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MSD RELEASES OIA INFO ON DR BRATT’S AND OTHER SENIOR HEALTH ADVISORS’ HIGH SALARIES – NEARLY 4 YEARS LATE


MSD RELEASES OIA INFO ON DR BRATT’S AND OTHER SENIOR HEALTH AND DISABILITY ADVISORS’ HIGH SALARIES – NEARLY 4 YEARS LATE

 

Top ‘Advisors’ get paid huge salaries to make absurd claims like the benefit is a “drug”, and that sick, disabled beneficiaries must be moved off benefits into paid employment on the open, competitive job-market, as that offers “health benefits” to them

 
 

CONTENTS:

A). BACKGROUND
B). MSD’S RELUCTANCE TO RELEASE REQUESTED SALARY INFORMATION FOR DR BRATT AND OTHER SENIOR ADVISORS
C). OMBUDSMAN COMPLAINT
D). HUGE SALARIES PAID TO INFLUENCE GPs AND OTHER PRACTITIONERS
E). MSD AND DR BRATT PRESENT MISLEADING ‘EVIDENCE’
F). PUBLIC AND STATE SERVICES SALARY INFORMATION SOURCES – ALLOWING SOME LIMITED COMPARISONS
G). CONCLUSION

 
 

A). BACKGROUND

On 11 June 2013 an Official Information Act 1982 (OIA) request was sent to the Ministry of Social Development (MSD), listing 12 separate requests for specified information to be made available. Besides of seeking information on referrals of Work and Income (WINZ) clients to designated doctors, on Medical Appeal Board (MAB) hearings, and on various other matters, the requester did with question ’11.’ also ask for salary information on the Principal Health Advisor (PHA) Dr David Bratt, the Principal Disability Advisor (PDA) Anne Hawker and former Senior (Health) Advisor Dr David Rankin.

Dr David Bratt, a general practitioner (GP), has held his then newly created position with the Ministry since late 2007, same as Anne Hawker, and Dr David Rankin worked for the Ministry from 2006 to 2011 (2006-2009 for Work and Income (WINZ), 2009-2011 for Child, Youth and Families (CYFS)).

The requester had learned of Dr Rankin’s and Dr Bratt’s involvement in the development of new internal working processes, of welfare reforms and major changes to the benefit system, that would be affecting sick and disabled who are dependent on benefits, including the way they were to be examined and assessed for work capacity (also done by ‘Designated Doctors’ for WINZ).

The OIA information requester had come across a fair number of controversial, apparently biased “presentations” by Dr David Bratt, in which he likened benefit dependence to “drug dependence”, and obviously tried to influence health professionals by promoting supposed “health benefits of work”. Some at times bizarre and bold claims were made in such presentations to general practitioner conferences and other stakeholder meetings.

Other information he obtained, which put into question the professional competency and conduct of Dr Bratt as a trained general medical practitioner, would further raise his concerns, but some of this was not yet at hand when the information requests were made to MSD. It was the requester’s view, that as a practitioner of a science based profession, Dr Bratt should not be making certain unproved claims, presumptions and comments.

As the requester had himself made rather disturbing previous experiences with a so-called ‘Designated Doctor’ commissioned and paid by MSD, when being examined for his entitlement to an Invalid’s Benefit – based on limited capacity to work, he was especially concerned about some particular comments and claims made by Dr Bratt in some of his many presentations to health professionals, and also to the media (including the ‘NZ Doctor’ magazine).

Upon receiving the information request the Ministry of Social Development (MSD) responded first with a letter dated 12 July 2013. While some of the asked for information was made available, other information, including the requested Advisors’ salary information, was being withheld under section 9(2)(a) of the OIA. The explanation given was that this was necessary “to protect their privacy” (i.e. the ‘privacy’ of the Advisors).

As the requester could not accept the withholding grounds given by MSD, he did on 09 August 2013 write a formal complaint to the Office of Ombudsmen, who would look into his complaint, but only after a very long delay.

It would be no earlier than the 30th of October 2013 that the requester would get a first formal reply from a Manager at the Ombudsmen’s Office, stating that the then Ombudsman Ron Paterson would be looking into the matter. A separate OIA related complaint by the requester would later be added to this case and its file reference, and the whole investigation would take an extremely long time.

While only some of the requesters concerns would eventually be resolved over the following years, the issue regarding the withheld Advisors’ salary information would drag on endlessly, until well into early 2017. Only after ‘consultation’ with the new Ombudsman (formerly the Deputy), Mr Leo Donnelly, would MSD finally send the requester some information on the “salary bands” covering the Advisor’s salaries, which was by way of an email dated 11 April 2017.

 
 

B). MSD’S RELUCTANCE TO RELEASE REQUESTED SALARY INFORMATION FOR DR BRATT AND OTHER SENIOR ADVISORS

 

THE OIA REQUEST

The following information was sought by the requester under request or question ’11.’ in his letter dated 11 June 2013:

11. A detailed list stating the individual annual before tax salaries, plus any additional bonuses or the likes, for the following senior and key-role advisory staff of the Ministry of Social Development:

a) Dr David Bratt, Principal Health Advisor for the Ministry of Social Development;
b) Anne Hawker, Principal Disability Advisor for the Ministry of Social Development;
c) Dr David Rankin, Senior Advisor for the Ministry of Social Development.

As I have reason to believe that this information may have been withheld following earlier requests, due to stated privacy concerns under the Privacy Act 1993, I wish to state that I nevertheless insist on these salaries to be made available under the Official Information Act 1982, as I believe that it is in the public interest that such information is made available.

Due to all three professionals being expected to perform their tasks as leading public service employees responsibly and diligently at the highest professional and ethical standards, and also being expected to possess the particular, high quality and appropriate qualifications required to do their work, and for the fact that public accountability is a core requirement for all those professional roles, any rights to withhold this information under the Official Information Act 1982, or the Privacy Act 1993, should be outweighed by the public’s deserved interest. The public has an interest in transparency, simply to receive assurance that remuneration paid does match competency, qualification, responsibility and performance for each role. The public has a right to assess whether remuneration paid is a clear and fair reflection of these three professionals’ abilities to meet the expected high standards of service-delivery and any requirements.

In any case the annual before tax salary – and any possible bonus or similar – paid to Dr David Bratt as Principal Health Advisor should be made available, as the public and clients of MSD truly deserve to have full transparency in this matter, given the fact that his role is that of a very senior advisor and leader in a crucial area of decision-making over sensitive, high risk health and disability issues. The New Zealand public expects that Dr Bratt leads in his advisory position by applying a high level of responsibility, of ethical standards and professional conduct at all times, as an exemplary manager of any staff working under or with him. He is also entrusted to ensure balanced, objective, reliable, scientifically based and professional standards are applied by his subordinate, overseen staff in their duty of advising on health and disability matters that affect thousands of clients of the Ministry. The trust and respect the public gives such a crucial, senior advisor must surely justify the publication of the before tax salary and other earnings of Dr Bratt.

It is publicly known, and important to note, that Dr David Bratt has since at least 2010 made numerous public and also non public presentations in his role as Principal Health Advisor for the Ministry of Social Development (and Work and Income). It is a concern to some, that he has in doing so drawn comparisons between “benefit dependence” and “drug dependence”, referred to “the benefit” as an “addictive debilitating drug”, used statistical data and supposed “medical” information based on apparently selective, in part quite likely unproved medical or scientific findings. These were apparently largely based on “findings” by a particular school of thought of “experts” that includes professional “specialists” as Professor Mansel Aylward from the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, in the United Kingdom. There are evidently other schools of thought in relation to psychosocial and disability research, which appear to not have been considered and presented by Dr Bratt. This raises concerns about his personal, preferential choices of information. Hence the public deserves to know also, as to how the presentations that Dr Bratt has delivered as basically Work and Income authorised information, can be considered objective, reasonable, fair and balanced, and thus be acceptable to MSD.

The public and Work and Income clients do in view of this have justified reasons to obtain information on Dr Bratt’s annual salary and other income from the public purse, to allow them to assess, whether the remuneration is a good spend for the services Dr Bratt actually delivers for the Ministry to them.

If you may not be familiar with the presentations referred to above, I wish to make you aware of PDF or PowerPoint documents to be found under these following links to websites, which were clearly created by (or for) Dr Bratt, to use for his public and partly not so public presentations to general practitioners, designated doctors, medical trainers and others. These links are:

http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf
(‘Ready, Steady, Crook – Are we killing our patients with kindness?’, Dr Bratt + A. Hawker, MSD, Christchurch 2010, see pages 13, 20, 21 and 35)

http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(‘Medical Certificates are Clinical Instruments Too’, Dr Bratt, MSD, 2012, see pages 3, 16 and 33 for details)

http://www.google.co.nz/url?sa=t&rct=j&q=bratt%20ppt&source=web&cd=1&cad=rja&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=ZO9QUYjZApGSiAegmICIDA&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg
(‘Pressure / No Pressure – Strategies for Pushy Patients’, a link to a PowerPoint presentation by Dr Bratt and Anne Hawker, where again on page 27 a claim is made the “benefit” is an “addictive debilitating drug”).

There have also been articles written on Dr David Bratt as Principal Health Advisor in the ‘NZ Doctor’ magazine, which clearly state his very one-sided views and interpretations of particular health issues, on the effects of “worklessness”, his intentions of getting sick and disabled into work, and his comments “the benefit” is “addictive” like a “drug”. An article in the online edition on 01 August 2012 was titled ‘Harms lurk for benefit addicts’ and written by Lucy Ratcliffe, (see link: http://www.nzdoctor.co.nz/in-print/2012/august-2012/1-august-2012/harms-lurk-for-benefit-addicts.aspx).

A critical opinion on this one article which was published that magazine’s online edition by Tim Walker Nelson on 29 August 2012, titled “Questioning the direction of MSD policy” (see link: http://www.nzdoctor.co.nz/in-print/2012/august-2012/29-august-2012/questioning-the-direction-of-msd-policy.aspx ). It raised the valid question about what kind of Principal Health Advisor the Ministry of Social Development has employed for such a serious advisory role.

While the public may find it astonishing, that the Ministry of Social Development supports, authorises or at least tolerates such presentations, and these apparently somewhat potentially biased, unprofessional and unscientific comparisons by Dr Bratt, it certainly has a justified interest and a right to be informed about the remuneration for such “work” performed by him.”

 

Here is a hyperlink to a PDF file containing the whole set of original OIA request questions from 11 June 2013 that were sent to MSD in a letter:
M.S.D., O.I.A., rqst, DDr, MAB, PHA, RHA, training + salaries, anon, 11.06.2013

 

MSD’s INITIAL OIA RESPONSE

In her initial and supposedly ‘final’ response to the requester’s OIA request, dated 12 July 2013, Debbie Power, Deputy Chief Executive for Work and Income (at MSD) gave the following answer in relation to request ‘11.’ in the requester’s original letter:
“I am withholding the salaries of the Principal Health Advisor and the Principal Disability Advisor, and Senior Advisor under section 9(2)(a) to protect their privacy. In this instance I believe the need to protect the privacy of these individuals outweighs the public interest in the information.”

This was although the Deputy Chief Executive was more forthcoming with some other information on Regional Health Advisors and Regional Disability Advisors and their qualifications, placements and names, and also on Medical Appeal Boards appointed by MSD.

Here are links to 2 PDFs with authentic scan copies of Ms Power’s full and ‘final’ response to the OIA request, being her letter dated 12 July 2013 (and attachments):
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13
MSD, O.I.A. Request, Designated Dr Training, 2008, material used, D. Power, C.E., 12.07.13

 

Author’s Comments:

From that refusal to release salary information on Drs Bratt, Hawker and Rankin, it must be concluded that MSD follows a very strict guideline by not releasing any salary information on individuals it employs, and also, that the Deputy Chief Executive did not even consider releasing a hint of information on such highly paid individual Advisors. That may perhaps have been so, because they get paid a rather high amount, which could raise questions about whether they actually deserved such salary rates for the particular roles and work they were and still are performing.

 
 

C). OMBUDSMAN COMPLAINT

Somewhat dissatisfied with the overall response by Debbie Power from MSD, the OIA requester did consequently write a complaint to the then Chief Ombudsman, Ms Beverley Wakem, asking for an investigation into the matter.

Here is a link to a PDF with the authentic transcript of the letter sent to the Chief Ombudsman, dated 09 August 2013:
Ombudsman, complaint, OIA rqst to MSD, info refused, Advisors etc., publ. interest, anon, 09.08.13

In relation to question ’11.’ in his OIA information request to MSD, the complainant explained and argued the following:

“The Ministry has also withheld information I sought per question 11 about salaries of the Principal Health Advisor, Dr David Bratt, the Principal Disability Advisor Anne Hawker, and Senior Advisor Dr David Rankin, this under section 9 (2) a of the O.I.A.. Debbie Power writes: “In this instance I believe the need to protect the privacy of these individuals outweighs the public interest in this information”.

I take issue with this, particularly for the case of Dr David Bratt, who is as Principal Health Advisor in a very senior advisory position, where he holds core responsibilities, including the supervision, management, training, mentoring, and instructing of the Regional Health Advisors that MSD have in each of their Regional Offices. He is together with Anne Hawker jointly responsible to supervise, manage, train, mentor and in certain cases instruct the Regional Disability Advisors. Both Principal Advisors also work with Health and Disability Coordinators placed at each Regional Office of MSD. Dr Bratt has input in decision-making on applicants and beneficiaries suffering ill health, disabilities and incapacity. Also is Dr Bratt responsible for advising the Ministry and Minister of Social Development on health and disability matters in general, which contributes to policy formation and implementation.

The subordinate Regional Health and Disability Advisors fulfill highly responsible roles in liaising with various medical professionals, Work and Income case managers, and other internal and outside parties and agencies. A core responsibility they have is, to assist in the referrals of certain clients suffering health conditions, disabilities and resulting incapacity to Ministry paid and selected designated doctors or other specialists. They are in charge also of examining medical reports, in assessing medical conditions and disabilities, and of making important recommendations to case managers, who then rely on such recommendations when deciding on benefit entitlements, possible obligations, on treatment or other measures that may be relevant and applied from case to case.

The roles, tasks and responsibilities of Regional- and Principal Health and Disability Advisors are based on medical and rehabilitation related expertise, and certain qualifications in such areas are required to work in their important roles. One does not need to elaborate further, to make clear, that they are personnel that base their knowledge, competency and decision-making on medical and related sciences. It is already of concern that some of these advisors seem to lack a solid medical or rehabilitation background, which a recent response to an O.I.A. request shows.

All the three persons listed in my question 11 have been, and in certainly two cases still are, public servants working for the Ministry of Social Development and their main department Work and Income. As public servants they are paid for by revenue gathered as taxes from the tax paying public, which will represent the majority of the public in New Zealand. Some tax payers rely on Work and Income and other services by the Ministry of Social Development, also relying on Dr Bratt’s advice.

While no grave questions may arise re Anne Hawker or Dr Rankin, there have been increasing concerns raised about Dr David Bratt’s conduct, certain ones of his “presentations”, which he has made to health professional organisations, such as GP conferences, also to trainers and educators in the medical profession, same as to designated doctors.

Dr David Bratt has continuously made bizarre claims in his presentations, that benefit dependence is like “drug dependence”, is “addictive”, and therefore harmful for the beneficiaries’ health. He has most strongly advocated for the acknowledgment of the value and supposed “health benefits” of work. He makes these claims in a wider, general way, commonly meaning open employment, and his statements are also based on a selected few “reports” and “findings” by a small number of medical “experts” from one school of thought, mostly from the United Kingdom.

One such expert is a Professor Mansel Aylward, who has been widely criticised in the UK for his involvement with the controversial work capability tests used by ATOS Healthcare as sole assessor for the Department of Work and Pensions. It has been reported that the assessments, which he was involved in designing, are unsuitable, ill designed and do not give sufficient consideration for mental health sufferers. This criticism has also come from organisations of the medical profession in the UK. Professor Aylward, and a few of his colleagues, are based at a research department called ‘Unum Centre for Psychosocial and Disability Research’ at Cardiff University in Wales. It has been established and funded with the support of controversial US insurance giant Unum Insurance. Professor Aylward and his colleagues (like for instance Gordon Waddell), portray many illnesses as being nothing more than “illness belief” the sufferers adhere to, which is an irresponsibly dismissive approach, taken to particular physical and certainly many mental health conditions.

To summarise my complaint, Dr Bratt is making unproved claims, is making comparisons between benefit dependence and “drug dependence” which are not scientifically proved, and which can only be seen as a highly questionable, and even a biased way of dismissing other aspects that may explain that many beneficiaries suffer ill health, and conditions that do often not improve. One may fairly ask, is Dr Bratt not confusing cause and result, and with his influence making statements that are untrue and can lead to serve only to justify the Ministry of Social Development to apply approaches and pressures on sick and disabled beneficiaries that will cause more harm than benefits to those affected. The question may also be asked, is wage and salary receipt then also not “addictive” like “a drug”?

Dr Bratt is increasingly being criticised and challenged, as certain media reports show. I will provide some information on his controversial, disputed presentations and comments by others in PDF files attached to the email carrying this letter.

It is in my view, and that of many in the public, that Dr Bratt has to be held accountable by his employer and also the medical profession, to which he still belongs as a registered general practitioner. The public, paying his salary, most certainly also deserve to know whether they get the correct “value” for money with this gentleman continuing to be employed by the Ministry. The public deserves to know how much he is paid for in salary and additional payments, to be able to assess whether he is paid appropriately or not, for the questionable quality of advice he appears to deliver.

As Dr Bratt clearly enjoys his position and income at the expense of the wider public, who pay him, it is certainly a right to the public to know what his payments are.”

 

OMBUDSMEN OFFICE RESPONSES

It took the Office of Ombudsmen almost three months to provide a first reply to the complainant’s letter, mainly due the fact that their Office’s human and financial resources were at that time extremely stretched. But a letter by a ‘Manager’, dated 30 October 2013, was later sent to the complainant and information requester, explaining to him that the then new Ombudsman Ron Paterson would be investigating the complaint matters, which he had raised.

Here is a link to a PDF with a scan copy of that anonymised letter from the Office of the Ombudsmen, dated 30 Oct. 2013:
Ombudsman, complaint 36xxxx, MSD, OIA info withheld, incl. Advisor sal., reply, anon, 30.10.2013

As it is not uncommon, the Ombudsman would later add at least one other complaint made by the same complainant against MSD (dated 9 March 2014) to this complaint file, and process these in one complaints process, which would eventually take much longer than ever expected.

The first letter dated 30 October 2013 would be followed by further letters dated 19 March, 27 May and 30 July 2014, and the complainant would be informed of an investigator having been assigned to review the file, that a reply from MSD had been received in mid January 2014, that the review was taking longer than expected, and that another complaint by him, dated 9 March 2014, had been added to this file. A letter dated 19 September 2014 (from a separate ‘Manager’ at the Ombudsmen’s Office) contained few new details, and informed the requester only that Dr Ron Paterson would now investigate the complaint. That last letter though appeared to be more concerned with the newly added complaint about a separate OIA request that the requester had made to MSD on 16 Jan. 2014.

As the process was dragging on, the complainant and OIA requester phoned the investigator at the Office of Ombudsmen, who looked after the file, on 11 November 2014. He then learned, besides of other information he received, that the Ombudsman required advice from the Office of the Privacy Commissioner on the requested release of salary information about MSD Advisors.

In a letter dated 19 Nov. 2014 the ‘Manager’ at the Ombudsmen’s Auckland Office advised the complainant that new information had been released by MSD on the second complaint under the same file reference, but offered no new information on the first complaint from 09 August 2013.

But for the complainant (and OIA requester) none of the complaints would be considered as being “resolved”, while the Ombudsmen Office appeared to think that at least the added, second complaint had been satisfactorily “answered” to by MSD. After the complainant wrote to their Office yet again, he received a further letter dated 4 May 2015 – from Ombudsman Prof. Ron Paterson.

Dr Paterson only wrote this in relation to the ‘First request’:
“This complaint relates to the Ministry’s response for official information about the assessment of entitlement for a medical related benefit, and about advisory staff including Dr Bratt. The information in relation to this issue has taken time to review, due to the complex issues involved in relation to some of the information withheld under section 9(2)(a) of the Official Information Act 1982.”

“I appreciate that the investigations into these complaints may be taking longer than you anticipated. This is due to the volume of complaints being managed by the Office. However, progress is being made, and we anticipate being in a position to update you on these matters again shortly.”

With a letter dated 22 May 2015 Ron Paterson would then present his provisional decision on the other – second- complaint filed with the Ombudsman, also re OIA info withheld by MSD, and that full response by the Ombudsman can be seen here:
Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, publ. int., prov. dec., compl., 22.05.15
Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, public interest, prov. dec., hilit, 22.05.15

Some of that complaint related information was already published on this blog under the following post:
‘THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH’:
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
(Read chapters ‘C)’, ‘D)’ and ‘E)’ re the lack of evidence and flawed evidence used by MSD, and especially ‘F)’ about the Ombudsman’s actions – or rather missing action – in regards to Dr Bratt and his presentations, and his reported deletion of all emails to and from another external ‘Advisor’.)

New, current PDF version (as on 19.09.16):
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

Other posts that provide further info on how MSD selectively presents information on ‘evidence’ and ‘advice’ received from ‘experts’, and on the treatment of sick and disabled on benefits:
THE MINISTRY OF SOCIAL DEVELOPMENT’S SELECTIVE AND POOR RESPONSES TO NEW O.I.A. REQUESTS ON BENEFITS, ADVISORS, REPORTS, MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES:
https://nzsocialjusticeblog2013.wordpress.com/2015/11/27/msds-selective-and-poor-responses-to-new-oia-requests-on-benefits-advisors-reports-mental-health-and-sole-parent-employment-services/

A PDF version of the same post is downloadable via the following link:
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msds-selective-poor-responses-to-new-o-i-a-requests-post-nzsjb-upd-27-11-15.pdf

MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE:
https://nzsocialjusticeblog2013.wordpress.com/2015/04/10/mental-health-and-sole-parent-employment-services-msd-withholds-o-i-a-information-that-may-prove-their-trials-a-failure/

 

Soon after this, the complainant received yet another letter dated 25 May 2015, which referred directly to his complaint that also related to the salary information withheld by MSD, and in it Professor Paterson informed him that he had written to the Privacy Commissioner to obtain advice.

See this link for a PDF with a scan copy of that letter from the Ombudsman dated 25 May 2015:
Ombudsman, complaint 36xxxx, MSD, OIA info withheld, incl. Advisor sal., update, anon, 25.05.15

A further letter dated 19 August 2015 would only inform the complainant that additional advice had been received from the Privacy Commissioner, and was due to be reviewed. Nevertheless, the matter continued to drag on endlessly, and the complainant asked for yet further updates on 15 Nov. 2015, and again during 2016 (11 Feb. and later), which showed very little – if any – progress in this particular complaint matter being made. In an email from 18 Dec. 2016 the Ombudsman’s investigator indicated that correspondence re the issues complained about was being prepared, and was about to be signed off in January 2016.

Meanwhile, after responding to another complaint matter under the same file reference, last with a letter dated 23 June 2016, Prof. Paterson vacated his position as Ombudsman shortly afterwards, as he had surprisingly handed in his notice only a month or so before. Little information was given to the public to explain his sudden resignation, only about two years into his 5-year appointment.

On 23 August 2016 the complainant and OIA requester then received an email from the Office of Ombudsmen, which informed him of new investigators being employed, and that his complaint would be reassigned to a new one. Also was he being informed of the departure of Prof. Ron Paterson, and that new Ombudsman Leo Donnelly was going to take over his file. He was asked whether it would resolve his information request, if MSD would provide him with the salary ranges for the advisors.

See these links for two PDFs with scan copies of the Ombudsmen Office’s email from 23 Aug. 2016, one high-lighted:
Ombudsman, complaint, 36xxxx, MSD, OIA info w-held, Advisors sal., email, anon, 23.08.16
Ombudsmen, Office of, complaint 36xxxx, MSD, OIA info w-held, email, hi-lit, 23.08.16

From 09 Nov. to 21 Dec. 2016 the complainant sent a number of concerned emails to the Office of Ombudsmen, as he now had a number of complaints waiting to be processed, but had registered no detectable progress with any of them. Then the ‘Manager’ of the Ombudsmen Office in Auckland would on 22 December 2016 eventually give him yet another email update, including for the complaint covered by this post.

He informed the complainant that a new investigator was looking into this particular complaint, and that the complainant could expect correspondence from her “shortly”.

But it took the Ombudsmen until 28 February 2017 to finally respond with a formal letter, informing that Ombudsman Leo Donnelly had decided that MSD was justified in refusing the individual salaries for the Principal Health Advisor, Dr David Bratt, the Principal Disability Advisor, Anne Hawker, and for Senior Advisor Dr David Rankin.

Nevertheless, upon consultation with the Privacy Commissioner he also decided, that MSD should be advised to release a combined or aggregated salary range for the salaries of all the three Advisors, for public transparency.

Here is a link to a PDF with a scan copy of Mr Donnelly’s letter dated 28 Feb. 2017:
Ombudsman, complaint 36xxxx, MSD, OIA info w-held, Advisors sal., ltr, L. Donnelly, 28.02.17

A final decision, dated 12 April 2017, was sent by Ombudsman Donnelly to the requester. In it he commented that he had consulted with the individuals concerned, and that MSD had agreed that the salary information could be released by showing the lowest figure of the three salary bands and the highest figure of the same.

MSD had already on 11 April 2017 sent an email with some moderately useful information on the aggregated salaries, or combined salary ranges, covering all salaries of the three Advisors for MSD (see further below for details).

Here are links to PDFs with scan copies of the letter by Leo Donnelly dated 12 April 2017:
Ombudsman, complaint, 36xxxx, 16.01.14, MSD OIA, Advisor salaries, fin. dec., L. Donnelly, 12.04.17
Ombudsman, L. Donnelly, complt 36xxxx, MSD O.I.A., Advisor Salaries, fin. dec., hi-lit, 12.04.17

 
 

D). HUGE SALARIES PAID TO INFLUENCE GPs AND OTHER PRACTITIONERS

 

MSD’s FINAL OIA RESPONSE

It was on 11 April 2017, when the OIA information requester suddenly received an email from a person with the title ‘Senior Advisor’ at the ‘Ombudsman and Privacy Complaint Services’ at MSD. The email was titled ‘Official Information Act Request – 11/06/13 – Revision’.

Referring to their earlier response from 12 July 2013, and a few other details, the MSD Advisor now suddenly informed the requester of the following:

“Following dialogue with the Office of the Ombudsman, the Ministry has now revised its view and notes that, whilst the Official Information Act provides good reason to withhold the actual salaries of Dr Bratt, Ms Hawker and Dr Rankin on the basis of their privacy, the public interest requires that further information be released.

The Office of the Ombudsman considers that salary range information can be released as an appropriate balance between privacy and an agency’s accountability for the value they have accorded a particular role.

Therefore, I can advise that the salaries of Dr Bratt, Ms Hawker and Dr Rankin fall within a range of $120,669 and $234,837.

Here are links to PDFs with scan copies of that email from MSD from 11 April 2017, one with highlighted text:
MSD, OIA Rqst fr. 11.06.13, Advisor salaries, Bratt, Hawker, Rankin, Revision, released 11.04.17
MSD, O.I.A. Rqst 11.06.13, Advisor Salaries, Bratt, Hawker, Rankin, Rev., email, hi-lit, 11.04.17
MSD, OIA Rqst, 11.06.13, Advisor salaries, Bratt, Hawker, Rankin, Rev., mail rel., 11.04.17
MSD, O.I.A. Rqst, 11.06.13, Advisor Salaries, Bratt, Hawker, Rankin, Revision, email, hi-lit, 11.04.17

 

LOGICAL CONCLUSIONS FROM THE OIA INFORMATION

This now reveals enough details to draw some relatively safe conclusions from the information, and we can now consider that Dr David Bratt, the “expert” working as Principal Health Advisor for MSD since late 2007 is getting paid well over $200,000 per annum to present such bizarre, questionable ‘presentations’ where he likens benefit dependence to “drug dependence”.

For memory, here are just a few of these ‘presentations’ he gave to GP and other conferences:

http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf
(‘Ready, Steady, Crook – Are we killing our patients with kindness?’, Dr Bratt + A. Hawker, MSD, Christchurch 2010, see pages 13, 20, 21 and 35)

http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(‘Medical Certificates are Clinical Instruments Too’, Dr Bratt, MSD, 2012, see pages 3, 16 and 33 for details)

http://www.google.co.nz/url?sa=t&rct=j&q=bratt%20ppt&source=web&cd=1&cad=rja&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=ZO9QUYjZApGSiAegmICIDA&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg
(‘Pressure / No Pressure – Strategies for Pushy Patients’, a link to a PowerPoint presentation by Dr Bratt and Anne Hawker, where again on page 27 a claim is made the “benefit” is an “addictive debilitating drug”).

http://www.gpcme.co.nz/pdf/WS%20142%20Bratt%20-%20Shifting%20Your%20Primary%20Focus%20to%20Health%20and%20Capacity.pdf
(‘Shifting Your Primary Focus to Health and Capacity – A New Paradigm’, presentation by Prof. Sir Mansel Aylward, Director Centre for Psychosocial and Disability Research, Cardiff University; Dr David Bratt, Principal Health Advisor, Ministry of Social Development; joint presentation at GP CME Presentation – June 2013; questioning “traditional” diagnosis on a medical model basis, and promoting the Aylward version of the “bio psycho-social model”, and even promoting ‘Long Acting Reversible Contraception’ to improve employability of women, see page 45!!!)

https://nzsocialjusticeblog2013.files.wordpress.com/2013/09/bratt-happy-docs-doctors-and-documents-presentn-2013-p-1-18-o-i-a-reply-09-2013.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/09/bratt-happy-docs-doctors-and-documents-presentn-2013-p-19-38-o-i-a-reply-09-2013.pdf
(‘Happy Docs – true generalism with Welfare Reform’, RNZCGP Presentation – July 2013, with the usual one-sided information that “work is generally good for you“, trying to explain some welfare changes, but now avoiding the “benefit“ to “drug“ comparison, after media and other attention to this)

 

We can presume now, that it is Dr David Bratt, who gets paid a salary at the upper end of the mentioned aggregate of salary bands paid by MSD, as he is now the most senior Advisor that MSD employs for health and disability related advice on welfare policy and processes. He commenced in his newly created role in late 2007 and has thus been in the job for nearly ten years. Also was his role created to oversee the many Regional Health Advisors, Regional Disability Advisors and Health and Disability Coordinators based at MSD’s Regional Offices all over the country. He is involved in policy advice and formation, he fronts or attends many meetings where MSD and WINZ communicate their policy, processes and intentions to professional organisations like GP conferences and the likes, he has consulted with overseas consultants like Prof. Mansel Aylward from the U.K., he has travelled to various national and international meetings and conferences, and is also the to go person for media.

Given the importance of his role, and his seniority, it is beyond doubt, that he must be getting the highest of all salaries. Anne Hawker is employed in a similar advisory role, for disability matters, but her qualifications and her lower involvement and publicity reveal, that she must be getting a lower salary than Dr Bratt. Even the once Senior (Health) Advisor Dr David Rankin, who held senior positions with CYFS and WINZ from 2006 to 2011, also being involved in preparing and formulating important changes to internal processes at WINZ from 2006 to 2009, will in our view not have received a salary that would have been over 200,000 dollars per year then, he is likely to have earned something in between what we guess Ms Hawker receives and what Dr Bratt receives.

The lower end of the salary bands will also represent the figure that one or two of the professionals may have received at the beginning of their engagements with MSD, which goes back a decade or more (Dr Rankin), when salaries were a fair bit lower anyway. So we believe, Dr Bratt may now be earning close to a quarter of a million a year, for doing his “work” in redesigning assessment criteria and processes for sick and disabled, and to implement and apply new policy across the WINZ branches and related sectors, in collaboration with the Regional Advisors and other stake holders. He had a previous role as ‘GP Liaison and Primary Care Advisor’ with The Capital and Coast District Health Board (DHB) for up to five years. That previous advisory role may have given him an advantage in obtaining the PHA role with MSD in the first place, and it will also have assisted him in achieving an agreement on a handsome salary with MSD.

In other OIA requests to MSD, one dated 16 Jan. 2014, the same requester had sought references and sources for the bizarre claims made by Dr Bratt, and asked for the scientific reports that were supposed to support the many repeated comments made by Dr Bratt. The responses received were mostly lacking proper, detailed evidence and offered only generalised, unspecific explanations and references. A complaint made to the Ombudsmen’s Office also only resulted in Prof. Paterson basically refusing to further investigate matters, as he simply accepted the unsatisfactory responses by MSD, and wrote, that MSD had justified reasons to withhold or refuse certain information that had been requested.

Ombudsman Paterson would even refuse to investigate a separate Ombudsmen Act complaint against MSD and Dr Bratt, where the complainant had asked that the apparently sudden, wholesale and unexplained deletion of all emails with certain contacts by Dr Bratt should be investigated. He alleged it happened in breach of the Public Records Act. It was soon after that when Dr Paterson suddenly resigned from his position as Ombudsman, about three years before his 5-year term was up.

 

HIGH SALARIES FOR ADVISORS TO TRY TO INFLUENCE HEALTH PROFESSIONALS

It is almost beyond belief, that MSD would pay such high salaries (now released) to such Advisors, who appear to have been hired and employed by MSD with the intention to change and “reform” the assessment criteria and processes for sick and disabled on benefits, to change the Social Security Act 1964 itself, to facilitate the virtual off-loading of such beneficiaries from welfare payment receipt, and to usher them into whatever paid employment deemed “suitable”, that may or may not exist on the wider open job market.

‘Experts’ such as Dr Bratt, who have evidently fallen for the supposed ‘evidence’ presented by mostly UK based ‘experts’ such as Prof. Mansel Aylward, at the former UNUM Provident funded ‘Centre for Psychosocial and Disability Research’ based at Cardiff University in Wales, are paid high salaries, while giving ‘presentations’ with questionable, even untrue and clearly biased information to health professionals. They are employed not only to advise WINZ staff and outside contacts on MSD’s processes and requirements, but also to try and influence such health and medical professionals, so to make them conduct examinations and assessments that may result in reports which ultimately serve the interests of MSD and WINZ, as other evidence has since shown. The abolition of the former Sickness Benefit and merger of that category into the ‘Jobseeker Support’ benefit, thus treating persons with serious enough health conditions and disabilities as “job seekers”, is just one example of what has resulted from the input of these Advisors.

Even Dr Rankin, who worked for MSD and WINZ from 2006 to 2011 was involved in the changes within, and he was also involved in the training of Designated Doctors, which was a measure never taken before by MSD, during at least 2008 – possibly still happening in some form to this day.

 

Here are some links to information that shows how Dr Rankin was also instrumental – as a highly paid ‘Advisor’ – in changing processes for the assessment of sick and disabled on benefits, to facilitate the reconsideration of their capacity for work, and thus shifting them off benefits, by training ‘Designated Doctors’ paid by MSD:

https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-working-nz-sdd-role-of-design-drs-memo-d-rankin-hi-lit-27-03-2006.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-sdd-dr-d-rankin-gp-second-opinion-memo-05-06-2007.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-design-dr-training-workshop-and-hd-coordntr-info-sheet-rankin-bratt-12-08-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-working-nz-work-foc-suppt-designated-doctor-training-resources-memo-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-des-dr-training-comm-requirements-j-russell-m-mortensen-memo-23-01-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-des-dr-training-comm-requiremts-j-russell-m-mortensen-memo-hi-lit-23-01-2008.pdf
https://nzsocialjusticeblog2013.files.wordpress.com/2013/12/msd-design-dr-fee-adjustment-proposal-dr-d-bratt-memo-copy-hi-lit-19-11-2008.pdf
(it can be seen that there was close collaboration between Drs Rankin and Bratt in these activities)

There is some other information available on Dr Rankin’s past work and present engagements in New Zealand and Australia, which can be viewed by clicking these links to PDFs with scan copies of other printed out documents (from websites and so forth):

LinkedIn profile of Dr Rankin, now ‘Clinical Director’ at ‘Medi Bank’ in Australia:
https://au.linkedin.com/in/david-rankin-96a40816

A PDF with a scan copy of his same profile, as on 13 April 2017:
David Rankin, Dr, once MSD and ACC, N.Z., LinkedIn Profile, scan copy, as on 13.04.17
Dr David Rankin, Medibank, once MSD, ACC, NZ, LinkedIn profile, scan, hi-lit, 13.04.17

Link to PDF with ACC’s ‘Business Plan’ for 2005-2006, with references to Dr Rankin as Manager of the ACC provider arm ‘Healthwise’, see pages 36, 37 and 39:
https://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=0ahUKEwi3-bXU583TAhWJHZQKHYW_BDwQFggzMAM&url=http%3A%2F%2Fwww.acc.co.nz%2FPRD_EXT_CSMP%2Fidcplg%3FIdcService%3DGET_FILE%26dID%3D5662%26dDocName%3DWCM2_020652%26allowInterrupt%3D1&usg=AFQjCNEWlrrJMh-nRbB8Bkof1K1SfKW1Tg

https://www.google.co.nz/?gws_rd=ssl#q=dr+david+rankin+msd+nz&start=20

Dr Rankin’s profile on the old ‘HISAC’ website (as on 26/07/2006):
http://www.hisac.govt.nz/moh.nsf/36329723e7a128c1cc2571bd000a7d16/2c0a957deaf288b6cc257378000792c1?OpenDocument
“David is a senior advisor with the Ministry of Social Development. He provides the Ministry with advice on working with health professionals and returning people to gainful employment.

David was formerly the General Manager – ACC Healthwise at the Accident Compensation Corporation, which he joined in 1998. David was CEO of Auckland Adventist Hospital from 1992 to 1997. Previous to that he was Director of Medical Services for Warburton Health Care Centre and Hospital in Victoria, Australia where he practised as a rural GP from 1985 to 1989. Dr Rankin holds a Masters in Health Administration and a Masters in Public Health. He gained his medical degree from the University of Otago in 1982.”

Dr Rankin’s profile as ‘speaker’ on the ‘Ko Awatea’ website (2017):
http://koawatea.co.nz/apac-forum/speakers-2017/david-rankin/

Dr Rankin’s profile on the RACMA website (2017):
http://www.racmacme.com.au/winter/speakers/dr-david-rankin/

Dr Rankin’s profile from the RACMA website, shown in a PDF with a scan copy of the same, 13 April 2017:
Dr David Rankin, Medibank, once MSD, ACC in N.Z., profile, RACMA, scan, 13.04.17

Here are some links to online web publications, in which references are made to Dr David Rankin, when he worked for MSD and WINZ:

Beneficiaries get priority health care, Stuff.co, 20 June 2007:
http://www.stuff.co.nz/national/health/55382/Beneficiaries-get-priority-health-care

Launch of the Health Practitioner’s Handbook, ‘beehive.govt.nz’ website, Darren Hughes, 10 July 2008:
https://www.beehive.govt.nz/speech/launch-health-practitioner039s-handbook
(‘Speech notes for Associate Minister for Social Development and Employment Darren Hughes – launch of the Health Practitioners Handbook, Horowhenua Health Centre, Levin’)

 

FURTHER SOURCES REVEALING THE TRUE AGENDA OF DR BRATT AND MSD

Here are links to another important post published on this blog, which shows how ‘Designated Doctors’ work and are used by MSD, when commissioned to examine, assess or re-assess sick and disabled on benefits for benefit entitlement and work capacity:

DESIGNATED DOCTORS – USED BY WORK AND INCOME, some also used by ACC: The truth about supposedly “independent” Designated Doctors:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/https://nzsocialjusticeblog2013.files.wordpress.com/2016/10/designated-doctors-used-by-winz-msd-the-truth-about-them-post-upd-18-10-2016.pdf

Here are links to two other relevant posts, which contain further interesting background information on all this:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/02/medical-and-work-capability-assessments-based-on-the-controversial-bio-psycho-social-model/
https://nzsocialjusticeblog2013.wordpress.com/2013/09/07/the-health-and-disability-panel-and-its-hand-picked-members/

 
 

E). MSD AND DR BRATT PRESENT MISLEADING ‘EVIDENCE’

Since the requester had made his information request for the salaries of Dr Bratt, Anne Hawker and Dr Rankin on 11 June 2013, much more other information has become available to him and some associates, and it can now be said with certainty, that MSD and particularly Dr David Bratt, have been responsible for some significant misinformation of both health professionals and the public. So called ‘evidence’ can be challenged and disputed, given the fact that there is insufficient conclusive evidence to support the many claims about the ‘health benefits of work’, about ‘return to work’ statistics and so forth. Some information has been misinterpreted and then misrepresented, some is outright false, and some simply does not even seem to exist, as MSD never provided its reports or other sources. Some other ‘evidence’ admittedly exists, but has been quoted out of context, and has been given undue weight, so that it does not support the bold and misleading claims made by Dr Bratt.

Just one example of this to have happened can be found by looking at the following publication on this blog, and also at info available on other relevant and quoted websites:

SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’
https://nzsocialjusticeblog2013.wordpress.com/2016/08/16/senior-scientist-and-legal-experts-discredit-evidence-used-by-msd-and-dr-bratt-when-claiming-the-health-benefits-of-work/

Here is the proof of a senior scientist challenging the ‘evidence’ used by Dr Bratt and MSD:
“Is the statement that if a person is off work for 70 days the chance of ever getting back to work is 35% justified?” NZMJ, 20 Nov. 2015:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729

Here is a must read post that reveals the extent of misinformation by MSD and Dr Bratt, based on OIA responses received, and the analysis of various reports and statistics presented:
THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
(Read chapters ‘C)’, ‘D)’ and ‘E)’ re the lack of evidence and flawed evidence used by MSD, and especially ‘F)’ about the Ombudsman’s actions – or rather missing action – in regards to Dr Bratt and his presentations, and his reported deletion of all emails to and from another external ‘Advisor’.)

The same post, downloadable in PDF form, which shows an updated version from 19 Sept. 2016:
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

Other also relevant information on the misuse of scientific information can be found here:
In the expectation of recovery, Faulkner, Centre for Welfare Reform, Scrib:

(criticism of wrong use of the biopsychosocial model, Aylward et al)

 
 

F). PUBLIC AND STATE SERVICE SALARY INFORMATION SOURCES – ALLOWING SOME LIMITED COMPARISONS

With the information made available by MSD, we can now look at some other salary information that has been made available, or that is available via a number of websites. But regrettably, in New Zealand, the availability of salary information for the public and state service is rather limited, often only showing what salaries and other income Chief Executive Officers (CEOs) are paid. There is no reliable information available on salaries for senior positions below CEO level.

Nevertheless, we can find some useful information to compare salaries, for instance to what ordinary ‘Case Managers’ working for MSD/Work and Income are paid, to what Members of Parliament (MPs) are paid, to what ‘Senior Legal Advisors’ and other professionals may be paid in the public service.

Here are some media reports on CEO salaries in the public sector:

Minister responds to claim of MSD salary hikes
“Social Development Minister Anne Tolley says spending on big salaries at the Ministry of Social Development may well be justified.”

Radio New Zealand, RNZ, 21 June 2015:
http://www.radionz.co.nz/news/political/276790/minister-responds-to-claim-of-msd-salary-hikes

Extract:
“Labour’s Social Development spokesperson Carmel Sepuloni said there were 53 ministry staff on annual salaries above $200,000 – more than twice the number five years ago. Ms Sepuloni said spending on leadership workshops had also climbed to almost $800,000 this year, compared with just over $137,000 last year.”

Revealed: The highest paid public servants,
Tracey Watkins, Fairfax, stuff.co, 26 Nov. 2015:
http://www.stuff.co.nz/business/74438020/Revealed-The-highest-paid-public-servants

 

Official reports:

MSD’s report to the Social Services Committee, with answers to pre-hearing questions, as part of their departmental annual review, 9 Dec. 2015 (downloadable PDF):

Social Services Committee, Annual Review of the Ministry of Social Development 2014/2015,
Wednesday 9 December 2015, Standard pre-hearing Questions 1-268
:
https://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=21&cad=rja&uact=8&ved=0ahUKEwiV_J-5177TAhUHxbwKHfapAEQ4FBAWCCAwAA&url=https%3A%2F%2Fwww.parliament.nz%2Fresource%2Fen-nz%2F51SCSS_EVI_00DBSCH_ANR_66294_1_A462815%2F9d15b5cae602527c04454dd27fa515ecb1e2f930&usg=AFQjCNGLV5QJPwqlSWqGUHSgsdtqtBXqOg

(See page 64 with a list of salary bands and how many persons received salaries within the bands).

The State Services Commission only really releases information on what Chief Executives of state service entities earn, and in a report only give a vague insight into salary bands, and how many persons earn corresponding salaries:
http://www.ssc.govt.nz/ssw-pay#pay
http://www.ssc.govt.nz/sites/all/files/statesector-workforce-key-facts-june15.pdf
http://www.ssc.govt.nz/hrc-survey-2016
http://www.ssc.govt.nz/public-service-workforce-data/hrc-remuneration

Of some interest may be salaries over $ 100,000:
http://www.ssc.govt.nz/public-service-workforce-data/hrc-remuneration#over100k

OIA release by the ‘Crown Law Office’, dated 23 March 2017, published via FYI website, listing salary ranges for ‘Chief Legal Counsel’ positions in government departments:
https://fyi.org.nz/request/5462/response/18116/attach/4/3954167%20Letter%20to%20Glenn%20McAllister%20OIA%2020170323.PDF.pdf

See table 2 for the Ministry of Social Development:
“19. Ministry of Social Development: $161,289 to $241,934”

Limited, available salary band information, available via the website PayScale, for MSD listed positions:
http://www.payscale.com/research/NZ/Employer=Ministry_of_Social_Development/Salary/by_Job

Policy Analysts get something like 58,219 to 90,753 NZDs, according to that.

Some more info, with slightly different numbers:
http://www.payscale.com/research/NZ/Employer=Ministry_of_Social_Development/Salary

Case Managers earn roughly between 42,000 and 62,000, to 69,000 maximum

When advertising jobs online, MSD appears to not always publish the salary that can be expected, especially for jobs of the higher paid order, see their website:
https://jobs.msd.govt.nz/MSD/

The website ‘jobs.govt.nz’ offers little more:
https://jobs.govt.nz/jobs/jncustomsearch.searchResults
https://jobs.govt.nz/

For another comparison, the ‘Parliamentary Salaries and Allowances Determination 2016’ does in Schedule 1 list the salaries for Members of Parliament, and ordinary MPs get about $160,024 per annum:
http://www.legislation.govt.nz/regulation/public/2016/0252/latest/whole.html
(see Schedule 1)

 
 

G). CONCLUSION

It can be said with some certainty, that the Principal Health Advisor Dr David Bratt, and also Principal Disability Advisor Anne Hawker, same as the former Senior (Health) Advisor Dr David Rankin, have received and are receiving comparatively high salaries, that puts them into the top categories of state servants’ incomes.

The still employed Dr Bratt and Anne Hawker must be expected to be earning well above what most Advisors in various government departments or agencies earn, and above what our ordinary MPs earn per year, and they belong to the top earners within MSD.

When considering what actual professional qualifications experience they have, and what they provide in work and services, the question must be put, are their salaries appropriate, and this must surely be asked when looking at Dr Bratt and his in our view questionable performance and conduct as the most senior internal health advisor at MSD.

Making unfounded claims about inconclusive findings on the ‘health benefits of work’, likening the dependence on benefit support to “drug addiction”, offering quotes without properly referencing them to any scientific reports that may back them up, and making comments to media, that are also not backed up by solid science, that disqualifies a person like Dr Bratt from working in the kind of role he holds. Yet he gets rewarded with a salary package that beats those of many other professionals who face much more public and expert scrutiny, given the different roles they may have, working for agencies or employers that are not as “protective” as MSD appear to be of Dr David Bratt.

There would not be many other developed countries, where such practices would be tolerated, but in New Zealand it appears to be more important what connections you have, who pays, supports and protects you, and what you are supposed to do for certain vested interest holding parties, than what your qualification, ethical standards and integrity should demand of you as a professional person.

What is also important to note is the fact that the Office of Ombudsmen appears to be either so under-resourced, or overburdened with their work-load, or perhaps even so poorly ‘motivated’ to resolve such complaints as the one described above. It is in our view close to scandalous, that a complainant has to wait nearly 4 years after an OIA request was made, for the sought information to be finally made available. That was of course the case only after the Ombudsman did eventually step in and asked MSD to provide at least some salary bands to give the requester and the wider public an idea of how highly paid these particular ‘Advisors’ are for the at times questionable work they are doing.

With such a state of affairs, such poor transparency, and lack of accountability, we have a situation in New Zealand that leaves very much to be desired, when it comes to holding senior Advisors and their employers in the state or public service accountable for their conduct and disregard for standards.

 
 

M. C.

 

Auckland, New Zealand – 30 April 2017

 
 

PLEASE FIND HERE A DOWN-LOADABLE PDF WITH THE COMPLETE TEXT OF THIS POST, WHICH SOME MAY FIND EASIER TO READ:
MSD Releases OIA Info On Health Advisor’s Salaries, Nearly 4 Years Late, Post, 30.04.17

 
 

ADDENDUM – 01 MAY 2017, MORE REASON TO BE CONCERNED:

 

‘NZ DOCTOR’ ARTICLE:

‘Registrar’s visit to south Auckland Work and Income an eye-opener’, by Fiona Thomas, from 1 March 2017:

Extract from article text:

“Writing a medical certificate is akin to writing a prescription for a drug with significant side effects, East Tamaki Healthcare GP trainer Tane Taylor told registrars on a visit to Work and Income Manurewa last month.

It was the fifth time GPEP1 registrars working at ETHC clinics had paid a visit to the centre, in a partnership set up to help them understand their role in the Work and Income process.”

“Present for the session was Ministry of Social Development principal health advisor David Bratt, along with health and disability coordinators and staff from the Manurewa centre.

Dr Bratt and Dr Taylor both emphasized to the registrars the importance of striking a balance between writing certificates and encouraging patients to return to work.”

“Dr Taylor says he would like to see a change in the culture of how medical certificates are treated, with greater encouragement to help people with their medical difficulties and encourage them back to work. It is not the role of GPs to assess whether there are enough jobs for people to go to, he says.”

Health and disability coordinator for the Ministry of Social Development Sandi Field told the registrars whether clients have a medical certificate or not does not affect the amount of allowance they receive. What differs is Work and Income’s expectations of them…”

“Dr Bratt says there has been interest in the workshop from other regions and he would like to see it offered elsewhere.”

Here is a link to ‘NZ Doctor’ magazine and to that article, if it should not load, try to search for the article by putting the title into your search engines search box:
https://www.nzdoctor.co.nz/in-print/2017/march-2017/1-march-2017/registrars%E2%80%99-visit-to-south-auckland-work-and-income-an-eye-opener.aspx

Here are links to two PDF files with two scan copies of the article, which we offer for independent private research and study purposes:
NZ Doctor, Registrar’s visit to south Auckland WINZ an eye-opener, F. Thomas, article, 01.03.17
NZ Doctor, Registrar’s visit to south Auckland WINZ an eye-opener, article, high-lit, 01.03.17

 

Author’s comments:

Here we go yet again, the attempts by MSD and Dr Bratt to influence medical and health practitioners, even during their training to become general practitioners (GPs), continues as per the agenda they follow. It may all appear to be rather subtle and even convincing to the participants, what is being communicated, but this kind of interference into the independent work of doctors is unacceptable and must be stopped!

Firstly there is again clear misinformation happening, as it clearly is not true that a medical certificate by a health practitioner has no effect on any allowances paid by Work and Income (WINZ). There is for instance a marked difference between the rates for the Supported Living Payment (SLP) benefit and the Jobseeker Support benefit (over $50 difference), just check their own website for the details:
https://www.workandincome.govt.nz/products/benefit-rates/benefit-rates-april-2017.html
https://www.workandincome.govt.nz/products/a-z-benefits/disability-allowance.html

A medical certificate will give details on work capacity and likely availability to work or training, and this will determine what kind of benefit will be paid. Also will it depend on such details in a certificate, what kind of medication or treatment a client of WINZ may need, which again influences or determines whether a person may be entitled to a Disability Allowance or other necessary support.

Hence the Health and Disability Coordinator quoted in that article is simply telling lies, and is intentionally misleading the registrars who were told the above, as such a Coordinator has been trained by MSD and is well informed about what entitlements there are.

The risks are being ignored – or taken too lightly, that persons with health conditions and disability, particularly those with complex health conditions, and hard to detect or understand mental health conditions, can suffer serious harm when being considered “fit for work”, while they are not.

Dr Tane Taylor was himself one of the appointees to a so-called ‘Health and Disability Panel’ that was set up by MSD and/or former Social Security Minister Paula Bennett in about 2011, for the purpose of consulting on health and disability matters as part of a lengthy process of changing the benefit system, and even substantially changing the Social Security Act 1964, which all came into effect in July 2013. He appears to have fully signed up to collaborate with MSD in these areas.

See this post on this blog, found via the following link, which mentioned already years ago, the involvement of Dr Tane Taylor with that Panel and with MSD:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/07/the-health-and-disability-panel-and-its-hand-picked-members/

Since then MSD and WINZ even made it harder for appellants when facing a so-called ‘Medical Appeal Board’ (MAB) hearing, as they changed that process of the hearing as well:
https://nzsocialjusticeblog2013.wordpress.com/2015/03/17/the-medical-appeal-board-how-msd-and-winz-have-secretely-changed-the-process-disadvantaging-beneficiaries/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16.pdf

Community Law New Zealand were informed of this years ago, but as they are themselves government funded, through the Ministry of Justice, they are also told to keep quiet.

This forum is the only one we are aware of that dares raise all these matters, which the mainstream media simply ignores, as their staff and editors rather “trust” the government officials.

 

M. C.

 

Auckland, New Zealand – 01 May 2015

 
 

ADDENDUM – 03 MAY 2017, FURTHER REPORT PROVING THAT THE ‘BIO PSYCHO SOCIAL MODEL’ (BPS) IS FLAWED:

 

‘BLAMING THE VICTIM’ REPORT, BY SHAKESPEARE ET AL:

A reader and follower of our blog has pointed out another report that is available online on the internet, and that can on some websites be down-loaded as a PDF file. It is another report that exposes the Aylward and Waddell version of the so-called ‘bio-psychosocial model’ (BPS) as being flawed and of no use to apply in the way they have proposed.

We do not wish to go too much into detail, you will need to read the report to understand the details, so here we do at least offer it:

‘Blaming the victim, all over again: Waddell and Aylward’s biopsychosocial (BPS) model of disability’
http://journals.sagepub.com/doi/pdf/10.1177/0261018316649120

Authors:
Tom Shakespeare, Nicholas Watson, Ola Abu Alghaib

By: SAGE Publishing – 2016

A PDF with the report is downloadable here:
https://ueaeprints.uea.ac.uk/58235/1/1351_Shakespeare.pdf

 

ABSTRACT

“The biopsychosocial (BPS) model of mental distress, originally conceived by the American psychiatrist George Engel in the 1970s and commonly used in psychiatry and psychology, has been adapted by Gordon Waddell and Mansell Aylward to form the theoretical basis for current UK Government thinking on disability. Most importantly, the Waddell and Aylward version of the BPS has played a key role as the Government has sought to reform spending on out-of-work disability benefits. This paper presents a critique of Waddell and Aylward’s model, examining its origins, its claims and the evidence it employs. We will argue that its potential for genuine inter-disciplinary cooperation and the holistic and humanistic benefits for disabled people as envisaged by Engel are not now, if they ever have been, fully realized. Any potential benefit it may have offered has been eclipsed by its role in Coalition/Conservative government social welfare policies that have blamed the victim and justified restriction of entitlements.”

Other links:
https://ueaeprints.uea.ac.uk/58235/

http://eprints.gla.ac.uk/120085/

http://forums.phoenixrising.me/index.php?threads/dns-%E2%80%98biopsychosocial%E2%80%99-basis-for-benefit-cuts-is-%E2%80%98cavalier-unevidenced-and-misleading%E2%80%99.45109/

 

Comment:

This report may even deserve a separate post for itself, so we will consider whether we will have the time to prepare and publish one on it.

 

1 Comment

THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION


THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION

 

Published: 05 September 2016

 

CONTENTS:

1. INTRODUCTION
2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE
3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014
4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE
5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014
6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE
7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015
8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION
9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL
10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015
11. CONCLUSION

 

1. INTRODUCTION

We have on ‘nzsocialjusticeblog2013’ previously presented a very comprehensive post that covered and revealed, how poorly the former Chief Ombudsman, Dame Beverley Wakem, handled and then decided on two earlier complaints against the Health and Disability Commissioner (HDC). The complaints presented to the Ombudsman’s Office had raised serious issues with the HDC’s assessments and decisions in relation to two complaints made to his Office. Questions were raised primarily re the Deputy HDC and her handling of complaints. There were indications that the HDC failed to meet natural justice standards, and also appeared to have a strong tendency to simply dismiss very valid complaints as not needing an investigation. Evidence was presented in documented and well worded form. Fairness, reasonableness and objectivity of the HDC’s actions were being questioned. The Ombudsman processed both complaints under one reference number (3xxxxx), only after a long delay, and the investigating officer who was handling the matters rather poorly, she appeared to be under extreme work-load pressure, and unable to properly, thoroughly and carefully examine and assess all the information that was of relevance.

The particular earlier post on this blog can be found by clicking this link:
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/
The title was:
‘THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME’

The complainant behind those complaints, who was over this period driven close to despair, decided to take the matter further. He had the impression that the Office of Ombudsmen was not particularly keen on acting as a “watchdog” also for the other Officers of Parliament, such as the HDC, although the Ombudsmen Act 1975 does give the Chief Ombudsman and her/his Deputy the powers to conduct investigations into decisions and other actions by those other Offices (see s 13(1) and Part 2 of Schedule 1). While the functions and scope of authority of the Ombudsmen are though limited by other provisions in the same Act, and while the Ombudsman has discretion to decide to take no action (see s 17), it was the view of the complainant that the Ombudsman’s investigating officer had failed to consider very important and relevant facts, proved by documents he had presented. It was completely incomprehensible to him, how the Chief Ombudsman, clearly acting upon advice by her investigator, could have come to the conclusions and decision she had made. It was even more difficult to understand how she would upon a request for a review of her decision then protect her staff by even refusing to look at the presented complaints and evidence again, thus failing to do her duty as an employer under section 11(2) and (3) of the Ombudsmen Act, to examine the conduct of her investigator. At times the complainant got the impression, that behind the scenes the Ombudsman was actually intentionally covering not only her own staff, but also the HDC and their staff, from any challenges directed at them.

To cut the story short, the complainant could only come to the conclusion that the Chief Ombudsman, and in particular her staff, failed in properly and effectively fulfilling their function, due to significant increases over the years in the over-burdening work load that the staff were unable to cope with. The complainant considered that this unacceptable situation, brought about by the government not setting enough finances aside to pay for the proper, effective operation of the Ombudsmen’s Office, led to poor quality outcomes in the assessments of complaints and decisions formed on them.

Thus he prepared a formal request to the Office of the Controller and Auditor General (OAG), which was headed by Lyn Provost, to ask for an inquiry into, and a special performance audit of, the Office of the Ombudsmen. It was his intention to bring to the attention of the Auditor General the problems he experienced with the handling of his own two complaints, and the information he had found and read about the under-funding and resulting difficulties at the Ombudsmen Office. There had been repeated media reports and also comments by the Chief Ombudsman herself, in the Annual Reports released by that Office, which made it more than clear, that their Office was unable to cope with an ever increasing work-load, while insufficient funding was limiting its staff’s ability to cope with this.

The complainant realised, that there was no chance to legally challenge the Ombudsman’s decisions on his filed complaints, except by perhaps seeking a judicial review through the High Court. But such a proceeding was beyond his financial and other means. The OAG could at least take a look at how the Ombudsmen and their staff operated, and whether all legal requirements and expected standards were being complied with. He wrote a request letter dated 28 August 2014, which he would send to the OAG in late August that year, and in the following we present the request and relevant details in this post.

 

2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE

So in the afternoon of 31 August 2014 the complainant presented his formal request, dated 28 August 2014, by way of sending 8 emails, with his attached letter and also a number of relevant evidence documents, to the Office of the Auditor General. Emails 4 to 8 had attached to them the earlier emails he had sent to the Office of Ombudsmen on 16 June 2014 – in relation to his earlier complaints filed there. The receipt of all of the correspondence and attachments was later confirmed by email at 11.22h on 01 September 2014, by Jxxx Hxxxxx, Inquiries Co-ordinator.

