consult and cooperate with the Privacy Commissioner, the Ombudsmen and other statutory officials, one should have expected that the matter would have been raised much earlier, or even be referred to the Privacy Commissioner directly by one of the Commissioners. This did not happen, and therefore the Commissioners failed to act accordingly as provided under section 36 of the HDC Act. Also has the Commissioner certain responsibilities regarding privacy law as stated in section 20 (1) (c) (i) of the Health and Disability Commissioner Act 1994. By informing me of their position at the very end of a prolonged complaint process, and after an earlier conducted review, the Health and Disability Commissioner neglected their duty to consult with the Privacy Commissioner, and also with me, in a timely manner.

[36f] There was no mention in any decision that I received from the HDC Office, that the Mental Health Commissioner had been consulted on my complaint, which is what I had expressly asked for in my letter dated 26 April 2013 (see chapter 2 on page 1). Consequently the possibly only sufficiently, appropriately qualified Commissioner based at the HDC Office, Dr Lynne Lane (MB ChB, FNZCPHM 2008), was apparently not given a chance to look at and assess the complaint, the submissions and evidence presented, and to consider my mental health issues, which are highly relevant in view of the biased, un-objective, unprofessional and apparently incompetent treatment I received by Dr Dxxxx Xxxxxxx. The harm caused could only have been properly understood by a person with competence in the assessment, diagnosis and treatment of complex mental health issues. Given the apparent fact, that my complaint and submissions were not read, examined and assessed by the Mental Health Commissioner, I must conclude that I was denied a competent and fair hearing, and that consequently the natural justice principle ‘audi alteram partem” was breached. Only a proper re-assessment following the provisions of statute, regulation and natural justice, and a fair and reasonable process of decision-making, will ensure that justice can be applied in this matter.

[36g] Overall the Office of the Deputy Health and Disability Commissioner and her staff applied a dismissive and even negligent approach towards the assessment and handling of my complaint. This does not only become evident by some clear mistakes in the ‘(TRIAGE)’ form, but also by not having made any efforts to contact potential witnesses who could have verified and commented on crucial information that was provided. Most concerning is that undue major consideration was given to Dr Xxxxxxx’s two letters with his own summarising statements in response to aspects of my complaint (dated 20 Sept. and 22 Nov. 2012). There appears to be no other convincing reason for Theo Baker’s decision to not properly examine other information and matters presented with my complaint C12HDCxxxxx, apart from her apparent personal bias against me. It was obviously caused by the fact that she had already dealt with a highly complex complaint on another matter I had presented, where I had complained about her handling of it. I took issue with her handling of my complaint under the reference C11HDCxxxxx by way of a letter dated 27 March 2012. It was in response to Theo Baker’s initial decision on that complaint dated 24 February 2012. Later correspondence and information received under the O.I.A. and Privacy Act revealed that a sought review of Miss Baker’s decision in that matter was only dealt with reluctantly and half heartedly. In view of the convincing evidence and information provided in this complaint matter under reference C12HDCxxxxx, a fair minded, informed person would have decided differently to Deputy Commissioner Theo Baker. The later responses by Katie Elkin as Associate Commissioner were obviously made after much legal consultations amongst staff and advisors within the HDC Office, and must be viewed as damage control.

[36h] An aggrieved person, as I am as the complainant in the case presented here, would only be able to bring a complaint to the Human Rights Review Tribunal him/herself, under the provisions in section 51 (a) or (b) of the ‘Health and Disability Commissioner Act’. But as the Deputy and Associate Health and Disability Commissioners failed to give due, fair and reasonable consideration, by not having regard to all the circumstances of the case (i.e. the substantial compelling evidence that I presented during the course of my complaint), they failed to acknowledge and accept there were breaches of the Code! As a result their decision has denied me access to justice. Again this raises issues with the New Zealand Bill of Rights Act 1990 and with natural justice.

[36i] According to section 7 (a) of the Health and Disability Commissioner Act the Commissioner, and where applicable his Deputies with the relevant delegated powers, must in exercising or performing any power or function take into account the New Zealand health strategy and the New Zealand disability strategy. ‘The New Zealand Disability Strategy 2001’, published by the Office for Disability Issues – under the Ministry of Social Development, states under ‘Objective 6’: “Foster an aware and responsive public service”, and further to that, see ‘Action’ 6.3: “Ensure that all government agencies treat disabled people with dignity and respect”. Although not a government agency as such, but as a public office with responsibilities to uphold the ‘Code of Health and Disability Services Consumers’ Rights’, it must surely be expected that the HDC Office honours, respects and adheres to that part of the strategy. The ‘New Zealand Disability Action Strategy’ requires regular annual ‘Progress Reports’ on the implementation of the strategy to be published. Also has New Zealand has signed the ‘United Nations Convention on the Rights of Persons with Disabilities’, which appears to have been integrated into, or aligned with ‘The New Zealand Disability Strategy’. It must therefore be expected that an Office like the HDC Office must follow the provisions/principles under Article 12 – and particularly Article 13 – of that UN Convention. But with much regret, I must note, that the treatment I have received from the Deputy and Associate Commissioners of the HDC Office, in the process of handling my complaint, has been lacking due respect, fairness and reasonableness, leading to a situation where access to justice has been denied. It appears that the Commissioners and their staff of the Office of the HDC lack the necessary training and competency to handle complaints from mental health sufferers in an appropriate, supportive and respectful manner. This is a matter of great concern and requires most urgent resolution.

 

Remedies sought under the Ombudsmen Act 1975

[37] The Health and Disability Commissioner, represented by his Deputy and Associate Commissioner, made an assessment and decisions on my complaint, which are in breach of natural justice, which are based on the misinterpretation of statutory and regulatory provisions, and which ultimately deny me justice. The final decision is based on flawed, inappropriately conducted assessments and reviews, that did not give fair, objective and reasonable consideration to all the truly relevant information and evidence provided, referred to and offered in relation to the complaint. The Commissioner/s decided without justification to take no action – or no further action – on my complaint, while failing to have regard to all the circumstances of the case. In view of this, I ask you as Ombudsman for your considerations based on all information and evidence provided (incl. correspondence between the HDC Office and me) to make the following recommendations or decisions under section 22 (3) of the Ombudsmen Act 1975 to the Health and Disability Commissioner, and otherwise:

[37-1] That the Health and Disability Commissioner, or any of his Deputy or Associate Commissioners and their staff, properly and thoroughly reviews and re-assesses my complaint C12HDCxxxxx, and in doing so give the appropriate, fair, objective and reasonable consideration to all the evidence supplied in the matter (including such provided after an earlier decision or review in the course of the complaint handling).

[37-2] That the Health and Disability Commissioner, or his Deputy or Associate Commissioner, directly involves and consults with the Mental Health Commissioner in conducting such a proper and thorough review as asked for under [37-1].

[37-3] That the Health and Disability Commissioner, or any Deputy or Associate Commissioner, same as the Mental Health Commissioner, will at all stages of his/her review, re-assessment and future decision-making, truly follow the principles of natural justice, and strictly adhere to the statutory and regulatory provisions – as they should be correctly interpreted under the law.

[37-4] that the Health and Disability Commissioner, any Deputy-, Associate- or Mental Health Commissioner, will during the review, re-assessment and in their future decision-making consult any witnesses, who may be required to verify, confirm and comment on any documentary or other information provided, thus facilitating a fair, reasonable and objective handling of the complaint. This may include my own GP, Dr Xxxxx Txxxxxx, my psychologist Xxx Lxxxxx at XxxXXXX Psychological Services, other specialists or practitioners involved in my care, same as staff of the Ministry of Social Development, or any other relevant person. Where necessary, I will ensure to provide a written authority to the HDC Office to contact and consult with particular health professionals that were involved in my care.

[37-5] That the Health and Disability Commissioner, his Deputies, Associate or Mental Health Commissioner, will consult in this matter with the Privacy Commissioner and the Office of Ombudsmen, where this is necessary and appropriate, to resolve health information privacy and retention issues that were raised as part of the complaint. In the case that such issues are better dealt with by the Privacy Commissioner, the matter should be referred to that Commissioner by the Health and Disability Commissioner.

[37-6] That the Health and Disability Commissioner, his Deputies, Associate or Mental Health Commissioner, will ensure that measures will be taken and implemented as soon as reasonably possible, to provide needed training to all staff employed by the HDC Office, on how to appropriately, fairly and respectfully deal with complainants, witnesses or any other persons that suffer from mental health – or any other illness causing disabilities, that are not always well understood and appreciated.

[37-7] That the Health and Disability Commissioner – or any Commissioner with his delegated authority – will ensure that I will be given access to justice, either by the Commissioner taking appropriate actions him-/herself, or by the matter being referred to the Director of Proceedings, and/or by referring the matter to the Medical Council for further action. This is in reliance on natural justice, as well as statutory and regulatory law being applied appropriately, fairly, objectively and reasonably in resolving the complaint matter.

[37-8] That any other recommendation or decision be made, which you as Ombudsman see appropriate in this matter, which may include reporting to the Minister of Health, the Prime Minister, the House of Representatives or any other authorities, to recommend a review of the law, to remedy inconsistencies in processes and procedures that prevent persons in my situation from accessing and finding justice.

 

Closing comments and concerns

[38] It is my concern also that the Health and Disability Commissioner Office is re- and de-prioritising too many complaints about issues with health and disability services, due to financial pressures, while their office is faced with increasing work loads and at the same time limited funding. The recently published annual report of the Health and Disability Commissioner has revealed some details on this. As the Health and Disability Commissioner does perform the role of a “gate keeper” when it comes to handling and processing complaints, the refusal to accept and investigate many complaints leads to a denial of justice for too many. Authorities like the Medical Council will usually not investigate any complaints themselves, unless the HDC Office refers matters to them – to further deal with.

[39] Already now we have too many cases that are before the HDC Office for two or more years, and any breaches that can be addressed under the ‘Health Practitioners Competency Assurance Act 2003’, will not be possible to pursue after the lapse of 3 years (see section 173). Justice delayed is justice denied, and it is a matter of highest concern what happened with not just my complaint, but what happens to many others.

Your respected decision and response in this matter – in due – course will be most appreciated.

 

Yours thankfully and sincerely

 

Xxxxxxxx Xxxxxxx

 
 

P.S.:

Lists of supplied, relevant evidence documents and correspondence in this matter will be found at the bottom of a number of emails that will be sent separately in this matter to your Office’s email address! Those relevant documents that will be attached to those emails will not be attached to a copy of this letter that will be also sent to you by post.”

 

Comments by the author:

The above complaint should be self explanatory, but if questions arise for the reader, she or he may wish to revisit the relevant earlier HDC complaint available on this blog, in order to obtain the information it relates to. There was never a separate, formal email response from the Office of Ombudsmen confirming receipt of this whole complaint. Hence the complainant did at 02:25pm on 23 Feb. 2014 send in a follow up email, requesting a confirmation of receipt and update for his complaint. Only ever was there just one automated response received from the email system at the Ombudsmen’s Office at 02:27pm on that same day, no other correspondence or other communications were ever received for months to follow!

 
 

PART 4 – THE BIZARRE, INCOMPREHENSIBLE COMPLAINTS ASSESSMENT AND ANALYSIS BY AN OMBUDSMAN’s INVESTIGATING OFFICER

 

After having sent in each of the above complaints to the Office of Ombudsmen, there was no proper response to the complainant for months to come. There had in the end only been just that one brief email acknowledgment from 03:10pm on 14 Nov. 2013 – that followed the first complaint, which the complainant received. So after waiting over four to five months for a proper written reply re either matter, the complainant did at about 11.30 am on 22 April 2014 phone the Ombudsman’s Office to enquire about the progress of the complaints. As the investigating officer was apparently not available, the complainant had to leave a voice mail message for her, which was also not responded to. So he phoned yet again at 10.30am on 28 April 2014, when he finally reached the investigating officer, who confirmed that she actually had both complaints in front of her. She advised the complainant that she would respond within two weeks with a letter authorised by the Chief Ombudsman.

But for further weeks no letter came, hence the complainant phoned the Office once again at 11.35am on 26 May 2014. He then received an explanation that there had been a delay in progressing the matter, but he was assured that a response should reach him by the end of that week. He finally got a letter signed by the Chief Ombudsman, Dame Beverley Wakem, on 30 May, which was dated 28 May 2014.

The complainant was shocked and dismayed at the response, which told him, that the Chief Ombudsman, clearly basing her decision on the investigating officer’s assessment, analysis and advice, did at that stage “not intend to commence Ombudsmen Act 1975 investigations into either of the complaints”. While the response was signed by Ms Beverley Wakem, it had of course been prepared by the investigating officer mentioned at the top of the same letter under “Contact”. It was clear to the complainant that Ms Wakem would not have investigated the matters and written the correspondence herself, as it would usually be the case with such shared administrative responsibilities. So when we are in the following talking about the “Ombudsman” or “Chief Ombudsman” Beverley Wakem, we must bear in mind, that the information and comments contained in that letter were actually those prepared by the investigator, which the Ombudsman simply accepted and took over as being her own. The complainant could only explain the rather bizarre, incomprehensible assessments, analysis and decisions made in relation to his two, combined complaints, as having been the result of an either over-worked, poorly trained or otherwise incompetent investigating officer working for the Chief Ombudsman.

To the astonishment of the complainant, both complaints had been combined into one complaint file under one reference number, and they were being responded to in the same one letter. They were in that letter addressed separately, but the ‘Conclusion’ in that letter presented the Ombudsman’s (and investigating officer’s) decision on both complaints.

 

Summarised contents of Ms Wakem’s letter, that had been prepared by the investigator

After offering apologies that she (and her Office) had not been in a position to progress consideration of the complaints sooner, Ms Beverley Wakem did first explain that her Office was “not an appeal authority against decisions made by the HDC”. She explained that while Ombudsmen had authority to investigate decisions by the HDC, relating to a “matter of administration”, an Ombudsman’s review of bodies such as the HDC, was limited. She explained to the complainant how the HDC was established by Parliament as a specialist reviewer of issues concerning complaints relating to the health and disability sector. The Ombudsman would only consider complaints about the HDC by considering “the fairness and effectiveness of the process followed by the HDC”, she wrote. And an Ombudsman would only determine whether the decision that was arrived at was one that was reasonably open to the decision-maker to have been made, she added.

She made clear that by statute the HDC was the only authority “capable of determining whether a health professional has breached the Code of Health and Disability Services Consumers’ Rights (‘the Code’)”. Ms Wakem wrote that an Ombudsman could not substitute his or her view on whether a breach of the Code had occurred. She stated that she was therefore unable to ‘investigate and provide an opinion’ on the standard of treatment the complainant received from the counselling service provider or the designated doctor. What she may do was to consider whether the HDC, in forming any view (in this case whether to take no further action on either or both complaints) had “followed processes that were fair and reasonable” and ended in decisions that “were reasonably open to the HDC to have made”, she commented.

Ms Wakem then also explained when and how section 22(3) of the Ombudsmen Act 1975 would come into play. It would only come into operation if the Ombudsman concluded (after an investigation), that an agency that had been complained about, had acted apparently contrary to law, unreasonably or in one of the other ways as identified in sections 22(1) or (2), she wrote. She also mentioned that any recommendation made following an investigation was non-binding. Then the Chief Ombudsman went on to explain her view and considerations on either complaint case, firstly on the first complaint about the counsellor/s and their employer.

Under The first complaint Ms Wakem wrote (based on her investigating officer’s assessment and analysis), that the complainant’s main concern was “the HDC’s alleged failure to consider all the material and evidence” he had originally submitted on 08 August 2011. But then she simply adopted the assertion by the Deputy HDC, Ms Baker: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” She also quoted the HDC from a letter their staff sent to the WDHB, stating that the “complaint is of an unusual length and complexity, and, as such, rather than responding in detail to each individual issue raised, it may be helpful to instead provide a general overview of his care.”

Ms Wakem then wrote that it seemed to her “that the HDC was reasonable to ask” the complainant to provide a summary of his concerns, and to advise the WDHB that not every point had to be addressed – given the very large number of issues raised. The Ombudsman wrote that (in her view) the HDC went through the material the complainant had provided, and sought responses (from WDHB) he deemed relevant to his consideration of the complaint”. She also stressed that the HDC “has discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose.” She continued commenting that when the complainant was not satisfied with the HDC’s initial decision, “the HDC agreed to review the file and gathered further information from WDHB”.

The Chief Ombudsman claimed in her letter, that the complainant was then aware, that the HDC’s examination of his complaint was based on “the revised version, dated 9 August 2011, along with the attached documentation”. She pointed to comments in a letter dated 16 May 2012 (from the HDC’s Complaints Assessment Manager). She wrote also, that (in her view) it was apparent, that the HDC considered all the emails the complainant had sent in during early 2012, adding “most of which contained large attachments”. She furthermore commented: “It was at that stage that the HDC advised that it did not have the resources to process the amount of material you were sending in”. She added that the complainant was then asked (by the HDC) for the following: “out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible.”

She commented that the file was reviewed for a third time in late 2013. Ms Wakem wrote that on 14 June 2013 the Deputy HDC, Ms Theo Baker, advised that following that review “no further action would be taken on the complaint”. The Ombudsman did then again simply accept the claims by the HDC, and wrote: “She noted that all relevant information pertaining to your complaint had been considered and that further correspondence from the HDC on this complaint would not be appropriate.” She did though also comment that the HDC did respond to the complainant’s further correspondence, and referred to Associate Commissioner Katie Elkin’s letter from 05 October 2013 (wrong date), in which Ms Elkin had explained to the complainant, that the HDC can decide to take no further action on a matter and that this discretion is exercised only after careful assessment of all relevant information.

While the Ombudsman then commented that she appreciated that the complainant remained dissatisfied with the HDC’s decision to take no further action on his complaint, she stated: “It is not clear to me that in making that decision, the HDC failed to take all the information into account.” She commented on the complainant’s concerns that by “summarising” material he had presented, he felt the HDC ignored some more salient facts. But Ms Wakem then wrote that “given the amount of material you submitted to the HDC, it seems reasonable for the HDC to have summarised key points, in order to assess the material efficiently and fairly”. She continued with commenting: “The fact that the WDHB was not asked to consider every detail presented in the hundreds of pages you submitted to the HDC does not indicate that the relevant material was not considered by the HDC.” The Ombudsman asserted that there was nothing in the material that she had seen that would indicate that the HDC’s decision was based on “inadequate consideration of the facts”.

At the end of her summary of ‘the first complaint’ she pointed to provisions under section 14(1)(m) of the Health and Disability Commissioner Act 1994, commenting that the HDC may “gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s function under this Act”. She also commented that the HDC was under no obligation to interview witnesses, thus basically defending the HDC.

Under ‘The second complaint’ Ms Wakem then referred to the complainant’s complaint about alleged breaches of professional conduct by a “WINZ designated assessor”, which had been lodged between 30 June and 02 July 2012. She mentioned the name of the general practitioner and the centre he worked in. She also mentioned the letter and ten subsequent emails (it was actually altogether 17 emails!) with attached PDF documents. She commented that the HDC asked the doctor to consider the complainant’s “concerns”. Deputy HDC Theo Baker assessed the complaint and concluded that in accordance with section 18(1) of the HDC Act “no further action should be taken”, she wrote. The Chief Ombudsman wrote that the HDC “considered both the information” the complainant provided, and the doctor’s “comments in response”. “Reasons for her decision were provided”, Ms Wakem wrote (all based of course on her investigator’s assessment and advice).

Ms Wakem then wrote how the complainant had advised her that “certain major points” of his complaint “had not been addressed or responded to at all”, and that Ms Baker’s decision was “unacceptable”. Then the Chief Ombudsman wrote how the complainant had between 25 and 27 April 2013 “submitted considerable correspondence to the HDC”, about his concerns. Not going into details she then wrote, that Ms Elkin had in September 2013 written “that the HDC’s initial decision stood”. She added in her letter to the complainant: “When you complained again, Ms Elkin responded on 25 November 2013 (it was actually the 22 Nov. 2012!) setting out the reasons why there was no basis to reopen the file”.

However, Ms Wakem, the Chief Ombudsman, did then sum up the five bullet points that the complainant had (in her view) complained about, being – that the HDC:

“● failed to provide relevant information to Dr Xxxxxxx and to ask him to comment on certain issues raised in your complaint;
● failed to interview third parties you identified as key to your complaint;
● unreasonably made comments concerning the lapse of time between the submission of the complaint and the events being complained about when you had been unable to make your complaint to the HDC earlier because related matters had been the subject of a Judicial Review hearing;
● Was reluctant to investigate a complaint against a non-treating doctor (who still falls within HDC jurisdiction); and
● May not have considered its obligations under the UN Convention concerning persons with disabilities when considering your complaint.”

After that Beverley Wakem commented on each of those points, writing re the first issue, that the HDC had advised her that the entire 20 page complaint letter had been sent to the GP, but that they noted, that they were unclear, “whether the substantial documentation attached to the complaint letter had been sent”. She mentioned the “follow up communication” that occurred on 22 November 2012 with the doctor, where the HDC had asked him to respond particularly “to the issue about communication”. And then Ms Wakem stated: “It is for the HDC to determine what information he requires for the purpose of his assessment of a complaint”.

On the second matter the Ombudsman commented, the HDC has discretion under section 14(1)(m) of the Act to gather such information as he/she sees appropriate”.

In relation to the third “issue”, she wrote: “I note this matter was referred to in Ms Baker’s 24 April 2013 letter when she explained that further investigation into Dr Xxxxxxx’s style of communication was contrary to yours and that ‘further investigation into this matter will [not] provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment’”. She commented: “It seems to me that this was not an unreasonable comment to have made in the circumstances, given the inherent difficulties for parties to recall discussions which took place some years ago.” She further added, that notwithstanding that passage of time, “the HDC assessed your complaint”.

Regarding the fourth issue the Ombudsman then commented on how Ms Elkin had in her letter of 17 September 2013 explained that although complaints against non treating doctors acting for a third party may fall within the Commissioner’s jurisdiction, “in this case, most of the concerns” the complainant had raised, “related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction”. Besides of mentioning this, the Ombudsman also pointed out (based on Ms Elkin’s comments) that even where jurisdiction could be established, the HDC and Deputy HDC had “a wide discretion” to take no further action under section 38. She concluded with comments like: “Finally, there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to you as a health and disability consumer, under the Act.” She lastly noted that no finding had been made on the doctor’s record keeping.

Under ‘Conclusion’ the Ombudsman then summed up her decision. She wrote: “At this stage I do not intend to commence Ombudsmen Act 1975 investigations into either of the complaints you have made to this Office”. She “appreciated” that the complainant would be disappointed and again outlined her limitations as Ombudsman, stating “that in the absence of any indication that the HDC’s decision-making processes themselves were unreasonable or defective, it is difficult for an Ombudsman to investigate a complaint against the HDC.”

She also wrote that even if she had decided to investigate, the remedies she may have been able to use were limited, and she would most likely have referred the matter back to the HDC for consideration. But then the HDC was not bound by any suggestion or recommendation she could in that case have made, she added. Even if the HDC would agree to review the files afresh, there was always the possibility that the outcome would be the same findings, she asserted. In light of all this she had closed the file, taking no action at all to investigate.

A PDF file containing an authentic scan copy of the Chief Ombudsman’s decision letter dated 28 May 2014 is found via this hyperlink here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, decision, anon, 28.05.14
A PDF file with the same copy – high-lit – is found here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, decision, anon, hilit, 28.05.14

 

Comments by the author:

The complainant was very upset about this “decision” letter from the Chief Ombudsman, which did for a start contain a number of mistakes, starting with some wrong dates for correspondence being referred to. There were also some apparent misunderstandings of the expectations of the complainant, and of concerns and issues he presented. Not all concerns the complainant had presented were actually being addressed. It was clear to him, that the letter had not been written by Ms Wakem, and that it was not based on her own assessment, analysis and conclusions. It was a letter prepared by the investigating officer who had handled the case, who had (under time and work load pressure) apparently rushed over the complaint letters, and only a few other relevant documents that she looked at. It was apparent that a lot of sent in correspondence and presented evidence, and supplementary information, had not been looked at, most certainly not properly.

The earlier phone calls, which the complainant had made, they had already indicated, that the Office of Ombudsmen staff were way behind processing and progressing complaints, and this was proved by repeated media reports about the growing “back log” at the Office of Ombudsmen. That is why there had not been a response for months, and only after the complainant made first phone contacts, leaving also a voice mail message, would the Office staff have looked at the complaint. Feeling under pressure to resolve the matter, it must have been dealt with somewhat speedily and superficially.

Also does it seem that the Ombudsman, and particularly her investigating officer, had only marginal and brief contact with the HDC Office, in order to discuss the complaints. There is indeed little indication or evidence of any significant discussions having occurred between the HDC and Ombudsmen Offices in this case.

In summary, one can conclude from the repeated quotes of explanations and comments the Deputy HDC and Associate HDC had used in their correspondence with the complainant, that the Ombudsman relied heavily on the HDC’s judgment and “competencies”, rather than give much credit to what the complainant had presented.

There is no need to explain, that given the above, the complainant felt compelled to further argue his case, by presenting further correspondence. He would re-assert his position and remaining concerns, and also present additional evidence and ask for a review of the decision.

 
 

PART 5 – THE OMBUDSMAN BEVERLEY WAKEM DECIDES THAT NO ACTION IS NECESSARY, IGNORING COMPELLING EVIDENCE

 

It is clear to any person who has experience in multi-layered, work shared administration, that Beverly Wakem did not herself assess, analyse and evaluate the two complex complaints, but left this work to her investigating officer. Any informed person will understand that Ms Wakem will not have formed the final decision not to conduct an investigation into the two complaints all by herself. The Chief Ombudsman will instead have relied on her own staff for doing most – if not all – of this work. She will perhaps have read through bits of the complaint and sent in evidence, but even that is not certain, given the huge workload the Office has over the years been dealing with.

Thus it is rather clear, that it was the investigating officer who did the bulk of the work for Ms Wakem, and that it was the investigator who presented the Chief Ombudsman with the letter dated 28 May 2014, that she had prepared as a response to be sent to the complainant. As already mentioned, it must also be presumed that the work done by the investigating officer would have been done in a rush, under great time and other constraints, as nothing much will have been done with the two complaints until the complainant phoned the Office on 22 April 2014, seeking an update on the processing of his complaint.

So within only a few weeks the very complex matters will have been rushed through, while no thorough assessment and detailed analysis of the complaints happened. As a result a very flawed and poor decision was formed, not to investigate either of the complaints.

From Ms Wakem’s letter it is evident that she (or rather her investigating officer) heavily relied on the earlier “judgment” and “competency” of the Deputy HDC and her Associate at the HDC Office. Repeated references to comments made by the two provide sufficient evidence of this. Hence the already observed bias that the complainant noticed in the earlier, flawed HDC decisions was also adopted and followed by the Ombudsman (initially her investigating officer). They appear to have given more credit to the “evidence” provided by the HDC staff than to anything the complainant presented, including the documentary evidence, which appears to not even have been looked at – certainly not most of it.

Re the 1st complaint under the HDC’s reference C11HDCxxxxxx the following was simply accepted as “fact”, ignoring any evidence to the contrary, presented by the complainant:
1. That the computer system at the HDC “froze” when receiving the emails with attachments from the complainant, although email correspondence proves this wrong;
2. that it was reasonable for the HDC to simply expect the Waitemata DHB (WDHB) and their CEO Dale Bramley to provide only a “summary” of the “treatment history” of the complainant, instead of addressing various valid individual issues;
3. that the WDHB CEO’s comments were all correct, truthful and reliable, and had more merit than what the complainant alleged against their service’s counsellor/s;
4. that the HDC acted reasonably and fairly by seeking responses he deemed relevant to his consideration of the complaint” – without questioning the judgment of the HDC;
5. that “the HDC agreed to review the file and gathered further information from WDHB”, while also acknowledging “that the HDC advised that it did not have the resources to process the amount of material” the complainant had sent in;
6. that the HDC was right in stating “that all relevant information pertaining to” the complainant’s “complaint had been considered and that further correspondence from the HDC on this complaint would not be appropriate.”, trusting fully the HDC;
7. that the HDC exercised its discretion “only after careful assessment of all relevant information”, even though careful examination of evidence would question this;
8. that the HDC considered all relevant material, even though “the WDHB was not asked to consider every detail presented in the hundreds of pages … submitted to the HDC…”, thus exaggerating and ridiculing the actual evidence by the complainant;
9. that with the above (see ‘3.’), the counsellor might have “misheard” the client when recording wrong information in the client’s file, although the counsellor had initially recorded the true references in the same file, and later very different, false notes;
10. that WDHB’s service provider did all that was required from it, by simply adding particular “wording” (comments) by the complainant to his client file, after he complained about wrong information having been recorded in the file (see also ‘3’);
11. that the service provider (as part of WDHB) was reasonable in not offering an apology to the complainant, as it had found no indication of the counsellor having intentionally put false notes in the client file.