At 18.43h on 02 September 2014 the complainant then also sent to the Office of the Auditor General an email that had attached to it PDF files with the two original complaints that had been filed with the Ombudsmen against the HDC (C11HDCxxxxx and C12HDCxxxxx). As he received no confirmation for the receipt of that email, he requested this by email on 05 September 2014. At 09.18h on Monday, 08 September Jxxx Hxxxxx from the OAG responded by email, again confirming receipt of that further correspondence. The complainant did refrain from sending the comprehensive and numerous evidence documents that he had sent to the HDC and in part also to the Office of Ombudsmen, in relation to his earlier complaints, as he wanted to avoid inundating the OAG with information. He knew that the evidence was available from the HDC and Ombudsmen’s Offices, and that an inquiry and audit at the Ombudsman’s Office would give the OAG staff access to all relevant information anyway. In a brief email from 14.36h on 08 September 2014 the complainant thanked for the response and indicated that he would understand that the assessment and response to his requests would take some time.

 

Here is the authentic text of the whole request letter dated 28 August 2014, which the complainant sent to the OAG:

Re: Request for an inquiry into, and a special performance audit of, the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 18 and 16 of the Public Audit Act 2001)

Dear Lyn Provost, dear staff at the Office of the Auditor-General

[1] Please accept my request to your Office to conduct a special, independent and thorough, inquiry into the effectiveness and efficiencies, as well as into the compliance with statutory obligations and the applicable quality standards – of all operational, administrative and managerial activities at the Office of Ombudsmen. I ask you and your Office to fully investigate and audit all relevant aspects of the expected performance of staff and management, the applied procedures and processes at their Office, and also their full compliance with not only accepted standards, but also with the legal provisions of the Ombudsmen Act 1975, same as other relevant law. My request includes a detailed examination of how staff members at that Office cope with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they are instructed to follow. I make this request due to the following very serious concerns about the Office of Ombudsmen and their staff:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by investigating officer(s) during assessments of complaints, affecting quality and standards of service the Office is meant to provide
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept presented clear, compelling evidence
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● questions about the appropriate allocation of financial and human resources in areas of need within the Office, which have only been increased insufficiently
● apparent non-compliance with provisions of the Ombudsmen Act 1975 and other law

[2] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The present situation at the Office of Ombudsmen is extremely unsatisfactory, as complainants are being denied justice. The stated concerns are aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload has increased substantially and disproportionately to available resources over the years. This has become evident from the annual reports the Office of Ombudsmen has released, as well as from many media reports. Public trust in the performance and quality of service by the Office of Ombudsmen are at risk of being seriously damaged due to the above stated issues (see [1]).

Own disturbing experiences with Office of Ombudsmen’s complaints handling

[3] Following two separate complaints to the Office of Ombudsmen (filed under their reference number xxxxxx), which related to two disputed decisions by the Health and Disability Commissioner (HDC), and which I filed with the Office on 13 November and 16 December 2013, I recently received two responses from Chief Ombudsman Beverley Wakem, that raise major, serious concerns about the quality, effectiveness, efficiency and appropriateness of internally followed operational procedures and processes. Crucial relevant evidence appears to not have been considered during an assessment of my complaints, and again also not upon a review I sought. Already a couple of years ago I had received at least one earlier decision from the Chief Ombudsman in another matter, which showed, that staff at the Office do at times make mistakes and may fail to consider relevant information, which appears to be due to rushed decisions being made, while working under extremely high work load pressures. My concerns were substantially heightened by another letter I received from the Office on behalf of Ombudsman Ron Paterson in yet another, separate complaint matter (ref. 3xxxxx), which was dated xx May 2014. In that letter Mr Xxxxx Sxxxxxx (Manager – Investigations and Resolution) wrote: “Limited investigative resources to date have meant that this Office has been unable to progress your complaint as quickly as we would like”. It relates to an Official Information Act 1982 (OIA) request based complaint that has been before the Ombudsman for over a year now. That letter and substantial other information confirm my sincere, justified concerns that were also reported on by various media outlets since already 2012, in which Chief Ombudsman Beverley Waken herself stated repeatedly, that her Office was unable to cope with an increased work-load, while working with very limited funding.

Background

[4] Upon sending the Ombudsman two separate complaints about the unacceptable handling of two earlier complaints by the Health and Disability Commissioner (HDC) on 13 November 2013 and on 16 December 2013, I did for four to five months receive no proper response at all from the Office of Ombudsmen. The two rather complex complaints (one being about 2 XXXX counsellors, and another about Work and Income ‘designated doctor’ Dxxxx Xxxxxxx) had been handled by the HDC under their reference numbers C11HDCxxxxx and C12HDCxxxxx. A further email request for an update on my complaints, sent in on 23 February 2014 was also not responded to. Only after repeated phone calls to the Office of Ombudsmen on 22 and 28 April, and again on 26 May 2014, did I finally get assurances that my complaints had been received, and that they were now being progressed. Delayed by yet over another month after my first phone contacts in April, I eventually received a report and decision that had been formed and prepared by their investigating officer Xxxxx Gxxxxxx, but which was signed by Chief Ombudsman Beverley Wakem, and dated 28 May 2014.

[5] The decision from 28 May 2014, prepared by Miss Gxxxxxx, was to not investigate either of my two complaints. Some of her considerations in her assessment of my complaint were actually based on clear misunderstandings, and she even ignored very relevant evidence, that I had presented with my complaints. It appeared that Miss Gxxxxxx incorrectly thought I simply wanted to “appeal” the HDC’s decisions, and expected her to review and overturn these decisions, by making determinations about my treatment by the XXXX counsellors and Dr Xxxxxxx. In any case she firmly and fully relied on comments made by Deputy Health and Disability Commissioner Theo Baker and those by certain other staff members at the HDC Office. The Deputy HDC had herself fully relied on statements made by the Chief Executive of Waitemata DHB, and in the other HDC complaint matter also on Dr Dxxxx Xxxxxxx, which were though at least in part completely incorrect, irrelevant, flawed and unacceptable. It appears that Miss Gxxxxxx conducted her assessment of my complaints to the Ombudsmen Office only on paper, without considering all relevant evidence that had been provided by me.

[6] I was prompted to respond to the decision prepared by Miss Gxxxxx, and signed by Miss Wakem, by way of further written submissions, in which I expressed my objections to the way my complaints had been handled. By way of 3 emails, sent on 16 June 2014, I presented and explained my serious concerns. Also did I provide further detailed evidence, which proves that staff at the HDC Office had actually given untrue information to me and in the process also to Miss Gxxxxx. They had claimed that an original complaint I had made on 08 August 2011 (under HDC ref. C11HDCxxxx) couldn’t be processed, as my emails allegedly “froze” their computer system. Authentic emails and other evidence presented to the Office of Ombudsmen on 16 June proved that staff at the Office of the Health and Disability Commissioner had lied about the emails that I initially sent to them. I did also point out once again, that certain considerations by the HDC in the handling of my complaints were not at all relevant, and that other relevant information had not been considered by them. As Miss Gxxxx and Miss Wakem had earlier considered that the Deputy HDC had made the appropriate decision, I pointed out and explained to her, that she was wrong with her considerations. I must refer you to the contents in my letter to the Ombudsman from 16 June 2014, to read and assess all details.

[7] Despite of my stated objections and concerns, and despite of the further evidence provided by me, Chief Ombudsman Beverley Wakem again fully relied on Miss Gxxxxxx’s account of her earlier handling of my complaints, which she stated in a letter with her final decision, that was dated 10 July 2014. She strongly defended Miss Gxxxxxx’s supposedly appropriate considerations of the earlier evidence I supplied, and also her reasoning behind her decision. Miss Wakem simply reiterated earlier statements, that she saw no reasons to investigate my complaints. She also referred me back to the letter sent earlier, without giving any consideration to further new, very crucial and revealing information that I supplied on 16 June. That information proved that emails carrying my original complaint from 08 August 2011 had actually all been received, and had internally been passed on to another staff member for assessment at the HDC Office. I furthermore had made clear, that all emails sent to the HDC Office in that complaint matter were of ordinary, common types and sizes, and had standard size PDF attachments, which were easy to open by any normal system. Similar types and sized emails could strangely be opened by the HDC when receiving my second complaint.

[8] Given the very uncompromising position by Chief Ombudsman Beverley Wakem, where she stated in her last letter, that her Office would not enter into further communications regarding my complaints to the HDC, I am left in a situation where I have no way to raise any further concerns and considerations re the handling of my complaint by the Office of Ombudsmen. I have been given the signal that any further attempt by me, to seek to resolve the totally unsatisfactory situation with their Office, is unwelcome. The only remaining option would be to apply for a judicial review at the High Court. But I neither have the financial resources, nor the mental and physical strength, to pursue with such a proceeding. Indeed it seems unreasonable to me, to be forced to take legal steps. This has left me with an extremely unsatisfactory outcome, where I have been denied justice, which is causing me great distress.

[9] While I am aware that the Ombudsman can under section 17 (1) (b) of the Ombudsmen Act 1975 refuse to investigate a complaint, it is clear to me that in the case of my complaints the Ombudsman did not have regard to all the circumstances of the matter. Relevant evidence, and the impact of any decision, must be considered as important to have regards to, as part of all the circumstances. Apart from that, it is also my impression that the staff members at the Office of Ombudsmen are now expected to work under extremely high work-loads, performance, time and target pressures, which are unreasonable, and which are the result of constant reviews, cost saving measures, streamlining and restructuring. This has led to assessments and investigations not being done up to expected standards, to mistakes being made, to cases being left unattended for unacceptably long periods, to short-cuts apparently being used, and to cases being re-prioritised. It seems that staff members even have to resort to prematurely dismissing complaints as not being serious enough, to deserve being investigated. It also appears that the Chief Ombudsman has in this case not been honestly and correctly informed by her staff about crucial details of my complaints, and it must be presumed that this has happened, and continues to happen, to many other complainants.

[10] Given the very poor outcome of the handling of my complaints, the refusal by the Chief Ombudsman to review the decision made on 28 May, and having read various official and media reports about serious problems at the Office, I am very concerned about the situation at the Office of Ombudsmen. It is my impression that the financial and other resources available to the Office are not appropriately placed in the particular areas, where they are needed, in order to ensure that service quality and standards, same as necessary compliance with legal provisions in their service delivery aren’t compromised. While the Office of Ombudsmen appears to put many resources into various high priority areas, projects and cases it deals with, there are insufficient resources put into other areas that are also important. This has resulted in deterioration in the standard and quality of certain less prioritised services that the Office’s workforce is supposed to deliver under the Ombudsmen Act 1975 and other statutes. Unlike the Office of the Privacy Commissioner, the Office of Ombudsmen does not appear to seek regular, conclusive feedback from all complainants it deals with. The Privacy Commissioner does nowadays request complainants to at least respond to an online client satisfaction and feed-back survey. The Ombudsman has never asked me or many other complainants I am aware of, to provide comprehensive feedback or a survey on their services. In their ‘Statement of Intent 2014-2018’ (see page 13) the Ombudsmen state that they only conduct bi-annual surveys of stakeholders, and that is only for investigated complaints. According to that report, this survey was apparently only started in the year 2008/09 and repeated in 2011/12. This hardly provides enough data to establish the overall satisfaction of persons dealing with the Office of Ombudsmen, as complainants, enquirers or otherwise.

[11] Although Parliament has this year approved an increase of funding for the Office of Ombudsmen, it appears evident, that this funding is insufficient to meet the growing needs of the Office, to perform all its functions and deliver the various important services expected. Work load increases have continued to be disproportionately high, when compared to the limited resources available. Staff numbers (including the two Ombudsmen themselves) have remained virtually unchanged for many years. I am unconvinced that the moderate increase in funding of the Office has resolved the many internal issues and challenges, and brought the needed improvements that are necessary to enable the Office to operate effectively to fulfil its functions. In any case a review of the whole operational, administrative and managerial procedures and processes, and the quality of decision making at the Office of Ombudsmen is overdue. This must be preceded by a special, thorough, independent, external inquiry and a more comprehensive performance audit than usual. The regular yearly audits conducted so far focus on balance sheet type financial information, and on standard output data based on a narrow scope of performance indicators. There is little or no information made available about how various staff members working at the Office are coping with an ever increasing workload. There are though worrying signs in a table in the Annual Report of the Ombudsman for 2011/12, showing a significant increase in staff sick and family leave, which seems to indicate negative effects through excessive stress on workers’ health. As already mentioned, there is also very insufficient data on client or complainant satisfaction with the Office’s service. This all justifies a special inquiry and audit to be conducted by the Office of the Auditor General.

The Office of Ombudsmen and its statutory functions

[12] The Office of Ombudsmen does under the Ombudsmen Act 1975 and a number of other statutes fulfil the following functions, which are also listed on page 5, under ‘Nature and Scope of Functions’ in the ‘Statement of Intent 2014-2018’ (SOI):
● investigate state sector administration and decision making – under the Ombudsmen Act 1975 (OA);
● investigate and review decisions made on requests to access official information – under the Official Information Act 1982 (OIA) and the Local Government Official Information and Meetings Act 1987 (LGOIMA);
● deal with requests for advice and guidance about alleged serious wrongdoing – under the Protected Disclosures Act 2000;
● monitor and inspect places of detention for cruel and inhumane treatment – under the Crimes of Torture Act 1989;
● provide comment to the Ministry of Transport on applications for authorised access to personal information on the motor vehicle register – under section 249 of the Land Transport Act 1998.

[13] In the ‘Statement of Intent’ it also says:
In carrying out our functions, we provide Parliament and the New Zealand public with an independent and impartial check on the quality, fairness and integrity of state sector administrative conduct. By contributing to wider administrative improvement in the state sector, we can help to reduce overall downstream costs caused by poor decision making and ineffective administrative processes.” The SOI states two international responsibilities the Office has. It carries out its function to monitor and inspect places of detention under the Crimes of Torture Act 1989 as a “National Preventive Mechanism”. That Act fulfils New Zealand’s responsibilities under the “United Nations Optional Protocol to the Convention Against Torture”. The Office also performs an “Independent Monitoring Mechanism” while protecting and monitoring the implementation of the ‘United Nations Convention on the Rights of Persons with Disabilities’ (commonly known as the ‘Disabilities Convention’). The Office carries out this role by investigating administrative conduct within the state sector.

[14] Under ‘Other functions’ the SOI furthermore states:
“To complement and support our main functions under legislation, we are increasingly taking steps to:
● provide advice and guidance to state sector agencies in order to improve state sector capability in areas relevant to our role; and
● improve public awareness and accessibility of our services.”

[15] The Office is legally constrained to perform its functions and can only conduct investigations, reviews and inspections, and offer advice, guidance and recommendations. The Ombudsmen can only make comments on matters that come to their attention and present reports.
On page 7 of the Statement of Intent it says: “Given the constraints on our role, most of our interventions to improve state sector administrative conduct are carried out through persuasion and reporting, rather than compulsion. To do this effectively, we need to be relevant, fair and accessible. We need to provide well-reasoned and independent opinions, and our interventions need to be proportionate, taking into account the impact on the agency and the costs and benefits of any proposed remedies.” This is further qualified by comments under the heading ‘Strategic Direction’ in the SOI (see page 8), where the Ombudsmen concede: “Our strategic direction is:
guided by the legislative functions assigned to us by Parliament; and
informed by the current environment and the Government’s strategic direction.”

The Ombudsmen’s core functions under the Ombudsmen Act 1975

[16] According to section 10 under the Ombudsmen Act 1975 (the Act) the Ombudsman has taken an Oath as an Officer of Parliament, that he will faithfully and impartially perform the duties of his office, and that he will not, except in accordance with section 21, divulge any information received by him under this Act.”

[17] Under section 13 of the Act the functions of both Ombudsmen are stated as:
(1) Subject to section 14, it shall be a function of the Ombudsmen to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the departments or organisations named or specified in Parts 1 and 2 of Schedule 1, or by any committee (other than a committee of the whole) or subcommittee of any organisation named or specified in Part 3 of Schedule 1, or by any officer, employee, or member of any such department or organisation in his capacity as such officer, employee, or member.
(3) Each Ombudsman may make any such investigation either on a complaint made to an Ombudsman by any person or of his own motion; and where a complaint is made he may investigate any decision, recommendation, act, or omission to which the foregoing provisions of this section relate, notwithstanding that the complaint may not appear to relate to that decision, recommendation, act, or omission.”

[18] Section 17 of the Act allows the Ombudsman to refuse to investigate a complaint:
(1) An Ombudsman may—
(a) refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition the House of Representatives, to which it would have been reasonable for the complainant to resort; or

(b) refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.
(2) Without limiting the generality of the powers conferred on Ombudsmen by this Act, it is hereby declared that an Ombudsman may in his discretion decide not to investigate, or, as the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than 12 months before the complaint is received by the Ombudsman, or if in his opinion—
(a) the subject matter of the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in good faith; or
(c) the complainant has not a sufficient personal interest in the subject matter of the complaint.

(3) In any case where an Ombudsman decides not to investigate or make further investigation of a complaint he shall inform the complainant of that decision, and shall state his reasons therefor.”

The Ombudsman’s failures in appropriately processing my complaints

[19] In the handling of my complaint the Office of Ombudsmen staff and the Ombudsman failed to:

● Apply due professional care in performing their duties – when assessing and deciding upon my complaints, and thus acted carelessly or negligently due to work pressures;
● apply natural justice, by not fairly considering all relevant evidence, and by failing to reasonably take the necessary steps to properly assess and investigate my complaint;
● correctly adhere to and follow the provisions of the Ombudsmen Act 1975 (i.e. sections 10, 13 (1) and (3) and section 17 (1) (b));
● provide me justice, by unfairly deciding that my complaints did not require to be formally investigated, and by refusing to review their decision from 28 May 2014;
● treat two distinct complaints equally, by apparently giving complaint C12HDCxxxxx to the HDC even less attention to detail, than in the case of complaint C11HDCxxxxx;
● hold staff to account for mistakes and/or misrepresentations made in the assessment.

[20] As this request and complaint to your Office of the Auditor-General cannot be based on the rights or wrongs of judicially formed and made decisions made by the Ombudsman, I will refrain from delivering arguments and evidence to prove in detail the failures by the Office of Ombudsmen in that regard in this letter. Please examine and consider my letter and further evidence that I sent to the Office of Ombudsmen by emails on 16 June 2014, in order to establish the veracity and facts in that matter. You will also need to consider the initially sent emails and attached evidence to the Office of Omdusmen, to properly assess and consider all details in regards to those failures. I trust that the Office of Ombudsmen will make the file with all relevant correspondence and presented evidence available for your inquiry and audit. I would be happy to send you the complete original complaint information, if the Office does not have on record all relevant submissions (including correspondence and evidence documents).

[21] As for the Ombudsmen Office’s failings to apply due professional care in processing, assessing and investigating my complaints, my letter from 16 June to their Office does also partly cover this. It appears that Miss Xxxxx Gxxxxxx did not progress the complaints I made about the HDC for months, until I finally phoned her Office in late April 2004, having received no proper reply. The letter from the Ombudsman from 28 May (prepared by her) also indicates that she did not consider all the issues I raised in relation to my complaints to the HDC. She clearly failed to examine and assess all relevant evidence presented to her as an investigator. That led to her drawing the wrong conclusions, like claiming emails I sent to the HDC Office “froze” their system. In that matter she erred and relied on staff at the HDC Office having misrepresented the truth (i.e. lied). Presented emails should have convinced her of the opposite. Also did Miss Gxxxxxx follow the poor example of the HDC Office staff by not giving consideration to relevant evidence, and instead relied on summarised reports and statements by the respondents to my complaints to the HDC Office. She simply accepted the HDC’s statements and reasoning, without further examining facts. She ignored conflicts of interest by the respondents’ employer in the first complaint, and she relied on considerations in the second complaint, which were totally irrelevant, namely that my complaint about Dr Xxxxxxx was more appropriately dealt with by a Ministry of Social Development (MSD) appointed Medical Appeals Board, which though has no jurisdiction over issues I raised with the HDC. I refrain from elaborating on other valid arguments and aspects, as my letter from 16 June 2014 covers them in more detail. Unless there was intent by Miss Gxxxxxx to not bother following natural justice, in the least she failed to provide due professional care, or was negligent.

[22] In the case that Miss Gxxxxx intentionally ignored relevant evidence, and rather relied on irrelevant information, and where she did not consider what was important and necessary to consider, she certainly breached principles of natural justice. I will certainly not allege that Miss Beverley Wakem as Chief Ombudsman did intentionally ignore relevant evidence in the matter, like the crucial email evidence for emails sent to the HDC on 08 August 2011, but I must conclude that Miss Gxxxx did intentionally or unintentionally misinform Miss Wakem on some crucial information in relation to my complaints. This appears to have been the case with my letter from 16 June this year, which I suspect was again first read by Miss Gxxxxx, as there is no indication that it was processed and assessed by another investigator, nor by Miss Wakem. The text in the letter by Miss Wakem from 10 July 2014 implies that she did not even look at the new evidence I provided, and simply relied on Miss Gxxxx’s earlier assessment and decision. I must therefore assume that Miss Gxxxxx may have withheld the new evidence from Miss Wakem, in order to protect herself and her former, flawed decision in the complaint matters. This is a very serious matter and cannot be accepted conduct by any staff member working at the Office of Ombudsmen. Therefore I must conclude that this results in a breach of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975. In all certainty, the decision made by the Ombudsman does in the end deny me justice, as I have been given no option to further resolve the matters at issue in relation to the complaints to the HDC Office and now the Office of Ombudsmen. The letter dated 10 July 2014 and signed by Beverley Wakem makes this clear. The decision prepared by Miss Gxxxxx and signed by Miss Wakem from 28 May does also reveal how Miss Gxxxxx treated my second HDC complaint with less attention, as I make clear in my letter from 16 June. By defending Miss Gxxxxxx for her handling of my complaints, there is no indication that internal measures were taken by the Ombudsman to correct any failures by Office staff, due to errors, neglect or misconduct.

[23] Besides of the above summarised information, it will be more than evident from the further information I provide in this letter, that the ongoing reviews, reorganisation, restructuring and stream-lining of work procedures and processes at the Office of Ombudsmen must clearly have had negative effects, which have impacted on the quality of services being delivered by the staff of that Office. While the work-load at the Office has continued to increase substantially over recent years, the insufficient additional financial resources, and largely unchanged, available human and other resources, must logically result in a situation where complaints, enquiries and other work done by the Office’s staff could not be dealt with by applying the same level of scrutiny, care and attention as was being done in years earlier. Internal efficiency and performance improvements will have reached their limits, and by simply measuring increases in output numbers, nothing in regular audits will give sufficient and clear information on the actual quality of services delivered by the Office. Also will there be no conclusive information about how the staff are coping with increasing work-loads and targets.

Ombudsman Annual Reports reveal growing imbalance between workloads and available resources

Ombudsman Annual Report 2010/11

[24] The Ombudsman’s Annual Report for the year 2010/11 did actually register a moderate decrease in complaints and enquiries, compared to the year earlier, as it received 8,706 then. It was able to reduce a back-log while completing 9,077 complaints and enquiries. 6,163 complaints under the Ombudsmen Act (OA) and 992 Official Information Act (OIA) complaints (the highest since 2000/01) had been received. Furthermore 256 LGOIMA complaints had been received. 617 OA cases were resolved informally, and 302 OIA and LGOIMA cases were resolved informally. The Office formally investigated 570 OA cases and formally investigated 713 OIA and LGOIMA cases. The Office had close to 1,000 OA complaint cases outstanding to deal with from the year before. This was besides of much of the other work the Office did. Since 2010 the Office of Ombudsmen has also taken on new work loads by taking over responsibilities like the maintenance, monitoring and dealing with complaints in regards to the implementation of the ‘UN Convention on the Right of Persons with Disabilities’.

[25] In the Introduction of the Annual Report 2010/11 Beverley Wakem mentioned a “spike in the number of complaints received over the past two years”. She also mentions a consolidation of efforts by her Office to improve work practices, in order to improve services. She furthermore states: “The substantive cases on hand, and the work on some of the longstanding and apparently intractable matters continues to stretch our investigators.” She continues: “We have engaged a small number of highly experienced former and retired staff to assist with the very complex cases, but that is not financially sustainable over the medium term given current constraints on our budget. Like other agencies we also face high and increasing charges for what one might call the basic housekeeping costs. Unlike other agencies we are reliant on temporary funding to meet these costs and have been for several years. Our budget has no capacity to absorb these without the temporary funding.” On page 12 under ‘Operational developments’ the Chief Ombudsman states: “This year’s numbers have provided some respite, with a total of 8,706 complaints and enquiries received. However, in the absence of any significant resource increase, it has been necessary to try and identify operational improvements in order to seek to manage the greater workload.”

[26] On page 59 of the same Annual Report 2010/11 it says under ‘Organisational Health and Capability’: “The Office of the Ombudsmen has always operated within an environment of fiscal restraint.” It also says: “The Vote, always minimalist, is now so restricted that potential temporary savings arising from staff vacancies must be relied upon to pay some staff and fund core operating expenses such as electricity.” Furthermore the report states: “We appreciate the support of the Officers of Parliament Committee in securing some temporary financial assistance through to 30 June 2014 but we continue to be concerned that the assistance is of a temporary nature and is less than required.” On page 60 of the same report and under the sub-heading ‘Financial and asset management’, it says: “Vote Ombudsmen is presently reliant on temporary funding and ad hoc one-off savings to fund core expenses such as rent, power, communications and some staff positions. Even in the current economic climate that is not a proper way to fund the Office and risks jeopardising its independence. The current arrangement undermines the ability of the Office to apply resources to best advantage and restricts its ability to achieve the desired outcome for the Vote.

Ombudsman Annual Report 2011/12

[27] The Ombudsman’s report 2011/12 states (see page 5) that during the year it covers the Office received 10,636 complaints and other contacts, an increase of 22% on the year before. 8,950 of those were complaints and other contacts under the OA, and 1,236 were complaints under the OIA (25% up on year before), and 268 were complaints under the LGOIMA. The Office completed 8,784 OA complaints and other contacts, an increase of 19 per cent from the previous year. The Office formally investigated 452 OA cases, and formed final opinions in 221 OA cases. The Office investigated 797 cases, and formed final opinions in 362 cases, in relation to OIA and LGOIMA complaints. The Office of Ombudsmen finished the year with 1,746 complaints and other contacts on hand, up from 1,359 the previous year. This was work it did besides of its other areas of responsibility. The Office struggled to meet some timeliness targets, given the volume of work on hand, and only 55 percent of complainants were satisfied with the Office’s service.

[28] In the Introduction to the 2011/12 report Beverley Wakem and Dr David McGee state: “In many ways, 2011/12 was a watershed year for us. We received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed a significant increase in official information complaints and complaints relating to the Earthquake Commission.“ “We also finalised a major review of our purpose and strategic direction, establishing a strong outcomes framework to direct and focus our work towards the outcomes and impacts we are seeking to achieve. The results of this work can be seen in our 2012/15 Statement of Intent.” Furthermore the Ombudsmen wrote: “In 2011/12, we completed our second survey of the complainants and agencies that we interact with, enabling us for the first time to compare feedback over time on the service we provide.”

[29] On page 9 of the report it says: “We also continued work on a major consolidation of our human resources policies and procedures, and progressive implementation of a revised performance review and professional development system for staff.” Also do the Ombudsmen state: “We have improved our data collection this year. We treat matters as formal “complaints” once they have been put in writing. However, we also deal with a large number of oral complaints and enquiries from members of the public, mainly over the telephone or by prison visit, prior to a complaint being made to us in writing. While we term these matters “other contacts”, our staff spend a significant amount of time providing advice and assistance, and resolving these matters.” On Page 10 the report says: However, we are still significantly under resourced. Whilst we have managed to increase our throughput to deal with the increasing number of complaints and other contacts we are receiving, we are struggling to meet some of our timeliness targets and there has been an impact in terms of the work we have on hand at any one time.” The current work pressure we are facing has led to a declining satisfaction with our service in survey results.

[30] Under the heading ‘Organisational health and ability’ the 2011/12 report states at the top of page 70: “In our annual report last year we commented that the Office was underfunded on an ongoing basis by approximately 12 per cent or $1 million per year. The publishing of our 2010/11 annual report in September 2011 was too late in the budget setting cycle for Parliament to address our funding concerns for the 2011/12 year. In the event we completed the year with a surplus of $100,476, of which $100,000 was a partial insurance recovery post the February 2011 Canterbury earthquake.” “Subsequently, Parliament has approved a budget increase of $300,000 for 2012/13 and the ongoing provision of $370,000 that had previously been provided on a temporary basis. Together these sums go some distance towards alleviating our immediate concern about being able to pay the bills, but while appreciated, the sum is not sufficient to enable recruitment of the additional staff required to address our burgeoning workload or secure the ongoing longer term financial sustainability of Vote Ombudsmen.”

[31] On page 74 of the Annual Report 2011/12 a table shows the numbers of total sick and family leave days that staff at the Office of Ombudsmen have taken over the years 2007 to 2012, and it reveals a very worrying trend. There has been a steady increase from year to year from 204 in 2007 to 471 in 2012. It increased from an average of 3.93 days per employee to 6.73 in 2011/12. The chapter below mentions “increased absence through illness and potentially work related stress”. There is no such table in the report for the following year 2012/13. On page 77 of the 2011/12 report I read with great concern: “The Ombudsman must be seen by Parliament, the public and agencies to provide relevant, timely and appropriate responses to complaints, and to conduct effective inspections and investigations of significant and systemic issues. There is a potential risk that we may be seen as too remote from every day realities, leading to inappropriate or irrelevant responses and guidance.

Ombudsman Annual Report 2012/13

[32] The Annual Report of the Ombudsman for 2012/13 states the following: “The Office received a total of 13,684 complaints and other work for that year, which represents a large increase of 29 % on the year before. Of these the Office completed 13,358 complaints and other work, an increase of 30% 2011/12 numbers. It finished the year with 2,072 complaints and other work on hand, up from 1,746 the previous year. The Office struggled again to meet some timeliness targets, given the volume of work on hand. Of that total 11,008 OA complaints and other contacts were received, and 2,374 OIA complaints (up 92 % on 2011/12), as well as 271 LGOIMA complaints. It registered a significant increase in delay complaints. 2,878 OA complaints were completed that year, an increase of 21% from the previous year, and 2,158 OIA and LGOIMA cases were completed, an increase of 67% from 2011/12. The Office formally investigated 379 OA cases, and formed final opinions in 174 cases. It investigated 637 OIA and LGOIMA cases, and formed final opinions in 337 cases. This is again besides of other important work the Office of Ombudsmen performed that year.

[33] In their Introduction to the 2012/13 Annual Report Dame Beverley Wakem and newly appointed Ombudsman Prof. Ron Paterson stated (page 10): “This year, we celebrated the 50th anniversary of the Ombudsman in New Zealand. We also observed the 30th anniversary of the Official Information Act 1982, and the 25th anniversary of the Local Government Official Information and Meetings Act 1987. Our anniversary year has been a period of growth and consolidation.” Under the heading ‘Growing workload’ they also wrote: “Our services are clearly in demand. For the second year in a row, we received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed significant increases in both official information complaints (92%), and complaints and other contacts relating to the Earthquake Commission (89%).” “We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction, which was established in the previous reporting year. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case.”

[34] On page 11 of the same report they continue with the comments: “In particular, we have completed the establishment of new workflow structures intended to allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.” Furthermore they state: “However, the large increase in work has affected the timeliness of our interventions. Our performance this year has not met our expectations for the timeframes within which some types of work should be completed.” “Parliament has taken steps to begin to address the growing pressures on our Office. During the reporting year, we were able to secure an increase in overall funding for the 2013/14 year onwards, which will enable us to appoint additional investigating staff to progress the growing number of complaints on hand at any one time.” With scepticism I then read the Ombudsmen’s rather ironic comments on page 12: “Following the review of our strategic direction, we also continued work to reposition the Ombudsman as a “modern, independent New Zealand authority, that is agile, proactive and approachable”. This is regrettably not the experience I have recently had with the Office.

[35] On the “outcomes” of Ombudsmen Act (OA) 2,745 complaints (after deducting 8,263 “other contacts” from total cases) the following data is made available (see pages 24 to 28):
985 cases (36% of total completed) required only an explanation, advice or assistance to complainants to address their concerns. In 612 of those cases (22%) the Office simply advised complainants to take their concern to the relevant state sector agency. In 165 cases (6%) the Office declined complaints as there were supposedly other remedies available. 373 complaints were considered to not be within the jurisdiction of the Office. 216 complaints (8 % of cases) were “resolved” by the Office, 127 before an investigation and 89 during an investigation. In 379 cases (14%) formal investigations were commenced, and “final opinions” were formed in 174 cases. On page 28 the Ombudsmen reveal: “In only 44 cases (25% of all those formally investigated), did we identify administrative deficiency by the state sector agency that was the subject of complaint. We made formal recommendations in 4 cases. All recommendations were accepted.”

[36] On page 39 of the 2012/13 report the Ombudsmen state that they received 2,374 OIA complaints, 92 per cent up from the year before, and the highest number ever. The 271 LGOIMA complaints were more in line with historic figures. 1,012 OIA complaints were from one complainant, concerning delays in responses from school Boards of Trustees. But even without that increase, the remaining 1,361 complaints were up 26 % on 2011/12. The Office finished the year with 1,129 OIA complaints and 162 LGOIMA complaints on hand. On page 42 the Ombudsmen inform on the “outcomes”: “Traditionally, we have formally investigated most official information complaints. However, this year 926 complaints were resolved without formal investigation.” “We commenced formal investigations in 30% of all completed official information cases (637 out of 2,158). We managed to resolve 152 of these without needing to form a final opinion. We formed final opinions in 337 official information cases. In 167 of these cases29 we identified an administrative deficiency by the agency concerned in its official information decision making.” On pages 55 to 57 the Ombudsmen describe their Offices work in relation to their new responsibilities and work under the UN Convention on the Rights of Persons with Disabilities.

[37] Under the heading “Organisational health and capability” the report states on page 66 (‘Overview’): “Our work in 2012/13 was informed by a further refinement of our Statement of Intent for 2012/15, following the major review of our overall strategic direction and performance measures which we undertook for the 2011/12 reporting year. We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case. In particular, we have completed the establishment of new workflow structures that allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.
We have also reviewed the strategic services provided by our staff who guide and support our investigators and inspectors in their work, to ensure we have an overall structure in our Office that is efficient and allows us to effectively implement our new strategic direction.”

[38] Further down on page 66 the Ombudsmen state somewhat familiar information: “A number of factors contributed to our receiving this year the highest ever number of complaints and other contacts since the role of the Ombudsman was established. These factors include the current social and economic climate, the disruptions caused by the Canterbury earthquakes, and the increased levels of recourse by members of the public to the official information legislation. We believe the level of work now being received will not diminish significantly even when the economy has strengthened and there is less demand for public sector services. The increase in work is broadly based across many agencies and deals with many diverse issues. While we have achieved a 30% increase in our overall work completed this year, we are still not keeping pace with demand and the timeliness of our interventions is suffering. In addition, we consider our Office has been underfunded on an ongoing basis.”

[39] Under ‘Managing performance and capability development’ the report states on page 68: “This year we continued implementation of our continuous practice improvement initiative, which improves how we assess, allocate and process our work. Together with the use of more meaningful Office performance measures, this is proving very helpful in managing our work flow. We are already seeing the benefit of new and more useful information being available, which helps us to better understand our business and manage the pressures we face. An annual review of staff performance is undertaken for each financial year, and we have begun to trial a new performance review and professional development planning process. Further improvements to managing staff performance are anticipated during the 2013/14 year. These will include a particular focus on completing the development of key performance indicators at individual and team levels that reflect our overall Office performance measures.” While this may sound aspirational and “positive”, NO survey data is given in a ‘Performance Measures’ table on page 77 of the report, on complainants’ and state sector agencies’ satisfaction with the performance of the Office of Ombudsmen. Surveys are apparently conducted bi-annually, but I have not noticed that such are very detailed and comprehensive, or include all complainants. The tables show that most “proactive measures data” for the completion (%) rates for complaints are missing their budget standard targets, some significantly (see pages 76 to 77). Also does the Annual Report 2012/13 show no table with total staff sick and family leave, which was included in the earlier report(s). Page 68 only shows a table with “staff numbers and demographics”.

[40] The more recent ‘Statement of Intent 2014-2018’ by the Ombudsman already appears to contain data from a new stakeholder survey on page 13, where a table is showing the anticipated “success” in providing outputs A and B for 2013/14 and the ACTUAL rate for this. The target for 2013/14 was set at 55%, but the actual figure achieved is only 49% of complainants being satisfied with the overall quality of their service delivery. This indicates that the service quality of the Office has actually worsened even more since an earlier survey two years before that. The high actual satisfaction rate for the state sector agencies with the communication with the Office of Ombudsmen at 94 percent must be rather worrying, as this means, fewer complainants appear to be successful with complaints, which leaves the agencies “off the hook”, so to say. This is confirmed by the higher than expected satisfaction rate for state agencies for the Office’s decisions (2% above target).

Other reports describing the problems at the Office of Ombudsmen

‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman’

[41] The document ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’ also reveals how the Office of Ombudsmen is unable to keep up with growing numbers of complaints and other responsibilities. On page 214 in that document it says: “The Chief Ombudsman is of the view that since about 2009, the Ombudsmen have been seriously under-resourced and a substantial backlog of complaints is awaiting investigation. In addition, they have not been in a position to compete in the market for staff, and staff salaries are about 14 per cent below market rate. Staff turnover is low, but increased from 6 per cent in 2010 to 14 per cent in 2011.” It also states: “From 2008/09 to 2011/12, the number of complaints on hand at any one time increased from about 1,000 to about 1,700, a 59 per cent increase. In contrast, the Ombudsmen’s annual appropriation from Parliament increased only 6.3 per cent, from NZ$8.33 million to NZ$8.86 million over the same period. At 31 December 2012, 465 requests for assistance had not been allocated to a case officer. 727 In 2011/2, only 53 per cent of complainants considered the ombudsman process to be timely and overall satisfaction with their standard of service has dropped, from 66 per cent in 2008/09 to 55 per cent in 2011/12. 728”

[42] On page 215 of that document it also says: Senior lawyers say that although the Ombudsmen’s investigations are thorough and fair, they are no longer referring clients to the Ombudsmen if there is an alternative. 729 The process takes too long and irreparable damage may be done to their clients’ interests before the investigation can be completed.” It furthermore says: “The Ombudsmen sometimes have insufficient resources to perform new functions allocated to them, or at least to perform them to an acceptably high standard.731” While that report prepared by two lawyers does generally present a positive image of the performance, independence and integrity of the Ombudsmen, major concerns remain about future performance quality and standards, especially since case loads are bound to increase, while the Office’s resources remain below of what is needed to deliver services.

[43] Of legal interest, in regards to the Ombudsman’s independence, integrity and authority, the following may be worth noting, while not serving to alleviate my stated concerns: “In general, the courts support the independence of the Ombudsmen. In one of the few cases where an Ombudsman’s decision has been before a court, the judge said, “Parliament delegated to the Chief Ombudsman tasks, which at times are complex and even agonising, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the Chief Ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another.745 (see page 217 of that document).

‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’

[44] The document SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’, which can be downloaded from the website of the New Zealand Parliament, reveals that the Office of Ombudsmen expects continued growth in the number of complaints, and other work they do. In question 65 the Ombudsman was asked about how many OIA requests it received. The answer to that question was that the Office is not subject to OIA requests about itself, but figures were given re OIA related complaints it handled over recent years (up to 30 June 2013), and what it projected for the following year 2013/14. For 2013/14 it is estimated that OIA complaints will be about 1326 for the year ending 30 June 2014, which is only a reduction on the year earlier due to the 2012/13 year having had an unusual increase of 92% on the year earlier, which was by one complainant having presented a very large number of new complaints. But based on 2008/09 the estimated number would represent an increase of 161%, while these kinds of complaints, same as OA complaints have generally increased steadily over the years. In any case, also other reports indicate that it must be expected that the workload of the Office will inevitably continue to increase, based on historic trends.

Office of the Ombudsman – Statement of Intent 2014-2018

[45] The ‘Statement of Intent 2014-2018’ (SOI) published by the Office of Ombudsmen does not appear to provide for an increase in complaints to assess, process and resolve, as for instance a table on ‘Operating Intentions’ on page 12 shows. Despite of the substantial historic increases in complaints and other contacts for 2011/12 and 2012/13 (8,784 and 11,161 correspondingly), the “Budget Standard” and “Estimated Actual” figures for 2013/14 show lower figures, being together 9,500 and 7,900 correspondingly (see “demand driven measures”). For unclear reasons for the following 4 years the “Budget Standard” figures total only 8,000 for both categories (being 2,500 for complaints – and 5,500 for other contacts completed). This is very concerning, as the Office may either be contemplating a new piling up of not progressed, unresolved complaints, or the Ombudsmen are intending to apply a more stringent criteria for accepting complaints to be dealt with and investigated, which could mean dismissing more complaints as being outside of the Ombudsmen’s jurisdiction, or by passing complainants on to other authorities, or by not accepting complaints at all, for whatever other reasons. Given past, steady increases on the demand side, the figures stated make no sense, as they also contradict other previous statistics and projections by the Ombudsmen.

[46] As already mentioned further above (see also at the bottom under ‘Annual Report 2012/13’ and the ‘New Zealand National Integrity System Assessment 2013’), the Office of Ombudsmen is expecting a lower satisfaction rate for the quality of services provided to complainants, as the table on page 13 of the Statement of Intent shows! The targeted 55 % satisfaction rate for 2013/14, which was the same as for the year before, is contrasted by the actual figure of only 49 %! Targets for the two following years have also been set low at only 55 %, which indicates that the Office does not anticipate or expect better quality in service delivery outcomes. State sector agencies’ satisfaction rates are though set within conventional ranges, higher than the complainants’ ones. It is of significance that the surveys the Office conducts only every two years (since only about 2 years ago) are only prepared and done “in house”, and may therefore lack sufficient independent scrutiny.

[47] The ‘Operating Intentions’ data and table on page 16 of the ‘Statement of Intent’ does also not show much real projected improvement in the processing of OIA request related complaints. “Budget Standard” targets remain steady for the coming years, but for 2013/14 the “Estimated Actual” number of complaints completed sits at now 1,600, twice the “Budget Standard” for that year. The other data and information in the SOI does basically tell me that the Office will continue to struggle, and make little real progress in improving service delivery, despite of the aspirational statements and ambitious goals for improved performance and service delivery.

[48] Re human resources planning, the Statement of Intent says under ‘People’ (see page 31):
“We aim to recruit and retain quality staff who adhere to high standards of professional conduct. We also aim to enhance the capability of our staff so that everyone can aspire to higher levels of performance. Measures to attract, develop and retain staff include:
• providing fair and consistent terms and conditions of employment;
• providing learning and professional development opportunities to enhance capability and performance; and
• providing opportunities for participation in health and wellness programmes that support the general wellbeing of staff.

[49] The specific projects we are undertaking in this area include:
• progressive implementation of a revised performance review and professional development planning system, including the introduction of key performance indicators for staff linked to our outputs and output performance measures;
• progressive implementation of our training and development strategy, which provides for targeted core training and professional development for all staff;
• completing the roll out of consolidated human resource policies and procedures; and
• continuing regular internal surveys to gauge staff satisfaction and identify areas for improvement.”

[50] The Statement of Intent 2014-2018 may sound as if the Office of Ombudsmen has room to improve efficiencies through further internal reviews and system changes, to achieve higher performance and output targets. There is talk of more personal development, training and measurement of staff performance indicators, and of recruiting and retaining quality staff. But like with any organisation, it is clear that there will be human and other resource limits that will constrain what can be achieved by frontline investigating and other staff, unless further financial resources are made available to meet ever increasing demands in the form of growing numbers of complaints, enquiries and other requests to the Office. It appears that the Office’s staff continue to be employed under individual employment contracts, which will most likely discourage any staff member raising any grievances about working conditions, which would be easier to do if the staff were collectively represented and had a collective agreement.

Media reports showing very large increases in complaints and funding issues

[51] Since at least 2012 there have been many news media reports about a crisis at the Office of Ombudsmen. For instance did the ‘New Zealand Herald’ report on 15 February 2012 that the Office of the Ombudsman is in “crisis”, with a bulging backlog of cases due to lack of investigators and existing staff underpaid and in some cases being worked to death, Ombudsman Beverley Wakem says.” It was stated that the office had about 300 cases it was unable to work on, because of a lack of available investigators. Figures given indicated that the case load per investigator had about doubled. The article also revealed: “Ms Wakem said she had asked for the office’s baseline budget to be increased from its current level of $ 8.6 million by about $1 million, which would allow it to meet its operating costs and employ two more investigators.”

[52]Scoop’ reported on 27 September 2012 “Ombudsman’s Office Workload Doubles”, and “The Office ended the 2011/2012 year with 10,636 complaints and other contacts received, up 22% on the previous year. Cases on hand at any time have grown from an average of 800 to over 1700.” Mention was made of the Office working “vigorously” and on “streamlining” its processes to cope with the workload. “However, Dame Beverley says there is an increasing demand for the Ombudsmen’s help”. “There is significant pressure on staff and regretfully we are missing targets for timeliness in responding to some people asking for help.”

[53] On 13 September 2013 the ‘Auckland District Law Society’ (ADLS) reported on their website under the title “Chief Ombudsman discusses challenge and change”, how Beverley Wakem saw the challenges her Office faces. Matthew Lark wrote: “The annual reports and statements of intent produced by the Office of the Ombudsman over Dame Beverley’s time make heavy reading. A marked increase in Ombudsmen Act and Official Information Act complaints is a worrying trend for an office which has long been under-resourced.” “We’ve gone from something like seven and a half thousand complaints a year when I first started, to nearly 14 thousand complaints this year, “ Dame Beverley remarks. “If you take out the earthquake and prisons, the underlying trajectory is still rising.” “We’re trying to triage a great many more of the minor complaints early without the necessity to formally notify them with the agency being complained about,” she says. “What this means is about 900 of those are being dealt with on this basis any month. What it leaves you with are the more complex cases.”

[54] In the same article the author writes that the Vote Ombudsmen is receiving a boost in 2013-14, and that Dame Beverly expected to recruit six new investigators in the coming year. The article continues:”Dame Beverley wants to see new investigators helping with some additional functions which her office has taken on during her term. These include investigating complaints about the government’s adherence to the UN Convention on the Rights of Persons with Disabilities.” “Her overall aim is to get her complaints backlog down”. “The case load which individual investigators have been carrying in this office has been inhumane by any international standard, that media article further revealed.

[55] On 15 October 2013Scoop’ reported (upon a press release from the Office of Ombudsmen): “Highest ever number of complaints for Ombudsman”. “In its annual report to Parliament for the year ending 30 June 2013, the Office says it received and completed the highest ever number of complaints and other contacts about state sector agencies.” “Chief Ombudsman Dame Beverley Wakem says the Office completed more than 13,000 pieces of work and provided advice and assistance in over four thousand cases. Just over 1, 000 complaints were investigated.” “Dame Beverley says despite the rise in volume, the Office has worked effectively. Changes have been made in the way the Office works to address the workload and it achieved a 30 percent increase in overall work completed despite a 29 percent increase in work coming in.” That article stated in more detail, the Office received 13,684 complaints and other contacts. It continued with: “The Office says that official information complaints increased overall by 92 % this year. There was a significant increase in delay complaints, continuing a worrying trend from the previous year.”

[56] On 15 May 2014 the ‘New Zealand Herald’ reported under the headline “Budget 2014: Funding crucial as busy watchdogs feel the strain”, that the Office of Ombudsmen received “a small increase in funding in the last Budget which helped it keep up with a record number of complaints about state sector agencies, including a near doubling in Official Information Act and Earthquake Commission complaints”. It also quoted Dame Beverley as saying: “However the large increase in work has affected the timeliness of our interventions”.

[57] The Herald reporter Adam Bennett continues in that article with: “The Ombudsman and Auditor-General make their case for more funding to the officers of Parliament committee and if it is persuaded the Government usually implements it. The committee released its recommendations for funding of organisations in March.” “The Office of the Ombudsman’s baseline budget goes from $9.9 million to 10.3 million in 2014-15, rising to $10.46 million thereafter.” “With last year’s increase the office’s budget will have expanded in two years to a figure approaching that sought by Dame Beverley two years ago.”

[58] Summary of performance challenges and issues at the Office of Ombudsmen

1. Staff at the Ombudsmen’s Office appear to be unable to maintain the needed standard of professional care and diligence, due to ever increasing case work-loads and performance target expectations (see paragraphs [3] to [11], [19] to [23], [26], [29], [38], [41], [42], etc.);
2. staff are put into situations where adherence to statutory obligations, mandatory standards and to natural justice can be compromised (see [19] to [23], [26], [29], [41], [42], [54] etc.);
3. complaint case loads on hand increased from 2008/09 to 2011/12 by 59 percent, while Parliament’s appropriation increased by only 6.3 percent (see [41], [55] etc.);
4. staff turnover figures increased from 6 percent in 2010 to 14 percent in 2011 (see [41]);
5. sick and family leave days taken by staff increased from 204 hours per annum for 2007 to 471 in 2012, while staff numbers have largely remained unchanged (see [31] etc.);
6. complainants’ overall satisfaction with the Office’s standard of service has dropped from 66 percent in 2008/09 to 55 percent in 2011/12, and now apparently only 49 per cent for 2013/14 (see [27], [29], [40], [41] and [46]);
7. surveys of complainant’s and stakeholders’ satisfaction have only been conducted bi-annually and on selected investigated cases, and are therefore not sufficiently comprehensive, representative and conclusive (see [28], [39], [40], [41], etc.);
8. existing audit data is primarily gathered for balance sheet purposes and includes only certain key performance indicators, which does say too little about staff competence, satisfaction and quality of services delivered (see audit data provided in annual reports).

Requested actions to be taken by the Office of the Auditor General

[59] I fully understand that the Office of the Auditor-General will only conduct certain inquiries and performance audits at its own discretion. But as it appears from the above information, that there are potentially hundreds of complainants and enquirers affected by poor outcomes due to the mentioned problems that exist at the Office of Ombudsmen, I consider that in this case a special, independent, thorough inquiry and audit of that Office is more than warranted. A special inquiry and audit is sought under sections 18 (1) and 16 (1) (a), (b) and (d) of the Public Audit Act 2001. It needs to take a closer look at the Office of Ombudsmen than the regular annual audits by Audit New Zealand do. These have largely been gathering and presenting balance sheet type financial data, and only limited other performance data.

[60] A special inquiry and audit should have a stronger focus on the effects an ever growing case- and work-load has had, and on the impact that the implemented internal reviews, stream-lining, reorganising and restructuring have had, on staff working at the Office. A closer look deserves to be taken at the usefulness and appropriateness of the so-called ‘Continuous Practice Improvement Strategy’, apparently guided or supported by a “policy and professional practice advisory group”, and how this has assisted – or otherwise affected – each staff member in their particular work area. Staff should be asked to provide anonymous responses on views in relation to: Work-load allocation, on performance targets, on standards to comply with, and on personal experiences with clients’ complaint assessments and investigations, and whether the feedback they personally get from outside stakeholders are positive or negative in regards to their performance at the Office. An inquiry and audit should try to establish whether staff members feel they are under the existing work pressures and conditions able to provide fair, just and objectively delivered services and decisions. It must be established, whether and to what degree staff members may suffer excessive stress and other ill health, due to too high work loads and increased responsibilities, while expected to achieve ever higher performance and output results, without compromising quality of service delivery. Data should be sought on health issues staff have suffered, and whether staff members do perceive these to be the result of work based pressures and expectations.

[61] The inquiry and audit should endeavour to establish, whether in the particular complaint cases I presented to the Office of Ombudsmen, the investigating officer Xxxxx Gxxxxx did follow all mandatory work processes and procedures, met the applied quality standards, and adhered to her legal obligations under the Ombudsmen Act 1975, and also according to other applicable statutes and law, while executing her duties. It should try to establish whether she intentionally or unintentionally misled the Chief Ombudsman upon her assessment of my submissions (including provided evidence), and whether she acted in negligence and/or failed to apply due professional care. I ask your Office of the Auditor-General to investigate whether any advice or disciplinary action was served on Miss Gxxxxx upon my request for a review on 16 June 2014. In this same regard, I also request an examination, whether my complaint from 16 June this year was handled appropriately by the Ombudsman, in line with provisions referred to on page 219 of the ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’ (see chapter 7.2.3 ‘Accountability (law)’). The following reference is made there: “The Office of the Ombudsman has a formal, documented process for ensuring complaints about the Ombudsmen and their staff are taken seriously and handled appropriately.760 “

[62] An inquiry and audit should establish levels of staff satisfaction or dissatisfaction with present working conditions, whether they feel satisfied with working under individual employment contracts, or would prefer alternative employment agreements, possibly in the form of a collective agreement. Quality control measures should be examined, such as checks and balances used to avoid mistakes, or the oversight of relevant evidence information. An inquiry should establish, whether unacceptable “short-cuts” are used to progress and process cases, and whether re-prioritising is used, to discharge complaints deemed as “less important”. Feedback should be sought on suggested improvements to applied processes, procedures, work and resources allocation, quality assurance, same as general working conditions.

[63] An inquiry and audit should also not shy away from the question, whether recommendations should be made, that the high salaries for the two Ombudsmen should perhaps be capped or cut, to free up future funding, to invest into the operational activities of the Office of Ombudsmen. According to data I read, the salaries of the two Ombudsmen are between $ 280,000 and about $ 350,000 per annum. 17 staff also appear to earn over $ 100,000 per annum, as a table in response to question 55 in the document ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ shows. Furthermore 28 staff appear to earn between $ 80,000 and $ 100,000 per annum. These salaries are though determined by the independent Remuneration Authority, and it may not be possible to expect any changes in their decisions on remuneration for staff and Ombudsmen employed. Nevertheless an independent view on these aspects may also be warranted.

[64] I may last not least suggest also that the Office of the Auditor-General considers making a recommendation that the Office of Ombudsmen should conduct ongoing, comprehensive feedback surveys on all complainants and enquirers it deals with, inviting them to do them anonymously via their website, by sending them the link information to a survey by way of email or postal letters, same as the Office of the Privacy Commissioner is presently doing. Only that way will the Office be able to gather reliable information on the satisfaction or dissatisfaction of any stakeholders it deals with. Such a recommendation should be considered irrespective of any decision made in this request matter.

Closing comments and concerns

[65] I am aware that a decision about this request may take some time. As stated, this is a matter of concern not only to me, given my personal experiences with the Office of Ombudsmen and their performance, but a matter of concern to the general public. The wider public does have daily interactions with state sector and similar agencies, which are open also to the scrutiny by the Ombudsmen and their staff. It is the fact that with a “leaner” public service there has been ever growing pressure on staff working in state sector offices, which can lead to more mistakes and wrong decisions being made. That is to my understanding also part of the reason for increasing numbers of enquiries and complaints to the Office of Ombudsmen. It is in the public interest that this requested inquiry and audit will be conducted sooner rather than later, as otherwise too many members of the public will face similar disappointing experiences as I and others have recently. An inquiry and audit, followed by a report and recommendation by the Office of the Auditor General may give us a clearer picture of the situation at the Ombudsmen’s Office, and perhaps raise necessary awareness and send necessary signals to review the operations at the Office of the Ombudsmen, so improvements may be made.

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

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

References

1. ‘2010/2011 Report of the Ombudsmen for the year ended 30 June 2011’;
2. ‘2011/2012 Report of the Ombudsman for the year ended 30 June 2012’;
3. ‘2012/2013 Report of the Ombudsman for the year ended 30 June 2013;
4. ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13‘ (Office of Ombudsmen, previously downloaded from Parliament’s Website);
5. ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’;
6. ‘The New Zealand Herald’, “Bulging backlog creating a ‘crisis in Office of the Ombudsman”, Adam Bennett, 15 Feb. 2012;
7. ‘Scoop’, “Ombudsman’s Office Workload Doubles”, press release article, 27 Sept. 2012;
8. ‘ADLS’ (‘Auckland District Law Society’ website), “Chief Ombudsman discusses challenge and change”, by Matthew Lark, 13 Sept. 2013;
9. ‘Scoop’, “Highest ever number of complaints for Ombudsman”, press release, 15 Oct. 2013;
10. ‘The New Zealand Herald’, “Budget 2014: Funding crucial as busy watchdogs feel the strain”, by Adam Bennett, 15 May 2014;

Attachments to email 1 carrying this request letter:

a). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, unsigned ltr, 28.08.2014.pdf’ (letter seeking a special inquiry and audit into performance and other related matters at the Office of Ombudsmen, by X. Xxxxxx, dated 28 Aug. 2014);
b). ‘Ombudsmen Office, complaint 3xxxxx, MSD, O.I.A. requests, incl. new, response ltr fr. 27.05.14.pdf’ (letter from Ombudsman Ron Paterson, dated 27 May 2014, mentioning limited resources and performance limitations the Office of Ombudsmen faces)
c). ‘NZ Parliament, Suppl. Std. Fin. Rev. Qs 2012-13, Ombudsman, d-load, high-lit, 14.08.14.pdf’,
‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ (PDF file, Office of Ombudsmen, previously downloaded from Parliament’s Website);
d). ‘Ombudsman, Integrity-Plus-2013-Pillar-7-Ombudsman, transparency.org, Dec. 13, 14.08.14.pdf’ (containing ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’.
e). ‘Ombudsman, Office of, Statement of Intent, soi14-18, d-load, 14.08.14.pdf’, Office of the Ombudsman, Statement of Intent 2014 – 2018.

Attachment to email 2 carrying this request letter:

f). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 1-9, 28.08.2014.pdf’ (scan copy of signed original letter in this matter, see also a). and g).).

Attachment to email 3 carrying this request letter:

g). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 10-17, 28.08.2014.pdf (scan copy of signed original letter in this matter, see also a). and f).).

Emails that will also be on-forwarded following above initial emails (with attached evidence) – to be sent with emails 4, 5, 6, 7 and 8 in this matter:

1). Email number 1, 16 June 2014, 05.02 h (with 1 PDF file attached);
2). Email number 2, 16 June 2014, 05.36 h (with 8 PDF files w. relevant evidence attached);
3). Email number 3, 16 June 2014, 05.47 h (with 7 PDF files w. relevant evidence attached);
4). Email number 4, 16 June 2014, 20.30 h (with 3 more PDF files attached)
5). Earlier email enquiry sent 23 Feb. 2014 14.25 h, re complaint sent 17 Dec. 13 (which had 16 PDF attachments, but which won’t be sent, as they should be on file at the Ombudsmen’s Office)

Here is a link to a down-loadable PDF file containing the full request dated 28 Aug. 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit into Ombudsmen Office, anon, 28.08.2014

Please note:
We have not attached all the above attachments, as some relevant information may already have been presented in the earlier related posts about the HDC complaints and the Ombudsman complaint. Other information is freely available on the Ombudsmen’s website and other sites on the web (try a Google or Bing search!), and some is not of such high importance to be published here. We may consider adding some further information here at a later stage!

 
 

3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014

By way of a letter dated 30 Oct. 2014, Maria Rawiri, Sector Manager at the OAG, responded to the complainant’s request. She wrote the following:

“Dear Mr Xxxxxx

REQUEST FOR INQUIRY AND PERFORMANCE AUDIT INTO THE OFFICE OF OMBUDSMEN AND ITS COMPLIANCE WITH THE OMBUDSMEN ACT 1975

Further to our email of 1 September 2014, we have completed our initial assessment of the material you provided to us.

You requested that our Office carry out an inquiry or performance audit of the Office of the Ombudsmen (the Ombudsmen).

While we appreciate your interest and concern in the functioning of the Ombudsmen, unfortunately, I must advise that we will not be carrying out the specific investigation you request.

Under the Public Audit Act 2001, our Office carries out:

● annual audits of the financial statements and information on performance that public entities provide in their annual reports. As there are over 4000 public entities, this forms the main part of our work;
● performance audits, which are in-depth assessments of how well public entities are carrying out particular parts of their work. We do a small number of these each year and consult with Parliament to agree our programme of work; and
● inquiries into any matter relating to a public entity’s use of its resources. Inquiries are more in-depth again than performance audits. They focus on a particular set of decisions and actions, so that we can accurately describe what happened and why, and set out our comments on the merits of what was done. We carry out only a few inquiries each year.

Your request is far more wide-ranging in scope than a performance audit or inquiry. Essentially, you have requested a review of the entire functioning of the Ombudsmen. This is not something we are equipped to carry out.

We are currently in the early stages of work looking at the accountability systems across government as a whole. However, this work will not include an in-depth review of the specific performance of any single entity.

The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest. The report is available from the Ombudsmen’s website:
http://www.ombudsman.parliament.nz/resources-and-publications/corporate-documents/annual-reports .

As Sector Manager, I have noted the comments you made and will bear them in mind during our on-going work with the Ombudsmen.

 

Yours faithfully

……….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response from Maria Rawiri, dated 30 Oct. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 30.10.2014
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 30.10.14

 

Comments by the author:

So the complainant presented a very comprehensive letter of request with ample evidence of the serious issues and apparent dysfunction at the Office of Ombudsmen, and the OAG appears to have considered this as too much of an ask to deal with. The complainant also presented a case, where two formal complaints he had made to the Ombudsman against the HDC, had apparently been poorly assessed and wrongly decided on by the Office of Ombudsmen. The detailed information provided can only lead a reasonable person to the conclusion that investigating officers at the Ombudsmen’s Office were unable to attend to detailed and complex matters, and hence missed important, relevant facts, that had to be considered when forming a decision on the complaints. Instead, it appears, irrelevant or less relevant information was rather considered, and so the complaints were both dismissed, it seems this was done without even properly examining important evidence documents.

Certainly the comments by the Chief Ombudsman herself, repeated in Annual Reports of her Office, and also quoted in media, should have prompted the OAG to have taken a greater interest in the request by the complainant.

But in hindsight, we must probably accept, that the request was simply too wide in scope, and hence the OAG considered that they would not have the time and manpower to conduct such a comprehensive inquiry and audit of much of what the Ombudsmen and their staff do.

 
 

4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE

The complainant was not satisfied with this response by Maria Rawiri from the OAG, as it appeared to him, that there was reluctance by a senior Officer to conduct any inquiry or investigation into affairs and processes at the Office of the Ombudsmen. He accepted though that his request for an inquiry and special performance audit may indeed have been too wide in scope, so he made an effort to narrow down the Ombudsmen’s actions and areas of activity covered by his request. He prepared a new reworded request that would be dated 04 November 2014, which he then sent to the OAG by email on 05 December 2014 (in the early morning, just after midnight). Attached to it was only a scan copy of the new request letter he had written.

Here is the authentic text of the whole request letter dated 04 November 2014, which the complainant sent to the OAG:

 

Re: Request under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001 – for an inquiry and a special performance audit into administrative and operational activities performed by investigating officer Xxxxx Gxxxxxx at the Office of Ombudsmen, while processing complaint/s 3xxxxx – as to whether they complied with applicable legal obligations and standards

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 30 October 2014, which was in response to my formal request for an inquiry into, and special performance audit of the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 16 and 18 of the Public Audit Act 2001). I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your assessment my request is far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You state that you are not equipped to carry out “a review of the entire functioning of the Ombudsmen”. While I am not sure whether my request actually sought such a wide ranging review of the Office of Ombudsmen, I do agree, that my request may have been too wide in scope.

[2] As much as I appreciate your reference to the Office of the Ombudsmen’s recently released ‘Annual Report for 2013/14’, I am afraid that this report does not address some serious concerns that I raised as part of my request letter from 28 August. I understand that the Office of Ombudsmen may as of recent have been provided with more financial resources, and that it may in future be able to better meet its statutory responsibilities and cope with its increased work-loads. But it is somewhat worrying, that with your decision you have also decided to not investigate evident serious failures and apparent professional misconduct by an investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any serious failure to meet statutory obligations by staff or management at an Office of Parliament, which appears to fall under your scope of authorities, would raise sufficient enough concerns, to at least conduct an investigation into that part of my requests. In any case, your decision has caused me to re-consider my original request, and to consequently file a new request, which is far more narrowed down in scope, and which your Office should without doubt be able to investigate.

[3] Therefore I ask you to please accept my new request to your Office to conduct a special, independent and thorough inquiry into – and audit of – particular administrative and operational activities, performed by Miss Xxxxx Gxxxxxx at the Office of Ombudsmen, and whether these complied with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. My request is in particular for an inquiry and audit to be conducted into the complete handling, processing and assessment in relation to two complaints, which I filed under their reference 3xxxxx. This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff member, including her communications with the Chief Ombudsman. My request includes an examination of how the mentioned staff member at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures she was instructed to follow, while processing and assessing my two complaints. In the case that an inquiry and audit cannot be limited to the complaint/s mentioned, I do instead ask you to conduct such of the performance and conduct of the staff member for the period from 01 July 2013 to 15 July 2014, in relation to all complaints she handled over that period. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by the investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● the investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate my complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and act upon objections I raised re the handling of my complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other law

[4] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence I and many other complainants were denied appropriate, fair consideration of our complaints and with that justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [3]). This may be remedied to some degree for the near future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, an investigation and audit remains justified in at least my particular case, if not more.

[5] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[6] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have presented. In case that you may again decide, to not conduct an investigation or audit at the Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives, as the last resort to have the matters stated in this and my former letter addressed.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 04 Nov. 2014, which is perhaps easier to read (please note an error with the date was made in the link):
OAG, CAG, reqst f. inquiry + audit of Ombudsman complaint handling, anon, 01.11.2014

 

Comments by the author:

With this narrowed down, reworded request, the complainant did focus more on the particular investigator and her actions and alleged failings. In doing so he intended to show with such an example, what challenges and issues staff at the Office of Ombudsmen face, and how this impacted on the quality of their work in complaints assessments and resolution. He thought that the OAG would have few problems in targeting the work areas and historic files where his earlier complaints had been processed, but he was not prepared for the decision he would get upon this formal request.

 
 

5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014

It did take less time this time around, for the AOG to respond to the new request by the complainant. Again the response was offered by Maria Rawiri, Sector Manager, and it was also somewhat brief – with again somewhat similar, now familiar explanations that they saw no need to conduct an inquiry or performance audit into the Office of Ombudsmen.

 

Here is the authentic transcript of her letter dated 17 December 2014:

“Dear Mr Xxxxxx

REQUEST UNDER THE PUBLIC AUDIT ACT 2001 FOR AN INQUIRY AND A PERFORMANCE AUDIT INTO ACTIVITIES AT THE OFFICE OF OMBUDSMAN

We have reviewed the information you sent us in your email of 5 November 2014.

We have noted your concerns about the handling of your complaint by staff at the Office of the Ombudsman, and what you suggest that may indicate about that office’s systems.

While your letter is more specific than your previous correspondence, we will not be carrying out the specific investigation you request. We have no role in assessing the individual performance of staff in other entities. That is the responsibility of each entity. We note that you have raised your concerns with the Chief Ombudsman as is appropriate.

The Office is part of a broader accountability system for public sector entities. Our primary role is to conduct financial audits of all public entities. In doing so, we provide assurance to the public and parliament about the extent to which they can rely on public entities’ financial statements and in some cases performance information. Parliamentary Select Committees are charged with holding entities to account for their use of public funds. They fulfil this function, in part, through the annual review process. We provide advice to the Committee, but ultimately the Committee completes the review.

As advised previously, we have noted your comments and will bear them in mind during our on-going work with the Ombudsman. Beyond that I am afraid that we cannot be of any more assistance to you.

Kind regards

 

….. …….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 17 Dec. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 17.12.14
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 17.12.14

 

Comments by the author:

The OAG does apparently not have any authority or scope to investigate and audit the performance of individual staff members in an entity, hence this response. It does not quite surprise us, as the performance auditing of individual staff members could leave individual employees in state sector entities exposed to an unreasonable degree of scrutiny that may in many cases better be applied internally, through their superiors and through work process and operational system checks that should be in place in such high level offices.

 
 

6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE

Again, the complainant felt driven to despair, like he had already been in his efforts to find justice when dealing with the HDC and then the Chief Ombudsman. It appeared that the OAG was following a similar line as the HDC and even the Ombudsman had done earlier, using every provision – or lack thereof – in the statute law, so to avoid having to take any action or responsibility. It appeared he was being fobbed off, and that these high officials had a dim view of any person (like him) trying to take them to task for checking on other high level officials, who they may perhaps even know personally. While this is of course hard to prove, the ongoing dismissive treatment of his concerns had definitely followed a very familiar pattern. NO action was considered necessary; requests for any form of an inquiry or investigation were not accepted and not being acted upon.

But having taken his grievances up to this high level, he decided to persist nonetheless, and write yet another request, after careful consideration of all matters of relevance and deep thoughts about how to formulate a new letter. But already prior to that did he express his frustrations about the handling of his request in a brief email letter from 19.41h on 18 December 2014. In it he expressed his disappointment and impression that the OAG were shying away from responsibilities. He also reminded the OAG staff that he had in his last letter insisted the whole matter (incl. all correspondence and evidence) should be referred to the Speaker of the House of Representatives, if the OAG should again not take any action. He asked for confirmation that this had been done. He also hinted that he may involve the media. His email(s) were acknowledged as received by Jxxx Hxxxxx at 10.00h on 22 Dec. 2014.

So after Christmas, on the second last day of the year 2014, he had completed his third and final request to the Auditor General’s Office, which he would then send in by email at 22.43h on 30 December 2014. Only one PDF with a scan copy of his new letter was attached. That email was then later confirmed as having been received by Txxxx Xxxxxxxx, Personal Assistant, at the OAG, at 11.35h on 12 January 2015. A response was promised once matters that had been raised had been assessed.

 

Here is the authentic text of the whole request letter dated 30 December 2014, which the complainant sent to the OAG:

Re: Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen, while processing specified complaints

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 17 December 2014, which was in response to my second formal request (dated 04 November 2014) under the Public Audit Act 2001, for an inquiry into, and a special performance audit of, administrative and operational activities performed by staff at the Office of Ombudsmen. My reformulated request was particularly in regards to the processing and assessment of my complaint/s under reference 3xxxxx by Miss Xxxxx Gxxxxxx, and whether she and her Office complied with applicable legal obligations and standards. I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your comments your Office has no role in assessing the individual performance of staff in other entities. You write that this is the responsibility of each entity. You also comment: “We note that you have raised your concerns with the Chief Ombudsman as is appropriate.” You state that your Office is part of a broader accountability system for public sector entities. You refer to your primary role in undertaking financial audits of all public entities. You also add that you will bear my comments in mind, during your on-going work with the Office of Ombudsmen. When I presented an earlier request you had commented that my request was then far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You stated that you were not equipped to carry out “a review of the entire functioning of the Ombudsmen”.

[2] Both your responses to my requests have been received and acknowledged with great disappointment. It seriously worries me, that with your decisions you have decided to not investigate evident serious failures, and apparent professional misconduct, by at least one investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any such serious failures to meet statutory obligations by staff or management at an Office of Parliament, which still appears to fall under your scope of responsibilities, would raise sufficient enough concerns to take some actions. Given my detailed, evidence-supported requests, your Office should in my view have felt prompted to conduct an investigation on your own initiative, and by doing so, within a scope and form that your Office can carry out. You have the statutory authority and ability to define or redefine the exact scope and form of an audit or inquiry under the Public Audit Act. You also have a responsibility, to ensure that legal obligations under statute law are met by public entities.

[3] Your comment, that I had appropriately raised my concerns with the Chief Ombudsman, fails to acknowledge the fact, which I had already explained to you in earlier correspondence, namely that Miss Wakem simply failed to fulfil her own responsibilities. In her letter dated 10 July this year, Miss Wakem firmly refused to even properly look at my whole complaint from 16 June 2014. She protected her staff from any allegations, without examining all the evidence I put forward. She therefore failed at least in her duties as an employer under section 11 (2) under the Ombudsmen Act 1975. In blindly relying on her investigating staff member, who was very poorly handling my two complaints about the Health and Disability Commissioner (HDC), the Chief Ombudsman also failed to perform her functions under section 13 (1) of the Ombudsman Act, to investigate clear, proven misconduct by staff at the HDC Office, who were lying about email evidence they received. The mentioned failures also raise concerns as to whether the oath given by the Chief Ombudsman under section 10 (1) of that Act has been honoured. All this raises a number of issues, which include the use of resources and compliance with statutory obligations. It is my view that your Office has the power, ability and in this case compelling reasons to act in the matters I presented to you under section 16 (1) (a), (b) and (d), same as section 18 (1) of the Public Audit Act. The same Act refers not only to the “efficient” use of resources, but also mentions the “effective” use of them. Also is the performance of staff part of resource related matters that deserve consideration when conducting an audit or inquiry. Most certainly the failure to comply with statutory obligations, not only under the Public Audit Act, must be of concern to you. In any case, your decision has caused me to once again re-consider my request, and to consequently file this new request, which is more appropriately specified to meet your Office’s responsibilities, scope and ability.

Newly defined, third request for an inquiry and special audit

[4] Therefore I ask you to please accept my new, third request to your Office. I request you to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices. Such an inquiry and audit should establish whether the stated activities by the Ombudsman Office’s mentioned staff, relating to the specified types of complaints they handled, did comply with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. The inquiry and audit should also seek to establish whether resources were used appropriately, effectively and not only efficiently.

[5] This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff members, including their communications with the Chief Ombudsman. My request includes an inquiry into how the mentioned staff at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they were instructed to follow, while processing and assessing complaints. In the case that an inquiry and audit cannot be focused on the types or range of complaints mentioned, I do instead ask you to conduct one on the performance and conduct of the staff members for the same period, but in relation to a range of O.A. complaints that can be set and managed by your Office. If it may need to be so, that may be reduced to such ones only against the Privacy Commissioner and HDC Office. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● serious mistakes and omissions made by an investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and appropriately act upon objections raised re the handling of complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other relevant law

[6] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence of poor performance and failures in fulfilling statutory obligations, I and many other complainants were denied appropriate, fair consideration of our complaints and with that denied justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [5]). This may be remedied to some degree for the future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, a special inquiry and audit remains more than justified.

Important information to consider prior to launching an inquiry and special audit

[7] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[8] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website – under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have now repeatedly presented.

The Office of the Auditor General’s powers and authority

[9] While I accept that you may have no role in assessing the individual performance of staff in other public entities, I am aware that you have the authority to conduct special inquiries and audits into individual public entities, in some cases even into the conduct of individual public office holders. Your Office has on your website published a list of “inquiry reports” that show this, and there have also been repeated media reports on certain inquiries and special audits conducted by your Office. Inquiries have been made into particular public entities, into public office holders and into particular activities, like for instance the following:
○ Inquiry into the Mangawhai community wastewater scheme
○ Inquiry into decision by Hon Shane Jones to grant citizenship to Mr Yang Liu
○ Inquiry into the Government’s decision to negotiate with SkyCity Entertainment Group Limited for an international convention centre
○ Inquiry into aspects of ACC’s Board-level governance
○ Inquiry into the use of parliamentary travel entitlements by Mr and Mrs Wong
○ Inquiry into ‘Provision of billboard for Len Brown’s Mayoral Campaign’
○ Investigation into conflicts of interest of four councillors at Environment Canterbury
○ Inquiry into ‘How the Ministry of Education managed the 2008 national school bus transport tender process’.

[10] The fact that the Office of the Ombudsmen may as another Office of Parliament be on a similar level as your Office, does not necessarily mean it is excluded from the same level of scrutiny that applies to other offices and entities falling under your Office’s jurisdiction and responsibility. According to sections 5 (1) (b) and 14 (1) of the Public Audit Act the Offices of Parliament come under your authority. We are here also talking about the Ombudsman’s failures to address major issues that arose during the appalling handling of two complaints to the HDC, which is an independent crown entity (section 7 of the Crown Entities Act 2004), falling also directly under your authority. I may suggest you should also consider an inquiry and audit into their complaints handling, given the apparent misrepresentation by their staff of facts regarding complaint emails and evidence received re complaint C11HDCxxxxx.

[11] Given my experiences with the handling of two complaints by the Health and Disability Commissioner (HDC), and their apparent failures and even dishonest conduct in relation to emails and evidence presented to them (C11HDCxxxxx), your Office should indeed feel prompted to also conduct an inquiry and special performance audit into the Office of the HDC. Sadly the Health and Disability Commissioner Act 1994, which also contains the Code of Health and Disability Services Consumers’ Rights, offers the HDC far too much discretion to take action or to take no action. Certain powers the HDC has to offer complainants remedies are generally not used or applied in most cases. Many cases of malpractice or failures by providers of health and disability services get insufficiently addressed, so that many affected do not even bother filing complaints with the HDC. It is my view that the existing law and practice applied by the HDC is rather undermining the rights of affected patients. That put aside, one would at least expect that complaints are treated appropriately, fairly and honestly, which did not happen in my case. Hence it is doubly disturbing to have the Ombudsman dismiss my complaints as she did, and did not even feel urged to reassess my complaints.

[12] For the case that you may again decide, to not conduct an inquiry or audit at the Wellington based Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives. That is the last resort to have the matters addressed, which I stated in this and my former letters.

The Speaker of the House of Representatives’ responsibility over the Ombudsman

[13] It is the Speaker of Parliament, who holds a higher authority over the Officers of Parliament, including the Office of Ombudsmen. Through statutory reporting requirements and his constitutional position the Speaker can and must hold Officers of Parliament to account for their conduct and functional responsibilities. I may quote from the following report:
New Zealand National Integrity System Assessment 2013 Chapter 5: Ombudsman (pillar 7),
Web link:
http://www.transparency.org.nz/docs/2013/Integrity-Plus-2013-Pillar-7-Ombudsman.pdf:
Extracts from that report:
“7.2.4 Accountability (practice)
To what extent do the Ombudsmen report and be answerable for their actions in practice?”

“Score: 5
The Ombudsmen comply with the legal accountability requirements. There has been no occasion in recent years for judicial review.”

“The Ombudsmen report to Parliament through the Speaker each year, and the report contains comprehensive information on the activities of the Ombudsmen and their staff, including performance against the measures specified in their public Statement of Intent. The report has always been submitted on time. Neither the House nor the Officers of Parliament Select Committee has recently debated the Ombudsmen’s report, 761 though there has been debate in the Government Administration Select Committee.”

It is not unusual for complaints about the Ombudsmen to be made to the Speaker. Although the Speaker has no legal duty to consider such complaints, there is a practice whereby the complaint is forwarded to the relevant Ombudsman, who then reports to the Speaker on it.762“
I may also refer to the following part of that report, for some further relevant information:
7.2.6 Integrity mechanisms (practice)
To what extent is the integrity of the Ombudsmen ensured in practice?

[14] Hence, in case your Office should again decide to not use your authority to conduct an inquiry and a special performance audit into the mentioned section of the Wellington based Office of the Ombudsmen, I ask you to forward ALL the correspondence I sent you with my previous and this requests, including all evidence documents, to the Speaker of Parliament. It will then be up to the Speaker to seek clarifications and explanations from the Chief Ombudsman, if he may so desire. Given the disappointing experiences with Dame Beverley Wakem not even seriously re-considering my complaint, she has in my view not acted as a responsible employer and as the impartial Officer she is expected to be. Her failures may simply be based on reliance on poor advice by some of her staff, but she is ultimately responsible for them. I will reserve my final judgment in this matter depending on the final outcome of this request.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 30 December 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s complaint handling, new, anon, 30.12.14

Comments by the author:

This time the complainant appears to have taken the best possible approach with his request, asking for an inquiry into and performance audit of a section or “team” group of staff and the Chief Ombudsman herself, at the Wellington Office, who processed only certain, more easily identifiable types of complaints, not too great in numbers. So the scope was not set too widely, and it was also avoided to target any individuals, except perhaps Ms Beverley Wakem, who did then though carry responsibility for the whole operation of the Office of Ombudsmen. The complainant and requester felt the OAG could now hardly dismiss his request, given the validity of his claims and the compelling evidence he presented. He even listed earlier inquiries, where the OAG had taken action, even involving clearly identifiable individual office holders, which somehow contradicted their earlier response. But the complainant’s request would again result in a decision that would later only disappoint him.

 
 

7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015

As there would not be another response from the OAG for some time, the complainant did at 23.17h on 12 March 2015 write a brief email to the OAG Office, enquiring about the progress with his request. He attached his earlier email from 30 December and asked for a brief update. Also did he mention that he had learned that new appointments for the roles of Ombudsman had recently been signalled by the Leader of the House of Representatives.

It was in mid April when the complainant received a new response by Sector Manager Maria Rawiri at the OAG, which was dated 09 April 2015. It was again an extremely disappointing decision that was being communicated, causing the complainant to lose almost all faith in the “watchdog” offices that exist and processes that are meant to be followed in New Zealand.

 

Here is the authentic transcript of Maria Rawiri’s letter dated 09 April 2015:

“Dear Mr Xxxxxx

REQUEST FOR AN INQUIRY AND A SPECIAL PERFORMANCE AUDIT INTO THE WELLINGTON OFFICE OF THE OMBUDSMAN

You have requested that the Auditor-General consider your third request, in this case:

“to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices.”

We have reviewed the material and information provided. It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner. This office has no power to change the outcome of the assessments made by those agencies.

You have raised concerns about the overall capacity and performance of the Office of the Ombudsman within a defined year. The Chief Ombudsman has been very open about the challenges her office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.

It is the Auditor-General’s decision whether she initiates an inquiry. The office’s focus is on the way public entities use their resources, including financial, governance, management and organisational issues. We examine each request to decide the most appropriate way to proceed. We identify whether the matters raised suggest:

● financial impropriety,

● problems with the organisation’s overall governance or management, or

● other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

Other factors we consider include how serious the issues are, whether we have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues.

To reiterate having considered the evidence you provided and taking into account the factors set out above we do not intend to conduct an inquiry into the matters you raise. We believe there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.

We now consider this matter closed.

Kind regards

……………… (Signature)
Maria Rawiri
Sector Manager

 

cc: The Rt Hon David Carter
Speaker of the House of Representatives
Parliament
Private Bag 18 888
Parliament Buildings
Wellington 6160”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 09 April 2015, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 09.04.15
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 09.04.15

 

Comments by the author:

This was beyond belief for the complainant; it gave him the impression that there was simply an absolute reluctance by the OAG Officers to conduct any form of inquiry or performance audit into the Ombudsmen’s Office. The reasons given did not convince him, as they did not appear valid enough. Of course he never expected a review and over-ruling of the earlier decisions made by the HDC or the Ombudsman on his complaints filed with them. While there were no signs of “financial impropriety” at the Office of Ombudsmen, the complainant felt there were reasons to consider issues like “problems with the organisation’s overall governance or management”, or “other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public”. But Ms Rawiri did as ‘Sector Manager’ not share any of those concerns, it seems. Instead she appeared to think it was up to Parliament to decide on funding for the Office.

 
 

8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION

The response by Maria Rawiri as “Sector Manager” for the OAG’s particular area of responsibility did not only disappoint but angered the complainant, as it was proof to him, that the senior Officers of Parliament have a dim view of ordinary citizens or residents making complaints to them. They rather appear intent on maintaining the status quo of affairs, by protecting their own personnel and established processes, same as those in the other offices of the so-called “watch dogs”. The responses appear to make a mockery of the supposed accessibility of services like the ones offered by these “complaints resolution” agencies. Accountability is only scrutinised if requests may be initiated by perhaps senior media persons, by Members of Parliament, by Ministers or perhaps business or various other established, well resourced and vocal lobby group representatives.

No matter how well worded, well prepared and considered a request or complaint is, and how much detailed evidence is provided, the Officers seem to simply pick and choose as they see fit, while the complainants have no redress, except perhaps challenging the decisions by filing for judicial review at the High Court. That requires payment of high court filing fees, of legal representation fees and so forth, meaning very high costs. Few if any ordinary citizens have access to this. “Justice” seems to depend on a person’s access to finance, perhaps his/her status in society and personal or professional connections.

In order to at least let Ms Rawiri and the rest of the OAG know how he felt and what he thought of their decision, he wrote one more letter to that Office, which was dated 23 April 2015.

 

Here is the authentic text of his letter dated 23 April 2015, which the complainant sent to the OAG:

Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen; your letter dated 09 April 2015, file ref. 13xxx

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] I have received your letter dated 09 April 2015, which was attachment to an email received by me on that same day. With honest disbelief do I take note of your third response to the third request I presented to your Office in this matter of serious concern. I must inform you that I remain to be convinced that certainly my last request from 30 December 2014, under the Public Audit Act 2001 (the Act), falls into your scope of responsibilities. Yet you have once again decided to take no action, to neither conduct an inquiry, nor an audit, under sections 16 (1) (a), (b) and (d) and 18 (1) of the same Act.

[2] After having reviewed the information I sent you, you wrote the following: “It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner.” You also wrote: “This office has no powers to change the outcome of the assessments made by those agencies”<e.

[3] You furthermore stated in your letter: “The Chief Ombudsman has been very open about the challenges her Office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.” You also made clear that it is the Auditor General’s decision whether an inquiry is initiated. You admitted that amongst other mentioned focus areas, your Office also examines management and organisational issues of public entities. You wrote that you identify whether matters raised suggest financial impropriety, problems with the organisation’s overall governance or management, or other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

[4] You stated that other factors you consider include how serious the issues are, whether you have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues. You justified your decision not to conduct an inquiry with the comment, that “there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.” With that you considered the matter closed.

[5] As I informed you in my earlier correspondence, I did not expect that your Office’s possible actions in the form of conducting an inquiry and/or special performance audit would change the outcome of assessments or decisions made by the Health and Disability Commissioner and the Office of the Ombudsman. What I expected was that your Office takes the above actions, to establish what particular performance issues there are in the specified areas at the Office of the Ombudsman, and to report on this, nothing more or less. Hence your comments about outcome changes are in my view irrelevant. Of course have both Offices “looked into the various concerns” I directed to them, but neither Office did properly assess and address them. They both decided to take no action, despite of ample evidence I presented re breaches of the Code of Health and Disability Services Consumers’ Rights, and also re unprofessional or inappropriate conduct by some staff members, primarily at the Office of the Health and Disability Commissioner. Through close analysis it becomes clear, that neither of both Offices considered all the factual and relevant information or evidence, and the investigating and assessing staff at both Offices based their decisions on rather irrelevant considerations.

[6] I have noted your new acknowledgment re the challenges the Chief Ombudsman’s Office faces, which appears to be in some contrast to your comments in your letter from 30 October 2014, where you wrote: “The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest.” I informed you before, that I read that Annual Report 2013/14 and that the report would not sufficiently address, and not at all resolve, any of the concerns I have.

[7] In regards to some of the problems mentioned in past annual reports by the Office of the Ombudsmen, I may inform you that my recent experience shows me, that nothing has changed or improved in the performance at the Office of the Ombudsman. This is despite of some information in the annual report 2013/14 stating that more funding had been provided. I am still waiting for an Official Information Act related complaint from mid 2013 (ref. 3xxxxx), about the Ministry of Social Development withholding specified information that I sought, to be resolved by the Ombudsman. Over that time two or three other complaints about other cases where MSD did not provide the reasonably sought and expected information, have been added to that complaint, and are still only extremely slowly “progressed”. Also did I have reason to file a complaint about a decision by the Privacy Commissioner, dated 15 December 2014, and sent to the Ombudsman’s Office on the following day, which has up to this date not even been assessed. That matter under file reference 39xxx9 appears to be still in the process of being allocated to an investigator, as an email from the Office, dated 12 January 2015, informed me. Xxxxx Pxxxx, Manager Intake and Assessment, informed me that “due to the volume of complaints this Office is managing we are experiencing delays in progressing some of the complaints before us.” She also wrote: “We will work through the complaint you have made and the facts you have given us and contact you again. If we have not allocated your complaint to an investigator within the next six weeks, we will send you an update on your complaint.” No update or response has been received by me until this day!

[8] Besides of the ongoing timeliness issues, my main concern has though been the conduct and performance of investigating Officers at the Ombudsman’s Office, when handling complaints. Also the unwillingness of the Chief Ombudsman, to look herself at relevant correspondence and evidence, instead of simply relying on her staff member’s judgment and advice, has been a concern. Miss Wakem did as employer regrettably refuse to examine her investigating Officer’s performance and conduct. I even presented the fact that staff at the Office of the Health and Disability Commissioner lied about email evidence they received with one of my complaint, and that the investigating Officer at the Ombudsman’s Office ignored that and other relevant information. There are evident problems with the whole Office’s and management’s performance, there are systemic performance issues causing significant concerns, important for the organisation and the role the Office of the Ombudsman is meant to perform. Given the Ombudsman’s own admissions, and reports of other complainants experiencing numerous problems, the matters I raised with your Office are of serious concern for the general public.

[9] In my view such serious matters should have compelled you to take some action. It is in my view not sufficient to simply conduct the ordinary annual financial audits for the Office of the Ombudsman and have this included in that Office’s Annual Report. The evidence I provided should have been more than sufficient reason for your Office to conduct a separate, independent and thorough inquiry and audit, as you have done re matters of apparently even lesser significance. Besides of its many other functions, the Office of the Ombudsman is expected to perform a high level watchdog and complaints resolution role, but with the ongoing problems that persist, it has to some degree become dysfunctional.

[10] With much regret, I must inform you that I have now lost confidence in the Office of the Auditor General, same as I have already previously lost faith in the Office of the Health and Disability Commissioner and the Office of the Ombudsman. My experiences have sadly been extremely negative, and it astounds me, that a justifiably aggrieved person, who is seeking an honest and proper effort in the form of a proper assessment and investigation of complaints, is being passed on from one agency to another. From each Office I was simply asking for a proper assessment, followed by an investigation. From the Health and Disability Commissioner and the Ombudsman I expected an official, formal acknowledgment of failures or wrongdoings I experienced at the hands of mentioned persons or agencies. Even just a fair and reasonable recommendation for problems to be remedied would have sufficiently addressed my concerns.

[11] Given my previous experiences, and the recent, third decision by your Office, to take no action, I am left to wonder, whether this decision was made, so as to not upset persons working at the Ombudsman’s Office, who may be personally known to some of your staff. I am indeed missing a sense of integrity to the purpose of the existence of the Office of the Auditor General. But I dare not raise further questions based on such speculations.

[12] While I note that at the end of your letter from 09 April 2015 you ”cc” The Right Honourable David Carter, Speaker of the House of Representatives, there was no clear mention whether you have now actually passed on all the correspondence and evidence I presented to your Office also to the Speaker’s Office. In order to clarify matters, I must therefore ask you to at least confirm to me in writing, that this has been done, and that I can look forward to a response from the Speaker or his staff in due time.

[13] Please find attached to this letter two PDF files containing two emails from the Office of the Ombudsman, confirming the already known, and unchanged serious problems the Office faces. Your written response in this matter will be expected in due time.

Yours sincerely

Xxxxxxx Xxxxxx

Attachments (2 PDF files with last correspondence from Ombudsman Office):

1. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, email acknowledgmt, 18.12.14.pdf;
2. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, update, delay, email, 12.01.15.pdf.”

Here is a link to a down-loadable PDF file containing the letter dated 23 April 2015, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s Office, ref. 13xxx, reply, anon, 23.04.2015

 
 

9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL

As the complainant did no longer have any faith in the OAG helping him or other persons affected by flawed and unacceptable decisions by the HDC, Ombudsman or similar Officers, he decided to make a request under the Privacy Act, to seek particular specified information, so he could at least hold the OAG to account for having kept and considered certain documents, or having failed to do so. That way he could also find out what consultations may have been conducted with any other involved parties.

So on 07 May 2015 the complainant sent the following request to the OAG:

 

“Re: Urgent request under section 34 of the Privacy Act 1993 (the Act), for confirmation of information being held on me, in relation to my earlier requests for an inquiry and audit into the Ombudsman’s Office; see also your file ref. 13xxx

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

Please accept my request under section 34 of the Privacy Act 1993 for confirmation that your Office is holding personal information on me in relation to requests I made to your Office, to conduct an inquiry into, and audit of, the Office of the Ombudsmen. I urgently seek this confirmation under section 6 and Principle 6 (1) (a) and (b) of the Act.

I ask that the information is made available to me according to the provisions of section 42 (1) (e), by listing the individual documents containing any information kept on me, including such that was received from me by email or post, by name, title, date and type of record.

Furthermore I ask you to confirm to me, whether any of the personal information was provided to another agency (or Office) under section 6 and Principle 11 of the Act, whether under section (d), or under any other section (or subsection) of that Principle. In the case information has been disclosed to another agency (or Office), I also ask for this to be disclosed by name, title, date and type of record under section 42 (1) (e) of the Act.

I had already previously asked for confirmation from you, whether the information I had sent to you, had been sent on to the Speaker of the House of Representatives, as I had requested in the case your Office would uphold a decision not to conduct an inquiry or audit into the Ombudsman’s Office. This was by way of my letter dated 23 April 2015 (see Para [12]). But no confirmation had ever been provided. Hence I asked you again in an email dated 01 May 2015 (sent 08:15pm), to expressly confirm the same, but again no response of any sorts has been received from you.

As the matters I raised with your Office are of extreme concern to me, I insist on being informed about what information you hold on me – and in relation to past correspondence, and on what action you have taken to meet my repeated requests, that the matters be referred to the Speaker of Parliament.

Given the huge delay in time since my first request, and given the delay in responding to my last requests for confirmation, I consider this Privacy Act request as being very urgent, as further delays will severely disadvantage me in having the various serious issues resolved in a satisfactory manner.

I expect your considered response as soon as is reasonably possible under these circumstances.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

Attachment to email carrying this letter (1 PDF files with a scan copy of this letter):

‘OAG, Privacy Act request, for personal information held, your ref. 13xxx, X. X., 07.05.15’”

Here is a link to a down-loadable PDF file containing the full request dated 07 May 2015, which is perhaps easier to read:
OAG, CAG, Privacy Act request, info held, re ref. 13xxx, ltr, anon, 07.05.2015

 
 

10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015

With a letter dated 20 May 2015 Edrick Child, Acting Assistant Auditor-General, Legal, responded to the complainants Privacy Act request. It was reasonably frank and detailed, and copies of requested documents and information were attached or enclosed. But this did hardly offer any remedy to the complainant’s unresolved issues and requests, so all he could gain from it was to get a little more insight into how his requests may have been handled.

We will not bother presenting a transcript of the letter here, but simply offer a down-loadable PDF with a scan copy of it – found via these links:
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, E. Child, Assistt AG, ltr, 20.05.15
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, Assistt AG, ltr, hilit, 20.05.15

 

Comments by the author:

The Acting Assistant Auditor-General’s letter is largely self explanatory. It reveals that only the OAG’s letter dated 09 April 2015 had been referred to the Speaker of the House of Representatives, for his consideration. No other correspondence had been on-forwarded to the Speaker. There was also no correspondence, indeed there were no communications of any kind, that appear to have been exchanged with the Ombudsmen. So there was no attempt made to seek any comments from their Office, nor was there any correspondence on-forwarded for them to consider. The table attached to Edrick Child’s letter contained a list of documents that mostly showed correspondence that had been exchanged between the complainant and the OAG. Attachments were also listed, but as they were small in number, and were mostly such that had already been attached to the earlier posts on the complaints made to the HDC, or the Ombudsman, we will not bother attaching any of them here, at least for now.

 
 

11. CONCLUSION

We can see now, that the whole system we have here in New Zealand is a highly sophisticated but also difficult one to work with. But it appears to have been constructed with the intention to keep complaints and complainants at low numbers. Going through the difficult process of making formal complaints to the HDC, and then also to the Ombudsman’s Office, the complainant had to find out, that it can apparently only be a small number of complaints that will ever be taken seriously enough to be properly, fairly and reasonably investigated and addressed by any Officer of Parliament. Indeed one may say, the Officers of Parliament seem to even be collaborating in their efforts to keep complainants off their doorsteps – and also out of the courts, offering damned little in true and honest “complaints resolution”.

The law they all operate under gives the Officers in charge a wide scope for discretion to either take action, or take no action, and many provisions allow them to present apparently valid reasons for not investigating complaints.

In the end an unsuccessful complainant, like the person who went through all these stages, has only the courts to try seek remedies, in most cases probably through filing for a judicial review of decisions that were made. But as the law is written, the chances of success will be rare and limited. “Fairness for All” is the slogan the Office of Ombudsmen now uses and prints on their letters and shows on their website. Surely for some it is nothing but a hollow, meaningless or even dishonest slogan.

But any person who may persist and continue challenging earlier made decisions, he or she will most likely be labelled as being overly “litigious”, a “serial litigant”, therefore a frivolous person causing nuisance, and will simply not be taken seriously.

 

Updated: Saturday, 10 September 2016

 

Quest For Justice

 
 

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HAVE YOU HAD ISSUES WITH HDC DECISIONS? AN ADVOCATE SEEKS FEEDBACK



HAVE YOU HAD ISSUES WITH UNFAIR, UNREASONABLE AND UNACCEPTABLE HDC DECISIONS? AN ADVOCATE SEEKS CONFIDENTIAL FEEDBACK – ANY COMMENTS ARE WELCOME WHILE YOUR PRIVACY IS ENSURED

 

On this blog we have covered some topics relating to the Health and Disability Commissioner (HDC) and how a number of decisions made by that Officer or his Deputy have been considered unfair, unreasonable and unacceptable to the complainants. While the Health and Disability Commissioner Act 1994 (The Act) offers the HDC a fairly wide scope to use discretion in assessing and / or investigating complaints, and also in forming a view and making a decision, there are very valid questions that must be asked about whether many decisions are made by failing to meet natural justice and possibly other legal standards.

We have some time ago been contacted by a number of persons who have taken a special interest in this matter, and at least one truly independent advocate is now very keen on hearing from people who felt that they were served great injustices when being presented decisions by the HDC.

There have already been a fair few media reports on such cases, and some persons have involved their own legal representatives to ask for further reviews and investigations, but often they find there are very limited means to address or even remedy decisions that appear very unfair to complainants, their relatives and friends.

In order to get a greater picture of what is happening with the HDC, and on what can and probably should be done to try and resolve such issues, the advocate who we will not name or otherwise identify has asked us to present a post like this, seeking comments and any other forms of feedback from persons who have been affected by HDC decisions.

You do therefore not need to present your personal details, if you so prefer, and can use alias names or email addresses, or if you reveal your identity, we are happy to keep this private and will not release it without your express permission. But any comments that appear genuine, valid and well based, we will consider to present here, if necessary by under “anonymous”, perhaps only giving other references like the time and/or date received. That is of course – if you agree to this.

Also are we happy to assist persons to touch base with the advocate, and we will then consult how to best do this, perhaps by offering an email address to complainants and commenters, so they can choose themselves to initiate a contact, with a possible prospect to perhaps be considered for participating in forms of action to address the often reported injustices.

We cannot share much more than that now, so it is up to you, the reader, to get back and leave a comment here, and we will go from there. Please indicate whether you wish your comment to be published here, as “anonymous” or with a given name, or not so. Also tell us whether you are interested in contacting the advocate.

 

For memory, the following complex posts have been published on this blog, which some may wish to read before going any further:

https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

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/

 

A separate post was about a complaint to the Ombudsman, being against the HDC:
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

(this relates to only two complaints handled under one reference number, so they may not be representative of how other Ombudsman decisions are formed and presented)

 

Marcus

30 August 2016

 
 

PLEASE NOTE:
COMMENTS ARE BEING MODERATED, SO WILL NOT APPEAR HERE AUTOMATICALLY!!!

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SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’


SENIOR SCIENTIST AND LEGAL EXPERTS DISCREDIT ‘EVIDENCE’ USED BY MSD AND DR BRATT WHEN CLAIMING THE ‘HEALTH BENEFITS OF WORK’

 
 

Published 16 August 2016

 

A). Introduction

We have in previous posts on this humble blog-site revealed how frequently made assertions by the New Zealand government’s Ministry of Social Development (MSD), particularly by their Principal Health Advisor (PHA) Dr David Bratt, about the so-called “health benefits of work”, are not supported by proper and sufficient scientific evidence.

It appears that many of the bold claims are based on misleading information and advice that had been taken from a ‘Position Statement’ by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), originally titled ‘Helping People Return to Work’, which was first formally presented in March or May 2010. The since then updated ‘Position Statement’ of the AFOEM is now known under the title ‘Realising the Health Benefits of Work’. Wrong conclusions were for instance drawn from a graph based on statistical data with limited value, on page 14 of the original ‘Statement’ (‘Helping People Return to Work’). An amended ‘Statement’ as part of a stakeholder ‘Consensus Statement’, signed by former AFOEM President Robin Chase on 01 March 2011, does not show the same graph, but mentions frequently quoted statistical information under the heading ‘2.0 HEALTH AND WELLBEING IMPACTS OF BEING OUT OF WORK’ (page 12). That information appears to be based on the same data that was used for the mentioned graph in the earlier ‘Statement’. The mentioned figures refer to the likelihood of a person’s return to work after certain periods of absence from work (due to accidents suffered). The graph was part of a presentation by senior AFOEM members Dr Robin Chase (former President) and Dr Mary Wyatt (then Chair of the ‘Policy and Advocacy Committee’). It resembles a graph ‘5.3’ on page 36 of another report titled ‘Factors Affecting Return to Work after Injury’: A study for the Victorian WorkCover Authority’ by David Johnson and Tim Fry, from Dec. 2002.

Dr Mary Wyatt is also linked to these online website and publication forums:
http://www.rtwmatters.org/opinion/contributor.php?id=2
http://www.rtwknowledge.org/

A link to the PDF with the report available on the Web, titled ‘Factors Affecting Return to Work after Injury’: A study for the Victorian WorkCover Authority’ is found here:
https://www.melbourneinstitute.com/downloads/working_paper_series/wp2002n28.pdf

Another report that has also partly been misinterpreted, but which is not of direct relevance here is the following, more recent one:
‘2008/09 Australia + New Zealand Return to Work Monitor’, by Campbell Research:
http://www.hwca.org.au/documents/Australia%20and%20New%20Zealand%20Return%20to%20Work%20Monitor%202008-2009.pdf

The above mentioned ‘Position Statement’ on the “Health Benefits of Work” was first launched at the AFOEM in March 2010 by Professor Sir Mansel Aylward from the then called ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales. He had been invited to the AFOEM – as part of the Royal Australasian College of Physicians (RACP) – by the then ‘Chair of ‘Faculty Policy and Advocacy’, Dr David Beaumont (formerly also employed by ‘ATOS’ in the UK). Prof. Aylward was asked to present his “evidence” that he and colleagues had gathered and reported on in the UK. Dr Aylward and his colleague Dr Waddell both worked at the mentioned research department at Cardiff University, which had for years initially also been funded by UNUM Provident insurance company. The name ‘UNUM’ was later dropped from the Centre’s name after controversy arose due to that insurer’s US branches’ activities ending in court cases revealing improper activities by assessors they used. Repeated mention is made in the AFOEM ‘Position Statement’ of Prof. Aylward, Dr Gordon Waddell and Kim Burton as senior “research” professionals, who have been pushing for a change in the approach to assessments and treatments of people with health conditions, injury and resulting disability. Prof. Aylward became Director of the Cardiff research department in 2005, after having been ‘Chief Medical Adviser’ for the ‘Department of Work and Pensions’ in the UK for a number of years.

Online copies of the ‘Position Statement’ by the AFOEM:
https://www.racp.edu.au/docs/default-source/pdfs/helping-people-return-to-work-using-evidence-for-better-outcomes-28-05-2010.pdf?sfvrsn=2 (see page 14)
https://www.racp.edu.au/docs/default-source/default-document-library/australian-and-new-zealand-consensus-statement-on-the-health-benefits-of-work.pdf?sfvrsn=2 (see page 12)
https://www.racp.edu.au/docs/default-source/default-document-library/afoem-pos-aus-nz-con-health-benefits-work-pack.pdf?sfvrsn=0

Some links to info on Prof. Aylward, Dr Waddell and Dr Beaumont – found on the ‘web’ (enjoying some controversy):

https://en.wikipedia.org/wiki/Mansel_Aylward
http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/
http://blacktrianglecampaign.org/2012/09/09/professor-mansel-aylward-my-what-a-very-tangled/
https://mikesivier.wordpress.com/2013/01/18/unum-atos-the-dwp-and-the-wca-who-gets-the-blame-for-the-biopsychosocial-saga/
http://dpac.uk.net/2014/09/gordon-waddells-biopsychosocial-attack-on-disabled-people/
http://fitforwork.co.nz/dr-david-beaumont-inducted-as-afoem-presidenthttps://nz.linkedin.com/in/david-beaumont-9437802a
https://issuu.com/maxhead/docs/atos_conference_2004
http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2013/01/29/absenceminded-2005-07.aspx
(See at the bottom: Dr David Beaumont is a consultant occupational physician with Atos Origin…”)

 

B). Most “evidence” appears to be at best inconclusive

At best, much, if not most of the so far presented “evidence” on supposed “health benefits” of staying at work, or returning to work early, while still injured and/or sick, has been inconclusive. Indeed some would argue the whole presumptions that work has significant “health benefits” or is even “therapeutic” is hardly proved; given that many forms of work carry various types of health risks (e.g. stress, occupational overuse syndrome, burnout and potential injury). Even such authors of reports promoting work for persons who are sick and disabled, like Drs Aylward and Waddell, and who claim that for many with “common mental health conditions” or “musculoskeletal conditions” this may even be “therapeutic”, they have often enough admitted that “more research is needed”.

We have shown in earlier posts, how statistical data had been hand-picked, was used rather selectively and presented out of context. We revealed how the information was often only the result of rather limited, randomly conducted interviews, surveys and other poor “research”. Certainly a fair amount of such “research”, for instance from the former ‘Centre for Psychosocial and Disability Research’, now known as the ‘Centre for Psychosocial Research, Occupational and Physician Health’ (PROPH), cannot have been conducted in a sufficiently comprehensive and systematic manner. At least some of it appears to have been done without strictly following commonly accepted scientific approaches (e.g. by interviewing comparatively small numbers of selected participants). Also were many reports simply based on the interpretation of earlier statistical reports, after having merely done “desk research”. The validity and reliability of such reports has been questioned, even though some is claimed to have been peer reviewed. Apparent correlation of variables did not justify making presumptions on the causality of one from the other. Correlation and association does not necessarily conclude causation. Yet this appears to have been done on a number of occasions.

Wikipedia explains the challenges researches often face when evaluating results:
https://en.wikipedia.org/wiki/Correlation_does_not_imply_causation
“”Correlation does not imply causation” is a phrase used in statistics to emphasize that a correlation between two variables does not imply that one causes the other.”

Some bold claims have been made that lack any substance at all, as far as we can assess. And one must suspect that there have been certain efforts made, to provide reports and comments on the “health benefits of work” and the harmfulness of “worklessness”, which may simply serve certain vested interest holding parties. These would be parties like government agencies, insurance companies, employers and their organisations, which may all somehow benefit from the creation of new “paradigm shifts” supporting more short-sighted “cost efficient” approaches in dealing with persons suffering health issues, injuries and work absenteeism.

 

C). Earlier posts on ‘nzsocialjusticeblog2013’ revealing flaws in “evidence” reports and in “presentations” by Dr David Bratt, MSD

One earlier post that revealed flaws in ‘evidence’ and more is found under this link:
‘THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH’
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/

msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16

Many presentations were given by Dr David Bratt, (PHA for Work and Income and the MSD) to numerous meetings and conferences attended by health professionals, educators and also other groups of people. One of them was called ‘Ready, Steady, Crook – Are we killing our patients with kindness?’ It is still found via the internet by clicking this link below:
http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf

In that and some other presentations, clearly intended to influence medical and other health practitioners, to refrain from issuing medical certificates for people to take time off work, highly questionable data has been presented. In ‘Ready, Steady, Crook’ we find this for instance on slides 22 and 23, where not specifically named “Australian and NZ studies” are mentioned, which are supposed to show the percentage based likelihood of persons absent from work for certain periods in being able to return to employment. On the following pages (slides 24 and 25) in that presentation the ‘Adverse Effects’ and ‘Psycho-social Impacts’ are listed, for persons being absent from work for longer periods.

Dr Bratt does have a habit of not mentioning much in the way of his sources and where exactly his information originates from, and he also presents such “data” out of context, apparently trying to send home a kind of targeted “message”.

When looking at many of his presentations, one must wonder, whether he does at least at times not confuse cause with effect, as it is completely normal and understandable that seriously sick or injured people need to take time off work, and the more serious their conditions are, the more likely it is that they will be unable to work for longer periods, due to the duration of recovery and also the severity of resulting disabilities.

When reading and looking at the presentations though, one gets the impression that Dr Bratt tries to suggest, that people get sick from not working, and that being “workless” is the cause of their health issues. While there may well be some truth in it, that being out of work for longer will potentially also have some negative effects on a person’s health, this does not necessarily mean that being out of employment results in sickness and disability. People can stay fit and healthy without being in paid employment, which will be the kind of “work” Dr Bratt and MSD are talking about. Provided people stay active physically and mentally, within their reasonable abilities, we would argue, they will stay healthy whether they are in paid work or not. They may also be happy to rather do some voluntary work, or engage in various activities at home, which are not paid, and thus maintain mental and physical health.

The efforts by Dr Bratt and his employer MSD do rather seem to be intent to move the goal post, or to blur the line, regarding what has traditionally been accepted as being disabling health conditions and/or injuries, and what they may wish to instead have apply in the future. Quite understandably do MSD (with their main department Work and Income), and the government, have a strong interest in reducing the number of persons who may claim a benefit, in this case for grounds of poor health and disability. It would reduce their costs and result in “savings”, at least in the short to perhaps medium term. They do clearly have a vested interest that is at play here.

 

Some other presentations by Dr Bratt, repeating similar data and claims:

‘If a Benefit was a Drug would You Prescribe it?’, Rotorua, June 2010:
http://www.gpcme.co.nz/pdf/BO%2012%20830am%20David%20Bratt%20Benefit%20were%20a%20Drug%20V2.pdf
(see slides 15 to 22, particularly slide 18, and slide 31, which are of relevance in relation to this post)

‘Medical Certificates are Clinical Instruments Too!’, GP Presentation, 2012:
http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf
(see slides 25, 26 and 33 as being of particular interest in relation to this post)

‘Benefit Sunshine’ “Is being on a Benefit Bad for your Health”, Welfare Working Group Forum, Wellington, June 2010:
http://igps.victoria.ac.nz/WelfareWorkingGroup/Downloads/Forum/David-Bratt-Benefit-Sunshine.pdf
(see slides 6 to 9 as being of particular relevance in relation to this post)

‘Happy Docs – true generalism with Welfare Reform’, RNZCGP Presentation, July 2013:
http://www.conference.co.nz/files/docs/gp13/1100%20-%20cs3-a%20-%20happy%20docs%20true%20generalism%20with%20welfare%20reform%20-%20david%20bratt.pdf
(see slides 21 to 23 as being of particular relevance in relation to this post, slide 22 also contains questionable data gathered through an unscientific, random survey of GPs)

 

Comment by the Author

The above does already imply that a kind of “agenda” appears to have been followed by certain members of the AFOEM, and in the consequence also by government departments in Australia and New Zealand, such as MSD, with the intention to reduce work absenteeism, prolonged unemployment resulting in either insurance claims or benefit receipt by persons with sickness, injury and disability. The aim was first and foremost to reduce costs and liabilities. Looking at the “presentations” used by Dr Bratt gives an informed and educated reader the immediate impression, that information is presented with the intention to influence medical practitioners such as general practitioners, and to get them on side in the efforts by the government agencies and also other vested interest organisations and departments to achieve the mentioned outcomes. In the following we can now show, how their so-called “evidence” has been challenged and proved wrong by a senior scientist and also by legal experts.

 

D). Gordon Purdie, BSc and Biostatistician, from the University of Otago – Wellington presented the following critical ‘Opinion’ publication in the ‘New Zealand Medical Journal’ (NZMJ), published on the New Zealand Medical Association website

 

“Is the statement that if a person is off work for 70 days the chance of ever getting back to work is 35% justified?”

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729

“The 2010 Australasian Faculty of Occupational and Environmental Medicine (AFOEM) position statement, Realising the Health Benefits of Work1 contains the following statements:
Work absence tends to perpetuate itself: that is, the longer someone is off work, the less likely they become ever to return.
If the person is off work for:

• 20 days the chance of ever getting back to work is 70%;
• 45 days the chance of ever getting back to work is 50%; and
• 70 days the chance of ever getting back to work is 35%.

The statements are referenced to a study for the Victorian WorkCover Authority by Johnson and Fry published in 2002.2 However, the reference does not contain the statements or results that could support them.

The statements are being repeated by New Zealand3 and Australian4,5 government agencies, in the explanatory memorandum for a bill to amend the Safety, Rehabilitation and Compensation Act in Australia,6 non-government organisations7 and the commercial sector, including insurance.8 They were presented to the New Zealand Government’s Welfare Working Group Forum in the context of influencing government policy.3 The statements are frequently referenced to Johnson and Fry.2 They have appeared in international literature,9 also referenced to Johnson and Fry.2 “.

“Misinterpretation of survival curves”

“The conclusions appear to be based on the misinterpretation of survival curves. …”

(Read the full commentary on the website or in the attached PDF file!).

“The statements use”

“The statements are being used to support statements like: “Urgent action is required if a person is not back at work within a matter of weeks. If a person is not back at work within three weeks urgent attention is needed”11 even though the data is for time after an initial 10 days off work.”

“The incorrect statements about the chance of ever getting back to work are being presented to general practitioners (GPs) continuing medical education conferences in the context certifying people as unfit for work, together with statements like the ‘benefit’ is “an addictive debilitating drug with significant adverse effects to both the patient and their family (whānau)”.13 They are being presented to GPs in the context of assisting patients to safely stay at work or return to work early.4 These appear to be encouraging GPs to assess injured and unwell patients as having capacity for work and not issuing medical certificates for work incapacity. This could result in the cessation of welfare benefits or injury compensation. When these patients lack the capacity to work, they could experience increased financial hardship. For example, people might move from injury compensation to an unemployment benefit, and those without benefit entitlements to no income.”

And take note of this sentence (as quoted):
“The statements have also been presented with the intent to influence public policy.3,6,14.

Here is a link to the down-loadable PDF file with this report:
https://www.nzma.org.nz/__data/assets/pdf_file/0005/45905/Purdie-1874FINAL1425.pdf

 

Please find hear some information on the author, Gordon Purdie, Department of Public Health, University of Otago – Wellington, on the University’s website:
http://www.otago.ac.nz/wellington/departments/publichealth/staff/otago024934.html

“Research Interests and Activities”

“Gordon is part of a team in the Department of Public Health which provides statistical consulting to health researchers. Within the Health Inequalities Research programme, he is involved in the Differential Colon Cancer Survival by Ethnicity in New Zealand project and also works with Te Rōpū Rangahau Hauora a Eru Pōmare on several research projects, including Unequal Treatment: The Role of Health Services.

Gordon’s concerns include discrimination and inequalities, which are reflected in his health research.”

 

E). Opinion by respected West Australian legal experts on the controversial “evidence” that Dr Bratt and MSD, and even the RACP’s AFOEM have so often presented

Connor Legal – Barristers and Solicitors:

‘The Health Benefits of Work (Part 1)’
http://connorlegal.com.au/2014/09/health-benefits-work-part-1/

Extract from their website:

“According to WorkCover’s latest public relations handouts to medical practitioners, “work generally is shown to be good for health and wellbeing”, and “Research shows that early return to work is important to recovery”.

Let’s just pass over the amusing irony inherent in the claim that the very activity being performed by a patient at the time of injury, i.e. “work”, was in fact beneficial for that patient. Instead, let’s look at the evidence that WorkCover assures GP’s “overwhelmingly” supports these surprising statements. I’ll deal with the early return to work claim first since it is the most ludicrous.”

And here is another bit:

“So, the claim being made is that time off work causes time off work, because while they are away from work, workers are denied the “health benefits of work”. Denial of these benefits prejudices recovery, so workers take longer to get better. That this is so, is indicated by the table which shows a negative association between time off work and the chance of returning to work: greater absence – lower probability of return to work.

However, the claim is fallacious as (for a start) “correlation or association is not causation”. There are numerous examples available to illustrate this fallacy. An amusing one is as follows:….”

Read their further comments in that article on their blog on their website!

And have a read of this latest article, is it not “bizarre”, how the truth has to come out only so late, and this is just in relation to this one bit of “evidence” Bratt et al have thrown at us:

‘The Health Benefits of Work (Part 4)’
http://connorlegal.com.au/2016/06/the-health-benefits-of-work-part-4/

Extract from the website:

“Dr Purdie’s criticism was accepted by the the Faculty of Occupational and Environmental Medicine, RACP (NZMJ 19 February 2016, Vol 129 No 1430):

Dr Purdie makes a number of points about information in the Health Benefits of Work position statement and subsequent publications. We respond to his points in turn. Dr Purdie raised concerns that we have misinterpreted or misrepresented the survival curves. We concur, in retrospect, that we have not interpreted the survival curve correctly. We thank Dr Purdie for drawing this to our attention. The curve does indicate that the longer someone is off work the lower the chance of the individual returning to work, however the percentages quoted are not accurate. The concordance of the evidence supports the principle, if not the precise detail. We have recently published an update of the evidence and we plan to update the position statement.”

Read their further comments in that article (see link above)!

And here are other articles from this series of qualified and intelligent commentary:
http://connorlegal.com.au/2014/10/health-benefits-work-part-2/
http://connorlegal.com.au/2014/10/health-benefits-work-part-3/

We most strongly recommend that you read the whole lot, it proves that we have been served misleading nonsense with the “science” they use to justify assessing many seriously sick and disabled as “fit for work”, even when they have no realistic chance of getting a job.

Dr Bratt, Principal Health Advisor at MSD and for WINZ and his apparent academic master lecturer Mansel Aylward have been exposed, yet again.

 

F). Other report/s that question the usefulness and credibility of the ‘bio-psycho-social model’ promoted by “experts” like Prof. Dr Mansel Aylward and like minded scientists

 

‘In the expectation of recovery’, Faulkner, Centre for Welfare Reform, on ‘Scrib’:
“In the Expectation of Recovery”
‘MISLEADING MEDICAL RESEARCH AND WELFARE REFORM’
by George Faulkner, Published by The Centre for Welfare Reform, April 2016
https://www.scribd.com/doc/308613502/In-the-Expectation-of-Recovery
(With criticism of the biopsychosocial model, used and defended by Aylward et al)

 
 

G). Concluding Comments

So we have over many years been misinformed, by “experts” presenting us wrongly interpreted statistical data, questionable results from series of interviews and surveys offering only limited value, all designed and aimed at telling us that sick, injured and incapacitated persons need to be kept in paid employment by all means, as that is for most the best “therapy” to recover. Serious sickness and injuries are meant to only be temporary, and people who consider themselves too sick or injured to return to work, may simply just suffer from a victim attitude or “fool themselves” into believing they are not able to work.

Cause and effect appear to have been confused and false conclusions have been drawn from reports that were often just the result of desk research by persons who seem to have been overly keen to prove their views and interpretations of gathered information and viewed earlier reports.

We have taken note how some of the quoted “experts”, such as Dr David Beaumont, same as Prof. Aylward and others, have over recent years made efforts to rewrite certain information on their own or affiliated websites, and have now also made it more difficult to find older information that once used to be freely available on the internet. For instance Dr Beaumont’s profile on the ‘Fit For Work’ website reveals nothing about his former work for ‘Atos Origin’. Other information has suddenly vanished or changed. The former ‘UnumProvident Centre for Psychosocial and Disability Research’, of which Dr Aylward has been Director, was many years ago suddenly renamed, so the name ‘Unum’ vanished, and little info is found now, on their past involvement in establishing and funding the research department at Cardiff University.

These are just some things we note, and we must presume more information is “refreshed”, “reviewed” and “represented” or deleted while we read this here. It is time to be alert at all times, to challenge the persons who have been involved in all this, and to expose more of the truth, such as the respected professionals have done, whose new findings and revelations have surely discredited the so-called “evidence” on the “health benefits of work”.

 
 

Quest for Justice

 

16 Aug. 2016

 
 

For some other, earlier posts of interest, that also relate to this topic:
https://nzsocialjusticeblog2013.wordpress.com/2013/09/02/medical-and-work-capability-assessments-based-on-the-controversial-bio-psycho-social-model/

https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/
(see also parts B’’ to ‘I’ )

https://nzsocialjusticeblog2013.wordpress.com/2014/10/05/work-has-fewer-health-benefits-than-mansel-aylward-and-other-experts-claim-it-can-cause-serious-harm/

https://nzsocialjusticeblog2013.wordpress.com/2014/10/19/nz-finance-minister-bill-english-insults-beneficiaries-with-mansel-aylwards-work-will-set-you-free-approach/

 
 

UPDATE / ADDENDUM FROM 21 AUGUST 2016:

 

Now available in full on the New Zealand Medical Journal or NZMA website:

‘We respond to Dr Gordon Purdie’s Viewpoint, 20 November 2015’

“Mary Wyatt, on behalf of the Faculty of Occupational and Environmental Medicine, RACP”

19th February 2016, Volume 129 Number 1430

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2016/vol-129-no-1430-19-february-2016/6822

The PDF version found via this link:
https://www.nzma.org.nz/__data/assets/pdf_file/0017/47204/Wyatt-2181-NZMJ-1430-FINAL.pdf

 

Comment on the contents:

Of course the persons responsible at the AFOEM and in the UK would never back down from their bizarre position, trying to save their reputation with presenting further hand-picked statistical reports and “evidence”, twisting the truth ever more.