From the response by the Chief Ombudsman Dame Beverley Wakem, it can be seen, that she did (based on her investigating officer) only bother look at aspects of the administrative “process” followed by the HDC. It appears that she did not bother examining the sent in documentary evidence, which would have revealed that the HDC failed to consider very relevant information, and instead relied overly much on less relevant, even incorrect, untrue and illogical information. This means that the process can hardly have been objective, fair and reasonable.

By simply accepting the above listed points, and not questioning the HDC’s assessment of the conduct of the counsellor/s, and by instead relying primarily on the reports from the Chief Executive of the WDHB, Ms Wakem (based on her investigator) ignored important evidence that was presented to her. That evidence should have at least compelled her to conduct a formal, more thorough investigation into the HDC’s assessment and decision making. The Ombudsman’s Office had been presented with authentic copies of the complainant’s client file, showing how a counsellor first recorded more correct information, and only months later recorded contradictory and totally false information. It had also received authentic copies of emails to and from the HDC, proving that ALL the initial complaint emails from 08 August 2011 had been received and passed on internally, hence could not have “frozen” their computer system. Additional evidence documents showed recorded other important facts, and thus it should have been sufficiently clear, that the HDC could not have been right and could not have conducted a thorough, fair and reasonable assessment and investigation. As a result the HDC’s decision was flawed and not acceptable, but the Ombudsman failed to see this.

Re the 2nd complaint under the HDC’s reference C12HDCxxxxxx the following was simply accepted as “fact”, ignoring any evidence to the contrary, presented by the complainant:
1. that ten subsequent emails were sent to the HDC following/with the complaint letter, while the actual emails sent numbered 17, which a list of emails showed;
2. that the HDC “considered both the information” the complainant provided, and the doctor’s “comments in response”, although presented documents challenged this;
3. that the HDC was unclear, “whether the substantial documentation attached to the complaint letter had been sent”, while the doctor himself mentioned no attachments;
4. that the complainant had between 25 and 27 April 2013 “submitted considerable correspondence to the HDC”, although this was and is viewed differently;
5. that the Deputy HDC was reasonable in deciding that although the doctor’s style of communication was contrary to what the complainant stated, “further investigation into this matter will [not] provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment”;
6. that the HDC reasonably considered that “most of the concerns” the complainant had raised, “related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction”, while records contradict this;
7. that there was “nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had” to the complainant as a health and disability consumer, while factual info strongly indicating the opposite was ignored;
8. that the designated doctor’s record of events, his conduct and his style of communication was not in breach of the Code, while his comments contradicted the comments by the complainant, supported by well documented, supporting evidence;
9. that the complainant had allegedly been “successful” in his “appeal” against a Medical Appeals Board decision, based on HDC’s bizarre, untrue, unsubstantiated comments.

Like with the first complaint, the Chief Ombudsman appeared to reduce her assessment and decision on the complaint about the HDC’s handling of the second complaint by looking only at administrative process. Ample room for interpretation and discretion was allowed, to let the HDC off the hook, by considering the HDC acted “fairly” and “reasonably” in the circumstances, when conducting the assessment and forming a decision.

Again, the Ombudsman simply relied on the above listed points and ignored significant documentary evidence, that showed how the general practitioner, acting as a WINZ examiner and third party assessor, could not have been honest and correct in his comments in response to allegations made against him. The Chief Ombudsman, Ms Wakem (based on her investigator’s assessment), simply relied on information that should have been less relevant, and ignored very relevant information, provided to her. The general practitioner’s designated doctor report to WINZ revealed how he had failed to consider important information made available to him by the complainant as the assessed person, and how he completed a flawed report that was in stark contrast to reports from the client’s own doctor and specialists. Also did he lack the professional qualifications to competently assess a person with complex mental health conditions, suffering from addiction. The biggest mistake the HDC had made was to simply dismiss the complaint, by wrongly stating, the matter was better dealt with by WINZ or a Medical Appeals Board. Also had the HDC wrongly asserted that the client had been “successful” with an appeal to the latter. But the law clearly states that a doctor’s misconduct can only be considered under the Code by the HDC – or by an agency, authority or person that the HDC may refer the matter to. This is what the Deputy HDC had failed to properly acknowledge and consider, and when the Ombudsman looked at the HDC’s decision, she simply adopted the same view, while not bothering to challenge the HDC’s view and judgment, examining whether it had been objective, reasonable and fair.

This can only be explained by the Ombudsman and her investigator not having looked at the documents presented with the complaint about the HDC’s complaint handling under reference C12HDCxxxxx. The claim by the Ombudsman, that there was no reason to further investigate the matter, based on the above, and otherwise solely on the HDC’s earlier view that the medical practitioner’s view on his style of communication with clients was different from the comments by the complainant, appears to simply have been a convenient excuse to not bother with the complaint. One may suspect that it was simply a too “complex” matter to bother with, given the high work load and limited resources of the Ombudsman’s Office, and that the Ombudsman may have thought, the complainant was perhaps even a bit “frivolous”, “daring” to present two complaints against the HDC. Hence he was not taken too seriously. All in all, our impression is the Ombudsman, or rather her investigator, did not do a good, proper job.

 
 

PART 6 – THE COMPLAINANT’S OBJECTIONS TO THE COMPLAINT HANDLING AND DECISION AND HIS REQUEST FOR A REVIEW

 

Understandably very disappointed by the decision he received from the Office of Ombudsmen, which the complainant attributed to the flawed assessment, analysis and decision formed by the investigating officer, he soon wrote a response to the letter signed by Beverley Wakem. In the early morning on 16 June 2014 he sent off his response (with that same date) to the Ombudsmen’s email address. It consisted of altogether three emails with a formal letter and some 16 further attached documents. These included a copy of the response letter, plus evidence, including such proving that all his emails sent to the HDC on 08 Aug. 2011 had been received by that Office, thus contradicting his emails “froze” their system, and also listing all attachments sent in with his two Ombudsmen complaints.

He also sent a formal written response off by parcel post – at close to midday on 18 June 2014, containing the complete letter and lists of attachments he had already sent. That parcel post letter would be received by the Ombudsmen’s Office at 11:33 am on the following day, as a track and trace record would confirm.

In his response the complainant would present the following objections, his arguments and he would point out the various mistakes the investigator made, which led to the flawed, unacceptable decision. He asked the Chief Ombudsman for a review of the complaint and the decisions, which he expected to be done by another investigating officer.

A PDF file containing the authentic text of the 16-page response letter is found here:
Ombudsman, HDC, complaints, C11HDCxxxxx, C12HDCxxxxx, reply to dec., anon, 16.06.14

 

Here is the full transcript of the complainant’s response and request for review to the Chief Ombudsman, dated 16 June 2014:

 

Re: Serious objections to the handling of complaints under your Office’s reference 3xxxxx, by investigating officer Xxxxx Gxxxxx, covering issues I raised re the handling of complaints C11HDCxxxxx and C12HDCxxxxx by the Office of the Health and Disability Commissioner (HDC)

 

Dear Beverley Wakem – Chief Ombudsman

Thank you for your letter dated 28 May 2014, in which you presented me your Office’s decision to not investigate my above mentioned complaints about the unacceptable handling of issues that I raised with the Office of the Health and Disability Commissioner (on 08 and 09 August 2011 and on xx June 2012). Both these matters were for some reason dealt with under your Office’s reference number 3xxxxx. My complaints to your Office were recently considered by your investigating officer Xxxxx Gxxxxx. It appears that my complaints from 07 (sent 13) November and 16 December 2013 were only finally processed by Ms Gxxxxxx, after I followed up both my complaints by way of a phone call to your Wellington Office at about 11:30 am on 22 April 2014. I called your Office, because I had not received any response at all to my complaints, apart from an initial email acknowledgment on 14 Nov. 2013.

Despite of having left a voice mail message for your then unavailable investigating officer, there was again no response, hence I phoned her yet again at 10:30 am on 28 April 2014. Then she advised me that she had my cases before her, and would within two weeks respond by way of a letter authorised by you as Ombudsman. Due to still not receiving any letter, I was prompted to phone your Office and the responsible officer again a third time at 11:35 am on 26 May this year. I was then advised that there was a delay with preparing a letter, but that I should hopefully get it by the end of the same week. I can confirm that I finally received the response to both my complaints on Friday, 30 May 2014.

Upon reading that response, which was clearly prepared by Ms Gxxxxxx, and signed by you as Chief Ombudsman, I was indeed extremely disappointed, even shocked and dismayed. It was most certainly not the kind of reply I had expected, and it contains considerations, conclusions and explanations that are at least in part based on clearly incorrect information, that are inappropriate and not acceptable. Miss Gxxxxxx has obviously failed to understand, view and to consider very relevant evidence, and hence I must ask for a proper review of my complaints, by another investigator than Miss Gxxxxxx.

 

Your Office’s response, prepared by Miss Gxxxxxx – her general explanations

While I appreciate Ms Gxxxxxx explaining the role of the Ombudsman, I was already sufficiently informed about this, and well aware, that your Office would look only at the administrative handling, at processes followed and at how a decision may have been reasonably formed as a result of that, rather than treating my complaint as an “appeal”. I accept and acknowledge that your Office’s role is limited to considering aspects of fairness, effectiveness, and I presume also of the correctness and appropriateness, of processes followed by the Health and Disability Commissioner (HDC) and his staff. Also was I aware, and pointed this out in my own complaint(s) to your Office, that the HDC is the only authority that can and will under statutory provisions make any determination, whether a breach of the ‘Code of Health and Disability Services Consumers’ Rights’ (‘the Code’) occurred. I did never expect your Office to freshly investigate the actual core complaint matters in regards to alleged breaches by XXXX counsellors in one case, and by Dr Dxxxx Xxxxxxx in the other, as a Work and Income (WINZ) commissioned assessor in the other.

Perhaps some wording or formulations I used in my complaint letters to your Office did not make this clear enough, but I fully accepted that your staff would only look at whether the HDC Office had followed fair and reasonable processes, and whether decisions were reasonably formed and made by the HDC. I certainly had formed the view, and maintain my position on this, that the HDC acted in breach of natural justice and failed to apply fairness, reasonableness and objectivity in handling my complaints, and that is why I asked your Office to take actions as they are available under section 22 (3) of the Ombudsmen Act 1975. It is clear to me, that the scope and powers of the Office of Ombudsmen is limited to present reports and recommendations, and that they are not binding. Nonetheless, a recommendation is usually at least taken note of, and that would be worth achieving.

Having carefully read the response to both my complaints, which was prepared by Miss Xxxxx Gxxxxxx, I must inform you that I firmly disagree with her assessment, analysis and conclusions. I do in particular take issue with the following points:

 

Re Miss Gxxxxxx’s response in relation to both complaints

While it was one of my concerns that the Office of the Health and Disability Commissioner (HDC) was evidently under-funded, was struggling with limited resources and was at least during the handling of my complaints C11HDCXXXXX and C12HDCXXXXX dealing with a too high work-load for their staff, this was certainly not my only concern. It is therefore not acceptable that Miss Gxxxxxx merely states (supposedly based on my “claim”): “that the HDC decided to take no further action on your complaints because it was under financial constraints and had an increased workload.”

This diverts attention from the number of other genuine concerns I stated in both my complaints to your Office. These included the Health and Disability Commissioner’s –
● refusal to accept my email submissions sent re complaint C11HDCXXXXX on 08 Aug. 2011
● failure to consult with me to resolve questions or issues regarding relevant submissions
● failure to fairly, objectively and reasonably consider provided, relevant evidence
● failure or reluctance to obtain particular information from involved parties (incl. third parties)
● refusal to consult the Mental Health Commissioner in dealing with my complaints
● refusal to take action upon my complaints, which under existing legislation denies me justice
● practice to put discretion to take action – or not – before the adherence to natural justice
● insufficient consideration to how breaches of ‘the Code’ affected me health- and otherwise
● non-action on wider concerns re access to justice by complainants in general

 

It is disappointing that Miss Gxxxxxx appears to have focused on just the above quoted one of my concerns in determining why the HDC may have decided to take no further action on my complaints. I have realised that Miss Gxxxxxx regrettably failed to consider important, relevant submissions and crucial evidence that was sent with my complaints. Instead she appears to have simply read only some of the correspondence between the HDC and myself, as well as the few, limited responses from the respondents to my HDC complaints. Without viewing other provided evidence, it was impossible for her to assess what would be relevant, and what may not have been, to be considered by the HDC.

I do not accept the comment by Ms Gxxxxxx in the letter she prepared for you to sign, where she claims in the fifth paragraph on page 2: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” As Miss Gxxxxxx did apparently not read email 8 of the 29 emails I sent to your Office on 13 to 14 Nov. 2013, she failed to realise that a staff member of the HDC Office actually responded to the 30th email sent by me on 08 August 2011, and confirmed that ALL emails had been received and actually passed on to their Complaints Assessment team! To reply to that email with 7 attachments of an ordinary size and type, it was necessary to open it and read it, which happened without problems, and this proves that Miss Gxxxxxx blindly accepted incorrect claims by HDC staff that I will prove wrong!

What Miss Gxxxxxx also failed to understand was, that despite of a large volume of evidence that was presented, particularly with the first complaint to the HDC (C11HDCxxxxx), there was only part of it of primary, direct relevance, and a fair bit of it of a secondary relevance, the latter being provided only to ensure the HDC would have all information available, in case information needed to be double-checked against the primary evidence, or the submissions I made in the complaint letters themselves. A good assessor and investigator would have established that, and worked their way through this. In any case, some evidence from third parties was also crucial to view, in order to properly assess and understand the whole scope of points (breaches of the Code) at issue, and what wider implications they do have also for other complainants. I was very precise in my complaint letters to the Office of the HDC, stating and explaining clearly the breaches of the Code, and providing more than sufficient references to sources of evidence in particular documents that I also provided, especially my XXXX Xxxx client file, but also other sources. It is simply bizarre, that the HDC accepted without any questions certain statements by respondents, where for instance in one case (of a number of cases) clearly documented, but untrue and incorrect information was alleged to perhaps having been put into my counselling file – due to their (XXXX) staff having “misheard” comments I made. HDC staff never properly read, questioned, examined and correctly assessed that and other made available information, which is totally unacceptable.

I will in the following address these and other matters by responding to Miss Gxxxxxx’s summary report, her considerations, conclusions and decisions on each of the two separate complaints.

 

Re Miss Gxxxxxx’s assessment and decision on “the first complaint”

1. Staff at the HDC Office lied about reason why initial complaint was not accepted

I must inform you that I have recently checked and researched once again all initial correspondence that was sent by email from me to the HDC Office on 08 August 2011 (and the days following), and what was sent to me by the HDC staff in response to this. It can now be proved beyond any doubt, that the HDC staff were being dishonest and lied, when claiming the submissions received from me by way of emails “froze” their system, so they could not open the emails and attachments “due to size”.