Using statistics from selected groups of (injured) persons for a few geographical areas for certain (mostly long past) periods, and claiming their position is “generally” true, but admitting there are significant variations and other unresolved questions, the AFOEM and its representatives do increasingly look ridiculous. How can they use statistics gathered on accident patients with injuries, and use that info also for various forms of sickness (e.g. congenital conditions) and mental health conditions generally, we ask?

We will endeavour to cover more on this, and will follow the “review” and changes to the AFOEM/RACP “Position Statement”, and what else may come to “explain” and “excuse” their misrepresentation of information.

 

ADDENDUM: FURTHER INFO OF RELEVANCE TO THIS TOPIC – FROM 30 AUGUST 2016:

 

Dr David Bratt, Principal Health Advisor at the MSD, he has a long track record, and has been known for his strong “pro work” focus for many years now, he was once also on the ACC Board (see link):

https://www.beehive.govt.nz/release/minister-announces-appointments-acc-board

From 04 Aug. 1997, about 19 years ago:

‘MINISTER ANNOUNCES APPOINTMENTS TO ACC BOARD’

“David Bratt, who is a senior partner in the Newtown Medical Centre and has been a GP for 26 years. He is the Chairperson of the Wellington After-hours Medical Centre, and a board member and trustee of the Te Hopai Trust Board. “These new board members bring a range of experience and skills in health care, the insurance industry, road safety and business management that will make a valuable contribution to the board ” the Minister said.”

He is a New Zealander, now the PHA for MSD and WINZ, and has been behind the new “work focus” approaches at WINZ since 2007, even been appointed under the then still ‘Labour’ government (following advice and ideas from the UK). But he has had visits from Prof. Aylward (‘google’ his name, same as Dr David Bratt’s name) – that UK “expert”, who has a lot to answer for also. Bratt was even visiting that “expert” in April to May 2014, in the UK, to get more “training” from him.

More re Bratt and all that he has to do with:
https://nzsocialjusticeblog2013.wordpress.com/2015/08/09/msd-and-dr-david-bratt-present-misleading-evidence-claiming-worklessness-causes-poor-health/
https://nzsocialjusticeblog2013.files.wordpress.com/2016/09/msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16.pdf

 

The magazine ‘NZ Doctor’ has published this on YouTube, the two “experts” repeating the flawed mantra:

Aylward and Bratt, a clearly coordinated effort.

And they both love to stress how they also sucked the unions into their “consensus”, see the following videas with speeches by Dr Beaumont and others from the AFOEM, part of the RACP:


‘Implications of the Health Benefits of Work for New Zealand’, Panel Discussion, Wellington, 01 April 2015

See Dr Bratt as the third person from the right! And Dr Beaumont is of course “chairing” the whole event. God forbid, I wonder whether Helen Kelly does now regret ever having the CTU sign up to all this ideologically driven nonsense?

Dr Bratt appears to be arrogant and seems to emphasize his ideas, based on his developed views as a result of his interactions with Prof Aylward, who is by some considered to have been indirectly responsible for a fair few deaths through failed “welfare reforms” and flawed assessments he developed and help bring in (e.g. the tests he developed that led to the ‘WCA’) in the UK.

And our dear Minister for Social Development, Anne Tolley, has sucked it all up, believing this is the magic and best solution for sick, injured and disabled dependent on benefits:

Or alternatively try this link:
https://youtu.be/P7QziiRzAdQ

“Get em off benefits, get em off ACC, get em working”, no further questions asked, it is all “healthy”, and look at the “actuarial outcomes”, oh yeah. Count the reduced numbers of lingering beneficiaries, who have not “responded” yet to “services”. I know about “wrap-around services”, as a mental health sufferer – who I know – asked WINZ for paying disability allowance for counselling at $200 a session, the WINZ manager never got back, as they will not pay this, same as they will not pay for other services that cost more than the maximum $61 or so in Disability Allowance per week. Get on with it, is the message, forget your “ills” and get a job, that is all the recipes they know. Thank you, Anne Tolley, what you defend and propagate is a sick joke.

 

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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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HOW THE HDC THROWS OUT VALID COMPLAINTS AND PROTECTS CODE BREACHING HEALTH PROFESSIONALS – A TRUE STORY


HOW THE HEALTH AND DISABILITY COMMISSIONER THROWS OUT VALID COMPLAINTS AND PROTECTS CODE BREACHING HEALTH PROFESSIONALS – A TRUE STORY

 

Published 28 March 2016

 
 

CONTENTS

PART 1: INTRODUCTION

PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S

PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY

PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’

PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE

PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER

PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE

PART 8: CONCLUSION

 
 

PART 1: INTRODUCTION

 

When visiting your general practitioner, a hospital, a laboratory, a rehabilitation or counselling service, yes any health or disability services provider, you will most likely have noticed the prominent information posters and brochures, that tell you about your “rights” as a consumer, to take any complaints you may have to the so-called ‘Health and Disability Commissioner’ (HDC). What you read may sound and look very re-assuring, and you would trust, that we are as consumers well looked after here in New Zealand. In many less serious cases people who have various forms of grievances may indeed find some satisfactory resolution to the issues they have with a provider and their service. Generally consumers are advised to first discuss these with their provider, who may offer a remedy that keeps the consumer happy, or at least from taking a matter further. Others may get referred to an HDC advocate, who may briefly assist by offering guidance, advice or casual mediation, to resolve matters with a provider.

Only some people will ever be affected by more serious health or disability services issues. These may perhaps happen in the form of harm suffered due to significant mistakes made by health practitioners and service providers during treatment, or as a consequence of other forms of serious professional malpractice or misconduct. Such failures can happen due to negligence, poorly followed administrative or practice processes, and poor communication may also be an issue. There can also be cases where ethical conduct standards are breached. Often only then, when things get more serious, when significant physical, psychological or emotional harm is suffered, will affected people feel that they have a compelling reason to file a complaint with the Health and Disability Commissioner.

They will trust that their complaint will be taken seriously, that it will be assessed thoroughly, fairly and reasonably, and that the patient and consumer will be listened to. Some will consider that it is important to provide as much detail and information as possible, to have the Commissioner, his Deputy, his Associate and their office staff members feel enabled to carefully, competently and fairly assess and then investigate the matter, so that a deserved, just and acceptable resolution may be offered.

But it is often also then, when the patient will eventually find out, what the law actually says and means, in regards to the handling of any complaint under the so-called ‘Code of Health and Disability Services Consumers’ Rights’ (the Code), which the Health and Disability Commissioner is responsible to administer, promote, enforce and review. The Commissioner is working under the ‘Health and Disability Commissioner Act 1994’ (HDC Act), which sets out his role, functions and responsibilities. Only those well familiar with that Act, and also with other important legislation, such as the ‘Health Practitioners Competence Assurance Act 1993’, the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, same as the Health Information Privacy Code 1994’ (HIPC1994) and other relevant legislation, will understand the complexities of how the system operates.

There are provisions in the HDC Act that relate to, or interact with, provisions in various other statutes, such as the ‘Health Practitioners Competence Assurance Act 1993’. There are certain regulations, there is the ‘Code of Ethics for the New Zealand Medical Profession’, and there may even be other Codes by certain professional organisations or authorities, which apply to practitioners separately. Some Code of Ethics principles may overlap with the ‘Code of Health and Disability Services Consumers’ Rights’, but the HDC’s jurisdiction is restricted to applying ‘the Code’ – for which he is responsible. The ‘Purpose’ of the HDC Act states: “The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.”

This all sounds good, but certain statutory provisions will limit and impact on what the Commissioner can or must do, and the ‘HDC Act’ itself gives the Commissioner an incredibly wide scope for using discretion to take some action or to take no action, which few ordinary citizens really know about. Two “key ways” through which the HDC “promotes” and “protects” the rights of consumers, are by way of “resolving” complaints about infringements of rights, and through “education” of both consumers and providers (see Annual Report 2012/13, ‘2.1’ on page 7). But “resolving” may mean something very different to what the ordinary consumer may expect. “Complaints resolution” must rather be understood as an administrative concept, when looking at how the HDC and his Office staff deal with complaints, which is reflected in the Annual Reports.

It is often only towards the end of a potentially rather lengthy complaints process, that complainants may suddenly find, that what they face, is anything else but transparent, straight forward or fair and reasonable. In a fair number of cases, even rather serious ones, the Commissioner may suddenly inform the complainant, that no investigation is necessary, or that no further investigation is appropriate. One important provision in the HDC Act is section 38, which offers the Commissioner and his Deputies much discretion to decide whether to take any action on a complaint, or whether not. This gives the HDC much discretionary power in his crucial role that he plays as the de-facto “gatekeeper” in the health and disability complaints resolution system. The HDC usually decides whether a complaint may be investigated or not. We must bear in mind that all complaints made by consumers will inevitably end up before the HDC, before they may in very few cases ever end up before the Human Rights Review Tribunal, the Medical Council or any other registration authority (see section 64 ‘Health Practitioners Competence Assurance Act 2003’).

The various actions which the Commissioner can take, where a breach has been established, are also rather discretionary and offer a range of limited options. The HDC can mostly only recommend that certain courses of action should be taken by providers or authorities. Firstly section 34 enables the Commissioner to refer a complaint to the appropriate authority, or the Accident Compensation Corporation (ACC), the Director General of Health, or as it more often so happens, to the service provider to resolve. Section 36 enables the Commissioner to refer the complaint to a statutory officer (Human Rights Commissioner, the Chief Ombudsman or the Privacy Commissioner), and section 37 allows him to refer the matter to an advocate to resolve. The HDC Advocacy service has been expanded over years, to deal with more complaints, most of which go directly to that service branch within the Office, while some formal complaints made to the HDC will also end up there.

As already mentioned, section 38 allows the Commissioner to decide whether to take any action himself, or not, while “having regard to all the circumstances of the case”. That particular phrase is used in many response letters with decisions to take no further action. It can be seen as offering the HDC a very generous legalistic terminology to justify and defend, what he may have done and deemed relevant to have regard to in a complaint matter. With the help of their internal professional Legal Advisors, the HDC is usually well equipped to assert they have considered all that needed to be considered, and a consumer would usually need proper legal advice and representation to challenge decisions by the HDC, where that phrase is used. Section 38 may be used by the HDC to refuse to investigate a complaint, or to take no further action on an assessed complaint that may first have been investigated. But despite of no further action being taken, the HDC can and does in some cases still make certain recommendations to a practitioner or provider, probably more often so in less serious cases.

Section 40 allows the Commissioner to investigate a complaint, if the action is, or appears to him to be, in breach of the Code. Section 45 then gives the Commissioner the authority to “report” an “opinion” to a service provider, and to make “recommendations” as he sees fit. An opinion may also be “reported” to an authority, a professional body, the ACC or any other person he considers appropriate. A complaint may be made by him to any authority in respect of any person, and he may also refer a complaint to the so-called Director of Proceedings.

Recommendations that the HDC may make do commonly include asking the health practitioner or service provider to offer an apology, and he may recommend extra training or improved administrative or other treatment related processes to be put into place. Given the apparent limitations – or wide discretion – which the HDC Act offers the HDC for possible measures to resolve complaints, the consumer’s and complainant’s expectations will in at least many serious cases often be disappointed. The explanations given are often anything but re-assuring to the affected patient or his/her relatives, who will be left with no, or only ridiculously limited forms of “remedy” for the great harm he or she may have suffered.

 

The HDC’s website and the Office’s Annual Reports show some revealing complaint figures:

Year: New Complaints: Closed Complaints: Investigated Complaints:
2015 1,880 1,910 100
2014 1,784 1,901 115
2013 1,619 1,551 60
2012 1,564 1,380 44
2011 1,405 1,355 27
2010 1,573 1,524 51
2009 1,360 1,378 112
2008 1,292 1,295 100

Year: Code Breached: Referred to Director of Proceedings:
2015 70 14
2014 79 23
2013 42 16
2012 29 8
2011 11 4
2010 36 5
2009 72 15
2008 59 22

 

Links to HDC website and Annual Reports:

http://www.hdc.org.nz/
http://www.hdc.org.nz/media/294868/hdc%20annual%20report%202015.pdf
http://www.hdc.org.nz/media/276015/hdc%20annual%20report%202014.pdf
http://www.hdc.org.nz/media/250804/hdc%20annual%20report%202013.pdf
http://www.hdc.org.nz/publications/other-publications-from-hdc/annual-reports/annual-report-for-the-year-ending-30-june-2012
http://www.hdc.org.nz/media/188004/annual%20report%202011.pdf
http://www.hdc.org.nz/media/158595/annual%20report%202010.pdf
http://www.hdc.org.nz/media/31143/report%202009.pdf
http://www.hdc.org.nz/media/18366/annual-report-website08.pdf

 

Annual Reports reveal “output targets”, tight budget and criteria limit investigations

What people will only learn by reading the Annual Reports of the HDC is the fact, that they have tight internal “output targets”, which means, they are expected to get 80 percent of complaints “resolved” within only 6 months, 95 percent within 12 months and 99 percent within two years. This does simply mean that a firm, tight preliminary assessment process takes place that involves the reading, analysis, categorisation, prioritisation and selection of complaints that may be deemed “serious enough” to look at more closely internally. In only very few cases will these be formally investigated. The HDC has revealed in at least one of his ‘Annual Reports’ that: “In recent years, investigations have increasingly been used for only the most serious matters such as allegations of sexual impropriety, and other behavior involving significant breaches of ethical and professional boundaries, and major lapses in standard of care” (see ‘Annual Report 2007-08’, page 5 under ‘Investigations’). Looking at the statistics published since then, the HDC has not departed from this approach. Given budget limits the Office has, staff would inevitably be under pressure to get most of the complaints out of the way within those target time frames, and as formal investigations, even just initial, less formal investigations, do take up a lot of time and resources, this must inevitably result in most complaints being moved on or out without being investigated. They will possibly fall under section 38 decisions, where it is decided that any action or further action would be “unnecessary” or “inappropriate”. Some will though also be referred back to the provider to resolve, or to other agencies/authorities, or alternatively to the advocacy services, who already have a high workload themselves to cope with. A fair number of complaints are also ruled as being outside of the Office’s jurisdiction.

The complaints that will actually be formally investigated make up only a tiny percentage of all complaints, and of these again only a proportion are then determined as having established a “breach” of the Code. Only between about 2 and 4 percent, seldom up to perhaps 9 percent, of all complaints tend to be “formally investigated”, going by the data for the last 8 or so years. And as the HDC Office has a limited budget to fund its operations, and while staff numbers have only marginally increased, the ever increasing complaint numbers will lead to an even tighter assessment criteria being used, to more prioritisation and reprioritisation of its internal case workload, so that less time and attention may be spent per processed complaint. It is of course Parliament, in fact rather the majority holding government, which ultimately holds the purse strings for the HDC Office. As the government does as primary health and disability services provider (e.g. through DHBs and their contracted providers) also have an interest in keeping complaints at a minimum, there is of course at least some interest to discourage complaints. This may be “helped” by capping funds for the HDC’s operation. Many disappointed complainants will share their negative experiences, which in turn may eventually also discourage others in the public to even bother making any complaints.

There are only bi-annual, random and limited surveys that the HDC conducts for his main complaints resolution service, to which often only half or even fewer of the approached complainants respond. As individual service providers and District Health Boards (DHBs) are also included in surveys, it is no wonder that the results of such surveys tend to be more positive as they would be if only complainants would be asked questions. Such sample surveys, to which only some of the surveyed persons or parties respond, can hardly be seen as truly representative. But even the HDC’s surveys tend to show less satisfaction among consumers. The survey published in the ‘Annual Report 2014-15’ showed that the HDC did not meet their target of 80 percent consumer and provider satisfaction, as only 65 percent appeared “satisfied” with their service (see page 38 under ‘Output 1 – Complaints management’). The ‘Annual Report 2012-13’ shows on page 39 under ‘Output Class 1: Complaints resolution’ that only 71 percent of only 255 respondents to that survey felt that overall the “complaint process” of the HDC was “fair”, and only 63 percent agreed it was “timely”. The ‘Annual Report 2008-09’ gave a better overview of an earlier survey, where only 67 percent of complainants (then listed separately from providers) felt their complaint was taken “seriously”, where only 62 percent of the same felt the complaint had been dealt with “fairly” and only 64 percent felt their complaint had been “dealt with impartially”. Only 57 percent of complainants understood the reasons for the decision and only 54 percent were “satisfied” with the “management” of their complaint. Such break-downs are no longer provided in the more recent reports. 229 complainants, 188 individual providers and 13 DHBs took part in that survey, representing a 47 percent response rate. On an ongoing basis about 33 percent of advocacy service users get surveyed monthly, but as that service deals with rather low level complaints, it is not surprising that consumer satisfaction is greater for that.

Going over the ‘Annual Reports’ of the HDC Office gives the observer the impression of reading an annual report of a commercial business or that of a corporation, with nice sounding language, phrases and terminology, with a strong emphasis on positive outcomes, repetitive mention of a “customer focus” and so forth. But this appears to rather be a further example of glossing up the less pleasant reality, to present it as something that it does not really look like.

Upon dissecting the information, and analysing the data in those reports, and what is published on the HDC website, it becomes apparent, that the HDC Office does rather look like a kind of “clearing house” for complaints, where they are simply examined, sorted and in large numbers passed on to providers, other agencies and authorities. And a high number of complaints are always dealt with as needing no or no further action, so that they are “closed” and leave a complainant with few or rather no alternatives to have grievances addressed. Not insignificant are complaints about matters that the HDC considers to be out of their jurisdiction. The Office does in its large part rather resemble a “transfer station”, where only a tiny number of complaints will stay to be looked at more closely and then get more or less formally investigated.

It seems to be nothing more than a “monitoring service” to help the government and providers keep an eye on where some problems may exist, and where some action may then be needed, to avoid further future problems to arise. It is through using received and gathered information, for the purpose of “education”, e.g. by presenting six monthly complaints review reports to DHBs and by making the odd “recommendations” to providers, that the Office seems to think it needs to act to bring “improvements”. That is besides of general “advocacy services” for consumers, and the now also integrated “systemic monitoring and advocacy service” of Mental Health and Addiction Services through the Mental Health Commissioner, which the HDC seems to be preoccupied with. Page 10 of the published ‘Annual Report 2015’ even showed that the position of “Mental Health Commissioner” was at that time “vacant”. So much for a “commitment” to that, I presume.

The remaining “complaints resolution” is focused on the small number of the most serious infringements that are found. The practitioners that are considered to have infringed the Code are though often let off lightly, with a kind of “warning” in the form of recommendations to improve and apologise, and the consumer is left with nothing much more than an apology and assurance that such things will be avoided in future. But it is in our view also not credible, that there are only such a small number of complaints, where infringements of the Code are established. It is not credible that of all the complaints made by consumers of health and disability services to the HDC, only so few involve breaches of the Code that deserve to be investigated. There must be a much higher number of breaches occurring, including a higher number of more serious infringements, yet they are never brought to the attention of the public, as they are “resolved” in the highly discretionary manner that the HDC operates under. This is not right and not acceptable, and we do deserve more transparency and more action, yes indeed law changes to the HDC Act. The law and the complaints system should provide for more mandatory action by the HDC that must be taken to also satisfy the needs of aggrieved customers, and where they may have deceased, their relatives and friends. There is a strong and urgent need for providing deserved, fair and reasonable remedies for consumers and their relatives that have been badly affected in so many cases.

 

Complaint matter covered in this post

This post looks at one perfect example of how some complainants are simply left with nothing short of an appallingly deficient “resolution system” that we have under the HDC. It shows us, that the HDC and his staff use every opportunity and legal provision that is available to them under the Act, and even outside of it, to off-load complaints as not deserving to be investigated, where they simply cannot be bothered. They do at times use bizarre explanations, or excuses, to justify their actions or inaction. When you read it you will realise that a probably ever increasing number of complainants are not at all getting much of an acceptable or even satisfactory “resolution” under the present supposed “watchdog”, who is after all a man who did for many years pursue a successful career as a senior administrator in the public health system. As a lawyer who worked for the Ministry of Health for 15 years, he will know many leading administrators and possibly even practitioners in the system, and has himself stated at the beginning of his appointment as HDC, that he will rather use “advocacy”, “education” and “mediation” as ways to resolve issues and to improve systems.

We are as consumers misled to believe we get a quality grievance resolution service, as implied in the nice, friendly worded, re-assuring brochures at for instance your doctor’s practice. In reality, we do merely have a kind of overloaded, overstretched monitoring service, where the Commissioner appears to pick and choose the cases he and his Deputies may consider valid enough to have a closer look at, upon his or his staff’s sometimes bizarre assessments. He may then take the actions he considers necessary on a case by case basis. If a complaint involves already caused fatal or major physical or mental harms, and has perhaps already been reported on in the community or media, then there is a chance of a proper investigation being conducted. If this is not the case, there seems to be only a slim chance of getting a practitioner and service provider held to account for any of their failures (i.e. breaches of the Code).

This case involves a person with complex mental health and addiction issues, so some may consider it as being less “representative” as other cases, for instance where physical injury or sickness are at the core of issues. But nevertheless, matters of processes not being appropriately followed, of bizarre excuses being made, of apparent bias or natural justice being ignored, these must all be of concern to persons who have to deal with the HDC at some time in their lives. This may potentially include us all. It must be noted too, that only from 2012 on, after the abolition of the separate Mental Health Commissioner’s Office, did the HDC Office have a Mental Health Commissioner as part of their team. That integrated Commissioner was then tasked with “monitoring” mental health and addiction services and with assisting through advocacy, of which we have so far only seen marginal effective use being made.

As stated above, and in earlier blog posts here, under the present HDC complaints “resolution” system, only a tiny percentage of all complaints received by the HDC are actually formally investigated (see the ‘Annual Reports’). To learn more about other various issues that a fair number of complainants have had with the HDC, read also the two older posts found under these links:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

Those posts shine light on the Commissioner, his Deputy and Associate Commissioners, presented other true complaint cases, they explain the legal framework, offer a range of revealing, interesting media reports, show how some persons felt offended by the Commissioners’ decisions, and they also offer other in depth analysis and useful information.

 
 

PART 2: COMPLAINT ABOUT BREACHES OF THE CODE BY A+D COUNSELLOR/S

 

The complainant, whose personal details and identity we have promised to withhold and protect, first filed a complaint with the HDC on 08 August 2011. Having received poor, questionable and ineffective counselling services provided by an alcohol and drug (A+D) counsellor (then still in training) from an established service provider. He stopped consulting the counsellor, after being refused a reasonable letter of support, which should have stated his health conditions and difficulties in coping with stress and life challenges. That kind of letter was crucial for the client to access other support, also to assist in effectively dealing with two legal issues that had arisen, which were threatening to throw him off course with his treatment and rehabilitation plan. The counsellor had at various times been ambiguous and contradicting himself about the scope and type of support service he could offer. While trying a couple of different approaches, to help the client address his life and addiction issues, he failed to maintain the trust of the patient, as he appeared to lack the necessary professional capability, competency, sufficient objectivity and true empathy. Only upon initial reluctance by staff of the provider was the client provided with his whole client file, which revealed how totally incorrect details had been entered by the counsellor, whom he felt he could no longer trust.

It became evident that the counsellor misinterpreted factual information shared with him during counselling sessions, and he also appeared to display a personal bias when working with the client. Some information was recorded correctly at first, and changed weeks or months later, to state very different, conflicting details, which were in part completely untrue. The counsellor also recorded false information on the medication intake of the client, ignored early signals for risks of self harm, and he was generally inconsistent and sloppy with record keeping. Some personal information, some of which was even untrue, had also been passed on to the complainant’s general practitioner (GP), through him to a WINZ “designated doctor” and ‘Cornwall House’ mental health services, without the knowledge of the complainant. When confronting the service provider’s Supervisor and Team Leader, mistakes that were made were not accepted, were excused with bizarre explanations, and an apology was refused. The conduct of a follow up counsellor, who had relied on a summary by the earlier counsellor of the same service, which also contained mistakes, was also unhelpful. She was as Supervisor also a senior colleague of the counsellor, from whom the client/complainant had sought a change.

In the end, upon reflection and careful analysis of his obtained whole file, and after this unprofessional, ineffective and unacceptable treatment by the service, the client decided to compile a detailed complaint letter. It did not only refer to many individual points at issue that he established, but it was also referenced to particular ‘Rights’ in the ‘Code of Health and Disability Services Consumers’ Rights’ that were breached. Also mentioned as being of relevance were a number of Principles and/or Core Values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ (DAPAANZ), which was the professional association with which the counsellor and follow-up counsellor of the client were registered.

 

The particular rights that the complainant saw breached under the ‘Code of Health and Disability Services Consumers’ Rights’ were:

 

Right 1
Right to be treated with respect
(1) Every consumer has the right to be treated with respect.
(2) Every consumer has the right to have his or her privacy respected.
(3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori.

Right 3
Right to dignity and independence
Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

Right 4
Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(3) Every consumer has the right to have services provided in a manner consistent with his or her needs.
(4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

Right 5
Right to effective communication
(1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided. Where necessary and reasonably practicable, this includes the right to a competent interpreter.
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

Right 10
Right to complain
(1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.
(5) Every provider must comply with all the other relevant rights in this Code when dealing with complaints.

We will not list the principles and core values under the DAPAANZ Code that were considered to also be breached, nor will we print out the whole complaint letter here, as we think it is best you download and read it in full, found via this link to a PDF copy of it:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, ltr, anon, 08.08.2011

Here is a link also to the DAPAANZ website and their Code (from 2005):
http://www.dapaanz.org.nz/code-of-ethics/
(Please note that any references in the complaint to the Board and Executive of DAPAANZ are historic, as membership of these have since changed!)

What we wish to stress is the fact, that we have hardly ever seen such a detailed and comprehensive, yet well presented complaint, which should definitely have deserved to be taken seriously by the HDC, but which was not, as we will report on in the following.

 

Concise summary of contents of the complainant’s initial letter to the HDC

The complainant did in his letter first present a summary of the particular Rights of the ‘Code of Health and Disability Services Consumers’ Rights’ that he considered had been breached. He also listed ‘Principles’ and ‘Core Values’ of the ‘Code of Ethics’ of the DAPAANZ that had been breached. He then gave a detailed ‘Background’ mentioning his alcohol dependency, his past treatment, explaining his various mental and other health conditions, and describing how he first sought support and then started working with clinicians and counsellors at the particular alcohol and drug (A+D) counselling service provider. He was honest about the challenges he had faced as an immigrant to this country, and how he encountered difficulties in working with some counsellors, particularly those who wanted him to stick to a rigid 12-steps treatment approach. He stated how many of the clinicians and counsellors he worked with were apparently still in some form of ongoing training and study. He explained how it was hard or even impossible to access supplementary mental health services that he needed, and which could perhaps treat his other conditions, for which the A+D service provider could not offer any expertise and treatment. The complainant also described how he was in 2007 referred to another counsellor, with whom he could not work, after already clearly stating his reservations to work with him from the outset. He made some early written complaints to the counselling service Manager, which were then at that stage treated more seriously.

The complainant explained how he tried twice to start new jobs, which did not work out, as his conditions had not been sufficiently and successfully treated. He felt pressed to try work, because he received very limited, insufficient support from Work and Income, which left him in constant financial difficulty. He had to take in boarders to supplement his meagre income, but as his health conditions made it difficult to live with other persons, this and some new issues that some flat-mates brought into his home only created yet more problems he struggled to cope with. Living in a downstairs unit in a small, old block of units, he also suffered from unbearable noise coming from a unit above, in which a family with kids lived. Only wooden floorboards separated upstairs from downstairs. He described a very unfavourable environment, which did anything but assist his treatment program and recovery.

During 2008 the complainant worked with a rather empathetic and supportive counsellor, and a moderate stabilisation of his situation occurred. But when that counsellor was then assigned to look after a special target group of persons needing A+D counselling, the complainant faced yet another change of counsellor. For a brief period in early 2009 he tried working with the Clinical Team Leader, but as that clinician preferred to record every session on audio, the client/complainant felt uncomfortable with that, upon which he was offered another counsellor, whom he agreed to work with, as there appeared to be no other alternative.

On the domestic front, external disturbances from a hostile neighbour living above and provoking him with excessive noise also impacted badly on his life. After an incident where he apparently used “threatening language” towards that neighbour causing severe noise, he was arrested and charged with “threatening behaviour”, which set off another round of new problems to deal with, because a conviction on such a relatively minor breach of the Summary Offences Act 1981 (see Section 21) was threatening the loss of his “clean slate” status, which he enjoyed after many years had passed after a small number of convictions for again rather minor offences in the mid to late 1980s.

Any return to future work would have been made much more difficult with such a loss of the “clean slate”. “Falling off the wagon” a number of times, another incident happened, where the complainant was in late 2009 also charged with “disorderly behaviour”, which led to the even greater likelihood of him losing his “clean slate”. It set off a downward spiral of relapsing into binge drinking and repeated bouts of depression and increased risk of self harm.

What the complainant would discover later in 2010, and more so during February 2011, after having received a copy of his complete client file, was that his counsellor would first describe the charges the complainant faced in late April correctly as being for “threatening behaviour”. Only three months later, in July 2009, he suddenly changed his records by repeatedly noting down that his client was up before the court for “assaulting his neighbour”. This was not what had happened, and this would be just one example of what the counsellor would wrongly record and misrepresent. Other charges had additional ones added to them, according to his notes, which never existed. And at one stage the complainant would even be suspected of looking for flatmates, while he “hopes to meet someone with whom he can develop an intimate relationship”. That was alleging his client was a kind of “predator”. One can only conclude that he was a hopeless record keeper, and that he possibly, yes more likely so, had a bias. Anything he heard from the client would be recorded in more negative terms, reflecting negatively on his client and being far from the truth. Also did the complainant find out later, that according to the counsellor’s notes, the client would not take any medication.

Only months later, after the first warning signals should have caused the counsellor at the service provider to take action, was his risk of self harm increased from “low” to “medium”. That only happened in mid December 2009, after suicidal ideations were already evident in mid to late April that year. The complainant was astonished and later dismayed at the counsellor’s apparent lack of empathy for him, trying to simply blame all the difficulties he faced on his drinking. He found it incomprehensible that a counsellor ignored all external, environmental factors that impacted on him, only worsening the situation he was in.

When being presented with a rather unhelpful letter of “support” from his counsellor on 23 December 2009, the complainant walked out of a counselling session 5 minutes prior to its conclusion, expressing disappointment and anger that he was not being given proper support in his extremely troubled and desperate situation. The letter mentioned nothing about his complex mental health and other issues he struggled with, and appeared very dismissive of his personal challenges in addressing alcohol abuse and addiction.

After that incident, and a troubled Christmas – New Year period between 2009 and 2010 the complainant sought another change of counsellor, as he could not work with the one he had, whom he no longer trusted, as he appeared biased, incompetent and unwilling to offer effective support. The only clinician who appeared to be prepared to continue working with him was the Clinical Supervisor, who was a female clinician and counsellor. Nevertheless the complainant gave it a go and engaged with her in a number of counselling sessions. Although having had some reservations towards working with her, he did at first find her more experienced and professional, but after a few weeks he felt that she displayed a rather firm, uncompromising, less sympathetic and at times even an apparently biased demeanour, which disturbed him. He also felt uncomfortable working primarily only on “emotions”, as this made him feel vulnerable, particularly while consulting a woman counsellor.

External stressors, disturbances and distractions continued, so counselling became more difficult due to that also. In mid 2010 the complainant was then also confronted with a medical re-examination of his health and benefit status, which led to a disastrous experience where a WINZ commissioned and paid assessor declared him “fit” to return to at least 20 hours of work per week within only three months. This was recommended and then decided on, despite of all of the complainant’s own doctor’s and specialist’s reports stressing a need for ongoing treatment, and confirming permanent disability and another 2 years of inability to work. Hence the complainant was sent off on a virtual roller coaster of emotions and distressed thoughts, and as the new female counsellor he saw did now also show a reluctance to offer any further effective help in the form of support letters, the client was finally thrown off course, and his counselling relationship swiftly deteriorated.

A so-called Medical Appeal Board hearing (set up by WINZ/MSD) led to another flawed, disastrous recommendation, giving qualified support to the WINZ doctor’s recommendation, and so the complainant faced being thrown off his invalid’s benefit and forced to look work within only a short time, while he was under extreme mental and physical stress, relapsing regularly and deteriorating rapidly. The A+D counselling service provider’s clinician’s advice was not helpful, as it seemed totally detached from reality and unrealistic to apply under the circumstances. What would have contributed to the counsellor adopting a less sympathetic approach during treatment must have been the fact, that the complainant was arrested and charged yet again in May 2010, when he was accused of “offensive behaviour” towards a salesperson while intoxicated. In deciding to fight the WINZ decision by going to the High Court and seeking a judicial review, the complainant did by late 2010 gradually disengage from counselling. It was impossible to continue with any treatment while having to spend endless hours every day to try and find a lawyer, to apply for civil legal aid, to prepare for a review and to also familiarise himself with the complex applicable law. That was on top of the ordinary day to day challenges the complainant faced and already struggled with, including dealing with the various charges he had to answer to.

The counsellor suggested he take a break, but that appeared to only upset the complainant, as he had by now also found out what had been put into his file by the counsellors he had worked with. After sending an upsetting email while in distress and a lapse, which was followed by a letter with proper explanations of his situation and position (in Dec. 2010), the complainant did in February 2011 receive a letter from the counsellor, telling him that the file would be closed. The reason given was not what he could agree to, as it was not true and representative of his experience, his views and his position on what was going on. The counsellor claimed it was the client who had “indicated” that he was “no longer requiring the support of” their service. But the complainant felt he could no longer trust her, and that the circumstances of his situation made it impossible to continue counselling with her. He had explained all the external pressures and challenges he was confronted with, and had reflected on the lack of support he had received from his service provider.

The complainant had under the Privacy Act 1993 and the Official Information Act 1982 already obtained information in the form of print-outs of his whole client file on 30 Sept. 2010, which was only reluctantly handed over to him by his counsellor (the Clinical Supervisor). Some information that he found was very disturbing, but it was not until February and March 2011, that the complainant had a clear enough mind-set and sufficient time to look more closely at his client file, in which he found a whole range of mistakes, of completely wrong, inaccurate information. The most numerous and most serious false and misleading entries, some being totally conflicting to earlier entries, had been made by the counsellor he had seen before the Clinical Supervisor. He realised also how “transfer summaries” contained some of these major mistakes and other wrong details, which were then treated as clinical information that his follow-up counsellor would have relied upon, before and during consultations he had with her.

The counsellor he saw during most of 2009 clearly appeared to have developed a bias against his client, and the follow-up counsellor did also reveal a level of bias, as the complainant would discover. The wrong information in the files would have led to serious misunderstandings and misinterpretation of what the complainant – as a client – would have confided to his counsellors. And anyone reading the details (including the Service Manager and others) would also have gotten a distorted impression of the complainant and client. It would then soon also become apparent that some false information had somehow ended up with the client’s GP, who made reference to it in a “host doctor report” the WINZ “designated doctor” who re-examined and interviewed him on 17 June 2010. Other wrong information was apparently also passed on to other providers, without proper, express consent by the client who would soon become the complainant to the HDC. Suddenly the counselling client and complainant could put together a puzzle, which explained why certain information that was totally incorrect or misrepresented had ended up with his GP, with a WINZ doctor, with Cornwall House, neither of whom he ever gave such information.

So the complainant confronted the service provider’s Clinical Team Leader re this and firstly asked for corrections, and then also an apology. A correction was later made by attaching the complainant’s comments to the file, but not by altering earlier entries, which were explained away with bizarre excuses about the counsellor having perhaps “misheard” something. Other details were “not remembered”, and an apology was bluntly refused. For unexplained reasons the Clinical Team Leader soon left to return to his home country overseas, after leaving his position. A follow up Team Leader also rejected to further comment on these matters and also refused an apology. In a letter from 08 June 2011 she used the following comments to justify her predecessor’s actions. She wrote that according to the former Clinical Team Leader there was not “any conclusive finding as to why the exact wording was used by the Clinician in the first instance”. The conversation with the counsellor, to which the complainant had referred to, was “too (far) back in the past”, and the former Clinical Team Leader “did not have any evidence that any negligence or ill-intent was present that would require an apology”. “He therefore regarded the matter as concluded”, she wrote.

This was then the final point where the complainant realised, he had to take this matter further and make a complaint to the Health and Disability Commissioner, as in his views, there were clearly a number of significant breaches made under the Code, during the provision of his health service in the form of counselling from a leading provider of A+D counselling services. The service was clearly intent on covering up the mistakes made, and absolutely refused any responsibility for their staff members for what happened.

The complainant continued his first complaint letter by listing about 19 individual points (see a) to s), pages 16 to 25) of complaint issues, which included details about wrong information put into his client file. He added a number of other “inaccuracies” on page 26 of his letter. Then, from page 26 on, he described how in his view each ‘Right’ under the Code had been breached by the actions or failures of the counsellor/s.

 

Some of the core issues and alleged ‘Rights’ breaches – in brief

The complainant felt the following rights were breached:

Right 1 – subsections (1) and (2)

The counsellor did not treat him with due respect, as he abused his trust, by putting false and misleading information (e.g. about an alleged “assault”) into the client’s clinical file, and by not offering needed, effective support. This appears to have been the result of a personal bias the counsellor developed over time.

The counsellor also failed to give respect to the suicidal ideations of the client (from as early as mid to late April 2009), and only put the client into the “medium” risk category for self-harm in mid December 2009, after another incident where “suicide” was mentioned. This put the client at great risk, which in itself is showing a lack of respect for what the vulnerable client shared in important information that should have been given more credit.

The privacy of the client was breached; because some of the false information (e.g. about an alleged “assault”) was passed on to the service provider’s psychiatrist (see report from 30.07.2010), and to the client’s GP without his knowledge and express consent, and then the GP also shared this information with the WINZ doctor (18.06.2010) and seems to also have shared this information with Cornwall House.

Author’s note: One would think that ‘Right 1’ requires a health professional to give due respect to what the client shares in information, and if in doubt to double check this. Also should privacy rights be maintained at all times – except where valid reasons exist for making exceptions to the rule.

Right 3

The counsellor did not treat the client with the dignity he deserved, as he developed a bias against his client, and as he disregarded his client’s independence when the client was explaining his problematic life circumstances.

The client was not offered the needed, deserved trust and credit he deserved, as the counsellor clearly misinterpreted information provided to him. With an apparent judgmental mindset the counsellor made unjustified presumptions and recorded totally untrue information that would present the client in a very negative way, virtually as a “predator”.

A comment like: “He frequently advertises for flatmates whom he desires to be close friends with and also hopes to meet someone with whom he can develop an intimate relationship”, which does in no way reflect what the client claims he ever said or intended, is highly irresponsible and indicative of a lack of respect for the dignity of the client.

Author’s note: Such misrepresentation based on misunderstandings may reveal more about the questionable mindset of the counsellor than the client.

Right 4 – especially subsections (1), (2), (4) and (5)

The counsellor made a large number of inaccurate entries in the client’s file, some apparently as honest mistakes, but others hard to explain as such, some of which were rather serious.

The counsellor displayed a clear lack of diligence, care and skill, particularly in his qualitatively poor record keeping.

Failing to keep accurate and fair records does not meet the professional standard one must expect of a counsellor working in A+D treatment with vulnerable clients some of whom suffer from complex mental health issues, as it puts them at risk, when other professionals rely on false information in their files.

The client was put into disrepute, and professional and ethical standards were not met by the counsellor, who also appeared to have developed a bias against the client.

Potential risks were ignored or treated with negligence, through wrong record keeping and also ignoring privacy rules. Consequential harm was suffered, as other professionals accepted the false information as being truthful and reliable, and thus misunderstood and wrongly assessed the client in following examinations and discussions, which led to a worsening of the client’s life circumstances and his general mental and also physical well-being.

Right 5 – subsections (1) and (2)

The client’s open, honest and at times effective communication of his problems and challenges were either misunderstood, or intentionally wrongly judged, given a detectable bias by the counsellor, which means the counsellor made it impossible that Right 5 could be upheld in the given poor counselling relationship.

In hindsight, there was no safe environment for the client to communicate openly, honestly and effectively, as the counsellor appeared to abuse the trust of his client, by not recording information provided to him in an objective, truthful, correct and proper manner. The client will not have known this (prior to reading his own file), that his communications were not treated as they should have been, and thus not honoured.

Author’s note: One may add, that the counsellor himself may have had difficulty with communicating openly, honestly and effectively, as the complainant described him as at times giving conflicting information and being somewhat inconsistent or ambiguous.

Right 10

The service provider accepted the formal complaints the client made on 13 and 15 April 2011, but the Clinical Team Leader did not accept the allegations made in the complaint, and hence never accepted any responsibility of their staff member/s or the service for the wrong entries. An apology was firmly refused.

All following complaints correspondence led to no resolution of the complaint matter. A final letter from 11 June 2011, with which the client sought further explanations and clarifications re his complaints, was never responded to by the service provider.

This displays a poor complaint handling, where explanations given in the defence of the counsellor/s were simply not convincing and nothing but an attempt to cover up irregularities that should never have been allowed to happen. The complaint was in the eyes of the complainant not addressed properly, fairly and professionally.

(You can read the details about the above in the complete complaint letter to the HDC!)

 

Comprehensive documented evidence provided with the complaint letter

The rather comprehensive complaint was supported by a substantial amount of evidence, some of which was apparently directly relevant, and the rest was only offering additional information, that could have assisted the HDC, should any questions have arisen, needing clarifications about the truthfulness and reliability of comments made by the complainant.

The attached documents were numbered and listed from 1 to 117 (see pages 37 to 40 of the letter). We understand that the complainant put so much effort into his correspondence, as he feared that his virtual run through hell with unhelpful state agencies, health service providers, at times incapable counsellors, and also the law enforcement and judicial officers he had to deal with, would simply not be believed without the provided detail and evidence.

In hindsight, I think it is fair to say, he misjudged the HDC Office staff, who were definitely anything but sympathetic and understanding, and felt overwhelmed by the 40 page complaint, with which they would not want anything to do.

 

Here are only some PDF files that contain full or parts of the crucial and relevant evidence that was sent to the HDC then, most of which will also be provided again via links further down in this post:
HDC Complaint, WDHB counsellor, complainant client file extract, 20.04. – 04.07.2009
HDC complaint, WDHB counsellor, complainant client file extract, 23.07.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 19 – 31.08.2009
HDC complaint, WDHB counsellor, complainant’s client file extracts, 23.12.09 – 06.05.2010
HDC complaint, WDHB counsellor, provider psychiatrist report on complainant, anon, 27.08.08
HDC complaint, WDHB counsellor, provider psychiatrist’s 2nd assessmt on client, anon, 30.07.10
HDC complaint, WDHB counsellor, complainant’s own Dr report to Design. Dr, hilit, anon, 18.06.2010
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 19.06.08
HDC complaint, WDHB counsellor, complainant’s police bail form, mid-late April 2009
HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 22.04.10
HDC, Complaint, C12HDCxxxxx, complainant, own doctor WINZ disab. cert., anon, 17.06.10

A fair few other evidence files were sent, but as we have no anonymised copies we will not present them. Also were some files only of secondary importance. Others are attached to this following post which covers another valid complaint the complainant made to HDC:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

 

All complaint emails were confirmed as received by emails from the HDC Office

Upon having sent altogether 30 emails with a range of attachments with evidence, the complainant wrote back to the HDC, asking for a confirmation of his complaint emails, which was then provided by email in the late afternoon at 04:26 pm on 08 August 2011 by the HDC Office’s Executive Assistant Kerry Norman.

The following scan copies of emails sent and received on 08 Aug. 2011 confirm this:
HDC complaint, WDHB counsellor, complt email 30, copy, anon, hilit, 04.11h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, email, receipt, all mails confrmd, hillit, 16.26h, 08.08.11
HDC complaint, WDHB counsellor, emails confrmd recd, 15.09h-16.46h, hilit, 08.08.11

 
 

PART 3: HDC STAFF TELL LIES AND BLOCK A DETAILED COMPLAINT, FORCING THE COMPLAINANT TO RE-SUBMIT A 2-PAGE SUMMARY

 

After having gone to great lengths, to record and present every relevant complaint aspect, and having explained how each relevant ‘Right’ in the Code, same as the DAPAANZ ‘Principles’ and ‘Core Values’, had been breached by the one counsellor, and to a lesser degree by a follow-up counsellor, the complainant was surprised when on the following day on 09 August 2011 a staff member of the HDC phoned him. The young man appeared to be an Assessor.

At about 11:35 hours on that day, a young man, who we will call Mr Axxx Lxxxxx, phoned the complainant, claiming that his complaint could not be processed, as they could not open his emails, which were “freezing” their system. Somewhat astonished the complainant challenged the young man re that, stating that all emails were of ordinary size and type, with a few PDF attachments that were also of normal size. Any common email system would be able to receive and open them, he commented. He also informed the man that he had received a confirmation that the emails had all been received. The young staff member though was completely reluctant to accept the complainant’s view and position, and instead stubbornly insisted on a new, “summarised” complaint that should not be longer than two pages. The complainant explained that this was impossible to do, as there were complex matters involved, so he did not accept what the staff member said to him. In the end, he felt forced though, to consider the matter and get back to the HDC Office at a later stage.

It was not until 17 November 2015 that the HDC Office finally provided a phone log, which they then claimed had in error first been loaded onto another file that contained one generic, earlier complaint by the complainant from 2007(!). It had later been transferred to the “correct” file under C11HDCxxxxx in March 2012, when the mistake had been noted. Hence there was an “Edit” note at the bottom of the log referring to ‘06/03/2012, 11:39:56 a.m.’. This log entry had never been provided to the complainant upon any earlier Official Information Act 1982 (O.I.A.) or Privacy Act 1993 (P.A.) requests he had made.

The contents of that log entry has recently been disputed by the complainant, who raised issues re all this with the HDC Office, but while some comments by the staff member are apparently completely untrue, we present a scan copy of this log here:
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11

As far as the complainant recalls and has on record, Mr. Axxx Lxxxxx never talked about administrative or time and resources issues with processing the large volume of the complaint, he only spoke about the technical issues where the emails were “freezing” their system.

So the HDC did basically refuse to accept the initial complaint sent in by the complainant, offering somewhat unbelievable and bizarre explanations about their computer system not being able to cope with the size and volume of the emails, which though appeared to have been received and internally passed on to an Assessment Manager without any problem.

Also did the Assessor note in his log entry that on one hand he told the complainant they could not open the emails, yet at the same time he noted (after insisting on a 2-page complaint and new email): “We would then assess it, and if necessary process the rest of the data he sent in”. So that clearly refers to the information he had then already received and before him. This reveals a clear contradiction that he made, which discredits him as HDC staff member and basically exposes him of having told the complainant lies!

The complainant is now of the view, that the phone log for 09 August 2011 was re-edited and changed from the original entry, which the HDC though dispute.

 

The second ‘Summary Complaint’, which makes references to already sent evidence

After much consideration, the complainant reluctantly prepared a ‘Summary Complaint’, as he felt the HDC staff member had left him no other option. So he concentrated on some main points that were at issue, and summarised the most important and relevant information that now covered 3 pages. Even with the greatest effort to reduce the complaint matter that he considered as absolutely essential to cover, it was impossible to condense this to only two A4 size pages of paper.

Here is an authentic transcript of the ‘Summary Complaint’ that was sent to the HDC by email on 10 August 2011:

 

“09 August 2011

Attention: The Health and Disability Commissioner

Re: Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ and the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association, Aotearoa-New Zealand’ (DAPAANZ)

Dear Madam / dear Sir,

Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’, which I am presenting by way of this letter in a summarised form. This letter is in relation to a comprehensive complaint already sent to you by emails on 08 August 2011(with substantial relevant documentation).

At the same time I wish to state that this complaint also covers breaches of the ‘Code of Ethics’ of ‘The Addiction Practitioners’ Association Aotearoa-New Zealand’ (in short DAPAANZ).

Summary of aspects of counselling treatment and service at issue that require investigation:

As a person suffering from serious mental health conditions like alcohol dependency, xxxxxxxxx xxxxxxxxxx disorder (XXX), depression and anxiety, I have been in treatment with XXXX-Xxxx for addressing my alcohol issues from xx February 2008 onwards.

Following a year of some limited success in addressing my alcoholism (at XXXX-Xxxx) and also (insufficiently) XXX (at St Lukes Community Mental Health Centre), I was in early 2009 transferred to a new counsellor by the name of Mxxxxxx Sxxxxxxxx, who is a qualified clinician working as a counsellor.

From xx March until 23 December 2009 I received regular counselling treatment from Mxxxxxx Sxxxxxxxx, who made substantial efforts to gain my trust, but who was evidently struggling to provide me with the kind of support that I required while dealing with very serious life challenges that included problems with alcoholic relapses, poor housing, noise from neighbours, financial pressures, minimal support from state agencies and some incidents of a legal nature.

Mxxxxxx Sxxxxxxxx confided to me that he had no first hand health issues with alcohol himself, but that he had himself experience with another type of addictive behaviour, which over time appears to have brought him into working as a counsellor.

While I was going through repeated periods of serious crisis, Mxxxxxx Sxxxxxxxx failed to understand, appreciate, and appropriately act upon and/or offer urgently needed psychological, emotional and practical support, to assist me as his client in dealing with the very upsetting experiences and challenges I tried to cope with. He also failed to accept and address his own professional deficiencies by not offering me a more competent alternative for counselling of alcohol dependency.

As I would later (after receiving my client file upon two Official Information Act requests) discover, he furthermore repeatedly entered completely incorrect, inaccurate and even biased information into my client file, which included information that was consequently made available and passed on to other professionals working in mental health and other areas.

This obviously resulted in substantial misinterpretation, misunderstanding, wrong assessments and judgments made about my true health conditions, my personality, thoughts, emotions, and my motivations by other health professionals who relied upon this information.

By refusing to offer proper, practical support by stating known, identified core mental health details in a letter I requested in Dec. 2009, in order to present it in support of an application to access additional support for addressing very serious matters, that would without it lead to a major aggravation of stressors I already suffered from, Mxxxxxx Sxxxxxxxx did personally contribute to the resultant continued worsening of my general mental health situation.

It was his neglect, personal bias and other professional misconduct, combined with clear incompetence, which resulted in me experiencing a progressive break-down and deterioration in my voluntarily started treatment program, ultimately leading to me feeling abandoned and having to withdraw from involvement with a follow-up counsellor (Lxxxx Xxxxxx), who relied on the same incorrect information supplied by Mxxxxxx Sxxxxxxxx for the agreed transition to her as my new counsellor. She consequently also failed to understand the seriousness of issues I was dealing with.

To a lesser degree, but still in an equally concerning manner, Lxxxx Xxxxxx did also omit important information from my client file at XXXX-Xxxx, which happened during the period when our counselling relationship started to seriously deteriorate, due to my loss of trust in her as a fill-in counsellor for Mxxxxxx Sxxxxxxxx, and due to her not fully understanding issues (again due to being misinformed).

One specific item of information that Mxxxxxx Sxxxxxxxx misrepresented in his clinical notes, was the conversion of an earlier entry for a “criminal” charge laid against me for alleged “threatening behaviour” (commonly also known as “intimidation”) – into a supposed charge for “assault on a neighbour”. He also made wrong assertions that I was as a tenant “looking for flatmates with whom I could develop an intimate relationship”.

I never intended such, and it was only a specific incident in August 2009, where misunderstandings between a boarder and me, following an incident involving other persons, as well as due to her personal conduct, led to irritations that caused her to move out again on short notice. True information confided to M. Sxxxxxx was clearly changed by him into false, incorrect and inappropriate information, because he drew unjustified and unreasonable presumptions, and thus misrepresented details.

Phone messages indicating suicidal tendencies I had were not properly addressed by Mxxxxxx Sxxxxxxxx, and he kept me on a “low risk” category for months, before realising upon consulting other staff involved by 14 Dec. 2009, that I should be put into “medium risk for self-harm”. He failed to acknowledge that I had been taking certain medication for most of the time he counselled me.

Lxxxx Xxxxxx did also not enter very important details into my client file, which should have been noted down and reflected true events that occurred, where I did in email letters and phone messages express immense distress, disappointments, suicidal ideas, great misgivings about my treatment by certain government agencies, as well as the lacking understanding, appreciation, support and action by her and XXXX-Xxxx as the service provider.

One of the reasons given was that XXXX staff “would not reply to email correspondence”.

Requests for correction of the mistakes in my client file were not complied with satisfactorily, no assurance was given that mistakes had actually been corrected, and an apology was refused, despite of clear evidence that serious inaccuracies and mistakes were recorded/made.

There are numerous other details re incidents where inappropriate and insufficient service delivery, support and incorrect information are evident at XXXX-Xxxx, which have caused me to prepare a very comprehensive and lengthy complaint, which entails all aspects, details and relevant information that will definitely be required to establish the facts as they are.

After having assessed the complex issues involved myself over recent times, the following points rights and principles have definitely been breached by Mxxxxxx Sxxxxxxxx of XXXX-Xxxx at x Xxxxxxx Xxxxx in Xxxxxxxxx, Auckland. Some of those have apparently also been breached by Lxxxx Xxxxxx and the acting Clinical Team Leader/s at XXXX-Xxxx:

Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland during counselling received there from 2008 until 2010:

Right 1 – Right to be treated with respect
Right 3 – Right to dignity and independence
Right 4 – Right to services of an appropriate standard
Right 5 – Right to effective communication
Right 10 – Right to complain

Under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association Aotearoa-New Zealand’ the following principles and/or core values have been breached by at least one counsellor of Xxxxxxxxx Alcohol and Drug Services (short ‘XXXX’) in Xxxxxxxxx, Auckland:

1. Respect for the dignity of others
2. Beneficence (to do good) and nonmaleficence (to do no harm)
3. Trust
4. Confidentiality and privacy
5. Promotion of client autonomy
6. Honesty & Integrity
7. Fairness
8. Skilfulness
9. Professional conduct

In regards to the summarised complaint made here, I must stress, that it is essential to view the already supplied information, particularly the 40 page letter of complaint (in PDF format), as well as relevant excerpts of my clinical file at XXXX Xxxx, a so-called “host doctor report” by my own GP, Dr Xxxxx Txxxxxx (of 18.06.2010), a report by XxxXXXX Psychological Services, dated xx February 2011, as well as psychiatric assessments delivered by Dr Jxxx Bxxxx of XXXX. There are two versions of each assessment done (1 on 27.08.2008, 1 on 30.07.2010), as earlier ones contained mistakes, and the final ones were corrected versions, that still contained a few “minor” mistakes.

This complaint addresses very serious matters that occurred while consulting a leading provider in substance dependency and mental health services, and it is absolutely paramount that this complaint gets treated very seriously and fairly, because negligence, professional misconduct and the resulting developments that happened due to other providers relying on the wrong information recorded in my client file, did lead to major upset and substantial harm I suffered as a client of that service. My rights and interests as patient were not met and upheld.

Standards in mental health and addiction treatment services must at all times deserve to be upheld and enforced in the same way, as it is expected to be done in other health areas!

I expect that a thorough investigation into the conduct of Mxxxxxx Sxxxxxxxx, as well as of Lxxxx Xxxxxx, Dxxxx Fxxx and Dxxxxx Kxxx at XXXX-Xxxx.

Yours sincerely and thankfully

Xxxxxxx Xxxxxx

Attachments:

PLEASE SEE SELECTED FILES ATTACHED TO THE EMAIL(s) CARRYING THIS LETTER!

 

A copy of the ‘Summary Complaint’ letter itself (dated 09 August 2011), and the 3 emails that carried it – plus a selected number of accompanying attachments with some important documented evidence – can be found here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, Code breaches, summary complt, anon, 09.08.2011

HDC, C11HDCxxxxx, WDHB counsellor, Summary Complaint, all emails, 10.08.2011

HDC Complaint, WDHB counsellor, complainant client file extract, 20.04. – 04.07.2009

HDC complaint, WDHB counsellor, complainant client file extract, 23.07.2009

HDC complaint, WDHB counsellor, complainant’s client file extracts, 23.12.09 – 06.05.2010

HDC complaint, WDHB counsellor, provider psychiatrist report on complainant, anon, 27.08.08

HDC complaint, WDHB counsellor, provider psychiatrist’s 2nd assessmt on client, anon, 30.07.10

HDC complaint, WDHB counsellor, complainant’s own Dr report to Design. Dr, hilit, anon, 18.06.2010

HDC complaint, WDHB counsellor, complainant’s psychological report, anon, 13.10.2010

Email 1 from 0:31 am on 10 Aug. 2011 had the following PDF attachments:
1). A copy of the ‘Summary Complaint’ letter from 09 Aug. 2011,
2). Copies of the client’s file notes from the provider fr. 20.04.-25.06.09, pages 61-66,
3). Copies of the client’s file notes from the provider fr. 07.07.-03.08.09, pages 67-70.

Email 2 from 0:33 am on 10 Aug. 2011 had the following PDF attachments:
1). Copies of the client’s file notes from the provider fr. 15.01-06.05.10, pages 13-18 of 27,
2). Copy of the provider’s psychiatrist’s 1st assessment on the client fr. 27.08.08,
3). Copy of the provider’s psychiatrist’s partly corrected 1st assessment on the client fr. 27.08.08.

Email 3 from 0.34 am on 10 Aug. 2011 had the following PDF attachments:
1). Copy of the provider’s psychiatrist’s 2nd assessment on the client fr. 30.07.10,
2). Copy of the provider’s psychiatrist’s 2nd partly corrected assessment on the client fr. 30.07.10,
3). Copy of the complainant’s GP’s “host doctor report” to a WINZ Designated Doctor, containing mistakes, fr. 18.06.10,
4). Copy of a report and treatment plan from a psychological service provider for the complainant, sent to his GP on 13.10.10,
5). Copy of a consultation summary report from a psychological service provider on the complainant, sent to his GP, dated 04.02.11,
6). Copy of the complainant’s GP’s ‘Work Capacity Medical Certificate’ issued for WINZ, dated 21.07.11,
7). Copy of assessments by ‘St Luke’s Comm. Mental Health Services’ on the complainant, fr. 12.01.-13.02.06,
8). Copy of a ‘Disability Certificate’ on the complainant, for WINZ, issued by his GP, from 03.02.06.

So while the above links to the PDFs do not cover all of this, they cover most of that is relevant.

Now the complaint did at least cover the core issues, but the HDC would have needed to also look at the letter sent earlier, plus the evidence in attachments, that was relevant.

The complainant did make sure that he expected the HDC staff to look at the evidence he already sent with the initial complaint, as that would be essential to do. The fact that the HDC never got back for clarifications gave the complainant the impression that the HDC staff did have all the earlier emails and would look at what they deemed relevant.

Only by way of a brief letter dated 15 August 2011 would the HDC Office now confirm the receipt of the complaint. A copy of it is here:
HDC complaint, WDHB counsellor, HDC ltr confirming assessment, ltr, 15.08.2011
HDC complaint, WDHB counsellor, HDC ltr confirming assessmt, hilit, 15.08.2011

For a number of months the complainant would not hear anything back, so he trusted all was ok and would be looked at in a thorough manner.

 
 

PART 4: HDC STAFF IGNORE ALL EARLIER EVIDENCE RECEIVED BY EMAIL, PROCESSING ONLY THE ‘SUMMARY COMPLAINT’

 

While the complainant would not hear back for months, the HDC staff would in the meantime prepare file records that would only later come to the attention of the complainant as a result of Privacy Act and Official Information Act (O.I.A.) requests, which he would then make.

Firstly a record was created in a ‘New Complaint Triage file’, which would on one page show a date for a Triage meeting being ‘8/8/2011’ (see the top of the second page of the scan copy). But apart from that it would show a “complaint received” date being 11 August 2011. A summary of the complaint text would be entered, which the complainant would later find to also contain some inaccuracies and not being complete. See the following links to a copy of that file record, which the complainant would only receive much later on 26 March 2012, after O.I.A. and Privacy Act requests:
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, 11.08.2011
HDC complaint, WDHB counsellor, New Complaint Triage file, anon, hilit, 11.08.2011

The staff would add further information to the newly created complaint file, in the form of what they call a ‘Complaint Summary’ form, with some basic core details about the complainant and his complaint. See the following links to a PDF with a scan copy of this:
HDC complaint, WDHB counsellor, Complaint Summary, anon, 12-16.08.2011
HDC complaint, WDHB counsellor, Complaint Summary, anon, hilit, 12-16.08.2011

Also would they prepare a letter dated 15 August 2011, which was then sent to the complainant, who would receive it a few days later. All it informed about was that an assessment would be made of the complaint, and that a response would be due within 6 weeks. A link to a scan copy of it was already provided above.

 

The HDC requests an “overview of care” response to the complaint from the WDHB

On 06 October 2011 the HDC (Axxx Lxxxxx, Complaints Assessor) would then write to the Chief Executive Officer of the Waitemata District Health Board (WDHB), Mr Dale Bramley, informing him of the received complaint, and seeking a response to the complaint, along with any relevant clinical notes and documentation. The letter was sent by the HDC to the WDHB, because the service provider was part of services offered by that Health Board. The letter also mentioned that: Mr Xxxxxx’x complaint is of an unusual length and complexity, and, as such, rather than responding in detail to each individual issue raised, it may be helpful to instead provide a general overview of his care.

The text of this letter, which would also only come to the attention of the complainant at a later stage, did actually indicate, that the HDC was in receipt not only of the summary complaint sent in on 10 August 2011, but also of the complete complaint letter from 08 August 2011, as comments were made re the “unusual length and complexity” of it. The summary complaint did not match such a description, so there can be no doubt that the HDC had kept at least some of the initially sent in complaint they received and had confirmed on 08 August 2011! A scan copy of this letter can be found via these links:
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview resp., 06.10.2011
HDC complaint, WDHB counsellor, HDC ltr to WDHB, seeking overview, hilit, 06.10.11

Having received the complaint, the Service Manager of the provider agency would on 20 October phone the responsible staff member (the Complaints Assessor) at the HDC Office to seek some clarifications. He would at about 11:58 h ask about whether the HDC staff member actually meant that he requested “all relevant notes”. He apparently claimed that the client’s records were “extensive to the point that they would need to hire an extra employee to manage this task”. Upon this the staff member at HDC advised him that they certainly did not require this information, and that they only needed “a high level summary of his care/concerns and the clinical records necessary to support this”. The later obtained log entry from the complainant’s file covering this phone conversation would be made available later, and is found via these links:
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, 11.58h, 20.10.2011
HDC complaint, WDHB counsellor, log entry, Serv. Mgr’s call, hilit, 11.58h, 20.10.11

 

The WDHB’s prepared and later communicated response to the complaint matter

Some time after this the Chief Executive of the WDHB would write back to the HDC Office and present copies of the client’s file, which contained notes for counselling sessions attended from February 2008 to 23 December 2009, and also separate notes for sessions from January 2010 until early December 2010, plus notes re correspondence and communications between the client and the service provider into early 2011. The notes included the relevant ones already mentioned and listed above under ‘A copy of the ‘Summary Complaint’ letter itself..’

Here are links to a PDF showing handwritten notes the Service Manager left on a front page of the provided client notes on 25 October 2011:
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy anon, 25.10.2011
HDC complaint, WDHB counsellor, Serv. Mgr’s file ref. notes, copy, hilit, 25.10.2011

He clearly states that notes for prior to 2008, a large volume of letters, MH (mental health service related) notes and psychiatric assessments were not included! This is important, as some of this would have shown a much clearer picture of the client’s medical conditions, treatment received and issues he experienced and also complained about over time.

The full response letter sent by the Chief Executive for WHDB to the HDC Assessor on 26 Oct. 2011, which included the client notes just mentioned, can be found via these links:
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, 26.10.2011
HDC complaint, WDHB counsellor, WDHB’s summarised response ltr, hilit, 26.10.11

As discussed between the HDC staff member Axxx Lxxxxx and the Service Manager at the provider as part of WDHB, the Chief Executive Officer, Mr Dale Bramley, did in that letter simply provide a general overview of Mr Xxxxxx’x care, rather than respond in detail to each issue raised. This must have been a convenient opportunity to stress such information that he deemed important of helpful (for WDHB and the provider), and to not present information that could show the provider in any bad light. The Chief Executive then gave a historic overview of the client’s and complainant’s engagement with the service provider from January 2006 to April 2011. It was mentioned that the client received 200 face to face outpatient treatment sessions. The client had concurrently been seen by Mental Health Services, for treatment of a disorder, depression and suicidal ideations, which were exacerbated when under the influence of alcohol, he would write. The client’s long term alcohol dependency issues treatment was described by him. The Chief Executive wrote that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years) did not prove effective to address his alcohol dependency”. Mr Bramley then wrote: “Mr Xxxxxx did not wish to pursue any of these options”.

The client’s two “reviews” (2008 and 2010) by a psychiatrist were mentioned, and what had been recommended to the client’s GP for medication to treat the mental disorder. On the second review that disorder was “not considered a significant problem at that time”.

The Chief Executive wrote that the client had on several occasions requested assistance in matters “that are clearly outside the scope of our service”. He mentioned examples relating to treatment the client had received from the New Zealand police and support he sought to ensure his retention of an allowance from WINZ. He then wrote: “Mr Xxxxxx objects if his expectations in such matters cannot be met”. Two formal complaints by the client were mentioned, the reply from the Service Manager to the most recent one being attached, and further reference was made to phone calls and letters in which the client allegedly held the health system, and staff and management of the service provider responsible “for his situation”.

The WDHB boss claimed that “all of the changes of XXXX clinicians described by Mr Xxxxxx were made at his request, except for one occasion”. He wrote the service continued to offer treatment, “within clear boundaries (e.g. dealing with one clinician only, restricting contact to regular appointments rather than phone calls and lengthy emails)”. He wrote: “This action was decided in consultation with the service psychiatrist and the clinical psychologist in order to ensure clear continuity of care but also to help with what the treating clinicians had considered Mr Xxxxxx’x at times offensive verbal and written comments to staff.

Then the Chief Executive addressed the complaint letter to the HDC, and he believed that the client’s most recent “objections” were related to client file entries from a previous counsellor, whom he names as Mxxxxxx Sxxxxxxxx. The words “threatening and intimidating behaviour” were referred to in relation to an incident the client described during a counselling session. Mr Bramley wrote the counsellor had written down the word “assault” in his case notes instead of the client’s description of an incident, where he used the words “threatening and intimidating behaviour”. Dr Bramley then appeared to admit in his letter that the word “assault” had been used by the counsellor in a letter to the client’s GP, who then used that word in a letter in connection to a “benefit query” with WINZ. The Chief Executive of WDHB then writes, that when the client’s benefit was reduced, he attributed this to the wrongly used term “assault”, believing the benefit would not have been affected, had the correct term “threatening behaviour” been used. Hence the client complained about the use of the wrong term. In his letter Dr Bramley from the WDHB claims the counsellor was “unable to remember” if at the time the term “assault” had actually been used by the client, but “could not exclude that he might have misheard”.

Dr Bramley wrote that the service therefore agreed to add the client’s wording to the file entry (as per Health Information Privacy Code Rule 7, point 3). Then he wrote that the client misinterpreted this readiness by the service provider to add file corrections as an admission of incorrect records by the counsellor, and insisted on an apology. He continued stating: “The service expressed its regret for the sense of dissatisfaction Mr Xxxxxx experienced, and that the service he received left him feeling this way.” Dr Bramley concluded with the comment: “Subsequently (April 2011) Mr Xxxxxx decided to disengage from XXXX”. He also added: “XXXX remain open to re-engage with Mr Xxxxxx any time should he wish to address his alcohol problem”.

Apparently in order to show their service provider in the best of light, and on the other hand trying to discredit the complainant, only one reply letter was selectively presented to the HDC, in order to show how the complainant’s last written formal complaint to the service in question had been treated and decided. Neither was any information about the complainant’s letter to the provider presented, nor any other relevant information that would cast doubt on WDHB. This letter from the Service Manager, dated 30 June 2010, can be found via these links:
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complaint, 30.06.2010
HDC complaint, WDHB counsellor, Serv. Mgr’s reply to earlier complt, hilit, 30.06.10

 

As the complainant has confided to us, and repeatedly re-assured us, the letter by Dr Bramley contains mistakes, inaccuracies, is misleading and is far from representing the true course and details of events and incidents, as he experienced them during the various periods of treatment he received from the service provider. The Chief Executive’s comments that the service recommended abstinence from alcohol, the support of Alcoholics Anonymous, and residential medium to long term treatment “since outpatient treatment (more than six years), did not prove effective to address his alcohol dependency”, and that “Mr Xxxxxx did not wish to pursue any of these options”, were absurd. Why then had he sought their “service” for over 200 sessions? It clearly was a “white wash”. The contents of this letter would also not be known to the complainant for some time after it was sent to the HDC, as it was left lying in the HDC Office for many months, supposedly being “under review”.

In the meantime, and after all the above had occurred without the knowledge of the complainant, he was left waiting. As Christmas was approaching, he did then at about 11.50 or 11.55 h on 13 December 2011 decide to call the HDC Office, as nothing appeared to be happening. He spoke with a young female staff member at the Office and asked for an update on his complaint. As the staff member informed him that her colleague who had assessed the complaint was presently unavailable, he asked for that person to call him back.
Here are links to a PDF with a HDC log entry made after that call:
HDC complaint, WDHB counsellor, log entry, complainant ph. call, 11.55h, 13.12.2011
HDC complaint, WDHB counsellor, log, complainant ph. call, hilit, 11.55h, 13.12.2011

Later on that same day at about 14;51 h, the Complaint Assessor handling the complaint C11HDCxxxxx phoned the complainant and informed him, that the matter was still under review, and that he would likely hear back from the HDC Office in January 2012. See a PDF with a copy of the later received phone log for that time and date via this link:
HDC complaint, WDHB counsellor, log, Complaint Assessor’s ph. call, hilit, 14.51h, 13.12.11

 

The Deputy Health and Disability Commissioner’s “decision” on the complaint

Christmas 2011 came and passed, so did January 2012, and there was still no response from the HDC Office. It would finally be on 25 February 2012, when the complainant received a decision letter from the HDC, dated 24 February 2012, which he read in total disbelief. Theo Baker, Deputy Health and Disability Commissioner, listed only five bullet points that summarised the whole complaint, and then referred to a response their Office received from the Chief Executive of the WDHB (dated 26 Oct. 2011), giving an “overview” of the “care” provided to the complainant and former service client.

The bullet points listed under ‘Your complaint’ and following the sentence “You wrote to the Commissioner’s office and advised that your counsellor Mr Sxxxxxxx” – were the following:

“● Refused to acknowledge and address his professional deficiencies.
● Failed to offer you “a more competent alternative for counselling of alcohol dependency”.
● Failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Incorrectly categorised you as “low risk for self harm”.
● Entered incorrect and biased details in your records, resulting in misinterpretation and inaccurate assessments of your condition by other health professionals who relied on his observations.”

Ms Baker then added: “You are also concerned that locum counsellor, Lxxxx Xxxxxx, failed to document important details relating to your misgivings about your treatment and suicidal ideation on your client file. You advised that requests for errors in your client file to be corrected had not been met by XXXX Xxxx.”

Under the heading ‘Response from Waitemata District Health Board’ she then quoted somewhat selectively from Dr Bramley’s letter, which she herself also described as an overview of the care provided to the client and complainant. She stressed that except for one case, all changes in the client’s treating clinician had been requested by himself. She accepted the Chief Executive’s explanation that the treatment offered was “within clear boundaries”. She also accepted his comments that the service provider was “open to re-engage” with the client at any time, should he wish to seek treatment. She apparently fully accepted the Chief Executives explanations for how the use of the term “assault” by the counsellor happened. She also simply accepted his words for how the complainant’s words re the incident had been added to the client file. She wrote also: “Dr Bramley notes that this amendment was not an admission of an inaccurate record”.

And under ‘My decision’ Theo Baker then explained that after her assessment she had decided “that further investigation is unnecessary. She claimed she had “fully reviewed” WDHB’s response and the provided copies of the complainant’s clinical notes. She wrote that it seemed to her that the DHB had handled the incident where potentially inaccurate information was added to the client’s clinical notes “in an appropriate manner”. She was “unable to discern any such omissions”, where relevant information had not been entered into the file, and she was “satisfied” that the service provider was continuing to offer the complainant “with care of an appropriate standard”. She suggested the complainant and former service client contact the Privacy Commissioner, should he have other concerns about inaccurate information in his file. Finally acknowledging “a wide range of concerns” that the complainant had raised, she wrote, that “despite every effort being made, it is not always possible for service providers to provide counselling services that meet every need of every client”. She closed off with the words: “Based on my examination of your complaint, and the response provided by Dr Bramley, I am confident that XXXX Xxxx is committed to providing you with consistent and dependable support. I trust this process has helped to resolve some of your concerns”.

Attached to this “decision” letter was the response received from Dr Bramley, Chief Executive of WDHB, dated 26 October 2011, which we already offered via a link further above. The full response by Theo Baker from 24 February 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC’s initial decision, complete, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial decision, compl., hilit, T. Baker, 24.02.12

She would at the same time send a letter with her decision to the WDHB, found via these links:
HDC complaint, WDHB counsellor, HDC’s initial dec. ltr to WDHB, T. Baker, 24.02.2012
HDC complaint, WDHB counsellor, HDC’s initial dec. to WDHB, T. Baker, hilit, 24.02.12

The complainant would later on receive a copy of it in response to an O.I.A. and Privacy Act request.

 

O.I.A. and Privacy Act requests to the HDC, and response received in March 2012

The complainant was rather shocked and also furious at this dismissive decision that had been sent to him. He now mistrusted the HDC Office and their Commissioners and staff, and he now remembered again, how the Complaints Assessor had on 09 August 2011 told him his unconvincing story that the full complaint sent by 30 emails could not be opened, as it allegedly “froze” their system. He had thought this was a weak, unconvincing excuse, as the staff member may not have wanted to process a comprehensive complaint. He remembered how he was forced to re-submit a much abbreviated complaint. Although he had expected the HDC would also still look at the earlier sent complete complaint letter and any relevant evidence sent with it, he now started to wonder what had really happened.

Hence he soon prepared a request under the O.I.A. and the Privacy Act 1993, which he sent of f on or shortly after 04 March 2012. He asked for an authentic copy of the letter the Complaints Assessor had sent to WDHB on 06 Oct. 2011. He also requested any notes, transcripts of phone calls made between WDHB and the HDC Office, as well as emails that had been exchanged. Photo copies or printouts of all memos or other written communications exchanged and communicated between staff at the HDC acting in relation to this complaint, same as notes or transcripts of internal phone calls or formal discussions were asked for.
The following link shows a PDF file with the authentic text of that request from 04 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, O.I.A. + Priv. Act rqst, anon, 04.03.2012

 

On 26 March 2012 the complainant received a response to his requests (see above), which was dated 23 March 2012 and signed by Lydia Wadsworth, Legal Advisor to the HDC. Enclosed in her response were the following documents, as quoted:
“● Letter from Complaints Assessor Axxx Lxxxxx to Waitemata District Health Board dated 06 October 2011.
● Complaint summary printed 27 February 2012 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act).
● Letter from Deputy Health and Disability Commissioner Theo Baker to Waitemata District Health Board dated 24 February 2012.
● Record of telephone conversation between you and Mr Lxxxxx dated 13 December 2011.
● Record of telephone conversation between you and Complaints Assessor Jxxx Fxxxx dated 13 December 2011.
● Letter from Waitemata District Health Board to Mr Lxxxxx dated 26 October 2011, and your clinical notes as enclosed with that letter.
● Record of telephone conversation between Mr Lxxxxx and Waitemata District Health Board 20 October 2011.
● Administrative record of letter sent to you on 15 August 2011.
● The Complaints Assessment Triage Form.
● Complaint summary printed 16 August 2011 (please note I have withheld Dr Dale Bramley’s personal contact details to protect his privacy pursuant to section (9)(2)(a) of the Official Information Act). …….”

The following links will load a PDF with the authentic copy of that O.I.A. and Privacy Act response from 23 March 2012:
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, 23.03.2012
HDC complaint, WDHB counsellor, HDC’s Priv. Act reply, L. Wadsworth, hilit, 23.03.12

 

What would also only come to the attention of the complainant much later in the process, once further O.I.A. and Privacy Act requests would be filed and responded to by the HDC, is the fact, that on 27 Feb. 2012 the ‘Complaints Summary File’ would internally be updated. Here is a link to a scan copy of that updated file:
HDC complaint, WDHB counsellor, Complaint Summary, updated, hilit, 27.02.2012

 

The complainant’s response to Theo Baker’s first “decision”

After having received the completely unacceptable, in view of the complainant appalling decision by Theo Baker, the complainant prepared a response letter to the Commissioner. This 17-page response, dated 27 March 2012, was sent off by email in the early morning of 28 March 2012, and asked for re-assessment of his whole complaint. He expressed that his complaint had not been dealt with properly, had not been taken serious, and had resulted in a completely biased, unfair and unreasonable “white wash”. He expected that all documentation and correspondence should be thoroughly examined, in order to give a properly researched, correct reply in due course. He also expected that each individual breach of rights under the ‘Code of Health and Disability Services Consumer Rights’ and of the principles/core values under the ‘Code of Ethics’ of the ‘Addiction Practitioners’ Association of Aotearoa – New Zealand’ should be replied to separately.

In the beginning of the letter the complainant gave a chronological description of how he sent in his first complaint on 08 August 2011, and then a summary of his complaint (dated 09 August) on 10 August 2011. He critically explained how the Complaints Assessor Axxx Lxxxxxx did phone him on 09 August to claim unconvincingly that they could not download and open the sent emails, as that they were “freezing” their system. Hence they could not be processed. He criticised how the HDC staff member stubbornly insisted on a summary complaint of only two pages having to be sent in. This was not possible given the comprehensive course of developments and details, the complainant stated. He wrote that he had only reluctantly sent in a summary complaint, so the HDC staff would look at and analyse his complaint. Also did he mention, that in order to avoid any misunderstandings, and to ensure that ALL relevant information would be taken into consideration, he had in his summary complaint insisted on the earlier sent correspondence (with attachments) from 08 August 2011 to also be considered in the whole context of the complaint matter.

He then gave a summary of the correspondence that he had so far received from the HDC Office, upon sending in his complaint letters and attachments. He also mentioned the phone calls made and received on 13 December 2011.

Re the Deputy HDC’s decision dated 24 February 2012 he expressed his absolute astonishment and greatest disappointment with the explanations given in that letter. He criticised how the Deputy HDC had primarily – or almost exclusively – only focused on the one incident where the XXXX counsellor had added “potentially inaccurate information” to his client file. This was in relation to the recording of an “assault” (that never happened) rather than the earlier correctly recorded “threatening” or “intimidating behaviour”.

He criticised that the Commissioner had otherwise not addressed any of the other issues that were raised re a fair number of wrong file entries that had been made by the counsellor. The complainant expressed his view that a thorough review of all the information he had supplied cannot have taken place. The complainant described (based on detailed file notes) that the counsellor had on 20 April 2009 noted down the correct information, making a reference to a charge for “threatening behaviour”. He also quoted notes from that same entry that referred to “thinking” or “threatening suicide”. Then he described how on 23 July 2009 the same incident was referred to with noting down “assault against his ex neighbour”, and also with “disorderly behaviour”. The complainant presented other information, then proving that it was 100 percent clear that the counsellor’s use of the word “assault” could never have occurred due to a “misunderstanding”, as he had earlier noted down the correct wording that the client had used. The complainant made clear that the whole matter of that incident where there had been a dispute with a neighbour had been thrown out of the court in January 2010.

Then the complainant explained how the same counsellor did at various other times also record other wrong information in his client file, including in a “Transfer Summary” under “XXXX Follow UP” on page 17 of a 27-page computer printout for 03 February 2010. He referred to a false, misleading file entry that read: “He frequently advertises for flatmates whom he desires to be close friends with and he also hopes to meet someone with whom he can develop an intimate relationship” (see the link to scan copy of the relevant client file offered further above, for notes for 16.37h on 03 Feb. 2010). The complainant did not quote that incorrect, misleading, slandering entry in its exact words in his letter from 27 March 2012.

That “Transfer Summary” would have been read by the follow-up counsellor Lxxxx Xxxxxx, who the complainant (and then client of the service) would see from February 2010 onwards. Hence the wrong and biased information in that file entry would have shown the complainant in very negative light, he argued.

In his letter from 27 March 2012 the complainant went to great lengths to explain and correct many details to the HDC, which the Deputy HDC had clearly not known, or understood, or not even read and examined. The complainant concluded that she failed in her duty as Commissioner by having relied on an incompetent Assessor, which would raise serious questions. He also found it highly irresponsible that the Assessor had in his letter to the Chief Executive of the WDHB from 06 October 2011 suggested that they “should not respond in detail”. The suggestion to only give a “general overview” of the client’s care would have opened all possible back doors for WDHB and the provider to avoid answering to any specific complaints. He also described how the Assessor let the Service Manager off the hook, when asked in a phone call on 20 October 2011 what the HDC would require in the way of records. Requesting only a high level summary about the client’s care meant that no substantial emphasis or pressure had been placed on WDHB to be held accountable for the issues that were raised.

The contents of the letter from the Chief Executive, Dr Dale Bramley, the complainant described as unacceptable, misleading, at least in parts incorrect, dismissive and completely inappropriate as a response. He listed, quoted and dissected points at issue in the Chief Executives response to the HDC. He pointed out clear mistakes, and also attempts to mislead and cover up failures and inappropriate conduct by staff by the service provider’s Service Manager. The complainant also explained how endless external issues that he had faced had impacted on his treatment. Such disturbing and upsetting influences had not been understood, had been ignored or dismissed by the service provider’s counselling staff and the Service Manager. His trust in his counsellor had been abused, the complainant asserted. He also remarked that counselling staff were apparently instructed not to assist in such “matters that are clearly outside the scope” of their “service”. This was unprofessional and unreasonable to ignore such impacting issues, the complainant commented. He was very critical of a letter he had requested from his counsellor, which was though never provided in the form he had expected, as it only covered unhelpful details about past and present treatment. More information had been refused under the wrong presumption the client only wanted a letter to get legal aid.

Also did the complainant explain that he had at times contacted the service in a very distressed (and alcoholised) state of mind, and he criticised the comments that he had been “abusive”, which was not true. Further comments and explanations covered more historic issues, and explained why some formal complaints had been made about the way the service provider and certain clinicians had treated him. While most criticism was expressed about the counsellor he saw during 2009, he also presented a number of issues he had with the follow up counsellor, who was little supportive or sympathetic, and with whom he could in the end no longer work. That was what had led to his disengagement, besides of endless other issues he had to address with Work and Income, a Medical Appeal Board, the courts and so forth.

Even the follow-up counsellor did on 22 December 2010 record totally false and misleading information about the client in his file, the complainant described towards the end of his letter. That was after a phone call she had made to his doctor, about which he had as her client never been informed. The doctor was quoted as having said the client would send him emails daily, which was completely untrue, and which the complainant’s GP would later not even remember having said. Hence he had to find out that the follow up counsellor was nothing but a “blatant liar”, when noting such untrue and misleading information in his file.

Finally the complainant did in this letter ask that all the information the HDC Office had been supplied with would be re-assessed, re-evaluated, the complaints and the circumstances properly investigated, so that a correct, factual, objective, fair and accountability ensuring result would be achieved.

He closed with clear words that explained how he could no longer trust the service provider, given the responses received so far from the WDHB Chief Executive and the Service Manager. He stated he would NEVER seek the services of that particular provider again.

You can read the complete, detailed letter by the complainant that was dated 27 March 2012 by clicking the following link to a PDF file copy:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, reply to decision, anon, 27.03.12

 

The complainant’s further submission from 29 March 2012 – following the O.I.A. and Privacy Act information release

Once the complainant had a closer look at the documents that he had received from the HDC Office on 26 March 2012, he saw reasons to raise additional serious concerns and present further submissions to the Health and Disability Commissioner. He referred to information that had not been known to him, and which was of high relevance to some core issues he had already raised. He asserted that his complaint from 08 August 2011 had been closed unjustifiably by the HDC Office. He also described the decision by Theo Baker, dated 24 February 2012, as unjustifiable and unreasonable. Key information relevant to his complaint had not been properly examined and assessed, he argued. In his view irrelevant information had been relied on for making the Commissioner’s decision, while relevant information had been overseen, ignored, misinterpreted or incorrectly and unfairly evaluated.

He referred to copies of his client file that the WDHB provider’s Service Manager Wxxxxxxx Txxxxxxxxx had sent to the HDC, which contained pages for the time after mid December 2010, which he so far had not had any copies of. They contained further information about the unacceptable conduct of the follow-up counsellor he had seen at XXXX Xxxx from February 2010 until early December 2010.

But first he went through some incorrect notes that had been made in the ‘New Complaint (Triage) form’ and ‘Complaint Summary’ by the HDC Assessor or other staff. There was for instance a mention made of the counsellor having allegedly “failed to take into account Xxxxxxx’s non-compliance with his medication regime when providing him with counselling”. That though had never been part of his complaint, as he had taken his medication for most of that time, which had though not been noted down by the counsellor. He also had to correct the HDC staff who had wrongfully described the last counsellor he saw at the provider as a “fill-in counsellor”, as she was not merely filling in, but seeing the client for nearly a year.

The complainant then criticised the open invitation the HDC Complaints Assessor had given to the Service Manager at the WDHB service provider, by simply allowing him to give only a “general overview of his care” – in relation to the client’s treatment. That way the Manager could overly summarise, generalise and offer edited, unspecified information on the client’s treatment or care. This allowed WDHB to avoid addressing most of the issues that had been raised. Thus WDHB and the service provider had not been challenged on particular points or issues. This would mean the whole complaint process had been compromised from the beginning. He also expressed his impression that not all complaint information had been communicated to the WDHB.

So the complainant did once again ask for a re-assessment of the whole complaint. He asked that the earlier involved Assessor should not be allowed to have any input in a re-assessment and an investigation.

The complainant and former client of the service provider had so far only had copies of his client file notes up to 16 December 2010, so he could now refer to notes in the file for the period after that, going into June 2011. These further notes revealed an astonishing record that his follow-up counsellor had put into his file for 22 December 2010 (at about 02.30 pm), which occurred after he had last seen her on 02 December in that year. The former client (and now complainant) quoted the following from his file: “Phone call to Dr Txxxxxx, advised Dr Txxxxxx session content 02/12/10, email 08/12/10 and letter inviting contact. Informed him that XXXX are not responding to his emails but scan for risk. Informed Dr Txxxxxx that Xxxxxxx drank in recent review hearing with WINZ medical team, which he did not know. Informed him that if Xxxxxxx is discharge I will send a copy of the discharge letter to him.
Dr Txxxxxx stated that he receives an email from Xxxxxxx daily, they also donot respond to his emails and scan for risk.”

This was a complete fabrication or misrepresentation of facts, as the complainant had never sent “daily” emails to his doctor. Also would he soon learn that his GP did not even remember this phone call from his counsellor Lxxxx Xxxxxx on that day and at that time, nor would his doctor remember having said anything to her, that corresponded with what she had noted down. The complainant was not only concerned about the notes about his relapse prior to a so-called ‘Medical Appeal Board’ hearing, which he had actually confided to his doctor, contrary to what the counsellor recorded. He was angered more by the comments about the “daily” emails he was alleged to have sent to his doctor. In December 2010 he had only sent two emails to his GP, one on 19 December and another one on 29 December (after this file note was made). He had even copied in his counsellor on some of those emails, as there were matters of importance which he felt needed to be shared. The complainant stressed in his further letter to the HDC Office that he had prior to 12 July 2010 never sent any emails to his doctor. Only due to a crisis and extremely upsetting consequences following a scandalous WINZ Designated Doctor assessment and an unacceptable WINZ decision based on it, did the complainant see a need to correspond with his GP by email, which never happened that frequently at all. He could simply not go and see his doctor personally each time, as being a beneficiary he could not afford much travel to a more distant suburb where he had previously lived, and he could not afford the fee that his GP would charge for each consultation.

So his follow-up counsellor had without his knowledge recorded totally untrue information in his file, by misrepresenting anything his GP may have said, that is if the client’s doctor actually ever talked with the counsellor over the phone. This appeared to have been done with ulterior motives, like with the intention to discredit the client, with whom the counsellor had in the end followed a very restrictive, tough and unsympathetic line of counselling, which did not work, hence she must have done this to cover up her own failings. The complainant informed the HDC that during his first session with his then new counsellor in early 2010, she had confided to him that she once used to be “a great manipulator”. After having read this falsified note in his file, this flashed back into his memory. In his letter from 29 March the complainant then presented a complete list of all the emails he had ever sent to his GP, up to 19 March 2012, which was nowhere near as frequent as the counsellor had misrepresented it, by misquoting the GP of her client, or even by simply making this up.

The complainant understandably viewed this new discovery as being a very serious matter, which the HDC should take note of. He even invited the Commissioner to contact his own doctor, to seek his view and comments on this newly discovered complaint matter.

Lastly the complainant raised some questions re the Service Manager’s notes on top of the file notes sent by WDHB to the HDC (dated 25 Oct. 2011). He informed the HDC that much correspondence that belonged to his complete client file had not been presented by WDHB, and that 2 assessments by the provider’s psychiatrist, as well as letters and emails that had been exchanged between the client and the service provider, would shed light on more problems that had been raised with XXXX management and staff. WDHB would have little interest in presenting that information, as it would only expose the service provider’s own shortcomings.

This letter from 29 March 2012 was then sent to the HDC by email at 09.55 pm on that same day, to which eleven PDF files were attached. These included a copy of the new letter, and copies of information received from the HDC under the O.I.A. and Privacy Act (letter from the HDC Assessor to WDHB from 06 Oct. 2011, “new complaint file” notes from the HDC dated 08 – 16 Aug. 2011, the ‘Complaint Summary’ information from the HDC file from 12 Aug. 2011 to 27 Feb. 2012, a scan copy of the clinical notes by the second counsellor, for 22 Dec. 2010, and further file notes from the service provider for 02 Dec. 2010 to 08 June 2011). Also did the complainant provide a PDF with a copy of an email he sent to his GP from 12 July 2010 (re WINZ issues), a PDF with a copy of an important email sent to his GP and cc to his counsellor on 13 July 2010 (explaining a developing crisis), a PDF containing an email to his GP from 19 Dec. 2010, and a copy of the last one sent to his doctor (during contact with the service provider) from 13 Feb. 2012. A copy of the same submission letter was also sent to the HDC by post in late afternoon on 29 March 2012.

The following link will load a copy of this letter from 29 March 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, further subm…, after OIA rel., anon, 29.03.2012

 

Further emails with relevant documents sent by the complainant to the HDC

As the newly received information from the HDC Office, including false file notes made by his former follow up counsellor, were very upsetting news to the complainant, he was concerned that he may not be taken seriously and thus not be heard. Hence he decided to send the HDC some additional information about his treatment and correspondence with the service provider’s counsellors and management. It disturbed him how WDHB only presented parts of the client file information, withholding other letters and documents that would raise more questions about their version of the his treatment and “care”.

With an email sent at 03.17 pm on 03 April 2012 the complainant presented the HDC Office 12 PDF files with mostly email correspondence he had with the service provider, which included formal complaints he had made to one facility’s manager and also to the Service Manager, who was in charge of the whole counselling services. This included emails to the ‘Counselling Manager’ aka ‘Service Manager’ from 16 and 21 June 2010 (when his counselling encountered serious difficulties), that Manager’s response from 30 June 2010, earlier complaint correspondence dated 31 July and 31 August 2007 (re a requested change of a counsellor), correspondence with the provider’s staff and one manager from 01 to 06 Sept. 2007, the ‘Counselling Manager’s’ response to a complaint from 31 Aug. 2007 – dated 06 Sept. 2007, a letter from the service’s psychiatrist (acknowledging mistakes in the appointment of a counsellor), dated 31 Oct. 2007, a treatment ‘Goal Plan’ agreed with a ‘Service Supervisor’ (who was relentlessly pushing Alcoholics Anonymous) from 17 Oct. 2007, and some further email correspondence between the former client (now complainant) and the ‘Counselling Manager’ from 09 Oct. to 20 Nov. 2007. One further email sent to the HDC at 03.48 pm on 03 April 2012 carried one more PDF file with scan copies of emails re former complaints and concerns covering the period from 21 to 26 Nov. 2007.

On 11 April 2012, when seeing his doctor for an appointment, the complainant asked him re the client file entry and phone call his former follow-up counsellor had allegedly made to him at 02.30 pm on 22 December 2010. To his astonishment, his doctor had no knowledge or memory of that phone call, nor did he remember making any such assertions as the counsellor had made in the notes of the client’s file. That was despite of the complainant showing him a copy of the notes he had received from the HDC Office by way of an O.I.A. and Privacy Act request. The doctor even went through his own notes in his computer system, but found NO record of such a phone call. He said he would make notes of calls he makes and receives.

So in a further email to the HDC, from 09.06 pm on 12 April 2012, the complainant informed the HDC about this fact, again attaching a copy of the XXXX client file note for 02.30 pm on 22 Dec. 2010. He asked how it could be that his doctor would not have a record of this phone call, which would have been important, given he had months earlier displayed suicidal ideations. His conclusion was that the phone call was never made, and that the notes had simply been “forged” or rather fabricated. He stated that he had no remaining trust in his former counsellor. He concluded his email with the comment, that the HDC should feel free to contact his doctor to seek a confirmation from him, that he had no record of this conversation, and that he did not remember it. You can find an anonymised copy of the sent email under this link:
HDC, C11HDCxxxxx, WDHB counsellor, email informing abt no GP record on ph. call, 12.04.12

With yet another email from 02.27 pm on 21 April 2012 the complainant also sent the HDC Office 4 PDF files of firstly a more recent psychological assessment from a psychologist he saw at another clinic, dated 24 Feb. 2012, with a further support letter from that psychologist dated 13 March 2012, a letter from his GP dated 11 April 2012, as well as an earlier letter from his GP from 18 Aug. 2008, stating serious issues the complainant was suffering from, also in relation to problematic, insecure housing he had. This was in order to present more information to give evidence of his complex health conditions and challenges he faced due to these. The receipt of that email and of other ones was again being confirmed by the HDC’s Executive Assistant, Kerry Norman.

 

The HDC’s Complaints Assessment Manager Deborah O’Flaherty’s response to the emails sent to their Office

On 17 May 2012 the complainant then received a letter from the HDC’s Complaints Assessment Manager, Deborah O’Flaherty, dated 16 May 2012, which was in response to the emails their Office had recently received from him.

She informed the complainant that based on the further points that he had raised, the Commissioner had decided to request a response from Waitemata DHB addressing the points the complainant felt had not been fully considered in their initial assessment. They would be in contact again once they had received that response, she wrote.

She then addressed references the complainant had made re his “full” complaint, and informed him, that he had already been advised by the Assessor Mr Lxxxxx in the phone conversation on 09 August 2011 that the original complaint, as submitted, could not be opened on our computer system due to its size, and that you would need to submit a more concise version. She also wrote: The Deputy Commissioner’s examination of your complaint is based on this revised version, dated 9 August 2011, along with the attached documentation.”

She then wrote that their Office had received “more than 12 emails from you since March 2012”, and that “most of which contain large attached files”. Then she wrote: As you have already been advised, we do not have the resources to process this amount of information, and it is simply not practicable to read each attachment in its entirety.

She closed with the comments: “Out of consideration to our staff, and with an interest in ensuring that important points are not overlooked, it would be helpful if you could keep any future correspondence as concise as possible”.

The jaw of the complainant nearly dropped down to the floor, when he read this letter with such a tone. So the HDC had simply ignored his complaint letter from 08 August 2011 plus apparently all attachments sent with the initially sent 30 emails (where single emails only carried a small number of such, in ordinary sizes). Yet in the letter sent to the Chief Executive Officer of the WDHB on 06 Oct. 2011 it was implied they had a very comprehensive complaint before them. The summarised complaint could not meet such a description. But the HDC now claimed they had only looked at the Summary Complaint from 09 August 2011 and the few attachments to that. And it now even appeared, as if they would not even bother reading documents in their entirety, which explained why his complaint had not been properly assessed, not been thoroughly investigated and not been fairly and reasonably decided on. Also was it simply an exaggeration by the Complaints Assessment Manager that the Office had received 12 emails since March, as probably nearly half of them were separate emails asking for nothing else but a confirmation of the receipt of the above mentioned emails that had been sent. Attachments with documents were also not that long or large.

This was simply a message to the complainant, which told him, that the HDC Office would not bother reading, assessing and investigating any complaints it may deem to be too comprehensive, too complex and detailed. This seemed like making a mockery of the applicable law, the Code of Rights and of the whole complaints processing done by the HDC.

A copy of that letter from the HDC Office from 16 May 2012 can be found via these links:
HDC complaint, WDHB counsellor, HDC reply clarifying complt info, D. O’Flaherty, 16.05.2012
HDC complaint, WDHB counsellor, HDC clarifying complt info, D. O’Flaherty, hilit, 16.05.12

 

The complainant’s response to that letter from 17 May 2012

Of course the complainant could not accept such a response, hence he swiftly replied with a further letter to the HDC Office. On the same day he received the letter from Deborah O’Flaherty, he wrote back to the Commissioner and her.

Acknowledging the last letter from the HDC Office, he wrote the following:
I take note now that you have based your earlier assessment and investigation merely on a very abbreviated and summarised complaint I wrote to your office on 09 August 2011, in which I made very clear reference to the fact, that the complaint of that date had to be viewed together with my complete complaint of 08 August 2011.

You refer to Mr Axxx Lxxxxx (Assessor) having advised me that he and your office staff had received my initial complaint with submissions, but that it “could not be opened” on your computer system, due to its size.

In all honesty, I am utterly dismayed and disappointed about these comments, and it is incomprehensible to me and others whom I have consulted, how your system is unable to deal with ordinary emails and attachments that every other person has been able to download and open.”

After expressing astonishment or disbelief at the Office’s apparently outdated computer system, he added this: The fact that you have simply not read and processed the material supplied to you means that your office will certainly not properly, sufficiently and fairly address the issues I have raised.

He commented that the emails he had sent in recently were of ordinary type and size, same as the attachments to them. He criticised that it was “highly irresponsible not to take note of submissions by complainants, who communicate and send your office highly relevant, sensitive and utterly important documentation and information”.

He added: My impression is that your office is simply not sufficiently familiar and able to address complex matters and issues arising in the course of mental health and addiction treatments.” The complainant expressed his utter disappointment about the Complaints Assessment Managers letter and how dismissive the HDC Office had been in its previous handling of the complaint, and then deciding his complaint needed no further action.

He furthermore wrote: “I now expect little in the way of actions of thoroughness, seriousness and legally required reasonableness and fairness from your office, and I will definitely consider informing leading NZ media about what really goes on at the Office of the Health and Disability Commissioner”.

But despite of so much disappointment and despair, he nevertheless closed off with a comment that he would look forward to the Office’s further reply in the matter.

A link to a PDF with the full authentic text of this letter by the complainant is here:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, ltr in response to HDC’s ltr fr. 16.05.12

 
 

PART 5: THE COMPLAINT IS LEFT UNTOUCHED FOR A YEAR, ALTHOUGH A SECOND RESPONSE FROM THE RESPONDENT WAS AVAILABLE

 

Now, after all of the above, the complainant was highly suspicious about how the HDC was handling complaints such as his one, as factual, well documented evidence appeared to simply be ignored or was given little merit. It was beyond belief, that a letter from a Chief Executive of a DHB, referring mostly to only selectively chosen information, and offering a mere general “overview” of a person’s “care”, was obviously given much more weight than numerous authentic evidence documents that he had supplied to the Office.

The complainant was not quite sure, whether the problems he now faced were mainly due to an Assessor having conducted a poor, appalling assessment, or whether the Deputy Health and Disability Commissioner Theo Baker was responsible for basically “off-loading” his complaint. So he waited with some anticipation for a response to his recent letters, raising objection to the way an assessment had been made and how a decision to not investigate the complaint had been formed. This though would take an extraordinarily long time.

In the meantime he was kept busy with never ending settlement negotiations that MSD had tied him up in, following a judicial review application that challenged a decision by a Medical Appeal Board, which came to a bizarre decision on his entitlement to a WINZ benefit on health grounds. This involved a fair amount of communication and correspondence with his lawyer, whose services he could only afford on civil legal aid (barely covering the costs).

As it now appeared rather unlikely that he would after all the apparent misunderstandings, the absolute reluctance of the HDC to accept and process his initial, full complaint, and after the resulting recent upheaval, get his complaint assessed and investigated fairly, the complainant went about to try another way to address the appalling unprofessional conduct and failures of the counsellors he had seen.

 

The complainant files a separate complaint with the DAPAANZ

He now prepared a separate complaint to the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’, in short called DAPAANZ. He would raise issues under their ‘Code of Ethics’, where he felt a range of principles and/or core values had been breached by the counsellors and clinicians he had seen at the WDHB service provider. Both counsellors were registered with the Association. It was from 31 May to 02 June 2012 that he sent in 11 emails with a number of attached documents (up to 146) to their Director Ian MacEwan. Again he would present a written complaint letter, plus virtually all scan copies of his client file from the provider, a range of letters and sundry other relevant documents. He gave a sufficient enough background report and gave a detailed report on what occurred during and after his counselling over the years 2009 and 2010. The breaches that he claimed happened were described in some detail. He was more careful with this complaint, trying to avoid “mistakes” he may have made with the HDC complaint.

This separate complaint cannot be covered here as it would vastly exceed the scope of this post, which is more than comprehensive enough already, and we consider presenting that complaint in a separate post at a later time. What we can confide to you though is the fact, that a senior member of the Executive of that Association also happened to be the employer of the two counsellors complained about. Although he excused himself from being part of the committee that would review this complaint to DAPAANZ (due to his conflict of interest), he would later be found to have had input into the discussion and hearing of that complaint, as he was allowed to give “advice” as the counsellor’s employer!

It will not surprise any readers here that the final outcome of the DAPAANZ complaint was at least as equally appalling as this complaint would again show to be. There were indications of some behind the scene contacts, that appear to have occurred, and either due to these, or to the more official version of events, it led to the employer basically assisting his staff to get off the claims made against them – in both complaints. And to the astonishment and confusion of the complainant, the DAPAANZ would even present their shoddy “decision” only months later, by email on 01 November 2012, well before the HDC would provide a second decision.

 

Further correspondence with the HDC Office, while the complainant is left waiting

Getting back to the HDC now, the complainant waited for a new response and perhaps more acceptable decision by the Health and Disability Commissioner, but nothing came. He also sought additional information under the Privacy Act from a separate psychotherapy service he had attended between October and March 2010. When provided with copies of his clinical file there, he discovered yet again, how one of the counsellors he had seen at the WDHB service provider had made inappropriate and incorrect comments to a psychotherapist that had been involved with the same client at the other provider.

He found a file entry that the psychotherapist had noted down on 11 Jan. 2010 re a phone call he had received on that same day from the complainant’s and then client’s counsellor for the year 2009. The file notes said this:
“ … Xxxxxxx had attended a session with Mxxxxxx on 23/12/09 during which Xxxxxxx had become angry when Mxxxxxx had not provided him with a letter saying that XXXX supported him in his attempt to get legal aid. Xxxxxxx had left session angrily saying that he hated Xxx Xxxxxxx (see XXXX notes 23/12/09). Mxxxxxx reports that Xxxxxxx has become angry with other XXXX counsellors in the past in this way and has subsequently changed counsellors. Mxxxxxx will try to contact Xxxxxxx and re-engage with him.”

Here is a link to a PDF file with a scan copy of the relevant two pages of the client file, with personal details deleted:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, file record w. lies fr. counsellor, 11.01.10

Here is a link to a PDF with a scan copy of that letter dated 23 December 2009, that the counsellor presented to the then client, now complainant:
HDC complaint, WDHB counsellor, counsellor’s weak, useless support ltr, 23.12.2009
(a copy of this was sent to the HDC with the initial complaint)

This was another piece of evidence that did prove to the complainant that his counsellor, who he refused to see after his presentation of a ridiculously brief and unhelpful letter, stating only his past engagement with the service provider, and their intention to work with him in the future, was dishonest, biased against him and misrepresented facts behind his back.

The comment that he as the former client of the counsellor “had become angry with other XXXX counsellors in the past in this way” was a blatant lie, as he had never before expressed anger during any counselling session, and as he had never walked out on any counsellor ever before! Also was it simply not true that he had asked for a letter that would say his counselling provider supported him getting legal aid. All he had asked for was a letter stating his health issues, the stress and other discussed challenges he was dealing with, besides of mentioning his ongoing counselling engagement.

This prompted the complainant to send the HDC Office yet another email at 03.03 pm on 02 June 2012, with which he pointed all this out, and attached to it, he sent the HDC copies of the pages from the client file from the psychotherapy service provider. As there was again no response to that email, he did in the morning of 06 June ask for a confirmation of its receipt, which never came. Hence he sent another email to seek the same at about 09.11 pm in the evening of 06 June 2012. A confirmation was finally received from Complaints Assessor Jx Zxxx at 11.08 am on 07 June.

For the coming months there was no further response from the HDC, hence on 30 Sept. 2012 the complainant wrote an email to the HDC, asking for an update on his complaint, as he became concerned that it had been nearly 14 months, when he first filed the complaint. An update – again from Jx Zxxx – and from 01 Oct. 2012, simply apologised for the delay and explained: “As you have correctly stated, we are dealing with a large volume of complaints at present”. The Commissioner was still reviewing the information gathered on file, she wrote. A formal response was indicated to come “in the next few weeks”.

After receiving a scandalous, dismissive “decision” by email on 01 Nov. 2012 from the above mentioned DAPAANZ Director, which was based on an evidently unprofessionally conducted review of a complaint filed with them, the complainant wrote to the HDC Office once again at 10.40 pm on 06 Nov. 2012. He expressed his great concerns and outlined how it was apparent that the senior member of the DAPAANZ Executive Board, who was also the employer of the counsellors he had complained about, may have helped dismiss a complaint against his staff members, while he had a conflict of interest.

He mentioned how a ‘Professional Standards Committee’ acted in anonymity, as no names had been mentioned about who had been involved in investigating and deciding on his complaint. The MS Word copy of the contradictory, unfair and unreasonable report and decision from 29 Oct. 2012 was initially sent without any signature, and appeared to be prepared by people lacking the necessary knowledge and competence to conduct a professional ethics committee hearing. Attached to this email the complainant sent the HDC Office two copies of the bizarre “decision” letter by that ‘Committee’, and his own response to DAPAANZ from that same day.

On 07 Nov. 2012 at 10.20 am Jx Zxxx, Complaints Assessor at the HDC Office, thanked him for providing their Office with this information, and she wrote that this information would now be considered as part of the Commissioner’s review of his complaint.

In the meantime there was a further response by DAPAANZ, who suddenly sent a more “formal” report and decision to the complainant, now with letterhead and a signature by their Director, but nobody else. That was followed by a new response by the complainant, who stated his serious misgivings and concerns about the DAPAANZ position. With an email from 11 Nov. 2012 the complainant informed the HDC Office of the additional correspondence he had with DAPAANZ, who stuck to their decision and offered little in further explanations. He sent copies of his letter from 09 Nov. 2012 to DAPAANZ, a reply from Ian MacEwan from DAPAANZ from 06 Nov., a PDF file with the evidence he had sent DAPAANZ, plus a copy of the complaint letter he had sent to them.

Despite of the earlier disappointment with the HDC decision, he was still somewhat hopeful that his endless efforts to reveal the truth and to present documentary evidence may finally convince the HDC to take investigative actions against the counsellors and the service that employed them as part of WDHB.

By email from 10.07 am on 30 Jan. 2013 the complainant informed the HDC of a Privacy Commissioner complaint he had filed against DAPAANZ. As no confirmation of receipt was forthcoming from the HDC, he asked for a confirmation again by email at 07.54 pm on 08 Feb. 2013. On 11 Feb. 2013 (09.23 am) Jx Xxxx, Complaints Assessor, confirmed the receipt of that email and information, which was being reviewed. Time continued to pass and no response came from the HDC, hence the complainant wrote again at 11.40 pm on 29 March that year, asking for an update on the two complaints he did in the meantime have before their Office. A second complaint, which we already presented in a post on in this blog, related to a general practitioner who had assessed the complainant for Work and Income. On 03 April 2013 he sent one further brief email, as he never received an update. This was replied to by the same Assessor, assuring him that his complaint had not been overlooked. In her email from 09.37 am on 04 April she wrote that the complainant should expect a formal response in the coming week. Nothing came that next week, so he wrote yet again at 11.06 pm on 19 April 2013, mentioning he had now waited another two weeks, and not received anything. He wrote that he would have appreciated a brief notification for any delay.

After only receiving a letter from the Deputy Health and Disability Commissioner Theo Baker in relation to the other complaint matter (C12HDCxxxxx) dated 24 April 2013, but no response to recent email(s), the complainant wrote again by email at 01.22 am on 25 April 2013. He now expressed clear frustrations with the lack of progress in his complaint under the HDC reference C11HDCxxxxx, writing that he had the impression complaints of the type he presented were handled in a form that was close to contempt, and that they were nor seriously considering the overwhelming amount of clear, well documented evidence. He even considered steps in the form of applying for judicial review, because the other complaint had also been dismissed with the comment that no action needed to be taken. The complainant was again critical of the way assessments appeared to be done, and asked again that the HDC Office review their processes and the decisions made so far.

 

The Deputy HDC’s second “final” decision in this complaint matter from 14 June 2013

It was finally on 19 June 2013 that the complainant received a second “final” decision by Theo Baker that was dated 14 June. With this letter the Deputy Commissioner did simply uphold her earlier decision, stating: “I remain of the opinion that my decision to take no further action on your complaint was appropriate”. The complaint would remain closed, she wrote. The letter was only two pages long and again had a further response from WDHB attached, which was though dated 06 June 2012 (!!!), that means OVER TWO YEARS OLD, and had apparently been left lying in the HDC Office since then. There was hardly any change in the description of issues that she mentioned, and in the explanations that she gave.

Ms Baker even seemed to refer to an email that was never sent on 24 April, as one was only sent to their Office on 25 April. Her letter gave the impression that crucial, also newly presented, compelling evidence of the counsellors’ misrepresentation of facts, if not blatant lies to cover up their failings, including the recording of false file notes, had not even been looked at! Hence this was yet another appalling decision by the Commissioner that shocked the complainant and left him in disbelief.

Again Theo Baker only listed five bullet points that were supposed to summarise the complainant’s remaining concerns, which were only slightly different to the bullet points she listed in her first decision from 24 February 2012. They were now formulated as being:
“● Counsellor, Mr Mxxxxxx Sxxxxxxxx, was not qualified to offer counselling for alcohol dependency, and should have offered you a more competent alternative counsellor.
● Mr Sxxxxxxxx failed to give you the psychological, emotional and practical support you needed throughout recurrent episodes of serious crisis.
● Mr Sxxxxxxxx failed to acknowledge that you had been taking certain medications for most the time he counselled you.
● Mr Sxxxxxxxx incorrectly assessed you as being at a low risk for self harm, before realising that you should have been assessed as being at medium risk.
● Counsellor, Ms Hxxxxx, did not enter important details into your file, including instances where you had expressed to her “immense distress, disappointments, suicidal ideas and great misgivings” about your treatment.”

And once again, Ms Baker did pick only some bullet points from the response provided yet again by Dr Dale Bramley, Chief Executive Officer for the WDHB, which were:
“● Mr Sxxxxxxxx holds a Bachelor in Counselling degree from the Wellington Institute of Technology, and a Post-Graduate Certificate in Health Science from the University of Auckland. He is also a registered practitioner with the Drug and Alcohol Practitioners’ Association Aotearoa New Zealand. WDHB notes that Mr Sxxxxxxxx provided you with services within his clinical scope of practice.
● WDHB thoroughly investigated your concerns about whether Mr Sxxxxxxxx was providing you with appropriate care, clinical management and support. WDHB considers that your dissatisfaction arose from occasions where you requested assistance with matters that were outside the scope of what XXXX could provide.
● Mr Sxxxxxxxx was aware that you were on medication at the time he was your counsellor, and this is evidenced by the clinical notes.
● Mr Sxxxxxxxx assessed your risk of self-harm according to your presentation at the time. Mr Sxxxxxxxx’s assessment of your risk level was a correct reflection of his clinical opinion at the time.
● Ms Xxxxxx entered information into your file that, in her clinical opinion, she considered relevant at the time of your presentations.”

And after summarising these selected few defensive comments that were taken from Dr Bramley’s second, equally selective, at least partly misrepresentative and self-serving response, Ms Baker then delivered under My decision the following bizarre explanations:
“I have thoroughly reviewed your file in light of WDHB’s response and your outstanding concerns. Having done so, I remain of the opinion that my decision to take no further action on your complaint was appropriate.

I consider that WDHB’s latest response comprehensively addresses your outstanding concerns. It seems to me that the WDHB staff who dealt with you were adequately qualified, were aware that you were on medication, and made clinical judgments according to your presentation to them at the relevant time. I am also satisfied that WDHB responded appropriately to your formal complaints to them about the services provided to you.

I consider that, though your personal expectations of the XXXXX service may not have been met, this may have been because some of your expectations went beyond the scope of the services offered by XXXXX. I reiterate the comments I made in my decision letter dated 24 February 2012, that counselling is a particularly difficult service to coordinate due to the subjective needs of the consumers using these services and that, despite every effort being made, it is not always possible to meet every need of every individual.

I note that you have raised concerns with the fairness of HDC’s processes and decisions in its consideration of this complaint. Having reviewed your file, I am satisfied that all relevant information has been considered in coming to this decision. I consider that there is no indication of any procedural issues which necessitate revisiting my decision.

Your complaint will therefore remain closed. I appreciate that this is not the outcome you were hoping for, however I do not consider that further consideration of your complaint is necessary or appropriate.”

Theo Baker’s complete decision with the attached letter from the WDHB can be found via these links:
HDC complaint, WDHB counsellor, HDC’s 2nd decision w. WDHB ltr, T. Baker, 14.06.2013
HDC complaint, WDHB counsellor, HDC’s 2nd dec. ltr, compl., late, hilit, T. Baker, 14.06.13

She would again send a letter with her decision to the Chief Executive Officer of WDHB, which is found via this link:
HDC complaint, WDHB counsellor, HDC’s 2nd decsn ltr to WDHB, T. Baker, hilit, 14.06.13

A copy of that letter would also be provided to the complainant in response to an O.I.A. and Privacy Act request.

So we have simply a continuation of the same approach, where a response letter from the Chief Executive of WDHB serves as the Deputy HDC’s justification to virtually throw this complaint out, to dismiss it as not deserving further action or investigation. That is by ignoring black on white, authentic evidence of the counsellors’ professional misconduct, and the HDC had not even bothered to consult with or seek an opinion from the complainant’s own doctor or other professionals, whose documented reports and other evidence the former client of the controversial service presented to the HDC. The HDC staff did not even challenge the two counsellors directly re the alleged breaches of the Code of Rights laid against them.

Either this is clear evidence of the HDC staff members’ complete incompetence in not being able to conduct proper assessments, of their inability to handle and examine complex cases involving much information, or it is evidence of a degree of bias the Deputy HDC may have, simply rather choosing to believe statements and comments made by professional medical professionals that have been complained about, or relying on the senior administrators of the DHB and other service providers they work for.

The second response from the WDHB was as questionable, partly incorrect and misleading as the first one, even starting with the qualifications of the counsellor mainly complained about. At the time the counselling relationship existed during 2009 he did not have the extra Post-Graduate Certificate in Health Science from Auckland University, which he only obtained afterwards in 2010. His and the follow-up counsellor’s DAPAANZ registration are irrelevant, as the also bizarre “report” and “decision” upon an unsuccessful complaint to that Association’s ‘Professional Standards Committee’ had shown the complainant. That Committee was just as incompetent and biased as the HDC appears to have been, when assessing, examining and making a decision on a detailed, well documented complaint. That means the membership of DAPAANZ gives the practitioners good protection, as the Association rather advocates for its members than looks after their client’s interests.

There were other irregularities and inconsistencies that the complainant found in the response from Dr Bramley, same as there were with his first response. The appalling record keeping and the noting down of completely false information in the client’s file were not even being addressed, while the preferred focus on supposed “out of scope expectations” was ridiculous.

Of course the complainant would not accept this kind of decision, and in order to dig deeper into what was really going on, he did soon prepare further O.I.A. and Privacy Act requests, to try and access more information that he had not yet asked for.

 
 

PART 6: THE COMPLAINT RESOLUTION TAKES OVER TWO YEARS, AND THE COUNSELLOR IS LET OFF WITH THE HELP OF HIS EMPLOYER

 

The complainant files two further requests under the O.I.A. and Privacy Act

On 24 June 2013 the complainant sent off the following request under the O.I.A. and Privacy Act. He asked for the following:

“A. An authentic copy of a letter sent by your staff member Deborah O’Flaherty, Complaints Assessment Manger, dated 16 May 2012, to the Waitemata Disctrict Health Board (short ‘WDHB’, to their Board Office and/or the Chief Executive Officer, or any other office of the WDHB) in regards to my complaint to your office under reference C11HDCxxxxx.

The complaint relates to the alleged misconduct of clinicians Mxxxxx Sxxxxxxx and Lxxxx Hxxxxx at Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX) in Xxxxxxxxx, which is a service of the WDHB. I understand that letter to have contained questions that were made to the WDHB to address and resolve outstanding concerns and issues in the complaint matter.

B. At the same time I request any other correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference. This should include a detailed list of all complaint related submissions I presented in this matter that were presented to WDHB and/or XXXX.

C. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s office, same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint made by me.”

He also mentioned the following, in order to be reasonable with this request:
“Any information that was already supplied up to the date of a previous request of this nature (dated 03 March 2012) will not need to be included.”

 

On 25 June 2013 the complainant added the following O.I.A. and Privacy Act request:

“In addition to information already requested by way of a letter (also sent by email) on 24 June 2013, please provide me with the following specified information:

A. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the Office of the Privacy Commissioner in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

B. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my own general practitioner, Dr Bxxxx X. Xxxxxxx, of the Xxxxxxxxxx Xxx Medical Centre in Xxxxxxxxxx Xxx Road, Xxxxxxxxxx Xxx, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

C. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former counsellors Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx, both clinicians employed by Xxxxxxxxx Xxxxxxx and Xxxx Services (XXXX Xxxx), Xxxxxxxx, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

D. Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with my former facilitator (of an attended counselling group), Psychotherapist Txxx Pxxxxx of ‘Xxxxx Xxxxx Specialist Psychotherapy Services’, in Xxxxxx Xxxx Road, Auckland in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

E. Information on whether – and in what form – the Mental Health Commissioner, employed by, or liaising with, the Office of the Health and Disability Commissioner, was consulted or corresponded with in relation to the above mentioned complaint matter.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations.

This specified information is sought under the above provisions of the Official Information Act 1982 and the Privacy Act 1993.

Please supply the information in clearly readable form as photo-copies of originals, system data printouts or other official types of records within the prescribed official response time.

Yours sincerely and thankfully

Xxxxxxx Xxxxxx”

Links to the PDF copies with the text of the two further requests mentioned above are here:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, anon, 24.06.2013
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, further, anon, 25.06.2013

 

The complainant sends a letter dated 25 June 2013 directly to the HDC Anthony Hill

Also on 25 June 2013 the complainant wrote yet another letter to the HDC Office, this time addressing it directly to Mr Anthony Hill, the Health and Disability Commissioner himself.

He referred to Theo Baker’s earlier handling of the complaint matter, and expressed his objections to her decision from 24 February 2012, which she had upheld with her further decision from 14 June 2013, after virtually sitting on the WDHB response from early June 2012 for over a year.

The complainant then submitted his objections which he had already raised re Ms Baker’s first decision from 24 February 2012, in his letter dated 27 March 2012. He mentioned that he also presented proof that his complaint had not been properly assessed and investigated. Only one point of his whole complaint – about wrong information having been recorded in his client file – had then been looked at, he wrote. He pointed out that there were a number of serious breaches that occurred under the ‘Code of Health and Disability Services Consumers’ Rights’ and also under the ‘Code of Ethics’ of the DAPAANZ.

He did then again raise the particular HDC process issue where the Complaints Assessor Axxx Lxxxxx had simply refused to accept his initial complaint (from 08 Aug. 2011) and forced him to present a summarised complaint, because the Assessor alleged the emails the complainant had first sent were “freezing” their system. So the complainant stressed yet again, that he had in the Summary Complaint stated that it must be viewed together with the already sent information and documents (from 08 Aug. 2011).

Re the Deputy HDC’s handling of his case he wrote: “Theo Baker, and her staff, clearly failed to properly and thoroughly assess the complaint from the start, and failed to sufficiently, objectively and fairly consider a comprehensive range of very relevant, well documented, compelling information put before them. Theo Baker consequently relied on only very selected, partly wrongly understood or misinterpreted, and otherwise insufficiently examined and evaluated crucial information, which was mostly kept in records provided.”

The complainant mentioned how he had suffered as a consequence of wrong information having been put into his client file, on which other health professionals had relied on.

He referred to letters from Lydia Wadsworth (Legal Advisor) and how he had then sent further submissions to the HDC Office in a letter dated 29 March 2012. So the complainant did once again list important points he had raised in that letter under A) to F). He also mentioned his further correspondence, including submissions and evidence that he had sent to the HDC Office since then. He listed what emails with what contents and attachments he sent in under a) to j) from 03 April 2012 to 03 April 2013, and the limited responses he received.