I will present to your Office PDF files containing the scan copies of printed out emails, which I am still keeping as originals in the in- and outboxes of my ‘Yahoo…’ email account. These PDF files will be attached to emails carrying this response to your Office. They will contain authentic email text and details, for the emails sent by me to the HDC Office and for the ones that I received from their Office. The documents prove Mr Axxxxxxxx Lxxxxx wrong; who phoned me close to midday on 09 August 2011, and claimed they could not open and process my emails, as according to him they “froze” their system. The information contained in the emails prove wrong the comments made by Deborah O’Flaherty, Complaints Assessment Manager at the HDC, who claimed in a letter to me, dated 16 May 2012: “In your recent correspondence, you have made reference to comments made in your original, “full” complaint. You were clearly advised by Mr Lxxxxx in your phone conversation on 09 August 2011 that your original complaint, as submitted, could not be opened on our computer system due to its size, and that you would need to submit a more concise version. The Deputy Commissioner’s examination of your complaint is based on this revised version, dated 9 August 2011, along with the attached documentation.”

As I was on 08 August 2011 spending hours into the early morning sending off the range of emails covering a complex complaint matter, which could never be addressed by just looking at a suggested 2-page “summary”, the last email number 30 to the HDC Office in relation to complaint C11HDCxxxxx was sent to their Office at 04:11 am in the early morning of that day. It had 7 PDF files attached, all of which were of a standard ordinary size, ranging from 400 to 3,000 KB (kilobytes). That total email was about 8 MB (megabytes) in size, hence it was of a typical size like all other single emails, ranging between about 6 to 8 MB. Only emails 3, 4, 5, 6, 7 and 9 had a maximum size of about 9 MB. So email 30 was an average size email, with ordinary PDF files containing scanned documents. The inbox of the HDC Office’s computer system allowed the receipt of up to about 10 MB size emails.

After sending in the number of emails, I did at about 03:10 pm later in the afternoon on 08 August 2011, send in a short email, asking the HDC Office staff to simply confirm receipt of the emails – plus attached documents. That follow up email did also have the last email 30 with all 7 PDF files attached. Like all other emails it went through and was thus received by the HDC Office. I did at 04:26 pm on that same day then receive an email from Kerry Norman, Executive Assistant, clearly confirming that ALL my emails had been received by their office, and that they had been given to the Complaints Assessment Manager for consideration. The Complaints Assessment team would be in touch with me in due course, the email further stated. The response thus received from Kerry Norman had the last email from me attached to it, albeit without attachments, which is the normal way in responses. There was NO mention of any problems with opening, downloading or otherwise processing the emails. It is clear that the staff member was able to open the email from 03:10 pm, to read it and respond to it. If the system would have “frozen”, this would never have been possible and no reply would have come. The reply from Kerry Norman did further below also have my earlier email from about 04:10 am (email 30) attached! Upon the receipt of that email, I did at 04:46 pm on 08 August 2011 send an email to the HDC Office, thanking for the confirmation just received.

Following Official Information Act (O.I.A.) requests to the HDC Office I later received a “triage meeting” and “NEW COMPLAINT (TRIAGE)” form, which reveals that there was apparently a file opened on 08 August 2011, and likely also a triage meeting held. But no information was entered in the form for 08 August, and only on 11 August was the remaining form completed, which only included information based on the “summarised” complaint, which I was forced to reluctantly prepare upon Mr Lxxxxx’s comments that they could not process my initial complaint, as the emails allegedly “froze” their system.

Apart from that phone call from Axxx Lxxxxx at midday on 09 August 2011, and the confirmation email from Kerry Norman, there was no further correspondence or communication that came from the HDC Office, except a letter from Michelle Smith, dated 15 August 2011, confirming my emails (the ones sent 10 August) were received on 11 August. It merely stated my complaint was being assessed, and that I would be contacted again. There was no mention of which of my earlier emails I sent may have been accepted or not. So I simply concluded that the HDC Office had received all my earlier emails, and was after all able to process at least some of the relevant information, given it was all of normal size and types. I expected to be contacted again, should the HDC require further information or any clarification on received information, during or after completion of an assessment. As I expected that such complaints would take a fair bit of time, I did not follow it up and waited to be contacted again.

The evidence available shows, that my earlier suspicions were justified: The HDC staff did not tell the truth, when they told me that my emails could not be opened, because they “froze” their system, “due to size”. I was simply being lied to, and it appears that some staff members at the HDC Office were simply unwilling to process, assess and investigate a complex complaint matter. It appears the assessors did not even bother to read any of the initial complaint submissions, and therefore made no efforts to consult me on it. Instead they gave me incorrect information, tricked and pressured me into re-submitting a far too short complaint, which though contained my statement that it must be viewed together with earlier submitted information. My initial submissions were though simply ignored, probably deleted – as no longer considered relevant. The focus was only on the unreasonably obtained, far too abbreviated, insufficiently descriptive complaint summary, while my reference to earlier presented evidence was also conveniently ignored! Given the documentation of the false claims by HDC staff, like for instance in the letter from Deborah O’Flaherty to me (from 16 May 2012), it must reasonably be presumed, that at least Deputy HDC Theo Baker was well aware of what was going on.

Consequently Miss Gxxxxxx was also misled by the wrong information stated and quoted repeatedly by the HDC Office and their staff, and her following assertion (in the letter prepared for you to sign) is proved as absolutely wrong: “It is clear that when you submitted this large volume of material that the HDC’s computer system ‘froze’ and that the HDC asked you to provide a summary of your concerns.” Given the new evidence I am presenting, your staff must surely review their position.

This is a very serious matter and it is my firm view, that it must now definitely be investigated by your Office. It is my impression that Mr “Axxx” Lxxxxx, who told me the lies, worked at the HDC Office only for a temporary period. I only had to deal with him twice. Given his unconvincing, dishonest conduct towards me as a complainant, I conclude that he was not performing his duties as expected, and either was asked to leave the HDC Office (being given notice), or he did so on his own accord, realising his limitations. I later also learned that other staff members had left during the time my complaint was handled. In 2010 there was a change of Health and Disability Commissioner, when Mr Anthony Hill commenced in this role. My described experiences, combined with the earlier change of internal leadership, indicate a probably high staff turnover in their office at that time. It should be part of your investigation to establish what really happened. I can inform you that the HDC Office did upon O.I.A. requests also only provide me with a transcript of a phone conversation Mr Lxxxxx had with me on 13 December 2011. There was never a transcript provided covering the conversation we had on 09 August 2011. It appears to have been withheld or destroyed, following highly questionable motives.

 

2. The HDC’s request for a “summarised” version of my complaint C11HDCXXXXX

In your letter, which I understand was prepared by Miss Gxxxxxx, it is quoted (bottom page 2): “However it seems to me that the HDC was reasonable to ask you to provide a summary of your concerns and to advise the WDHB that not every point had to be addressed – given the large number of issues raised”. “The HDC went through the material you provided and sought responses the HDC deemed relevant to his consideration of the complaint. You will be aware that the HDC has discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose.”

It was indeed a major concern that I had about the handling of my complaint by the HDC (being about the treatment received from two XXXX counsellors, see their reference C11HDCxxxxx), that the HDC Office staff failed to consider all the submissions and evidence that I considered of relevance. Xxxxx Gxxxxxx is wrong when she asserts that I expected the HDC Office staff to consider ALL the material and evidence I originally submitted on 08 August 2011, without any qualification. What I expected the HDC to accept and examine was all relevant information, as I stated in the bottom paragraph in my letter to the HDC of 27 March 2012. Initially I simply submitted the substantial amount of evidence, wanting to ensure all information was available to conduct potentially necessary extra checking with additional evidence documents. Naturally all documents would have had to be viewed, and the HDC would then be able to decide about the level of relevance. Where there may have been doubt, I expected to be consulted on what would ultimately be relevant. There was a fair amount of directly relevant documents with evidence, and there was a lot of evidence of a secondary or even lesser type, simply to offer information, should questions arise re facts stated in letters and primary evidence.

In the reluctantly prepared summary of the same complaint, which the HDC Office staff pressured me into providing, given the already mentioned false claims, I stated in my complaint from 09 August 2011, that my complaint must be viewed with the already supplied information. The main emphasis was on the comprehensive 40 page complaint letter, relevant extracts from my client file, and a number of other documents. I made reference to this, as I did not believe the claims by the HDC staff member called “Axxx” that they couldn’t open and download any of the emails and attachments I had sent them, which were all sent in usual, reasonable size formats and lots.

If there would have been any issues with accessing any of the earlier sent emails and attachments, I expected the HDC to contact me, to clarify what files may ultimately be relevant, and which they may have needed me to point out, or resend, if not by email, perhaps by way of post. But no efforts were made by the HDC Office staff, to clarify this, hence I presumed they could access the information sent earlier after all. For further reference, please see my submission under paragraph [2] in my letter to your Office dated 07 November 2013. It was only upon receiving a letter from the HDC’s Complaints Assessment Manager dated 16 May 2012, that it was finally made clear, that the HDC had only assessed and processed the information I sent them on 09 and/or 10 August 2011 (see paragraph [8] in my complaint to your Office). As I already mentioned under Point 1. above (page 3 of this letter), Deborah O’Flaherty falsely claimed in her letter that my original complaint could not be opened on their system “due to its size”. It was “not practicable to read each attachment in its entirety”, she furthermore wrote. She also wrote that they would “not have the resources to process this amount of information”, when referring to some further emails I had sent with information since then.

While it would of course have been reasonable to expect clarification from me about actual relevance of documentary and other evidence, the primary evidence, and references to sources that prove facts (e.g. the client file at XXXX), were clearly pointed out in my main complaint letter dated 08 August 2011. The letter was 40 pages long, partly because in it I quoted a lot of information from my client file at XXXX Xxxx, while at the same time referencing this to events, dates file pages and so forth. It contained detailed reports and explanations, but was well structured. I have no doubt that the HDC Office staff were able to open all emails from 08 August 2011, and to download the PDFs with scanned pages of the main complaint letter, the identical text of which was also contained in the first email sent at about 03:10 am on 08 August 2011. As they simply could not bother, they decided to mislead me into believing the emails would “freeze” their system, so I was given no option to discuss anything about the initially sent submissions, and was rather pressured into submitting a totally new “summary complaint”, which Mr Lxxxxx actually wanted in only 2 pages! It is impossible to cover the breaches that occurred, and the background, in such a short space. In my summary complaint I was unable to provide any significant amount of information and references, and hence I had to ensure that the HDC would after all make an effort to consider what was already sent.

While the HDC does under section 14 (1) (m) of the Health and Disability Commissioner Act 1994 have some discretion in the gathering of information to assist him in carrying out his functions, we are here not simply talking about “gathering” such. I presented the information as part of my initial complaint. There was no discretion for the HDC to decide upon “gathering” the evidence, as it was presented to the Commissioner and his staff. In this context it is worth to also consider other responsibilities of the HDC, namely the one covered by section 14 (1) (da) of the HDC Act, where the Commissioner acts as the original recipient of complaints, and where he is also held responsible for ensuring that each complaint is appropriately dealt with. I dare to suggest that in my case, especially now, given dishonest conduct by HDC Office staff, the HDC has the responsibility to investigate, on complaint, actions that appear in breach of the Code, as he is able to under section 14 (1) (e). There was already sufficient reason for the HDC to seek information from the Waitemata District Health Board (WDHB, responsible for XXXX) in this matter, after simply looking at the summarised complaint. Had the HDC looked properly at the original complaint and submitted evidence, he would have found compelling reasons to further investigate the complaint matter, seeking yet more information.

Therefore I do not accept that the discretion of the HDC leaves it open only to his “opinion” to gather information he deems (in subjective terms) necessary to assist him carrying out his functions. The requirement to ensure that a complaint is appropriately dealt with, certainly where the Commissioner assesses and/or investigates a complaint, requires that discretion must be applied within reason, fairly and in a balanced manner. The HDC is after all required to follow natural justice, and that applies to assessments of complaints as well, and deciding about what evidence may be gathered or considered of relevance, must surely also be decided on the basis of how this should be done by following principles ensuring procedural fairness. When substantial relevant evidence is supplied, it does under natural justice mean, that a substantial response to it should also be asked for, from the other party. At least all crucial, salient information must be extracted and summarised, in order to sufficiently represent the core points at issue, and then must be presented to the other side to respond to. It is not in line with natural justice, to selectively pick only bits of information and evidence relating to alleged breaches of the Code, and then only ask for a “general overview” of the complainant’s treatment.

I may also quote section 6 and the ‘Purpose’ of the Health and Disability Commissioner Act 1994:
“The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.” While I accept, that it should be important to try and facilitate a simple, speedy and efficient resolution of complaints, I would argue that in some cases, where the complaint matter at issue involves complex situations, developments and involvements of parties, there must be exceptions made, so that also more complicated complaints get processed fairly. It appears, by mentioning the word “fair” in the beginning of that provision, that it must be a priority to handle, address and resolve complaints in such a manner. As your letter rightly states in the second paragraph on page 2, the HDC is “the only authority capable of determining whether a health professional has breached the Code”. That being the case, does in itself give a compelling reason to ensure that the HDC must act highly diligently, conscientiously and responsibly, within the legal framework, to ensure complaints are above all taken seriously and are treated fairly.

As the HDC staff were not being honest, by telling lies about a complaint sent by email not being able to be processed and assessed due to their computer system allegedly “freezing”, this actually takes away any right the Commissioner may normally have, to argue about reasonableness to ask for a “summary” of a complaint. Suggesting a “summary” complaint is needed for falsely given reasons, and by making misleading statements, that does not justify the HDC to defend himself and his staff against any other criticism I was forced to direct at them. It would perhaps have been a different story, had the HDC staff been dealing with me honestly and openly about their motives, and had they themselves made reasonable efforts by at first looking at what they had received in the way of my complaint on 08 August 2011, but that did not happen. The argument for justified “reasonableness” in the HDC’s actions, delivered in your letter, prepared by Miss Gxxxxxx is therefore fully dismissed!

Miss Gxxxxx’s comments, that the HDC did “review” my file when I expressed that I did not accept the decision by Deputy Commissioner Theo Baker (from 24 February 2012), and again later, do neither resolve anything, nor justify anything the HDC did wrong from the beginning. Repeatedly reviewing only the summary complaint and evidence cannot lead to a satisfactory outcome, given what happened on 09 August 2011. Instead the HDC should have consulted with me, what of the originally sent information was after all relevant to consider, but they did of course not even want to go there.