The complainant explained in some detail why the first decision from 24 Feb. 2012 by Theo Baker was totally unacceptable, again referring to his letters from 27 and 29 March 2012 and making further summarising comments. He then explained how the flaws and issues with Ms Baker’s first decision had not been addressed by her new, final decision from 14 June 2013. He listed the bullet points of his remaining concerns, as she had summarised them, and also listed the points that Dr Bramley as Chief Executive Officer for WDHB had addressed in return. He described the “outstanding concerns” listed as bullet points by Theo Baker as being “virtually identical” to the ones she mentioned in her decision from 24 Feb. 2012. He also described the answers given by Dr Bramley from WDHB as being “basically nothing much more than a reiteration of their earlier position, only offering some limited additional information”. The complainant asserted that no satisfactory answer had been given to his serious complaints about false information having been recorded in his clinical file. He critically summarised how Theo Baker had justified her more recent decision.

From page 6 to 8 in this letter the complainant then listed 12 separate points that showed where issues had not at all been properly addressed in the Deputy HDC’s letters, and also not by the WDHB’s response from 06 June 2012. Many of his stated arguments and much of his referred to evidence were a repeat of what he had raised and presented before, but he also added new points at issue, that were based on newly obtained information, which showed how the counsellors he had previously seen at the service provider of WDHB had misrepresented information, had recorded false information, had lied and also tried to blemish his reputation, to cover themselves. He mentioned how the first counsellor he saw during 2009 did not even have the full qualifications then, which Dr Bramley had listed in his further response. The complainant firmly rejected the Chief Executive’s assertion that he had been provided with “appropriate care”, “clinical management” and “support” during the course of his treatment. He did also not accept that WDHB had properly investigated his complaint.

The complainant criticised Ms Baker for having ignored information he had sent in on the DAPAANZ and its unacceptable handling of a separate complaint. He mentioned that both counsellors who he had complained about were registered members with that Association, and that their employer was even the Chair of their Board, raising serious questions about the ‘Professional Standards Committee’ appointed by that Executive Board acting independently.

He also raised natural justice issues re the way his complaint had been mishandled from the beginning. He reasserted that the summarised complaint would have to be viewed together with information he had already sent in on 08 August 2011. He later had to resubmit some information, which had not been received well, he wrote. Hence he expected that all this information, including what he had to add at a later stage would have to be considered.

So in summary, the complainant did ask for a review of the assessment, investigation and decision made on the complaint. He also expected that the Mental Health Commissioner would be consulted and involved in this process. He criticised Deborah O’Flaherty’s comments in her letter from 16 May 2012 that as their Office would not have the resources to process large amounts of information, attachments (to emails) would not be read in their entirety. He felt this comment and conduct were unacceptable. The complainant did in the end of his new letter also mention, that he had learned, that Theo Baker had once worked for ‘Capsticks Solicitors LLP’ in the UK, who had for many years been loyal and committed legal representatives for the NHS and other leading health service providers there. He expressed concerns about how committed she may be in her present role.

This letter was sent to the HDC by email at 10.05 pm on 25 June 2013, after the O.I.A. and Privacy Act requests had also been sent in on 24 and 25 June 2013. Also was a hard copy of the same response letter sent off by parcel post on 27 June 2013.

Here is a link to the PDF with the complainant’s reply letter to the HDC from 25 June 2013:
HDC, complaint, C11HDCxxxxx, WDHB, response to fin. decision, anon, 25.06.2013

 

The complainant sends off a further O.I.A. and Privacy Act request on 02 July 2013

On 02 July 2013 the complainant sent yet another brief request under the O.I.A. and Privacy Act to the HDC Office, as he had forgotten to include some specified information in the earlier sent ones from 24 and 25 June. He now also requested the following:

“Please do also provide me with the following specified information:

Information on whether – and in what form – staff employed by the Office of the Health and Disability Commissioner consulted or corresponded with the ‘Addiction Practitioners’ Association Aotearoa – New Zealand’ (short DAPAANZ) in relation to the above mentioned complaint matter.

This would include Executive Director Ian MacEwan, Chairperson Wxxxxxxx Txxxxxxxxx, or any other member of the Executive and/or staff – or member – employed by that association.

In the case there was any consultation or any exchange of correspondence and information, I request you to make available all copies of emails, facsimiles or postal letters, same as transcripts or notes on made phone or personal conversations”.

Here is a link to the PDF with the further O.I.A. and Privacy Act request by the complainant:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqst, anon, 02.07.2013

 

The complainant presents the HDC a decision from the Privacy Commissioner who ordered DAPAANZ to release personal information held on him

Following a complaint to the Privacy Commissioner earlier in the year (dated 26 Jan. 2013), the complainant would in early July receive a decision which informed him that the DAPAANZ had been asked to release correspondence and notes containing personal information on the complainant to him.

As this was a major development in his dispute with DAPAANZ, he considered this was also information that should perhaps be considered by the HDC and his staff. Hence at just before midnight on 09 July 2013 he sent the HDC Office one more email that had attached an earlier letter from the Privacy Commissioner dated 01 March 2013 and also the very recently received decision by that Commissioner dated 05 July 2013.

Although possibly not of direct relevance to his HDC complaint, the complainant felt, it was information the HDC should know about, as it related to the counsellors complained about, and also their employer, who appeared to be making efforts to assist his staff getting off the complaints.

 

The HDC’s Legal Advisor Georgina Rood’s response to the O.I.A. and Privacy Act requests

On 22 July 2013 the complainant received a letter signed by Georgina Rood, Legal Advisor, from the HDC Office, which was dated 18 July 2013 and contained information he had sought with his O.I.A. and Privacy Act requests from 24 and 25 June and 02 July 2013.

A fair amount of the provided information had indeed already been supplied with the earlier O.I.A. and Privacy Act response from the HDC Office, which was sent to the complainant by Lydia Wadsworth, Legal Advisor, on 23 March 2012. But there was some correspondence and other complaint file information that was more recent and partly new to the recipient.

This included a letter from Deborah O’Flaherty to the Chief Executive Officer of WDHB dated 16 May 2012, with which the HDC Office sought further information from WDHB to answer bullet point listed outstanding concerns the complainant had raised, according to the HDC that is. These bullet points resembled or were even identical to the ones that Theo Baker had listed in her last decision from 14 June 2013.

That particular letter would also reveal, that the HDC had actually also written the following to the WDHB:It would be most beneficial if the response could include comments from both Mr Sxxxxxxxx and Mrs Xxxxxx personally. So the Deputy HDC and her Legal Advisor had actually sought comments from the two counsellors, which were though apparently not being provided by Dr Bramley from WDHB in his letter to the HDC from 06 June 2012. Comments may have been provided to him by the counsellors internally, via the Service Manager, but they were not presented in response statements to the HDC.

On page 2 of this O.I.A. and Privacy Act response letter from Georgina Rood there was also mention of the following: “As you will see from the information released to you and as set out above, HDC sent a copy of your original complaint to WDHB as an attachment to our letter dated 6 October 2011. Your original complaint was made up of three emails, with a total of 14 Attachments. I am not able to say with absolute certainty whether all of that material was sent WDHB; though it is HDC’s usual practice to send the entire complaint to the provider concerned.”

This clarified to the complainant again, that the “original complaint” the HDC was talking about was the one dated 09 August 2011, which was sent in as three emails with attachments, and which did NOT include the complaint letter or any attachments sent on 08 Aug. 2011.

Legal Advisor Ms Good withheld in their entirety (see page 2):
“● requests for legal advice in relation to this complaint from HDC staff to HDC’s legal team; and
● legal advice provided in response to those requests.”

She wrote there was no other record on file (apart from what had been mentioned and/or provided) of any other communications between HDC staff in relation to this complaint.

There had been NO communications, correspondence or consultations between HDC staff and the Privacy Commissioner, the client’s and complainant’s GP, the complainant’s former counsellors, the client’s former facilitator or psychotherapist from a specialist psychotherapy service, the Mental Health Commissioner or anyone at DAPAANZ, the Legal Advisor informed. There had also not been any other direct contact with any other person at the service provider in question or WDHB, besides of one phone conversation with the Service Manager, besides of the correspondence with Dr Bramley, she clarified. The counsellors were understood to have contributed to the response from WDHB dated 06 June 2012.

So the complainant had at least got some useful information about how his complaint had been handled and re what happened behind the scenes.

Here are links to PDFs with a scan copy of Georgina Rood’s letter from 18 July 2013:
HDC complaint, WDHB counsellor, HDC’s reply to further Priv. Act rqsts, G. Rood, 18.07.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act reply, G. Rood, 18.07.13

Here are links to that important letter that the HDC sent to WDHB on 16 May 2012:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, 16.05.12
HDC, complaint, C11HDCxxxxx, WDHB counsellor, HDC 2nd rqst to WDHB, hilit, 16.05.12

Other documents sought through the O.I.A. and Privacy Act requests has already been made available earlier, and can be found via other links shown further above. If they are not shown, they are of little importance or relevance.

 

The complainant’s letter providing crucial new evidence he received from DAPAANZ, showing how the employer assisted his counsellors in getting off any claimed breaches

On 02 August 2013 the complainant received a letter from Mr Ian MacEwan at the DAPAANZ, with which he was presented 22 emails, letters and notes that had been created, recorded and kept in a complaint file with the complainant’s personal information in it. A fair amount – if not most – of this information included correspondence and notes that formed part of communications and discussions that the ‘Professional Standards Committee’ (PSC) members had, when processing and deciding on the complaint about the two counsellors as members of their Association. They were the same counsellors employed by the provider that belonged to WDHB, about whom he had complained to the HDC.

Upon reading the highly sensitive and revealing information, it had become evident, how appallingly the complaint had been dealt with, and how apparent bias could be detected in comments by two of the three Committee members. He could see how the employer of the counsellors, who also happened to be a senior member of the DAPAANZ Executive, was even allowed input by giving his “advice” on crucial matters – as the “employer” of the accused. It was apparent, how the main counsellor, who was asked questions, was in the end being “guided” and assisted through the “investigation” process, as he was basically provided with the right kind of legalistically formulated answers, that would help him get off the allegations and claims made against him. This was allowed although he had initially been found to be “stonewalling”.

The complainant was furious and appalled about the evidence before him, and he felt that this information should certainly also be of interest to the HDC, and possibly be considered with material already provided. The information from DAPAANZ showed how defensive, deceptive and dishonest not only the counsellor but also his employer was.

In his new letter to the HDC, dated 05 Aug. 2013, the complainant first thanked for the information the HDC’s Legal Advisor provided with the letter from 18 July 2013. He did then comment critically on the little changed bullet points that had been presented to the WDHB in the letter from the HDC dated 16 May 2012. They would give insufficient consideration to the points of concern he had raised and evidence he had mentioned in his letters from 27 and 29 March 2012, he wrote. He felt that no proper efforts appeared to have been made to actually look at the abundance of clearly documented evidence that he had presented.

Then he insisted that the HDC should seek the confirmation of evidence he had supplied, and for any other details that may be relevant, from persons he listed from a) to h). These included his doctor, a formerly consulted psychotherapist, a psychologist, an investigator at the Privacy Commissioner’s Office, the two counsellors/clinicians he had seen at the service provider (faced with his complaint), the Counselling Manager (aka ‘Service Manager’) at that service, and Mr Ian MacEwan, Executive Director at DAPAANZ.

In a ‘Part 2’ of his letter he then outlined in more detail, what the emails and notes he had received from DAPAANZ actually contained in the way of comments and exchanged correspondence between the members of the so called ‘Professional Standards Committee’ of DAPAANZ. In chronological order he quoted extracts from emails, and thus gave evidence of how the employer of the counsellors, who was at the same time the Chair of the DAPAANZ Executive, was able to have input in the review of the complaint before that Committee. It showed how the one counsellor who the complainant saw during 2009 was being assisted to find and then give the answers to get him off the alleged claims made against him. He also revealed how the employer of the counsellors contradicted himself re the provider’s rules and their staff’s scope for writing support or advocacy letters. The counsellor defended himself with the bizarre claim, he could not comment on any file notes, as he had not received any authority from his former client to release such. There was at no time any thought given to whether the former client should actually have been approached and asked by the counsellor or his manager to give permission, which never happened. Also would this ‘PSC’ never approach the complainant to seek his authority for his notes to be discussed by the clinician.

The complainant pointed out, how some of his own former comments, how his file notes and so forth were taken out of context, were misrepresented and misinterpreted, and how some Committee members appeared to have a bias against him as the complainant from the very beginning of the review. The complainant concluded that the “hearing” that the Committee held was conducted by biased persons who also unreasonably allowed the employer input in the process (while having a clear conflict of interest). He raised issue with the PSC members acting under “anonymity” when examining the complaint. He considered that the decision was even without any legal validity, due to the unfair and unreasonable process that had been followed, and due to how the bizarre decision had been presented. He explained how the DAPAANZ tried to cover the whole matter up, after the complainant filed a request under the Privacy Act as early as on 05 Dec. 2012. Only after the Privacy Commissioner ordered the DAPAANZ Executive Director to release the information, did the Association reluctantly comply (possibly not even providing all information they still had).

The complainant stated also that the employer of the counsellors, Mr Txxxxxxxxxx, had deceitfully exploited the premature decision by Theo Baker (from 24 Feb. 2012) to close the file in this case with the HDC office, by claiming to the DAPAANZ ‘PSC’ that there had been no other complaint, consequent investigation or still unresolved process in relation to counsellor Mxxxxxx Sxxxxxxxx as his employee. In doing this he took advantage of the Deputy HDC’s flawed earlier decision to defend his staff member, and to assist him getting of the allegations made against him to DAPAANZ. Apparently in email 6 of the DAPAANZ correspondence in relation to the complaint the employer was quoted stating this: “There are no past or present concerns in terms of clinical practice or ethics, nor any outstanding processes or investigations regarding either of the named clinicians with regard to any allegations, which may have been made against them.”

In order to emphasise this, the complainant wrote in his letter to the HDC on 05 Aug. 2013:
So here is the proof that your Health and Disability Commissioner Office’s failure to properly, thoroughly and fairly investigate, to actually look at the sufficient evidence, and challenge Waitemata DHB and XXXX on it, you allowed them and their employee Mxxxxx Sxxxxxx “off the hook”, so to say, even encouraging them to use the inaction by HDC to throw out my complaint made to DAPAANZ!

Mentioning the more than two years time the complainant had spent on raising this matter with the HDC Office, he appealed to Anthony Hill to follow his request to conduct a thorough review in the whole matter. He had suffered immensely due to the professional misconduct of the health professionals he had raised issues about, he wrote, and he concluded with saying, it was in Mr Hill’s hands to finally sort all this out.

To gain a greater insight and understanding of the issues with the DAPAANZ report and decision, and the emails received from DAPAANZ, plus what some of the crucial contents of them was, the reader here is best advised to read the whole letter, which the complainant wrote and sent to the HDC by email on 05 August 2013. 6 PDF files with copies of the emails and so forth were attached to the email. An also attached authority gave permission to the HDC staff to contact his doctor and other mentioned health professionals and one other persons, to seek and obtain confirmation for the evidence he had provided. A separate hard copy of the letter and authority were also sent by parcel post on 07 August 2013.

Here is a link to the complainant’s letter to the HDC, dated 05 Aug. 2013:
HDC, complaint, C11HDCxxxxx, WDHB counsellor, crucial evidence, ltr, 05.08.13

 

The HDC’s Associate Commissioner’s final decision on this complaint from 03 Oct. 2013

After waiting a further couple of months, the complainant would on 05 Oct. 2013 receive an apparently absolutely final response in this complaint matter from Associate Commissioner Katie Elkin (responsible for Legal and Strategic Relations). It seemed that at this stage the complaint matter was exclusively being handled by the HDC’s senior legal staff.

Under now only three bullet points Ms Elkin listed as ‘Your concerns’ only a few selected points at issue, which the complainant had raised in his last and earlier correspondence:
“● The information released to you by this Office under the Official Information Act shows that there has been “absolutely insufficient consideration to important points of evidence” that you have raised.
● This Office has not contacted other parties to confirm the evidence you have presented or to obtain further information relevant to your complaint.
● You have received information from the Addiction Practitioners’ Association Aotearoa New Zealand (DAPAANZ) which shows that DAPAANZ was biased and unreasonable in responding to your complaint about clinicians Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx.”

She also wrote:
“You ask for “a review of the initial assessment, the investigation and the final decision” in relation to your complaint to this Office.”

Then she writes under ‘My response’:
“Your file and the decisions made on your complaint have already been reviewed on multiple occasions. Following your most recent correspondence, your file has again been reviewed. Having considered all relevant information, I am of the view that the Deputy Commissioner’s decision to take no further action on your complaint remains appropriate.

Please note that your complaint was not formally investigated. As you will appreciate, it is for the Commissioner and Deputy Commissioners to determine whether to formally investigate a complaint, and only a small proportion of the complaints received each year proceed to formal investigation. The Health and Disability Commissioner Act 1994 provides a number of other resolution options, including the option to take no further action under section 38(1). This option is exercised only after careful assessment of all relevant information at the initial complaints assessment stage. This is what occurred in relation to your complaint. I am satisfied that all relevant information has been taken into account in reaching that decision.

I note that your concerns about the process and decision of DAPAANZ’s Professional Standards Committee are outside the jurisdiction of this Office as DAPAANZ was not providing a health or disability service to you. I suggest that you raise your concerns about DAPAANZ’s process directly with that organisation.

Given the above, your complaint will remain closed. I understand that this is not the outcome you were hoping for. However, I do not consider that further consideration of the same matters raised in your initial complaint would be productive.”

This did read and sound like a broken record to the complainant, and he realised, how the HDC’s Associate Commissioner, same as before the Deputy Commissioner and the Legal Advisors, appeared to choose to be wilfully ignorant of facts they simply did not want to have any knowledge of. It looked like they were wearing mental “blinkers” and made every effort to not acknowledge as “relevant” any information that could put any earlier decisions into question. They indeed appeared to do anything possible to protect the WDHB’s Chief Executive Officer and his position, which he had taken in defence of the Service Manager and the staff of the provider of services that had been challenged by the complaint. Carefully worded legalistic explanations appeared to be used repeatedly, to simply dismiss issues and evidence. Endless discretion appeared to be used in assessing and deciding complaints and the complainant would never be told, what the HDC would have considered as being relevant, and what not so, as only general comments were made. Any new information that could threaten their earlier position and decision as being seen to be unfair, unreasonable or even illegal, was simply dismissed as not being relevant, or raising matters that were “out of scope”. The stretching and bending of explanations, arguments, excuses and decisions by the HDC made them look like engaging in extreme forms of “legal gymnastics”.

Please use these links to a copy of Ms Elkin’s response letter from 03 Oct. 2013:
HDC complaint, WDHB counsellor, HDC’s final dec. on review reqst, K. Elkin, 03.10.2013
HDC complaint, WDHB counsellor, HDC’s final review + decision, K. Elkin, 03.10.13

 
 

PART 7: THE COMPLAINANT’S OBJECTIONS AND REQUESTS FOR REVIEW ARE TREATED WITH CONTEMPT – WITH NO PROPER REMEDIES AVAILABLE

 

Even though all efforts to appeal to the HDC, and to also try and hold the HDC to account for their responsibilities and flawed decisions, appeared to be futile, the complainant would not yet give up. He continued to express his disappointment, frustration and even anger at the in his view totally unacceptable assessments and decisions. He would on 07 October 2013 file yet another request under the O.I.A. and Privacy Act for specified information with the HDC.

The request included the following information:
“I ask you to supply the below listed information in the form of good quality photo copies, system printouts or other easily readable documents, covering all of the information that was not yet covered and/or presented upon a previous request of this nature:”

“A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Waitemata District Health Board (the CEO or other staff, including those at XXXX) and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference.

B. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s offices (both Auckland and Wellington), same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint.

C. I ask you furthermore for information on any contacts your office had in this matter with the Privacy Commissioner, The Addiction Practitioners’ Association of Aotearoa – New Zealand (DAPAANZ), Mr Wxxxxxxx Txxxxxxxxx (Chair at DAPAANZ, Manager at XXXX), Mxxxxxx Sxxxxxxxx and Lxxxx Hxxxxx (counsellors at XXXX), Mr Xxxx Pxxxxx at ‘Xxxxx Xxxxx Psychotherapy Services’, Xxx Lxxxxx at ‘XxxXXXX Psychological Services’ and my GP, Dr Xxxxx Txxxxxx. If any consultation or correspondence was conducted between your offices and these persons, I request copies of this.”

This O.I.A. and Privacy Act request was sent off after 08 pm in the evening of 07 Oct. 2013, together with a rather angry letter in response to Ms Elkin’s letter from 03 Oct. 2013, and yet another request for information in relation to his other complaint under ref. C12HDCxxxxx.

Here is a link to the PDF copy of the draft letter with the complete text from 07 Oct. 2013:
HDC, complaint, C11HDCxxxxx, WDHB, O.I.A. + Priv. Act rqsts, new, anon, 07.10.2013

 

The complainant’s final reply to the Commissioner from 07 Oct. 2013

Naturally being extremely disappointed the complainant saw a need to express his utter disappointment, frustration, disillusionment and even anger about the HDC’s last correspondence in this matter, and the decision they upheld despite of ample compelling evidence proving the misconduct of the counsellors at XXXX Xxxx as part of the WDHB.

He acknowledged the letter he had received from Katie Elkin, stating the HDC Office’s final position. He mentioned the information he had recently received from the DAPAANZ (after the Privacy Commissioner’s intervention) and referred to the employer of the counsellors complained about, and how he had involvement in the complaints handling by the PSC of DAPAANZ.

The complainant then wrote that he had made the HDC Office aware of the fact that the same employer, who was also the Chair of the Executive of DAPAANZ, had taken advantage of Deputy Commissioner Theo Baker’s refusal to investigate his complaint to the HDC. He wrote that the employer and DAPAANZ Executive Chair had used her decision in defence of his staff during the “investigation” by the PSC (appointed by the DAPAANZ Executive).

Critically reflecting on Ms Elkin’s letter, from which he quoted, he then wrote:
“From this I can come to my own logical conclusion that your Deputy Commissioner Theo Baker has simply applied her own subjective decision making in this whole complaint matter, and the supposed “reviews” are simply claims that I consider to be totally unsubstantiated. If a proper review of my file had ever been conducted, the clear contradictions and untrue statements and claims by the respondents and their employer, the unreasonableness of the Deputy Commissioner’s decision to not further investigate, and also presented solid evidence would have become overwhelmingly convincing.

It is my impression that your staff members apply a “prioritisation” and “reprioritisation” approach to complaints that leave too many to drop below the desk, so to say. I am informed that your office has been facing serious funding issues, and therefore a lack of resources, to deal with a growing number of complaints and case loads. Your office depends on funding under the Ministry of Health, or other government spending, and the government does itself set certain priorities by limiting funding, that affect your office’s ability to address complaints.

If the cases are not considered “serious” enough, they are likely to be treated like my complaint, and basically get thrown out of the process. By this you do though treat mental health sufferers, and consumers of services in this area, with utmost contempt. I asked that the Mental Health Commissioner takes a look at my complaint, and I expected a proper review to be done, but the response from your legal department does not even address the justified requests and answers I raised!

Hence I challenge you to answer to me, whether this matter and ALL evidence was put before your Mental Health Commissioner, same as the head Commissioner, Mr Hill, as that is what I asked for.

I also have NO response to matters I proposed and asked for in that correspondence from 05 August 2013. Instead I have been sent a legalistically formulated letter, simply justifying your office’s handling, without addressing any of the many concerns I raised fairly and validly. It appears that unless a mental health service consumer suffers death or serious physical injury, then her or his concerns are not taken seriously at all by the Office of the Health and Disability Commissioner.

For years I experienced appalling treatment by XXXX and their staff, and my complaint about Mr Sxxxxxxx and Ms Hxxxxx was not the first one. It was made for very valid reasons, and it was certainly well documented, and more than needed evidence was made available, but your staff did not accept it from the start. That in my eyes exposes conduct of utter contempt and lack of respect towards a very valid complaint. Indeed my impression is that many staff members that you employ do not deserve to sit and work where they are, given their attitude, their lack of sincerity and qualifications.

With your most insulting final decision in this matter, I feel forced to take matters into my own hands, to address the evident injustices, serious failings, the appalling lack of standards being enforced that abound in this country. New Zealand does to me increasingly ring into my ears as a country of utter hypocrisy, of deception, lies, manipulation, of “old boys” and “old girls networks”, indeed corruption on a wider scale, and the lack of actions by your office have only reinforced my view that it was the biggest mistake I ever made, to return to this country, that unjustifiably calls itself one of the “least corrupt” places on this planet.

The suggestion I take my concerns about the handling of my complaint by DAPAANZ to them again, that is the most absurd recommendation I have ever received from your office. It is like going to the abuser, to seek redress for abuse! It is clearly an organisation run by a tight nit Executive, whose members are headed by the very employer of the persons I complained about!”

The letter continued a wee bit with some further hefty criticism of DAPAANZ, the Commissioner’s Office and how complainants appear to be treated by them. We refer you to the full letter to the HDC that the complainant wrote on that day, and sent off after 08 pm in the evening of 07 October 2013, which is found via this link:
HDC, complaint, C11HDCxxxxx, WDHB, reply to fin. decision, anon, 07.10.2013

The email carrying that letter and the further requests for information was confirmed as having been received by Exxxxx Lxxx, Legal Team Administrator, at the HDC Office by email at 12.31 pm on 08 Oct. 2013.

 

The letter from the HDC’s Legal Advisor, Georgina Rood, providing remaining information sought per O.I.A. and Privacy Act – from 04 Nov. 2013

On 07 Nov. 2013 the complainant would receive a response from the HDC Office, this time again from Georgina Rood, Legal Advisor. She replied to the complainant’s last letter and gave answers and provided limited information to the O.I.A. and Privacy Act requests.

She ignored the hefty criticism and angry comments the complainant had expressed in his letter from 07 October and instead only addressed information matters.

She wrote in response to request or question A) in the complainant’s letter from 07 Oct.:
“There is no record on this complaint file of any contact between HDC and Waitemata DHB having occurred since your last information request. I therefore refuse this aspect of your request pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”

In response to request/question B) she wrote:
“I have withheld, in its entirety, a legal advice memorandum prepared by a member of HDC’s legal team in relation to this complaint. This document is withheld pursuant to section 9(2)(h) of the Official Information Act and section 29(1)(f) of the Privacy Act, in order to maintain legal professional privilege.”

“Aside from that document, there is no other record on this complaint file of any communications between HDC staff having occurred since your last request information request. I therefore refuse this aspect of your request, pursuant to section 18(e) of the Official Information Act and section 29(2) of the Privacy Act, as the information requested does not exist.”

In response to request/question C) she wrote:
“There is no record on this complaint file of any contact between HDC and these parties having occurred since your last information request….”

Please click these links to find the PDF with the HDC’s truly final response in this matter:
HDC complaint, WDHB counsellor, HDC’s further reply to Priv. Act rqst, G. Rood, 04.11.2013
HDC complaint, WDHB counsellor, HDC’s further Priv. Act response, hilit, G. Rood, 04.11.13

There was no further correspondence from the HDC Office to the separate letter by the complainant from 07 October 2013, in which he expressed strong criticism about the whole handling of his complaint. It appeared the HDC considered the matter closed for good, and did not wish to engage into further correspondence.

The complainant himself had given up on this complain, as he was being kept busy with other matters he had to address, and as he now also experienced similar problems with the second complaint he had before the HDC Office under reference C12HDCxxxxx, which was already covered at some length under a post found via this link:
https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

After being treated with such contempt by the HDC Office, the complainant now saw no other available ways of addressing the raised issues he experienced with the counsellors employed by the service provider managed and operated by or under the WDHB. Not only did the HDC dismiss the blatantly obvious professional misconduct by the counsellors at that service, the DAPAANZ did the same. The employer, who was Chair of the Executive of that Association, covered his staff and did directly and indirectly involve himself in the “investigation” or review of both complaint matters. He continued to operate in both his roles, as we know up to this day. So do both counsellors continue to work in their roles and fields, having suffered NO consequences at all from noting false information in client files, from misrepresenting facts, from breaching client confidentiality rules, from acting in neglect and through displaying a clear bias and levels of incompetence.

 
 

PART 8: CONCLUSION

 

In late 2013 the complainant would file two complaints with the Office of the Ombudsmen, of which one was about the HDC’s handling of this complaint, and the second one about a clearly biased, also inappropriately acting WINZ “designated doctor”. While that matter also dragged on for months, it was decided on in a similarly dismissive fashion on 28 May 2014, as the Office of Ombudsmen was then clearly under immense work-load pressure and severely under-funded. This and the apparent incompetence of an investigator showed in the “decision” that was then presented. The Ombudsman also saw no need to investigate. A request for review was treated in an appalling manner by Ombudsman Beverley Wakem.

Her decision would later even be presented to the Speaker of the House of Representatives, but as we learned, he did not wish to have anything to do with this, referred it back to the Ombudsman, who simply rejected any failures or mistakes. We endeavour to present the course of the handling of those complaints and requests in a separate post, as it is impossible to further add to this already very extensive post.

 

More recent follow-up O.I.A. and Privacy Act requests to the HDC

But more recently a further attempt was made to obtain some more information in relation to this complaint matter, and also in relation to the other one. It was on 19 October 2015 when the complainant wrote again to the HDC and asked for the following information, again under the O.I.A. and the Privacy Act:

A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and of any notes and transcripts made of phone calls (ingoing and outgoing), and also of relevant internal and external discussions and created reports, generated, sent, or received and exchanged between any of the various persons involved in the filing, processing, assessment and initial decision-making of complaint C11HDCxxxxx at the Health and Disability Commissioner’s Office, for the period from 08 August to 16 August 2011. This would naturally also include any of the above in relation to me as the complainant.

B. I request authentic photo copies, and/or printouts of digitally stored copies, of all written correspondence and attached documents received by the Office of the Health and Disability Commissioner from Dr Dxxxx Xxxxxxx, in particular being correspondence dated 20 September 2012, only some of which appears to have been provided to me before with a letter from Ms Georgina Rood, Legal Advisor, dated 04 Nov. 2013. This is in relation to complaint C12HDCxxxxx. In the copy of the main letter from Dr Xxxxxxx to your Office from that date, I read a reference in his letter, which states the following: “As I did not provide medical treatment to Mr Xxxxxxx (misspelled) I am of the understanding that all complaints of this nature are more correctly addressed by the Medical Appeals Board. I attach a letter dated 16 August 2010 from your department which outlines such policy previously.” A copy of that attached letter dated 16 August 2010, which appears to have been generated and sent by your Office’s legal department to possibly general practitioners, WINZ designated doctors, medical practitioner or health professional organisations, or any other affected party, and with that apparently also Dr Xxxxxxx, was never included in any of the documents sent to me. I therefore ask for a copy of that particular document now. Even if some bits of the contents of that letter may need to be withheld for privacy reasons, it is my firm view, that making this letter available is certainly in the public interest.

C. I request also information on the particular reason, as to why with the initial decision in complaint matter C12HDCxxxxx, dated 24 February 2013, and sent by Ms Theo Baker as Deputy Commissioner, only a copy of Dr Xxxxxxx’s letter from 22 November 2012 had been attached. I seek information and an explanation as to why the earlier response your Office received from Dr Xxxxxxx (dated 20 Sept. 2012) had been withheld from me as complainant for nearly one year after your Office received it from Dr Xxxxxxx, and why it was only provided to me upon my Official Information and Privacy Acts requests from 07 October 2013. I may point out, that this again raises very serious issues with your Office’s complaint handling, as I must observe a clear failure in your Office’s adherence to the core principles of natural justice.”

Please find the complete request in a PDF that can be loaded via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, O.I.A. +Priv. Act rqsts, new, anon, 19.10.15

A response by Senior Legal Advisor to the HDC, Helen Davidson, dated 17 Nov. 2015 followed, which is attached here:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, anon, 17.11.15
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC 1st reply, hilit, 17.11.15

Senior Legal Advisor Helen Davidson provided information to request ‘A.’, which now included an “edited” phone log for around 11.35 am on 09 August 2011, which the complainant had so far not been provided with. It covered the phone call by the Complaints Assessor Axxx Lxxxxx, who called the complainant on that day to explain that his emails and attachments were allegedly “freezing” their computer system. The notes that had been recorded on that log entry on the file did not correspond with what the complainant remembered having been discussed. He only remembered the Assessor giving technical reasons for the initial complaint not being able to be processed, but in the log there was now also talk of administrative reasons. As he suspected the log had later been changed or “falsified”, he sent in yet another letter to the HDC on 24 Nov. 2015, a copy of which can be found via this link:
HDC, C11HDCxxxxx, C12HDCxxxxx, complaint abt changed ph. log, 09.08.11, anon, 24.11.15

Here are links that show the received phone log, which was also already provided in the beginning of this long post (one copy is not market, the other one is highlighted with some manually noted down comments by the complainant):
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, anon, 09.08.2011
HDC complaint, WDHB counsellor, Priv. Act release, changed ph log, hi-lit, cmts, 09.08.11

The complainant asked for an explanation and for a correction of the file notes, adding that he had a different memory of the phone call and its contents. As no response was forthcoming, the complainant was then forced to chase up this request for further information (also in the other complaint matter) with two further letters on 15 Dec. 2015 and 15 Feb. 2016, which referred to the earlier letter from 24 Nov. 2015, again asking for a response.

Finally, in late February 2016, a letter with further information and explanations was received from the HDC Office, dated 19 Feb. 2016. It was again a letter from Katie Elkin, Associate Commissioner, who gave the following explanations in relation to this complaint matter:

“File note from Mr Xxxxxx from 9 August 2011”

“You also raise concerns with a file note by Mr Xxxxxx of 9 August 2011, including that the note recorded incorrect information, has been improperly altered, and that the file note was not provided to you when you made previous requests for information to this Office.

As is evident from the file note, this was originally lodged under a previous complaint you had made to this Office, but was loaded under C11HDCxxxxx in March 2012. I understand that it is for this reason that the date “6 March 2012” is present on the file note; this was the date on which a file note was transferred to file C11HDCxxxxx once it became apparent that the file note had been placed on an older file. While it is clear that the file note was moved to the appropriate file, there is nothing to indicate that is has been improperly altered by Mr Xxxxxx as you allege. In particular, I note that there is no change in wording from the original file note of 9 August 2011 on your older file and the file note on C11HDCxxxxx other than to acknowledge the movement between files.

Notwithstanding this, I acknowledge that you disagree with Mr Xxxxxx’x record of your conversation, and, as requested, your position regarding the accuracy of that record has been recorded alongside that file note on your complaint file.

I note that the file note did not fall within the ambit of previous information requests you have made to this Office, with the exception of your request of 4 March 2012. Unfortunately it was not evident at that point that the file note in question had been placed on the file for a previous complaint you had made. We apologise for that oversight and note that you have now been provided with a copy of the file note.”

The letter from Ms Elkin that contains these explanations is found in a PDF via these links:
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, 19.02.16
HDC, C11HDCxxxxx, C12HDCxxxxx, OIA + Priv. Act rqsts, 19.10., HDC reply, hilit, 19.02.16

The letter from the HDC has since been followed up, and as answers given re so far refused information and outstanding questions were not satisfactory, the matter has also now been referred to the Ombudsman to resolve. The complainant was not convinced that the above log for that phone call on 09 Aug. 2011 had been put on the older file (from 2007!) by accident, as that file had long been closed, and a new file appeared to already have been created on 08 August 2011. It is also hard to believe that this document was “overlooked” when an O.I.A. and Privacy Act request was filed with the HDC on 04 March 2012, as such requests generally take days or even weeks to be processed and responded to. If it had been shifted from one file to the correct one C11HDCxxxxx on 06 March, it must have been found then.

This raises even more questions, including the one, whether the HDC did intentionally withhold this phone call log for so long, as the HDC Assessor and his superiors may have feared legal challenges due to their bizarre, unconvincing claims that the emails sent on 08 August 2011 “froze” their system.

 

Final considerations

What we have learned through the above complaints handling and decision making shows that the HDC appears to follow highly questionable, inappropriate if not even potentially illegal practices. The following points of immense concern stand out:
● HDC staff – likely instructed to do so – used lies and unconvincing claims that emails did “freeze” their system in order to avoid having to deal with a complex complaint.
● HDC staff – likely instructed to do so – forced the complainant to “summarise” a very complex complaint into a 2-3 pages long complaint, ignoring all earlier sent evidence.
● The Deputy HDC first picked only one main “issue”, and later only a few bullet points of “concerns” the complainant raised, ignoring the wider range of Code breaches.
● The Assessor and Deputy HDC offered the Chief Executive Officer of WDHB a back-door by only requiring a “general overview” of the complainant’s treatment and “care”, enabling the employer to avoid answering to particular breaches.
● The Deputy HDC dismissed the complaint, deciding not to investigate it, despite of overwhelming documentary evidence of two counsellors breaching the Code of Rights.
● Requests for re-assessments, reviews of decisions and an investigation were dismissed as being unnecessary, and flawed decisions were upheld, ignoring existing and new compelling, documented evidence of breaches of the Code of Rights.
● The HDC used legal expert advisors to provide legalistic explanations and excuses to dismiss the complaint, ignoring relevant evidence or declaring such as “out of scope”.
● The employer of the counsellors complained about, was allowed to influence the reviewers of both complaints, by selectively presenting misleading information and untrue statements, and thus helped his staff members to get off both complaints.

There is sufficient anecdotal, and increasingly more reliable factual evidence of the HDC actually making significant efforts to keep investigated complaints at a minimum, by using questionable, inappropriate and possibly even illegal methods to dismiss complaints as not requiring any investigation or any further action. At least natural justice principles appear to have been breached. Therefore we are of the view that these concerns raised in this post deserve greater and wider scrutiny, and ideally an official investigation into the operation and processes followed at the Office of the Health and Disability Commissioner.

Also is a proper, wider review of the Health and Disability Commissioner Act 1994 overdue, which should not be limited to the less publicised reviews the HDC conducts from time to time, but which should involve much wider consultation, by introducing a Bill. A proper parliamentary legal reform process would have to be followed, including Select Committee hearings, and a law change should give the HDC more powers, including some mandatory actions he/she should have to take where serious and certain specified breaches of the Code are established. The ability to make a decision to take no action, or to take no further action, should be restricted to truly minor breaches of the Code.

This would have to be complemented with better financial and personnel resourcing of the HDC Office, so the Commissioners and their staff can actually fulfil the purpose of the Act.

 
 

Quest for Justice

 

(Post completed on 03 May 2016 and updated on 09 May 2016)

 
 

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MSD’s SELECTIVE AND POOR RESPONSES TO NEW OIA REQUESTS ON BENEFITS, ADVISORS, REPORTS, MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES


THE MINISTRY OF SOCIAL DEVELOPMENT’S SELECTIVE AND POOR RESPONSES TO NEW O.I.A. REQUESTS ON BENEFITS, ADVISORS, REPORTS, MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES

 

Published 27 November 2015

 

CONTENTS:

A) INTRODUCTION
B) 1ST OIA REQUEST TO MSD FROM 08 JULY 2015
C) 2ND OIA REQUEST TO MSD FROM 08 JULY 2015
D) THE MINISTRY’S RESPONSE TO THE REQUESTS
E) ANALYSIS OF INFORMATION MSD PROVIDED AND WITHHELD
F) OMBUDSMAN COMPLAINT
G) CONCLUSION

 
 

A) INTRODUCTION

After we already presented some interesting information that the Ministry of Social Development (MSD) made available on earlier occasions in response to Official Information Act (OIA) requests, we can now present you more, some of which will be of significant interest to readers.

It was early on 09 July 2015, that two new OIA requests dated 08 July 2015 were sent in to MSD by way of an email with attached letters. The first request was rather straight-forward and simply asked for a cost component breakdown of three main or base benefits, but the second request was a bit more specific and asked for some comprehensive information on a range of topics and matters. That request asked for expert advisors’ reports on health, disability and work ability assessment matters that may have been used in the process of formulating policy brought in under welfare reforms. Reports from certain external and internal Advisors were asked for, same as copies of correspondence between MSD’s Principal Health Advisor and the UK expert Mansel Aylward and others at the ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales. Further information asked for included conflict of interest declarations by members of a Health and Disability Panel that was set up to advise on welfare reforms, same as conflict of interest declarations by MSD’s Principal Health and Disability Advisors. Information was requested about the Principal Health Advisor Dr Bratt’s trip to Europe and the UK, about expenses paid for Designated Doctors, Host Doctors and Medical Appeal Board (MAB) hearings. Some further data was sought on the numbers of MAB hearings and outcomes, on outcomes of so-called “social impact bond” funded trials, on outcomes of Mental Health Employment Services and Sole Parent Employment Services, same as on numbers of ‘Work Ability Assessments’ and ‘Specialist Assessments’.

The requester, whose name and details we intend to withhold for privacy reasons, did expect both complaints to be handled separately, and anticipated a reply to the first response within 20 working days, as required by the Official Information Act 1982. He did not expect a response to the second request to come within that time frame, as he understood that some of the questions asked in that one would require more time to be answered to, which would likely also require a fair bit of collation.

Hence it was not surprising to the requester that he did on 03 August 2015 receive an email from MSD (the ‘Official and Parliamentary Information team’), advising that the Ministry would need an extension of time to respond to the OIA requests. There was no early response to the first OIA request, and so it appeared as if it may be handled together with the second request. A PDF with a letter that was attached to the email advised him that: “The Ministry’s response will be with you no later than 3 September 2015”. Already on 28 July had MSD informed him by email and attached letter, that one question about “social Impact bond funded projects” had been transferred to the Ministry of Health, as MSD did not hold the sought information. Receipt of that one request had also been confirmed by Fox Swindells, OIA Co-ordinator (Government Relations, Office of the Director General) at the Ministry of Health, by email on that same day.

While awaiting a response, the requester did on 03 September 2015 then receive another email from MSD, updating the requester that the Ministry was unable to provide a response on that day. However the letter advised that the request was then being processed with urgency, and that the Ministry would respond as soon as possible.

By 08 October the requester still had not received the information supposedly being prepared “with urgency”, so on 08 October 2015 he sent in an email to the OIA contact address of the Ministry, for which no identifiable name of any person had previously been provided. He asked for an update on the matter, mentioning the earlier responses by MSD. Expressing an understanding that it may take some time to prepare the response, as the information sought was more comprehensive than many common OIA requests, the requester pointed out that three months had now passed. He asked whether the response might take another two weeks or a month, and if no response should come forth by the end of the month, he would consider bringing the matter to the attention of the Ombudsmen.

All he received upon that email was yet another email with yet another apology from MSD (the ‘Ministerial & Executive Services Advisor’), saying also, that the response was currently under review and was expected to be “signed out within the next couple of days”. “The response will be with you by the end of the month if not sooner”, was a further comment.

But for the following weeks there was again no response forthcoming from MSD, while at least the Ministry of Health had already presented a response to one particular request by email on 28 August 2015 (dated 25 August 2015). It did in the end take until 19 November 2015, when the proper response by MSD (to both OIA requests) was received by the requester (by email with attachment). In the following we will present you the questions for the particular specified information the requester had asked for, and following that the responses given by MSD. As some information was simply not provided as it had been requested, and some of that again without giving any reasons, the requester was (like on earlier occasions) forced to file another complaint with the Office of Ombudsmen, to have the response by MSD investigated and reviewed. The Ombudsman’s intervention was asked for, to obtain the remaining information from MSD, and for MSD to provide proper answers to questions that had not been properly replied to. We will also present you that letter, and also outline the information that MSD withheld and refused. As usual some comments will be provided re the questions and answers, and what conclusions can be drawn from the provided information.

 
 

B) 1ST OIA REQUEST TO MSD FROM 08 JULY 2015

In the following we present the particular questions the requester put to MSD to answer, and to provide information on:

Dear Mr Brendan Boyle, dear staff at the Ministry for Social Development

Please accept my request for the disclosure of the following specified information – under sections 12 and 16 of the Official Information Act 1982.

1. Information in the form of a detailed break-down of the main benefit type Jobseeker Support, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

2. Information in the form of a detailed break-down of the main benefit type Supported Living Payment, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

3. Information in the form of a detailed break-down of the main benefit type Sole Parent Support, into the separate components or parts of the base benefit, that are allocated to cover costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending, and so forth, based on calculated average costs a benefit is intended to cover.

I am aware of additional supplements and allowances being available as further assistance, like the accommodation supplement, disability allowance and temporary additional support, which are covering additional costs, which cannot be covered by the base benefit.

But I know that the base rates are based on calculations for basic, average costs of living, and I seek the details of these calculations, for each single, usual cost type or category.

The above requested specified information is sought to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.

I kindly and respectfully ask that the information is made available by way of a sufficiently detailed written response, containing the relevant information. Otherwise it can also be made available by way of equally good quality computer generated printouts containing the information or part thereof.

Thank you for your acknowledgment and appreciated co-operation.

Yours sincerely

Xxxxxxx Xxxxxxx”

 

Here is a copy of the OIA request letter:
MSD, O.I.A. request, to C.E. of M.S.D., base benefit break down, anon, 08.07.15

 

Comments

For decades persons on benefits have had to struggle and cope while receiving main or base benefits that are for most people not enough to live off. Only those living in cramped conditions in shared homes may in some cases manage to get by on the main benefit alone. The vast majority of persons also require top-ups of benefits, for accommodation, disability costs, and sundry other essential expenses, in order to survive at usually a shoe-string budget or less. Additional supplements and allowances, including also the ‘Temporary Transitional Support’ (which has replaced the Special Benefit) are partly capped or have set limits. But the rates or claimable amounts for these are known. The base or main benefits, although insufficient to really cover most essential living expenses from, must have been calculated by some kind of formula to cover a range of very basic standard costs per person, and that is what the requester wanted to get details on.

 
 

C) 2ND OIA REQUEST TO MSD FROM 08 JULY 2015

In the following we present the second, more comprehensive OIA request with 21 questions (or individual points of request) that were sent to MSD to respond to:

Dear Mr Brendan Boyle, dear staff at the Ministry for Social Development

Please accept my request for the disclosure of the following specified information – under sections 12 and 16 of the Official Information Act 1982.

1. Copies of reports, presented by Professor Mansel Aylward from the ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales, U.K., and received by the Ministry of Social Development (MSD or the Ministry), which advise the Ministry on questions or matters relating to health, disability and work capability assessments. This includes reports for the purpose of considering, preparing and formulating proposals for “welfare reform” measures, and reports for considering, preparing and/or implementing new approaches for “supporting” persons with health and/or disability into employment. This should cover reports from 01 Jan. 2010 to 30 June 2015.

2. Copies of reports presented by Dr David Beaumont (current ‘President’ of the Australasian Faculty of Occupational and Environmental Medicine, AFOEM), in his capacity as external advisor, either as chair of the former ‘Health and Disability Panel’, or in another professional capacity, that were received by the Ministry, and were advising on health, disability and work capability assessment matters. This is in relation to reports that were presented and received for the purpose of considering, preparing and formulating proposals for “welfare reform” measures, and reports for considering, preparing and/or implementing new approaches for “supporting” persons with health and/or disability into employment. This should include reports from 01 January 2010 until 30 June 2015.

3. Copies of reports, or written correspondence, which the Ministry’s Principal Health Advisor, Dr David Bratt, received from Professor Mansel Aylward, or other research members based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales, U.K., that inform and advise him and the Ministry on research on health, disability and work capability assessment matters. This is in relation to reports that were received for the purpose of considering, formulating and preparing “welfare reform” measures and new policy, and reports for considering, preparing and/or implementing new approaches for “supporting” persons with health and/or disability into employment. Reports received during the time from 01 January 2010 until 30 June 2015 would be appreciated.

4. Copies of reports and correspondence that Dr David Bratt sent to the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, Wales, U.K., for the purpose of requesting or providing information – or advice – on matters relating to health, disability and work capability assessment. This may be for the purpose of “welfare reform” related policy, and/or for the purpose of implementing new measures to “support” persons with health conditions and/or disability into employment. This is also for the period from 01 January 2010 to 30 June 2015.

5. Information that MSD received and has recorded on any declared conflict of interests by Dr David Beaumont, former chair of the Ministry appointed ‘Health and Disability Panel’ set up in 2011/12 to consult and advise MSD on “welfare reform”, when being chosen and appointed for that role, and when acting as a member of that Panel. Dr Beaumont is now ‘President’ of the AFOEM, and was then ‘President Elect’ of the same organisation.

6. Information that MSD received and has recorded on any declared conflict of interest by Helen Lockett, Strategic Policy Advisor for the Wise Group (including Workwise), when being chosen, appointed and while being a member of the ‘Health and Disability Panel’ set up by the Ministry in 2011/12 to consult and advise the Ministry and government on “welfare reform”.

7. Information that MSD received and has recorded on any declared conflict of interest by any other member of the ‘Health and Disability Panel’, when being chosen, appointed and while being a member of that Panel, set up to consult and advise the Ministry on “welfare reform”.

8. Information on any conflict of interest declaration that the Ministry has received and holds on Principal Health Advisor Dr David Bratt and on Principal Disability Advisor Anne Hawker, since prior to their selection and consideration for appointment into their corresponding positions in 2007. This is particularly in relation to potential conflicts of interest that could have arisen or that may arise due to certain other former or present professional involvements, engagements and/or business activities.

9. Information on the engagements and meetings the Ministry’s Principal Health Advisor Dr Bratt had with any professionals from the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, Cardiff, Wales, U.K., during his visit to the U.K. around May 2014, and what the purposes of attended meetings or consultations were, and what reports were generated as a result of these. Also sought is information on Dr Bratt’s remaining visits to Wales and to England, which appears to have followed or preceded his visit to Cardiff. Information on what other engagements and meetings he attended there is requested, and re what reports were prepared on them. This request includes copies of such reports to be provided (if available), including such on costs and possibly received subsidies the Ministry had to account for Dr Bratt’s visits to the U.K..

10. Information on the engagements and meetings the Ministry’s Principal Health Advisor Dr Bratt had in his professional capacity as Senior Advisor for the Ministry, during his participation in the ‘General Practice NZ, 2014 Integrated Care Masterclass’ visit to Europe from 30 March to 09 April 2014, what organisations, meetings and locations he visited, and what the Ministry’s total costs and expenses were for this part of his European visit. If the Ministry or Dr Bratt received any sponsorship funding, information on this would be appreciated. Also are copies of reports for this visit part of this request.

11. Information on expenses paid by the Ministry for examination fees to ‘Designated Doctors’ commissioned with conducting examinations of clients referred by Work and Income for second opinions or other reasons, being for each year, from 01 July 2012 up to 30 June 2015 (or for the periods falling within that time frame, for which figures are available).

12. Information on expenses paid for fees charged for “host doctor assessment” reports by ‘Host Doctors’ in the process of ‘Designated Doctors’ conducting examinations of clients referred from Work and Income for second opinions or other reasons, being for each year, form 01 July 2012 to 30 June 2015(or for the periods falling within that time frame, for which figures are available).

13. Information on expenses paid for costs of holding Medical Appeal Board hearings, commissioned with hearing appeals by Work and Income clients who disagree with decisions made by Ministry staff or management, if available, separately for appeals based on health or disability grounds to be considered for benefit entitlement, and otherwise based on work capability assessment grounds for being able to meet work or training obligations while on a benefit. If no separate figures for those types of appeals exist, a total will suffice. The information is sought per year, for the period from 01 July 2012 to 30 June 2015 (as far as available).

14. Information on the number of Medical Appeal Board hearings conducted, if possible broken down into the type of appeal filed and heard, otherwise in total, for the period from 01 July 2012 to 30 June 2015 (as far as information is available).

15. Information on the number of internal reviews of decisions for which clients sought a “review of decision”, conducted prior to proceeding with an appeal on medical grounds, or on disability or work capability, to a Medical Appeals Board hearing. If possible broken down outcome numbers are sought for such conducted “reviews”, for the period from 01 July 2012 to 30 June 2015. Otherwise the total per year would suffice.

16. Information on the set fee structure – or amounts paid – for “designated doctors fees” and “host doctor fees”, and changes made by the Ministry over that time (and when), for the periods from 01 January 2005 to 08 July 2015.

17. Information on the duration or time periods, on the numbers of participants, the number of contracted providers and the outcome results of any trials conducted, to test the feasibility, effectiveness and performance of so-called “social impact bond” funded projects, as has recently been discussed as a new funding measure for social outcomes the Ministry seeks. Information is sought on such trials that may have been conducted with persons on social security benefits suffering mental health conditions, or any other health conditions or disability. Outcome results in successful referrals into lasting employment of participants, either in numbers or percentages of total participants would be appreciated, same as for those not possible to refer and place into such employment. As these may be trials conducted by the Ministry of Health with MSD cooperating, I seek information on who has run such trials.

18. Information is requested on how many Work and Income clients suffering mental health conditions (and being on the ‘Jobseeker Support – Deferred’ type of benefit) have since the commencement of contracted “Mental Health Employment Services” (MHES) until now been approached to participate in such services, how many have agreed to participate, how many have been referred to providers delivering such services, how many have successfully been placed into employment up until now, and how many have had to terminate participation due to what range of reasons. This request is to obtain an update of some figures already received on 24 April 2014 and on 26 February 2015.

19. Information is sought on how many Work and Income clients being on the Sole Parent Support benefit have since the commencement of contracted “Sole Parent Employment Services” (SPES) until now been approached to participate in such a service, how many have agreed to participate, how many have objected to participate, how many have been referred to providers delivering such services, how many have successfully been placed into employment up until now, and how many have terminated participation due to what types of reasons. This request is to obtain a further update on some limited figures already received 26 February 2015.

20. Information is requested on how many Work and Income clients suffering from any health and/or disability conditions, and being in social security benefit receipt for those reasons, have since the commencement of contracted “Work Ability Assessments” (WAAs) (24 Feb. 2014) until now been approached to participate in such assessments, how many have agreed to participate, how many have objected to undergo such an assessment, how many have failed to attend such assessments, and how many were in the end referred to be assessed by contracted providers delivering such services This request is to obtain figures that were so far not delivered, also not as part of an earlier request answered by MSD on 24 April 2014.

21. Information on how many Work and Income clients suffering from any health and/or disability conditions, and being on, or applying for a social security benefit granted on health and disability reasons, have since the commencement of contracted “Specialist Assessments” until now been approached to participate in such assessments, how many have agreed to participate, how many have objected to undergo such an assessment, how many have failed to attend such assessments, and how many were in the end referred to be assessed by a contracted provider delivering such services. This request is to obtain figures that were so far not delivered, also not as part of an earlier request answered by MSD on 24 April 2014

The above requested specified information is sought to be made available under the Official Information Act 1982 within the specified time frame of 20 working days. I appreciate though that due to the complexity of some of the information asked for, the Ministry may see a need to extend the time to response. If that is the case, I will expect written notification of this.

I kindly and respectfully ask that the information is made available by way of a sufficiently detailed written response, and by way of good quality, easily readable photo copies of original documents containing the relevant information. Otherwise it can also in part be made available by way of equally good quality computer generated printouts. If not available in hard copy form, a standard CD containing the corresponding, relevant documents and information in PDF, or similarly common, readable data format can be accepted.

Thank you for your acknowledgment and appreciated co-operation.

Yours sincerely

Xxxxxxx Xxxxxxx”

 

Please find here a PDF copy of the second OIA request:
MSD, O.I.A. request, to C.E. of MSD, Bratt, H+D Panel, Reforms, anon, 08.07.15

 

Comments

With the welfare reforms that the National led government brought in during 2012/13, and with the implementation of changes under the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’ from July 2013 onwards, only very little information was made available on the often quoted “evidence” to support these reforms. As the reforms brought in new very different approaches to work with sick and disabled persons on benefits granted on grounds of health and/or disability, one would think that such changes to work ability assessments, to doctor’s and other health professional’s diagnosing and assessing of patients for ability to work, would only be made with some robust scientific evidence that was presented to MSD in the way of reports from various experts the Ministry consulted during the consultation and policy formation process for these reforms.

Consequently, in order to get such evidence, the requester asked that MSD make available such reports from some key experts and Advisors, who had repeatedly been referred to and quoted in cabinet papers, in press releases, in Ministers’ speeches and media reports. As at least one expert has also widely been used and quoted in the UK, where similar, but more forcefully implemented reforms were introduced, and as he has also been consulted by the MSD and the Minister herself, one would think that there would be reports that he presented supporting the work he had done already in the UK. The Principal Health Advisor for MSD has since at least 2010 also been making bold claims and referred to supposed “evidence” in many presentations he gave to medical professionals and medical trainers, and having relied on Prof. Mansel Aylward and some other UK experts, one would have thought that there would have been exchanges of reports and correspondence between them.

Then there are valid questions about some members of a ‘Health and Disability Panel’ that was set up by Paula Bennett and MSD in 2011, to consult on health and disability matters in relation to welfare reforms of the government, and to report back to them. One leading member of that Panel (Dr Beaumont) was also believed to have presented reports, and as the requester knew, it appeared that at least some Panel members must have had a conflict of interest while giving advice to the government. Hence the requester sought some information on such conflict of interest declarations.

Sundry other information was sought, as the questions show, on MSD’s Principal Health Advisor’s two month long trip to Europe and the UK, about which very little information can be found, so reports and certain details were asked for, to get some transparency in the purpose and objectives of that trip. As there has been little information on what MSD has spent on Designated Doctor assessments, also often requested Host Doctor reports, on Medical Appeal Board hearings, and so forth, the requester did seek some useful details about all this. The government likes to claim it is very “transparent” with its information and what it does, but while some information (e.g. on MABs) used to be included in Annual Reports of the Ministry, this seems to no longer be the case. No information can be found on MAB hearings, their outcomes, the costs incurred, hence the requests that were made.

No information has been available anywhere, on how many internal reviews MSD or Work and Income conducted prior to referring appeals or requests for reviews to MAB hearings, and that was information also of interest to the requester.

Given the recent debate about “social impact bonds”, the requester appears to have been very interested in details for any such trials that MSD may have conducted, possibly conducted with the Ministry of Health. And as earlier OIA requests resulted in only limited information being made available on the newly contracted Mental Health Employment Service and Sole Parent Employment Service trials, the requester wanted to get some clarity on how many persons have actually been referred and placed into lasting employment. Last not least there were two questions re also newly contracted and used ‘Work Ability Assessments’, besides of so-called ‘Specialist Assessments’, which sick and disabled persons on benefits granted on grounds of health and disability may have to undergo.

In summary, this was a range of important, good questions that the requester put to MSD. The response with the detailed answers to questions is found below.

 
 

D) THE MINISTRY’S RESPONSE TO THE REQUESTS

Here we can now present the complete response with individually listed answers that was received from MSD on 19 November 2015:

The transcript of MSD’s response (from the letter received):

 

“19 NOV 2015

Mr Xxxxxxx Xxxxxx

Xx Xxxxxxxxx Xxxxxx
Xxxxxxxx
Auckland 1xxx
Xxxxxxx_xxxxxx@xxxxx.xxx.xx

Dear Mr Xxxxxxx

On 08 July 2015 you emailed the Ministry two letters requesting, under the Official Information Act 1982, information on Jobseeker Support, Supported Living Payment, Sole Parent Support and various reports relating to health and disability research. This letter responds to both of your requests for information and addresses 24 questions.

I will address each of your questions as follows:

Questions 1 to 3 (Benefit breakdowns and living costs):

New Zealand’s main benefit system provides a basic income to replace income that would generally be obtained through paid employment. Benefits are funded through general taxes. The initial rate of benefit depends on the benefit type and whether the person is single, partnered or a sole parent. The rate of payment does not relate to the person’s previous income from employment, rather it is intended to provide an adequate income to meet basic living costs.

There is no legislative formula used to decide the “correct” rate of benefit however a number of competing objectives and issues must be taken into account, including whether the rates:

• provide an adequate income to allow participation and belonging in society.
• are economically sustainable.
• maintain incentives to work.
• maintain incentives to study (particularly in the case of younger people).
• achieve broadly equivalent living standards for different household types receiving the same benefit.

The standard weekly rates of the main benefits are increased every year on 1 April. This increase reflects changes in the Consumer Price Index (CPI) in the previous year. Unlike New Zealand Superannuation rates, main benefit rates are not linked to any measurement of wages.

Questions 1 to 4 of your second request (Reports and correspondence the Ministry has received from Professor Mansel Aylward, David Beaumont and any research staff at the Centre for Psychosocial and Disability Research at Cardiff University)

The reports and written correspondence you have requested regarding health, disability and work assessments do not exist. As such, questions one to four of your request are refused under section 18(e) of the Official Information Act.

Questions 5 to 8 (Health and Disability Panel)

The Ministry of Social Development is the largest government department in New Zealand and makes decisions every day that directly or indirectly affect the lives of many New Zealanders. As such, staff are required to uphold the Ministry’s values by ensuring that decisions are made and implemented with the highest standards of integrity and professionalism.

The Health and Disability Panel was an advisory panel to the Ministry of Social Development, with no decision making authority. Members were chosen because of their knowledge and expertise in working with people with health conditions or disabilities. The Health and Disability Panel members completed a conflict of interest declaration as part of the appointment process.

As part of the induction process, appointees are required to complete a conflict of interest check and declare whether they have any current or previous professional, personal or financial conflicts of interest.

The Ministry can confirm that Dr David Beaumont and Ms Helen Lockett declared no conflicts of interest when being appointed in their respective roles.

Four panel members declared a potential conflict of interest which can include other forms of employment, membership to another organisation or family relationships. However, upon review the declared conflicts were not deemed significant. The conflict of interest forms are withheld under section 9(2)(a) of the Official Information Act in order to protect the privacy of natural persons. The need to protect the privacy of these individuals outweighs any public interest in this information.

Question 9 (Dr David Bratt’s Study Trip)

The Principal Health Advisor (PHA) Dr David Bratt undertook a study trip to Europe between 29 March and 31 May 2014. The trip was initiated by an invitation from Sir Mansel Aylward following his visit to New Zealand in 2013. Dr Bratt’s study trip benefited the Ministry in a number of ways, his attendance provided the Ministry with the most up-to-date information on practice and policies relating to both the integration of services, and to large scale change management. Dr Bratt also had the opportunity to establish key contacts for future exchanges of information.

The first 10 days of the trip were spent taking an Integrated Care Master Class involving 20 key New Zealand based Health Service Providers. The program started with the Nuffield Trust which is a Charitable Foundation aimed at collating evidence to support innovative programmes.

• This was followed by visits to several demonstration sites of integration of Health and Social Services
• Dr Bratt attended an International Conference on Integrated Care (including presentations on experiences from Christchurch post-earthquake) in Brussels, and then travelled to Utrecht in Holland.
• From April 28 through to May 29 2014, Dr Bratt worked with Sir Mansel Aylward in Cardiff, Wales. During this time, Dr Bratt held meetings with the Chief Medical Advisor to the Department of Work and Pensions and his senior colleagues in London, the senior health managers of Atos, the Hon Mark Drakeford, Minister of Health and Social Care, Dame Carol Black and Dr David Halpern amongst many others.

The group itself integrated well and has provided a nationwide network of key opinion leaders in the health sector. There were many useful points to come out of this conference such as the need to focus on the wider determinants of health if long-term benefits are to be achieved.

As Dr Bratt’s trip was for professional development, the Ministry contributed $6,915 towards attendance at the master class and conference and travel costs.

Question 10 (Integrated Master Class)

On 30 March 2014, Dr Bratt attended the 2014 Integrated Master Class in order to spend time examining, discussing and learning about integrated care policies. Dr Bratt did not receive any sponsorship funding for the Master Class, however, as the trip was beneficial to the Ministry, he continued to receive his regular salary for the duration of the trip. Information on the General Practice NZ Integrated Master Class can be found at the following link:

http://gpnz.org.nz/wp-content/uploads/2014-IC-Masterclass-Programme.pdf

Questions 11 and 12 (Designated Doctor and Host Doctor Fees)

Clients who meet the criteria and are in hardship may, in exceptional circumstances, be able to receive financial assistance for medical reports to assist with an application for benefit. Where a client is referred to a Designated Doctor for assessment, the cost for the client to attend is paid for by Work and Income. Where people are referred to a specialist or other health practitioner for further assessment by a Medical Appeals Board, the cost for the assessment and travel is also paid by Work and Income. Clients who have on-going and additional health costs relating to a disability may be able to include the cost of doctor’s fees in Disability Allowance.

The Ministry’s financial reporting system does not have one specific reporting code for costs associated with Designated Doctors. Multiple codes are used to ensure the various reasons for a Designated Doctor assessment are recorded accurately. Examples of these codes include; Second Opinion – Jobseeker Support at grant, Second Opinion – Supported Living Payment (Health) at grant and Second Opinion – Child Disability Allowance at Grant.

The following table provides the amounts paid by the Ministry that are known to be associated costs for Designated Doctor services (such as Reports and travel) and Host Doctor Reports, for the last three financial years.

2012/2013
Nominal Code for Host Doctor services: $73,759.84
Nominal Codes associated with
Designated Doctor Services: $477,893.98
Total: $551,653.82

2013/2014
Nominal Code for Host Doctor services: $71,009.01
Nominal Codes associated with
Designated Doctor Services: $388,440.39
Total: $459,449.40

2014/2015
Nominal Code for Host Doctor services: $103,865.76
Nominal Codes associated with
Designated Doctor Services: $693,566.36
Total: $797,432.12

Question 13 and 14 (Medical Appeal Board Fees)

The Medical Appeal Board (MAB) is an independent body established to ensure that correct and fair decisions are made within the legislation.

A client can appeal to the MAB when they disagree with a decision that has been made on eligibility or obligations by the Ministry on medical grounds or on grounds relating to capacity for work and is covered under the provisions listed in section 10B of the Social Security Act 1964.

The following table provides the amounts paid by the Ministry for the Medical Appeals Board for the last three financial years.

Medical Appeal Board costs
2012/2013 $393,877.41
2013/2014 $253,160.29
2014/2015 $284,845.18

Enclosed for your information is a fact sheet containing further MAB information including financial data, the number of Medical Appeals received, reviewed and completed, and the number of medical appeals that were upheld. Unfortunately the Ministry does not break this information down by type of appeal.

Question 15 (Internal Reviews completed prior to Medical Appeals Board hearings)

If a client does not agree with a decision made by Work and Income on medical grounds, they have the right to make a written appeal to the Medical Appeals Board. Once the request for an appeal is received, the Ministry undertakes an internal review of the original decision.

The internal review is an opportunity for the Ministry to reconsider all the facts and any additional information provided, to ensure the correct decision was made. This includes:

• considering relevant legislation and policy
• reviewing the information presented at the time and any new information to hand
• ensuring the client has been offered a referral to a Designated Doctor
• seeking independent advice from a Regional Health Advisor or Regional Disability Advisor not previously involved in the case.

This process is similar to the Internal Reviews completed as part of the Ministry’s Review of Decision process.

The Review of Decision process is a formal review that allows decisions made by the Ministry to be reviewed by a Benefits Review Committee (BRC). This process does not cover decisions made on medical grounds.

A client may ask that a decision on medical grounds be considered through the Review of Decision process, however, the BRC does not have jurisdiction in these matters. This means that the BRC will not be able to make a decision on the matter and the client will be given the option of appealing the decision through the Medical Appeals Board.

I can advise that there may have been instances where a client has asked that a decision made on medical grounds was considered through the Review of Decision process, however to provide you with this number would require staff to manually compare individual client records held in the MAB database with client records held in the Review of Decision database. I therefore refuse this part of your request under section 18(f) of the Official Information Act, due to the substantial manual collation this would require.

I have considered whether this information could be provided given extra time or the ability to charge, however I consider the greater public interest is in the effective and efficient administration of the public service.

Question 16 (Designated Doctor and Host Doctor fee structure)

Enclosed for your information is a fee schedule for Designated Doctors services.

Question 17 (Social Impact Bonds Project)

This part of your request has been transferred to the Ministry of Health in accordance with section 14(b)(i) of the Act. You will receive a response to this question directly from the Ministry of Health.

Questions 18 to 21 (Mental Health Service Employment Service and Sole Parent Employment Service Trial)

As you are aware, the Mental Health Service Employment Service and Sole Parent Employment Service are trials being conducted for three years. The outcomes will be used to inform how the Ministry can best deliver services to these client groups.

The Ministry will conduct a full evaluation of the trial following its completion in June 2016 however interim reporting is being refined so that information that is reported is robust and consistent while the trials continue.

Mental Health Employment Service

I can advise that, at the end of February 2015, of the 3,377 clients who had been referred to the Mental Health Employment Service, 998 individuals were enrolled in the trial.

For the same period, 414 clients had been placed into employment, of which; 63 clients had exited the service after achieving 12 months continuous employment, 171 clients had achieved six months continuous employment and remained in the service and 180 clients were yet to achieve six months continuous employment and remained in the service.

Sole Parent Employment Service

I can advise that, at the end of February 2015, of the 3.169 clients who had been referred to the Sole Parent Employment Service, 1,151 clients were enrolled in the trial.

For the same period, 628 clients had been placed into employment, of which; 73 clients had exited the service after achieving 12 months continuous employment, 246 clients had achieved six months continuous employment and remained in the service and 309 individuals were yet to achieve six months continuous employment and remained in the service.

I hope you find this information helpful. You have the right to seek an investigation and review of my response by the Ombudsman, whose address for contact purposes is:

The Ombudsman
Office of the Ombudsman
PO Box 10-152
Wellington 6143

Yours sincerely

(signature)

Carl Crafar
Deputy Chief Executive, Service Delivery”

 
 

The OIA response from MSD also had the following information attached to it:

 

Medical Appeal Board Decisions as at 30 June 2013

Period: 1 July 2012 to 30 June 2013

2012/2013 Medical Appeal Costs

Medical costs include board member fees, travel, accommodation and meals.

• The 2012/2013 budget for medical appeals is 619k
• As at the end of June 2013, 394k has been paid for medical appeals

Medical Appeal Summary Statistics

From 1 July 2012 to the end of June 2013:
576 medical appeals were received. Of these:
95 are in the process of being reviewed internally or are waiting for a medical appeal hearing to be scheduled, and
481 have been completed.

Completed Medical Appeals

Of the 481 completed:
89 (19%) were withdrawn
50 (10%) were overturned following an internal review, and
342 (71%) were formally heard by a medical appeal board.

Appeal Board Outcome

Of the 342 appeals formally heard by a medical appeal board:
245 (72%) were upheld,
7 (2%) were partially upheld, and
90 (26%) were overturned.

 

Medical Appeal Board Decisions as at 30 June 2014

Period: 1 July 2013 to 30 June 2014

2013/2014 Medical Appeal Costs

Medical costs include board member fees, travel, accommodation and meals.

• The 2013/2014 budget for medical appeals is 458k
• As at the end of June 2014, 63k has been paid for medical appeals1.

Medical Appeals Summary Statistics

From 1 July 2013 to then end of 30 June 2014:
418 medical appeals were received. Of these:
55 are in the process of being reviewed internally or are waiting for a medical appeal hearing to be scheduled, and
363 have been completed.

Completed Medical Appeals

Of the 363 completed:

80 (22%) were withdrawn
87 (24%) were overturned following an internal review, and
196 (54%) were formally heard by a medical appeal board.

Appeal Board Outcome

Of the 196 appeals formally heard by a medical appeal board:
150 (77%) were upheld
6 (3%) were partially upheld, and
40 (20%) were overturned.

 

Medical Appeal Board Decisions – June 2015

Period: 1 July 2014 to 30 June 2015

2014/2015 Medical Appeal Costs

Medical costs include board member fees, travel, accommodation and meals.

• The 2014/2015 budget for medical appeals is 663k
• As at the end of June 2015, 245k has been paid for medical appeals.

Medical Appeal Summary Statistics

From 1 July 2014 to the end of June 2015:

372 medical appeals were received. Of these:
61 are in the process of being reviewed internally or are waiting for a medical appeal hearing to be scheduled, and
311 have been heard.

Completed Medical Appeals

Of the 311 completed:

75 (24%) were withdrawn
101 (33%) were overturned following an internal review, and
135 (43%) were formally heard by a medical appeal board.

Appeal Board Outcome

Of the 135 appeals formally heard by a medical appeal board:
100 (74%) were upheld
6 (4%) were partially upheld, and
29 (22%) were overturned.”

NOTE:
MSD also provided separate tables on the last page of the 9-page response, showing a ‘Designated doctor fee schedule- Effective 1 July 2014’ and ‘Designated Doctor’s fees – Effective May 2014’.

For the details contained in those tables we request you to click the following link(s) to view the complete scan copy of the original OIA response. The ‘Designated Doctor’ fees are shown at the end of the document:

 

Please find here an anonymised scan copy of MSD’s OIA response, one “clean” copy, and one extra one that has highlighted text parts (and notes):
MSD, OIA rqst, Dr Bratt, MHES, SPES, WAA, reports, WINZ sundry data, 08.07., reply, anon, 19.11.15

MSD, OIA rqst, Dr Bratt, H+D Panel, MHES, SPES, WAA, reports, reply, hi-lit, 19.11.15

 

Also here is a scan copy of the Ministry of Health’s response to request/question nr. 17:
Min. of Health, Dep. Dir.-Gen., OIA rqst, social bonds, transfered fr. MSD, reply, 25.08.15

 
 

E) ANALYSIS OF INFORMATION MSD PROVIDED AND WITHHELD

By looking at the information that MSD provided in response to the above OIA requests from 08 July 2015, it can clearly be seen that some questions or points of request were not properly answered, that some have only been answered in part, and that at least three have not been responded to at all.

This is a common pattern with detailed OIA requests filed with MSD, and again, we will point out some of the information that should have reasonably been expected to be presented, and which was not, or was not in the form and scope it had been asked for.

MSD’s habit of often only rather selectively providing information to OIA requests, and of refusing or conveniently “forgetting” to provide some OIA information, can only be explained by a clear reluctance to offer true transparency. Some information must be deemed as being too “sensitive”, because it may potentially “harm” the reputation of MSD or the government. At times we wonder whether there are also attempts being made to cover up failures or mistakes that were made, and also incidents of professional misconduct or inappropriate processes that were followed.

As we simply do not get much information, we can only guess about this, and keep digging for more information in future.

 

From the limited information that was provided, the following can be said about it:

 

Re the response to questions 1 to 3 of the first OIA request from 08 July 2015

The information does only give general explanations about the main benefits that Work and Income pay to persons who are entitled to them. We find NO information about any statistical or scientifically based calculations or formula that MSD use for determining the amount per benefit paid. The requester specified that information was sought on components or parts of the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits, referring clearly to costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending and so forth.

MSD have simply not answered that main part of the question and request, which appears like an attempt to deflect from the main part of the question and to simply defend and justify the benefit rates as they are. It seems to simply be a balancing act between various objectives MSD has to take into account, like setting benefit rates at levels where recipients still have an “incentive” to look for work or to study, but on the other hand have “adequate income to allow participation and belonging in society”. As the requester did not get the response that was sought, this was raised in a letter to the Ombudsman, the text of which will follow under Chapter F).

 

Re the response to questions 1 to 4 of the second OIA request from 08 July 2015

The requester asked for information in the form of copies of reports from named senior professionals that have acted as either external or internal advisors and “experts” to MSD, such as Professor Mansel Aylward, Dr David Beaumont and also their own Principal Health Advisor Dr David Bratt. In the case of Dr Bratt the requester also asked for correspondence exchanged between Dr Bratt and Prof. Aylward – or other research members – based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales.

The response provided by MSD is hard to believe, when they write:
The reports and written correspondence you have requested regarding health, disability and work assessments do not exist. As such, question one to four of your request are refused under section 18(e) of the Official Information Act.”

The mentioned professionals are frequently quoted advisors and experts, who have without any doubt exchanged correspondence, and one must presume also reports, as was indicated by earlier responses by MSD to OIA requests. It is beyond belief that no reports on the subject matter mentioned exist. There is repeated mention of these advisors and “experts” in a Cabinet Paper titled ‘Welfare Reform Paper C: Health and Disability’ from 27 July 2012, made available by the Ministry (via the internet), and there are repeated references on how the so-called ‘Health and Disability Panel’ set up by Minister Paula Bennett and MSD “advised” the Ministry on matters relating to welfare reform. Professor Aylward is mentioned in that paper, so is Dr Beaumont, and as reports must have been prepared and presented to MSD, and likely also the Minister herself, it must be expected that these did at least “exist” at an earlier time.

Former Minister Paula Bennett did in a ‘Speech to medical professionals’ (on 26 Sept. 2012) repeatedly refer to Prof. Aylward and his and other UK reports, and she mentioned that she personally met with him. Professor Aylward has also repeatedly met with Dr David Bratt the Principal Health Advisor to MSD during 2013 and 2014. They even prepared joint presentations, based on information that was partly presented by Prof. Aylward and his colleagues at the ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales. The “Health Benefits of Work” position statement by the Australasian Faculty of Occupational and Environmental Medicine (AFOEM) was prepared and presented with the strong input from “experts” like Prof. Aylward, and facilitated by Dr Beaumont as a leading member of that Faculty. That and a similar position paper authorised by Dame Carol Black, who has also leaned on research reports by Prof. Aylward and some of his colleagues, were used as “evidence” for justifying the reforms the NZ government brought in.

It is not credible for MSD to claim that NO reports from these experts exist, or were exchanged. Hence the response given appears to rather be formulated to cover up the fact that certain reports were until not so long ago quite likely being kept on record within MSD, after having been received from the mentioned advisors, but they may have since then for whatever reason been destroyed, possibly by misusing or misinterpreting GDAs (General Disposal Authorities) issued by the Chief Archivist.

The very brief and simple response by MSD appears to conceal more than what it offers as an explanation. So while the answer was possibly given with the intention to leave the requester under the impression that no reports exist, reports may well have existed, but simply do no longer exist now. This is again a matter the requester has brought to the attention of the Ombudsman, as the response simply beggars belief.

It is simply completely unbelievable that the government, and its largest Ministry, introduce social welfare reforms that set new, harsher criteria, and bring in totally new approaches, for sick and disabled to be classified as “fit for work” rather than unable to work, based on “UK research”, without obtaining any relevant reports supporting the move. Similar approaches have in the UK led to increased suicides, other self harm and early deaths of beneficiaries with disability and sickness.

 

Re the response to questions 5 to 8 of the second OIA request from 08 July 2015

It is also astonishing, that two senior members of the ‘Health and Disability Panel’ that Paula Bennett set up as Minister of Social Development in 2011, and which met at various times from late 2011 to early 2013, to consult especially on health and disability matters in relation to planned welfare reforms, did not declare any conflict of interest, while they should have.

The ‘Health and Disability Panel’ was set up with the intention to receive and provide advice on what barriers sick and disabled on benefits have when it comes to accessing work. Other relevant aspects that were being discussed and reported on to MSD, in order to assist formulating and drafting social welfare reforms – with measures in mind to achieve that more sick and disabled get assessed and “supported” as able to work, were equally important. It was foreseeable that the government, which firmly believes in an “investment approach” to welfare delivery, and in involving private, non-government service providers to achieve new outcomes in getting people into work, would do exactly that, outsource services to such providers, to assist persons on benefits into work.

Hence we raise our eyebrows when we read that Dr David Beaumont, who did until then and later still run his own rehabilitation service business “Pathways” in Otago, same as Helen Lockett, the Senior Policy Adviser to the Wise Group and Workwise, declared NO conflict of interest while being members of that Panel offering “advice” to MSD. Both did clearly have conflicts of interest, as both were directly involved in service delivery businesses, which would most likely benefit from the reforms they were supposed to offer advice on. And as we know by now, Workwise has been rewarded with a contract to participate in trials to “support” and refer persons with mental health conditions into employment, for handsome fees that is!

Then there were four other members of that Panel, who had some conflicts of interest, but they were “not deemed significant”. The forms containing the conflict of interest details of those members have been withheld, protecting their privacy.

As altogether six out of 14 members of that panel (42 percent) appear to have had a conflict of interest, this raises many more questions, for which we get no answers. That is a rather high number of Panel members that had an apparent conflict of interest, of which two did not declare to have one, despite of sufficient information to the contrary.

And the questions put to MSD under request 8 have again been ignored by MSD, so we have got NO information on any conflicts of interest that the Principal Health Advisor Dr David Bratt and Principal Disability Advisor Anne Hawker may hold.

So while MSD at least offered some of the expected information here, there is more that needs to be answered to and the requester has also brought this to the attention of the Ombudsman.

 

Re the response to question 9 of the second OIA request from 08 July 2015

We learn from MSD’s response that Dr Bratt went to Europe for two months, on a so-called “study trip”, while he is nearing his own retirement age. MSD inform us that he worked for one whole month with Prof. Aylward, and as stated above, we are expected to believe that no correspondence or reports exchanged between the two professionals exist (see response to requests 1 to 4).

10 days of his trip were spent attending an ‘Integrated Care Master Class’, involving also 20 key New Zealand based Health Care Providers. ‘Integrated Health and Social Services’ were visited, an ‘International Conference on Integrated Care’ was attended in Brussels, and from 28 April to 29 May Dr Bratt worked with Prof. Aylward in Wales, and visited also the Chief Medical Advisor at the DWP, the senior health managers at Atos, the Minister of Health and Social Care, Dame Carol Black and Dr David Halpern in London.

MSD inform us that the Ministry contributed $6,915 to Dr Bratt’s attendance to the master class, a conference and travel costs. Also has he continued to receive his regular salary for the duration of his trip, as the response to question 10 does tell us.

At the bottom of page 2 of the response MSD state: “Dr Bratt’s study trip benefited the Ministry in a number of ways, his attendance provided the Ministry with the most up-to-date information on practice and policies on both the integration of services, and to large scale change management.”

The responses given raise more questions than they give answers. As we learn, Dr Bratt apparently has a rather close working relationship with Prof. Aylward and the Centre he leads in Cardiff, Wales. Having met him in New Zealand during 2013, and also having prepared joint presentations with that “expert”, he met him again in the UK in early 2014, and worked alongside him for a whole month.

But no reports and correspondence they exchanged “exists”, we were told already re questions/requests 1 to 4. The requester did specifically ask what reports had been generated during Dr Bratt’s trip to Europe and the UK, and again, we get NO reports, which is astonishing, as it should be usual practice that some reports are written during or as a result of such a “study trip”.

Also is it hard to believe that the $6,915 the Ministry contributed, and his regular salary, will have covered all accommodation, travel and other expenses that Dr Bratt will have had while in Europe and in the UK. So who paid the rest of his expenses? Did he perhaps get accommodation provided by Sir Mansel Aylward or his Centre, by the UK government, or anybody else?

And despite of the scandalous record that Atos has in the UK, offering assessment services to the Department for Work and Pensions (DWP), where many persons were wrongly assessed, and where Atos asked for an early termination of their contract with the UK government, Dr Bratt saw it fit to meet with the “senior health managers at Atos”! What “advice” and “information” will he have gathered there, and what “benefit” will that have offered MSD?

We do not believe that Dr Bratt will have had all his expenses covered by the contribution from MSD and his own salary, and this does again raise more suspicion about the supposed “independence” of “advice” he will have been given in the UK. We also do not believe that no reports were generated as a result of the meetings Dr Bratt had there. The matter has also been brought to the attention of the Ombudsman, as we understand.

 

Re the response to question 10 of the second OIA request from 08 July 2015

We take note of Dr Bratt’s attendance of the ‘2014 Integrated Master Class’ in Europe, and that he apparently did not receive any sponsorship funding for that Class. And while some of his expenses will have been paid for by his employer, MSD, there are unanswered questions about whether he may have received “sponsorship” for other parts of his trip. As we are advised the requester has asked the Ombudsman to try and find out from MSD what share of the total contributed costs went to fund Dr Bratt’s attendance to this ‘Master Class’ meeting.

 

Re the response to questions 11 and 12 of the second OIA request from 08 July 2015

The information provided by MSD to those questions by the requester appears reasonable and useful. As we can see from the first table at the top of page 4 of the response letter, there has been a significant increase in spending on Designated Doctor and Host Doctor services during the year 2014/2015, which can partly be explained by the significant increase in fees MSD that now pays to these medical practitioners that offer “second opinions”. See also the tables on page 9 for further details. But the information there is somewhat misleading. Designated Doctors and Host Doctors had already received an increase in fees years ago, after 2004. The two tables seem to suggest there were no increases in fees paid between then and 2014. In an internal MSD memo from Dr Bratt and dated 19 Nov. 2008 there was mention of a $106 fee that was then being paid to Designated Doctors for standard examinations/assessments.

See this document for details:
MSD, Design. Dr. Fee Adjustment Proposal, Dr. D. Bratt, memo, copy, hi-lit, 19.11.2008

As an increase was already sought then, it must be concluded that more than that was already being paid in the years leading up to 2014.

So the increase may also indicate an increase of Designated Doctor use, in the form of re-assessing more persons on benefits on health grounds and disability (being ‘Jobseeker Support – Deferred’ and ‘Supported Living Payment’ recipients).

 

Re the response to questions 13 and 14 of the second OIA request from 08 July 2015

With their response to questions 13 and 14 MSD have again made the claim that the Medical Appeal Board (MAB) is an “independent body” established “to ensure that correct and fair decisions are made within the legislation”.

That sounds rather “nice”, but is far from the truth, as another post on this blog has revealed some time ago, here is a link to it, for your memory or for future reading by those who have not read it yet:
https://nzsocialjusticeblog2013.wordpress.com/2015/03/17/the-medical-appeal-board-how-msd-and-winz-have-secretely-changed-the-process-disadvantaging-beneficiaries/
Here is a PDF with the same post:
mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16

The Ministry has provided some information that must be appreciated, but when looking at the data provided in the attachments with information tables on ‘Medical Appeal Board Decisions’ and ‘Summary Statistics’, there are for the year ending 30 June 2013 still 95 appeals listed as “in the process of being reviewed internally or are waiting for a medical appeal hearing to be scheduled”. For the year ending 30 June 2014 a number of 55 is given for the same category and with the same explanations. This does not seem to make any sense at all, as it is unbelievable that hearings are waiting to be scheduled or being reviewed internally for more than one or even two years.

Hence the information is somewhat confusing, and we understand that the requester is seeking clarification on the statistics, through the involvement of the Ombudsman.

 

Re the response to question 15 of the second OIA request from 08 July 2015

The requester has in his letter to the Ombudsman explained that the way the question was formulated for the particular information sought with request 15 was a bit unfortunate. Hence he would not seek further clarifications on the obtained information, which is of some, but not all that much help.

 

Re the response to question 16 of the second OIA request from 08 July 2015

We understand that the requester was happy with the information provided in tables in the attachment to the response letter from MSD (dated 19 Nov. 2015). The new and current fee information for Designated Doctor services is helpful, and it shows that MSD have substantially increased these fees over recent years, which now seems to offer even more of an “incentive” for medical practitioners to provide Work and Income services as Designated Doctors. As general practitioners, usually running their own businesses (e.g. as limited companies), do heavily depend on government subsidies, we must fear that MSD and Work and Income will be able to obtain more “support” from medical practitioners to work or collaborate with them, and declare more persons as “fit for work”, as part of the efforts by government to cut costs. For some doctors, who work as Designated Doctors, the examinations or assessments they provide for MSD offer them a secure and additional, profitable revenue stream.

 

Re the response to question 17 of the second OIA request from 08 July 2015

As MSD state in their response, the request for information on “social impact bonds” and trial projects that may have been conducted was transferred to the Ministry of Health. The Ministry of Health responded by email on 28 August 2015, with an attached letter dated 25 August.

The Ministry of Health’s response read like the following:
“Following a comprehensive and open procurement process, four potential social bond areas have been selected for future assessment and development. The mental health and employment social bond you refer to is one of the four under consideration.

The pilot for that social bond is still in the procurement phase of development; the Ministry has not run any trials and as such does not have any information to share with you. Accordingly the Ministry is required to refuse your request under section 18(e) of the Act as the information does not exist. However, details of the pilot can be found on the Ministry’s website (www.health.govt.nz) by searching ‘social bonds’ and we continue to update this as the process develops. “

A scan copy of that response can be found via this link:
Min. of Health, Dep. Dir.-Gen., OIA rqst, social bonds, transfered fr. MSD, reply, 25.08.15

So there is not much more to comment on that, as it is still under consideration and a potential project in the making.

 

Re the response to questions 18 to 21 of the second OIA request from 08 July 2015

MSD staff appear to have become a bit complacent towards the end of answering the OIA request, as they have only provided parts of the information that was actually sought. Yes, there is NO information at all provided in reply to questions/requests 20 and 21, which related to ‘Work Ability Assessments’ and ‘Specialist Assessments’ that persons with health conditions and impairments may have to comply with, if asked to do so by Work and Income.

As for the information sought under questions 18 and 19, it is rather limited and insufficient what MSD have provided. It is even less conclusive and helpful than information offered upon earlier OIA requests for information on the Mental Health Employment Service (MHES) and Sole Parent Employment Service (SPES).

The Ministry informs the requester and readers here, that they will only conduct a full evaluation on these newly contracted services, so far run on a trial basis, after June 2016 (after 3 years of the trials). There is mention of “interim reporting” that is being “refined”, so the future information that is reported will be more “robust” and “consistent” while these trials continue.

We read out of that, that MSD are attempting to “dress up” and present the statistics in a way, to make them look less damaging for themselves and the government.

As for the numbers provided, it is yet again unclear, for what “period” they actually are. We understand that the 3,377 number is likely to be the total number of persons referred to the MHES by the end of February 2015, and that the number of 3,169 is the total number of persons referred to the SPES (since the trials began) up to then. But from the figures presented for “the end of February 2015” that follow those, it is not at all clear, whether the referrals into employment are for the whole trial period, or simply just a snap shot of the figures for that one month.

This is a similar attempt to “blur” or confuse the statistics, as we feel, and it was done with some information provided before. But should these referral numbers for persons that were placed into employment be for the whole trial period, then they are in that case indeed a dismal outcome of these new “wrap around” services that former Minister Paula Bennett used to boast so much about.

As the above mentioned information has once again left the requester rather dissatisfied, he has written to the Office of Ombudsmen and asked that the response by MSD gets investigated and reviewed. Following this analysis and these comments we can below present you an authentic transcript of the letter to the Ombudsman. First though an initial complaint letter dated 01 Nov. 2015 is shown, this was sent while no OIA information at all had been received from MSD by then.

 
 

F) OMBUDSMAN COMPLAINT

After no response had come forward by 01 Nov. 2015, the requester first filed a complaint with the Ombudsman about the failure of MSD to respond to his OIA request.

This is the text of the complaint letter dated 01 Nov. 2015 (“anonymised” and in italics):

“The Office of the Ombudsmen
Level 10
55-65 Shortland Street
PO Box 1960
Shortland Street
Auckland 1010

01 November 2015

Complaint about the Ministry of Social Development (MSD) failing to provide information under the Official Information Act 1982 (O.I.A.), as per my requests dated 08 July 2015

Dear Ombudsman, dear staff at the Office of Ombudsmen

On 08 July 2015 I sent two letters with requests that I made under the Official Information Act 1982 (O.I.A.) to the Chief Executive of the Ministry of Social Development (MSD). One letter contained only three straight forward requests for a breakdown of the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits. A separate letter contained 21 requests for more specified information, that were partly somewhat more comprehensive, but which should have been able to be responded to by early October this year.

As a matter of fact, after receiving a number of emails from MSD, one dated 03 August 2015, that was seeking an extension of another month’s time to respond, I was upon my request for an update on 08 October informed, that my response was ready for their sign-off in only “a couple of days”. I may refer you to the response email from MSD’s “Ministerial + Executive Services Advisor”, who is always kept anonymous, from 08:14h on 08 October this year. It is contained in one of two attached PDF files with all the correspondence so far received from MSD. A response was supposed to be with me by the end of the month (October), if not sooner. But as it has occurred on numerous times before, MSD have failed to respond in due time, and delayed their response beyond of what I consider acceptable and reasonable.

I must inform you that I have to this very date not received the repeatedly promised response, even though it was supposed to be ready for “sign off” as early as 08 October. This means that I have not received any proper, final response to either of my two requests from 08 July this year, after nearly 4 months of MSD having received them by email.

One particular request had earlier been referred to the Ministry of Health, as you can see in an email and letter from MSDs Elisabeth Brunt, General Manager, Ministerial and Executive Services, dated 28 July 2015. I can inform you that the Ministry of Health has long ago responded to that particular request, with a letter dated 25 August 2015.

Hence my two above mentioned letters of request are yet again new cases, where MSD appears to be taking an unacceptably long and unreasonable time to respond, which gives me the impression that the Ministry is applying a kind of delaying tactic, due to some information perhaps deemed to be too sensitive, so they are hesitant to release it.

I have previously made similar complaints to your Office on a number of occasions, and there are also still complaints before you, which relate to O.I.A. requests to MSD from as early as January 2014, if not even from 2013. It is my understanding that the Office of Ombudsmen has been reviewing the O.I.A. process and delays is responses experienced by many requesters from a number of state agencies and departments.

As I have not observed any improvements in O.I.A. responses from MSD, I must ask you once again for your assistance, and to investigate this matter. Looking at how many O.I.A. requests appear to be treated, the process has often become ineffective and almost farcical. Much information tends to be withheld, and some often even without explanations. The purpose and spirit of the O.I.A. are in my view not being upheld and followed anymore. Some firm action by your Office may though assist in resolving this ongoing problem.

Your response in due time will be much appreciated.

Yours sincerely

Xxxxxxx Xxxxxxx

Attachments (5 PDF files) to email carrying this letter:

1). MSD, O.I.A. request, base benefit rates, break down into cost components, 08.07.15.pdf;
2). MSD, O.I.A. request, Dr Bratt, MHES, SPES, WAA, reports, WINZ sundry data, 08.07.2015.pdf;
3). MSD, O.I.A. request, Dr Bratt, MHES, SPES, WAA, reports, email corresp., 09.07.-03.09.15.pdf;
4). MSD, O.I.A. request, Dr Bratt, MHES, SPES, WAA, reports, email corresp., MSD, 08.10.15.pdf;
5). Ombudsman, complaint, MSD, failure to comply w. O.I.A., 2 rqsts fr. 08.07.15, ltr, 01.11.15.pdf.”

 

Here is a PDF copy of the first complaint letter to the Ombudsman, dated 01 Nov. 2015:
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 01.11.2015

 
 

Following the then later received, partly unsatisfactory OIA response by MSD, the requester decided to write another follow-up complaint letter to the Ombudsman, where he still has at least three other complaints that are due to be investigated and/or decided on.

The following is the text of the complaint filed with the Ombudsman on 22 Nov. 2015 (here mostly in normal type):

 

“The Office of the Ombudsmen
Level 10
55-65 Shortland Street
PO Box 1960
Shortland Street
Auckland 1010

22 November 2015

Complaint about the Ministry of Social Development (MSD) failing to provide information under the Official Information Act 1982 (O.I.A.), as per my two requests dated 08 July 2015; your reference number 41xxxx

Dear Ombudsman, dear staff at the Office of Ombudsmen

On 01 November 2015 I sent you a complaint stating that the Ministry of Social Development (MSD) had failed to provide a response to two requests I had on 08 July 2015 made under the Official Information Act 1982 (OIA). I can inform you that I did finally receive a response on 19 November, but as it has repeatedly occurred in earlier cases, some information that I asked for has not been provided, and some of that again without stating any reasons for it.

Hence I must follow up my earlier “delay complaint” with this further complaint letter, detailing what information MSD provided, and what the Ministry has withheld without giving any acceptable reasons for this. I do this following the advice in the response letter from MSD, to contact your Office, should I wish to have their response reviewed.

Like I mentioned above, I did on 08 July 2015 send two letters with a number of OIA requests to the Chief Executive of MSD. One letter contained only three straight forward requests for a cost component breakdown for the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits. A separate letter contained 21 requests for more specified and comprehensive information. Copies of both requests were sent to your Office, but I will nevertheless attach them again to this letter, so they are readily available to you.

 

My first OIA request from 08 July 2015

In my first request to MSD I asked for the mentioned “breakdown” of three main benefit types, the Jobseeker Support, Supported Living Payment and Sole Parent Support benefits, referring clearly to costs for food, clothing, accommodation, transport/travel, electricity, water, phone costs, social spending and so forth. I listed my questions numbered with 1 to 3.

MSD have only provided explanations that the base benefit rates are different dependent on benefit types (e.g. whether a person is single, partnered or a sole parent), that they are not based on a person’s previous income from employment, and that they are rather “intended to provide an adequate income to meet basic living costs”. Then MSD informed me that “there is no legislative formula used to decide the “correct” rates of benefit” and listed a few “competing objectives and issues” to take into account. I was informed of the annual inflation adjustment, but given NO reply to my actual questions, which asked, what components or parts of costs MSD considers for the listed common living cost items (e.g. food and so forth).

MSD have in my view failed to properly answer these three questions. I have been informed that MSD has at least in the past used specific cost calculations for determining how high the main benefits should be, in order to be sufficient for people to live from, and that was the information I expected. The questions I put to MSD, and the requests I made to them, should have been clear enough for MSD to provide the information that they use to determine living costs, and as far as I was advised some years ago, there were standard formula or so used (not “legislative”) to do this. I do not believe that MSD simply make up base benefit rates, without using some acceptable, available officially accepted guidance. I am familiar with separate allowances and top ups that are available for persons on benefits in certain circumstances, such as the accommodation supplement, disability allowance and temporary additional support. But those are special additions, which are not included in the main or base benefit rates, and persons need to prove they have extra needs to get these additional top ups. Hence I do expect a breakdown of the main or base benefit rates, which logically will have considerations for standard costs for a range of basic living expenses.

As MSD also administer ‘Studylink’, I wonder whether the Ministry uses similar considerations as are indicated in the following information shown on the ‘Studylink’ website:
http://www.studylink.govt.nz/tools-and-calculators/on-course-budget-calculator.html
On that page with their ‘Cost of living calculator’ there is mention of “typical costs”, “estimates for most of the basic weekly costs”, and under ‘How we got the real world estimates’ it says under point 3: Power, groceries, petrol, clothes, takeaways, leisure, toiletries/beauty/makeup these are the average person’s weekly spending, taken from the Housing Expenditure Survey 2007 and adjusted for inflation.”

In any case, I know very few persons dependent on social security benefits, who feel that they have an adequate income “to allow participation and belonging in society”. Main or base benefit rates barely cover all the basic living costs, most certainly not here in Auckland, and there is no active participation possible for them in social activities, when compared to what persons with say an average income are able to do. In any case I must ask you as Ombudsman to remind MSD of my actual question, and to ensure the Ministry does actually properly answer the questions put to it and provides the information that I requested.

 

My second OIA request from 08 July 2015

Requests/questions 1 to 4

In the first four questions of my second OIA request I asked for specified information in the form of copies of reports from named senior professionals that have acted as either external or internal advisors, and as “experts” to MSD, such as Prof. Mansel Aylward, Dr David Beaumont and also Dr David Bratt, the last person as MSD’s Principal Health Advisor (PHA). In the case of Dr Bratt I also asked for reports or correspondence exchanged between him and Prof. Aylward – or other research members – based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University in Wales. That Centre is now called ‘Centre for Psychosocial Research, Occupational and Physician Health’ (PROPH).

MSD have responded with the following comment:
The reports and written correspondence you have requested regarding health, disability and work assessments do not exist. As such, question one to four of your request are refused under section 18(e) of the Official Information Act.”

Given the fact that we are talking about frequently quoted advisors and experts, who have without any doubt exchanged correspondence, and I presume reports, as was indicated by earlier responses by MSD to my OIA requests, I do consider this comment by MSD somewhat hard to believe. Perhaps such reports do no longer exist, because they have been destroyed, same as emails for a whole period that Dr Bratt is known to have previously deleted (including those exchanged with Prof. Aylward). That appears to be the only explanation for the provided reply to be credible.

I have read the Cabinet Paper ‘Welfare Reform Paper C: Health and Disability’ from 27 July 2012, made available by the Ministry (via the internet), and there are repeated references on how the so-called ‘Health and Disability Panel’ set up by Minister Paula Bennett and MSD “advised” the Ministry on matters relating to welfare reform. Under Executive summary and Paras 6, 7, 10 and 11, there are references made as to how the Panel “advised” the Ministry which would in the usual manner be done by way of a report. Under Summary: advice from the Health and Disability Panel and from Para 46 onwards, there are further such references made. Under Para 51 reference is made re how Panel members sought advice from Sir Mansel Aylward and Dame Carol Black, and under Para 64 there is mention of the Panel’s recommendation. Under Para 71 there is mention of a Panel subgroup, and APPENDIX TWO lists the members of the ‘Health and Disability Panel’, which includes Dr Davie Beaumont. APPENDIX THREE mentions the Work Capability Assessment (WCA) in the UK and a summary of evidence. The Work Capability Assessment was according to evidence I have based on earlier UK assessment methods that had been designed and recommended by Professor Aylward, and thus he has at least indirectly had input in the WCA.

Dr David Beaumont was according to my knowledge chairing the ‘Health and Disability Panel’ referred to in the Cabinet Paper above, and as the Panel appears to have presented reports to the Ministry, one must reasonably conclude, that Dr Beaumont was as part of that Panel authorising and signing any reports that were presented to MSD. Hence that report, like possibly others by or with the input of Dr Beaumont, should have been kept on record, given its importance. Therefore it cannot be correct that there are no reports that MSD received from Dr Beaumont, unless they have been destroyed without appropriate authority.

I also note that in a ‘Speech to medical professionals’ former Minister Paula Bennett made the following comments:
“The focus for people with disabilities and long lasting conditions will be on their barriers to work not just their health, and we’ll be hands on, early on. This was an important point made by the experts on the Health and Disability panel which I established to review our proposed welfare changes. It also echoes the UK’s assessment processes and the “Pathways to Work” initiative for vocational rehabilitation designed by Professor Sir Mansel Aylward. When I sat down with Sir Mansel earlier this year he told me that health conditions account for just 10 to 15 per cent of barriers to work for people on disability benefits. He said that many health conditions or disabilities can be well managed in work but addressing other barriers are just as important.
“In fact renowned academic and clinician Dame Carol Black found that joblessness is likely to lead to a myriad of health problems both psychological and physical. Points echoed by Professor Sir Mansel Aylward and Australian academic Dr Debra Dunstan. Sir Mansel says that health wise, after six months of unemployment each day off work is as detrimental as smoking 200 cigarettes.

Here is a link to a website showing a transcript of that speech:
http://www.beehive.govt.nz/speech/speech-medical-professionals

Also did the NZ Doctor magazine report on 29 February 2012 under “Four GPs advise on new benefit”, that 4 GPs had been included in the mentioned ‘Health and Disability Panel’. NZ Doctor stated that they only managed to obtain the names of the Panel members after repeated efforts under the OIA. NZ Doctor mentioned all members by name, which had in the year before been refused to be made public by the Ministry, and Dr Beaumont is also listed as a member of that Panel. Paula Bennett, who provided the names to NZ Doctor refused to release other details, “due to confidentiality of advice”.

MSD have then and up to now continued, to keep a high degree of secrecy about the Health and Disability Panel and its reports, and there is very little information found on the internet. It is beyond belief that MSD do in the OIA response to me simply deny the existence of any reports from the likes of Drs Beaumont and Aylward, while they were evidently involved in providing advice to the Ministry. Such advice will not simply and only have been provided verbally; as such expert advice tends to be presented in proper reports.

Dr David Bratt has according to his position description, which I have a copy of, also responsibilities that cover advice on policy matters, hence it must be expected that he as the Ministry’s senior advisor on health and disability matters will also have been presenting reports and exchanging them not only with Ministry staff, but likely also some external advisors. In that position description it says under ‘Purpose of the Position’: The Principal Health Advisor will lead key staff within Work and Income to develop and document medical policy, operational guidelines and provide advice to regional staff where required”. As I already informed your Office on previous occasions, he has also cooperated closely with Professor Aylward, even producing joint presentations. He has used references to Mr Aylward’s reports, and such that Prof. Aylward co-authored with Dr Waddell, in many of his presentations, so he must have received reports from experts like Mr Aylward, in his capacity as PHA, to access and use reports by Prof. Aylward. Hence Dr Bratt must at least have been presented the mentioned reports by Dr Aylward, same as they will have exchanged much correspondence, not only limited to booking of travel and conference attendance. The recent visit by Dr Bratt to the UK, upon invitation by Prof. Aylward, will inevitably also have involved the creation and exchange of reports, but none of these have been made available by MSD.

As all these professionals were evidently involved in advising MSD and the then Minister on the supposed “health benefits of work” and experiences in the UK, as part of the government formulating and drawing up new social security policy from 2011 to 2013, reports must have existed, so the Ministry must have used a General Disposal Authority (GDA) released by the Chief Archivist under the Public Records Act 2005, to destroy the formerly existing reports.

I ask you as Ombudsman to investigate whether the asked for reports did previously exist and whether they were then later destroyed, as the response by MSD does not clarify this. In the case that the reports were destroyed, I ask for which GDA (issued by the Chief Archivist) the Ministry used as an authoritative guide to destroy said reports. In any case, it is my view that such reports should not have been allowed to be destroyed, as they will have been too important to fall under lower priority level types of records.

Requests/questions 5 and 6

I appreciate the clear answer by MSD that Dr David Beaumont and Helen Lockett (from the Wise Group and ‘Workwise’) did not declare any conflicts of interest, while they took part in the ‘Health and Disability Panel’ consultation process set up to advise the Ministry on welfare reform, where health and disability issues of persons on benefits on health ground, and reforms to “assist” such persons into jobs were discussed and considered. I know that Helen Lockett was then, and has been for years, the Senior Policy Advisor for her employer, who would have had a strong interest in gaining future contracts with MSD. I know also that Dr Beaumont did then, and has for many years, operated his own rehabilitation business “Pathways” in Otago, which has also been targeting persons with health and disability issues dependent on benefits, to assist them into work. The fact that they did not declare any conflict of interest is significant for me to take note of, and must be of concern to the public.

Request/question 7

I take note that MSD have answered to this question as part of the group of questions / requests 5 to 8, and state the following: “Four panel members declared a potential conflict of interest which can include other forms of employment, memberships to another organisation or family relationships. However, upon review the declared conflicts were not deemed significant. The conflict of interest forms are withheld under section 9(2)(a) of the Official Information Act in order to protect the privacy of natural persons. The need to protect the privacy of these individuals outweighs any public interest in this information.”

This may be the decision that senior persons within MSD have made, but I challenge the consideration that it is not in the public interest to know about any conflicts of interest that nearly a third, if not half (including Dr Beaumont and Helen Lockett) of all the members of that Panel appear to have had. That is a significant number of members of the ‘Health and Disability Panel’ to have been allowed to act as advising members on such a high level panel, despite of having had a conflict of interest. The advice the Panel gave to MSD, to proceed with the much hailed reforms based on the supposed – but insignificantly proved – “health benefits of work”, is of great concern. It is my view that the proposed and now implemented policy reforms do ultimately put sick and disabled persons at risk, given the strong focus on “work ability” that has been adopted. The fact that even persons with terminal cancer were at least until recently advised that they have to go on the “Jobseeker Support” benefit, in order to get support during needed treatment, has raised serious questions. Also have there been other cases of misdiagnosis and wrong declarations for persons to be “fit for work”, where this was clearly not the case. Similar attempts to assess sick and disabled in the UK have led to serious harm to some affected. Hence I consider it more than reasonable to ask MSD to make available the completed conflict of interest forms, as the interest of the public to get transparency on the particular conflicts of interest is greater. There appear to have at least been some conflicts of interest, where a service provider like the Wise Group (and with that ‘Workwise’) was allowed to have their Senior Policy Advisor sit on that Panel, while having a commercial business interest in potentially gaining service contracts with the Ministry, should the agreed advice by the Panel result in using providers such as ‘Workwise’ to deliver services. As I have learned through media and earlier OIA responses (24.04.2014), ‘Workwise’ have actually been given significant contracts to “trial” the new services, for handsome fees for successfully referring unemployed with health issues into employment. Also did Dr Beaumont and his company ‘Pathways’ at least then have a potential future commercial business interest, as the reforms advised to MSD could have also provided additional clients to use his rehabilitation business.

Request/question 8

This was supposed to be covered by the combined response MSD gave to questions 5 to 8, but it has not been answered at all. I asked for any conflict of interest declaration that MSD received and holds on Principal Health Advisor Dr David Bratt and on Principal Disability Advisor Anne Hawker. No answer has been given, and this is yet again a case where MSD have omitted important, requested information from their response, without giving any explanation for it.

Hence I must ask you as Ombudsman to investigate this matter, and request an explanation for this from MSD. If there are conflict of interest declarations that were presented to MSD and are held by the Ministry, I ask that copies of these will be made available.

Request/question 9

I appreciate MSD’s response that Dr Bratt conducted a two month “study trip” to Europe (between 29 March and 31 May 2014), and that it “benefited” the Ministry in a number of ways. I also take note that Dr Bratt went to the UK and Europe upon an invitation from Prof. Aylward. I do particularly note that Dr Bratt worked with Sir Mansel Aylward from 28 April to 29 May 2014, and that Dr Bratt also met with the Chief Medical Officer to the Department of Work and Pensions, the senior health managers at Atos and the UK’s Minister of Health and Social Care, same as with Dame Carol Black.

The Ministry informs me that it “contributed” $6,915 towards attendance of Dr Bratt at the master class and conference and travel costs.

With my question from 08 July I had actually asked for reports to be made available, but none have been, apart from a very general overview of Dr Bratt’s trip and contacts in the UK and Europe. I specifically asked for copies of reports on Dr Bratt’s actual engagements there, and also on the costs and possibly received subsidies, but none of these particular reports have been provided with the Ministry’s response.

Given that Dr Bratt was in Europe for two months, and one month of that in the UK, working also with Prof. Aylward and meeting many other officials and professional experts, it is also not quite conceivable as to how all the related costs for travel, accommodation and provisions could have been covered by the relatively humble amount that MSD have quoted. I am under the impression that other costs were incurred, that had to be paid, and that were then being paid, but no information has been provided about any possible subsidies or similar that may have covered these.

Hence I must ask you as Ombudsman to clarify with MSD what reports were prepared on Dr Bratt’s travel and professional or “study” engagements in Europe, particularly in the UK, and why copies were not made available with the response provided.

Request/question 10

The response by MSD is appreciated, and I gather that no sponsorship funding was received for Dr Bratt’s attendance of the ‘2014 Integrated Master Class’ meeting(s). I am unclear though who paid for Dr Bratt’s accommodation and provisions during that attendance, and it appears that it was partly also covered by the already mentioned $6,915. If that is the case, I would appreciate the relevant share of those total expenses to be clarified.

Requests/questions 11 and 12

I appreciate the information provided by MSD on these questions and do not expect any further information on these.

Requests/questions 13 and 14

MSD has provided expenditure on Medical Appeal Boards which I appreciate. But by looking at the data provided in the attachments on ‘Medical Appeal Board Decisions’ and ‘Summary Statistics’, there are for the year ending 30 June 2013 still 95 appeals listed as “in the process of being reviewed internally or are waiting for a medical appeal hearing to be scheduled”. For the year ending 30 June 2014 a number of 55 is given for the same category and with the same explanations. This does not seem to make any sense at all, as it is unbelievable that hearings are waiting to be scheduled or being reviewed internally for more than one or even two years. It is possible they were decided the following year, but that is not clearly explained or stated.

I must ask you as Ombudsman to approach MSD and seek an explanation for this, which I ask to be provided. Surely appellants cannot still be waiting to be reviewed or to be rescheduled up to now, from those periods.

Request/question 15

I admit that by asking for ‘request for review’ details prior to Medical Appeal Board appeals I may not have asked a clear enough question, so I will not expect further information on this request and consider asking more specifically in future.

Request/question 16

I am satisfied with the information provided in the attached documentation.

Request/question 17

This question was referred to the Ministry of Health to respond to, and I received a reply from them in late August 2015.

Requests/questions 18 and 19

MSD have lumped all the questions numbering 18 to 21 in my second request together into one set of answers, being broken down for ‘Mental Health Employment Service’ and ‘Sole Parent Employment Service’, but when looking at the response received, only questions 18 and 19 have actually been responded to – and that only in part.

Like with answers given to a previous OIA request I filed with the Ministry, the information provided is not clear enough. While I can conclude that the number for those “enrolled in the trial” are simply just the ones enrolled at the end of February 2015 point of time, there is no clarity about the numbers of persons that have obtained lasting employment. It appears the figures are only taken from the number of persons that are “enrolled” at the end of February. Hence I get NO information on the total numbers of persons on such trials that have been placed into lasting employment for the whole past trial period up to that time.

MSD did in earlier responses also provide some broken down figures on how many persons had been approached to participate in the trials, how many had been referred to the two services, how many had participated, and how many had exited the service for a variety of listed reasons. MSD had earlier also presented some figures on how many had refused or declined to participate. I may refer to MSD’s responses from 24 April 2014 and 26 February 2015. Then there were hardly any figures provided for persons placed in employment (only a small number was mentioned in the earlier response from 24 April 2014).

The way the responses are given, it is unclear whether the numbers for persons for both trials that have been put into employment are for the whole periods the trials have run, or just for the one month (February 2015). Also are the figures somewhat dated, and older than 8 months, which is not the kind of update I had sought.

I must ask for clarification re the persons placed into employment, whether the numbers provided for the end of February this year are totals for the whole trial period, or just for that one month, and hence I seek your assistance to commit MSD to give a clear answer.

It is in my view also unacceptable that MSD will apparently not provide any evaluation on their trials prior to June 2016, while Jo Goodhew did as Associate Minister inform Carmel Sepuloni, Spokesperson for Social Security for Labour, during Question Time in Parliament on 17 September 2015, that an interim evaluation would be presented later this year, which was already planned to be provided in the middle of this year. It appears that MSD are repeatedly postponing the evaluation of their trials, and leave the public in the dark about the actual outcomes of trials. While that may be out of scope for you as Ombudsman to take any action on, I do at least seek the above mentioned clarifications for the end of February data.

Requests/questions 20 and 21

MSD have not provided any answer at all to my remaining two questions in my Official Information Act request from 08 July 2015. MSD have not given any information on ‘Work Ability Assessments’ and ‘Specialist Assessments’. And no reason has been given for this. Whether this was an honest oversight, or whether MSD staff may have conveniently forgotten to provide that information is a matter I can only speculate about.

In any case, I feel I should have been provided the sought information, or if it cannot be made available, or would be withheld for a particular reason, then I would expect a clear statement to that effect. Hence I must ask your Office of Ombudsmen to again remind MSD of their obligation under the Official Information Act, and to provide the information.

To summarise the above, I consider that I still deserve a response or further response in respect of questions 1 to 3 in my first OIA request from 08 July 2015, and that I still deserve a further response to questions in my second request from 08 July 2015, being to questions 1 to 4 (on whether reports existed, and why they no longer exist), to question 7 (provision of conflict of interest forms), question 8 (conflict of interest declarations by Dr Bratt and Anne Hawker), question 9 (why are reports missing, and who paid Dr Bratt’s other costs), question 10 (share of costs paid), questions 13 and 14 (clarification on some MAB data), questions 18 and 19 (clarification re persons in work, for what period, also further data previously made available) and questions 20 and 21 (no answer at all was provided).

I regret having to seek your assistance yet again, but given the response by MSD, I must consider that it is for me the only logical next step to ask for your intervention, so to ensure that MSD actually provide the information that was requested.

As usual, your response in due time will be much appreciated.

Yours sincerely

Xxxxxxx Xxxxxxx”

Attachments (15 PDF files) to email(s) carrying this letter, plus 1 reference/link:

1). ‘MSD, O.I.A. request, base benefit rates, break down into cost components, 08.07.15.pdf’;
2). ‘MSD, O.I.A. request, Dr Bratt, MHES, SPES, WAA, reports, WINZ sundry data, 08.07.2015.pdf’;
3). ‘MSD, O.I.A. request, MHES, WAA, reply, Xxxxxx, Xxxxxxx – Final response dated 24 April 2014#2.pdf’;
4). ‘MSD, O.I.A. request, MHES, WAAA, other suppt services, issues, reply, 26.02.2015.pdf’;
5). ‘Ombudsman, OIA complaint, MSD, ref. 417207, further complaint ltr, X. Xxxxxx, 22.11.15.pdf’;
6). ‘Bratt + Aylward – Shifting Your Primary Focus to Health and Capacity, June 2013.pdf’, file with a joint presentation by Dr Bratt and Prof. Aylward, from June 2013;
7). ‘1100 – cs3-a – happy docs true generalism with welfare reform – david bratt, July 2013.pdf’, a further presentation by Dr Bratt, containing info sourced from Aylward, see slides 15, 18, 19 + 26, from July 2013;
8). ‘Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too – June 2012.pdf’, another Bratt presentation, 2012, see reference to Prof. Aylward, slide 20;
9). ‘Aylward presentation, worklessness and health, a symposium, media_210440_en, d-load 27.03.14.pdf’, a presentation by Prof. Dr Aylward, showing clear similarities in contents and reference sources to the ones presented by Dr Bratt;
10). ‘Public Health Wales, Aylward to meet Bratt, 25 02 Chair report June 13 v1, June 2013.pdf’, a publication showing details about meetings between Dr Bratt and Professor Aylward, June 2013; Web link:
http://www2.nphs.wales.nhs.uk:8080/PHWPapersDocs.nsf/($All)/D211789B7097C94A80257B8D004E4F08/$File/25%2002%20Chair%20report%20June%2013%20v1.pdf?OpenElement
See also, a brief profile of Mansel Aylward, being also “Chair” of Public Health Wales:
Web link: http://medicine.cf.ac.uk/person/prof-mansel-aylward/research/
11). ‘Public Health Wales’, ‘Chair Report’, 16 June 2014, with mention of Dr Bratt’s visit to the UK in May 2014, on the second leg of his visit to Europe early this year (see paragraph 11); file name:
‘Public Health Wales, 32 02 Chair report v1, Aylward + Bratt meet in UK, June 2014.pdf’
Web link:
http://www2.nphs.wales.nhs.uk:8080/PHWPapersDocs.nsf/85c50756737f79ac80256f2700534ea3/9aa6f80bfe7ff2ac80257cfd003994d0/$FILE/32%2002%20Chair%20report%20v1.pdf
12). NZ Doctor magazine article on ‘Health and Disability Panel’:
‘NZ Doctor, Four GPs advise on new benefit, Helen Tatham, H + D Panel, 29.02.2012.pdf’
13). Official Position Description for ‘Principal Health Advisor’:
‘MSD, O.I.A. Request, Principal Health Advisor, position description, Jan. 2007.pdf’.
14). ‘GPNZ, European conference participation, Dr Bratt, 2014-Masterclass-Programme-FINAL.pdf’, a record showing other evidence on Dr Bratt visiting Europe in early 2014;
15). Cabinet paper C, “Health and disability”, welfare reform paper, mentioning Professor Aylward, Dr Beaumont, Dame Carol Black, and possibly also Dr Bratt, as advisors that were consulted on health and disability issues in relation to welfare reforms. The document was signed by Paula Bennett on 27 July 2012 and released to the public in early 2013: Web link:
https://www.msd.govt.nz/documents/about-msd-and-our-work/newsroom/media-releases/2013/wr-cab-paper-c-health-and-disability.pdf
16). Paula Bennett’s speech to medical professionals, 26 Sept. 2012, mentioning consultation with Mansel Aylward, and his and Dame Carol Black’s input, in the form of advice on the New Zealand welfare reforms:
File name:
‘Paula Bennett, Min. S.D., beehive.govt.nz, Speech to Medical Professionals, 26.09.2012.pdf’; web link:
http://www.beehive.govt.nz/speech/speech-medical-professionals

 

Note re attachment 10 to the letter above:
The referred to link for info on Dr Aylward no longer works, so the following needs to be used:
http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/

 

Here is a link to a PDF with the text of the second complaint letter to the Ombudsman, dated 22 Nov. 2015:
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 19.11.15

P.S.: The Ombudsman was sent a copy of the response by MSD, dated 19 Nov. 2015, by way of a separate email, making that attachment 17 to the complaint!

 
 

G) CONCLUSION

So in summary, we can conclude again, that MSD appear to be rather selective regarding what information they make available upon specified OIA requests and what not. And when information is provided, it is often not even the information that was primarily asked for. And yet again, some requests or questions were simply ignored and not responded to at all.

This is now a common feature of such OIA responses from MSD, and it appears that the intention is to withhold information that is deemed “too sensitive” to make available, so the usual refusal explanations and reasons are given. And where no or insufficient information is provided, the intention appears to be to force requesters to make complaints to the Office of Ombudsmen, which do generally take at least 3 to 6 months to get any kind of proper response to. If an investigation is conducted, it can take up to a year or even two or more years, for a final decision to be made. The calculation at the top level of MSD seems to be, that by then any sensitive information formerly withheld will be considered less relevant and less damaging, as MSD may in the meantime have adjusted or improved certain processes that may have lead to unsatisfactory outcomes of certain trial or what else they may pursue as part of their day to day tasks and also longer term policy.

With the requester we will look forward what our Ombudsman will decide about the complaint filed.