 

3. The HDC’s selective handling, assessment and consideration of evidence

In your letter (prepared by Miss Gxxxxxx.”, see the 3rd paragraph page 3) you state: “I appreciate that you remain dissatisfied with the HDC’s decision to take no further action on your complaint but it is not clear to me that in making that decision, the HDC failed to take all the information into account.”
I also read: “However, given the amount of material you submitted to the HDC, it seems reasonable for the HDC to have summarised key points, in order to assess the material efficiently and fairly.” “The fact that the WDHB was not asked to consider every detail presented in the hundreds of pages you submitted to the HDC does not indicate that the relevant material was not considered by the HDC.” “There is nothing in the material I have seen to indicate that the HDC’s decision was based on “inadequate consideration of the facts”.”

Firstly these comments appear to be somewhat contradictory to earlier ones. On page 2 in your Office’s letter Miss Gxxxxxx accepted – on false advice by the HDC Office staff – that their systems ‘froze’, so they could not read or download the initially sent complaint by way of 30 emails on 08 August 2011 (the bulk of them each carrying just a few documents as attachments). On page 3 of the letter Miss Gxxxxxx prepared for you (dated 28 May 2014), she then writes about “hundreds of pages” that I submitted (chapter/paragraph 3 on page 3). The fact is, that I later saw a need to provide more and also newly acquired evidence, as I then realised, after receiving the HDC’s letter from 16 May 2012, that the Office was only processing the “summary complaint”. There were a number of emails I sent in to the HDC Office from March 2012 onwards, but they and attachments were in my memory certainly not “hundreds of pages”. It does seem that Miss Gxxxxxx suddenly contradicts herself, compared to earlier conclusions that she drew. But this aside I must address the following.

The HDC can gather information in an apparently less formal way, but also apply provisions under section 62 of the Health and Disability Commissioner Act. It appears that section 62 is rather only used in the course of conducting formal investigations, which regrettably in my case was refused to be done. Instead the HDC simply asked for information from the Waitemata District Health Board (WDHB), at the first instance to simply provide a “general overview” of my care (letter fr. 06 Oct. 2011).

Under paragraph [38] in my complaint to your Office I listed the summarised points at issue with the handling of my complaint by the HDC, and this included under paragraph [38a] that it should have been reasonably expected that the HDC sought advice and clarification from me, what of the previously sent evidence I would consider of absolute relevance in the matter, so they could then have a look at it. The HDC did nothing at all to consult me to establish this, and simply ignored any of my repeated concerns and proceeded to only look at what information they felt may be relevant, and that was bits mentioned in the summary complaint from 09 August 2011, and again only parts of evidence I presented. Indeed I have no evidence that the HDC looked at much evidence at all, apart from my letters, at insufficiently read and analysed notes in my XXXX file, and what the WDHB stated.

Miss Gxxxxxx simply accepts that it is “reasonable” for the HDC to suggest to the Waitemata District Health Board (WDHB) that they need not respond to each individual issue raised (in my complaint), but rather “provide a general overview of his care”. I take issue with her conclusion and decision on this aspect, as my complaint was not about my “treatment” and “care” as a whole, it was about specified breaches of the Code! Every “issue” I raised with my initial complaint from 08 August 2011 was well defined, individually listed, described and stated, and related to the Code the HDC is supposed to monitor, uphold and enforce. While I listed breaches also of the Code of Ethics of the Addiction Practitioners’ Association Aotearoa – New Zealand (DAPAANZ), these were largely also overlapping with the consumers’ rights contained in the Code. It is highly irresponsible to allow a respondent in the form of a health or disability services provider to simply evade any accountability and responsibility, by not asking them to answer to clearly defined breaches, and by instead offering a wide discretion, to provide a generalised form of a response, like an “overview” of a person’s care.

It appears that all that the WDHB was first sent by the HDC Office – alongside their letter from 06 October 2011 – was my “summary complaint” letter from 09 August 2011. It does not appear that any of the attachments to the three emails I sent the HDC on 10 August 2011 were provided. To allow WDHB to respond with merely a “general overview” does certainly not sufficiently answer to the specific, detailed and explained breaches of the Code that I had stated in my original 40 page complaint from 08 August 2011. The information in the summarised complaint was not that comprehensive at all, and did not go into any specific details, apart from two of Mxxxxxx Sxxxxxxxx’s wrong file record entries. These were not submissions of a large volume at all, that WDHB were sent. The summarised complaint missed most of the detailed information in the original complaint, and it was consequently insufficiently representing the various stated points or breaches at issue.

As a phone conversation transcript from the HDC shows, dated 20 October 2011 (11:58 am), Mr Lxxxxx gave in to some pressure by WDHB’s Counselling Manager Wxxxxxxx Txxxxxxxx, by allowing WDHB to not supply much in the way of records after all (apart from the client file notes kept on counselling meetings). Mr Lxxxx merely asked for a “high level summary of his care/concerns, and the clinical records necessary to support this”. None of the many letters dealing with complaint issues that existed from me and WDHB – or rather XXXX staff – were made available, which would have revealed much more in the way of problems that occurred with XXXX counsellors! In view of this I ask, how much “summarising”, and “abbreviating” of information is reasonable, where a complaint matter is actually quite complex? The overly summarised complaint that was in the end assessed and further processed made it impossible to properly address the breaches I wished to be dealt with.

In this regard, I can only consider Xxxxx Gxxxxxx’s conclusions and decision on the issue of discretionarily accepted evidence as flawed and unreasonable. Even the initial complaint did not really cover a “large number of issues”, they were a limited number of issues, just explained and presented in a rather comprehensive, detailed form, and also referenced to events, sources, the law and so forth.

Miss Gxxxxxx then writes on page 2 that in her view it was reasonable for the HDC to proceed as he did, by going through the material I provided and seeking responses “the HDC deemed relevant to his consideration of the complaint”. She writes that the HDC has “discretion to determine how to conduct his assessment and to seek information as he considers necessary for the purpose”. Miss Gxxxxxx also writes that the HDC agreed to review the file after I expressed my dissatisfaction with the decision (dated 24 February 2012) “and gathered further information from WDHB”.

She ignores though the fact, that when acting upon my letters dated 27 and 29 March 2012 (with additional evidence documents), in which I sought a re-assessment of my complaint, Deborah O’Flaherty did (on behalf of the Deputy HDC) in her letter dated 16 May 2012 only present the same, slightly reworded summary bullet points to CEO Bramley of WDHB, as Theo Baker had used in her decision dated 24 February 2012. These had been extracted from the summary complaint dated 09 August 2011, which had already been presented to WDHB before. The bullet points only insufficiently described the points at issue from my summarised complaint. With just minor amendments, the HDC was simply asking for a further position on points already presented – yet again. It appears that neither of my letters from 27 and 29 March 2012 was attached to that letter. That can hardly be seen as gathering further information in addition to what had already been asked and received. Not surprisingly, although this time offering more detailed (yet partly incorrect) answers, WDHB’s CEO did not deliver that much more in the way of answers to the alleged breaches, and merely reiterated a lot.

There was no question asked by the HDC about the particular complaint I had then recently added, that my own doctor contradicted a note Lxxxx Xxxxxx as XXXX counsellor entered into my client file on 22 Dec. 2010, claiming my doctor had told her I was sending him an email every day. This was untrue, and my doctor did not even remember a call from Miss Xxxxxx then, and his own file records showed NO record of such a phone call, which he would have kept. This was just one matter that was never raised and addressed by the HDC (see my letter from 29 March 2012, part E, pages 4 and 5). Not confronting XXXX staff with the evidence will naturally not lead to them being held accountable!

It was by the way Deputy HDC Theo Baker herself, who reviewed my file again, which needs to be noted. It must be doubted that she would have applied much scrutiny to her own earlier decision.

Miss Gxxxxxx asserts that “furthermore, it is apparent that the HDC considered all the emails you sent in early 2012, most of which contained large attachments”. She also quotes from the HDC letter dated 16 May 2012: “out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible”. She fails to appreciate, that the matters dealt with were complex, and could only be fully understood, assessed and evaluated by looking at substantial information and evidence that I provided with my original complaint. That one though had of course never even been considered! Apart from that I did later make every effort, to keep correspondence precise and more concise.

Xxxxx Gxxxxx then refers to another review of my file in late 2013, which followed the second decision letter from Deputy HDC Theo Baker from 14 June 2013, in which she again decided to take no further action, and she quotes from a letter from Associate Commissioner Katie Elkin dated 05 Oct. 2013, “that the HDC can decide to take no further action on a matter and that this discretion is exercised “only after careful assessment of all relevant information”.”

Ms Gxxxxxx continues and states that “it is not clear to me that in making that decision, the HDC failed to take all the information into account”. She also writes: “There is nothing in the material I have seen to indicate that the HDC’s decision was based on “inadequate consideration of the facts”. At the end of her deliberations on the “first complaint” she points out the provisions under section 14 (1) (m) of the Health and Disability Commissioner Act 1994, which states that the HDC may “gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s functions under this Act.” She lastly writes that the HDC is under no obligation to interview witnesses. I question again, how can too wide discretion ensure that complaints are dealt with “appropriately”? Once more I may recall section 14 (1) (da) and (e), qualifying how discretion may need to be applied.

In your Office’s letter to me, Miss Gxxxxx only refers to my further emails received by the HDC in early 2012, which according to her were given consideration. She does not mention, nor does she appear to have given any consideration to information I provided to the HDC Office by way of emails, letter and attached documents on 05 August 2013 and shortly after. As pointed out in paragraphs [38b] and [38e] of my complaint letter to your Office dated 07 Nov. 2013, and although this information was presented after the two decisions by Miss Theo Baker on complaint C11HDCxxxxx, to take no action, it was highly relevant and revealing information requiring consideration as part of a further review.

In this first complaint the WDHB’s Dale Bramley relied on reports from Mr Wxxxxxxx Txxxxxxxxx as XXXX Counselling Manager and direct employer of the counsellors complained about. Also did the HDC rely on the information presented by Mr Txxxxxxxxx from XXXX (see the phone transcript from 20 October 2011 by Axxxxxxxx Lxxxxx – and see documents eventually sent to the HDC), same as the HDC relied on responses from Dr Bramley, that were at least partly based on statements and information provided by Mr Txxxxxxxxx.

As the direct employer of Mr Sxxxxxxx and Miss Xxxxxx, Mr Txxxxxxxxx did all to divert attention from complaints that I had made about some XXXX staff before, and about correspondence I had with him in that regard. Mr Txxxxxxxx also put implied pressure on HDC staff member Mr Lxxxxx, to not have to send all information they had on me to the HDC, so he could limit it to the counselling file and little else more. His attempts were clearly to protect his staff and himself, in which he naturally had an interest. See attachment 6 to my email (number 27) to your Office from 23.52 h on 13 November 2013.

A separate complaint on the same breaches and issues, but based on the ‘Code of Ethics’ for their professional organisation, was also made by me to the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (DAPAANZ) on 31 May 2012. I filed a complaint with that organisation as both XXXX counsellors were also members of the organisation, and because I started to realise that the HDC may not assist with coming to the expected decision to actually investigate the breaches against their Code. My emails from 05 August 2013 and a letter by post from 07 August 2013 informed the HDC Office about information that would show how Mr Txxxxxxxxx, who was not only the employer of the respondents, but also was and apparently still is the Chair of the DAPAANZ Executive, interfered in the complaint resolution process of their own Executive’s appointed ‘Professional Standards Committee’. Emails finally released with the help of the Privacy Commissioner reveal this, same as how Counsellor Mr Sxxxxxxxx was “stone walling”, and was later assisted by the Committee members, to give the very answer he needed to give, to get off the alleged breaches claims I made against him.

Mr Txxxxxxxxx did not only deliver his “advice” as employer and WDHB staff member on matters in that complaints handling process, he conveniently used the fact that the HDC had not investigated the two employees of his, as a defence for them before the DAPAANZ complaints panel. This is to my understanding a breach of process and a serious matter, which was relevant also for the HDC to take into consideration, as the HDC himself gave Mr Txxxxxxxxx credit for providing information on his staff.

Yet neither the HDC Office, nor now Miss Gxxxxxx at your Office, has seen any need to investigate this and much other evidence I provided. It is in my view nothing short of scandalous, how counsellors committing professional misconduct, are protected and let off without any consequences, by the HDC and also the DAPAANZ! In order to appropriately assess and decide on complaints, evidence that in its type, form and nature is more than apparent to be of relevance, must surely be given consideration, as otherwise any assessment or investigation becomes a farce.

As I already stated further above (see from bottom of page 5 to page 6) it is not acceptable to interpret section 14 (1) (m) of the Health and Disability Commissioner Act 1994 too liberally, allowing the Commissioner such a degree of discretion and freedom to seek and assess information merely based on an “opinion”, ignoring natural justice principles like reason and fairness, and due diligence to be followed in executing his duties. Other responsibilities of the HDC, like the one covered by section 14 (1) (da) of the HDC Act, requires the Commissioner to act as the original recipient of complaints. He is responsible for ensuring that each complaint is appropriately dealt with. I believe that in this case, especially given the dishonest conduct by HDC Office staff, the HDC has the responsibility to investigate actions that appear in breach of the Code, as he can under section 14 (1) (e).

Miss Gxxxxxx does not appear to have properly looked at and examined the additional evidence I supplied in the form of a range of relevant documents attached to emails carrying my complaint letter to your Office. She could only herself have properly assessed the handling and processing of my complaint and submitted information, had she also assessed the quality and contents of crucial evidence that was presented to the HDC Office attached to email letters I sent. Therefore it appears Miss Gxxxxx has based her assessment and decision almost solely on correspondence between HDC and me, which has not given her the full picture. She is overly relying on comments the HDC made in correspondence to me, some of which I quoted earlier, and sadly she gives insufficient consideration to the convincing information and arguments I presented with presented documentary evidence. As I have again checked what documents that I had sent with my complaint to your Office, it appears that Miss Gxxxxx did not even view most of the files I sent in with my emails, hence her flawed decision.

It was – and still is my view, that it should have been necessary for the HDC Office staff to seek responses and evidence from certain directly involved persons and witnesses (also third party witnesses), to attempt to get clarification on important details in relation to my complaints. I do in this regard refer you to ponder my point raised in paragraph [38c] in my complaint to your Office.