 
 

Quest for Justice

 

27 November 2015

 
 

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HOW THE N.Z. HEALTH AND DISABILITY COMMISSIONER LET OFF A BIASED ‘DESIGNATED DOCTOR’


HOW THE NEW ZEALAND HEALTH AND DISABILITY COMMISSIONER LETS AN APPARENTLY BIASED GENERAL PRACTITIONER OFF THE HOOK, WHO ACTED AS A ‘DESIGNATED DOCTOR’ FOR WORK AND INCOME NZ (WINZ)

 

A True Story Revealed – Justice Yet Again Being Denied

 
 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)
PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC
PART 4 – THE COMPLAINANT’S REPLY TO THE HDC AND THEIR DECISION
PART 5 – THE COMPLAINANT’S REQUEST FOR OFFICIAL INFORMATION FROM THE HDC
PART 6 – THE HDC’S RESPONSE TO THE COMPLAINANT’S OFFICIAL INFORMATION ACT REQUEST
PART 7 – THE ASSOCIATE COMMISSIONER KATIE ELKIN’S “FINAL” RESPONSE AND DECISION
PART 8 – THE COMPLAINANT’S LETTER IN RESPONSE TO KATIE ELKIN’S “FINAL” DECISION
PART 9 – THE COMPLAINANT’S REQUESTS UNDER THE OFFICIAL INFORMATION AND PRIVACY ACTS
PART 10 – THE HDC’S LEGAL ADVISOR’S RESPONSE TO THE OIA AND PRIVACY ACT REQUESTS
PART 11 – THE HDC’S TRULY FINAL DECISION, UPON SUPPOSED “REVIEWS” OF THE COMPLAINT
PART 12 – CONCLUSIONS THAT CAN BE DRAWN FROM THE BIZARRE COMPLAINT HANDLING BY THE HDC

 
 

PART 1 – INTRODUCTION

It was over three years ago, when someone approached us in an extremely distressed and depressed state of mind, clearly suffering immensely. The person shared with us some almost unbelievable experiences about how he was as a person with serious, complex mental health issues forced to see a so-called Work and Income ‘Designated Doctor’ for a medical examination, and how that doctor presented a recommendation, that was in complete contrast to what his own doctor had been diagnosing and recommending for a number of years. I felt sorry and was very concerned for the man, as he hesitantly shared, that he did at times have suicidal thoughts, which had been aggravated by some of the things that happened to him. He was certainly sharing his true experiences, as he later also presented documentary proof of what had been done to him.

The injustice that he felt he suffered at the hands of that doctor, and the unacceptable, unreasonable decisions that were made upon that doctor’s recommendation, have long been addressed by Work and Income, but it was not an easy way for our friend to get what is commonly called a “settlement” of sorts. He was though at first forced to go and fight a decision, by taking the matter as an appeal to a Medical Appeals Board (MAB), and as that outcome was only marginally “better”, he consequently even had to apply for a judicial review, with the help of legal representation that he could not afford, and initially was unable to find.

But in the end that problem was somehow resolved. What really upset him was that the doctor who caused him all the extremely upsetting and distressing experiences, was basically not being held to account for his failings and flawed recommendation. After gathering much information and seeking further advice, he remembered there is a Health and Disability Commissioner Office here in New Zealand, which is supposed to offer a complaints process to deal with medical and health professionals, who breach the ‘Code of Health and Disability Services Consumers’ Rights’. That Code is administered by the Commissioner, and it is usually only possible to take any any complaint about such a breach further, after first having presented it to the HDC, who acts like a “gate keeper” for medical and disability related complaints. The Medical Council that is the authority for many medical practitioners, and their registrations, will mostly only look at complaints, if they have first been assessed and investigated by the HDC. Indeed virtually all consumers of health and disability services are forced to first go to the HDC, for sought disputes resolutions. Our associate was not really new to the Commissioner, as he had filed a complaint on another, separate issue a year earlier, that did though only result in the HDC taking no action, for rather bizarre reasons, which we will not cover here.

So our friend did decide to file a new complaint to the Commissioner, thinking that justice should prevail, even though his different, earlier complaint had not been not successful, despite of immense efforts he had put into it. But what he then eventually found in dealing with the HDC once again, was completely unbelievable for him, while for insiders it would not have been that surprising at all.

The man, who we may also refer to as the complainant, prepared an extremely detailed and comprehensive complaint with all relevant evidence. Then he sent it to both the Medical Council and the HDC Office. The Medical Council was very swift in informing our complainant, that they would not be looking at his complaint, as the HDC was the Office they considered responsible for handling it.

Our friend had already feared that this would be the position by the Medical Council, so he was hopeful that at least the Health and Disability Commissioner would seriously and honestly assess and investigate his complaint. But as we now know, the HDC does only investigate a tiny percentage of complaints received annually, and the Health and Disability Commissioner Act, that governs the HDC, does limit very much, what a Commissioner can do, certainly when it comes to taking anything like “disciplinary” actions. There is much provision to use discretion.

So our associate went through virtual hell again, finding out, that the Commissioner took only very little action, and sought a response from the doctor that was complained about, and then made bizarre decisions, that he could not accept at all. It later motivated him to even go and raise the issues he observed with the HDC with the Ombudsman, but that process will be written about a bit later in another post, as it deserves separate treatment and attention. Readers will have their eyes widely opened upon reading this particular post, plus the ones that will follow, as it will show, that our Health and Disability Commissioner does seem rather less concerned about the many mistakes made, and certain misconduct by medical examiners, assessors and others, than with simply using the law to keep complaints at a minimum and sending endless people either to “advocacy” or to dismiss their complaints as “requiring no further action”. The post starts in earnest with the next ‘Part 2‘, containing the complete complaint sent to the HDC.

This is definitely a true story and deserves to be taken very seriously, as it presents a range of significant problems with the processes in place in New Zealand, to address medical malpractice, professional misconduct, incompetence and poor delivery of health and disability services. The systems in place leave much to be desired, and are providing little or no justice to the affected and aggrieved, that is certainly in the vast majority of cases. As for the complainant, he does understandably have very good reasons to remain anonymous, as he also has delicate health issues, and as he is therefore vulnerable. Readers are asked to respect this, and to not make efforts to establish his identity. As for documentation made available, sensitive information has been deleted or crossed out, but you can be rest assured, that all that is provided here is absolutely authentic and reliable.

Some will have read the earlier post here on the Health and Disability Commissioner, which is found here:
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

And some will also have read our post on ‘Designated Doctors’:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

 
 

PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)

 

In the following we present the authentic, original complaint letter sent by the complainant to the HDC Office in late June 2012. As mentioned under the ‘Introduction’, some sensitive information is crossed out and in scan copies of attached documents in PDF file format “whitened out”. The full text is shown below, but for easier reading, you may prefer the PDF file version, which can be found by clicking the following link. Further links showing attachments to the complaint can also be clicked on underneath the end of the full complaint below:

HDC, Complaint, C12HDCXXXXX, Design. Dr, Breach of Code, ltr, anon, xx.06.2012

 

Xxxxxxx Xxxxxxx
Xxxx x
xx Xxxxxxxx Street
Xxxxxxxxa
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

 

The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
Auckland 1010

xx June 2012

 

Attention: The Health and Disability Commissioner and the Medical Council of NZ

 

Re:
Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Doctor Dxxxx Xxxxxxx

 
 

Dear Health and Disability Commissioner, dear Madam / dear Sir,

 

Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’.

Equally there have been breaches of the ‘Code of Ethics’ of the New Zealand Medical Association, of section 8 (2) of the ‘Health Practitioners Competence Assurance Act 2003’, the ‘Health Information Privacy Code 1994’ and a breach of the ‘Health (Retention of Health Information) Regulations 1996’.

Of relevance is also ‘Cole’s Medical Practice in New Zealand’ (2011 edition) – published by the Medical Council of New Zealand, of which chapter 1 (“Good Medical Practice”) is considered to be the foundation document for standards and ethics to be applied, upheld and followed by registered medical practitioners. The Medical Council has also adopted the ‘Code of Ethics’ published by the New Zealand Medical Association, and binds itself to other codes, statutory and regulatory provisions.

Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by Dr Dxxxx Xxxxxxx, MBChB, General Practitioner, based at Xxxxxxxx Health Centre, Xxxxxxxx, Auckland:

Right 1 Right to be treated with respect
Right 3 Right to dignity and independence
Right 4 Right to services of an appropriate standard
Right 5 Right to effective communication
Right 6 Right to be fully informed

Under the ‘Code of Ethics for the New Zealand Medical Profession’, published by the New Zealand Medical Association, the following principles have been breached:

Principle 1Consider the health and well being of the patient to be your first priority.
Principle 2Respect the rights, autonomy and freedom of choice of the patient.
Principle 4Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.
Principle 8Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.
Principle 9Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.
Principle 12Accept a responsibility for maintaining the standards of the profession.

Under the ‘Health Practitioners Competence Assurance Act 2003’ the following provisions also appear to have been breached:

8 Health practitioners must not practise outside scope of practice

Re the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx breached following rules:

Rule 2 – Source of health information
Rule 3 – Collection of health information from individual
Rule 8 – Accuracy etc. of health information to be checked before use

Under the ‘Health (Retention of Health Information) Regulations 1996’ the following sections have been breached:

5 Definition of minimum retention period
6 Health information to be kept for minimum retention period

 

BACKGROUND:

A) Designated doctor examination by Dr Dxxxx Xxxxxxx, Xxxxxxxx Health Centre:

Following a decision by Work and Income Case Manager Pxxxxxx Lxx on 22 April 2010, to have my medical situation reviewed, I was on 09 June 2010 referred by fellow Case Manager Rxxx Gxxxxxx to Dr Dxxxx Xxxxxxx (of the Xxxxxxx Health Centre, xx Lxxxxxx Street, Xxxxxxxx, Auckland 1xxx; ph. 09 xxx xxxx) for a “designated doctor” examination under section 44 of the Social Security Act 1964.

I only selected Dr Dxxxx Xxxxxxx from a presented short-list of 6 GPs, because he was the only designated doctor offered to me by the Case Manager, who I could reach relatively conveniently with public transport, upon which I depended. He was unknown to me, and I was given no chance to check his particular qualifications, expertise and to gather any other information about him.

On 17 June 2010 well before 02:30 pm I arrived at the Xxxxxxxx Health Centre for the examination with documents from counsellors, an intern psychologist a psychiatrist and psychotherapist, all giving evidence of specialist treatment I had received for alcohol dependency and mental health conditions.

After waiting for about 15-20 minutes to see Dr Xxxxxxx, he called me up about 5 minutes after the arranged time of 02:30 pm. He asked me to enter for the first examination I ever had of this type. Dr Xxxxxxx had Work and Income forms and a copy of a medical certificate from my own doctor lying on his desk, and once I sat down, he immediately asked me numerous specifically targeted questions.

I was presented and challenged with the following clearly targeted questions:
What benefit I was on,
how long I had been on it,
what benefit I had been on before that,
when I had last worked,
why I had not continued with that work,
what work I had been doing before and since,
why I felt I could not carry on with that work,
why I had not worked since,
why I had not considered doing any other kind of work,
why I felt I could not do any work at present,
how often and for how long I had the binge type relapses I mentioned, and
what I was doing with my time every day.

I felt overwhelmed with his very direct, one-sided questions, which more resembled an interrogation than an examination. Since virtually all questions were targeted at details re my previous work, ability or inability to work, what I was doing and my benefit receipt, rather than relating to any aspects of my existing health issues, I felt pressured to reply in a defensive manner, explaining and justifying myself.

So I explained that I had received the invalid’s benefit since mid 2008, and that this was due to needing longer term treatment for addressing my alcohol dependency, bouts of depression, xxxxxxxx xxxxxxx disorder (XXX) and other related issues. I informed him that I had prior to that been on the sickness benefit since 2006, but that my doctor and Work and Income had agreed to put me on the invalid’s benefit, because my ill health and treatment were expected to take an extensive time.

I referred to my failed attempt to cope with a very stressful job I had started in operations in the xxxxxxx industry right after moving back from Xxxxxxxxx in late 2005. I informed him that the last longer term job I had prior to that ended in April 2003. Also did I mention my worsening ill health and that I had other serious difficulties back in Xxxxxxx then, which led to me suffering severe depression and worsening alcoholism, aggravated by long-term unemployment and social degradation. I made clear that I had returned to New Zealand for the reason of attempting a return to work and a better life here.

I mentioned that I broke down under unbearable stress, during severe depression and relapses on alcohol in Xxxxxxx 2006, which resulted in me being unable to cope and continue with my work, ending up in a severe crisis. I stated that I suffered from alcohol dependency, depression and XXX.

Dr Xxxxxxx appeared to be little impressed, stern, indifferent, and not sympathetic. He persisted with questions like why I felt I could not cope with the work. So I said that my former clerical work in xxxxxx processing was extremely stressful, due to high deadline-, output-performance- and other pressures.

When asked whether I had considered doing other, less stressful work, I informed him of attempts to start temporary jobs in late 2007 and in February 2008, but due to not being able to cope, I had suffered further bad relapses on alcohol, forcing me to immediately terminate employment again. I mentioned that I had considered doing some voluntary part time work for a few hours a week, but as my treatment progressed slowly, and as I also had great difficulty dealing with many other pressing problems at that time, I was not able to consider returning to work for the foreseeable future.

It was nevertheless my goal to achieve lasting abstinence from alcohol, and given the experienced financial problems I would rather be working, I said. It was my intention to return to work at some time in the future, but due to my ill health and other problems, this was not possible now, I added.

Asked re what I was doing with my time every day, I stated, that due to my poor health conditions there was a limit to what I could do and cope with during the day. I’d spend most of time at home, partly doing xxxxxxx xxxxxx, tidying up and keeping xxxxx on things, which was the result of my insufficiently treated XXX. I would also spend some time reading, writing and doing a bit of online studies and correspondence, I mentioned. At times I would go for walks, and I was working on getting some form of a lifestyle balance back, I commented.

I would regularly see a counsellor and focus on my recovery, while I tried to address and manage other pressing matters, I said. The struggle I had with major problems relating to my accommodation, that I had to move a couple of times, and that I had suffered a number of serious upsets and setbacks in my recovery, I mentioned. Resulting recurrent relapses had repeatedly set me back, I said.

Dr Xxxxxxx asked how often I had relapsed recently, so I mentioned three to four times over the previous months. Asked how long they lasted, I told him that they usually lasted 4 days, led to serious physical and mental deterioration, which was followed with long periods of withdrawal. When also asked about when I suffered the last one, I said that this happened about a week and a half before.

Increasingly concerned about his endless questions, almost exclusively revolving around work and my hypothetical ability to work, I told Dr Xxxxxxx, that due to my ongoing poor health, repeated bouts of depression, inability to deal with stressors, recent relapses and my psychological instability, I simply could not look at working in the foreseeable future. I’d need some time to recover, I made clear to him.

I mentioned that I continued to get treatment at XXXX Xxxx in Hxxxxxxxx, where I was seeing a counsellor fortnightly, after having for a longer period consulted one there weekly. My brief treatment for XXX at St Luke’s Community Mental Health Centre in 200x and my attempt to access other treatment in the meantime I did in between is endless questions re work make a mention of.

After about 8 minutes of incessant questioning, Dr Xxxxxx asked me to briefly lie down on a clinical bed. He examined my breathing, heart beat and blood pressure. While he afterwards made a few more notes, I presented him the set of documents from counsellors and specialists at XXXX Xxxx, St Luke’s Community Mental Health Centre, Xxxxx House and some other documents, which gave evidence of my diagnosed health issues and treatment by mental health and addiction specialists.

I presented Dr Xxxxxxx the following documents:
1. letter from V. Bxxxxx, intern psychologist, XXX treatment at St Lukes C.M.H.C, xx.xx.2007;
2. letter from Cxxxx Hxxxxxxxx, Clinician, XXXX Xxxx, dated xx.06.2008;
3. psychiatric assessment from XXXX psychiatrist Dr Jxxx Bxxxxx at XXXX, dated 27.08.2008;
4. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.04.2009;
5. letter from T. Pxxxx, psychotherapist, ‘Xxxxx House Psychotherapy Service’, 28.09.2009;
6. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 29.09.2009;
7. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.12.2009 ( likely but unsure);
8. letter from Axx Mxxxxxxx Xxx, Xxxxx House Psychotherapy Service, dated 14.01.2010;
9. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 15.01.2010;
10. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 16.06.2010 (likely but unsure);
11. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 06.05.2010.

Dr Xxxxxxx only glanced at two to three of the letters I presented, and then told me, that he would not need them, as I had already told him enough. I offered him to take photo copies of them, so he would have them to look at properly later, but he refused, seeing no need for that. He mentioned he’d get a report from my own doctor and told me that he would send his report to Work and Income. After this 12 minute encounter he ushered me out of his consultation room without any proper farewell.

My impression of this supposed examination was not a good one. I later that day also saw my own GP, Dr Xxxxx Txxxxxx, for a newly required Disability Certificate for Work and Income. He did upon my mention of the examination by Dr Xxxxxxx and to my astonishment confide to me, that his colleague, Dr Xxxx (in the same surgery) previously had very negative experiences with Dr Xxxxxxx, and that staff at their Medical Centre didn’t get on well with him, whenever they had to deal with him.

Through requests under the Official Information and Privacy Acts I would later establish that the following information was sent to Dr Xxxxxxx – by Work and Income and also my own GP:

1. The Medical Certificate completed by Dr Txxxxxxx, dated 22.04.2010 (by Work and Income);
2. the designated doctor referral with assessment and report forms, from case manager Rxxx Gxxxxxx, Work and Income Xxxxxxxx (sent by facsimile, 09.06.2010);
3. a short “host doctor report” by email letter from my own GP, Dr Txxxxxxx, from 18.06.2010;
4. the first issued (partly mistakes containing) psychiatric assessment by Dr Jxxx Bxxxx, psychiatrist, XXXX Cxxxxxx, dated 27.08.2008 (1 or 2 copies) (attached to 3.).

Once back home after the examination by Dr Xxxxxxx and my consultation with Dr Txxxxxx, I immediately made detailed notes about the peculiar medical examination and also Dr Txxxxxx’s comments, because I had a persistent feeling of concern about how it had been conducted.

 
 

B) Summary of diagnosis, assessment and decision by Dr Dxxxx Xxxxxxx:

 

1) In the manually completed ‘Designated Doctor Report’ Dr Dxxxx Xxxxxxx of the Xxxxxxxx Health Centre did on 17 and 30 June 2010 state the following:

Under the heading ‘Diagnosis’ and in reply to question 1 he stated as “main clinical conditions or disabilities impacting on the person’s ability to work”: “Alcohol Binge Drinker”

In reply to question 2 he commented re “what other conditions are impacting on the person’s ability to work?”: “Motivation lacking”

Re question 3 he ticked “No” in reply to whether “the impact of the condition on the person’s ability to work is likely to fluctuate or be intermittent”. NO further details are provided to question 4 open for comments as “additional diagnosis”.

Under the heading ‘Current treatment or intervention’ Dr Dxxxx Xxxxxx had ticked “No” for the question “is the person under the care of a specialist(s)?”

Nothing was noted in reply to question 6 asking “what treatment or intervention(s) is the person currently receiving?”

Under the heading ‘Impact on ability to work’ Dr Xxxxxxx has rightly ticked “No” at question 7 (re total blindness). He ticked “Yes” to question 8 and “No” to questions 9, 10 and 11. According to Dr Xxxxxxx I as the patient or client should according to question 13 be re-assessed on 17 September 2010.

To question 14 asking “how do the conditions outlined in questions 1-6 impact on the person’s ability to work?” Dr Xxxxxxx noted down: “Unreliable” and “lacks motivation”.

He did claim under question 15 that I would “now” be able to engage in work planning, training, light/selected duties and part-time work up to 30 hours per week.

As ‘Factors which impact on ability to work’ he has only ticked “substance abuse” and “motivation”.

Under ‘Planning for employment’ he replied to question 17. (“which factors have the most significant impact on the person’s ability to work?”): “Alcohol” and “motivation”.

Re question 19. he suggested that “counselling” and “planning” could address these factors mentioned above.

In question 20. he has marked it as “likely” that I could commence work in the coming 12 months.

The report was finally formally completed and signed 30 June 2010.

 

2) In a separate, summarising and typed letter – headed with ‘WINZ – Designated Doctor Report’ and dated 30 June 2010 Dr Xxxxxxx stated “Re: Mr Xxxxxxx Xxxxxxx”:

“17 Jun 2010
IB Review.
GP Dr Xxxxx Txxxxxxx, Xxxxxxxxxx Bay
Receives IB now – past two years, SB two years before this.
Last consistent work 2003. Seven years on benefit. Some years in Xxxxxxxxx on unemployment..
Prev work – xxxxxxx fxxxxxxxxx.
Problems: Alcohol binge drinking. Occas relapses lasting 3-4 days. Attends XXXX regularly – prev weekly, now every two weeks..
Letters from XXXX veriying this sighted.
Lives alone.
Says would rather work – when under stress risk of alcohol relapse.
Feels that too much to deal with now.
PB 120/70. overweight. cvs, rs, abdo nad.
Impression: 5x yrs, minimal work past 7yrs. Seems little motivation to work.

30 Jun 2010-10-17 HDR – Personality disorder – XXX, anger issues, episodic depression and alcohol misuse. Report from XXXX psychiatrist – DR Jxxx Bxxxx.
Recommended disulfiram or naltrexone for his alhol abuse – this does not seem to have been tried. It was noted that he had no signs of self neglect, good rapport, well presented, mood appropriate and no thought disorder.

Impression: A 5xyr man who has hardly worked since 40 yrs age. He is a binge drinker, has some personality issues and seems to lack any motivation to work. There are suggested treatments that do not seem to have been tried. He presents well.

Recommendation: He is not eligible for Invalids Benefit. He can certainly work at least 20hrs per week and every effort should be made to get him off benefits and into work. SB to continue meantime.


Yours sincerely …”

 

C) Diagnosis by my own GP, Dr Xxxxx Txxxxxxx, the Xxxxxxxx Bay Medical Centre:

In contrast the diagnosis and assessment by Dr Xxxxx Txxxxxx was the following:

1. According to the new type of Work and Income Medical Certificate dated 22 April 2010:

When is the person likely to be capable of:
Work planning Over 6 Months
Training Over 6 Months
Light/selected duties Over 6 Months
Part time work (up to 30 hrs/wk) Over 6 Months
Full time work (over 30 hrs/wk) Over 6 Months

Is the person totally blind? No
Unable to work 30 hours per week or more? Yes
Unable to work 15 hours per week or more? Yes
Condition expected to last at lest 2 years? Yes
Life expectance less than 2 years?

Unable to work from 26-04-2010
When should the person’s entitlement to
Benefit next be assessed? 2 years

2. According to the Disability Certificate dated 17 June 2010 (completed on the same day as Dr Xxxxxxx’s assessment!):

Under ‘Disability Details’ Dr Txxxxxx ticked “Yes” at question 3, where he was asked: “Does the person have a disability that meets the Disability Allowance criteria?”

At question 4. it asks: “What is the nature of the person’s disability?”

Dr Txxxxxx did tick ‘Depression (161)’, ‘other cardio- vascular (132)’, ‘other metabolic or endocrine disorders (151)’, ‘Alcohol (170)’.

To question 5 he indicated the expected duration of the disability as being “permanent”.

Re ‘Items / services / treatments / pharmaceuticals’ Dr Txxxxxx mentioned “prescriptions, water filters, transport, dietary supplements, garden costs, phone” that represent costs that arise from the existing health conditions and their necessary treatment.

3. The details in the above Medical Certificate and Disability Certificate were very much in line with the previous Medical Certificates issued by Dr. Txxxxxx on xx June 2008, 23 April 2008, 23 January 2008 and 03 February 2006. A Medical Certificate dated 29 October 2007 did at that time suggest that an improvement in my situation was taking place, but this prospect was short-lived and dashed soon afterwards, when an attempt by me to return to some kind of work (due to great financial difficulties) turned out to be a rushed and disastrous experience.

Medical Certificates based on diagnosis and assessments by Dr Xxxxx Txxxxxx continued to be consistent to this date, which is in clear contrast to the one off very out of line assessment by Dr Dxxxx Xxxxxxx as Work and Income commissioned designated doctor from 17.06.2010.

Indeed Dr Xxxxx Txxxxxx has shown an overwhelming level and degree of consistency in his reports on diagnosis and general health conditions and disabilities. They present a totally different, but due to the number, length of involvement, in-depth understanding and professional competency he possesses, a more convincing picture of my health, than the unprofessional, flawed, incompetent, unfounded, biased one delivered by Dr Dxxx Xxxxxxx.

 

D) Conclusions drawn and decision made by Regional Health Advisor Team at Auckland Regional Office of MSD – solely based on wrong report by Dr Xxxxxxx:

 

Mr Axxxx Axxxxxx as Regional Health Advisor for Work and Income (Auckland Regional Office) had on 08 June 2010 by email (addressed to “OHA_Client_Query (MSD)” – CC Jxxxxx Nxxxxxx) presented the selection of GPs that I was allowed to choose from. It included Dr Dxxxx Xxxxxxx.

In an email from 12 July 2010 (08:09 am), sent to “OHA_Client_Query (MSD)”, Jxxxxxxxx Axxx (for the R.H.A.) does present the following ‘Diagnosis’ about me to other staff:

“Diagnosis: Personality disorder, XXX anger issues episodic depression and alcohol misuse”

“RHA recommends: DD recommends transition to Sickness Benefit with engagement to look for work DD states client is not eligible for Invalids Benefit he con certainly work at least 20 hours per week and every effort should be made to get hm off benefits and into work SB to continue meantime. Engagement with ECV to look at work”


“Assessed Designated Doctors report by Dr Dxxxx Xxxxxxx on 30 June 2010
Medical certificate is consistent with Sickness Benefit
Client does not meet medical eligibility for Invalids Benefit”


Hence the Regional Health Advisor and his staff did from the time of receipt of Dr Xxxxxxx’s report ignore ALL medical certificates, reports and assessments from my own regular doctor for over 4 and a half years, which were based on his own diagnosis and supported by various other specialist reports and assessments that he had relied on.

 

E) Consequences of Dr Xxxxxxx’s assessment and report, and the decisions made by Work and Income – on my counselling treatment, health and general well-being:

The assessment, report and recommendations by Dr Dxxxx Xxxxxxx were fully accepted and adopted by the Regional Health Advisor and other staff of Work and Income as supposedly reliable and competent. Within days I was sent letters for appointments for discussing and preparing for training, a return to work and so forth. This put me under immense psychological stress and pressure, led to a severe crisis with major upsets, and it later lead also to the breakdown in my counselling treatment. There were moments where I displayed suicidal ideations, which has been well recorded.

Instead of being enabled to focus on needed ongoing treatment, I was forced to attend to serious challenges and to defend my rights and basic survival as a sick and disabled person. It forced me to take formal steps to seek and prepare for an appeal under section 53A of the Social Security Act 1964, to address the recommendations made by Dr Xxxxxxx and decisions made by Work and Income staff. Dr Xxxxxxx’s assessment, report and recommendations were clearly not evidence based, were unprofessional, unfair and unreasonable and showed incompetence and disregard. I could no longer focus on further treatment. I had to spend all my time on legal study and paperwork.

It took months to prepare myself for a hearing before a Medical Appeal Board appeal. That was conducted by a panel, which again consisted of 3 general practitioners without appropriate qualifications or expertise in assessing persons with complex mental health illness and addiction conditions. Although the Medical Appeal Board did reach a slightly more acceptable decision than Dr Xxxxxxx, the panel did to some degree still rely on his findings and upheld them. In summary their report and decision turned out to be also partly unfounded, lacking evidence, objectivity and competent evaluation. It turned out to also contain apparent biased, unreasonable recommendations.

Consequently I was taken off the invalid’s benefit and transferred onto the sickness benefit from xx January 2011, leading to yet worse financial problems and increased pressures, as I now had to present new medical certificates from my doctor every 90 days and struggled to survive week to week.

The decision by the Medical Appeal Board and Work and Income forced me to find the assistance of a lawyer, to apply for legal aid and then file a Notice of Proceedings with a Statement of Claim and Affidavit before the High Court in August 2011. All that required huge, stressful efforts and time. This was followed by intensive, lengthy, distressing, arduous settlement negotiations to resolve particular issues and achieve a basic, acceptable outcome (Note: Part of original sentence deleted for legal reasons!). The legal case could likely have been pursued further, but it was eventually due to my radically worsening health, that I was weeks ago forced to agree to a minimum kind of settlement.

Concurrently I had already from April 2009 been struggling to deal with a few minor legal issues that had resulted from a neighbourhood dispute (xx April 2009), a charge laid due to alleged “disorderly behaviour” (at a xxxxxxx xxxxx on xx Nov. 2009) and another charge for alleged “offensive behaviour” (17 May 2010), while a single minor conviction would have resulted in a loss of a so-called “clean slate” I had since 200x been entitled to under the ‘Criminal Records (Clean Slate) Act 2004. Just one minor conviction would have made it impossible for me to find employment for up to 7 years, as some previous minor (alcohol related) convictions from the mid 1980s would have been “re-activated”. I spent most of my time fighting for legal aid that was initially denied, for justice and with huge stress and the help of lawyers managed to have all charges dropped or withdrawn one by one by mid 2011.

The fallout from Dr Xxxxxxx’s decision – and numerous other developments (e.g. difficulties with some boarders, whom I had due to financial pressures have to share my flat with) – severely and negatively impacted on my ability to concentrate on any urgently needed treatment of my illnesses. Instead I suffered irreparable damage, being disabled to a degree that I am struggling to do simple daily chores at my home. My recovery was severely disrupted since mid 2010, and I made no progress in addressing health issues. I would by now have recovered better and possibly would have been able to look at a return to some form of training or employment, had it not been for the irresponsible actions by Dr Dxxxx Xxxxxxx, which I will address in detail in the following chapters of this letter.

 

Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ identified:

 

A: Right 1 – Right to be treated with respect
(1) Every consumer has the right to be treated with respect.

Dr Dxxxx Xxxxxxx displayed a clear bias against me as referred client, and apparently also towards the medical professionals at the Xxxxxxxx Bay Medical Centre:

The conduct and manner Dr Xxxxxxx displayed during the medical examination for a second opinion, that was sought by Work and Income, was unprofessional, incompetent, not objective, biased, lacked respect, and was unfairly focussed almost exclusively on questions about work, past problems with work, why I had reservations to resume work, the type of benefits I received, how long I had been on a benefit, whether I had considered part time work and similar. Only little attention was given towards questions relating to my actual health issues. I was given very little time and opportunity to try and explain my situation and health issues.

Presented letters from specialists were only partly and too briefly glanced at, and offered photo-copies were declined with the reason that they were “not needed”.

When I later on 17 June 2010 met with my own trusted GP, Dr Xxxxx Txxxxxxx, he did to my surprise confide to me that his colleague Dr Xxxx, who is working at the same Medical Centre in Xxxxxxxx Bay, had very negative experiences with Dr Xxxxxxx. Dr Xxxxxxx at the Xxxxxxxx Health Centre had repeatedly showed a lack of co-operation and respect when dealing with matters that involved both clinics. He was described by some staff as arrogant. Hence I must conclude that due to past differences Dr Xxxxxxx held a biased and negative view towards doctors and staff at the Xxxxxxxxxx Bay Medical Centre, including Dr Txxxxxx.

Given that only about 10 to 12 minutes were spent with me during the “examination”, I feel that Dr Xxxxxxx was not at all sincerely interested in my problems, concerns and well-being. Even Work and Income do accept and expect that a proper medical examination and assessment should take about 30 to 45 minutes to be conducted and completed. This was certainly not the case in my examination by Dr Dxxxx Xxxxxxx. My impression was (and is) that the examination was conducted by Dr Xxxxxxx with the least, rushed efforts and a prejudicial mindset, which influenced his poor diagnosis and recommendations.

B: Right 3 – Right to dignity and independence

Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.

The already mentioned “bias” that is apparent from certain notes made in the clinical file about me also represents a clear breach of “right 3”, in that it is a clear breach of my dignity.

There were extremely important aspects of my health issues, conditions and disabilities that Dr Xxxxxxx did not sufficiently enquire about – nor in any other way show any interest in. His targeted questioning was pre-occupied with aspects of work and benefit dependence. He ignored my references to serious problems I was dealing with at the time, and he did not allow me to further explain details re this, rather pressing on with his prepared set of one-sided questions and only allowing minimal comments by me. He did not appear to attempt to properly understand my concerns re my health and other problems. This inevitably led to him not understanding or appreciating what did actually happen to me over the previous two years, and what hampered my recovery from alcohol addiction, depression, XXX and related issues.

During the “examination”, and through the way he conducted it in a very questionable, inadmissible manner; it became apparent that he was not that much interested in my answers and comments. He already appeared to have made up his mind from the beginning.

Yet it was Dr Xxxxxxx’s responsibility to offer due respect and give credit, to accept my right to dignity and to consider the information I attempted to provide to him in the form of medical and treatment related documents, in addition to what I attempted to communicate during his “interrogation style” interview focused on work, and only eventually a few health issues.

Last not least Dr Xxxxxxx should have informed me about the way he would conduct the examination, of the right I had as the person to be assessed (e.g. to withdraw my consent and to object to the way parts of all of the examination and interview were being conducted) and about privacy concerns, e.g. re a host doctor report he intended to request. He clearly did not.

C: Right 4 – Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

There have been breaches of “right 4”, as the seriousness of inaccuracies and mistakes made by Dr Dxxxx Xxxxxxx in his assessment and report display a fundamental failure to uphold reasonable and expected standards of diligence, care and skill.

While examining me and completing his assessment, Dr Xxxxxxx failed to acknowledge and consider the very relevant and important information, that proved to be essential to make a true evaluation of aspects of my already well documented ill health, the various conditions, disabilities and my problematic general circumstances and situation, that had and were seriously impacting on my ability to take on and perform any work in open employment.

The primary information Dr Xxxxxxx appears to have used for making his unfounded diagnosis and biased, unprofessional assessment was apparently his personal interpretation of my answers to his very narrow selection of questions – targeted almost exclusively at facts re my long benefit history, past work, the hypothetical ability for me to perhaps do any alternative work and my personal position and concerns regarding a resumption of work. He only offered a short glance at just 2 or 3 letters from a wide range of presented, highly relevant documents; that I had received from certain treatment and assessment specialists. Apart from that Dr Xxxxxxx simply checked and measured my breathing, heart-beat and blood pressure.

A very brief, summarised host doctor report from my GP, Dr Xxxxx Txxxxxx, which was neither requested nor returned in the required form, was apparently not given that much credit and weight, same as the more comprehensive contents of an attached assessment by Dr Jxxx Bxxxx, psychiatrist at XXXX (dated 27.08.2008).

What is of particular concern, and which has already been raised as part of a separate complaint by me to the Health and Disability Commissioner (see reference C11HDCxxxxx for a complaint about XXXX counsellors, filed 08 and 09 August 2011), the host doctor report by my own GP did regrettably contain a serious mistake. It should never have been included in such a medical report, but the mention of an alleged “assault” that I committed, is likely to have also influenced the decision making by Dr Xxxxxxx, causing him to adopt a rather negative view of myself, and thus applying a degree of negative bias to the assessment.

The fact that Dr Xxxxxxx did even choose to ignore the fact that I had for some time been receiving specialist treatment (counselling, group support, XXX treatment at St Luke’s Community Mental Health Centre), and that I was still engaged in ongoing counselling with XXXX Xxxx in Hxxxxxxx, does strongly suggest selective judgment.

In his Designated Doctor Report he did state that I was not under the care of a specialist(s)! This can be seen from his replies to questions 5 and 6 on the manually completed assessment and report form for Work and Income.

That is clearly completely wrong, because I have been in ongoing treatment with XXXX (Xxxxxxxxx Alcohol and Drug Services) AND other services since early 2006.

I received counselling, group therapy and other support from clinicians, practitioners and facilitators at XXXX since February 2006. XXX treatment was offered to me in form of a briefly available intervention treatment based on cognitive behavioural therapy – as well as attempted xxxxxxxx treatment – at St Luke’s C.M.H.C. during 2007. Other attempts were made to access treatment elsewhere, regrettably without success, also with insufficient funding being offered by Work and Income, to get further treatment for my illnesses and conditions. It is astonishing that Dr Xxxxxxx failed to acknowledge this, even though documentary evidence was offered and delivered. He chose not to view and accept it, which is unprofessional and unethical.

Then Dr Xxxxxxx also did make a very incompetent and wrong diagnosis by confusing cause and result in questions 1 and 2 on that same manually filled out Work and Income designated doctor report form. All he writes is “Alcohol Binge Drinker”, which is hardly a condition as such, but rather a symptom of the condition of alcohol dependency. The same applies to his comment of “Motivation lacking”. He did not bother putting in the required READ codes and in question 3 ignored the fact that likely re-occurring relapses, bouts of depression and their consequences would actually mean that the impact of my conditions would certainly be “fluctuating” and/or be “intermittent” for certain longer periods.

Equally Dr Xxxxxxx gave the wrong answers to questions 9 and 10 on the form, as all evidence presented to him should have suggested that I was not able to work for more than 15 hours a week. Also are conditions like XXX and alcohol dependence permanent conditions, the latter of course being possible to “treat” in such a way to achieve lasting abstinence. The information provided to Dr Xxxxxxx did not at all support his presumptions that lasting, longer term sobriety and abstinence were likely to be achievable within a short to medium period.

Due to Dr Xxxxxxx having failed to come to the correct diagnosis and assessment of my medical problems, he naturally also incorrectly answered to questions 14, 15, 16, 17, 19 and 20. He ignored the conditions of XXX, depression and hypothyroidism, as if they did not exist.

The report completed by Dr Xxxxxxx is in stark contrast to the historic and even following medical assessments by my own doctor, which have shown a high degree of consistency and are supported by assessments; sundry reports and letters form other specialist medical practitioners and health professionals. It should have been the duty of Dr Xxxxxxx to apply diligence, care and skill and thus give the other information the due credit and consideration.

The clear inability of Dr Xxxxxxx to make a correct diagnosis is evidence that he as a registered general practitioner with specialist knowledge in obstetrics and gynaecology was not sufficiently and appropriately qualified to conduct the assessment of a client with my particular complex medical conditions. My particular and complex illnesses include alcohol dependence (commonly referred to as “alcoholism”), which has by XXXX staff repeatedly been assessed and acknowledged as being at a high to severe level. Also do I suffer from depression and the disabling disorder XXX. It requires a person with sufficient expertise in mental health (psychiatry, psychology or psychotherapy) and also sufficient competency in the assessment of addiction illnesses to conduct an expert assessment of a person like me.

In view of this, Dr Xxxxxxx should clearly have acknowledged and accepted his professional limitations and refrained from conducting the assessment and examination sought by Work and Income. As he did not do this, he clearly acted outside his scope of practice, which I consider to be a serious matter.

As Dr Xxxxxxx also failed to inform my own usual doctor about the outcome and report of his assessment, he did not provide any assistance to ensure transparency and continuity in treatment and support for my recovery.

Consequently professional, ethical and legal standards were not upheld by Dr Xxxxxxx during and after the examination and assessment conducted on me on 17 June 2010 -and completed by way of a final report on 30 June that same year.

D: Right 5 – Right to effective communication
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

There has been a breach of “right 5” under the Code. I was as the assessed person given insufficient chance to exercise the right to communicate in an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

Dr Xxxxxxx did from the start of the examination NOT inform me properly about the way he intended to conduct it. No mention was ever made of my right to object to him conducting the assessment, nor about my right to withdraw from it, once I started to feel uncomfortable, suspicious and no longer had any trust in the process applied by him. I was also not consulted about any privacy questions that should have been relevant to discuss.

His “examination” did resemble a kind of “interrogation” rather than a respectful, fair, balanced and objective interview. His focus was almost solely on getting answers about past work I did, how long I had received the types of benefits I had been on, why I did not continue with started work in 2005/2006, why I could not consider alternative work, what I was doing with my own time while not working and why I felt I could not return to any kind of work for a longer time.

I was not given sufficient opportunity and time to explain matters of my concern about my health issues, and instead I was being rushed through a forceful and one-sided interview, so that there appeared to be only a secondary concern and emphasis on matters re my health.

The supposed “examination” was in the end not a proper examination at all, and it appeared, that the result was pre-determined by his personal impression of me, and the restricted range of questions and possible answers I could give to them. I left the examination with no trust in it.

Only later would I learn through an Official Information Act request, that the host doctor report sent by Dr Txxxxxx to Dr Dxxxx Xxxxxxx also contained reference to an “assault” that I had allegedly committed and was trying to defend with legal aid before the courts. I had never committed, nor been charged for an assault, and it should in any case have been expected that Dr Xxxxxxx would show professional conduct in not paying too much attention to such non medical information, which instead appears to have led to him adopting a biased view of me. I was certainly given NO chance to respond to any of the information sent to him by my doctor.

E: Right 6 – Right to be fully informed
(1) Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including –
(c) advice of the estimated time within which the services will be provided; and
(e) any other information required by legal, professional, ethical, and other relevant standards; and
(g) the results of procedures.

Dr Xxxxxxx is also responsible for a breach of “right 6”, as he did not fully inform me about:

1. The way he was going to conduct the examination and assessment;
2. I was never informed about any legal rights that I had to object to his approach, his qualifications and possible lack of expertise, and to withdraw from the examination;
3. he never consulted me about the assessment/report he was going to prepare and what recommendations he would make to Work and Income, so I was given no input at all;
4. I was not asked about what any steps or measures that could be considered to assist me to plan and prepare for a return to work, again I had no input at all to that part of the exam;
5. Dr Xxxxxxx did not discuss with me, nor did he indicate, that he was also supposed to send a copy of his final assessment and report to my own doctor (see expectations on pages 13 and 24 in the ‘Guide for Designated Doctors’ from Work and Income – and points 16 and 17 in the statement issued by the Medical Council of New Zealand: ‘Non-treating doctors performing medical assessments of patients for third parties’).

As I already explained and elaborated on most of these points under chapter “D:” and other parts in this complaint, there is no need to deliberate on this too much further, but it is clear, that Dr Xxxxxxx did not at all make any reasonable effort to inform me about the aspects of the examination, assessment and processes he would follow during its course and afterwards.

 
 

Breaches of the Code of Ethics of the New Zealand Medical Profession (by the NZMA):

 

I Principle 1 – Consider the health and well being of the patient to be your first priority.

Even though the relationship scenario between Dr Xxxxxxx, as the Work and Income commissioned assessor and me as the assessed person did not represent the usual practitioner – patient relationship, Dr Xxxxxxx did according to the ‘Code of Ethics of the New Zealand Medical Profession’ and various legal requirements and other standards have to give proper, sincere considerations for ensuring the health and well being of myself.

Sadly this was not what he did, because due to the already mentioned, and also in following parts to be stated failures; he acted irresponsibly and put my well being and safety at grave risk by not giving due consideration to relevant health information and not completing an objective, evidence based and reasonable report. He allowed bias to influence his decisions.

By making a flawed, inappropriate and misleading assessment, and by passing on a report to Work and Income, that ignored factual medical information and did not seek any proper input from me as the assessed person, he put at risk my health and well being. Staffs at Work and Income were consequently caused to rely on incorrect medical information and to make decisions based on this, which led to very serious, harmful consequences that I suffered.

II Principle 2 – Respect the rights, autonomy and freedom of choice of the patient.

Due to the way the “examination” and “assessment” was conducted, with me being “targeted” with an array of one-sided questions, primarily asking me about past benefit receipt, past work, problems re maintaining work, questions about why I did not continue with work, what my objections were to resuming work, and only in the end placing rather secondary emphasis on what my actual health problems were, what my disabilities were, and what incapacitated me from coping with work, let alone very basic day to day chores and challenges, Dr Xxxxxxx did not sufficiently respect any of my rights, autonomy and freedom. He certainly ignored my limited input and even discouraged it. He did not properly stress any of my mental health conditions in his report, and dismissed my serious alcohol addiction as mere “binge drinking”. That is not conduct that meets the standard expected under principle 2 of the Code.

III Principle 4 – Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.

One should have expected Dr Xxxxxxx, as a qualified general practitioner, with a specialisation in obstetrics and gynaecology, registered under the vocational scope with the Medical Council, to be aware of, mindful of and responsible enough of the requirement to perform his tasks and responsibilities with integrity, compassion and respect for my dignity.

As already mentioned under “II” above, he failed to do so, and he conducted an assessment that he himself was not really sufficiently qualified and experienced enough to perform. It would have required a medical practitioner experienced with appropriate in-depth understanding of mental health conditions and with sufficient expert ability and knowledge of assessing persons with addiction problems, to properly and competently assess me in an examination of that type. Indeed Dr Xxxxxxx should have declined making the assessment, as he was not suitably qualified for doing it. At no time did he show any compassion towards me.

IV Principle 8 – Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.

Regrettably Dr Xxxxxxx did his profession – and the principles persons working in it are supposed to follow – a great and serious disservice, by conducting an assessment of a person he should with his markedly different qualifications and expertise not have assessed at all. He also did not follow numerous guidelines set under the Code, statutory and regulatory provisions. He did treat me disrespectfully as a client/patient (to be assessed) and let down his profession by not abiding to values and principles that should be maintained at all times.

I must and can only refer to what has already been stated in regards to breaches of the Code of Health and Disability Services Consumers’ Rights’, and of other standards, to simply emphasise the failings by Dr Xxxxxxx.

V Principle 9 – Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.

By accepting a referral from Work and Income to perform and conduct an examination and assessment of a person with established mental health issues and clear addiction conditions, and by proceeding with it, despite of lacking the appropriate, sufficient qualifications and in-depth knowledge and understanding in the fields of mental health, psychology, psychiatry and addiction diagnosis and treatment, Dr Xxxxxxx did as a general practitioner with specialisation in obstetrics and gynaecology clearly act outside his vocational scope of practice.

The result of his assessment and his report clearly show that he lacked a solid enough understanding and insight in those areas of medical practice. He allowed himself to be misled by personal misinterpretation and apparent bias, and he made a diagnosis and took further conclusions, which were totally wrong, mixing cause and result, falsely confusing symptoms and conditions, merely noting down “personality disorders” and a “lack of motivation”, etc..

That is not professional conduct to a standard that should be expected of Dr Xxxxxxx, and he should instead have realised his limitations and refrained from conducting the examination.

VI Principle 12 – Accept a responsibility for maintaining the standards of the profession.

Dr Xxxxxxx has not lived up to his responsibility and the standards of his profession. The only logical step for him would be to in hindsight accept his failures, to apologise for his wrong actions and conduct, and to accept full responsibility for what happened in consequence.

That is indeed what I expect from Dr Xxxxxxx now, as he has thus far not lived up to any level of responsibility for misdiagnosis, professional misconduct, biased behaviour, breaches of rules, guidelines, laws and regulations, and for causing a very serious amount of damage to my health and general well-being, last not least also severely upsetting my prospects for a successful recovery, which has led to a set-back of over two years, and resulting loss in income that I could have earned by now.

 
 

Under the ‘Health Practitioners Competence Assurance Act 2003’ Dr Xxxxxxx breached the following provisions:

 

8 Health practitioners must not practise outside scope of practice

(2) No health practitioner may perform a health service that forms part of a scope of practice of the profession in respect of which he or she is registered unless he or she —
(a) is permitted to perform that service by his or her scope of practice; and
(b) performs that service in accordance with any conditions stated in his or her scope of practice.

As a medical practitioner Dr Dxxxx Xxxxxxx has been and still is registered with the New Zealand Medical Council. He is a qualified Bachelor of Medicine and Bachelor of Surgery (MBChB, University of Auckland 1976) and also has a Diploma of the Royal College of Obstetricians and Gynaecologists from the Royal College of Obstetricians and Gynaecologists, England. He was a member of the Royal College of General Practitioners in the UK since 198x, and he has been a Fellow of the Royal New Zealand College of General Practitioners since 200x.

Dr Xxxxxxx’s qualifications clearly are in general practice and represent that of a traditional physician, with a specialisation in obstetrics and gynaecology. I appreciate he has a vocational scope of practice.

There is no evidence of Dr Xxxxxxx having any substantial, formal qualifications (i.e. post graduate) in the areas of psychiatry, psychology or in the areas of assessment and/or treatment of addiction.

As my illnesses, conditions and disabilities clearly primarily are alcohol dependency (“alcoholism”), depression and xxxxxxxxx xxxxxxxxxxx disorder (XXX) as an anxiety disorder, worsened by also diagnosed hypothyroidism; it appears that Dr Xxxxxxx did not have the required, appropriate professional qualifications and expertise to competently conduct a thorough examination and assessment of a person with my particular complex health issues and conditions.

By having accepted a referral from a Work and Income case manager to examine and assess me as a client with primarily mental health and addiction illnesses, and by proceeding with it, he appears to have acted outside of his scope covering registered general practice. As a well educated and qualified professional Dr Xxxxxxx should have realised and acted upon this conflict from the outset, and thus refused to accept examining and assessing me with my known complex medical background.

His actions put him in breach of the Health Practitioners Competence Assurance Act 2003, which is a serious matter, and which should prompt the New Zealand Medical Council to take necessary action. Only proper, evident and certified additional qualifications in mental health and addiction should allow a general practitioner to assess a person with a complex medical picture as the one I have.

 

Under the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx ignored following rules:

Rule 2 – Source of health information

Provided that Dr Dxxxx Xxxxxxx from the Xxxxxxxx Health Centre would, as an assessing medical practitioner acting for a third party, have been acting within his professional scope of practice, then he would likely have had the authority to lawfully collect health information from me for the purpose of the medical examination and following assessment that he was expected to complete.

That would certainly have been the case, had I given my approval of this and consented to it in full knowledge and awareness of my rights as a patient or client to be assessed. I agreed to provide certain information, but I was never asked whether I agreed to Dr Xxxxxxx seeking a host doctor report from my own GP. Instead Dr Xxxxxxx simply stated, that he would ask my doctor for that, without asking me for my position re this. As I wasn’t informed of my rights, I did feel to have no input.

In any case, Dr Xxxxxxx should according to rule 2 of the H.I.P.C. 1994 primarily have relied on the information that I provided him during the interrogative interview, and that I was willing to provide to him in the form of additional letters from counsellors, a psychiatrist, a psychologist and psychotherapist, who had been involved in my treatment and/or previous assessments.

Dr Xxxxxxx breached sub-rule (2) (a) of rule 2, because he did unreasonably assume that I would consent to a report from my GP to be requested and accessed. He did not make any appropriate effort to seek my consent. Matters re rule 3 (1) were never ever raised by Dr Xxxxxxx. It appears that sub-rules (2) (c) to (h) did not apply in that scenario, so there was no reason and justification for Dr Xxxxxxx to act in the manner he did, thereby ignoring my autonomy as a person being examined.

Rule 3 – Collection of health information from individual

Dr Xxxxxxx did at no time before, during or after the examination and his consequent assessment inform or consult me re questions covered by provisions under sub-rule (1) (e), (f) and (g). One should strictly also expect that he would have informed me of sub-rule (1) (a) to (c), but given the fact that I was aware what the examination was conducted for, that may not have been considered necessary.

The rushed, somewhat forceful way of interviewing by Dr Xxxxxxx did not give me any chance to consider raising any questions concerning privacy issues, same as I was limited in the scope I could have given answers to his specifically targeted questions I was confronted with.

Most certainly Dr Xxxxxxx breached sub-rule (2). Sub-rules (3) and (4) do not appear to apply to the particular examination scenario I was exposed to.

Rule 8 – Accuracy etc. of health information to be checked before use

By at least partly ignoring medical diagnosis- and related information that was contained in a medical certificate completed by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre, on 22 April 2010, by insufficiently considering information given in an assessment by XXXX psychiatrist, Dr Jxxx Bxxxx, dated 27.08.2008, by not taking reliable photo copies of further medical records in the form of letters from professional, registered alcohol and drug clinicians (“counsellors”), an intern psychologist from St Luke’s Community Mental Health Centre and a psychotherapist from Xxxxx House, Dr Xxxxxxx acted in serious neglect, not even attempting to ensure that the information that was made available AND offered to him, was correct and complete.

As already sufficiently explained, the interview conducted during the medical examination on 17 June 2010 consisted of almost exclusively questions about work, benefit status, ability and availability to resume work, my reservations to taking up work and only secondarily related to questions about my complex health conditions and disabilities. No attempt was made to establish my true health situation.

The assessment from XXXX psychiatrist Dr Bxxxx may have appeared to be insufficiently “current”, hence it should have been the duty of Dr Xxxxxxx to thoroughly examine and consider more current and relevant information, which were made available and offered in the form of the additional documents, as well as information that was communicated in the host doctor report from Dr Txxxxxx. It appears that Dr Xxxxxxx did at no time see a need to contact my own GP by telephone, to perhaps discuss particular details that he may have felt uncertain about. There is no record of a consultation.

By failing in ensuring currency, relevancy and accuracy of information, Dr Xxxxxxx relied on insufficient and wrong information, thus making an assessment and report, which actually exposed me to substantial harm, as later developments after the examination and presentation of his report show.

 

Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx breached the following sections:

5 Definition of minimum retention period
6 Health information to be kept for minimum retention period

Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx is also expected to keep ALL medical records relating to the examination for at least 10 Years (see sections 5 and 6 re of the Regulations re “minimum retention period”).

Dr Xxxxxxx has evidently failed to do this, as my recent applications under the Privacy Act 1993 (and the above mentioned ‘H.I.P.C. 1994’) revealed, only the manually completed designated doctor assessment and report form for Work and Income, and a request letter from him to my own GP (asking for a Host Doctor Report) were being kept in the form of document copies in his files. That at least is all that he presented to me as the only documents he had on file about me.

Dr Xxxxxxx had though been sent a summary host doctor report by email from my GP on 18 June 2010, which he should have kept on file, but this was not done. This was also not done in regards to “letters” from XXXX, my GP, Dr Txxxxxx, referred to in his report letter of 18 June 2010, which clearly includes the assessment by Dr Jxxx Bxxxx, psychiatrist for XXXX, which was at that time the only document my GP could according to records have had on file from XXXX. As there were two copies of that, one initial one with some mistakes, and another one that was partly corrected, it could be; that both copies were sent to Dr Xxxxxxx. According to Dr Xxxxxxx none of these were kept on his file.

Dr Xxxxxxx also failed to keep any record of his notes or transcripts that he must have made during the examination consultation and re phone calls made, or received in relation to the examination under section 44 of the Social Security Act 1964. There have been no copies kept of an email he received from Work and Income case manager Rxxx Gxxxxxx on 09 June 2010, or of any other correspondence.

I have a copy of the report dated 18 June 2010, which my doctor sent to Dr Xxxxxxx, and information contained in it clearly refers to letters from XXXX from 2008.

The fact that Dr Xxxxxxx has not kept all the mentioned documents, correspondence and records clearly puts him in breach of the Health (Retention of Health Information) Regulations 1996’.

As a member of the Medical Council of New Zealand, Dr Xxxxxxx should also have been familiar with the Council’s statement in its document ‘The maintenance and retention of patient records’ from August 2008. That statement with the recommendations and expectations of the Medical Council from its members, which includes sufficient references to the ‘Health (Rentention of Health Information) Regulations 1996’, appears to have been ignored, or at least not properly followed by Dr Xxxxxxx.

 

Other relevant issues to consider:

Requirements set by Work and Income and the Ministry of Social Development, particularly by way of the resource manual ‘Guide for Designated Doctors’ (2008 issue):

Since 2008 the Ministry of Social Development (MSD) has followed a new approach for appointing and working with designated doctors, who are almost exclusively general practitioners (GPs). ‘Health and Disability Coordinators’ closely liaise and cooperate with selected practitioners, themselves being overseen, instructed and mentored by the so-called Principal Health Advisor and Principal Disability Advisor employed by MSD since late 2007.

The Ministry relies on GPs as designated doctors for conducting examinations, reviews or reassessments under sections 54B (3) and 44 of the Social Security Act 1964.

Case Managers directly dealing with health affected clients also have direct contact with medical practitioners (mostly GPs but also specialists) when seeking clarifications re medical certificates and other medical documents about a client’s health conditions and disabilities, which may affect their ability to work and will determine what kind of benefit is appropriate.

In certain cases Regional Health Advisors (RHAs) and Regional Disability Advisors (RDAs) working at the Ministry’s and Work and Income’s Regional Offices actively work with GPs, discussing specific cases, and to some degree assisting in the areas of training and/or consultations between the Principal Health Advisor and practitioners.

Since 2008 the Ministry has conducted regular training sessions for medical practitioners (mostly GPs) accepted as designated doctors. These sessions were held all over the country, involved introductions, presentations, active scenario discussions and informal conversations (used for “bonding”) by MSD staff – like the Principal Health Advisor Dr David Bratt himself.

Dr David Bratt, a long term general practitioner from Wellington, has been implementing, managing and even himself conducting the “designated doctor training”, since he was appointed by the Ministry to his new position in 2007. He is well known for his very pronounced, firm view and position in regards to sick and disabled persons’ “work ability”.

Given my own experiences, what I learned through other affected persons and the media, there appears to be a justified reason to be very concerned about the degree to which some medical practitioners may possibly be influenced in their supposedly “independent” decision-making, by the very training they receive as designated doctors from the Ministry.

Some training and related presentation material that I obtained under the Official Information Act 1982, by way of online research and through other channels give reason to suggest that more scrutiny and caution should be applied in regards to the content and applied approach provided by the Ministry for this training, which may under certain circumstances result in biased perception and even conduct by medical practitioners exposed to it.

In any case Dr Dxxxx Xxxxxxx would at least have been expected by the Ministry to act and adhere to standard and basic expectations, requirements and guidelines set out in a so-called ‘Guide for Designated Doctors’ (see attached copy from 2008), which is the main resource manual published by the Ministry of Social Development for designated doctors conducting examinations and completing a designated doctor assessment and report form.

Dr Xxxxxxx was expected to do the following during and after the examination he conducted on me on 17 June 2010:

1. Show respect for me and treat me fairly as a patient to be examined and assessed for ‘Work and Income’ as a third party (belonging to the Ministry of Social Development);
2. give competent, professional, objective, fair and reasonable consideration to any medical information that was or appeared relevant to the examination (incl. client comments; letters, assessments, other information from other medical professionals and specialists involved in my treatment and support); see questions 5 and 6 in report;
3. follow the instructions on page 13 of the Guide, titled “Completing the Designated Doctor Report” (see emphasis on course and priorities under “Report Form”), which state that he first should have thoroughly established illness and disability information;
4. consulted and asked me prior to completing questions 17 to 21 in the Assessment and Report form, relating to ‘Planning for employment’;
5. request and consider a Host Doctor Report by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre (see page 13 of the ‘Guide for Designated Doctors’);
6. upon completing the examination and final assessment to also send a copy of his report or assessment to my own GP, Dr Xxxxx Txxxxxx (see pages 13 and 24 of the ‘Guide for Designated Doctors’);
7. Dr Xxxxxxx was expected to discuss the report with me, prior to sending it to Work and Income (see page 13 of the ‘Guide for Designated Doctors’).

 

An examination of the assessment and report by Dr Xxxxxxx proves the following:

1. Dr Xxxxxxx did not show the due respect and fairness to me as a patient to be assessed by a third party (Work and Income). He did not explain to me details and aspects of the examination and the way he intended to conduct it with me, before questioning me almost exclusively about my benefit situation, past work, inability to work, what I was doing with my time, and so forth. He instead displayed a bias and degree of incompetence, making a wrong, dismissive and irresponsible diagnosis.

2. Dr Xxxxxxx ignored information supplied in the form of the Medical Certificate issued by my own GP, Dr Txxxxxx (fr. 22.04.2010, sent by WINZ), psychiatric assessments from XXXX psychiatrist Jxxx Bxxxx (sent by my GP), a summarised host doctor report from my GP (sent 18.06.2010) and also largely ignored submissions by me during the consultation, as well as in the form of documents from counsellors and specialists treating me. He did to questions 5 and 6 in the assessment and report form tick a box indicating that I was NOT “under the care of a specialist”, while it was evident that I was getting specialist treatment at XXXX, same as earlier at St Lukes C.M.H.C.. He acted irresponsibly, incompetently, unprofessionally, failed to be objective, fair and reasonable by not giving the due consideration to all this in his diagnosis on the form.

3. He also failed to follow the prescribed form for completing his assessment and report by not adhering to the particular and carefully worded guidelines on top of page 13 of the form – under “Report Form”. Instead of first establishing an in depth picture of my illness and disabilities, Dr Xxxxxxx focused primarily on questions about my past work, reasons for not working or being able to work, my view about past and alternative employment, and attempting to press for reasons why I felt I could not work, before he even asked me about aspects of my health conditions and treatment.

4. I was at no time during the assessment and examination by Dr Xxxxxxx ever asked about what could or should be done to assist me to plan for a return to work. There was no idea that I could have had that he would decide to complete answers (without seeking my input) to questions 17 to 21 on the assessment/report form.

5. Although Dr Xxxxxxx did appear to request a ‘Host Doctor/Usual Practitioner Report’ from my GP, Dr Txxxxxx, it does not have happened in the prescribed form, as my own doctor also only felt prompted to respond by way of an ordinary email letter. Regrettably Dr Txxxxxx’s report contained a mistake referring to me seeking legal aid while facing a charge for an alleged “assault” (wrong information apparently passed on by XXXX counsellor), which never happened, but otherwise it mentioned relevant details re my long standing alcoholism, relapses and need for intensive counselling at XXXX. He mentions depression and XXX as conditions/ disabilities.

6. Having obtained copi