In order to conclude, in essence, in this complaint matter C11HDCXXXXX, the HDC did initially only seek a response from WDHB in the way of a “general overview” of my care (letter from 06 Oct. 2011), which was based on the summarised complaint from 09 August 2011. Later on 16 May 2012 a second response was sought, listing very similar bullet points that Theo Baker as Deputy HDC had also listed in her decision to take no action from 24 February 2012. It was merely a reformulation of short listed issues that had been found in my summary complaint from 09 August 2011. But at least they were then later expressed in the letter seeking a response.

What never appears to have happened was, that the partly incorrect, otherwise incomplete, also contradictory and thus misleading, defensive responses by the CEO Dr Bramley from WDHB (from 26 October 2011 and 06 June 2012) were never properly checked against the information in my XXXX counselling client file, and against other evidence I had made available, and definitely not against the information that I had made available on 08 August 2011, which was never looked at and most likely deleted. WDHB’s responses appear to have been taken at face value, and the CEO of WDHB was given credit for his summarised, succinct comments, whether they were correct or not, and my mostly clear, black on white type of evidence was simply discarded and dismissed. Theo Baker simply accepted the WDHB version that mistakes in my counselling file were most likely made due to Mr Sxxxxxxxx as my counsellor having “misheard” something. That is absurd, as he recorded certain information correctly in the beginning, and then changed the information in other entries months later. Hence the Deputy HDC did not even bother to properly read the XXXX counselling file entries, as she would then have picked this up. Miss Gxxxxxx has in her “assessment” failed to check relevant details in the same XXXX file and other documents herself. With regret I must presume that she followed Theo Baker’s conclusions and flawed reasoning, giving more credit to a CEO of the WDHB, than to an affected beneficiary suffering from mental health condition, no matter how much evidence he provides.

Theo Baker took over a year to “complete” her assessment, and then send her second final decision (from 14 June 2013) to me. It had a final response from WDHB attached to it, which was already OVER one year old. It is beyond belief, that nothing was done about my complaint for one year, and then – in June 2013 – Miss Baker suddenly sees a reason to present her final decision, without any further evident analysis and investigation having been conducted in the meantime. This betrays a rather dismissive attitude towards the whole complaint. As stated earlier, it is my impression that Miss Baker was informed about the lies I was initially told by other HDC staff members.

As that same dismissive approach was evident in the earlier decision by Theo Baker, did I respond with my letters from 27 March, 29 March 2012 outlining the true scope of my complaint, the contradicting and wrong information presented by WDHB, and further explained my position while also providing some further relevant evidence. I was upon the second decision by Theo Baker prompted to ask for a review of decision on 25 June 2013, stating the reasons for this. Much of what I wrote in my letters was reiterating issues that I raised before. But I did of course also add further, newer evidence, which should have been considered, but never really was. Once the complaint was in the hands of the HDC legal department and Katie Elkin, the HDC and staff were only interested in defending their earlier positions, and simply not prepared to honestly review the complaint or new evidence again.

 

4. The HDC’s lack of resources

As I already commented on page two in this letter (re your Office’s response to my complaints, prepared by Miss Gxxxxxx), it is very clear that the HDC lacked financial and other resources, which Complaints Assessment Manager Deborah O’Flaherty openly admitted in her letter from 16 May 2012. She wrote: “We have received more than 12 emails from you since March 2012, most of which contain large attached files. As you have already been advised, we do not have the resources to process this amount of information, and it is simply not practicable to read each attachment in its entirety”.

These “large” files may have appeared “large” only due to them being scan copies of documents, which due to my scanner are converted into “byte” large PDF documents, they were of ordinary types and sizes, and of page numbers that any offices should ordinarily be able to cope with. It was again due to the fact that my initial complaint from 08 August 2011 had not been accepted, that I felt a need to keep the HDC informed about further relevant information, which would need to be considered as evidence. There were also some ongoing developments directly relevant to some issues covered by the complaint C11HDCXXXXX, which resulted in more information becoming available by the month.

With my letter to your Office from 07 Nov 2013 I provided you with a reference to some available evidence quoted in a media report on 1ZB (see paragraph [38f]) from 24 July 2013, which stated that the HDC Office was under serious financial pressures. This is certainly not a new situation.

I have seen through the handling of my complaint(s), and through reading and hearing other reports, including annual reports by the HDC, that the HDC Office has been struggling to cope with its effective operation, and the letter by Ms O’Flaherty only confirms what I have known for some time. While funding may be beyond the control of the HDC, it is unacceptable to a complainant like me, to be treated the way I was, simply because resources are lacking. As this leads to more persons being denied justice, this is a matter that I would have thought your Office would also take seriously, and raise with the government. I regret that Miss Gxxxxxx did not even elaborate on paragraphs [41] and [42] in my complaint. As this is a matter that will concern the wider public, I must ask and insist that your Office gives more consideration to this unsatisfactory situation at the HDC Office.

 

Re your assessment and decision on “the second complaint”, prepared by Ms Gxxxxx

1. Mistakes and misinterpretations in Miss Gxxxxxx’s summary introduction to the complaint

My second complaint to your Office was about the Health and Disability Commissioner’s handling of a complaint I made about the conduct of Dr Dxxx Xxxxxxx, a general practitioner based at the Xxxxxxxx Health Centre, in Xxxxxxxx Auckland, who has to my knowledge over many years conducted a large number of “examinations” or assessments for Work and Income New Zealand (short ‘WINZ’). On 17 June 2010 he conducted a WINZ commissioned “medical examination” on me, which was anything but a proper examination, but rather an interrogation about my ability and preparedness to return to work. This was followed by an extremely flawed “recommendation” and “report” by Dr Xxxxxxx (completed 30 June 2010), both of which were provided to Work and Income New Zealand.

Details about Dr Xxxxxxx’s “examination”, background- and other information are contained in my complaint letter from 30 June 2012, and a number of emails sent then and afterwards carried further evidence documents (mostly in ordinary size PDF files). My complaint to the Office of the Health and Disability Commissioner was not filed until 30 June 2012, as other legal actions on a related matter had to be closed before a complaint would even be looked at by the Commissioner.

In your Office’s letter (from 28 May 2014), prepared by Miss Gxxxxxx – in reply to my complaint about the HDC’s handling of complaint C12HDCXXXXX, she firstly gives a brief summary of the complaint (see pages 3 and 4). Again I must immediately note that Miss Gxxxxxx made some mistakes, for instance by referring to a wrong date on the HDC Office’s Miss Katie Elkin’s final letter to me, which should have been 22 and not 25 November 2013.

Miss Gxxxxxx lists only five short bullet points in the letter prepared as the response to my complaint to your Office. They are overly abbreviating and summarising a number of points I raised in my complaint to your Office dated 16 December 2013. According to Miss Gxxxxxx my complaint was supposedly only about the following, namely that the HDC (quoted from the letter):

● failed to provide relevant information to Dr Xxxxxxx and to ask him to comment on certain issues raised in your complaint;
● failed to interview third parties you identified as key to your complaint;
● unreasonably made comments concerning the lapse of time between the submission of the complaint and the events being complained about when you had been unable to make your complaint to the HDC earlier because related matters had been the subject of a Judicial Review hearing;
● Was reluctant to investigate a complaint against a non-treating doctor (who still falls within HDC jurisdiction); and
● May not have considered its obligations under the UN Convention concerning persons with disabilities when considering your complaint.

 

In all honesty, I am rather disappointed with Miss Gxxxxxx’s summary, and how she made it up from what I had actually stated in paragraphs [36a] to [36i] in my letter from 16 December 2013 – as being relevant points for your Office to consider. Having read my own submissions again and also the bullet points listed in your letter, I am struggling to follow your investigator in her reasoning for summarising the points I raised – in the way she did. She picked certain relevant points of my concerns out of the text, but ignored others, and then rather poorly summarised only some of the points needing to be addressed. I must say that Miss Gxxxxxx has failed to extract some important core points I presented, and reduced them to bullet points that do not sufficiently express what I stated in my complaint.

The breaches of natural justice, of process and legal provisions by the HDC in this complaint could and should better have been summarised like this:

● The HDC took into account irrelevant considerations, like the available Medical Appeal Board process dealing with my complaint, instead of relevant considerations, when deciding to take no action on my complaint, thus failing to have regard to all the circumstances of the case;
● The HDC was (indeed) rather reluctant to investigate a complaint about a non-treating doctor, acting as a third party assessor, as the handling of the complaint and decision showed;
● The HDC failed to give fair and due consideration to breaches of rights 1, 3, 4 and 6 under the Code, while only specifically asking Dr Xxxxxxx to respond to a breach of right 5;
● It was unreasonable for the HDC to make comments about the lapse of time since the assessment by Dr Xxxxxxx took place and the time the complaint was filed, while at the same time taking extensive time to deal with the complaint, as in the end the decision to take no action was (not so much simply “frustrating” but) denying me justice in the end;
● the HDC failed to take action according to section 36 of the Health and Disability Commissioner Act, by not consulting with the Privacy Commissioner on a possible referral of part of the complaint matter;
● Although mental health conditions and their assessment were aspects of the complaint about Dr Dxxxx Xxxxxxx, and although it was expressly asked for (letter from 26 April 2013) the HDC failed to consult the Mental Health Commissioner, who should have been the more appropriate staff member dealing with such a case;
● Deputy HDC Theo Baker appeared to be prejudiced in the assessment and handling of complaint C12HDCxxxxx, as there is no other convincing reason for her dismissive, negligent approach to the complaint, like not contacting potential witnesses, except her developing a negative bias towards me during the difficult dealings in relation to complaint C11HDCxxxxx;
● by not giving due, fair and reasonable consideration to all the circumstances of the case, the HDC failed to establish breaches of the Code, which as a consequence denies me any further prospect for justice;
● the HDC failed to take into account the ‘New Zealand Disability Strategy 2001’ (see also ‘Action 6.3’), which incorporates the ‘UN Convention on the Rights of Disabled Persons’, by not giving sufficient due respect and applying fairness and reasonableness in handling the complaint of a person with mental health issues and disabilities.

Further concerns that I mentioned in my complaint letters to the HDC, and also in my complaint to your Office, but which I did not list at the end of my letter to your Office from 16 December 2013 were:

Dr Dxxxx Xxxxxxx’s –
● Breaches under the ‘Code of Ethics for the New Zealand Medical Profession’,
● breach under the ‘Health Practitioners Competence Assurance Act 2003’,
● breaches under the ‘Health Information Privacy Code 1994’ and
● potential breaches of the ‘Health (Retention of Health Information) Regulations 1996’.

It appears that the HDC did not feel to have the jurisdictional scope to address these issues, or was simply reluctant to consider these, mostly for no stated reasons.

But as we are dealing with the response prepared by Miss Gxxxxx for you as Chief Ombudsman, I will not endeavour to spend further time contemplating on the bullet points and how they may best have been formulated. What I must say is that Miss Gxxxxx did not address all that I raised in my complaint.

 

2. Miss Gxxxxxx’s considerations, comments and decisions on “the second complaint”

Nevertheless, Miss Gxxxxxx wrote that: “With regard to the first issue, the HDC has advised me that your entire 20-page letter of complaint was sent to Dr Xxxxxxx on 18 September 2012. However the HDC notes that it is unclear whether the substantial documentation attached to the complaint letter had been sent. A later follow up communication with Dr Xxxxxxx occurred on 22 November 2012 when the HDC asked him to respond particularly to the issue about communication. It is for the HDC to determine what information he requires for the purpose of his assessment of a complaint.”

Like I have already done in relation the “first complaint” further above, I take issue with the view that it is solely up to the HDC’s personal opinion to subjectively determine what information he requires for assessing a complaint. The HDC may well have discretion in principle, but the HDC is also responsible to act under section 14 (1) (da) and (e) of the Health and Disability Commissioner Act. As stated before, the Commissioner is also bound to follow natural justice, and must therefore always apply a balance in the gathering and presentation of information in assessing, analysing and resolving a complaint. On the basis of procedural fairness, the HDC should have listed the core points I presented in my complaint, and not simply pick one he/she considered worth following up with Dr Xxxxxxx as the respondent. In my complaint to the HDC I did not just raise “communication” issues; there were other concerns I presented, which were simply left out when asking Dr Xxxxxxx for a further response. It is my view that the HDC had to properly examine and assess all the breaches I stated, and as they have been backed up by sufficient evidence and my personal record of the “medical examination” by Dr Xxxxxxx, they should have all been presented to him in a manner to respond to directly.

Miss Gxxxxxx writes re her second bullet point: “On the second matter, as noted previously, the HDC has discretion under section 14 (1) (m) of the Act to gather such information as he/she sees appropriate”.

Section 14 (1) (m) must be interpreted in its true meaning, and that is that it is meant to give the HDC the power to gather information. It does not so much imply that the HDC has unrestricted personal freedom to choose and use discretion, as any actions taken must also be taken in the context of other applicable legal provisions in the Health and Disability Commissioner Act 1994, same in the context of other statutory provisions, and by adhering to the principles of natural justice. It is my view that it was not reasonable for the Commissioner to simply just pick one breach of the Code, the one of right 5, to seek a particular response to, as there is no information or evidence that this was the only breach giving reason, for it to be further pursued with Dr Xxxxxxx. There was sufficient information provided, to give reason to also seek additional statements from Dr Xxxxxxx on other stated breaches. For instance I obtained legal advice that Dr Xxxxxxx certainly breached natural justice, by refusing to give consideration to medical records I presented to him, which he rejected, without good reason.

Re Miss Gxxxxxx’s comments in relation to “the third issue” (her 3rd bullet point) and re Theo Baker’s comments in her letter from 24 April 2013, I may with some reservations agree with part of her response, but I do not accept that further investigation may not have provided further information to resolve the discrepancy between what Dr Xxxxxxx claimed in his response from 22 Nov. 2012, and what I reported in my complaint. The documentary evidence that I provided in the matter, like the assessment report and recommendation by Dr Xxxxxxx, in comparison to certificates and other records provided from my own doctor and others, clearly showed that Dr Xxxxxxx could not have conducted himself the way he did. If he was so professional, respectful and considerate, why then did he present such flawed reports?

Miss Gxxxxxx writes re the “fourth issue”: “Regarding the forth issue, Ms Elkin explained in her letter of 17 September 2013 that although complaints against non-treating doctors contracted to a third party may fall within the commissioner’s jurisdiction under the Act, in this case, most of the concerns you had raised against Dr Xxxxxxx related to processes and policies of WINZ and of the Medical Appeals Board, which are outside the HDC’s jurisdiction. I see that Ms Elkin also noted that even where jurisdiction can be established, the Act gives the HDC (and Deputy HDC) a wide discretion to take no further action under section 38.”

Again, here Miss Gxxxxxx is simply repeating what Miss Elkin from the HDC Office states, without apparently giving any consideration to what I wrote back to Miss Elkin in reply. I have the impression she did not even properly read my explanations in my letter to your Office, dated 16 December 2013, where under paragraph [36a] I addressed the questions regarding the Medical Appeal Board and its purpose and responsibilities, and under paragraph [36b], where I addressed the issue with the HDC having displayed some reluctance to deal with a case about alleged misconduct by a third party medical assessor. I have the impression Miss Gxxxxxx does not understand the responsibilities of a Medical Appeal Board, which is responsible only (under the Social Security Act 1964) to hear appeals by looking at a person’s health situation and disability, including their ability or lack thereof to work, in relation to benefit entitlements. The Medical Appeal Board is NOT at all dealing with the conduct of a medical practitioner or assessor that led to breaches of the Code. My complaint correspondence (e.g. from 26 April 2013) to the HDC did of course explain a lot about the processes involved, and how the Medical Appeal Board is appointed, works and deals with cases and so forth, same as I explained details about designated doctors, and how the Ministry of Social Development (M.S.D.) has actually been expressing expectations towards such designated doctors as Dr Xxxxxxx, to deliver the outcomes they would expect – or rather desire. That does not mean that I was in my complaint correspondence primarily expressing concerns that were more relevant to be dealt with by a Medical Appeal Board. I must reassert: My complaint to the HDC was about Dr Xxxxxxx’s conduct!

In this regard I note with much disappointment, that Miss Gxxxxxx did not appear to spend any time considering the relevant aspects involving the training of designated doctors like Dr Xxxxxxx – by the Ministry of Social Development, and especially by persons like the Principal Health Advisor Dr David Bratt. She did not appear to consider that the way training, mentoring and liaising, same as paying designated doctors, as conducted through the M.S.D., could – and likely would cause – issues with true “independence” of designated doctors and how they can make potentially biased recommendations. Those are matters of relevance, as this is influencing the conduct of such assessors as Dr Xxxxxxx.

With my letter to the HDC dated 26 April 2013 I sent the HDC a range of attached documents giving evidence of the apparent bxxx Dr David Bratt displays in his “presentations” to general practitioners, and other health professional, likening “benefit dependence” to “drug dependence”. Dr Bratt also selectively uses statistical data to send messages to the GP audiences he presents these to, which are simply one-sided and at least in part lack scientific validity, most certainly balance. Partly as a result of discovery as part of former legal proceedings, I have more information available covering the training of designated doctors that was commenced in 2008 and which is being continued through various communication channels, same as M.S.D. train their Regional Health and Disability Advisors based in their various Regional Offices. This training is overseen and conducted by Dr Bratt, and it is abundantly clear, that he and his employer are walking on a xxxxx xxxx, and are operating on the borderline of xxxxxxxx, making regular attempts to influence doctors, to make decisions that save the Ministry costs, by denying sick and disabled certain benefit entitlements. I also sent relevant documents and information on this to your Office, which was primarily with email 15, sent 03.10 h on 17 December 2013. I have the impression that Miss Gxxxxxx did not properly consider the information.

I find it astonishing that neither the HDC nor the Office of Ombudsmen appears to be too concerned about the potential breach of natural justice, and even statutory legal provisions in this area of medical and work ability assessments, committed by designated WINZ doctors, who are often bxxxxx. But there is at least one other complaint reaching into this sensitive area, which is also before your Office under reference 36xxxx, and which is being overseen by former HDC, Mr Ron Patterson, and is being dealt with by Jxxxx Hxxxxxxxx and Txxxx Sxxxxx. That complaint has been before your investigators and reviewers for nearly a year now, and M.S.D. are according to information I received, definitely extremely reluctant to release certain information about Dr Bratt and others employed by the Ministry, working with him. Perhaps Miss Gxxxxxx may wish to consult them on what that is all about.

What I can finally say in regards to discretion the HDC may have under section 38 of the Act, to take no action, the decision by Ms Elkin can definitely not be justified by using section 38 (2) (e) of the Health and Disability Commissioner Act. It is not a valid consideration, to claim that my complaint issues were more appropriately being dealt with by a Medical Appeal Board. I also continue to dispute that the HDC had discretion to take no action upon my complaint under section 38 (1), given the types and quality of evidence that I supplied. It is my view and position that the Commissioner did not have regard to all the circumstances of the case in considering that action to investigate was unnecessary or inappropriate. Given the range of evidence I supplied by way of my submissions, and relevant documents, which also included evidence about the bxxx of the MSD and WINZ Principal Health Advisor, Dr David Bratt, who trains designate doctors performing duties for WINZ, it is my position, that the Commissioner did not have regard to all the circumstances of the case to take no action.

Documents I provided with a track record of my own doctor’s and other health professional’s diagnosis and assessments, some of which were presented to Dr Xxxxxxx, are in stark contrast to Dr Xxxxxxx’s examination report and recommendation to WINZ. To simply take Dr Xxxxxxx’s words in his letters to the HDC, and at the same time ignoring the starkly different information in his reports, being totally different to reports by others, does signal a bias in the Deputy HDC’s assessment of my complaint. Following my first complaint, and the issues I raised with Theo Baker’s handling of it, she must have developed a bias against me, being dissatisfied or even annoyed about my continued criticism. I need to refer you to documents covering my health situation and relevant matters that were attached to emails 2, 3, 4, 5 and partly also to email number 6 sent to your Office in this matter. Again, my impression is that Miss Gxxxxxx did not view any of these, as she simply followed the HDC’s arguments.

Miss Gxxxxxx writes: “Finally, there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to you as a health and disability consumer, under the Act.” I further note that the HDC made no finding about Dr Xxxxxxx’s record keeping as you claim.”

It does not look as if that is supposed to be addressing Miss Gxxxxxx’s “fifth bullet point” on page 4 of the letter from your Office, and while I acknowledge her comments, I do not agree with them. I wish Miss Gxxxxxx would have explained her last sentences, because I cannot find any conclusive evidence to prove her comments. In the whole, I regret to conclude, the stated considerations, explanations and comments by Miss Gxxxxxx to “complaint two” leave to be desired. I feel that she did not properly address my points raised under paragraphs [36a] to [36i] in my letter from 16 December 2013, and I have the impression, she did not spend much time examining any relevant attached evidence to the emails my complaint was sent with.

Re her claim that there is nothing in the HDC’s correspondence to indicate that the HDC did not take into consideration any obligations it had to me, I argue, there is nothing in the correspondence from the HDC indicating what of the supplied evidence they did take into consideration and what not. The terminology used is rather “general” and unspecific, as it is not stating clearly what they considered being relevant and what not. So it proves nothing. As for Dr Xxxxxxx’s record keeping having been addressed by the HDC, I have not found any comments the HDC made on that issue.

I certainly feel that my rights as a health and disability consumer were not met under the Act. It is my impression that the HDC did not appropriately fulfil the ‘Purpose’ of the Act, stated in section 6.

 

3. ‘Conclusions’ – as drawn and formulated by Miss Gxxxxxx in the letter prepared for you

In your letter, prepared by Miss Gxxxxxx, you inform me that at this stage you do not intend commencing Ombudsmen Act 1975 investigations into either of the complaints I sent to your Office. You state and explain the limitations of your Office and other relevant aspects, like what action there may have been, should an investigation have been conducted and my complaints have been upheld.

While I appreciate your summary conclusions, prepared by Miss Gxxxxxx, I understand that these were based on the information that was so far sent to you, or rather based on those parts of my complete submissions that were viewed and assessed. It is my impression though, that not all relevant documents and information were examined and assessed. Also has new information come to light, and existing information has been further clarified and explained by me in this letter to your Office.

 

My position on the decisions received, and my request for a thorough review

Dear Chief Ombudsman, as I have expressed in this letter, it is clear to me that the complaints I filed with your Office were assessed by your investigating officer Xxxxx Gxxxxxx, and that she will possibly have done so to the best of her knowledge and capabilities. It is more than evident though, that Miss Gxxxxxx cannot have checked, viewed and assessed all documents that I provided, as she did not even pick up on a mistake I made with listing attachments at the bottom of email 4 (sent 00.41 h on 17 Dec. 2013), where I appear to have inserted the same list as I did in email 3 for complaint C12HDCXXXXX. Only if Miss Gxxxxxx, or staff performing tasks for her, had actually looked at the attachments, would she have noticed the contradicting information. In that case the responsible action to take then would have been to contact me and clarify the details re the attachments. That did not happen, and also did Miss Gxxxxxx make no mention of this in her response to my complaints under reference 3xxxxx. To avoid further doubts and confusion, I will attached to the email(s) carrying this letter send you two PDF files with the lists of all attachments sent with emails for both complaints.

A fair few very relevant pieces of evidence and relevant information have gone unnoticed, or have not been viewed and assessed as they deserve to be. It appears that the HDC Office staff did not only act in a somewhat rushed, pressure driven and later dismissive way in dealing with the complaints I presented to their Office, they even resorted to telling lies about them being unable to open my emails. I feel that the HDC and his staff did badly fail in their responsibilities, and could have conducted themselves in a more reasonable and certainly more honest manner, consulting with me on how to constructively resolve some issues. Telling lies is not a constructive way of solving anything. The appropriate way to deal with the first complaint would have been to be honest about the situation, and not misinform me about a system “freezing” and so forth, but to offer me a fair and reasonable opportunity to present a complex complaint in a more acceptable way. That though was not even attempted. I was simply told lies, and was then was expected to present a very complex case on just two A4 size pages, which was absolutely unreasonable and impossible.

As I was a rather new complainant, and as the HDC Office staff had more experience, certainly with how their systems and internal staff members operate, they had the responsibility to act fairly and reasonably, which they failed to do. In the end I was not given a fair chance to be heard, and once I justifiably raised issues with the way the HDC handled my complaint, I was basically treated as an undesired overly “litigious” person, and not given much more consideration. This impacted negatively on my attempt to present and be given respect and consideration with my second complaint. That complaint was as justified as the first one. I did not choose to spend hundreds of hours and endless days, weeks and months on working on collating evidence, on preparing submissions and corresponding with the HDC Office just for frivolous or other unacceptable reasons.

What I have received in response to the complaints to your Office is now more than disappointing, and I cannot and do not accept the conclusion and decision by your Office staff to simply close the file and take no action in these matters relating to the HDC. Given the now absolutely clear evidence, that the HDC staff actually told me lies about their system, and also otherwise acted irresponsibly, by not giving consideration to crucial evidence, I must assert, that this should now definitely give your Office sufficient reasons to conduct a formal investigation in the handling of my complaints by the HDC, and in the way their Office operates generally.

I do also seek a thorough review of the way my complaints to your Office were handled by Miss Xxxxx Gxxxxxx, who as an investigating officer did not appear to deal appropriately with my complaints, she most certainly failed to consider some absolutely relevant evidence and crucial information. Also were my complaints not progressed for months, and no response was sent upon receiving the second complaint by 17 Dec. 2013. Your cooperation and assistance in this matter will be most appreciated.

Yours sincerely

 

Xxxxxxx Xxxxxx

*****Attachments will be listed in the email (s) carrying this letter*****

 

Here is a list of the attachments that were sent with the 3 emails carrying this response letter (all, or at least most, have already been published via links in the earlier posts mentioned in ‘Part 1’ and ‘Part 2’ of this post, others are found in earlier posts):

Email 1:
1). ‘Ombudsman, ref. 3xxxxx, complaints C11HDCxxxxx, C12HDCxxxxx, reply to decision, 16.06.14.pdf’.

Email 2:
1). ‘HDC, C11HDCxxxxx, email 30, X. Xxxxxx to HDC, scan copy, compl., 04.11 am, 08.08.2011.pdf’;
2). ‘HDC, C11HDCxxxxx, follow up email, X. Xxxxxxx to HDC, scan copy, 03.10 pm, 08.08.2011.pdf’;
3). ‘HDC, C11HDCxxxxx, emails, confirmed recpt of ALL, K. Norman, Exec. Asst, 04.26 pm, 08.08.2011.pdf’;
4). ‘HDC, C11HDCxxxxx, email, thanks f. comfirmtn, X. Xxxxxx to HDC, 04.46 pm, 08.08.2011.pdf’;
5). ‘HDC, C11HDCxxxxx, email 30, follow up email, X. Xxxxxx to HDC, confd recpt by HDC, 08.08.2011.pdf’;
6). ‘H + D Commissioner, C11HDCxxxxx, complaint, ltr re details and status, D. O’Flaherty, 16.05.2012.pdf’;
7). ‘H + D Commissioner, C11HDCxxxxx, OIA Release, X. Xxxxxx, Complaint Summary, 12.08.11 – 27.02.12.pdf’;
8). ‘H + D Commissioner, C11HDCxxxxx, OIA Release, new complaint notes, 08-16.08.2011.pdf’.

Email 3:
1). ‘Ombudsman, 3xxxxx, complaints C11HDCxxxxx, C12HDCxxxxx, reply to decision, ltr, 16.06.14.pdf’ … with the following note added:
“(PDF file containing my response letter without handwritten signature, which may be easier to download and read, if so required)”;
2). ‘Ombudsman, HDC complaint, C11HDCxxxxx, email attachments list, mails sent 13-15.11.13.pdf’;
3). ‘Ombudsman, HDC complaint C12HDCxxxxx, email attachments list, mails sent 16-17.12.13.pdf’;
4). ‘MSD, Des. Dr Training, Comm. Requiremts, J. Rxxxxxx, M. Mxxxxxxxx, memo, hi-lit, 23.01.2008.pdf’;
5). ‘MSD, Design. Dr. Fee Adjustment Proposal, Dr. D. Bratt, memo, copy, hi-lit, 19.11.2008.pdf’;
6). ‘C1 1515 Bratt-Hawker, ‘Ready, Steady, Crook – Are we killing our patients with kindness’, present’n, 2010.pdf’ … with note: “(see especially pages 13, 20, 21 and 35 in that presentation)”;
7). ‘Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too – June 2012.pdf’…
with the following note added in brackets: “(see pages 16 and 33 in that presentation)”.

These notes were added at the bottom of the third email sent that day:
“Note: Attachments 4 to 7 are highly relevant to consider with complaint C12HDCxxxxx (to the HDC Office)! Also of much relevance is attachment 11 to email 6 sent in that complaint matter, at 00:49 h on 17 Dec. 2013, same as a fair few other documents sent in the same complaint matter!”

“PS:
PLEASE CONFIRM THE RECEIPT OF ALL 3 EMAILS IN RELATION TO YOUR COMPLAINT REFERENCE 3xxxxx – FROM 05:02 AM ON 16 JUNE 2014 TO THE RECEIPT OF THIS EMAIL ON THE SAME DAY, BY RETURN EMAIL. FOR SOME REASON YOUR AUTOMATED RESPONSE SYSTEM DOES NOT SEEM TO WORK. IF ANY EMAIL WITH ATTACHMENTS MAY BE MISSING, PLEASE INFORM ME FORTHWITH, SO I CAN RESENT THE INFORMATION.”

 

Author’s further note re the complainants email responses sent to the Ombudsman:
As there was no automated or any other response received from the Office of Ombudsmen on 16 June 2014, the complainant sent off a follow up email at 08.30 pm on that same day, requesting confirmation of the receipt of all emails sent before (between 05.02 am and 05.48 am). But strangely there was NO automated response or any other response that the complainant would ever receive upon sending in these emails. He would though later learn that the correspondence had indeed been received, but the response by Chief Ombudsman Beverley Wakem would be rather brief, unhelpful and condescending.

 

Comments by the author:

Again, that letter is self explanatory, and does not require much in the way of further explanations or clarifications. It is clear that the complainant did not accept the assessments and decisions as they had been made and presented to him, and he expected his objections, further evidence and submissions to be taken seriously and the whole matter to be reviewed.

 
 

PART 7 – OMBUDSMAN BEVERLEY WAKEM BLUNTLY REFUSES TO REVIEW THE COMPLAINTS, USING QUESTIONABLE DEFENCES

By way of a letter dated 10 July 2014 Ms Beverly Wakem, Chief Ombudsman, presented her final response in the two complaint matters. It would come as a huge disappointment to the complainant, as the final response showed no appreciation for, and sympathy with, his situation and feelings. Ms Wakem was actually somewhat condescending and very dismissive of the further presentations made by the complainant, bluntly refusing to even look at further evidence that was provided (also in the form of further attached PDF documents). Thus she upheld her earlier decision, which would protect the HDC from any challenges made against him and the decisions made by the Deputy HDC.

Here is the authentic transcript from her letter dated 10 July 2014:

“Dear Mr Xxxxxx

Ombudsmen Act complaint: Health and Disability Commissioner

I refer to your email of 16 June 2014 and the considerable number of attachments.

I do not intend to respond to the points raised in your correspondence. On the information before me I find no basis for me to take up an investigation. I have already explained an Ombudsman’s limitations when considering complaints against the HDC. In this case I cannot see the need to commence an investigation under the Ombudsmen Act 1975, into the HDC’s handling of your complaints, for the reasons explained in my earlier letter.

As to your comments regarding Ms Gxxxxxx I reject these utterly and I find both your allegations and tone offensive. No further communication will therefore be entered into regarding your complaint against the HDC. Your Official Information Act complaints against the Ministry of Social Development will be processed in the usual manner.

Yours sincerely

(Signature) …….

Dame Beverley Wakem DNZM, CBE
Chief Ombudsman”

 
 

PDF files with an authentic scan copy of Ms Wakem’s response letter dated 10 July are found here:
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, refusal to review, anon, 10.07.14
Ombudsman, complaint, HDC decisions, Nov., Dec. 13, refusal to review, hilit, 10.07.14

 

Comments by the author:

The response by Ms Wakem as Chief Ombudsman was certainly a very unhelpful one, as she apparently refused to even look at the presented further submissions and evidence by the complainant. She did in my view unreasonably use her discretion when deciding not to further investigate the complaints presented to her, thus ignoring very relevant evidence. That further evidence would also prove her investigator wrong, who appeared to have fully relied on the HDC’s judgment and decision, rather than on what the complainant had presented. Under section 17(1)(b) of the Ombudsmen Act 1975 (old version effective then), an Ombudsman can refuse to investigate a complaint, but must have regard to all the circumstances of the case in doing so. The fair question must be asked whether the Ombudsman had regard to all the circumstances of the case (see also the amended Ombudsmen Act 1975 s 17(1)((f)). The Chief Ombudsman certainly failed to perform her functions under section 13(1) of the Ombudsmen Act, to investigate apparent professional misconduct by a HDC staff member, who wrongly stated that the emails received in relation to the first HDC complaint C11HDCxxxx “froze” their computer system, when this was clearly not the case. The Chief Ombudsman appears to also have failed in her duties as an employer under section 11(2) under the Ombudsmen Act 1975, as she did not follow her duty to question her investigating officer re the allegations made by the complainant, and instead simply dismissed the complainant’s further letter, and defended her staff, blindly relying on her poor judgment.

 
 

PART 8 – CONCLUSION: “FAIRNESS FOR SOME, CERTAINLY NOT FOR ALL”

Upon reading all the above, and having looked at the many authentic evidence documents that were first presented to the HDC in these complaint matters, and that were later also presented to the Office of Ombudsmen, we are absolutely convinced that former Chief Ombudsman Beverley Wakem got it seriously wrong with her decisions. She did apparently rely firmly on her investigating officer’s competency, abilities and judgment, when she made an assessment on the complaints, when doing her analysis and when forming her view on it. That would in usual fashion have been presented to Ms Wakem, and she appeared to have relied on it, without asking any questions.

But in doing so, she sanctioned the whole complaint handling and the final decision on the matters, and thus owned it. As the complainant reasserted his concerns, provided further arguments and evidence, she then reacted somewhat angrily at the criticism that was also presented to her by the complainant in his letter from 16 June 2014. Apparently annoyed and reluctant to have her own staff put under any serious scrutiny, and also faced with endless back logs of complaints, due to lack of funding for her Office’s work, she decided to bluntly “fob off” the complainant with her letter from 10 July 2014. In doing so she failed in her responsibility to hold her own staff to account, and she failed to act fairly and reasonably, firmly refusing to review the complaints and decisions, while there was sufficient evidence presented that should have prompted her to do just that, to act also responsibly within the scope of her functions under the Ombudsmen Act 1975.

As a consequence of the flawed decision(s), and the rather poor handling of the two complaints, the complainant can only look upon this case as not having been resolved fairly and reasonably, again, due to irrelevant information having been relied on, due to some wrong information having been relied on, and due to relevant information (i.e. presented evidence) largely having been ignored. The HDC could rejoice, having been let off the hook again, this time by our leading “watchdog”, which at times appears to have had no teeth, at least under former Chief Ombudsman, Dame Beverley Wakem. Hence the slogan used by the Ombudsman’s Office, and printed on each letter and shown on their website, reading “Fairness for all”, rings rather hollow in the ears of the complainant, same as it will have in too many other complainants’ ears, who may have experienced similar treatment.

 
 

We conclude, that due to the above, the following has not been addressed:

 

Re HDC complaint C11HDCxxxxx, the Ombudsman let the HDC off the hook, by:
● ignoring ample clear evidence the complainant had presented to the HDC, showing how the counsellor/s complained about had breached the ‘Code’, and then considering the HDC had acted “reasonably” in deciding that an investigation was unnecessary;
● ignoring that HDC staff must have lied when saying that emails with attached evidence documents (sent in by the complainant on 08 Aug. 2011) “froze” their computer system, while all emails had actually been confirmed as having been received and passed on internally without any problem;
● ignoring that emails with the original complaint had been received and passed on internally by the HDC staff, without any evident technical issues, and then considering the HDC acted “reasonably” in asking the complainant for a “summary” complaint;
● failing to challenge the action of the HDC re asking the WDHB and its CEO to provide only a “summary” of the complainant’s treatment history, instead of asking them to address clearly stated individual breaches of the ‘Code’, and then simply considering the HDC acted “reasonably”;
● ignoring the numerous, well documented concerns presented to the HDC by the complainant, and instead giving more credit to the responses by the WDHB’s CEO, the Service Manager and his counselling staff, in deciding no investigation of the HDC was necessary;
● ignoring that the HDC cannot have acted “fairly” and “reasonably”, when taking the view that it did not have the resources to look at all the evidence presented in the complaint matter, as that must have clearly compromised the assessment and decision by the HDC;
● interpreting the HDC’s right to use discretion too liberally, when accepting the HDC acted “reasonably” under the law, in choosing not to consult with the complainant’s own doctor and some other key persons during the complaints resolution, which could have assisted the HDC in getting a more objective impression of what occurred.

The HDC has up to this day faced no consequences, despite of having:
● failed to act objectively, fairly and reasonably, by deciding that no action was necessary, in view of ample, clear evidence of ‘Code’ breaches by the counsellors complained about;
● HDC staff tell lies that emails with attached evidence documents, sent in by the complainant, supposedly “froze” their computer system, while all emails were confirmed received and internally passed on without any issues;
● unreasonably pressured the complainant to present a short, summarised complaint, that could never cover all the breaches and issues the complainant had experienced and presented;
● failed to check with the complainant re his references to information already sent with the original complaint, so to ensure that all relevant evidence would be viewed and assessed;
● abused his/her discretion under the HDC Act, by apparently selectively picking the evidence information that suited the HDC to dismiss the complaint as not needing to be investigated;
● let the CEO of WDHB present untrue comments in response to the complaint, clearly intended to discredit the complainant, e.g. by claiming he chose not to take up particular treatment offers proposed to him, and that he had “unreasonable”, “out of scope” expectations, and that he had been “abusive” to staff;
● let WDHB and their service provider off the hook, dismissing concerns and evidence that wrong and incorrect information had repeatedly been put into the complainant’s client file by its counsellor at XXXX Xxxx;
● let the provider’s counsellor off the hook, despite of him developing an apparent bias towards his client during treatment, which was evident when reading the falsely entered, untrue and also incomplete clinical notes;
● let both the counsellor complained about off the hook, despite of their documented efforts to misinform other clinicians involved in the care for the patient/client, again aimed at discrediting him;
● disregarded how the counsellor’s employer (and Service Manager) misled both the HDC and DAPAANZ about complaints before the other agency, while the employer even had a conflict of interest, by being both the Chair of the DAPAANZ Executive (the registration body), and the employer of the clinician complained about
● abused his/her right to use discretion, when unreasonably choosing not to consult with the complainant’s own doctor and some other key persons during the complaints resolution, which could have assisted the HDC in getting a more objective impression of what had actually occurred (see ‘Authority’ given dated 05 Aug. 2013).

 

Re HDC complaint C12HDCxxxxx, the Ombudsman let the HDC off the hook, by:
● ignoring ample clear documentary evidence the complainant had presented to the HDC, that showed how the WINZ commissioned general practitioner had written and presented a biased, very flawed ‘designated doctor report’, and then considering the HDC had acted “reasonably” in deciding that no investigation was necessary;
● ignoring the well documented, numerous concerns presented to the HDC by the complainant, and instead considering the HDC acted “fair” and “reasonably”, when giving more credit to the two brief written responses by the WINZ commissioned doctor, when the HDC decided that no investigation of the complaint was necessary;
● ignoring the consistent reports from the complainant’s own GP and specialists, presented by him to the HDC, that were in stark contrast to the WINZ commissioned doctor’s report, and still considering the HDC was “reasonable” and “fair” in his/her assessment and decision making as part of the process followed;
● not challenging the HDC on his/her decision to only look at a potential breach of ‘Right 5’, of the ‘Code’ to “effective communication”, while the complainant provided sufficient information suggesting breaches also of ‘Rights’ 1, 3, 4 and 6;
● not examining whether the HDC misinterpreted the law, which does not provide for a Medical Appeals Board (appointed by MSD) to hear and decide on issues relating to the conduct of a WINZ commissioned “Designated Doctor” when examining a client;
● accepting untrue comments by the Deputy HDC, claiming the complainant had “succeeded” in an appeal to a Medical Appeals Board, while he had not, and then still considering the HDC acted “fairly” and “reasonably”;
● ignoring reliable, relevant evidence information also presented to the HDC by the complainant, which showed that the MSD made ongoing attempts to influence it’s commissioned medical examiners (‘Designated Doctors’), by encouraging them to make decisions to keep applicants and claimants off benefit entitlement and support;
● ignoring that the HDC had been informed that there had been at least one earlier complaint about the same doctor made to MSD, referred to in a provided ‘Memo’ from MSD dated 18 June 2010, which raised concerns about the general practitioner’s conduct in assessing persons with conditions he had no scope to examine them for;
● dismissing the important fact that had been outlined to the HDC, that the doctor was not qualified to examine and assess persons with mental health and addiction issues, and still considering the HDC acted “reasonably” within his/her scope to dismiss the complaint.

The HDC has up to this day faced no consequences, despite of having:
● relied primarily and apparently almost exclusively on the comments made by the general practitioner and WINZ examiner, when defending and justifying his actions, and dismissing evidence and comments sent in by the complainant;
● misinterpreted the law, which does not provide for a Medical Appeals Board (appointed by MSD) to hear and decide on issues relating to the conduct of a WINZ commissioned “Designated Doctor” when examining a client;
● made false statements and drawn wrong conclusions, about the complainant’s earlier and unsuccessful appeal to the Medical Appeals Board appointed by MSD;
● abused his/her discretion under the HDC Act, by apparently selectively picking the evidence information that suited the HDC to dismiss the complaint as not needing to be investigated;
● ignored that the ‘Designated Doctor’ commissioned by WINZ made a recommendation about a client with mental health and addiction issues, although he was not qualified and registered as a practitioner possessing such competencies;
● ignored reliable evidence information presented to the HDC by the complainant, which showed that the MSD had made ongoing attempts to influence it’s commissioned medical examiners (‘Designated Doctors’), by encouraging them to make decisions to keep applicants and claimants off benefit entitlement and support;
● ignored documented evidence that there had been at least one earlier complaint about the same doctor, made to MSD in 2010, which raised concerns about the general practitioner’s conduct in assessing persons with conditions he had no scope of practice to examine them for;
● dismissed the important fact that had been outlined to the HDC, that the doctor was not qualified to examine and assess persons with mental health and addiction issues;
● gave too little regard to the fact the assessing WINZ commissioned doctor had also not bothered keeping related medical examination records on file, which one should reasonably have expected, as examinations can justifiably be challenged and records be required of the practitioner.

 

All in all the complainant had learned the hard way, what it meant dealing with not only an under-funded, overloaded and dismissively complaints “resolving” HDC Office, but also with an even more under-resourced, overly stressed, over-worked and at times rather poorly performing Office of Ombudsmen. It was more than evident that both the investigator, and even the Chief Ombudsman, was in these complaint cases not up to her task and standard in their performance. That is why the complainant would later take a complaint about issues he perceived to exist at the last mentioned Office to the Office of the Controller and Auditor General (OAG), which we endeavour to cover in a later post.

 
 

Quest for Justice

 
 

► In a separate post, we will present what further action was taken re these matters!

 

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  1. HAVE YOU HAD ISSUES WITH HDC DECISIONS? AN ADVOCATE SEEKS FEEDBACK | nzsocialjusticeblog2013

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